INTERPRETATIVE PRINCIPLES
6.3 C OMPARATIVE INTERPRETATION AND THE CJEU
The CJEU has been referred to as a ‘working laboratory for comparative law’.127
The fact that the judges and Advocates General come from different legal systems and the fact that the cases to be decided by the CJEU are rooted in different legal systems have lead the CJEU, according to some, to almost naturally adopt a comparat- ive approach.128The question can be raised, however, as to whether there is a con-
crete legal basis for the CJEU to rely on comparative materials in interpreting the EU treaties. Can an explicit reference be found in the TFEU or is there any other basis for comparative interpretation? A subsequent question is how the CJEU employs this method in the context of fundamental rights, especially if seen in relation to the question as to who supplies the comparative materials. Finally, the relation of com- parative interpretation with the other methods and principles discussed in this thesis should be addressed in the context of the CJEU too.
One of the problems in answering all of these questions is that the CJEU is not very explicit in its use of comparative interpretation.129Indeed, the method has often
been mentioned in academic literature, but it has not been analyzed at a sufficiently detailed level to answer all the questions that have been raised in the context of this chapter. This section will therefore be able to provide a basic theoretical analysis, but at the same time it will raise more questions than it will be able to answer.
126 Bernhardt (1999), p. 37.
127 Hilf (1986), p. 550, referring to Pescatore. See also Lenaerts (2003), p. 876.
128 Lenaerts (2003), p. 874, who also adds that the multilingual character of EU law leads the CJEU to adopt a comparative approach. See also Colneric (2007), p. 316.
129 Lenaerts (2003), p. 873, points to this problem. Colneric (2007), p. 316, argues that the use of the comparative method by the CJEU can be compared with the tip of an iceberg.
Comparative interpretation
General discussions on the use of comparative materials by the CJEU have pointed to Article 19 TEU as a basis for a comparative approach.130This provision grants
jurisdiction to the CJEU to ensure that the law is observed. When interpreting and applying the treaty the CJEU needs to make sure that the law is observed. The argument holds that comparative arguments help to establish what ‘the law’ is. In the context of fundamental rights a specific basis for comparative arguments is provided in Article 6(3) TEU, which states that the national constitutional traditions and the European Convention are a source for EU fundamental rights.131 Article 6
TEU is only relevant for the practice of the CJEU since the early 90s when this provision was included in the treaty. Article 19 TEU, on the other hand, provides a very broad justification for the use of comparative interpretation. The question is whether the CJEU in its case law provides a justification for its use of comparative arguments. This will probably be the case in its case law after the coming into existence of Article 6(3) TEU, because this provision provides a clear basis at least for the use of internal comparative interpretation. The question is therefore mainly directed at the case law from before 1992 and aims to find out whether the CJEU provided a justification for its comparative approach in those cases.
In the introduction on the CJEU (provided in Chapter 3), attention has already been drawn to the fact that references to national constitutional traditions and other international instruments play an important role in the process of establishing the meaning of fundamental rights by the CJEU. The question is how the CJEU uses this comparative method. It has been noted in this regard that the CJEU is not explicit in its use of comparative interpretation.132 It is therefore difficult to draw any con-
clusions on the use of the method on the basis of theoretical literature alone.133 It
is clear that the CJEU refers, at least, to national constitutional traditions and the Euro- pean Convention, but that still raises many questions. What are these national constitu- tional traditions? Is a consensus required? LENAERTShas argued that the CJEU is
looking for the solution which best suits the EU, but the question is whether that is also the goal of the comparative method in the context of fundamental rights.134
Does the CJEU look at all Member States or just a limited number? Do they rely on other materials as well? These are just a number of questions that cannot be fully
130 See Lenaerts (2003), p. 876-877. See also Wasensteiner (2004), p. 30. Article 19 TEU is the equivalent of former Article 220 EC.
131 Lenaerts (2003), p. 877 and Singer & Engel (2007), p. 499, make a similar point. Reference is also made to Article 340 TFEU, which concerns non-contractual liability. This provision explicitly refers to comparative interpretation.
132 Lenaerts (2003), p. 873, points to this problem. Colneric (2007), p. 316, argues that the use of the comparative method by the CJEU can be compared with the tip of an iceberg.
133 See Wasensteiner (2004), p. 41. 134 Lenaerts (2003), p. 879.
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answered at this moment, but which will be further explored in the chapter presenting the results of the case study.
