Report of P. Koskelo, President of the of

Introductory comments much less uncommon that the opinions of the Advocates General deal with aspects of national 1. For a student of the case-law of the Court of and comparative law than is the case with the Justice, there are a couple of features that are Court’s judgments themselves. most easy to observe in this context. The first of these are the Court’s declarations to the effect Given the infrequency of express citations of na- that notions of Community law are autonomous tional or comparative law in the judgments of in meaning and not to be interpreted by refer- the Court of Justice, it is only natural that the ence to the laws of Member States. Such state- most elucidating analyses of the role of compar- ments in the case-law are legion. They reflect, of ative law in the Court’s work have been produced course, a position that is far from surprising. by insiders, i.e. persons who have worked or still Uniform interpretation is a basic tenet and re- work as judges of the Court. I am, of course, quirement in a context such as the Community thinking especially of the articles published by legal system. Without autonomous interpreta- former judges such as Pescatore33, Galmot34, tion, uniformity would fall apart. Mertens de Wilmars35 and Kakouris36, and present judges such as Jann37 and Lenaerts38, who 2. Secondly, it is easy for any observer of the case- law of the Court of Justice to discern that express 33 Le recours, dans la jurisprudence de la cour de justice des communautés references to either national law or comparative européennes, à des normes déduites de la comparaison des droits des états law in the Court’s judgments are relatively rare. membres; Revue internationale de droit compare 1980 p. 337-359. 34 réflexions sur le recours au droit compare par la Cour de justice des As many authors have pointed out, however, this Communautés européennes; Revue française de droit administrative 1990 p.255-262. does not mean that national law or comparative 35 Le droit compare dans la jurisprudence de la Cour de justice des law would only play a minor role in the Court’s Communautés européennes; Journal des Tribunaux 1991 p. 37--. 36 use of the comparative method by the Court of Justice of the European work. On the contrary, there are several reasons Communities; Pace International Law Review 1994 p. 282-. 37 der Rückgriff auf die nationalen Rechte in der Tätigkeit des Europäischen why a comparative approach has to be of par- Gerichtshofes; Mélanges en hommage à Fernand Schockweiler, 1999, p.255- ticular importance in the activity of an institu- 274. 38 Le droit comparé dans le travail du juge communautaire; Revue tion such as the Court of Justice. Indeed, it is trimestrielle de droit européen 2001 p. 487-528.

24 1ère session: Évaluation générale: le point de vue des différents systèmes de droit

have given excellent accounts of the Court’s approach or the reasoning adopted in one or practices in this area. several foreign legal systems.

3. The insider accounts illustrate very well the In this respect, the European level judge and the fact that the comparative exploration of national national judge are in similar positions: just as law can serve and does serve a variety of func- foreign law or comparative law are not binding tions in the work of a court such as the ECJ. Na- sources of law for a national judge, national law tional or comparative law may be relevant to the or comparative law are not binding sources of Court of Justice in different ways, and these are law for the European judges. Recourse to a com- discernible even to outside observers of the parative approach is part of a search for argu- Court’s judgments. In part, the functions of a ments and appropriate solutions, rather than comparative approach appear similar to those part of an exploration of obligatory legal materi- prevailing in national courts, but in other re- als. Consequently, it is understandable that the spects there are special considerations involved results of comparative investigations and influ- in the work of the ECJ. ences are often imbedded in the reasoning adopted, and not necessarily accounted for by express references or clearly traceable citations. A general point to note at the outset is that for In this sense, there are clearly common features the Court of Justice, just like for national courts, in the way in which European judges and na- the use that is made of comparative law is prag- tional judges make use of comparative law. matic and instrumental rather than scientific. Even if a comparative analysis may be of interest 5. Apart from the pragmatic or instrumental for different reasons in different contexts, such uses of national and comparative law, one should an analysis nevertheless serves the same ultimate not disregard the more general and more elusive purpose, namely the search for an appropriate significance of different legal cultures in the solution to a given problem of interpretation. Court’s work.

4. As regards the drafting of judgments and the The ECJ is a melting pot of legal traditions, each mode of reasoning in them, it is not in any way member of the Court being formed by his edu- surprising that the Court, whose task is to inter- cational and professional background in a na- pret and develop Community law, is reticent tional legal system and its prevailing legal cul- about expressly invoking national law or even ture. For an outsider, it is difficult to know very comparative law as a source of guidance or in- much about how and to what extent such factors spiration. In a similar way, national courts and actually influence the Court’s work. Generally, national judges tend to be reticent about making we all know, as lawyers and judges, that our ap- explicit references to foreign law or comparative proaches to legal issues as well as our modes of law in their judgments, even if it is not unusual legal reasoning and argument do vary, and in that the reasoning has in fact been preceded by part they vary because of differences in the legal comparative research and even influenced by the cultures from which we emerge.

