Description
How far do English and German judges go when they interpret national legislation in conformity with an EU directive? Highest courts in both jurisdictions recognise that outer methodological limits exist for the EU legal duty of conforming interpretation which a court may not cross. These limits are drawn at the constitutional junction between permissible judicial interpretation and impermissible judicial amendment of legislation, the latter remaining the exclusive task of the legislature. A court that surpasses this boundary exceeds its judicial function and, in the words of the Court of Justice of the European Union (CJEU), makes a contra legem interpretation. The contra legem limit is (primarily) determined by national law and national legal methodology. As national methodologies can differ between Member States, it is possible that the duty of consistent interpretation is applied differently. On the one hand, scholars have argued that applying national rules of construction and their methodological limits may pose a considerable limitation upon the function of the duty of conforming interpretation to mitigate the differences that may arise out of a different interpretation of national legislation within the directive’s scope in different Member States due to differences in national legal methodologies. On the other hand, critics also say that courts in England and Germany modify national principles of statutory interpretation under the influence of the EU legal duty of conforming interpretation and shift the boundary between interpretation and impermissible judicial legislation in favour of the judiciary.Against this background, this presentation assesses the muscular approach to conforming interpretation by German and English courts. It compares the limits of the judicial function as expressed by outer methodological limits of conforming interpretation in both jurisdictions. At its core lies a comparison of two cases discussing the outer limits of the judicial function for conforming interpretation: The judgment in Weber II by the German Federal Court of Justice and the judgment in Football Association Premier League Ltd. v. QC Leisure [2012] EWCA Civ 1708 by the Court of Appeal. Both cases share a number of similarities: First, the statutory language of the provision being interpreted was unambiguous and did not fulfil the requirements of the applicable directive on a natural reading. Second, it was argued before the judges that a conforming meaning of the provision can be reached by departing from the unambiguous wording and by narrowing the scope of application of the provision (reading down) by implying words into it. Third, the legislative history of the challenged provision contained a specific objective which contradicted the directive’s requirements as subsequently interpreted by the CJEU and there was no indication that the domestic legislature realised the inconsistency. The Member State had thus erred with regard to the correct construction of the directive’s requirements. Fourth, the legislative history also contained a clear indication that the legislature intended to fully implement the applicable directive. Thus, two clear intentions contradicted each other and had to be reconciled.
In Weber II, the German Federal Court of Justice gave priority to the presumed general intention of the legislature to fully implement the directive over a specific but inadvertently inconsistent objective of a particular enactment. In Football Association Premier League Ltd. v. QC Leisure the Court of Appeal gave precedence to the specific objective over the general intention of the legislature to fully implement the Directive. The presentation will show that the reasoning of the Court of Appeal infringes methodological requirements stemming from the EU duty of conforming interpretation as interpreted by the CJEU. It will be argued that the Court of Appeal was nonetheless right in reaching the conclusion that the challenged provision was not amenable to a conforming interpretation. In Weber II, the German Federal Court of Justice concluded that a conforming interpretation was possible and did not breach outer methodological limits of interpretation. Even though the court did not shift the contra legem limit in favour of the judiciary, it certainly stretched the limits of the possible.
The paper explores reasons that may explain the existing similarities and remaining differences in the outer methodological limits of conforming interpretation in England and Germany.
| Period | Sept 2016 |
|---|---|
| Event title | Society of Legal Scholars 107th Annual Conference |
| Event type | Conference |
| Location | Oxford, United KingdomShow on map |
| Degree of Recognition | National |