An important source of external comparative interpretation at the CJEU is the European Convention. Literature suggests that references to the ECHR and its cor- responding case law play an important role in the reasoning of the CJEU. It is, however, not clear exactly how these references play a role and to what extent they are used in the reasoning of the CJEU. Are they used as inspiration or simply incor- porated in the reasoning? These aspects have not received much attention in the literature. One aspect that has received much attention is the question why the CJEU relies on the European Convention. Legal commentaries suggest that there may be more strategic underlying reasons for paying particular respect to Strasbourg.135
These reasons can mainly be found in the complex relationship between the EU, the European Convention on Human Rights and to some extent also the Member States of the EU. Until the CJEU had entered the field of fundamental rights, there was hardly any overlap of jurisdiction. This changed when the CJEU started to introduce fundamental rights in the EU. This resulted in jurisdictional overlap between the European Court of Human Rights and the CJEU, which had to be dealt with in a satisfactory manner.136Given that the ECtHR is a specialized court which already
dealt with fundamental rights adjudication at the time the CJEU started to engage in this type of adjudication, it seems quite natural that the CJEU in principle adheres to the interpretations provided by the ECtHR. This is true, even though this might be less obvious in terms of international public law since this case law is not binding for the EU.137 More important than the binding character of the ECHR is that the
ECtHR and the CJEU are considered to be both ‘engaged in a common project of European integration’.138Both courts are interested in finding common fundamental
rights norms.139 As a result it is easier for the CJEU to take account of the case
law of the ECtHR, which represents rights accepted by all Member States, than to delve into a comparison between the different Member States. A judgment by a well- respected international court grants much authority to the reasoning of the Court. Moreover, it provides a rather objective input, since not one Member State’s approach is favoured.
Another, related reason to approve the approach of the European Convention is that the EU Member States are at the same time Contracting States to the European Convention. As a result they can be held responsible for fundamental rights violations
135 See among others: Jacobs (2007), p. 209 & 211; Douglas-Scott (2006), p. 652-653. 136 Douglas-Scott (2006), p. 652.
137 Jacobs (2007), p. 208; Reich (2005), p. 214. 138 Douglas-Scott (2006), p. 653.
139 Douglas-Scott (2006), p. 653.
Comparative interpretation
which follow from the implementation of EU law or any other action of the EU.140
The CJEU would put Member States in a rather difficult situation if it were to interpret EU law in conflict with the case law of the ECHR.141 Apart from the fact that it
would be difficult, it would also be highly impractical and counterproductive if two different standards of fundamental rights protection were in force at the same time. It has also been argued that the references to the ECHR have helped the EU gain legitimacy, since it lacked a catalogue of fundamental rights of its own.142By incor-
porating references to the ECHR the EU has been able to establish itself as a ‘fully established democratic community which respects human rights’.143
Thus, from a strategic perspective (i.e. in order to gain more authority for the protection of fundamental rights at the EU level and to prevent a clash of juris- dictions), it is logical and justifiable that the CJEU has opted for respecting the ECHR. But still questions remain as to the way in which the CJEU relies on references to the European Convention and the ECtHR.
A relevant question in order to get a full understanding of the use of this method is also who undertakes a comparative study. From the literature it becomes clear that the Advocate General has an important role to play in this regard.144The question
is to what extent the CJEU relies on the study by the Advocate General. Furthermore, it is interesting to get a grasp of how the Advocate General uses the comparative method. In addition to the role of the Advocate General, reference is made in theoret- ical literature to the research and documentation unit, which undertakes comparative studies for the benefit of the CJEU judgments.145 This unit operates on a request
by the CJEU and prepares a note on the comparative study on a certain subject.146
The notes are not public documents and it is thus difficult to get an understanding of how this study is undertaken.147 This difficulty is increased by the fact that the
CJEU is rarely explicit in its references to comparative materials, as has been noted before. As a result it is impossible for an outsider to understand which materials have been used, which countries have been taken into account, etc. This lack of trans- parency does not add to the argumentative force of this method. The question is whether the case law reveals a similar picture or whether in the actual use of the
140 See cases like ECtHR (GC),Matthews v. United Kingdom, judgment of 18 February 1999,Reports
1999-I; ECtHR (GC),Senator Lines GmbH v. Austria and others, decision of 10 March 2004,Reports
2004-IV; ECtHR (GC),Bosphorus HavaYollari Turizm Ve Ticaret Anonim S´irketi v. Ireland, judgment of 30 June 2005,Reports2005-VI.
141 Jacobs (2007), p. 209. Van den Berghe (2010). 142 Douglas-Scott (2006), p. 653.
143 Douglas-Scott (2006), p. 653.
144 See Faircloth Peoples (2008). Colneric (2007), p. 316. 145 Singer & Engel (2007), p. 508-511.
146 Singer & Engel (2007), p. 508-511. 147 Singer & Engel (2007), p. 508-511.
Chapter 6
method the CJEU and its Advocates General provide insight into the comparative materials that play a role when using this method.
A final aspect of this method that should be addressed is its relation with the other method and principles under discussion in this thesis, because that helps to understand the interpretative framework of the CJEU. Not many references are made to the relation of comparative interpretation and other interpretative aids. LENAERTS has
discussed the relation between teleological interpretation and comparative interpreta- tion. He claims that the CJEU uses comparative interpretation to build a bridge between the solution that best suits the object of the EU and that is still acceptable to the Member States.148 Especially in a multilevel legal order, this is a valuable
connection between these two methods. The remarks, however, have been made in the context of the comparative interpretation by the CJEU in general and not in the specific area of fundamental rights. The question is thus whether these conclusions apply to that area as well. The case law analysis should help to answer this question. Once the case law analysis has clarified how the CJEU uses comparative interpreta- tion, there is another question that should be answered. The question is whether the coming into force of the Charter on Fundamental Rights will change the use of comparative interpretation. It will only be possible to answer this question when the present use of comparative interpretation has been discussed in more detail in the case law analysis.
