Fordham International Law Journal
Volume 20, Issue 3 1996 Article 4
Legal Interpretation at the European Court of
Justice
Nial Fennelly∗
∗
Copyright c 1996 by the authors. Fordham International Law Journal is produced by The Berkeley
Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Legal Interpretation at the European Court of
Justice
Nial Fennelly
Abstract
The object of all interpretation lies in the true intention of the lawmakers, whether they be
framers of a constitution or a treaty, legislators, or drafters of secondary legislation. Its pursuit at
The Court of Justice of the European Communities demands of the common lawyer a readiness to
set sail from the secure anchorage and protected haven of “plain words” and to explore the wider
seas of purpose and context. This Essay is an attempt to enunciate the essential elements of the
Court’s approach to legal interpretation, by the only Irish Advocate General to be appointed to that
Court to date and to draw attention to some of its most notable practical applications.
LEGAL INTERPRETATION AT THE
EUROPEAN COURT OF JUSTICE
Nial Fennelly*
INTRODUCTION
"Schematic and teleological"' are in the view of Lord Denning,
former Master of the Rolls, "strange words."2 They describe
the method of interpretation of legal texts employed by
the Court of Justice of the European Communities ("Court"),'
which sits in Luxembourg where the common and civil law traditions
meet. The Common Law, of course, prevails in only two of
the fifteen Member States, the United Kingdom and Ireland.
The adjustment of the common lawyer to new modes of interpretation
and legal reasoning is commonplace and is not perhaps
as difficult as Lord Denning's "strange words" might sug*
Advocate General, Court ofJustice of the European Communities. I am deeply
indebted to Kieran St. Clair Bradley, Anthony Whelan, and Noel Travers, my reffrendaires,
legal secretaries, at the Court, for many helpful suggestions and for helping my
understanding of Community law. I retain responsibility for all errors.
1. The word teleological finds its origin in the Greek word, 'rXos, "end". The
meaning is "relating to ends or final causes; dealing with design or purpose." OXFORD
ENGLISH DICTIONARY VOL. XVII (1989).
2. James Buchanan & Co. v. Babco Forwarding &Shipping, Ltd., [1977] Q.B. 208,
213 (Q.B. Civ. Div.).
3. This remains the title of the Court. It must be distinguished from the European
Court of Human Rights with which it is sometimes confused. The Treaty on European
Union of 1992 ("Maastricht Treaty" or "TEU") established the European Union. Treaty
on European Union, Feb. 7, 1992, OJ. C 224/1 (1992), [1992] 1 C.M.L.R. 719, 31
I.L.M. 247 [hereinafter TEU] (amending Treaty Establishing the European Economic
Community, Mar. 25, 1957, 298 U.N.T.S. 11, 1973 Gr. Brit T.S. No. 1 (Cmd. 5179-1)
[hereinafter EEC Treaty], as amended by Single European Act, OJ. L 169/1 (1987),
[19871 2 C.M.L.R. 741 [hereinafter SEA], in TREATIES ESTABLISHING THE EUROPEAN
COMMUNITIES (EC Off l Pub. Off. 1987)). Thejurisdiction of the Court ofJustice, however,
continues to derive from the founding Treaties, which are: Treaty Establishing
the European Coal and Steel Community, Apr. 18, 1951, 261 U.N.T.S. 167 [hereinafter
ECSC Treaty], as amended in TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES (EC
Off'l Pub. Off. 1987), EEC Treaty, supra,from which the TEU dropped the word, "Economic",
and the Treaty Establishing the European Atomic Energy Community, Mar. 25,
1957, 298 U.N.T.S. 167 [hereinafter Euratom Treaty], as amended in TREATIES ESrAnUSHING
THE EUROPEAN ECONOMIC COMMUNITIES (EC Off'l Pub. Off. 1987). References
to the Treaty, unless the contrary appears, are to the Treaty Establishing the European
Community. Treaty Establishing the European Community, Feb. 7, 1992, [1992] 1
C.M.L.R. 573 [hereinafter EC Treaty], incorporatingchanges made by TEU, supra.
LEGAL INTERPRETATION AT THE ECJ
gest.4 The object of all interpretation lies in the true intention
of the lawmakers, whether they be framers of a constitution or a
treaty, legislators, or drafters of secondary legislation. Its pursuit
at the Court demands of the common lawyer a readiness to set
sail from the secure anchorage and protected haven of "plain
words" and to explore the wider seas of purpose and context.
This Essay is an attempt to enunciate the essential elements of
the Court's approach to legal interpretation, by the only Irish
Advocate General to be appointed to that Court to date and to
draw attention to some of its most notable practical applica-
tions.5
I. BACKGROUND OF THE COURT OFJUSTICE
The Court entered the world in 1952, as the Court ofJustice
of the European Coal and Steel Community.6 It has seen enormous
accretions to its competences, effected by the successive
stages of European integration, most notably, the adoption in
1957 of the Treaty Establishing the European Economic Community
("EEC Treaty"),7 by far the most important of the three
founding Treaties, and the Treaty Establishing the European
Atomic Energy Community ("Euratom Treaty").' The Court's
competences have also developed through many subsequent
treaty amendments, most notably the Single European Act of
1986 ("SEA")9 and the Treaty on European Union of 1991
("Maastricht Treaty" or "TEU") 10 and through four stages of enlargement
via accessions: Denmark, Ireland, and the United
4. See THOMAS F. O'HIGGINS, A DOUBLE LIFE 294 (1996). Thomas F. O'Higgins is a
former judge of the Court and former Chief Justice of Ireland.
5. The Court consists of 15 judges, each coming from one Member State, and 8
Advocates General, 9 for special temporary reasons. EC Treaty, supra note 3, art. 165-
66, [1992] 1 C.M.LR. 684-85. Article 166 of the EC Treaty, provides:
It shall be the duty of the Advocate General, acting with complete impartiality
and independence, to make, in open court, reasoned submissions on cases...
in order to assist the Court in the performance of the task assigned to it in
Article 164.
Id. art. 166, [1992] 1 C.M.L.R. at 685; see Nial Fennelly, Reflections of an Irish Advocate
General, 5 husH J. EUR. L. 5 (1996) (explaining role and influence of Advocate Gen-
eral).
6. ECSC Treaty, supra note 3.
7. EC Treaty, supranote 3.
8. Euratom Treaty, supra note 3.
9. SEA, supra note 3, art. 1, O.J. L 169/1 (1987), [1987] 2 C.M.L.R. 741.
10. TEU, supra note 3.
1997]
658 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 20:656
Kingdom in 1973; Greece in 1981; Spain and Portugal in 1986;
and, lastly, Austria, Finland, and Sweden in 1995. In its seminal
judgment in van Gend en Loos v. NederlandseAdministratie der Belastingen
in 1963,11 the Court spoke of the "limited fields"12
within which Member States had limited their sovereignty. By
1991 this had become "ever wider fields."'" Nonetheless, the
Court has retained the core of the structure and judicial method
which it adopted in the 1950s. 14 The following three preliminary
points are worth emphasizing regarding the environment
which has produced the Court as we know it today.
