West University of Timișoara

Research Field:

Summary of the Thesis

The Stakes of Comparison Theory in the Study of European Law

Associate Professor Raluca Bercea, PhD

This habilitation thesis has a cumulative rather than a monographic character, presenting the main results of the previously accumulated academic, professional and scientific activity (A), as well as the directions for the evolution and development of the academic, professional and scientific career in perspective (B).

A. Academic, professional and scientific achievements

1. Academic achievements

I am a graduate of the Faculty of Law within the West University of Timișoara and of the Faculty of Letters, Philosophy and History (French-English) of the same university. I am associate professor (conferențiar universitar) at the Faculty of Law within the West University of Timișoara since 2012, at the Public Law Department, after going through the stages of the academic career since 1997. I held seminars and, later, courses in the graduate Law Degree program, initially, at the discipline Legal Language – French, then at the disciplines European Union Institutional Law, respectively Comparative Law and Legal Systems, for which I have drafted university courses, as well as in the Masters Degree program in European Union Law, at the disciplines Principles of European Union Law and Harmonization of European Private Law. In 2015, I helped the transformation of the Masters Degree in Dreptul Uniunii Europene (European Union Law) into an English-language Masters Degree, European Union Law, which I am currently coordinating and in which I am lecturing on Principles of European Union Law and Harmonization of European Private Law.

My teaching career, both in Comparative Law and in European Law, includes visiting professorships at University Paris I Panthéon-Sorbonne (France), at the Master Globalisation et pluralisme juridique (in 2008, 2010, 2011, 2014, 2016) and, respectively, at Master de Droit européen – formation délocalisée de l’Université Lyon 3, France, at the Faculty of Law of Szeged (Hungary), in 2011. I have also initiated, together with the Faculty of Law of Università degli Studi di Udine (), an intensive international teaching program of European Union

Page 1 of 9 Law, which has been running uninterruptedly since 2007, on the topic of Users’ Rights and Market Regulation (where I taught in 2007, 2008, 2009 and 2011) and, respectively, Consumers’ Rights in the European Union. Alternative Dispute Resolution and Collective Redress (where I have taught since 2013).

I have initiated cooperation relations with professors from the foreign universities where I have been invited to teach, as a result of which several professors have held Comparative Law or European Law courses or conferences at the Faculty of Law within the West University of Timişoara: Pierre Legrand (University Paris I Panthéon-Sorbonne, France), Simone Glanert (University of Kent, United Kingdom), Frédéric Sudre and Alexandre Viala (University Montpellier I, France), Elisabetta Bergamini (University of Udine, Italy), Erszebet Sandor-Szalay (University of Pécs, Hungary).

I coordinated, in 2012, the section of European and International Law at the International Biennial Conference of the Faculty of Law within the West University of Timişoara and, respectively, I have initiated and coordinated the Comparative Law and Interdisciplinary section of the same conference in 2014, 2016 and 2018. I edited and I supervised the publication of the 4 collective volumes resulted from the contributions of the participants in these sections of the conference. I launched, in 2018, and I am coordinating, at the West University of Timişoara Publishing House, the collection De-a dreptul, meant to bring the fundamental problems of the law to the attention of the non-specialist academic public.

I am the director of the Centre of Comparative Law and Interdisciplinarity functioning within the Institute for Social Sciences of the West University of Timişoara. I have initiated and I am coordinating a Comparative Law and Interdisciplinarity Circle for students. The activities carried out with the students in this circle materialized in 2016 in the appearance of the first issue of the Timișoara Law School Students’ Journal, in the organisation of two sessions of student communications held in French, in cooperation with the Romanian group of Association “Henri Capitant” des amis de la culture juridique française, in the organisation and coordination of two sections of scientific communications for students at the International Conference of Doctoral Students in Law, organized by the Faculty of Law within the University of Timişoara.