25 Actes du colloque pour le cinquantième anniversaire des Traités de Rome

The fact, however, that the Court of Justice tends – second, national law or comparative law can to compose its judgments largely by recourse to serve a justificatory function. This function its own previous case-law has resulted in a par- can in turn manifest itself in at least two basic ticular mode of reasoning which by now might ways that are opposite to each other: be described as “indigenous” to the ECJ. The ev- olution of a specific style of reasoning is also – a convergence or prevalence of doctrines bound to reduce the significance of differences or general principles of law recognized in in the judges’ background legal cultures. the national legal systems can serve as a justification for an interpretation in line This being said, it is nevertheless obvious that with such a doctrine or principle. certain features in the Court’s decision-making, such as the role of the Advocate General, as well – a lack of convergence or common ground as the reasoning style and the presentation of in the national legal systems may serve as judgments, have much more in common with a justification for adopting an autono- some legal and judicial cultures than with oth- mous interpretation. ers. Thus, the composition of the Court’s judg- ments is less transparent than in the North of – third, general principles of law or the state of Europe, where the customary style of reasoning the law at the national level may sometimes is nowadays less formal and more overt, and have a restraining or inhibiting effect on the where both dissenting and concurring opinions Court of Justice in its consideration of how are made public in full. far it is possible or appropriate or wise to go in the interpretation or development of Com- munity law. Different functions of a comparative approach – fourth, national and comparative law can 6. An analysis of the case-law of the Court of Jus- serve, in a more neutral manner, as an ana- tice suggests that the influence of national law lytical aid in the search for best solutions. on the interpretation of Community law can manifest itself in different ways. 7. “Building block” function. One of the most important and most obvious uses of compara- – first, there is what one might refer to as a tive law in the Court’s case-law have been in ar- “building block” function. In areas where the eas where Community law is incomplete. Be- written rules of Community law are incom- cause of the nature and origins of Community plete, the Court of Justice has had to “insert” law, such incompleteness has been a fairly fre- missing elements, and the national legal sys- quent phenomenon. At various levels and in tems have been used as a source of materials various contexts, including constitutional issues or inspiration in the composition of such such as fundamental rights and other systemic missing elements issues, there have been missing elements that the

26 1ère session: Évaluation générale: le point de vue des différents systèmes de droit

Court of Justice has had to construct and install mental rights in the interpretation of Commu- into Community law, mainly by drawing from nity law, such a failure would give rise to a con- the national legal systems of the Member States. flict of obligations at the national level, and to a (more or less serious) constitutional crisis within This “building block” function is well illustrated the Union. by the Court’s own declaration in the joined cases Brasserie du Pêcheur and Factortame, where the But there are other examples, too, of “missing el- Court expressly stated that since the Treaty con- ements” that the Court has been able to deal with tains no provisions expressly and specifically gov- by having recourse to common ground or pre- erning the issue at hand, namely the consequences vailing principles in the legal systems of the of breaches of Community law by the Member Member States. One such example is the protec- States, it is for the Court, in pursuance of the task tion of confidentiality between a lawyer and his conferred on it by Article 220 (then Article 164) of client, the principle of which was recognized as the Treaty of ensuring that in the interpretation part of Community law in the early 1980’s and application of the Treaty the law is observed, (AM&S40). Even in this context there is, of course, to rule on such a question in accordance with a close connection with fundamental rights. generally accepted methods of interpretation, in particular by reference to the fundamental princi- Doctrines prevailing in the Member States have ples of the Community legal system and, where also influenced the Court in other matters of necessary, general principles common to the legal great systemic importance, such as the determi- systems of the Member States.39 nation of conditions for the extra-contractual liability of the Community, as well as of the In the case of fundamental rights, the approach Member States in the case of breaches of Com- has been to absorb principles that are genuinely munity law. common to the legal systems and constitutional traditions of the Member States. This approach Recourse to genuinely common principles is, has been greatly facilitated by the existence of however, not the only method that has been the European Convention of Human Rights, used. There are areas where the Court has found thanks to which there does indeed exist a com- solutions through a more selective approach mon basis in this field. With Article 6(2) of the (“picorage”, in the words of a former President TEU there is of course now an explicit Treaty of the Court). It is well known that principles of clause incorporating the common principles as Community have largely been part of Community law. In the context of funda- extracted from national administrative law, no- mental rights, there is indeed a strong normative tably French and German law, where relevant element involved, because if the Court of Justice doctrines of administrative law have been well were to fail in the proper integration of funda- established.

