Base de datos y coordenadas UTM del área de estudio ITEM FAJA N° ESPECIE DAP

In stark contrast to the abundant literature on evolutive interpretation at the ECtHR, not much has been written on evolutive interpretation at the CJEU in general, nor in the context of its case law on fundamental rights. However, section 4.4.2.4 already referred to the way in which evolutive interpretation is incorporated in the EU system

114 See Vande Lanotte (2005), p. 195 for many references.

115 Vande Lanotte (2005) referring to the case of ECtHR,Soering v. United Kingdom, judgment of 7 July 1989,SeriesA No. 161, p. 195. Also Prebensen (2000), p. 1136.

116 Schokkenbroek (2000), p. 17; Vande Lanotte (2005) 195; Prebensen (2000), p. 1137; Mahony (1990), p. 67.

117 Prebensen (2000), p. 1137.

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as a whole. In academic literature, reference is often made to the dynamic character of the Treaties or the evolutionary nature of EU law.118 _{The programmatic nature}

of EU law as a project for the future to enhance European integration legitimizes an evolutive approach to interpretation. The changing objectives of the EU and the broadening of the aim of European integration to fields beyond purely economic integration allow, if not require, the CJEU to take an evolutive approach.119 _Apart

from this positive basis for an evolutive approach, there is also a negative reason to rely on an evolutive approach, being that a static or originalist approach is often not possible for the CJEU. The simple reason for this is that thetravaux préparatoires

of many EU treaties are still not accessible and cannot be used as a basis for inter- pretation.120 _{This accessibility problem also directs the CJEU in the direction of}

an evolutive approach, rather than an originalist approach.

An important question is whether the CJEU applies an evolutive approach in the context of fundamental rights as well. One could argue that introducing fundamental rights into the EU system already evidences an evolutive approach by the CJEU.121

The codification of the fundamental rights case law of the CJEU in Article 6 of the Treaty of Maastricht on the one hand, and in the Charter on Fundamental Rights on the other indicates that the Member States approve of this evolutive approach by the CJEU. The question then becomes whether this evolutive approach will change now that the Charter on Fundamental Rights has become binding. Will the CJEU take a strict approach to the text or an evolutive approach and read the text in light of changing circumstances? It is difficult to predict an answer to that question as the text is of a relatively recent date and it is not yet necessary to interpret the text in the light of changed circumstances. However, the preamble of the Charter does provide food for arguing that the CJEU will adopt an evolutive approach when dealing with the rights included in the Charter. Reference is made to the fact that the Member States are ‘resolved to share a peaceful future based on common values’. Moreover, the preamble refers to the fact that according to the drafters of the Charter, ‘it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter’. Both citations indicate that the Charter is focused on the future and that changes in, among others, society and science might influence the protection of fundamental rights. This is not clear proof that the CJEU will adopt an evolutive approach, but it could be an indication.

118 See for example: Millett (1989), p. 163 & p. 171; Brown (2000), p. 332; Reich (2005), p. 25 & p. 31; Arnull (2006), p. 621; Schermers (2001), p. 12 & p. 21; Tridimas (1996), p. 205; Pollicino (2004), p. 289.

119 Pollicino (2004), p. 289. See also Maduro (2007), p. 12. 120 Arnull (2006), p. 614-615.

121 Maduro (2007), p. 11.

Principle of evolutive interpretation

Several questions still remain to be answered as regards the use of evolutive interpretation by the CJEU, which have not been addressed explicitly in legal literature. For example: When does the CJEU use evolutive interpretation, how does it establish an evolutive interpretation and which methods play a role in this regard? The case law analysis might provide more insight here, but it is probable that the CJEU will not be expressly employing an evolutive approach.

Some assumptions, however, have been made in the literature which do shed some light on the interpretative approach of the CJEU. For example, many authors notice a close relation between evolutive interpretation and teleological interpretation, and some have even gone so far as to consider the two concepts to be equivalent.122

Even though there may indeed be a close link between the teleological method and the evolutive principle, it is not clear from the literature how and to what extent teleo- logical interpretation may help the CJEU to establish an evolutive meaning. Is teleo- logical interpretation used as a basis for evolutive interpretation, or is it the other way around? The former might be the case if the CJEU accepts that an evolutive approach is warranted by reference to the object and purpose of the treaties. If this were found to be the case, it would not yet provide an answer to the question which methods are used to establish an evolutive interpretation. After all, the approach then used by the Court would be one of meta-teleological reasoning, rather than a strictly evolutive one. In that case, the principles of meta-teleological interpretation and evolutive interpretation may seem to be placed on the same level, or evolutive inter- pretation may even be regarded as part of the general and overarching principle of meta-teleological interpretation. This is different if teleological interpretation actually does help to establish the evolutive interpretation in a certain case, i.e. if micro- teleological reasoning is used. The exact role of teleological interpretation and its relation to evolutive interpretation is therefore of particular interest for the case study. Similarly, it should be examined what role other interpretation methods might play in establishing an evolutive interpretation to fundamental rights. Given the importance of comparative interpretation in the context of fundamental rights before the CJEU, it is legitimate in particular to ask whether comparative interpretation also plays a role in establishing an evolutive interpretation.