Between 2014 and 2017, I organized and coordinated, at the Faculty of Law of Timişoara, in cooperation with the National Institute for Lawyers’ Training and Development – Timişoara Regional Centre, a summer school in European Law, for the final year students of the faculty and the trainee lawyers of the centre. I coordinate, together with my colleagues teaching European and International Law, the students’ teams participating in the international moot court competitions in International Law and European Union Law (Jessup, Telders, Central and Eastern European Moot Court Competition, European Law Moot Court Competition, etc.). I have initiated in 2017 and I have been coordinating ever since a debate for high school students on the topic Law Challenges in the 21st Century, which I have conceived as an instrument to promote civic education and the academic values of legal sciences in the final classes of pre-university education.

Page 2 of 9 2. Professional achievements

Since 2017, I am a trainer in the European Law of Human Rights of the Council of Europe, and since 2016 a representative of the National Association of Romanian Bars in the Council of Europe’s “HELP” training department (info point for Romania). Starting with 2012, I am the director of the Timişoara Regional Centre of the National Institute for Lawyers’ Training and Development, and, since 2010, a trainer in European Law. Between 2012 and 2018, I was Vice-Chairman of the National Commission for the Bar Admission Examination and Vice-President of the National Commission for the National Institute for Lawyers’ Training and Development Graduation Examination. I have examined the candidates in the disciplines European Union Law and European Human Rights Law in the 2012-2018 graduation examination sessions.

As a training expert of the Council of Europe, I have held continuous professional training programs for lawyers (in cooperation with the National Association of Romanian Bars and the National Institute for Lawyers’ Training and Development) in the years 2017 (in the field of data protection) and 2018 (in the field of anti-discrimination) and, respectively, for magistrates and lawyers (in cooperation with the Superior Council of Magistracy), in 2017. Also, at the request of the National Association of Romanian Bars, I participated as a national training expert at the national seminar organized in the framework of a project funded by the European Commission – “ACTIONES” (Active Charter Training through Interaction of National Experiences) in 2017, and I have the capacity of national coordinator in another such project, which is underway starting with 2017 – the National e-Learning Active Charter Training (“eNACT”) project. I have developed over the years several legal opinions on European Law at the request of the High Court of Cassation and Justice – the Administrative and Fiscal Section, the Panel of Judges competent in preliminary ruling on questions of law, and of the National Association of Romanian Bars.

I have participated, as a national rapporteur, or I have sent, in this capacity, reports to the international comparative law conferences and congresses organized by the Association “Henri Capitant” des amis de la culture juridique française in 2016 and 2017 and, respectively, the 2018 edition of the Congress of the International Academy of Comparative Law, held in Fukuoka (). These reports have been published in the international volumes of those congresses.

3. Scientific achievements

I have published the results of my research activity in the form of 30 studies and articles in legal journals with an international and national recognized prestige (The Translator, Diritto e Politiche dell'Unione Europea, Romanian Journal of Comparative Law, Noua Revistă Română de Drepturile Omului, Revista Română de Drept European, Dreptul, Pandectele Române, etc.). I have published 5 books, of which 2 as author and 3 as co-author; I have contributed with chapters to more than 20 collective volumes; I have edited 5 collective volumes; I translated books and studies of European Law and Comparative Law of renowned

Page 3 of 9 foreign authors. All of these have been published at international legal publishing houses (Presses Universitaires de France, LGDJ, Routledge, Bruylant, Springer, Elsevier, etc.) or prestigious national ones (Humanitas, Polirom, C.H. Beck, Universul Juridic, Editura Universității de Vest, Lumina Lex, etc.).

I have organized or participated as a speaker at 20 international conferences and 25 national conferences on European Law (e.g. within the Council of Europe) and Comparative Law (e.g. at the invitation of the British Association of Comparative Law or of the Association “Henri Capitant” des amis de la culture juridique française).

I have participated, as an expert or post-doctoral researcher, on several research grants, mainly on some that reflect upon and research in the field of humanities.

My scientific interests largely developed in two main directions: Comparative Law and European Union Law, both relatively new disciplines in Romania in the early 2000s, when I started teaching at the Law Faculty in Timișoara.