A. PointI: French-lawInfluence
The first point of emphasis is the French-law background
from which the Court sprang. Most, not all, of the legal procedures
at the Court are forms ofjudicial review of administrative
action. In the early 1950s, the procedures of French administrative
law enjoyed a position of pre-eminence among the legal systems
of most of the six founding Member States.15 Consequently,
the framing of administrative remedies in the Treaties
reflects both the form and grounds for such remedies in French
law.'" The position ofAdvocate General at the Court is inspired
by the role of the differently, indeed inaptly, named "Government
Commissioner," Commissaire du Gouvernement, at the
French Supreme Administrative Court, the Council of State.17
The early French Advocates General, for many years drawn only
11. van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62,
[1963] E.C.R. 1, [1963] 2 C.M.L.R. 105.
12. Id. at 12, [1963] 2 C.M.L.R. at 129.
13. Re The Draft Treaty on a European Economic Area (Opinion 1/91), [1991]
E.C.R. 1-6079, 6102, 21, [1992] 1 C.M.L.R. 245, 269.
14. In 1989, a Court of First Instance was attached to the Court as a result of Article
168a of the EC Treaty inserted by Article 11 of the SEA, as amended by Article
G(5c) of the TEU. EC Treaty, supra note 3, art. 168a, [1992] 1 C.M.L.R. at 686.
15. See, e.g., Professor Dr. Ulrich Everling, Reflections on the Reasoningin theJudgments
of the Court ofJusticeof the EuropeanCommunities, in FESTSKrFr TIL OLE DUE 55-74
(1996). The six founding members are Italy, France, Germany, Luxembourg, Belgium,
and the Netherlands. EEC Treaty, supranote 3, 298 U.N.T.S. 11, 1973 Gr. Brit. T.S. No.
1.
16. Opinion of Advocate General Lagrange, ASSIDER v. High Authority of the
European Coal and Steel Community, Case 3/54, [1954-1956] E.C.R. 63, 75; La Communaut6
Europ~enne du charbon et de l'acier, Rapport de la d~l~gation franqaise sur
le Trait6 et ia Convention sign~s A Paris le 18 Avril 1951 (Ministre des affaires estrang&res,
Oct. 1951).
17. Ami Barav, Le Commissairedu gouvernementprs le ConseildEtatfranvaiset l'Avocat
LEGAL INTERPRETATION AT THE ECJ
from the Council of State, exercised great influence in extracting
the legal principles and establishing the procedures
which became the norms of the Court, particularly the first
French Advocate General, Maurice Lagrange.
B. PointII: 1957-1973-A Community of Six
The second point follows from the first. The European Economic
Community and its Court of Justice continued without
enlargement and free of any common-law influence until 1973.
Of course, since 1973, the pool from which both judges and Advocates
General are drawn has broadened but, in one view, the
"diverse backgrounds of the Advocates General seem to have influenced
the style rather than the substance of their opinions."18
During that first period, from 1957-1973, the Court had established
a case law and, at least in outline, some of the central
principles of European Community law. In particular, in van
Gend en Loos, the Court enunciated the radical doctrine of direct
effect of Treaty provisions. 19 It is difficult to exaggerate the importance
of this decision. The Court concluded that the "Treaty
is more than an agreement which merely creates mutual obligations
between the contracting states.... [it] constitutes a new
legal order.., the subjects of which comprise not only Member
States but also their nationals."20
The most effective sanction
against Member States that fails to comply with their Community
law obligations is the guarantee, derived from the EC Treaty, of a
concrete remedy for individuals before national courts, rather
than an indirect and unenforceable international condemna-
tion.
This proposition may be tested by a comparison with the
case of the European Convention for the Protection of Human
Rights and Fundamental Freedoms.2 1
The Irish courts have consistently
refused effect in domestic law to that Convention.22
Gbnra pris la Courdejustice des Communauts europ&nnes, 26 REVUE INTERNATIONALE DE
DRorr COMPARt 809 (1974).
18. BROWN & KENNEDY, THE COURT OFJUSTICE OF THE EUROPEAN COMMUNITIES 69
(4th ed. 1994).
19. van Gend en Loos, [1963] E.C.R. at 13, [1963] 2 C.M.L.R. at 130-31.
20. Id. at 12, [1963] 2 C.M.L.R. at 129.
21. European Convention for the Protection of Human Rights and Fundamental
Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, Europ T.S. No. 5.
22. In re Gearoid O'Laighleis, [1960] I.R. 93.
1997] 659
660 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 20:656
Thus, the condemnation by the European Court of Human
Rights23 of Irish laws prohibiting homosexual acts, which the
Supreme Court of Ireland considered compatible with the Irish
Constitution,24
was ineffective until the necessary amending legislation
had been passed. In other words, decisions of the European
Court of Human Rights have no automatic internal effect
in countries in the dualist camp regarding the application of
treaties.
By contrast, decisions of the Court are, as a result of van
Gend en Loos, directly effective. In Costa v. ENEL,25 the Court
announced for the first time the doctrine, implicit in van Gend
en Loos, of Community law supremacy over all conflicting national
legal rules, including constitutional rules. It was similarly
implicit that, as the Court later decided, national courts are
bound to give effect to Community law by setting aside any conflicting
national law or practice.2 6
More particularly, for present purposes, the Court in van
Gend en Loos also enunciated the essence of the method of interpretation
it applies to the Treaties, stating that "it is necessary to
consider the spirit, the general scheme and the wording"2 7 of
the provision in question. 8
C. Point III. A "Tower ofBabel"
The third preliminary issue is language. Originally there
were four official languages, French, German, Italian and Dutch,
among the original six Member States. There are now twelve
official languages.2 9 Moreover, the EC Treaty is equally authentic
in each Community language.3 0
Divergences in nuance, em-
23. LuKE CLEMENTS, EUROPEAN HUMAN RIGHTS 8 (1994). "The Court's role is to
make a final and binding decision as to whether a violation of the Convention has
occurred .... " Id.
24. Norris v. Attorney General, [1984] I.R. 36.
25. Case 6/64, [1964] E.C.R. 585, [1964] 1 C.M.L.R. 425.
26. Amminstrazione delle Finanze dello Stato v. Simmenthal, Case 106/77, [1978]
E.C.R. 629, [1978] 3 C.M.L.R. 263.
27. van Gend en Loos, [1963] E.C.R. at 12, [1963] 2 C.M.L.R. at 130.
28. It is possible to trace the genesis of the method to the earliest case law of the
Court. SeeJudge Fernand Schockweiler, La Courdejustice des Communauts europienes
dipasse-t-edeles limites de ses attributions?,18JouRNAL DES TRIBUNAUX, DROIT EUROPtEN 73
(Apr. 20, 1995).
29. Though an official language, Irish is not employed as a working language, and
legislative acts are, therefore, only available in eleven languages.
30. The Treaty of Paris is authentic in French only.
LEGAL INTERPRETATION AT THE ECJ
phasis, and even substantive meaning are commonplace, indeed
inevitable. Translation is an art, not a science. Translations cannot
be done by computer because words do not correspond and
often their meanings overlap. For example, between English
and French, there are many "false friends"-words with the same
appearance but divergent meanings.
