Koen Lennaerts


lecture by the President of the European Court of Justice. 2013

summer academy of European University Institute.

treaty in beginning – artcile 19 – has been there since 1950s. the law transcends the treaties. it is in the interpretation and application of treaties the law must be observed.

how does court handle mission statement?

ECJ is accused of hyper activity  – going beyond written law and arrogating to itself a political role

a court is a judicial institution working for legal construction which is common to all courts national or international

court has to fill in blanks which are not filled in by text of law to be interpreted

people say the court has assumed a political role they mean the decisions have an impact on the political process. that is sure

it has an economic impact. it works in accordance with methods of legal construction

court has a moral and cultural influence

uncertainties are to scope of treaties

court proceeds and acts

the court is sometiems said to do to little.

court is called minimalist sometimes

dec 2012 Common Market Law Review – it says the court does not decide more than one case at a time. it decides less than half a case at a time

means of interpretation

three parts

1. classical methods of interpretation. textual interpretation. contextual interpretation. teleological interpretation

2. court must fulfill its role in broader environement

it is part of public intl law. it is a legal person in intl law and subject thereto

that influences interpretation. it is part of upholding the law

3. court of justice is seen in relation to national constitutions

charter of fundamental rights is vital for interpretation and construction. important for federal balance/


textual interpretation is well known. blatant. take usual meaning of words. judge is not a leglislator.

judge is a mouthpiece of the law.

”Le juge come la bouche de la loi” – Genie

”Interpretatio sessat  in claris”

”vochlaut” – German.

textual interpretation seems abstract . reality is that it is now always easy.

silfit case – 31 years ago. oct 1982. ECJ clarified circumstances in which a supreme court of a member state can be relieved of obligation to refer for a preliminary ruling

supreme court can be relieved when answer is an acte claire

acte claire is not so blatant -. the text exists in many languages. Now 24.

value added tax case. ECJ interprets immovable property. some transactions relating to immovable property are exempt from VAT. immovable property means land and buildings.

In Roman law goods which are physically movable can be linked to the buildings such as a factory or an office. sole destination of these goods is to be used in a building. This concept is unknown to common law.

situations where although text is clear the context is hazy

do not look at specific provision without putting it in the normative context.

legal certainty.

general principles of law

think of criminal law and other sanctions

nulla crimen nulla poena sine lege

predictability is important. so is legal certainty.

textualism is the starting point of each interpretation.

ECJ looks at multilingualism and equality of all tongues

scoma lux – multilingual case

act of EU institutions only takes affect when published in the official language of that member state.

constitutional principle

textual interpretation is always subject to multilingualism

sometimes the text looked at with zoom lens on one sentence seems rather evident even when comparing language versions’

text should always be looked at in context?


If you take a wording that seems unambiguous put place it in a broader reading it may have a content where you are almost certain then you see something slightly nuanced was meant

context is germane when wording leads a marginal of appreciation

context is 2 different aspects

look at where this shall occur

article must be looked at in the whole. A sentence can be influenced by the rest

court starts from premise that because of trias politica concerns. i e separation of powers.

legislator is assumed to be rational.

legislator is to see to it that each provision adds value

text seems to suggest it.

article should never be repeated in another instrument

this might have as a consequence that you interpret it that deviates from what you would have done if you had read the sentence in isolation

travaux preparatoire

examples –


el gafaji. 2009

Iraqi. was in the Netherlands. Dutch Raad van State – wanted preliminary ruling. wanted ECJ guidance on subsidiary protection on article 15 C of qualificaiton directive 2004

El Gafaji was not a refugee as such under Geneva Convention. He worked in Iraq for British forces. His uncle was murdered. a notice stating ”death to collaborators” was fixed to his door. They did not claim to be refugees under Geneva Convention 1951.

They were granted subsidiary protection. They could not claim personal persecution.

subsidiary protection is drafted under directive in 3 cases

– serious harm which threatens to accrue to the person if sent back. may consist of death penalty. or torture or inhuman/ degrading treatment. serious violence to individual person in situation of indiscriminate violence.

seems to be a contradiction – individual threat. then INDISCRIMINATE violence.

tension between the two notions.

el Gafaji fled Iraq. Risk of serious harm if they underwent refoulement.

Dutch Minister of Immigration said they failed to demonstrate serious and INDIVIDUAL threat to their lives. Degree of individualisation needed under Geneva Convention was the same as needed under Qualification Directive

Minister by saying know is attune to public opinion

the person went to court. Judge upheld his rights.

the ECJ said the text was insufficient as it contradicted itself

article 15 A. death penalty corresponds to a protocol added to the E Convention HR – prohibition thereof.

inhumane or degrading death penalty corresponds to article 3 of E Convention HR

C in this directive did not correspond to anything in the E Convention HR

the legislator is a rational actor. he has made a democratic choice. he intends to be more protective than E Convention HR

cOURT said the individual threat can be much lower as a threshold than in A or B

Punishment and degrading treatment or capital punishment are individual













About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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