The European legal system and judicial creativity. Reflections from a private comparative law perspective

CatturaLORENZO BAIRATI – BARBARA PASA – CDCT Working Paper 22-2013/ELC12

Abstract: The aim of this working paper is to explore the judicial activism of the Court of Justice of the European Union and some leading cases within the European legal system. The paper will look at the “negotiation process” between European and national judges, and at factors that can modify this relationship; the paper also seeks to identify a legitimate form of ‘European equity’ inspired by the different notions of “equity” which have developed within the civil and the common law traditions. The areas of State Liability for breach of European law, of Contract Law and of Consumer Protection will be drawn on in order to better understand the “Europeanization of law”, that is, the product of reciprocal influence between national and supranational judges, and national and European institutions

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