Report of P. Koskelo, President of the Supreme Court of Finland

Report of P. Koskelo, President of the Supreme Court of Finland 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. 2 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 judgments 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.

Load more