My research in Comparative Law initially aimed at mapping the field and its essential issues, an approach that Romania lacked at the time. For this purpose, through the various texts that I have mentioned in this habilitation thesis, I have circumvented the field of Comparative Law, thus identifying the epistemological principles imposed by the core of classic authors that dominates it and emphasizing on the peripheric currents thereof. I have furthermore assessed the constraints that the discipline exercises towards its members and underlined the general tools used to create redundancy and consensus in law. Dealing with the peripheral comparativists, I have pointed out the arguments that they use in order to challenge the centre of the discipline, as well as their main points of disagreement. I have also identified interdisciplinarity as the main principle put forward by the peripheral comparativists and enumerated the main interdisciplinary trends manifesting themselves in law. The topics of the discipline and of the discipline periphery, as well as the debate on the principles inherent to the disciplinary centre and its contesting poles, have brought me towards the issues arising from the methodological choice. I have thus analysed both some methodological protocols offered by the positivist centre of the discipline, indicating significant variance among the well established authors, and the critique offered thereto by the peripheral authors, of whom some support the refusal of any comparison method or, at least, the refusal of a previously construed one. The analysis of Comparative Law as a field led to the capital issues of today’s legal comparison that I dealt with both from the perspective of the established and the peripheric comparativists.

Thus, in this habilitation thesis I have illustrated the way in which the Comparative Law doctrine deals with interpretation, with the status of Comparative Law texts as mere reflections of the legal systems or, on the contrary, as fictional texts, as constructs triggering ethical consequences, with the legal translation of the comparison. Transgressing the narrow field of Comparative Law towards the salient issues of Constitutional Law, European law in general or

Page 4 of 9 European Union Law, I analysed the dichotomy legal system (a category put forward by the classical comparativists) / legal culture (a concept theorized by the culturalists).

In respect to interpretation, I noticed that the established voices of the doctrine are fundamentally opposite to the culturalist contestatory one, a considerable distance separating the interpretive strategies of the ones as compared to the others’. The interpretive traces left by the comparativists as interpreters of the foreign legal texts are highly different as well. Thus, traditionally, for positivist lawyers and for positivist comparativists, law is reducible to the rules in force on a certain territory and within a certain jurisdiction. For this reason, the positivist analysis of Comparative Law will only multiply perspectives of the same quality, therefore dealing with multiple sets of in force on several territories and within several jurisdictions. The accurate identification and description of the legal systems reduced to the law in force triggers, within the positivist paradigm, the apparent absence of interpretation, willingly identified with the blank writing of either the judge who pretends to be the mere “mouth of the law” or the doctrine who will operate as expositor, producing assertive repetitive texts that multiply the law without genuinely touching it.

On the other hand, culturalist comparativists will understand legal norms as vectors of cultural sensitivity, comparison itself being apprehended as hermeneutics whose aim is to help the comparativist inject meaning into the legal artefacts. Being a fact of language, naturally endowed with expressivity, interpretation could not be associated with discursive or indicative purity, as postulated by positivism. Understanding the ways in which an interpretation articulates itself depends, among others, on the interpreter and the audience themselves. Against this background, I have asked the question whether, as claimed by the classical comparativists, the foreign law might spread as such in front of the lawyer’s eyes, if the lawyer might ever apprehend it in its “reality”, if the comparative discourse ― be it referential and construed through proper scientific protocols ― could reflect law in itself. Adopting the culturalist perspective, I have claimed that, rather than worrying for having failed to render law’s reality, the comparativist should accept that, given the natural and the conceptual language, considering her decision to put together under an explanatory framework signifiers belonging to different legal (therefore cultural) traditions, her discourse only forges a degree of possibility as to the referent. Or this inherent constructivism of the comparativist perspective rather implies ethical concerns. One is to notice in this respect that the ethical stance only occurs in the culturalist paradigm that militates for differential ethics or for the ethics of the alterity articulated around the concepts of acknowledgement or respect as guiding lines. Furthermore, translation has never been a point on the classical positivist comparativists’ agenda, although an unavoidable question for the legal comparison is to properly translate not only the legal artefacts as such ― that so far merely concerned the legal translators ― but also the typically legal use of the language. Quite on the contrary, several peripheral comparativists seemed interested in the stakes of the cultural legal translation, allowing for a description of their tool box.

