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
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.
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.
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
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