7.6 CONCLUSION

The aim of this chapter has been to address several theoretical questions on evolutive interpretation in order to get a better understanding of evolutive interpretation as an interpretative aid. In general international law, evolutive interpretation is regarded as a common interpretative concept. The Vienna Convention provides a limited

122 Reich (2005), p. 25 and p. 31.

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foundation for evolutive interpretation, but reference has also been made to the Namibia advisory opinion of the International Court of Justice as a basis for evolutive interpretation. More specifically, the preamble and the text of the European Convention have been mentioned as factors that support an evolutive approach in the context of the European Convention. In the context of the EU, the programmatic nature of the treaties as a design for the future has been mentioned as the most important indication that an evolutive approach is warranted. The question is whether both courts in their case law address the basis for their evolutive approach.

Evolutive interpretation has been qualified in this thesis as an interpretative principle. This qualification is often not explicitly made in the literature. Some authors seem to implicitly recognize the different nature of evolutive interpretation in relation to interpretation methods, but even then the difference is not really addressed. Often evolutive interpretation is regarded as an interpretation method, just like any other. The question is whether the ECtHR and the CJEU in their case law show any concern for the nature of evolutive interpretation.

The advantages of evolutive interpretation are often taken for granted and dis- cussions focus on the criticism voiced against evolutive interpretation. In general theoretical literature there are two main points of criticism. First, the opponents are concerned how far a judge can take evolutive interpretation. Several constraints for judges have been mentioned in this regard, but these constraints only mitigate the concern. The second criticism is that there is no guiding principle for evolutive interpretation. As a result the use of this principle is unclear and that reduces the force of this argument. These concerns need to be addressed. Both concerns show that it is not clear how an evolutive interpretation is established. In the discussion on the specific courts it became clear that for both courts the question how evolutive inter- pretation is established could not be clearly answered either. The case law analysis should provide some clarification in this respect. Comparative interpretation seems to play an important role in the context of the ECtHR, while teleological interpretation seems to be important in the context of the CJEU. Chapters 11 and 13 will test these theoretical assumptions. A clear understanding of how evolutive interpretation is established will also help reduce the criticism that has been voiced against this interpretative principle.

CHAPTER

8

PRINCIPLE OF AUTONOMOUS INTERPRETATION

The final theoretical analysis will be devoted to autonomous interpretation. Auto- nomous interpretation has been explained in Chapter 4 as interpretation that is inde- pendent from the meaning granted to terms and notions as contained in international texts or in domestic law. Just like the principle of evolutive interpretation, autonomous interpretation is one of the general interpretative principles that derives from a meta- teleological approach to the treaty in question. This means that the object and purpose of the treaty structure as a whole can be said to warrant an autonomous approach.1

As a result the reasons for adopting an autonomous approach could differ slightly per treaty, depending on the specific object and purpose of each particular treaty. Both the question what autonomous interpretation means exactly and on what basis this principle of interpretation is invoked will be discussed in this chapter.

An important difference can be noted between autonomous interpretation and the other interpretative aids discussed in this thesis. Autonomous interpretation is a concept that is mainly developed in case law and which has not been the subject of much theoretical debate. As a result, the general theoretical discussion on this interpretative principle in this chapter is rather limited. In addition, while for the other interpretation methods and principles national theoretical discussions proved relevant, this is different in the context of autonomous interpretation. Autonomous interpretation inherently appears to be a phenomenon that is not particularly relevant in national constitutional interpretation. After all, it is clear from the definition provided that it concerns interpretation that is independent of the interpretation accorded to a term in domestic law. This already indicates that such a principle can hardly be relevant at the national level. The focus of this chapter therefore will be on the role of autonomous interpreta- tion before the supranational courts and, as far as any materials are available, on the theoretical discussion on the principle in international law.