The Court has explained succinctly the impact of the language
problem in the task of interpretation as it confronts national
courts, stating:
To begin with, it must be borne in mind that Community
legislation is drafted in several languages and that the different
language versions are all equally authentic. An interpretation
of a provision of Community law thus involves a comparison
of the different language versions.
It must also be borne in mind, even where the different
language versions are entirely in accord with one another,
that Community law uses terminology which is peculiar to it.
Furthermore, it must be emphasized that legal concepts do
not necessarily have the same meaning in Community law
and in the law of the various Member States.
Finally, every provision of Community law must be
placed in its context and interpreted in the light of the provisions
of Community law as a whole, regard being had to the
objectives thereof and to its state of evolution at the date on
which the provision in question is to be applied."
If, however, all Community languages are equally authentic,
George Orwell might have thought that one was more equal
than the others. French is the working language in which all
judges' deliberations take place and in which alljudgments are
first drafted. According to Judge Giuseppe Federico Mancini of
the Court, French is "a rigorous and terse language which puts a
penalty on the florid and the twisted." 2 Noting criticism of the
Court, in its French-style judgments, for the Court's "often
stunted reasoning and its frequently oracular tone," Judge Mancini
emphasizes, nonetheless, their "concision and clarity."33
31. CILFIT v. Ministry of Health, Case 283/81, [1982] E.C.R. 3415, 3430, 1 18-20,
[1983] 1 C.M.L.IR 472, 491.
32. Giuseppe Federico Mancini, Crosscurrents and the Tide at the European Court of
Justice, 4 IRISHJ. EUR. L. 120, 121 (1995).
33. Id.
1997]
662 FORDHAMINTERNATIONAL LAWJOURNJAL [Vol. 20:656
D. InterpretativePrinciplesand Practices
Before embarking on a more precise formulation of the
Court's interpretative approach, two further observations seem
appropriate. A distinction must be made between the guiding
interpretative principle deployed in search of the meaning of
legal texts, on the one hand, and the range of particular techniques
and source materials upon which reliance may be placed,
on the other.
Principles and practices are not, however, watertight compartments.
For example, the willingness to go far afield in the
search for underlying purpose opens the door to consideration
of some source materials which would not be entertained under
a plain-meaning approach. On the other hand, linguistic comparison
is dictated by practical rather than theoretical considerations.
Texts will vary in the different language versions and a
common meaning must be found. It is useful, nonetheless, to
identify in the first instance the guiding principle before
enumerating individual techniques and practices.
E. The Court's "Mission"
Article 164 of the EC Treaty provides the point of departure
for the Court which "shall ensure that in the interpretation and
application of this Treaty the law is observed."3 4 Article 166 describes
this as "the task assigned to" the Court." The word "task"
is the translation of the French word "mission", and "task" is the
primary meaning of the word in French. 6 The words are in fact
"false friends." "Mission" acquires an entirely different flavor
when, as is inevitable, it is occasionally mistranslated into the
English, "mission". One distinguished commentator was so misled
by a mistranslation as to charge, "[a] court with a mission is
not an orthodox court. It is potentially a dangerous court-the
danger being that inherent in uncontrollable judicial power.""
It is not the purpose of this Essay to engage in that controversy.
In truth, a convincing distinction cannot be made between "mis-
34. EC Treaty, supra note 3, art. 164, [1992] 1 C.M.L.R. at 684 (emphasis added).
35. Id. art. 166, [1992] 1 C.M.L.R. at 685.
36. NouvEAu PETIT ROBERT, DICrIONNAIRE DE LA LANGUE FRANCAISE (1993).
37. Sir Patrick Neill QC, The EuropeanCourtofJustice--A CaseStudy inJudicialActivism,
at 58 (European Policy Forum, Aug. 1995); see David Edward, JudicialActivitis--
Myth or Reality?, in LEGAL REASONING AND JUDICIAL INTERPRETING OF EUROPEAN LAW:
EsSAYS IN HONOUR OF LORD MACKENZIE-STuART 29-67 (1996).
LEGAL INTERPRETATION AT THE ECJ6
sion" in the English sense and the teleological method, as applied
by the Court.
In the absence of a Treaty definition of the word "law"
found in Article 164, however, one is permitted to ask how the
judges were to perform their function, whether or not that be a
"mission".38
In his comic masterpiece At Swim Two Birds,9 Irish
writer, Flann O'Brien created the character John Furriskey. °
Furriskey was born at the age of twenty three, fully equipped
with a memory, an education, and defined traits of character,
without having undergone the tedium of natural birth and growing
up. Similarly, the Court entered the world without birth
pangs. It had to look to its collective memory to give meaning to
"the law". It was called upon to behave as a Court without delay.
Appointments to the Court are, however, restricted to those
"who possess the qualifications required for appointment to the
highest judicial offices in their respective countries or who are
jurisconsults of recognized competence."41 Essentially, appointments
are restricted to persons with profound legal training and
experience, in short, a legal memory.
The EC Treaty offered explicit guidance that the Court
should act "in accordance with the general principles common
to the laws of the member-States" in one area only.4" This approach
had already unsurprisingly been adopted from the inception
of the Court under the Treaty Establishing the Coal and
Steel Community ("ECSC Treaty"). In 1954, Advocate General
Lagrange, in the first group of cases ever decided by the Court of
that Community, engaged in a comparative analysis of the laws
of the Member States and extracted sufficient common elements
to produce a synthesis capable of being restated as an autonomous
principle of Community law.44 Over the years, the Court
has forged principles of Community law, some based on the
38. T.C. Hartley, The European Court,Judicial Objectivity and the Constitution of the
EuropeanUnion, 112 L. Q. REv. 95, 108 (1996) (suggesting that some unnamed persons,
he appears tentatively to indicate Judge Mancini, would allow Court to rely on an undefined
source of law higher than EC Treaty).
39. FLANN O'BRIEN, AT SWqM Two BiRws (1939).
40. Id.
41. EC Treaty, supranote 3, art. 167, [1992] 1 C.M.L.R. at 685.
42. EC Treaty, supranote 3, art. 215, [1992] 1 C.M.L.R. at 710 (discussing noncontractual
liability of European Community).
43. ECSC Treaty, supra note 3.
44. Opinion ofAdvocate General Lagrange, ASSIDER, [1954-1956] E.C.R. at 72-89.
1997] 663
664 FORDHAMINTERNVATIONAL LAWJOURNAL [Vol. 20:656
Treaties, but others inspired by the legal traditions of the Member
States, notably those of non-discrimination, equal treatment,
legitimate expectation, and proportionality.
II. THE TELEOLOGICAL METHOD
The characteristic element in the Court's interpretative
method is, as stated at the outset, the so-called "teleological" approach,
an expression frequently employed in writings, in argument
by parties before the Court, and occasionally by Advocates
General, but rarely used by the Court itself. The preferred language
of the Court remains close to the van Gend en Loos formulation,
namely that it is necessary to consider "the spirit, the general
scheme and the wording," supplemented later by consideration
of "the system and objectives of the Treaty."45 In more
recent years, the idea of "context" has been added,' and the
prevailing wording, varying minimally from case to case, has
been that it is necessary when interpreting a provision of Community
law to consider "not only its wording, but also the context
in which it occurs and the objects of the rules of which it is a
part."47 This last aspect is also frequently described as the
"scheme", as in the van Gend en Loos wording.
