Interpretation of EU Law Interpretation of EU Law primary law, such as the creation of a common market. Considering the spirit and purpose of a Hannes Rösler 1. Subject and purpose provision as well as the comprehensive pro- gramme of the European Community can be Neither primary nor secondary EU law contains problematic when different purposes (eg free interpretation rules similar to those in Arts 7–9 market and protection interests) conflict. This CISG, Arts 5:101–5:107 PECL, Arts 4.1–4.8 applies to those directives that serve the overall UNIDROIT PICC and Arts 31–33 VCLT (→ inter- interest of achieving the internal market but also pretation of international uniform law). Instead, address issues such as employee or consumer the → European Court of Justice (ECJ) was protection. created as an independent and supranational On the whole, the judgments often reflect effet court with exclusive jurisdiction over the inter- utile. The practical effectiveness of EU law fre- pretation of European Community and Union quently seems to be the main objective of the law (Art 220 EC, now largely replaced by Art 19 court in its interpretation and development of TEU). This non-political body promotes unity, law (→ principle of effectiveness). This approach continuity and acceptance of EU law. The ECJ can be witnessed in the extending of employ- with its power to provide authoritative inter- ment protection to part-time workers by classi- pretation became a ‘motor of integration’ en- fying them as employees (ECJ Case 53/81 – Levin suring and extending the primacy of EU law. [1982] ECR 1035, para 15). The ECJ mainly uses the grammatical, sys- There is very little reference to → comparative tematic and purposive methods of interpretation. law in the ECJ’s judgments. References to the le- Von Savigny’s fourth method, the historical-po- gal systems of Member States can more often be litical approach, is rarely employed. The reasons found in the opinions of the Advocate General. for this are the often complex and incompletely The lack of references to comparative law in the published legislative history as well as the fact ECJ’s judgments may appear somewhat surpris- that European legislation often represents the ing given that directives are often based on com- result of compromises. However, the EU legisla- parative law. It also seems natural to assume that ture does list recitals which the ECJ employs in its a panel consisting of judges from different legal purpose-oriented interpretation. On the other systems would employ this tool. However, com- hand the ECJ refuses to consider the minutes of parative considerations are not explicitly incor- the Commission, the Council or Parliament that porated in the judgments to prevent the EU’s are not reflected in the legislation (ECJ Case C- autonomous legal texts from being undermined 404/06 – Quelle [2008] ECR I-2685, para 32). by references to particular legal systems. First and foremost, the ECJ uses the literal Nonetheless, comparative law has a role to method. In particular, it uses coordinate versions play in filling gaps and developing general prin- of texts in the different official languages. This ciples. For example, the ECJ explained state li- shows the influence of the French Conseil d’Etat ability with reference to general legal principles, which also explains the concise and deductive existing in international law and found in all the style of reasoning employed by the ECJ. This ap- Member States (ECJ Joined Cases C-46/93 and C- proach limits the Court’s ability to make a con- 48/93 – Brasserie du pêcheur [1996] ECR I-1029, tribution to legal theory and to the systematic paras 29 ff). Furthermore, Art 11(3) TEU/6(2) EU development of European private law. The apo- invites comparative references in providing that dictic and self-referential nature of the judg- the common constitutional traditions of the ments to some extent follows from the nature of Member States are a source of fundamental the Court as an international panel of judges that rights (see also Art 340(2) TFEU). has to reconcile different legal cultures and lan- A distinctive feature of EU law is the fact that it guages. It follows from this that an approach fo- is perceived of as an autonomous body of law. cused on the interpretation of the grammatical This is similar to the other Conventions over context and the analysis of common parlance which the ECJ also has jurisdiction. In order for within (autonomous) EU law must necessarily be the rules and concepts of European law to be im- limited. plemented consistently, their application has to This is why, crucially, the ECJ often employs be independent of national preconceptions. The purposive considerations, an approach not only Member States also have an obligation to uphold used for resolving disputes caused by diverging the autonomy of EU law. However, in the