Europäische Verfassung und europäische Methodenlehre
Jahrgang 75 (2011) / Heft 4, S. 787-844 (58)
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Ever since the publication of Haltje Rasmussen's critical study of the adjudication of the European Court of Justice, the search for a European methodology (Methodenlehre) that should guide the jurisprudence of the Court relating to the interpretation of primary Union law has been broadly discussed in the academic sphere. Whereas interpretative methods which are common in public international law have been applied in the intergovernmental sphere of the Union Treaties, the Court has used a mixed methodology for the supranational sphere: Traditional methodology familiar to some of the legal systems of the Member States goes hand-in-hand with topoi, which guide the interpretative process and which may be circumscribed as »Union-specific« (the Union as a »community of law« – Rechtsgemeinschaft; dynamic interpretation; effet utile; uniform application of Union law in the Member States; principle of legal protection). Moreover, it may be observed that the European Court of Justice stands in a dialogue with other Union organs, as well as with the courts of the Member States, as far as the interpretation of Union law is concerned. It is generally accepted that the Court has a mandate not only for the interpretation of Union law, but also for its further development (Rechtsfortbildung). The criticism levelled against the Court claims that the Court, at least sometimes, either oversteps the limits of its competence or that the arguments put forward in the judgments often do not bring out the relevant considerations. The paper deals with a number of issues concerning the process of law-Afinding in the realm of primary Union law, setting out some intrinsic limitations and arguing that Rechtsfortbildung by the Court requires a specific presentation of arguments derived from the Treaties as well as their values and underlying principles which legitimise the role that the Court has assumed.