39 c-46/93 and C-48/93, judgment 5.3.1996, ECR I-1029, para. 27. 40 c-155/79, judgment 18.5.1982, ECR p.1575.

27 Actes du colloque pour le cinquantième anniversaire des Traités de Rome

Generally speaking, it seems quite natural that benefit from his own failure to fulfil obligations. when the issue before the Court is to come up This line of reasoning was adopted in Ratti42, with the most appropriate way of dealing with a Marshal etc.43 situation of “missing elements”, it should seek guidance in a convergence of relevant principles In the Johnston case of 198644, the Court referred in the legal systems of Member States where such to the requirement of effective judicial control as convergence can be found. But where such a a general principle of law which underlies the convergence does not exist, a more selective ap- constitutional traditions common to the Mem- proach is natural and indeed necessary. A search ber States. This was done to justify the conclu- for the most appropriate solutions and argu- sion that a provision in a directive on equal ments must depend on what is on offer and, to treatment according to which Member States some extent, on the context. It is obvious that the should introduce a possibility to pursue claims importance of seeking and relying on principles by judicial means was to be interpreted in such a that are as widely based as possible depends on way as to preclude the application of domestic the constitutional importance or political sensi- legislation which in effect meant that no effec- tivity of the issues at hand, whereas in less deli- tive judicial remedy was available. cate issues the emphasis may well be put on a more selective approach, focussed on finding a Another interesting case is Leitner45, where the solution that appears best suited for the context. issue was whether the Directive on package trav- el, package holidays and package tours 8. Justificatory function. A comparative ap- (90/314EEC) was to be interpreted as conferring proach can sometimes be helpful to the Court as a right on consumers to compensation for non- a justification or argument in support for a cer- material damage resulting from a breach of con- tain interpretation of Community law. tract by the tour operator. The Court noted the fact that national laws were divergent in this re- One frequently raised example is the way in gard and that the existence in some Member which the Court of Justice developed its doctrine States but not in others of an obligation to pro- on the vertical direct effect of directives. Having vide compensation for non-material damage already taken the position, in Van Duyn41, that would cause significant distortions of competi- even a directive could contain provisions of a tion, given that non-material damage is a fre- kind that an individual could invoke in his or her quent occurrence in that field. The Court then favour against the state, the Court subsequently went on to adopt an interpretation according to – following various negative reactions – elabo- which compensation for non-material loss was rated the justification for such a direct effect by included in the protection required by the Direc- invoking the principle that no-one, in this case a Member State, should be allowed to rely on and 42 c-148/78. judgment 5.4.1979, ECR p 1629. 43 c-152/84, judgment 26.2.1986, ECR p. 723. 44 Johnston vs Chief Constable of the Royal Ulster Constabulary, C-222/84, Judgment 15.5.1986, ECR p. 1651, paragraphs 18-21. 41 c-41/74, judgment 4.12.1974, ECR p. 1337. 45 c-168/00, judgment 12.3.2002, ECR p. I-2631.

28 1ère session: Évaluation générale: le point de vue des différents systèmes de droit

tive. Thus, having noted the divergence of na- limits of the protection of lawyers’ professional tional laws, the Court chose to harmonize the secrecy, in particular whether such protection situation by opting for an interpretation that was merits extension beyond the strict framework of more consumer friendly. This was in line with the needs of representation and defence and how the purpose of the Directive but also with the far it should be extended. In that regard, accord- more progressive tendency detected by compar- ing to the Advocate General, the situation pre- ative means. The Advocate General in his con- vailing in the legislation of the various Member clusions had expressly discussed this point. States is contradictory. Having stated this, the Advocate General then proceeds to propose an On the other hand, there are examples of situa- autonomous interpretation of the scope of the tions where a lack of convergence at the level of privilege. national laws may prompt the Court to adopt an autonomous position. In other words, a diver- 9. The state of national law in the Member States gence of positions in the laws of the Member is not only a source of elements for the construc- States may lead the Court to conclude that na- tion of Community law principles. Sometimes tional laws are not helpful or useful as a point of (not very often it seems) national law may play, reference. For example, when faced with the and has indeed played, a restraining or inhibit- question of how to interpret the notion of “same ing role in the shaping of Community law acts” in the context of the provisions of the through case-law. Schengen acquis that regulate the cross-border aspects of the principle of ne bis in idem, the For instance, the Court of Justice - while having Court in Van Esbroeck46 held that because there gone a long way in order to develop doctrines is no harmonization of criminal laws, a criterion aimed at ensuring the effective application and based on the legal classification of the acts or on enforcement of Community law at the national the protected legal interest was not a suitable ap- level - has nevertheless accepted a number of con- proach in determining what constitutes the straints that result from national regimes of pro- “same act” for the purposes of the Schengen cedural law. For instance, the Court has (wisely) rules regarding ne bis in idem. refrained from disrupting the principle of res ju- dicata by accepting that the effort to ensure the Having mentioned earlier how the Court made effectiveness of Community law should not be reference to common ground in the national stretched so far as to require Member States to laws of Member States regarding the recognition reopen and re-examine final decisions that may of the attorney - client legal privilege, there is an- involve incorrect application of Community law other case, currently pending, where the scope other than in situations where such a remedy is and limits of that privilege are at issue47. In this available on the grounds of incorrect application case, the Advocate General has examined the of domestic law as well (Kühne & Heitz48, Kapfer-

