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Judicial Method in EU Law Cases: Views from the Common Law

Tamara Hervey

This paper reports on two related publications, concerning the reception of EU law into the English legal system.The first publication reports on trends in EU legal studies from the point of view of the common law - in particular the English legal system. It considers the development of EU legal studies from the 1970s when the UK joined the EEC, to the 2010s, where the UK's membership of the EU is increasingly politically contested, and, for instance, the UK is outside the 'inner circle' of the Eurozone Member States. Considering academic writings, it investigates the extent to which EU law is deciphered in this context through common law concepts; and the ways in which relationships between EU and national law are understood.The second publication turns to judicial writings. Drawing on a case study in employment law, it considers the judicial method employed by English judges when considering questions of EU law. Its key findings are that the approaches and reasoning of English judges have changed significantly over time; that the current position (the 'EU compliance mischief rule') departs significantly from traditional English rules of statutory interpretation, applicable to ordinary domestic cases; that the current position involves a re-conceptualisation of the relationship between courts and Parliament in the context of interpretation of national law within the scope of EU law; and that English judges conceive of EU and English law as essentially separate systems.



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