6.4 CONCLUSION
This chapter aimed to provide an overview of what the method of comparative interpretation entails and which challenges are presented by this method. Two different versions of comparative interpretation have been identified, namely internal comparat- ive interpretation and external comparative interpretation. This distinction has proven to be important, because a different justification can be necessary for the different versions. In the literature many references have been made to the use of internal comparative interpretation by both European Courts. In the context of the ECtHR this version has been justified by reference to the Preamble which refers to the ‘common heritage’ of the European states. For the CJEU, Article 6 TEU provides a clear basis for an internal comparison, since express reference is made therein to constitutional traditions of the Member States. The fact that these courts rely on an internal comparison has not been subject to heavy criticism, but the way in which these courts use references to an internal comparison has been heavily criticized. Many methodological issues have been raised in the current chapter, which need to be addressed in the case law analysis.
148 Lenaerts (2003), p. 879.
Comparative interpretation
External comparative interpretation, on the other hand, is highly controversial in theoretical literature on the use of foreign sources by national courts. In discussions on the use of this version of comparative interpretation by the European Courts this method does not seem equally controversial, but it is fair to add that this version of comparative interpretation has not received as much attention as the internal version. The main question that has been posed in the debates on external comparative inter- pretation is what justification can be found to legitimize the use of foreign materials. Even though the use of external materials is not as controversial in the European debate as it is, for example, in the American debate, it is useful to learn from this debate and enhance the legitimacy of arguments based on external comparative interpretation.
Dialogical interpretation has been suggested as a relevant option for both European Courts to enhance the legitimacy of comparative interpretation. The fact that references to foreign materials can be helpful is not enough to justify the use of these materials; therefore a different justification is needed. Dialogical interpretation is based on the idea that looking at foreign systems helps a judge to learn about the values underlying his or her own system. Looking at foreign systems thus eventually leads to arguments based on one’s own system to choose one interpretation or the other and this choice is then not based on arguments coming from a foreign system. As a result dialogical interpretation can be helpful in justifying the use of foreign (external) materials, but it can also explain why a certain trend among the Member States of either the EU or the Council of Europe will be followed, while other trends will be ignored. In both cases the reasons for doing that will come from the system itself. The question whether this is actually a relevant solution can only be answered after a thorough analysis of the present situation. Only then will it be possible to see if dialogical interpretation would fit the interpretative framework of these courts or whether a different answer would be more suitable.
CHAPTER
7
PRINCIPLE OF EVOLUTIVE INTERPRETATION
In Chapter 4 the guiding principles in the interpretative framework of both European Courts have been identified. Evolutive interpretation is one of these principles, which derive from a meta-teleological perspective on the treaty in question. The aim of this chapter will be to shed some light on the principle of evolutive interpretation. What does evolutive interpretation mean? How and when can an evolutive interpretation be established? Why do judges sometimes resort to evolutive interpretation? Can any conclusions be drawn on the nature of this interpretative aid? What is the relation of this principle with other interpretative principles and methods discussed in this thesis? Answers to these questions will provide a better understanding of this inter- pretative principle. The present chapter will take a theoretical perspective on these questions and Chapters 11 and 13 will address these and other questions on the basis of a case law analysis.
In order to be able to understand the theoretical discussion of the principle, it is necessary to provide a preliminary understanding of evolutive interpretation. The problem with evolutive interpretation is that most people can imagine what it might mean, but no one seems to have a clear understanding of what it actually entails. This chapter therefore aims to clarify the meaning and implications of the principle. It will start from the presumption that evolutive interpretation refers to the fact that judges might interpret a treaty in light of (legal) circumstances ‘prevailing at the time of interpretation’.1 This presumption will be developed more fully throughout this
chapter, but as a common starting point it may help to place the discussion in context. Another aspect that should be addressed at the beginning of this chapter is the nature of evolutive interpretation. According to the division made between interpreta- tion methods and principles in Chapter 4, evolutive interpretation should be considered as an interpretative principle. After all, as has been explained in section 4.4.1.1, evolutive interpretation refers to the general objective that the text in question is not interpreted in a static, but in a dynamic manner. The understanding of a text can thus change over time, according to evolutive interpretation. This changed understanding
1 This is part of a description provided by the ICJ inLegal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),Advisory Opinion, I.C.J. Reports 1971, p. 16, § 53.
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can be the result of, for example, technical changes, moral changes or cultural changes. Thus, evolutive interpretation as such does not provide a substantive argument on which a choice for a specific interpretation can be based.2 It refers to a goal that
should be reached, rather than providing a technique that can be used to establish