New Challenges for European Comparative Law

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).

Dr Jule Mulder has published an article on European comparative law methodology entitled New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a turn to a Multilayered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization.[1] This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States.

In the first part, the article evaluates existing comparative law methods and their suitability to identify legal and cultural factors that influence the judicial reception of EU harmonized law on a national level. Using EU non-discrimination law as a case study, it questions to what extent traditional methods are suitable to explain differences in the national judicial reception of EU harmonized law, despite the exclusive competence of the Court of Justice of the European Union to interpret EU law. In doing so, it considers the potential of critical comparative law for the development of a deeper understanding of the national courts’ reception of EU harmonized law as a key part of the broader legal harmonization process. This seems particularly relevant in culturally sensitive and potentially controversial areas of European law such as discrimination law, employment law and consumer law which questions the presumed a-political nature of private law as compared to public law.

In the second part, the article develops an original multi-layered culturally informed method to compare EU harmonized law. The article proposes a three-step approach that sets a clear theoretical framework for the comparative analysis, engages with the legal, historic and cultural context of the national laws compared and focuses on the application and effects of the harmonised law in the national context. The proposal goes beyond the existing methods of comparative law by including critical aspects and stressing the relevance of embedding a general normative framework in any comparative critique. It challenges comparatists to reach deeply into national cultural spheres and to identify key influences on the application of EU rules and EU-national legal ‘hybrids’. The method creates room for multi-layered narratives of comparison aimed at gaining a deeper understanding of the national legal and non-legal cultural background that can hinder or facilitate harmonization processes. As such, it particularly points at the limitations of functionalism within the context of European comparative law but also considers the feasibility of the culturally informed comparative analysis and suggests a pragmatic approach.

This enriched comparative critique can offer new insights into the process of legal harmonization in the EU, particularly by focusing on the point of application rather than the previous phases of creation of EU law and its reception by Member States. However, the methodological insights and arguments developed in the article can also be relevant outside the European context. While European law imposes specific obligations on the Member States to implement and/or apply European law and the CJEU and national courts dialogue is highly formalised via the preliminary reference procedure (Article 267 TFEU), other international organisations and international courts or committees also engage in a dialogue with their Member States, including legislators, governments and the courts. The successful development or protection of an international standard on national level may thus also depend on these dialogues and their interplay with the national legal and non-legal context. Moreover, national courts are not only part of a trans-national community because of the European Union. For example, common law courts seem quite willing at times to refer to decisions and legal development in other common law countries and may be perceived as a common law community of courts. While influences may be less direct and effective, the interplay between national and international legal orders can thus also be observed outside the scope of the European Union. The insights and findings of this article can thus be relevant for comparative law in general.

[1] German Law Journal 2017, Volume 18, Issue 3, pages 721-770, available online

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