Diritto Pubblico Comparato ed Europeo

Sommario

1. Premessa. – 2. Sovereign immunity e constitutional torts nel diritto costituzionale statunitense. – 3. La Alden trilogy. – 4. Rule of law comunitaria ed “Euro-rimedi”. – 5. Francovich e Brasserie: constitutional torts e sovereign immunity anche nel diritto comunitario? – 6. Florida Prepaid e la judicial supremacy doctrine. – 7. Conclusioni.

Abstract

This paper draws a comparative analysis between the case law of sovereign immunity of the United States Supreme Court and of Francovich/Brasserie decisions of the European Court of Justice; such analysis finds its theoretical foundations in the structural homogeneity between the American legal figure of constitutional torts and the so-called “Euro-remedies” developed by the ECJ in order to assure member States compliance with Community law. The paper finally supports the view according to which the similarities between US and EU systems of member States liability for infringement of the rules of the center are not only theoretical, but might also be operational. In this sense, it might be said that the American doctrine of judicial supremacy is to be borrowed in order to analyse the European Community legal system and the pivotal role assumed by the ECJ in its context.