CHAPTER 1 Brief Overview of Statutory Interpretation It is heuristically useful to consider what may be generally thought of as forming certain general principles of statutory interpretation so as to be able to analyse and to identify better what might constitute deficiencies in the methods of interpretation of the TFEU and the ECHR by the CJ, GC and the ECtHR, respectively. Statutory Interpretation1 may 1. ‘Statutory’: ‘Pertaining to or consisting in statutes; enacted created or appointed by statute’; Shorter Oxford Dictionary, vol. II, 3rd edn (Oxford, Clarendon, 1973), 2115; ‘Interpretation’ ‘The action of interpreting; explanation exposition; an explanation given; a way of explaining’. Shorter Oxford Dictionary, vol. I, 3rd edn (Oxford, Clarendon, 1973), 1099; ‘Translation’: ‘The action or process of turning from one language into another: also the product of this; a version in a different language’. Shorter Oxford Dictionary, vol. II, 3rd edn (Oxford, Clarendon, 1973), 2347. It is to be noted that as regards ‘translation’ in the sense of the aforementioned ‘action or process of turning one [human] language into another’ the following analysis is proposed by T Shilling, ‘Beyond Multilingualism: On Different Approaches to the Handling of Diverging Language Versions of a Community Law’ (2010) ELJ (16) 47 at 49-50 argues that the use of multiple translations violates ECHR Art. 6 (2): ‘According to Art 6 (2) of the EU Treaty.’ The Union shall respect fundamental rights guaranteed by [ECHR]. According to Art. 6 (2) of the EU Treaty as to be amended by the Lisbon Treaty the EU shall even accede to the ECHR. The human rights law as developed by the Court of Human Rights under the ECHR requires under two aspects a certain quality of a national law that interferes with a human right: such interference can only be considered as justified by a law if that law is accessible to the citizen and if its effects are foreseeable. Accessibility of a law generally requires its publication in an official journal or in the case of jurisprudence in law reports or a law review. Foreseeability of its effects requires that the law is sufficiently clear for the citizen to foresee if need be with the assistance of a lawyer its effects i.e. what he must or must not do and what he may or may not expect or required from public authorities. As rule of law requirements these aspects must apply also beyond human rights. On the face of its EU laws clearly fulfil the requirement of accessibility: they generally are published in the Official Journal and most Court decisions including nearly all important ones are published in the European Court Reports. Existing problems stem from the EU’s multilingualism concept under which it has as form 1 January 2007, 23 official languages. While Court judgments and individual administrative decisions even if published in the Official Journal in all official languages are authentic only in their respective language of procedure (Note 18 P Kik v OHIM, Case C-361/01 (2007) ECR I 10841, paras 37-38) the other versions being clearly marked as translations all 23 language versions of a legislative act are equally authentic (Note 19 for the founding treaties Art. 314 EC and Art. 53 for secondary legislation CILFIT v Ministero della Sanita (1982) ECR 3415 at para. 18: What are the 49 George Cumming for the purposes of this analysis be conveniently divided into three different ap- proaches in relation to the text of the statute: following Fitzmaurice2 the divisions or approaches to the interpretation of the text involve, firstly, the intentions of the parties; secondly, the textual or ordinary meaning of the words; and thirdly, the teleological or aims and objects method. This classification is not exhaustive but it is felt that the categorizations therein contain the primary analytic methods involved in statutory interpretation. Fitzmaurice3 observes: The ideas of these three schools are not necessarily exclusive of one another and theories of treaty interpretation can be constructed and (are indeed normally held) compounded of all three. However, each tends to confer the primacy on one particular aspect of treaty interpretation if not to the exclusion certainly to the subordination of the others. Each in any case, employs a different approach. For the ‘intentions’ school the prime indeed the only legitimate object is to ascertain and give effect to the intentions or presumed intentions of the parties: the approach is therefore to discover what these were or must be taken to have been. For the ‘meaning of the text’ school the prime object is to establish what the text means according to the ordinary or apparent signification of its terms: the approach is, therefore, through the study and analysis of the text. For the ‘aims and objects’ school it is the general purpose of the treaty itself that counts considered to some extent as having or as having come