main it versions of texts. This method is also suggested is the ECJ that creates interpretational guidelines by the functional perspective chosen by the EU, having legally binding force (→ precedent, rule trying to achieve the goals determined in the of). For this the ECJ depends on the willingness Hannes Rösler 979 Interpretation of EU Law and case-based obligation on Member State can have a ‘vertical’ direct effect for the state. courts to refer cases according to Art 267 TFEU/ However, a direct ‘horizontal’ effect, ie between 234 EC. private parties, does not exist (ECJ Joined Cases C-397/01 to C-403/01 – Pfeiffer [2004] ECR 2. Interpretation of primary law I-8835, para 108). This rule is based on the sys- Regarding law with constitutional status, the ECJ tematic reasoning that a horizontal effect of di- is willing to practice judicial activism. Judges are rectives would override the distinction between no longer la bouche de la loi as demanded by directives and regulations set out in the EC Montesquieu, but exceed the possible literal Treaty and now in the TFEU (ECJ Case C-91/92 – meaning and thus cross the line to the further Faccini Dori [1994] ECR I-3325, para 24). development of law (→ judge-made law). No- where—not in the interpretation of EU law nor in 3. Rules of interpretation for national courts other legal systems—is this line drawn clearly. These legal developments on the constitutional However, a distinction should be drawn between level affect European private law. Besides the interpretation and innovation since the judicial relevance of the state liability doctrine for the law development of law demands an unintended of torts, this is also true for the obligation of na- regulatory gap and thus a higher effort of rea- tional courts to interpret national law in accor- soning. According to Art 220(1) EC, which is now dance with European law. Acting as a kind of mainly replaced by Art 19(1)(I) TEU, the role of meta-rule, this influences and controls the four the judges of the ECJ is to develop EU law. This is above-mentioned methods of interpretation and justified on the basis that the Court has to ‘en- does so in a way that is similar to the interpreta- sure that in interpretation and application of this tion in conformity with the constitution (verfas- Treaty the law is observed’ and the fact that the sungskonforme Auslegung) known to German ‘law’ transcends the rules expressly stipulated in law. Furthermore, the obligation of the Member the treaties. States to interpret law in accordance with Euro- The most important legal principles devel- pean law includes the compatibility with primary oped through this process by the ECJ to comple- law and the conformity with secondary law. In ment the written primary law are the primacy particular, the Member States’ courts are obliged (ECJ Case 26/62 – Van Gend & Loos [1963] ECR 3) to interpret their laws in a way that conforms to and the direct effect of EU law (ECJ Case 6/64 – the directives. This has to be done by applying Costa/E.N.E.L. [1964] ECR 1141). Also significant their own national methods of interpretation are the application of fundamental rights in the (ECJ Joined Cases C-397/01 to C-403/01 – Pfeiffer EU (ECJ Case 29/69 – Stauder/Stadt Ulm [1969] [2004] ECR I-8835, para 116). ECR 419), the specification of fundamental free- Accordingly, the national law has to be inter- doms (ECJ Case 120/78 – Cassis de Dijon [1979] preted on the basis of the wording and the pur- ECR 649), state liability (ECJ Joined Cases C-6/90 pose of the directive in question as far as feasible and C-9/90 – Francovich [1991] ECR I-5357) and under national rules (ECJ Case C-106/89 – Mar- the extent of EU citizenship (ECJ Case C-184/99 – leasing [1990] ECR I-4135, para 8; also ECJ Grzelczyk [2001] ECR I-6193). Case 14/83 – von Colson and Kamann [1984] By developing these principles the Court is ECR 1891, para 28). Such interpretation in accor- creating and specifying those elements of the dance with a directive can directly affect and, rule of law required by a fully-fledged legal sys- therefore, disadvantage private individuals. This tem. Ultimately, according to the conception of leads, in effect, to a horizontal effect which is the ECJ, European law is not part of international otherwise excluded. The more generously this law, which is characterized by a strong consid- way of interpretation is permitted, the more the eration of national sovereignty. Although con- actual scope of state liability for legislative injus- cluded by way of an international agreement, the tice is minimized (cf, however, for a mistake by E(E)C Treaty is—in contrast to more common the judiciary ECJ Case C-224/01 – Köbler [2003] international treaties—the constitutional charter ECR I-10239; ECJ Case C-173/03 – Traghetti del of an autonomous community based on the rule Mediterraneo [2006] ECR I-5177).