IDHEAP Rue de la Mouline 28 1015 Lausanne Switzerland
Francesco.Maiani@idheap.unil.ch
PhD, LL.M. Assistant Professor at the Swiss Graduate School of Public Administration (IDHEAP) Member of the European Commission for Democracy through Law (Venice Commission) Member of the Swiss Public Administration Network (SPAN) Member of the Odysseus Academic Network Junior Member of the European Constitutional Law Network (ECLN)
Webpage and publication downloads: http://idheap.academia.edu/FrancescoMaiani
Abstract: The âEuropeanizationâ of non-EU countriesâ laws is predominantly seen as an âexportâ of the EU acquis, especially in the case of so-called âquasi-memberâ states such as Switzerland. Based on an examination of the Swiss experience, this paper highlights the flaws of this conceptualization: the Europeanization of Swiss Law is a highly differentiated phenomenon, encompassing several forms of approximation to EU Law. All of these forms fall short of an âexportâ of norms, and result in the creation of something new: a âEuropeanized lawâ that is similar to, but qualitatively different from, EU Law. Another drawback of the âexportâ metaphor is the emphasis it places on the isomorphism of positive legislation. Europeanization goes deeper than that. As shown in this paper, it is a process of transformation involving not only positive law, but also legal thinking. The Swiss case demonstrates how significant such deeper transformations can be: the Europeanization of positive law has induced an alteration of the traditional canon of legal interpretation. It also demonstrates how problematic such transformations can be: the above-mentioned alteration has not given rise to a new and universally accepted canon of interpretation. This reflects the tension between the need for clear ârules of referenceâ for EU legal materials â which are required in order to restore coherence and predictability to an extensively Europeanized legal system â and the reluctance to give a legal value to foreign legal materials â which is rooted in a traditional understanding of the concept of âlawâ. Such tension, in turn, shows what deep and difficult transformations are required in order to establish a viable model of legal integration outside supranational structures.