Pre-emption in U.S.A. and Europe: a comparative attempt

Since its beginning the process of European integration has been faced with the “existential drama” which generally affects most forms of social organization, i.e. the dilemma of reaching an equilibrium between – on one hand – a respect for the autonomy of the individual unit, freedom of choice and diversity of action, and – on the other hand – the societal need for cooperation, integration, harmony and unity. In the context of dynamic relationships occurring between the EC and its Member States such desire for this equilibrium has gradually become more intense and noticeable, being it related not only to a general need for a functional optimization and rationalization of economic and social welfare, but also to a more profound and never-ending effort aimed at the establishment of a common democratic order, which is at the same time consonant with the ideals of liberty and justice shared by the EC Member States. The tensions existing between the two poles – the one only Union and the presence of many peripheral entities, i.e. the Member States – and the specific solutions for their reconciliation on one side in the context of north American federal system, on the other side within the European Community constitute the object of this thesis, particularly focused on the pre-emption theme. Within the American experience, as well as in the European one, such legal doctrine has revealed to be deeply connected to the very essence of the constitutional structure, by playing a crucial role in the allocation of legislative and regulatory competences, as well as in the exercise of the relevant powers between central authority and peripheral entities. The word ‘pre-emption’ identifies the mechanism that determines, even before an express central measure in point exists, whether a whole policy area has been actually or potentially occupied by the central authority in such way as to influence the intervention of the states in that area, by obstructing a priori Member States from the adoption of other/different legal acts within the same legislative area. The difficulties stemming from the pre-emption doctrine clearly arise from its very potentiality, which makes it hard to define in advance which areas are pre-empted and under what conditions, and also whether powers in such areas are concurrent or exclusive. From a comparative point of view the analysis will thus try to answer to a huge question, as so to discover whether it is possible or not to talk about a ‘transmigration of models’ at the supranational level...