Occasionally, the Court places emphasis on the ambiguity of
a provision, usually by reason of linguistic divergence, whenjustifying
the purposive approach.4 In a recent case, where the text
in the English language was so unambiguous that the referring
judge in the English High Court considered the interpretation
clear beyond argument and referred questions to the Court only
because the "Court may, when faced with a fresh question, do
45. Europemballage Corp. & Continental Can Co. v. Commission, Case 6/72,
(1973] E.C.R. 215, 243, 22, [1973] 1 C.M.L.R. 199, 223.
46. Possibly because of the inclusion of the expression in the Vienna Convention,
discussed later.
47. Merck v. Hauptzollamt Hamburg-Jonas, Case 292/82, [1983] E.C.R. 1-3781,
3792, 12; see, e.g., Bosphorus v. Minister for Transport, Case C-85/95, [1996] E.C.R. I-
3953, 1-3982 11, [1996] 3 C.M.L.R. 257, 293; Peter Leifer and Others, Case C-83/94,
[1995] E.C.R. 1-3231, 22. By now this has become "the constant case law" of the
Court. EJ.M. deJaeck, Case C-340/9430, slip op. at 1-5, 17 (Eur. Ct.J.Jan. 1997) (not
yet reported).
48. Criminal Proceedings Against Grard Roudolff, Case 803/79, [1980] E.C.R.
2015, 2024, 1 7 ("The function of the words in question must be examined in the light
of the intention and purpose of the regulations in question").
LEGAL INTERPRETATION AT THE ECJ
something unexpected,"49 the Court nevertheless noted divergences
among the eleven language versions and concluded that
the question could not "on any view be resolved solely on the
basis of the wording . "...-50In the event, the Court, having
resorted to "other criteria of interpretation, in particular the
general scheme and the purpose of the regulatory system of
which the provisions in question form part,"51 reached the same
conclusion as the referring court. Merck & Co. v. Primecrown,
Ltd.52 demonstrates, however, the dangers of relying on strict
textual analysis when there are many language texts which are
equally binding and authentic but, at the same time, inaccessible
to the national court engaged in the interpretative exercise.
No national court is in a position to debate more than two
or three language versions, and usually it knows only one. Thus,
only the Court has the facilities for researching and comparing
different language versions. In this environment of concealed
linguistic uncertainty, an approach based on purpose is likely to
be more reliable. Linguistic conflict or ambiguity is not, in any
sense, a pre-condition for the application of the teleological or
schematic approach. Even when it finds a clear meaning in the
language used, the Court will often explain that the result so
found conforms with the general scheme and object of the provision.5"
By way of culminating logic, where the "aims and context"
of two international agreements, e.g. the EC Treaty and the
European Economic Area agreement, diverge, even textually
identical words will not necessarily receive the same interpreta-
tion.M
49. Opinion of Advocate General Fennelly, Merck & Co. v. Primecrown Ltd.,
Joined Cases C-267/95 & C-268/95, [1997] 1 C.M.L.R. 83, 95 18.
50. Id.
51. Id. at 96, 1 21, 22.
52. Id.
53. Hamann v. Finanzamt Hamburg-Eimsbfittel, Case 51/88, [1989] E.C.R. 767,
[1990] 2 C.M.L.R. 383. The Court, in considering whether ocean-going yachts were
"forms of transport" so as to render their hiring out subject to value added, ie. turnover
tax, at the place of establishment of the supplier, relied not merely on the tolerably
clear meaning of the expression, but also on the fact that yachts "may easily cross frontiers
[so that] it is difficult ifnot impossible to determine the place of their utilization."
Id. at 784,1 18, [1990] 2 C.M.L.R. at 390-91. Advocate GeneralJacobs also commenced
his analysis with the "purpose underlying the provisions." Id. at 777, [1990] 2 C.M.L.R.
at 385.
54. Opinion 1/91, [1991] E.C.R. at 1-6100-03, 1 5, 14,17, 29, [1992] 1 C.M.L.R. at
267-70.
1997]
666 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 20:656
Within this broad interpretative principle, the Court
chooses a wide range of sources. Interestingly, it cannot rely on
the travauxpriparatoires55 for the Treaties which are not available
to it. It extracts the aims and objects of the European Community
not only from those proclaimed in the texts of the EC
Treaty, but also from declarations by Member States or by Community
institutions. As already stated, where appropriate, the
Court seeks solutions in the laws of Member States. It frequently
relies on legislative history in the form of, for example, an earlier
legislative proposal from the Commission of the European Communities
("Commission") including cases where that proposal
has been rejected. 6
The Court, while not normally referring to legislative texts
not in force at the time material to a case, will, nonetheless, occasionally
do so where it sees those texts as being intended to
ensure that a particular regulatory regime is compatible with the
EC Treaty.57 It may even place reliance on Commission legislative
proposals not yet adopted by the Council of Ministers
("Council") to give support to its view that the existing regime
does not extend to a particular matter."
The breadth of source material for judicial inspiration is
comprehensible and justifiable once the teleological or purposive
method is adopted. The context of a legal text is part of the
background to its adoption. Many contemporary sources may
cast light on the understanding of the legislators. The existence
of the teleological interpretative principle is not, therefore, in
doubt. It has generated a considerable amount of literature5"
and provided the subject of a judicial and academic conference
as long ago as 1976.60
55. The travauxpriparatoiresrepresent the historical background of a treaty. WiLLIAM
W. BISHOP, JR., INTERNATIONAL LAW 175 (3d ed. 1971).
56. See, e.g., Gemeente Emmen, Case C-468/93, [1996] E.C.R. 1-1756, 21.
57. Eduardo Lafuente Nieto, Case C-251/94, [1996] E.C.R. 1-4187.
58. Otte v. Germany, Case C-25/95, [1996] E.C.R. 1-3745.
59. See, e.g., Gordon Slynn, The Court ofJustice of the European Communities, 33
I.C.L.Q. 409 (1984); JOXERRAMON BENGOETXEA, THE LEGAL REASONING OF THE EUROPEAN
COURT OFJUSTICE (1993).
60. See Hans Kutscher, Methods of Interpretation as seen by a Judge at the Court
ofJustice (Court ofJustice of the European Communities, Judicial and Academic Conference,
Sept. 27-28, 1976).
