“Though it be European Law, Yet
There is Method”
Some Methodological Challenges of
European Union Law
Prof. Dr. Sebastian Martens, M.Jur. (Oxon.)
sebastian.martens@uni-passau.de
Lecture structure:
I. European Legal Method – some preliminary thoughts
1.
2.
3.
4.
The concept of „legal method“
The reason of a reasoning
Valid arguments
Functions of the reasoning
II. Challenges for a method of European Union Law
1. The diversity of expectations
2. The unclear normativity of the legal sources
a. The ever growing number of legal sources
b. Unresolved hierarchical problems
3. The vagenuess of the texts
a. One meaning and 24 language versions
b. Politics and open compromises
III.Conclusion
I. European Legal Method – some preliminary thoughts
1. The concept of „legal method“
• Ἡ μέθοδος: μετά (with, to; indicating direction), ὁδός
(path, way)
• Method as a systematic procedure to achieve a
certain goal
• What is the goal of a lawyer?
• Many different goals – many different legal methods
• Paradigmatic legal job: the judge
• Methods for a judge:
– a method to come to the right decision
– a method to produce the right decision
I. European Legal Method – some preliminary thoughts
1. The concept of „legal method“
• Ἡ μέθοδος: μετά (with, to; indicating direction), ὁδός
(path, way)
• Method as a systematic procedure to achieve a
certain goal
• What is the goal of a lawyer?
• Many different goals – many different legal methods
• Paradigmatic legal job: the judge
• Methods for a judge:
– a method to come to the right decision
– a method to produce the right decision
• The right decision: the decision that will or has to be
accepted by its adressees
2. The reason of a reasoning
• Reasons for accepting a judgment:
– The authority of god or some higher person
backing the judgment
– The authority of the court itself
– The reasons given for the judgment
pragmatic „truth“ or correctness: a proposition is true
or correct if there are no reasonable doubts about it
• The reasoning has to show that there are no
reasonable doubts as to the judgement
• Potentially reasonable doubts to be addressed:
– All arguments brought forward in the process
– All arguments generally used in the discourse
(esp.: the „herrschende Meinung“, leading opinion)
3. Valid arguments
• Distinguish:
• Legal arguments: backed by legal sources
• Extra-legal arguments: backed by other
authorities
• Only legal arguments are valid within a legal system
• Courts as institutions of a legal system may only use
legal arguments
• Extra-legal arguments have to be translated into
legal arguments
• Courts have to show why their arguments are (not)
legally relevant, ie. that the arguments can/cannot
be backed by legal sources
4. Functions of the reasoning:
1. Within the judicial system
• For the deciding judge: needs to reflect on the
judgment and its correctness
• For superior courts: can check the judgment
• For inferior courts: can understand the judgment
and apply its ratio decidendi
2. Outside the judicial system
• With respect to the specific process itself
– For the parties: are respected as subjects
– For the general public: can controll the courts
• Independent of the specific process: reasoning
serves transparency and enhances reliance
II. Challenges for a method of European Union Law
1. The diversity of expectations
• Many different addressees
– The parties
– The European institutions
– The member states
– The national courts
– The general public
• Different national styles of judgments generate
different expectations
• A single style to meet all expectations?
• The ECJ as creator of a common European legal
method?
• in dubio pro argumentatione
2. The unclear normativity of the legal sources
a. The ever growing number of legal sources
• Statute as paradigm of a legal source in the Civil law
• Normativity traditionally binary
• Common law allows for a third option: persuasive
authority
• Traditional concept insufficient to explain the
normativity of European legal sources
New definition:
A legal source is a normative sentence whose
normativity qua positiveness („Satzung“) can be
justified as being legal within a legal system
• Normativity qua positiveness means normativity
independent of content just qua creation
Legal Sources of European Union law
1. Primary Law
• The treaties
• Charter of fundamental rights
2. General Principles
• Distinguish:
– GP derived from national law of member states
– GP derived from primary and secondary Union law
– GP derived from international law
• Normativity dependent on basis
3. International law
• International law binding on EU only insofar as
fundamental principles are respected (freedom,
democracy, human rights, Kadi-decision)
299. [I]t is not a consequence of the principles governing the
international legal order under the United Nations that any
judicial review of the internal lawfulness […] is excluded by virtue
of the fact that that measure is intended to give effect to a
resolution of the Security Council […].
300. What is more, such immunity from jurisdiction for a
Community measure […] cannot find a basis in the EC Treaty.
303. [Artt. 297, 307 EC {Artt. 347, 351 TFEU}] cannot […] be understood to authorise any derogation from the principles of liberty,
democracy and respect for human rights and fundamental freedoms enshrined in Article 6(1) EU as a foundation of the Union.
304. Article 307 EC may in no circumstances permit any challenge
to the principles that form part of the very foundations of the
Community legal order, one of which is the protection of
fundamental rights, including the review by the Community
judicature of the lawfulness of Community measures as regards
their consistency with those fundamental rights.
