Report on Greece (in The National Judicial Treatment of the ECHR and EU Laws. A Constitutional Comparative Perspective)
in The National Judicial Treatment of the ECHR and EU Laws. A Constitutional Comparative Perspective, G. Martinico and O. Pollicino (eds.), Europa Law Publishing, Groningen, 2010, pp. 225-251
30 Pages Posted: 10 Dec 2014 Last revised: 22 Nov 2021
Date Written: July 1, 2010
Abstract
The paper briefly explores how the Greek legal order receives and reacts vis-à-vis the acquis communautaire and the European public order. Although the nature, function, intensity and extent of the supranationality developed by the ECHR differs substantially from that of Union law, both regimes aim at producing effective results within the national order. The sources of supranationality stem from the socio-normative teleology of the European integration within a particular historical context, the legitimacy of that objective and the social consensus surrounding it, if not from state will itself. The paper sustains that the inadequacy of positive law, the interpretative relativism, and the systemic inconsistencies that inevitably emerge are to be covered by the de facto predominance of the supranational regimes over the Greek legal order, including its constitutional provisions. The integration of supranational law into the municipal order often touches on the most sensitive chords of the constitutional domain. In that context, the consequent formal supremacy that each legal system aims to secure for itself turns out to be not only a legal or even a legalistic question, but rather a “post-positivist” one that involves socio-political aspects to a great extent. In spite of the formalist constraints set by the rigid Greek Constitution that seeks to retain its primacy, the national judge has no choice but to align her/his practice with the case law of her/his supranational colleague. De facto, supranationalism dominates the Greek legal order entirely. The case law indicates that the Greek order relinquishes in favour of the supranational norms -thereby confirming their supranational (as well as de facto supra-constitutional) effectiveness.Yet the Greek judge only came to face that “meta-positivist” reality recently and is still striving to compromise with it.
Keywords: European Union law, European Convention on Human Rights, Greek legal order, European Court of Justice, European Court of Human Rights, supranationalism, de facto supremacy, metapositivism, pluralism, judicial dialogue, harmonisation, conflict of norms, complementarity
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