Comparison as an interpretative tool of the European Union judge

We live in a world where many legal systems interact continuously. Some of these interactions can be described as ‘legal transplants’ in-between national laws. In this way, sometimes, entire legal structures are borrowed from a foreign country. 

That was the case for the Swiss Code of Obligations, which Turkey has adopted in the 30s. In the beginning, at least, the Turkish judges may have interpreted a concept by examining its meaning in Swiss law, which implied the use of comparison between Turkish and Swiss legal systems.

Another interesting case, this time of ‘synthetic’ transplant, relates to the Civil Code of Ethiopia, designed by great comparative scholar, René David,  who took into account rules or institutions from France, Italy, Greece, Switzerland, Israel, etc. The Ethiopian judge, willing to clarify, an obscure term in the new code may have used multiple comparisons between his own system and each specific disposition's origin.

But such ‘legal transplant’ may also occur between legal systems of a different kind. For example, International Law may borrow concepts and rules from national law. The international legal scholars have played a role in this transposition since they were fed by their national legal culture. 

More recently, in many disputes of highly technical issues, the International Courts or the Arbitrators have resorted to long-established institutions from private national laws and hence use comparison in interpretation.

The most interesting 'laboratory' for such an interpretative use of comparison based on solution from national legal systems is, or more exactly was, European Union (when it was called European Community).

If this brief presentation catches the attention of the reader, he may find a still evolving draft of  about

Comparison as an interpretative tool of the international judge: the European Union case, visible at https://ssrn.com/abstract=3648866.

The first part of the paper circumscribes the meaning of comparison as an interpretative tool. A step-by-step approach clarifies the meaning of comparison in general, comparison as interpretation 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 article 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 interpreting the ECSC Treaty's undetermined normative concepts. The outcome of this dialogue was the occurrence of a 'standard' interpretative comparison, a 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 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. The '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 the European legal system.

This powerful and misunderstood tool of the judge had an essential role in the European Union's historical evolution. It may also provide hints and solutions for national or international cases where legal pluralism is at stake.