to have an existence of its own independent of the original intentions of the framers. problems? Quite generally no two texts in different languages will ever have the exactly same meaning. Beyond this truism lies the fact that even significant divergences between different language versions of a text cannot fully be avoided. In the EU context there are two possible sources of this problem which is clearly more acute regarding secondary legislation than regarding the Treaties; in adequate translation and political meddling. In adequate translation is self-explanatory and to a certain degree inevitable: translators are fallible humans. Political meddling happens in the way that members of the different branches of the legislature sometimes develop an interest in the wording of specific language versions which is motivated more politically than linguistically.’ Shilling concludes at p. 66 concerning the violation of ECHR Art. 6 (2) and the conformity of the current system of translations with the aforementioned article: ‘The consequences of the present state of the law are thus at variance with both the quality requirements a law that interferes with liberties has to fulfil under the ECHR. Under both aspects the ‘quality’ of a Community law would be enhanced considerably if that law were authentic in one language only. There is no doubt in my mind that such a state of affairs would come much closer to the goal of permitting the citizen in his own language easy access to a Community law and to foresee its effects than the present one. The ECHR is all about protecting rights that are not theoretical or illusory but practical and effective (Noted 127 ECtHR Artico v Italy, Application 6694/74 Series A no 37, paras 15-16). The equal authenticity of 23 language versions is illusory, the authenticity of only one version accompanied by 22 official translations is effective. Now that the EU has 23 official languages for rule-of-law reasons a reform of its linguistics system is past due.’ 2. GG Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpre- tation and Certain Other Treaty Points’ (1951) BYBIL (28) 1; FG Jacobs, ‘Varieties of Approach to Treaty Interpretation: With Special Reference to the Draft Convention of the Law of Treaties before the Vienna Diplomatic Conference’ (1969) ICLQ (18) 318; R Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th edn (Vancouver, Butterworths, 2002); J Bell & G Engle, Cross: Statutory Interpretation, 3rd edn (London, Butterworths, 1994), supra. 3. GG Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpre- tation and Certain Other Treaty Points’ (1951) BYBIL (28) 1; ibid., at 1-2; A Carty & RA Smith, Fitzmaurice and the World Crisis 1939-1945 (The Hague, Martinus Nijhoff, 2000); JG Merrills, Judge Sir Gerald Fitzmaurice and the Discipline of International Law (The Hague, Kluwer Law Books, 1998). 50 Chapter 1: Brief Overview of Statutory Interpretation It is appropriate at this point to consider each of these methods of interpretation in somewhat more detail: (a) Intentional Approach: according to Jacobs4 ‘[this method] attempts to eluci- date the text of the treaty or statute which on this view is merely an expression of the will of the parties by reference to the whole course of negotiations leading to the conclusion of the treaty and seeks to investigate the actual intentions of the parties at the time of the adoption of the final text.’ (b) Meaning of the Text of Textual Approach: following Jacobs5 ‘the textual approach places the principal emphasis on the actual words of the treaty. … Inevitably however an excessive literalism has to be qualified and every advocate of the textual approach readily admits certain qualifications: that extrinsic sources may be used if the text is ambiguous or if the meaning of the words leads to a conclusion which is obviously absurd or unreasonable. (c) Teleological Approach: according once again to Jacobs.6 The teleological approach seeks to interpret the treaty in the light of its objects and purposes. The first question on this approach is not about the meaning of the particular clause which is the subject of interpretation but a broader inquiry into the objects and he purposes of the treaty taken as a whole and individual provisions of the treaty are construed so as to give effect to these objects and purposes. Interestingly, Jacobs,7 not unlike Fitzmaurice, does not see a marked distinction between the three approaches such that he goes on in the same paragraph to relate the teleological approach to the previous two methods: To a certain extent this approach is simply a combination of elements of the first two approaches. In so far as it relies on the objects and purposes of the treaty as they are expressed in the text and especially in the preamble or can be gathered from a reading of the treaty as a whole the teleological approach is essentially a variant of the textual approach.