»Inter-Instrumental-Interpretation« System Building through the Interpretation of European Union Law
Volume 75 (2011) / Issue 4, pp. 882-932 (51)
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In this contribution it is argued that it is just as much the task and within the competence of the judiciary to build a coherent system and set of value judgments in European private law as it is the task and within the competence of the legislature. That is to say, it is a task belonging just as much to the courts, namely the European Court of Justice (EJC) (as well as legal scholarship aiming at the construction and interpretation of existing law) as to the legislative organs of the Union (or legal scholarship aiming at the preparation of legislative acts). Broad discretion has to be acknowledged in favour of the judiciary, and one should not assume that there are narrow »constitutional« limits hindering such an active role of the judiciary. The contribution argues that such an approach not only mirrors what is in any event the dominant trend in the current case law of the ECJ, but that it is also more in line with the institutional arrangement of the Union, namely with what is called the institutional equilibrium. Thus, courts are invited to build systems actively. Moreover, they should make this role even more explicit and indeed stress more openly the core underlying rationale as opposed to hiding it behind »well-accepted« narrow »canons of construction« and pretending that the results flow almost »automatically« from the application of such canons. The topic is treated by first showing the various dimensions which can be seen as examples of »systematic interpretation« or »construction«, using in the process leading cases decided by the ECJ (see above sections I. and II.). In these sections, the variety of possible dimensions is then also narrowed down to such cases of systematic interpretation which have to do with multiple legal instruments, not only systematic interpretation within one such instrument. These cases of inter-instrumental interpretation seem to not only be more interesting from a theoretical perspective, but also of higher practical importance today. It is in the area of inter-instrumental interpretation as well that the »hard cases« mostly occur. These cases are treated in more detail in a last section (see above section IV.) after having first clarified in a third section the foundations of a systematic interpretation of (private) law in the European Union, namely the institutional arrangement of the Union which influences the particular role and shape of such systematic interpretation precisely in the Union (see above section III.).