46 c-436/04, judgment 9.3.2006, not yet reported in the ECR. 47 c-305/05 Ordre des barreaux francophone et germanophone and others. 48 c-453/00, ECR p. I-837;

29 Actes du colloque pour le cinquantième anniversaire des Traités de Rome

er49). Similarly, the Court has accepted that arbi- The Court of Justice has had to consider how to tral awards should remain subject to annulment interpret the Community rules dealing with the on very limited grounds only, even if this entails likelihood of confusion between signs, and in that the possibilities of ensuring proper applica- particular the relationship between the criteria tion of Community law in the framework of arbi- “likelihood of confusion” and “likelihood of as- tration proceedings are impaired. Furthermore, sociation”. In this context, the Court has first the Court has accepted the fact that the duty of looked at the different doctrines prevailing in national courts to take into account points of the case-law of the Member States and then Community law may depend on the procedural drawn its own conclusions as to which interpre- regime that exists under national law, even though tation is best suited for the purposes of Com- differences prevailing in this respect are bound to munity law in this matter (Sabel52). result in a lack of uniformity as regards the condi- tions for the application of Community law at the 11. Finally, one can come across judgments national level (Van Schijndel50). The position and where a common principle of law is not men- rights of same sex couples is another example of tioned by the Court of Justice although such a an issue where one can see that the state of things principle would have been available and might at the level of national legal systems has had an have seemed worth a reference. For instance, in inhibiting effect on the Court in its interpretation the case of Staubitz-Schreiber53, the Court inter- of Community law (Grant51). preted Article 3 of the Regulation on Insolvency Proceedings (EC No 1346/2000) in line with the In other words, the Court will obviously have principle of perpetuation fori. The Court, how- concerns about the acceptability of positions ever, has avoided referring to this principle in the adopted in its case-law, and in this sense nation- judgment and has based itself solely on other ar- al laws may act as a curb on how far the Court guments, notably that a transfer of jurisdiction will go in shaping things through its own case- from the court originally seized to a Court of an- law. Again, the constitutional, systemic or politi- other Member State to which the debtor had cal sensitivity of the subject-matter at hand will moved could be contrary to the objectives pur- be a significant factor in this regard. sued by the Regulation (forum shopping).

10. On the use of comparative law as an ana- Concluding remark lytical aid in the choice of interpretation, one example can perhaps be taken from the area of 12. Although the main interpretive impact goes trade mark law, a field where national laws and in one direction, with Community law imposing doctrines have longer roots than the Commu- itself on the application and interpretation of nity directive and regulation on trade marks. national law, there are various influences in the

49 c-234/04, judgment 16.3.2006. 52 c-251/95, judgment 11.11..1997, ECR p. I-6191 50 c-430/93, 431/93, judgment 14.12.1995, ECR p. I-4705. 53 c-1/04, judgment 17.1.2006 (Grand Chamber), not yet reported in the 51 c-249/96, judgment 17.2.1998, ECR p. I-621. ECR.

30 1ère session: Évaluation générale: le point de vue des différents systèmes de droit

other direction as well. I have tried to identify at the level of national laws. The need for coher- some of them. The interaction between Com- ence may, sooner or later, make it hard to isolate munity law and national law is a complex phe- the effects of a given interpretive solution in its nomenon. For instance, while an interpretation original context. Such wider repercussions may of a given norm of Community law may arise be difficult to foresee, and they may be both dif- and be of direct significance in a fairly specific ficult to cope with and difficult to resist. As EU and narrow context, it may also have, or come to law advances into more well-established and have, repercussions in other situations or other sensitive areas of law, this interaction is likely to areas - at the level of Community law as well as be a growing challenge for us all.

31