Finally, the methodological option expressed for the legal systems or, quite contrarily, for the legal cultures represents in itself a distinctive criterion between positivist and culturalist

Page 5 of 9 lawyers. For the first ones, in order to be apprehended as science (and thus in order to put an end to the controversy concerning the Comparative Law understood as science or as mere method), the legal comparison should take an interest in the legal systems. As for the connection between law and culture, it has been supported by the fact that law probably is among the most significant and strong social practices, one of the best qualified ways of being in the world. Law obviously represents a distinctive manner of imagining reality, a singular interpretation thereof, an institutionalized cultural figure whose agents (the doctrine, the judges, the lawyers, law students…) engender, ordinate and systematize meanings. Law tells a story about a given community as communities express law by themselves. Against such background, law produces and is produced by culture, being itself a cultural object. For the culturalist comparativists, therefore, law is not fully exhausted by the legal norms as posited by the legal system: law is embedded in culture that represents the synchronic manifestation of a tradition and occupies an intermediate space between what is universally shared and the individual idiosyncrasies. The legal comparison itself is either cultural or devoid of meaning. Plurivocal, the concept of legal culture might refer to various phenomena and interactions, among which the most frequently investigated are the practices and ideologies manifesting themselves within a legal system (“the internal legal system”), the public attitudes expressed in relation to law (“the external legal system”), the mechanisms through which culture is dominated by law and those through which law acknowledges culture.

The theoretical comparative issues mentioned above influenced my approach to European Union Law. Within a first research period, I dedicated a monography to the most relevant European Union Law topics, through the reading key of its main principles. By this contribution, I tried to supplement a lack in the Romanian doctrine at that moment and also to contribute in the years immediate after Romania’s accession to a better understanding, by the national lawyers, of the European Union’s structure and functioning mechanisms. My approach was systematic: I first listed the principles among the sources of European Union Law, then I described in detail the types thereof as acknowledged by the European Court of Justice and the doctrine of European Law: the principles inherent to the specific construction of the European Union, the principles arising from the constitutional organisation of the European Union; the principles triggered by the (European) Union of law; the principles governing the enforcement of the European Union law within the Member States’ legal systems and in relation with the International Law of human rights; the principles governing the system of competencies within the European Union and the principles governing the functioning of the European Union institutions.

Moving from the abstract level of the principles to the reality of the European Union Law integration within the Member States’ legal systems, at the very beginning of Romania’s post-accession period I reviewed the potential difficulties that the Romanian legal system would predictably face given its cultural specificity: for instance, as far as primacy was concerned, I had anticipated difficulties arising from the nomothetic national tradition, while as far as the immediate enforcement was regarded I had foreseen difficulties on account of the constitutional national system, dualistic in respect with the international general law. I also took in consideration, in my analysis, the experience that the national legal system had with

Page 6 of 9 the supranational system of the European Convention of Human Rights. Secondly, I used the main elements of the cultural interpretation theory while assessing the way in which both the European Court of Human Rights and the Court of Justice of the European Union deal with the national legal cultures. Although the two supranational jurisdictions are bound to consider, in their interpretations, the plurality of the legal systems, I could notice that in their historical case-law they manifested their obvious preference towards the wording of the legal text, adopting the literal classic method of interpretation that they considered apt to preserve the purity of the legal meaning. In some cases, the European judges even openly warn the disadvantages of the plurality of interpretations as compared to a single true and correct one, while in others, forced to render sensitive cultural decisions in a multinational context they declared the conceptual object of their interpretation autonomous as compared to its national homonyms. I could thus analyse judgments that manifestly confirmed that law is not exhausted by legal rules that are neither self-sufficient nor self-explanatory, while a legal term, be it well established, could not signify outside larger contexts.

