Comparison as tool of interpretation and European judges

UNIVERSITAS-An International Peer Review Journal, vol. 16, 2021, (2023), p. 1-19

23 Pages Posted: 19 Oct 2013 Last revised: 18 Oct 2023

Date Written: October 18, 2013

Abstract

The article examines the comparison used by the European Union judge as a tool of interpretation.

The first part circumscribes the meaning of comparison as an interpretative tool. A step-by-step approach clarifies the meaning of comparison in general, of interpreting comparison in particular, and realizes an overview of comparative interpretative practice by international tribunals and identifies hidden cases when the European judge employed the comparison.

The second part of the paper examines the emergence of comparative interpretation in topic case-laws relating to the European Community of Steel and Carbon (ECSC) Treaty. In the 50s and 60s, there was an unseen dialogue of the doctrine, the Advocates Generals, and the European judge about how to interpret undetermined normative concepts of the ECSC Treaty. The outcome of this dialogue was the occurrence of a 'standard' interpretative comparison, as multi-comparison, which was used by the European judge ever since.

The third part of the article places this 'standard' comparison within a methodological perspective. This perspective requires an outline of interpretative methodologies of judges both in national and in international law.
This outline offers the ground for 'translating,' methodologically speaking, the 'standard' comparison as a subset of the literal or grammatical interpretation belonging to an objective system of interpretation (embraced by EU Court). This 'standard' comparison is strongly linked to multi-juralism (existence of many independent and parallel legal systems of Member States) and loosely linked to multilingualism (the legal use of multiple languages within EU), both essential characteristics of European legal system.

In conclusion, this powerful and misunderstood tool of the judge had an essential role in the historical evolution of the European Union. It may also provide hints and solutions for national or international situations where pluralism at the legal level (multi-juralism) is at stake.

Keywords: comparison, interpretative comparison, multi-juralism, multi-linguism, European Union, European Union Court, interpretation of treaties, objective interpretation, subjective interpretation

Suggested Citation

Titiriga, Remus, Comparison as tool of interpretation and European judges (October 18, 2013). UNIVERSITAS-An International Peer Review Journal, vol. 16, 2021, (2023), p. 1-19, Available at SSRN: https://ssrn.com/abstract=2342090 or http://dx.doi.org/10.2139/ssrn.2342090

Remus Titiriga (Contact Author)

INHA University ( email )

100 Inharo, Nam-gu
Incheon, 402-751
Korea, Republic of (South Korea)

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