LEGAL INTERPRETATION AT THE ECJ
A. Teleology and the Treaties
Some personal reflections on the origins of this approach
may not be out of place. The Court, with characteristic terseness,
did not engage in any process of reasoning or reference to
authority when, in van Gend en Loos, it announced its approach
to Treaty interpretation.61 Indeed Advocate General Karl Roemer
was conspicuously more circumspect in his remarks:
The effect of an international treaty depends in the first place
on the legal force which its authors intended its individual
provisions to have, whether they are to be merely programmes
or declarations of intent, or obligations to act on the international
plane or whether some of them are to have direct
effect on the legal system of the Member States.6"
Individual members of the Court have not, however, been reticent
in explaining their views to a broad audience. Judge Constantinos
Kakouris of the Court has stated, "[t]he Court constantly
uses teleological interpretation.... [and] seeks to apprehend
the meaning of law in the light of its purpose ..,.6" The
Court, he said, "must arrive at criteria by reference to the beliefs
and common values of the people of Europe."'M The alliance of
the comparative method and the teleological approach has created
situations in which "the Court sometimes dismisses the rule
of the common denominator and adopts the rule most conducive
to the ultimate objective of Community integration."65
In 1995, Judge Giuseppe Federico Mancini' explained how
the expression "une certaine id6e de l'Europe", a phrase coined
by former Judge Pierre Pescatore and based in turn on General
de Gaulle's "une certain ide de la France,"67 encapsulated the
"synergy produced by the coming together of men who, though
steeped in different cultures and legal traditions, shared a com-
61. Id. at 1-6 (noting "reluctance to give in its judgments general rulings on
problems of interpretation.").
62. Opinion ofAdvocate General Karl Roemer, van GCend en Loos, [1963] E.C.R. at
19, [1963] 2 C.M.L.R. at 112.
63. Constantinos N. Kakouris, Use of the ComparativeMethod &ythe CourtofJustice of
theEuropean Communities, 6 PACE INT'L L. REv. 267, 273 (1994).
64. Id. at 274.
65. Id.
66. Mancini, supranote 32, at 125.
67. CHARLES DE GAULLE, MLMOIRE DE GUERRE, L'APPEL 1940-42 [MEMOIRS OF THE
WAR, THE CALL 1940-42] 1 (1954).
1997] 667
668 FORDHAMIATERNATIONAL LAWJOURATAL [Vol. 20:656
mon set of values."68 Elsewhere he has written of the "preference
for Europe" prompted by the EC Treaty objective of "an
ever closer union among the peoples of Europe."69 With this
view, he is echoing the Court's own declaration that "Article 1 of
the Single European Act makes it clear moreover that the objective
of all the Community Treaties is to contribute together to
making concrete progress towards European unity."70
Writing in less visionary terms, the late Judge Fernand
Schockweiler explained how "the Court had acted as an engine
for the building of the autonomous Community legal order."71
He thought that its most decisive contribution was its choice
from the very beginning of the teleological method of interpretation.
According to Judge Schockweiler, "by favouring this
method . . . [t]he Court gave preference to the interpretation
best fitted to promote the achievement of the objectives pursued
by the Treaty."72 Furthermore, it "allowed a development beyond
the literal meaning of the texts in a dynamic direction in
the light of the purposes pursued by the [EC] Treaty in its entirety
and in its context."73 These are, of course, all personal
views, and it is important to note that the President of the Court
recently reasserted the role of the Court as a custodian of legality
rather than as a "motor of integration," a perception of the
Court which he firmly rejected. 4
B. Teleology and InternationalLaw
In light of the criticisms or, to say the least, surprise, which
the teleological method has engendered, one may also ask
whether it is, in reality, entirely novel. International law does
not easily reach the common lawyer who is protected from its
incoming tide by the dualist doctrine, whereby international
agreements, in the absence of implementing legislation, have no
68. Mancini, supranote 32, at 125.
69. Giusuppe Federico Mancini & David T. Keeling, Democracy and the European
Court ofJustice, 57 MODERN L. REv. 175, 186 (1994).
70. Opinion 1/91, [1991] E.C.R. at 1-6102, 17, [1992] 1 C.M.L.R. at 268.
71. Schockweiler, supranote 28, at 73.
72. Id. at 74.
73. Id.
74. Gil Carlos Rodriguez Iglesias, Address on the occasion of the publication of
the work of Professor Jean Victor Louis on the European Union and the future of its
institutions (Brussels, Jan. 16, 1997).
LEGAL INTERPRETATION AT THE ECJ
effect in domestic law.75 Indeed, it is said that some do not acknowledge
even the existence of the notion of international law.
The Vienna Convention on the Law of Treaties 196976 represents,
at least in part, a declaration of existing principles of international
law. Article 31.1 of the Convention provides, "[a] treaty
shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the Treaty in their
context and in the light of its object and purpose."7 7
The Court
has invoked this provision several times in interpreting international
agreements between the Community and third countries.78
Such an agreement, it says in its opinion on the draft
agreement creating the European Economic Area, "merely creates
rights and obligations between the Contracting Parties and
provides for no transfer of sovereign rights." By way of contrast,
the Community Treaties established the "new legal order" identified
in van Gend en Loos and the EC Treaty, though "in the form
of an international agreement, nonetheless constitutes the constitutional
charter of a Community based on law." In 1951, in a
context unrelated to European integration, it could be said that
there were "three main schools of thought on the subject [of
treaty interpretation]," which could conveniently be called the
'intentions of the parties' or 'founding fathers' school; the 'textual'
or 'ordinary meaning of the words' school; and the 'teleological'
or 'aims and objects' school. 79
The author continued,
stating that the "teleological approach has its sphere of operation
almost entirely in the field of general multilateral conventions,
particularly those of the social, humanitarian and law-making
type."80 In addition, the teleological approach seems also to
75. Article 29.6 of the Irish Constitution, reflecting the English-law, non-continental
tradition, expressly provides that international agreements shall not be "part of the
domestic law of the State" except by legislative enactment. JOHN M. KELLY, THE ISH
CONsTrruTION 295 (Gerard Hogan & Gerry Whyte eds., 3d ed. 1994). Article 29.6 had
to be amended by referendum in 1972 to enable Ireland to become a member of the
European Communities. Id. at 1128-36.
76. Vienna Convention on the Law of Treaties, opened for signature, May 23,
1969, 1155 U.N.T.S. 331, 8 I.L.M. 679.
77. Id. art. 31.1, at 340, 8 I.L.M. at 691-92.
78. Opinion 1/91, [1991] E.C.R. at 1-6101, 14, [1992] 1 C.M.L.R. at 268; Regina
v. Minister ofAgriculture, Fisheries &Food, exparteS.P. Anastasiou Ltd. &Others, Case
C-432/92, [1994] E.C.R. 1-3087, 3132, 1 43, [1995] 1 C.M.L.R. 569, 606-07.
79. [1963] E.C.R. at 1, [1963] 2 C.M.L.R. at 105.
80. Gerald Fitzmaurice, The Law and Procedure of the InternationalCourt ofJustice:
Treaty Interpretationand CertainOther Treaty Points,28 BRIT. Y.B. INT'L L. 1, 1 (1951).
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670 FORDHAMINTERVATIONAL LAWJOURNAL [Vol. 20:656
be favoured in French courts where primacy must be accorded
to "the spirit and not the letter of the text."81 None of this, however,
establishes any more than the prior existence of respectable
international law theories of interpretation, of which the teleological
approach was one. But, it is difficult to disagree with
Judge David Edward's statement that the "insinuation that the
Court, in van Gend en Loos, 'invented' a new approach to Treaty
interpretation is false."12
C. Aims and Objects in the Treaties
Viewed as an international agreement, the EC Treaty should
be interpreted in light of its entire text, its context, and its declared
alms and objects. That the EC Treaty had from the beginning
explicit and ambitious formal objectives is incontestable.
