“Though - PowerPoint Presentation

Slide1

“Though it be European Law, Yet There is Method”Some Methodological Challenges of European Union Law

Prof. Dr. Sebastian Martens, M.Jur. (

Oxon

.)

sebastian.martens@uni-passau.deSlide2

Lecture structure:European Legal

Method

–

some

preliminary

thoughts

The

concept

of

„legal

method

“

The

reason

of

a

reasoning

Valid

arguments

Functions

of

the

reasoning

Challenges

for

a

method

of

European Union Law

The

diversity

of

expectations

The

unclear

normativity

of

the

legal

sources

The

ever

growing

number

of

legal

sources

Unresolved

hierarchical

problems

The

vagenuess

of

the

texts

One

meaning

and

24

language

versions

Politics

and

open

compromises

ConclusionSlide3

European Legal Method – some preliminary

thoughts

1. The

concept

of

„legal

method

“

Ἡ

μέθοδος

:

μετά

(

with

,

to

;

indicating

direction

),

ὁδός

(

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

decisionSlide4

European Legal Method – some preliminary

thoughts

1. The

concept

of

„legal

method

“

Ἡ

μέθοδος

:

μετά

(

with

,

to

;

indicating

direction

),

ὁδός

(

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

adresseesSlide5

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

)Slide6

3. Valid argumentsDistinguish:

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

sourcesSlide7

4. Functions of the

reasoning

:

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

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

relianceSlide8

II. Challenges for a method

of

European Union Law

The

diversity

of

expectations

Many

different

addressees

The

parties

The

European

i

nstitutions

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

?

i

n

dubio

pro

argumentationeSlide9

2. The unclear normativity of

the

legal

sources

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

creationSlide10

Legal Sources of European Union law

Primary Law

The

treaties

Charter

of

fundamental

rights

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

International

law

International

law

binding

on EU

only

insofar

as

fundamental

principles

are

respected

(

freedom

,

democracy

, human

rights

, Kadi-

decision

)Slide11

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

under-stood

to

authorise

any derogation from the principles of liberty, democracy and respect for human rights and fundamental

free-

doms

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. Slide12

Secondary lawArt. 288

para

. 1 TFEU

:

regulations

,

directives

and

decisions

No

special

normativity

of

legislative

acts

within

the

meaning

of

Art. 289

para

. 3 TFEU

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

Soft

law

Unclear

concept

: Something

between

„

hard

law

“

and

no

law

Unclear

normativitySlide13

Soft law (continued)

Vague

normative

force

as

a

reason

for

increasing

use

a

threat

for

the

legal

order

Customary

law

Theoretically

possible

, but

of

little

practical

relevance

Academic

writings

The

status

of

privately

drafted

„

principles

“

The

value

of

a

leading

opinion

(„

hM

“)

The

need

for

a

European legal

community

Natural

law

(

Currently

)

no

direct

recourse

possibleSlide14

Unresolved hierarchical problems

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

utileSlide15

Hierarchical problems among

Europe‘s

many

courts

The

ECJ

and

national

constitutional

courts

The

ECJ

and

the

ECtHR

Bosphorus-decision

(30.6.2005 – 45036/98)Slide16

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 Convention’s 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.

[…]Slide17

Hierarchical problems among

Europe‘s

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

ECHRSlide18

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.Slide19

Hierarchical problems among

Europe‘s

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

t

o

sovereignty

Interlocking

legal

orders

and

a

necessary

modus

vivendi

of

their

courts

„Solange“ (

as

long

)-

deference

:

residuary

control

and

the

protection

of

a

minimal

standardSlide20

3. The vagenuess of the

texts

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

argumentsSlide21

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

Rogaška

)Slide22

3. The vagenuess of the

texts

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

)

divergencesSlide23

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

sourcesSlide24

ConclusionValue 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

“?Slide25

Thank you very much

for

your

attention

!