INTERPRETATIVE PRINCIPLES
4.3 M ETHODS OF INTERPRETATION
4.3.5 Comparative method of interpretation
The comparative method of interpretation has been developed by supranational courts like the CJEU and ECtHR and does not follow from the Vienna Convention.135
Comparative interpretation means interpretation where the judge in question uses
131 Brown & Kennedy, (2000), p. 332.
132 Arnull (2006), p. 614 referring to a report of a Conference in 1976.
133 Brown & Kennedy (2000) p. 333; Llorens (1999), p. 379; Schermers & Waelbroeck, (2001), p. 16; Lasok, & Millet, (2004), § 671.
134 Arnull (2006), p. 615.
135 One could argue that one version of comparative interpretation does flow from the Vienna Convention, but that argument will be explored in the context of Chapter 6.
Interpretation methods and interpretative principles
foreign or international materials in order to find the meaning of a specific pro- vision.136Under this method reference can be made to the laws of Member States,
as well as laws of third countries, or treaties that are outside the framework of the treaty in question. There is no common understanding of which materials can and cannot be relied on in the context of comparative interpretation.137Also the purposes
of relying on these materials may differ. Foreign materials can be used to support a certain interpretation, but they can also be decisive in establishing a certain inter- pretation, the choice depending on the court employing this method. Both the CJEU and the ECtHR have mainly referred to the laws of the Member States in order to support a specific interpretation, so this section will focus on that type of comparative interpretation.138
Why has this method been invoked by the supranational courts under study? One possible explanation might be that relying on the laws of the Member States to argue in favour of or against a specific interpretation may help in engaging the Member States in the enterprise of fundamental rights protection in Europe. It certainly helps the supranational courts to check whether sufficient ground can be found for a specific interpretation. The supranational courts are, on the one hand, faced with a mix of Member States that differ on many levels, for example, socially and culturally. On the other hand, effective protection of fundamental rights requires a high level of protection for all individuals within the jurisdiction of the respective court. This constitutes a certain tension, since it will not always be easy to convince all Member States of the need to afford a specific type of protection. The use of comparative interpretation might prevent the CJEU and ECtHR from running ahead of the Member States and as a result risk losing its credibility.
The comparative method will be discussed in detail in Chapter 6. For that reason, only a short introduction will be provided here in order to indicate what is meant when the respective courts resort to this method.
In the context of the European Convention, the comparative method of interpretation (also referred to as the ‘consensus method’)139is one of the most important methods
in the interpretation process. The term ‘consensus’ refers to a crucial element of the method, i.e. the laws of the Contracting States will be compared in order to check whether a consensus on a certain issue can be found. If this consensus can be found, the ECtHR will adopt the interpretation in line with the consensus. If, however, no such consensus can be found, Contracting States will often be able to decide for
136 Alexy (1989), p. 239. 137 See section 6.1.1.
138 Chapter 6 will explore other versions of comparative interpretation as well. 139 For example: Heringa, (1996).
Chapter 4
themselves whether they will provide protection or not (or in some cases the ECtHR will adopt an autonomous interpretation; see for a discussion section 4.4.1.3 below). In the case ofSchalk and Kopf,for example, the ECtHR had to decide whether Article 12 of the European Convention entailed an obligation to allow for same-sex marriages.140 In order to be able to answer that question, the ECtHR took into
account the situation in the different Contracting States and concluded that no con- sensus could be found concerning the acceptation of same-sex marriages.141 This
sounds rather straightforward, but if one examines the way the ECHR has employed this method in its case law, many questions arise. What can be considered a con- sensus? Is this established on the basis of a simple majority? Are there any criteria for establishing a consensus? Could the use of the consensus approach lead to a lower degree of protection after the accession of many new Contracting States? How does the comparison itself take place? Is there a checklist that will be applied in each instance of comparing? Will all Contracting States be considered? Is the consequence of the existence or non-existence of a consensus always the same? When will national differences (not) be allowed? It is questions such as these that will be considered in more detail in Chapters 6 and 10 of this thesis.
The involvement of the comparative method in the general interpretation process before the CJEU is often less explicit in its judgments. In the context of interpretation of EU law in general it has been said that notions of EU law have an independent meaning, but that inspiration may be drawn from national interpretations.142 In the
specific context of fundamental rights the comparative method of interpretation plays a rather prominent role, because the CJEU introduced the whole concept of funda- mental rights into, at that time, Community law by labelling them general principles of Community law, derived from the constitutional traditions of Member States.143
In other words, the domestic constitutions serve as one of the sources for the concept of fundamental rights in EU law. This again raises many questions, some similar to the ones noted above for the ECtHR and some different. How does the CJEU deter- mine whether something can be considered common to the constitutional traditions of the Member States? Will a majority be sufficient to support the finding of a common principle? What is the effect of the enlargement of the EU on this consensus finding? How does the comparison take place? Who undertakes the comparison: the CJEU, Advocate General or maybe a third body? What if no common tradition can be found? What is or might be the influence of the EU Charter on this method? This
140 ECtHR,Schalk and Kopf v. Austria, judgment of 24 June 2010,unpublished. 141 ECtHR,Schalk and Kopf v. Austria, judgment of 24 June 2010,unpublished, § 58. 142 Llorens (1999), p. 380.
143 See Chapters 3 and 13.
Interpretation methods and interpretative principles
is just a short and by no means exhaustive insight into the kind of questions that come up and that will be discussed in Chapters 6 and 13.