These objectives have been progressively enlarged and extended
by unanimous Member State agreement, particularly in the SEA
of 1986 and TEU of 1991. The more highly developed formulations
of these objectives cannot, in logic, confer retrospective,
legal justification on decisions of the Court in the earlier years,
some of which have been subjected to scathing criticism. It is,
however, reasonable to interpret the unanimous Member State
acceptance of the deepening and broadening of the original
objectives as giving some form of implicit approval to prior
Court interpretations of declarations of narrower scope.
If the teleological method permits the Court to interpret
the EC Treaty and other instruments in light of EC Treaty alms
and objects, it is desirable to consider in general terms what
those objects are and to outline the general scheme of the EC
Treaty. The Preamble contains the expressed aspirations of the
Member States towards "an ever closer union among the peoples
of Europe, . . .economic and social progress .. .by common
action to eliminate the barriers which divide Europe, . . . the
removal of existing obstacles .. .in order to guarantee steady
expansion, balanced trade and fair competition...."84 Article 2
81. Id.
82. Denis Tallon, InternationalConventionsandDomesticLaw, inTHE GRADUAL CONVERGENCE
133, 144 (Basil Markesinis ed., 1994).
83. Edward, supra note 37, at 46.
84. Sometimes this is express, as where Article F.2 of the TEU confirmed respect
for "fundamental rights" as based on "general principles of Community law." TEU,
supranote 3, art. F.2, OJ. C 224/1, at 6 (1992), [1992] 1 C.M.L.R. at 728.
LEGAL INTERPRETATION AT THE ECJ
lays down "the task" of the European Community as being to
establish a Common Market and, thereby, achieve the aspirations
mentioned in the Preamble. 5 Article 3 enumerates the
"activities of the Community" in more precise form, indicating
the several means to the creation of the common market.86
Each of these is matched, in turn, by a program for the achievement
of these objectives, particularly with respect to the four
freedoms enunciated in the EC Treaty: Articles 9 to 36, the free
movement of goods;87 Articles 48 to 58, the free movement of
persons;8 Articles 59 to 66, the free movement of services;8 9 and
Articles 67 to 73, the free movement of capital.90 In addition,
Articles 38 to 47 of the EC Treaty provide for the Common Agricultural
Policy91 and Articles 85 to 94 for Rules on Competition.9
Moreover, the SEA and the TEU extended Community
competence to several new areas such as the environment, public
health, and consumer protection.
The achievement of the common market consists of a
programed and intentionally obligatory agenda for change. A
novel and unique institutional structure subtends this objective.
Article 4 imposes on the Community institutions the duty of carrying
out the tasks entrusted to the European Community.9" Article
155 enjoins the Commission to "ensure that the provisions
of this Treaty and the measures taken by the institutions pursuant
thereto are applied."9 4 A range of time-tables attends the
attainment of each of the objectives, depending on the subjectmatter.
The institutions of the European Community, however,
have broad discretion in the implementation of EC Treaty objec-
85. EC Treaty, supra note 3, pmbl., [1992] 1 C.M.L.R. at 573.
86. Id. art. 2, [1992] 1 C.M.L.R. at 588.
87. Id. art. 3, [1992] 1 C.M.L.R. at 589.
88. Id. arts. 9-36, [1992] 1 C.M.L.R. at 594-606 (establishing rules on free movement
of goods).
89. EC Treaty, supranote 3, arts. 48-58, [1992] 1 C.M.L.R. at 612-16 (setting forth
rules on free movement of persons).
90. Id. arts. 59-66, [1992] 1 C.M.L.R. at 616-18 (listing rules on free movement of
services).
91. Id. arts. 67-73, [1992] 1 C.M.L.R. at 618-21 (providing rules on free movement
of capital).
92. Id. arts. 38-47, [1992] 1 C.M.L.R. at 606-11 (establishing framework for Common
Agricultural Policy).
93. Id. arts. 85-94, [1992] 1 C.M.L.R. at 626-32 (setting forth rules on competi-
tion).
94. EC Treaty, supranote 3, art. 4, [1992] 1 C.M.L.R. at 590.
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672 FORDHAMINTERNATIONAL LAWJOURNTAL [Vol. 20:656
tives in many respects. They cannot, of course, override clear EC
Treaty provisions such as those held to create directly effective
rights for individuals.
In summary, the EC Treaty still consists of an ambitious
agenda for change. If the EC Treaty is the source of law, then
the Court considers that its task is to assist in,the attainment of
the EC Treaty objectives. Thus, the judicial role is distinct from
that of a neutral arbiter played by the normal court in a Member
State whose task is to hold the scales of justice evenly between
parties or between citizens and state. In particular, where those
scales concern the balance between the governors and the governed,
it is reasonable to see the role of the court as being to
interpret laws objectively according to the "plain words" used
with no particular end in view. Insofar as the common law
presumes that what is not regulated is free, courts may choose a
narrow or restricted interpretation of laws. In some states, however,
laws may need to be interpreted in the light of the Member
State constitution, especially constitutionally declared rights of
the citizen.9" The Irish Supreme Court, in considering the compatibility
of the SEA with the Irish Constitution, as already
amended in 1972 to permit Membership, described the European
Community as:
[A] developing organism with diverse and changing methods
for making decisions and an inbuilt and clearly expressed objective
of expansion and progress, both in terms of the
number of its member States and in terms of the mechanics
to be used in the achievement of its agreed objectives.96
III. TELEOLOGY IN OPERATION: THE COURT
The legal remedies and procedures provided in the EC
Treaty offer further support for the teleological or purposive approach.
Article 177 permits the Courts of Member States to refer
to the Court preliminary questions of interpretation of European
Community law.97 The Court inteprets the object of this
provision as being to secure a uniform interpretation of Commu-
95. Id. art. 155, [1992] 1 C.M.L.R. at 682.
96. See East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General, [1970]
I.R. 317. In Ireland, for example, laws passed by the legislature, Oireachtas,must be
interpreted, so far as possible, so as not to conflict with the Constitution. Id.
97. Crotty v. An Taoiseach, [1987] I.R. 713, 770 (Opinion of.CJ. Finlay).
LEGAL INTERPRETATION AT THE ECJ
nity law throughout all the Member States by assigning to the
Court a monopoly of final interpretation. It is universally acknowledged
to have played a decisive role in the construction of
the Community legal order and the evolution of the common
legal heritage of all European citizens.9" Articles 169 and 170
permit the Commission and Member States, respectively, to
bring Member States before the Court for infringement of EC
Treaty obligations.99 Frequently, the Commission uses this to insist
that Member States give effect in national law to Community
directives under Article 189.10 Article 175 allows for an action
against the Parliament, the Council, or the Commission based
upon infringement of the EC Treaty by an illegal failure to
act.101
A trilogy of cases decided in 1974 concerning three of the
four freedoms, freedom of establishment,1 2 freedom to provide
services,103 and free movement of workers,10 4 exemplifies the teleological
method working effectively with the principle of direct
effect. In terms of the EC Treaty, these freedoms were to have
become fully effective by the end of the transitional period, the
end of 1969, but the Member States had not yet agreed in the
Council on a program of prescribed implementing measures.
