Smoke gets in euro-eyes: fusione e fissione del diritto comunitario

Abstract

This essay reconstructs the mechanism of the mutual “influence” between European Union Law and the Law of member states. In particular, the mechanism of the disapplication of domestic law has been assumed on the light of the comparison with the common law system and the relationship between equity and case law. Thanks to this comparative approach and the analysis of the jurisprudence of the Supreme Court (formerly House of Lords), the Author highlight the nature of “delegation” of powers and not of transfer of sovereignty inherent in the relations between member states and the European Union. At the same time, through the reconstruction of the jurispru- dence of the European Court of Justice on the subject of “disapplica- tion” of internal rules with respect to European ones, the “special nature” of the rules of European Law with respect to internal ones is emphasized. The essay therefore proposes a new vision of the rela- tions between the law of the member states and the European law that operates not in a bi-univocal way (as in the “fusion”) but creating a circuit, a flow or a circulation of rules, acts, norms, ideas, policies, interpretations that inevitably end up altering, modify, integrate, strengthen the system of each Member State and, due to a rebound effect, also and again the Community law itself, producing an infinite loop or a “fission” with a continuous development of new energy, new rules, new actions, new protections, new rights.