4. Secondary law
• Art. 288 para. 1 TFEU: regulations, directives and
decisions
• No special normativity of legislative acts within
the meaning of Art. 289 para. 3 TFEU
5. Case-law
• Generally „factually-binding effect“ admitted
• ECJ reluctant to (openly) overrule its precedents
• Stability of case-law promotes legal values
• Open balancing of conflicting values important
6. Soft law
• Unclear concept: Something between „hard law“
and no law
• Unclear normativity
6. Soft law (continued)
• Vague normative force as
– a reason for increasing use
– a threat for the legal order
7. Customary law
• Theoretically possible, but of little practical
relevance
8. Academic writings
• The status of privately drafted „principles“
• The value of a leading opinion („hM“)
• The need for a European legal community
9. Natural law
• (Currently) no direct recourse possible
b. Unresolved hierarchical problems
i. Hierarchical problems within
European Union Law
• Hierarchies within primary law?
• Fundamental freedoms and human rights
• General principles and secondary law
– The Mangold-case
– Changing the effect of directives by inventing
general principles?
• The normativity of aims and rules
• The judiciability of aims
• Promoting the European Union and effet utile
ii. Hierarchical problems among Europe‘s many courts
• The ECJ and national constitutional courts
• The ECJ and the ECtHR
– Bosphorus-decision (30.6.2005 – 45036/98)
156. If such equivalent protection is considered to be
provided by the organisation, the presumption will be that
a State has not departed from the requirements of the
Convention when it does no more than implement legal
obligations flowing from its membership of the
organisation. However, any such presumption can be
rebutted if, in the circumstances of a particular case, it is
considered that the protection of Convention rights was
manifestly deficient. In such cases, the interest of
international co-operation would be outweighed by the
Convention’s role as a “constitutional instrument of
European public order” in the field of human rights […]
165. In such circumstances, the Court finds that the
protection of fundamental rights by Community law can be
considered to be, and to have been at the relevant time,
“equivalent” […] to that of the Convention system. […]
ii. Hierarchical problems among Europe‘s many courts
• The ECJ and national constitutional courts
• The ECJ and the ECtHR
– Bosphorus-decision (30.6.2005 – 45036/98)
– Opinion 2/13 and the accession to the ECHR
245. The interpretation of a provision of EU law, including of
secondary law, requires, in principle, a decision of the Court
of Justice where that provision is open to more than one
plausible interpretation.
246. If the Court of Justice were not allowed to provide the
definitive interpretation of secondary law, and if the ECtHR,
in considering whether that law is consistent with the ECHR,
had itself to provide a particular interpretation from among
the plausible options, there would most certainly be a
breach of the principle that the Court of Justice has exclusive
jurisdiction over the definitive interpretation of EU law.
247. Accordingly, limiting the scope of the prior involvement
procedure, in the case of secondary law, solely to questions
of validity adversely affects the competences of the EU and
the powers of the Court of Justice in that it does not allow
the Court to provide a definitive interpretation of secondary
law in the light of the rights guaranteed by the ECHR.
ii. Hierarchical problems among Europe‘s many courts
• The ECJ and national constitutional courts
• The ECJ and the ECtHR
– Bosphorus-decision (30.6.2005 – 45036/98)
– Opinion 2/13 and the accession to the ECHR
• The necessary claims of a legal system
– to autonomy
– to sovereignty
• Interlocking legal orders and a necessary modus
vivendi of their courts
• „Solange“ (as long)-deference: residuary control
and the protection of a minimal standard
3. The vagenuess of the texts
a. One meaning and 24 language versions
• ECJ does not prefer any language version
• Same normative force of all language versions
• Divergences hardly avoidable
• Relevance of literal meaning weakoned
• Comparatively greater importance of other
arguments
25. According to the settled case-law of the Court, the meaning and
scope of terms for which EU law provides no definition must be
determined by reference to their usual meaning in everyday
language, while account is also taken of the context in which they
occur and the purposes of the rules of which they form part […].
26. Additionally, interpreting a provision of Union law involves a
comparison of the language versions […]. Where there is divergence
between the various language versions, the provision in question
must be interpreted by reference to the purpose and general
scheme of the rules of which it forms part […].
27. In this instance, neither the usual meaning of the term ‘spring’,
which may be understood to mean either the point of emergence of
the water or the point of origin of the water more generally, nor the
comparison of the various language versions […] allay the doubts
raised by the referring court […].
28. It is therefore necessary, for the purposes of the interpreta-tion
sought, to consider the context […], as well as considering the
general scheme and purpose of that directive more broadly.
ECJ, 24.6.2015 – C-207/14 (Hotel Sava Rogaška)
3. The vagenuess of the texts
a. One meaning and 24 language versions
• ECJ does not prefer any language version
• Same normative force of all language versions
• Divergences hardly avoidable
• Relevance of literal meaning weakoned
• Comparatively greater importance of other
arguments
– Context
– General scheme
– Purpose
• Increase of judicial power by (possible) divergences
b. Politics and open compromises
• Need for consensus leads to open compromises
• Intentionally vague drafting:
– Unclear rules
– Use of recitals
– Use of aims instead of rules
• Normative decision avoided by legislative organs
and delegated to ECJ
• Special role of teleological interpretation
• „effet utile“ as a necessary tool to develop
European legal sources
III. Conclusion
• Value of a judgment lies in its reasoning
• Theory of argumentation as (the) method for ECJ
• Special challenges for ECJ:
– Variety of expectations
– Unclear normativity of legal sources
– Vagueness of the texts
• Distinction between politics and law becomes
blurred in EU-Law
• Special features of EU-law force ECJ to be the
„engine of integration“
• ECJ as suitable institution to form a Europe „united
in diversity“?
Thank you very much for your
attention!