Biblioteca PGR


PP982
Analítico de Periódico



MENGOZZI, Paolo
La Corte di giustizia dell’Unione e il diritto nazionale degli Stati membri / Paolo Mengozzi
Il Diritto dell'Unione Europea, n.1 (2016), p.167-188


DIREITO COMUNITÁRIO, TRIBUNAL DE JUSTIÇA DA UNIÃO EUROPEIA, DIREITO NACIONAL

This essay shows how the Court of Justice pays attention to Member States ‘procedural law and substantive law. As far as procedural law is concerned, the Court of Justice is bound, due to the principle of conferral, to respect the procedural autonomy of the Member States and to restrictively apply the limits that it sets to that principle. Consequently, the Court of Justice only exceptionally considers that respect of the res judicata in the Member States may not be applied. As far as substantive law is concerned, the Court operates in the opposite way: i.e., it deems the respect of the Member States’ constitutional identity as an exceptionally admitted justification of the violation of the EU rules on free movement. After having recalled that the Court’s position has recently faced strong disapproval, the author stresses that such disapproval is shared by the Bundesverfassungsgericht in its order in Gauweiler. In addition, the author indicates the reasons why, in the light of the ruling delivered by the Court of Justice in the same case, the German Constitutional Court should not persist in maintaining the position taken in its order.