The New Relationship between National and the European Courts after the Enlargement of Europe: Towards a Unitary Theory of Jurisprudential Supranational Law?

Abstract

What has been the impact of the enlargement of the European Union (EU) to the east on the judicial interaction between the EU and Member States� legal orders? What changes (if any) has this brought in the judicial approach of the European Court of Justice (ECJ), in comparison with the newly emerging approach of the European Court of Human Rights after the enlargement of the Council of Europe to the east? And yet, is the distance between the judicial impact of, respectively, the law of the EU (hereinafter EU law) and the law of the European Convention on Human Rights (ECHR) on the EU Member States and the Council of Europe now shorter than it was before the enlargement of Europe to the east? In attempting to answer these research questions it is not possible to refer exclusively to the relevant literature, which has mainly 1 examined the impact of the 2004 and 2007 enlargements from two particular points of view. Focusing exclusively on the domestic constitutional situation, some scholars have investigated the �European� constitutional amendments within the Constitutions of new Member States in central and eastern Europe. 2 A second group, who instead focus exclusively on the European dimension, has studied the institutional adjustments the EU carried out (or should have carried out) in order to be ready for the accession of the ten central and eastern European (CEE) States, along with the short-term impact of the enlargement on the EU's constitutionalisation process. 3 The exclusivity of these points of view, taken as the focus of investigation, entails a weak point in relation to our research questions, which can be answered only within an investigation that valorises the dynamic natureof the enlargement. On the contrary, both of the approaches in the recent literature entail the problem of analysing the �