“Though it be European Law, Yet There is Method” Some Methodological Challenges of European Union Law Prof. Dr. Sebastian Martens, M.Jur. (Oxon.) [email protected]

Though it be European Law, Yet There is Method Some Methodological Challenges of European Union Law Prof. Dr. Sebastian Martens, M.Jur. (Oxon.) [email protected]

Lecture structure: I.European Legal Method some preliminary thoughts 1.The concept of legal method 2.The reason of a reasoning 3.Valid arguments 4.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 : (with, to; indicating direction), (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 : (with, to; indicating direction), (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 Europes 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 Conventions 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 Europes 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 Europes 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 Rogaka)

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!

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“Though it be European Law, Yet There is Method” Some Methodological Challenges of European Union Law Prof. Dr. Sebastian Martens, M.Jur. (Oxon.) [email protected]