Being furthermore interested in the actual relationship between the Union and the national systems’ legal order, I have stumbled upon the extreme conclusion that the European Union would be marked by a constitutional crisis, the European constitutionalism itself being depicted as a “no destination voyage” or as a “contested concept”. The doctrine intended through such words to indicate that, ever since its creation, the Union has represented a challenge for the theory of the systems, therefore for the constitutionalist theories in general. Emphasizing that the Union’s identity is ever shaping, ever contested and experiencing a constant confrontation of its various sub-systems, I took as an example the dialogue ― or rather the negotiation ― generated by the preliminary references to the European Court of Justice made by national constitutional judges (in this thesis I have referred to the cases Taricco I and II and Coman-Hamilton). I thus argued that such a dialogue is a polyphonic one, implying the fine tuning of several sets of standards and jurisprudences: national legislations, national constitutions, dispositions of the founding treaties, fundamental rights as enshrined in the European Convention of Human Rights or in the Charter of Fundamental Rights in the European Union, their interpretation by the various national and international courts, their enforcement and control by the national public authorities.

B. Evolution and development of the academic, scientific and professional career

1. Evolution and development of academic career

I aim to update or complete the university courses which I have already published in the field of European Union Law and reassess the manner of teaching law comparison; to develop the inter-university cooperation relations with professors of European Union Law and Comparative Law from the most important university centres of Romania and of the region of Central and South-Eastern Europe, forming a network to work together in the organisation of conferences and Masters Degree programs in European Union Law, in foreign languages,

Page 7 of 9 drawing on the cooperation experiences I have had in recent years; to support the harmonization of the European private law component of the English-speaking Masters Degree program European Union Law, which I coordinate at the Faculty of Law from Timișoara. I also want to strengthen my cooperation relationships with the law professors from the universities of France, Italy, and United Kingdom.

2. Evolution and development of professional career

I aim to continue my editorial activity by publishing thematic volumes of the legal journals in whose scientific committees I am involved on subjects that impact on the aforementioned fields; to continue the training activity within the National Institute for Lawyers’ Training and Development in order to identify, evaluate and critically analyse the current practical problems raised by European Union Law and to focus the academic teaching and research on issues relevant to the practice of law; to continue the collaboration with the Council of Europe HELP program, as well as the Association “Henri Capitant” des amis de la culture juridique française in order to improve the visibility of Romanian research in the field of fundamental rights and Comparative Law.

3. Evolution and development of the scientific career

Generally speaking, my future research will contribute to the study of the relationship between European Union Law and national positive law. The research activity is to be carried out taking into account two strategic directions at the institutional level: strengthening the activity of the Centre of Comparative Law and Interdisciplinarity at the Faculty of Law within the West University of Timișoara, respectively the consolidation of the Comparative Law and European Law component of the Doctoral School of the Faculty of Law within the West University of Timișoara.

Among the topics that would attract my interest in the event of coordinating doctoral research which would capitalize on the recent research from comparison theory in the study of European Union Law, I would like to mention, for illustrative purposes, the following: (1) types of disciplines and types of perspectives upon disciplines; the advantages and disadvantages of interdisciplinarity in the study of law; (2) methods and limits of interpretation in the case-law of the Court of Justice of the European Union; (3) harmonization of Member States’ private law in the light of national legal traditions; (4) law and ideology in the European Union; (5) a new application of the theory of law systems: is there a Central and South-Eastern European legal mentality? (6) the economic analysis of law in European Union law acts; (7) the context of the first preliminary referral of the Romanian Constitutional Court and its consequences.

Indeed, in my opinion, transforming itself into an increasingly complex system as its success as a project grows, and simultaneously confronted with serious legitimacy problems, crossing the crisis of the potential withdrawal of one of the most powerful members, but also preparing to integrate national systems that are less compliant with its general standards, European Union Law can no longer avoid the challenges that the modern comparison theory

Page 8 of 9 has raised in recent years. In this context, it appears as reasonable at least a thorough assessment of the pertinence of some of the major themes discussed in recent years in relation to (1) the disciplines and interdisciplinarity in law; (2) the methods and types of interpretation used by supra-national jurisdictions; (3) the legal traditions and the harmonization of private law; (4) the relations between law and ideology at a supra-national level; (5) the issue of regional legal mentalities correlated with system theories; (6) the economic analysis of European legislative and case-law productions and their economic impact; (7) the dynamic relationship among judges within the European constitutionalism.

Associate Professor Raluca Bercea, PhD

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