July 05
2020
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Les méthodes d’interprétation de la Cour de justice de l’Union européenne

Koen Lenaerts and José Antonio Gutiérrez-Fons

review by

Daniel Sarmiento

Interpretation is the key that helps the lawyer decipher what the law says. For courts, interpretation is the dictionary and grammar of the judge. For lawyers, interpretation is the tool that opens new windows of opportunity. For academics, interpretation is a fertile ground for the study of linguistics, philosophy and legal theory. If there is a common ground in which every lawyer, no matter his or her background, has something to say, that is on the subject of interpretation.

EU law is no exception in this regard, and the methods of interpretation in this field of the law are just as contentious, challenging and open to discussion as in any other area of the law. However, from the moment that EU law became a ‘new legal order’, it acquired a certain personality, a self-proclaimed autonomy that aspires to a degree of specificity in its existence and ways of operating. And that includes the rules and methods that govern its interpretation. EU law is not the result of a State authority, centralised within the confines of a sovereign Parliament and an all-pervasive pouvoir constituant.  EU law is a more sophisticated structure, created through supranational consensus and democratic decision-making, but fed through constitutional traditions and the weight of precedent in the past rulings of the Court of Justice. The Law of the Union is the product of a complex process that has resulted in one of history’s most successful political, economic and legal integration, in which law and judges, acting as the nails and pillars that bind the building together, have been crucial in this success.

It should therefore come as no surprise if two EU lawyers produce a book on the methods of interpretation of EU Law. But when those authors are the President and a legal secretary of the Court of Justice, both of them with a distinguished academic record, the publication of such a book deserves very special attention.

‘Les méthodes d’interpretation de la Cour de justice de l’Union européenne’ (Bruylant, 2020), by Koen Lenaerts and José Antonio Gutiérrez-Fons, is a book that aims to provide the reader with a useful and practical introduction to the methods of interpretation in the case law of the Court of Justice. At first sight, considering its manageable length of no more than 200 pages, it appears to be a humble contribution to the debate. But that perception will fool the reader, for the book is an exhaustive collection of the Court’s practice, indeed, but also a rich collection of thoughtful reflection and critical analysis. The Court’s methods of interpretation are inspired by the traditions of the Member States and also by international law, but after seven decades of case law it is obvious that the EU has developed its own tools, with its highs and lows, through which the authors travel and provide safe companionship to the reader.

The book also appears to be a descriptive account of how the Court makes use of the traditional methods of interpretation: literal, systematic and teleological interpretation, as well as the well-known recourse to international law and national constitutional traditions. However, the analysis is far from being a descriptive narrative and it provides a very interesting insight into the thinking of the Court and how it uses such methods, sometimes by sacrificing or prioritising others. That is not a mere account of case law and practice, but a valuable and introspective account into the decision-making process of a jurisdiction that relies heavily on its methods of interpretation.

Halfway through the book, the topic shifts quite significantly and the text focuses on the Charter of Fundamental Rights of the European Union. In fact, the book becomes at this stage a kind of brief but thorough introduction to the Court’s case law on the Charter’s horizontal provisions, which are, of course, key components in the implementation of the Charter. The book focuses so heavily on the Charter, that the reader is left at times with the feeling of having started a new book on a different topic. However, by the end of the chapter it is obvious what the authors are trying to prove: the Charter has become so relevant that it is now a key interpretative tool of the whole body of EU Law. It is impossible to make use of EU law today, or to understand the Court’s case law, without the Charter as a companion. Lenaerts and Gutiérrez-Fons have clearly understood this new reality, and they might have even contributed to it through their current positions, but the reader is well advised to follow the same approach if he or she wishes to fully grasp where EU law is heading now.

The book can be criticised for relying too heavily on the Court’s account of what the law is. The description of the case law in the use of some methods of interpretation might go too deeply into the details of individual cases. This seems unnecessary for the reader to grasp the thread of the book’s argument. The account of what the scholarship has argued about the Court’s approach is also described in detail through certain passages, in a way that could have been resolved by a briefer recourse to an informative footnote. But these faults do not stop the reader from following what the authors have in mind, or what the Court, in the authors’ opinion, has been trying to achieve by the use of the methods of interpretation so exhaustively scrutinised in the book.

In sum, this is a true gift for EU lawyers, whether they may be academics or practitioners. They will all have valuable material on which to reflect and to better understand the course that EU law is taking, very much attached to its traditional methods of interpretation and precedents, but also constantly looking towards the future. The European Union is permanently on the move and so is its legal order. The methods of interpretation are an important tool in keeping lawyers firmly attached to stability and rigorous methodology, but also a reminder of the importance of thinking creatively and with an eye set on whatever the future might bring.

 

Daniel Sarmiento is Professor of EU Law (Complutense University of Madrid) and Editor-in-Chief of EU Law Live

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