Considering that the freedoms in question represented a precise
result to be achieved, the Court held the EC Treaty articles to be
directly effective and capable of being invoked by individuals. It
is interesting to note that the Government of the United Kingdom,
in only its second year of membership in the Community,
relied on "the spirit and objective of the Treaty" to argue for a
restrictive interpretation of exemptions from the prescribed
98. See Carl Otto Lenz, The Role andMechanism ofthePreliminatyRuling Procedure,18
FoRHAm INr'L LJ. 388, 390 (1994) (discussing intepretation of Community Law and
EC Treaty by Court ofJustice).
99. Schockweiler, supranote 28, at 73; see Jacques Santer, President of the European
Commission, Speech on the Occasion of the Opening Session of the World Legal
Conference (Brussels Sept. 9, 1996).
100. EC Treaty, supranote 3, arts. 169-70, [1992] 1 C.M.L.1R at 686.
101. Id. art. 189, [1992] 1 C.M.L.R. at 693.
102. Id. art. 175, [1992] 1 C.M.L.R. at 688.
103. Reyners v. Belgian State, Case 2/74, [1974] E.C.R. 631, [1974] 2 C.M.L.R.
305.
104. van Binsbergen v. Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid,
Case 33/74, [1974] E.C.R. 1299, [1974] 1 C.M.L.R. 298.
19971 673
674 FORDHAMINTERNATIONAL LAWJOURNTAL [Vol. 20:656
freedoms.10 5 In the same vein, the Court has relentlessly insisted
on a narrow interpretation to exceptions or derogations from
fundamental EC Treaty principles embodied in the four free-
doms.1
06
A. Effet Utile: FillingGaps
A principal corollary, developed early on, to the teleological
method,107 is the doctrine of "effectiveness", invariably called by
its French name, "effet utile". The doctrine provides that once
the purpose of a provision is clearly identified, its detailed terms
will be interpreted so "as to ensure that the provision retains its
effectiveness." 08 This constant companion of the chosen
method leads the Court to seek above all, effectiveness, consistency,
and uniformity in its case law and in the application of
Community law. Consequently, the Court either reads in necessary
provisions regarding co-operation or the furnishing of information
to the Commission, or bends or ignores literal meanings.
Most shockingly of all to the common lawyer, the Court fills in
lacunae which it identifies in legislative or even EC Treaty provisions.
Returning to the words of Lord Denning:
When they [the Court] come upon a situation which is to
their minds within the spirit-but not the letter--of the legislation,
they solve the problem by looking to the design and
purpose of the legislature-at the effect which it was sought
to achieve. They then interpret the legislation so as to produce
the desired effect. This means that they fill in gaps,
quite unashamedly, without hesitation.' 9
For example, Article 228(6) of the EC Treaty permits the
Council, the Commission, or a Member State to "obtain the
opinion of the Court ofJustice as to whether an agreementenvisagedis
compatible with the provisions of the Treaty."'"0 It might
have been thought that the Community institution seeking such
105. van Duyn v. Home Office, Case 41/74, [1974] E.C.R. 1337, [1975] 1 C.M.L.R.
1.
106. Reyners, [1974] E.C.R. at 639, [1974] 2 C.M.L.R. at 310.
107. See, e.g., Bauhuis v. Netherlands, Case 46/76, [1977] E.C.R. 5.
108. See, e.g., Grad v. Finanzamt Traunstein, Case 9/70, [1970] E.C.R. 825, 837,
5, [1971] 1 C.M.L.R. 1, 23.
109. Saarland v. Minister for Industry, Case 187/87, [1988] E.C.R. 5013, 5042,
19, [1989] 1 C.M.L.R. 529, 542 (citing Grad, [1970] E.C.R. at 825, [1971] 1 C.M.L.R. at
1; Simmenthal, [1978] E.C.R. at 629, [1978] 3 C.M.L.R. at 263)
110. O'HIGGINS, supra note 4, at 213.
LEGAL INTERPRETATION AT THE ECJ
an opinion would be required to identify the "agreement envisaged"
and its terms. The Court has, however, in a series of cases,
given great latitude to that notion, perceiving its own role as being
to "forestall complications which would result from legal disputes
concerning the compatibility with the Treaty of international
agreements binding upon the Community.""'
In 1996, the Court admitted a request of the Council for an
Opinion on the compatibility of the accession by the Community,
as such, to the European Convention for the Protection of
Human Rights and Fundamental Freedoms"' ("European Convention"),
even though negotiations had not even commenced
and, indeed, such a step necessitated the unanimous agreement
of the Council, which was divided on the issue. The Court believed
that Article 228 provided "a special procedure of collaboration
between the Court ofJustice on the one hand and the
other Community institutions and the Member States on the
other. . . .""s Relying on its earlier case law, it considered that
"where a question of competence has to be decided, it is in the
interests of the Community Institutions and of the States concerned,
including non-member countries, to have that question
clarified from the outset of negotiation and even before the
main points of the agreement are negotiated."' 4 Therefore, the
Court held that it had jurisdiction to rule on the Community's
competence to become party to an "envisaged agreement",
which did not exist even in outline. In this event, its view on
competence was negative, which was sufficient to dispose of the
matter. It could not, as it acknowledged, have ruled on compatibility
of the envisaged agreement with the EC Treaty in the absence
of its terms.
In EuropeanCoal and Steel Community v. AcciairieeferriereBusseni
SpA," ' the Court noted that Article 41 of the ECSC Treaty,
as distinct from Article 177 of the EC Treaty, "contains no express
provision governing the exercise by the Court of a power
111. EC Treaty, supra note 3, art. 228(6), [1992] 1 C.M.L.R. at 715 (emphasis ad-
ded).
112. Opinion 3/94, [1995] E.C.R. 1-4577, 1-4595 1 16.
113. 213 U.N.T.S. 221, Europ T.S. No. 5.
114. Re The Accession of the Community to the European Human Rights Convention
(Opinion 2/94), [1996] E.C.R. 1-1763, 1-1784, 1 6, [1996] 2 C.M.L.R. 265, 287.
115. Id. at 1-1784-85, 110, [1996] 2 C.M.L.R. at 288 (citing Re The Draft International
Agreement on Natural Rubber (Opinion 1/78), [1979] E.C.R. 2871, 2909, 35,
(1979] 3 C.M.L.R. 639, 673).
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676 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 20:656
of interpretation." a1 ' The first provision entitles national courts
to make references for preliminary rulings only on the "validity"
of Community acts. The Court ruled, nonetheless, that "different
though their actual terms may be" the respective provisions
"all express a twofold need: to ensure the utmost uniformity in
the application of Community law." 17
B. The Community of Law
The Court has not, however, acted merely as an engine for
European integration. It sees itself as concerned with establishing
a Community of law, and the Treaties as guaranteeing rights
to individuals extending beyond their merely economic objectives.
