The use of comparative law in the present thesis

The operationalization of findings of comparative law can be undertaken through recognition of the role played by comparative law in the CJEU. When using comparative law-based input

in the broadest sense, the CJEU needs a theory of comparative law and of how it can validly feature in its legal argumentations.

Comparative law is used pervasively in the adjudication process of the CJEU, albeit not always in an explicit fashion. Judges have written about the use of comparative law at the CJEU, which we can take as authoritative testimony on the practice. Recently, Lenaert put forward an opinion similar to those of other former ECJ judges Pescatore and de Wilmars, reflecting that: “la méthode de comparaison des droits imprègne, sous une panoplie de facettes, le travail quotidien du juge communautaire dans ses moindres recoins”.198 _The

forms of influence of comparative law are various. They can be rather formalized, through AG opinions or party submissions, or they can stem from internal formal mechanisms, such as comparative law research notes commissioned by the Recherche et Documentation department for specific cases. They can even stem simply from the work of a référendaire curiously conducting research into other legal systems. At a very systemic level, each of the judges will have been trained in their own legal system and the délibéré between judges leads to confrontation between these different preconceptions. Comparisons are pervasive.

‘Comparative law’ can be made use of in the following ways:

 Comparative law as a methodology to uncover evidence of the availability of damages at the national level. It is one instrument through which to test the hypothesis that doctrinal problems, and not the indifference of aggrieved tenderers, preclude successful damages claims.

 From a functional point of view, comparative law can help us to identify different solutions to problems, i.e. the availability of damages for violations of procurement breaches.

 Comparative law has conceptual value. In this thesis, the comparative law part has enabled a better understanding of the notion of damages through the identification

198 _{K. LENAERTS, 'Le droit comparé dans le travail du juge communautaire', in François van der Mensbrugghe}

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of the ‘semantic field’ of damages claims in different national jurisdictions, which were then abstracted.

 The discursive function of comparative law. Since legal process comprises the national level, comparative law can be used as a method to “describe” and frame the legal orders in their plurality. Comparative law is a communication tool which can help to find a standardized vocabulary and an interface between ‘EU law’ understanding and the national legal orders in the plural.

 The operationalization of comparative law-based findings. How does - and can - the CJEU use comparative law in the adjudication of damages claims? Does comparative law have authoritative force as a source of law?

While the two first functions are fairly common usages of comparative law, the last three deserve some elaboration, namely the conceptual function of comparative law, its discursive function and some thoughts on how comparative law can be utilized in the Court of Justice’s adjudication.

Comparative law in this thesis is used in an instrumental manner: first of all, it is used as a tool of conceptual analysis, by means of which a set of defining issues are identified on the basis of the country studies. In the horizontal part, these issues are enriched by context, as well as by more examples and theory. Comparative law in this sense serves as the basis for an abstraction that improves our understanding of the meaning of relevant concepts. Secondly, in its communicative function, comparative law is used as an instrument to create a fiction, an interface, through which the legal orders in their plurality can be captured during the processes of EU adjudication. This can serve, for example, to assess the impact of a ruling within the national legal orders, or to assess acceptability.199

Based on the initial comparative overview, topoi or immanent concepts for damages concerning breaches of EU procurement law are identified. These issues are dimensions

199 _{P. PESCATORE, 'Le recours, dans la jurisprudence de la Cour de justice des Communautés européennes, à}

des normes déduites de la comparaison des droits des Etats membres', (1980) 32 Revue internationale de droit

comparé, 337, K. LENAERTS, 'Le droit comparé dans le travail du juge communautaire', in François van der

Mensbrugghe (ed), L'utilisation de la méthode comparative en droit européen (Presses universitaires de Namur, 2004).

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which determine and frame the ways in which damages claims are brought. In terms of conceptual analysis, the meaning of a concept is determined by how it is used. Therefore, to understand the concept of damages better, we must look at the different dimensions of use and practice in which they are placed, namely a set of concepts which stand in non- contradictory and coherent relation to each other. I attempt to create a common vocabulary for damages within the EU, which - in less intuitive terms - is best described as a constructivist endeavor:200 _{a constructivist method of conceptual analysis looks at concepts}

as embedded in a wider network of “concepts and theories”, i.e. a concept’s semantic field, the “performative aspects of concepts” and at the genesis of given concepts (as concepts are not “natural”).201 _{Solum follows a similar account, stating that “the full communicative}

content results from both the semantics and the pragmatics of the utterance”.202

Additionally the argument is made for a constructivist conception of comparative law, in which ‘EU comparative law’ is understood as the semantic field of EU law. In the EU legal context, we can perhaps see EU comparative law as a heuristic device of simplification;

comparative law is used as a communication tool. In order to understand what exactly a

specific norm elaborated at EU level does within the national orders, we need comparative law to simplify the account. The reason for this is that we generally talk about specific implications, i.e. the impact of an EU norm in a particularized national legal order, but within the EU discourse of adjudication –accepting the general nature of the law made by the ECJ – comparative law can serve as the device which enables the discourse to reach an assessment of a legal norm in the multiplicity of national legal orders.

The need for comparative law to provide a mechanism or interface between the different national legal orders and the European level is created by the largely textual nature of EU law integration. It enables us to develop a wholly European understanding of the

200 _{See the accessible account on epistemology provided in G. VASCONCELOS VILACA, Law as Ouroboros}

(European University Institute, 2012).

201 _{G. VASCONCELOS VILACA, Law as Ouroboros (European University Institute, 2012) 19-21, who follows the}

account of S. Guzzini (2005), “The Concept of Power: a Constructivist Analysis” Millennium – Journal of International Studies 33(3): 495-521.

202 _{L. B. SOLUM, Conference Paper: Communicative Content and Legal Content. (EUI Legal and Political Theory}

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elements and uses of damages claims. It also enables us to talk about damages from a European point of view, taking into account the national legal orders (plural) in the abstract.

In this sense, EU comparative law is the interface or platform by means of which EU law can debate and discuss the national jurisdictions in their plurality at the same time, rather than acting as a bridge, merely connecting a particular legal order with EU law. It is the ‘third’ lieu or locus of EU law, a fiction. Understood as referring to this method, comparative law carries out a necessary reduction and abstraction, intentionally creating a ‘simplified’ version of the national legal systems in order to boost the possibility of further EU-wide generalization. This way of carrying out the comparative method is decried by some as its gravest vice, but at the same time, the simplification mechanism is also its greatest virtue. It becomes the place for national laws to meet EU law.