2010 | 4(99) | 123-139
Article title

THE TREATY OF LISBON IN THE CONTEXT OF EFFICIENCY OF THE EUROPEAN SYSTEM OF LEGAL PROTECTION AND THE COOPERATIVE MODEL OF THE LAW MAKER (Traktat z Lizbony wobec operatywnosci unijnego systemu ochrony prawnej i modelu kooperacyjnego prawodawcy)

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The institutional status of the Court of Justice confirms that the founding fathers of the treaties envisioned the Court taking on a role that is going beyond the paradigm of simply applying and enforcing European law. An analysis of jurisprudence shows that the Court has indeed become an autonomous actor in the integration process. For the Court 'the law' plays the role of both an argumentative force and a tool for market participants to pursue their goals independently of, and sometimes in direct opposition to, political process. The Union court assumes the mantle of the law maker who creatively influences the system of European law and determines the behavior of the institutions and states. Having said this, it would be wrong to assume that the legislative function of the Court is analogous to that of political law maker. Within the confines of the cooperative model of the European law maker, the Court acts as a judicial law maker who speaks the language of general principles and precedents, pursues long-term objectives of the Treaty as opposed to the short-term exigencies of day-to-day politics. Both law makers are complementary to each other. They act as critical interlocutors and expect mutual appreciation for their respective contribution to the working-out of European law. To this end the cooperative model of the European law maker is characterized by a permanent dialogue and taking into account of what each law maker has to say. Treaty of Lisbon provides perfect example of the functioning of this model, since imperfect legal text (effect of action on the part of a political law maker) is subjected to critical rationalization by a court. The latter aims at making the text operational and effective. This takes on a fundamental importance, because it widens the scope of the normative analysis. By constraining our analysis of the Lisbon Treaty exclusively to legal text, we would be in many cases forced to leave empty-handed: always searching for answers, and yet never getting them. Only global reconstruction of the legal text which takes into consideration also the input from the judicial law maker gives us a chance to arrive at the complete picture of European law in force.
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  • Tomasz T. Koncewicz, Uniwersytet Gdanski, Wydzial Prawa i Administracji, ul. Bazynskiego 6, 80-952 Gdansk, Poland
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