By invoking the principle of effectiveness, effet utile, the
Court has given qualified, national direct effect to Community
directives which Article 189 envisages as requiring prior implementation
by Member States, on the basis that a Member State
which has failed to do so cannot rely on its own failure to act.""
The Court has also declared a right to damages for individuals
suffering a loss as a result of such failure to implement a Community
directive. In these and other ways, the Court has developed
its own concepts of its duty to see that the "law is observed"
and has proclaimed the existence of the "Community of law"
and the objective of comprehensive judicial protection.
In a 1986 decision, PartieEcologiste "Les Verts" v. EuropeanParliament,119
the Court admitted a challenge by the French Green
Party to a decision of the European Parliament regarding the
allocation of electoral expenses which favored the existing membership
of the Parliament. The principal legal difficulty was that
the Parliament was not named in Article 173 of the EC Treaty as
one of the Community institutions, the legality of whose acts
could be subjected to judicial review. Advocate General, now
Judge, Mancini advised, "whenever required in the interests of
judicial protection, the Court is prepared to correct or complete
the rules which limit its powers in the name of the principle
116. European Coal and Steel Community v. Acciaerie e ferriere Busseni SpA,
Case C-221/88, [1990] E.C.R. 1-495.
117. Id. at 1-523, 1 11.
118. Id. at 1-523, 13.
119. van Duyn, [1974] E.C.R. at 1337, [1975] 1 C.M.L.R. at 1.
LEGAL INTERPRETATION AT THE ECJ
which defines its mission."120
The Court founded its answer and
its own jurisdiction on the proposition that the Community is
one "based on the rule of law" and, introducing the concept for
the first time, that the EC Treaty is its "basic constitutional charter."121
The Court continued:
In particular, in Articles 173 and 184, on the one hand, and
in Article 177, on the other, the treaty established a complete
system of legal remedies and procedures designed to permit
the Court ofJustice to review the legality of measures adopted
by the Institutions. Natural and legal persons are thus protected
against the application to them of general measures
which they cannot contest directly before the court by reason
of the special conditions of admissibility laid down in the second
paragraph of Article 173 of the Treaty.' 22
Later, the Court, using similar logic, admitted, if only conditionally,
the Parliament's own right to bring annulment proceedings
under Article 173. It explained the need to fill a "procedural
gap" by reference to "the fundamental interest in the
maintenance and observance of the constitutional balance laid
down in the Treaties ...."123 One of the most striking aspects of
the manner in which the Court's method of interpretation, in
reliance on the laws of Member States, led to the adoption of
substantive principles of law is in the area of fundamental rights.
Article F.2 of the TEU entrenches "as general principles of Community
law" the respect for "fundamental rights, as guaranteed
by the European Communities . "...,124 This culmination was
the result of a gradual process. The Court commenced cautiously
in 1969 by referring to "protection guaranteed by fundamental
rights.., assumed by various provisions in the Treaty...
supplemented by unwritten Community law, derived from the
general principles of law in force in the Member States." 12 5 In
1970, it saw fundamental rights as "inspired by the constitutional
120. Partie Ecologiste "Les Verts" v. Parliament, Case 294/83, [1986] E.C.R. 1339,
[1987] 2 C.M.L.R. 343.
121. Id at 1350, [1987] 2 C.M.L.R. at 358. This is the passage criticised by Sir
Patrick Neill. See Neill, supranote 37, at 580.
122. PartieEcologiste, [1986] E.C.R. at 1365, 1 23, [1987] 2 C.M.L.R. at 372.
123. Id.
124. Re Radioactive Food: Parliament v. Council, Case C-70/88, [1990] E.C.R. I-
2041, 2073, 26, [1992] 1 C.M.L.R. 91, 116.
125. Paradoxically this Article dealing with "Community law" is, by Article L of the
same Treaty, placed outside the purview of the Court ofJustice.
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678 FORDHAMINTERNATIONAL LAWJOURNJAL [Vol. 20:656
traditions common to the Member States," but stressed that the
EC Treaty was an "independent source of law."1 2 16 Subsequently,
upon the ratification of the European Convention by all Member
States, the Court was in a position to add it to its sources of
inspiration. 12 7 It has been generally accepted that the development,
inspired as it was by the common legal and constitutional
traditions of the Member States as well as international treaties,
and one in particular, to which they adhere was in response to
the danger that the German or Italian constitutional courts, concerned
with the lack of human rights protection in Community
law, would commence their own process of review ofvalidity and
compatibility of Community law provisions with national constitutions.
2 1
Thus, although the Court has ruled that the Community
is not competent, without an EC Treaty amendment, to accede
to the European Convention, 129 it has enshrined its principles
as a source of Community law and will occasionally refer to
the case law of the European Court of Human Rights.13 0
CONCLUSION
In summary, it can be said that the Court adopted the teleological
method of interpretation of the Treaties and other Community
texts from an early date. It employed this method to give
priority to the proclaimed objectives of the EC Treaty, particularly
that of European integration. It interpreted the EC Treaty
as establishing a new legal order going beyond an international
agreement between sovereign states. This order encompasses
not only the Member States but their nationals and, thus, a
number of EC Treaty provisions have direct effect so as to confer
rights on individuals which is the duty of national Member State
courts to protect. The Court interprets the EC Treaty as creating
a Community governed by the rule of law and defined its own
126. Stauder v. City of Ulm, Case 26/69, [1969] E.C.R. 419, 423, [1970] C.M.L.R.
112.
127. Internationale Handelsgesellschaft v. Einfuhr, Case 11/70, [1970] E.C.R.
1125, 1134, 3-4, [1972] C.M.L.R. 255, 282-83.
128. Rutili v. Minister for the Interior, Case 36/75, [1975] E.C.R. 1219, [1976] 1
C.M.L.R. 140; Hauer v. Land Rheinland-Pfalz, Case 44/79, [1979] E.C.R. 3727, [1980]
3 C.M.L.R. 42.
129. Mancini & Keeling, supra note 69, at 187.
130. See supranote 113-15 and accompanying text (providing Court's reasoning in
Opinion on Community accesion to European Convention).
LEGAL INTERPRETATION AT THE ECJ
task under Article 164.131 Where texts are silent, it supplements
them by principles of law derived from the laws and constitutions
of the Member States and the European Convention of
Human Rights. Ultimately, it has constructed a complete system
ofjudicial protection of individual rights in those areas governed
by Community law.
Essentially, however, the Rubicon was crossed in 1963 in van
Gend en Loos. The choice is well expressed by a former President
of the Court:
Either the Community is for individuals (physical or legal persons)
an attractive but distant abstraction which is only of interest
to the governments who apply its rules to them at their
whim, or it is for them a concrete reality and consequently
the originator of rights.13 2
131. P v. S. and Cornwall County Council, Case C-13/94, [1996] E.C.R. 1-2143,
[1996] 2 C.M.L.R. 247.
132. EC Treaty, supra note 3, art. 164, [1992] 1 C.M.L.R. at 684.
1997] 679