INTERPRETATI ON OF THE EU LAW BY THE AUTHORITIES OF THE MEMBER STATE S. THE DOCTRINE AND PRACTICE

Abstract

The manner of understanding law depends on culture and all the historical, social and economic factors which have been shaping its comprehension. The prevailing belief, typical of contemporary Europeans, associates law with texts — sets of various acts, remaining in diverse relations and correlations with each other, acts containing linguistic statements whose common feature is the capability for expressing an obligation. As a matter of fact, this obligation is aimed at ordering or prohibiting a specific behaviour. The texts which include directive-based statements are examples of a formalised, external form of law, and therefore law itself is usually equated or identified with texts. According to the doctrine of positivism, predominantly applicable in mainland (continental) Europe, law is established by a sovereign (legislator) and shall be interpreted as if intellectual work on a text were to reconstruct the sense previously expressed in the text. Taking this convention into account, the role of an interpreter is relevant, though passive. The interpreter’s role involves decoding norms included in legal texts according to an ‘algorithm’ whose objective is to establish a full correlation and understanding between a sender and a recipient of a particular message. Despite being undoubtedly useful, such understanding of law is strictly connected with a country’s dominion and the manner in which social control is exercised by state organisations, or strictly speaking, by decision-makers. This image of law has been revised by social changes, exchange of experience, as well as encounters of disparate cultures and doctrines. What we used to consider as law appears to be a more complex and multifaceted phenomenon, whose centre point, at least within our cultural circle, is still the language and specific manner, characteristic of law only, in which the language is used. Moreover, the approach to interpretation is also changing. The interpreter’s task, within the dynamically changing and multifarious reality, is to assign some common and universal meaning to the written law. Thus, complementing the written law by means of discourse is becoming a natural way in which such written law may operate within the society. As far as discourse is concerned, interpretation is neither a secondary action towards the text, nor a description of something given from the outside; on the contrary, interpretation bonds together with the text, thereby rendering law an ‘interpretational being’. Functioning of the legal system of the European Union is a representative example of forming law within the process of interpretation. The space and specificity of the EU law, in fact, go beyond traditional schemes, demarcated by boundaries and determined by one predominant doctrine. As a matter of fact, similarly to the European Union, the EU law is unity in multiplicity, originating from and clutched in diversity of cultures, practices, institutions and ethnic languages. The challenge related to accession of new Member States to the European Union involves not only adopting a common legal order and aligning the national law, but is also connected with a change in the approach to law and adopting an interpretation practice, which is frequently different from the currently applicable one. It is not an easy task since on the one hand, the EU normative acts are construed within a different system context, linguistic context or functional context, and on the other hand, some patterns of interpretation, which are applied to interpret the EU law in a natural manner, tend to operate in each legal culture. Nonetheless, the genesis and characteristics of the EU law are so rich that taking them into consideration requires that the interpreter should confront problems which are much more complex than in the case of interpreting texts concerning the national law. Maintaining uniformity in respect of applying the EU law is also of the most significant tasks lying within the scope of responsibilities to be executed by national authorities. Ensuring that uniform (i.e. identical with respect to all Member States of the European Union) EU normative or legislative acts are duly applied is a basic obligation of the Member States, which is additionally expressed in uniformity of the results concerning interpretation of the texts. Although the interpretation practices executed by the EU authorities and bodies or national authorities may vary, the results of the aforementioned interpretations should be similar or even identical. National authorities or national courts are willing to apply the methods and rules developed within the framework of the European Union doctrine, primarily through the case-law of the Court of Justice of the European Union (formerly the European Court of Justice) in order to fulfil the aforementioned obligations.

Although the case-law of the Court of Justice is not a source of law on a formal basis, numerous representatives of the doctrine tend to grant such status to the Court of Justice, whereas all of those representatives recognise its prominent role in shaping of the European Union law. Incorporation of the Court of Justice of the European Union to the process of shaping the EU law at the level equal, and sometimes even exceeding, the position of a formal legislator is linked with reception of the tradition originating from the Anglo-Saxon culture and recognition of de iure precedent, operating within the common law system, as an autonomous source of law. National courts are more and more frequently taking over the role of the Court of Justice within the national systems.

The process of approximation or ensuring compliance, referred to as harmonisation, is largely determined by the interpretation practice since the modified national legislation, within the context of the requirements imposed by the EU law, is subject to assessment primarily in respect of its application rather its formal structure. The factors which hinder and restrict operation of a common interpretation model include multilingualism of the texts concerning the EU law, as well as the differences in understanding law, its structure, its properties or its institutions in local cultures. The interpretation-related principles and directives, largely reconstructed on the basis of the practices exercised by the EU authorities or bodies, particularly by the Court of Justice of the European Union, are aimed at eliminating the undesirable results. The function regarding principles in the process of interpreting the EU law emerges and becomes particularly apparent in case the structural loopholes are settled or decisions within the framework of administrative discretion or judicial discretion are taken, especially applying imprecise or vague concepts, general clauses or resolving or adjudicating dilemmas arising from openness of particular sources of law.

With respect to the EU law, the principles appear to be of crucial importance while defining inter-system relations, determining the content of conflictof- law directives and while sorting out the problems concerning multilingualism of the texts of the EU law and its conceptual autonomy. In this perspective, multilingual texts of the EU law are only the starting point. The text and its linguistic meaning constitute only an initial guideline, complemented by legal discourse, and therefore the functional (purposive) interpretation, recognised within the doctrine of numerous countries as complementary to interpretation, is acknowledged as an essential and fundamental requirement of the interpretation proceedings under the binding EU law and its application.