Comparative law

Thereby, we can be assured that people’s rights are not broken by the tendency of adopting foreign law bans. The government and the states are willing to protect the most important American values of liberty and other human rights. American courts can apply a foreign law in case of guaranteed following of American values. And of course, it is not acceptable to use a foreign law in case of breaking national American values.3. Flaminio Costa v ENEL (1964) Case 6/64 was a landmark decision of the European Court of Justice, which established the primacy of European Union law over the laws of its member states.TheEuropean Union(EU) is apoliticalandeconomic union of28 member states. The EU has developedan internal single marketthrough a standardized system of lawsthat apply in all member states in those matters (only) where members have agreed to act as one. EU policies aim to ensure thefree movement of people, goods, services and capitalwithin the internal market, enact legislation in justice and home affairs and maintain common policies on trade, agriculture, fisheriesandregional development.The major of European Union members belong to the continental European civil law tradition so it sounds unusual that the European Court of Justice’s decisions create new rules that are mandatory for the European Union members.The European Court of Justiceactivism seems to create tension between the European Union law and the local governs.As for me, there is no any tension between the Constitutional Courts of the Member States because of the following states.Firstly, all European countries have enter the Union voluntarily. Secondly, most of the members have enacted the European Communities Act 1972 at their national legislative levels. Thirdly, other countries write the precedence of Union law into their constitutions. For example, the constitution of the Ireland contains that “no provision of this constitution invalidates law enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities…”TheUnited Kingdom Supreme Courtsaid:The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972did not either contemplate or authorise the abrogation.The other statement based on the purpose of the membership in the European Union. As it is mentioned the EU is apoliticalandeconomic union, which is to provide the absence of any boundaries between the member states for people movements, trade and so on. This union was created to let its members act as one, to help weaker members and to create the unified area. In order to provide the unification there must be equal legal principles in the union, laws and arbitrage practice at all member states. That is why members have to follow the European Union laws and the European Court of Justice’s decisions.Otherwise, if member states would not admit supremacy of the European Court of Justice there will not be any unified area. There is no point for tension between member states’ constitutional courts to exist. The case is a weak source of law for European countries because they belong to the continental European civil law tradition. So there should be mechanism of implementing precedencies of the European Court of Justice decisions into members’ national law. Moreover, in the countries of the continental European civil law tradition it is usual practice when the highest court instances interpret obscure law rules and give advices on how to use some law rules, which are mandatory for lower court instances. So there is no case law in the European continental states but they are able to use the courts’ conclusions in their legislation and legal regulations in other ways. It is hardly possible to find out any risks associated with the juridical activism of the European Court of Justice. Furthermore, thanks to the European Court of Justice activity there is unified understanding of the law among the state courts and human rights are equally provided throughout the European Union.