The objective of this chapter is to see whether it is possible to get a better under- standing of how autonomous interpretation can be established in theory, and to determine which questions and hypothesis can be formulated for further investigation in the case law of the court. This chapter will focus on the question what methods of interpretation may help the courts to establish an autonomous interpretation and

1 Lasser (2004), p. 208.

Chapter 8

in what situations autonomous interpretation can be used. These and other remaining questions will subsequently be addressed in more depth in the case law analysis. 8.1 AUTONOMOUS INTERPRETATION AND INTERNATIONAL LAW

Since autonomous interpretation mainly plays a role in the context of international law, it is interesting to see if any (theoretical) foundations for the use of this inter- pretative principle can be found at the level of international law. The logical starting point to search for such foundations is the Vienna Convention. Indeed, two bases for autonomous interpretation can be found in the Vienna Convention. Firstly, Section 4 of Article 31 of the Vienna Convention, which contains the general rules on treaty interpretation, provides that, in exception to the general rule that the ordinary meaning of a specific term must prevail, a ‘special meaning’ may be attributed to a term if the parties so intended.2_{The ‘special meaning’ could in the interpretation process}

for the ECtHR and CJEU exist in the attribution of an autonomous meaning. The indication that the parties intended such a special meaning can, for example, be found in the object and purpose of a treaty. The second justification can be found in an article unrelated to interpretation, namely Article 5 of the Vienna Convention. This article provides that when interpreting the constituent instrument of an international organization or any treaty adopted within an international organization, the special rules of this organization may be taken into account.3_{Within the context of the EU}

and the European Convention this allows for an autonomous approach to interpretation. Various authors have emphasized this second justification as an important basis for autonomous interpretation within the Vienna Convention.4_{However, regardless of}

the relative importance of either of these bases, it is clear that they do not contradict or exclude each other. Rather, they can be seen in combination, thus constituting a proper justification for developing a general principle of autonomous interpretation. In the context of a different type of international treaty than the human rights treaties on which this thesis focuses, attention has been paid to autonomous interpretation as well. Autonomous interpretation is also used in the context of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The situation is somewhat different from the situation before the ECtHR and CJEU. Under the CISG

2 Article 31 § 4 reads: A special meaning shall be given to a term if it is established that the parties so intended.’ See for example, Aust (2000), p. 204.

3 Article 5 of the Vienna Convention reads: The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.’

4 See most importantly: Ganshof van der Meersch (1988), p. 205. See further: Vande Lanotte (2005), p. 186; Matscher (1993), p. 71; Kastanas (1996), p. 344.

Principle of autonomous interpretation

there is no supranational court to address interpretative matters, so interpretations have to be provided by national courts. This might create the risk of divergent inter- pretations of the treaty provisions, since there is no single body responsible for giving a clear and autonomous meaning to their text. For that reason, some authors have argued that in the context of the CISG the solution to guarantee an autonomous interpretation would be to establish a supranational court.5_{To a certain extent, this}

seems to be of little help for the present discussion, of which the focus is precisely on autonomous interpretation at supranational courts. However, the desire to create a supranational body may be considered to express the general need for autonomous interpretation of treaty provisions in order to avoid divergent case law and divergent interpretations on the domestic level. Autonomous interpretation in this context is strongly motivated by a wish for uniformity. To that extent, the CISG example may serve to stress the need and the justifiability of using a general principle of auto- nomous interpretation by supranational courts that already exist.

The special character of autonomous interpretation has been stressed by GEBAUER.

While he sometimes refers to the notion as a method of interpretation, he does acknowledge that it has a rather distinct character.6 _{He argues that autonomous}

interpretation is ‘a principle of interpretation that gives preference to a particular kind of teleological and systematic argument in interpreting a legal text’.7_Autonomous

interpretation accordingly is based on the treaty’s own system and objectives. GE- BAUER’Sstatement thus not only stresses the character of autonomous interpretation as a principle, rather than a method of interpretation, but also provides an indication as to how an autonomous interpretation can be established. GEBAUERand others also

indicate that comparative interpretation may play a role in establishing an autonomous interpretation as well.8_{Thus, autonomous interpretation should not be taken so strictly}

as to mean that drawing any inspiration from national legal orders to find a proper interpretation is unacceptable. Although it seems to be accepted that the interpretational result should not be dominated by the interpretation adopted in one of the Member States, DIEDRICHhas suggested that finding some sort of consensus is acceptable under

an autonomous interpretation.9_{In the context of the CISG, for example, autonomous}

interpretation could be based on an analysis of the legal systems of a number of the states that are a party to the Convention. In the case law analysis, the question as to whether in the context of the CJEU and ECtHR the same understanding of establish- ing autonomous interpretation can be found will be further explored.

5 See Gebauer (2000), p. 684; Diedrich (1996), p. 336. 6 Gebauer (2000), p. 684 & p. 687

7 Gebauer (2000), p. 687.

8 Gebauer (2000), p. 690; Diedrich (1996), p. 324. 9 Diedrich (1996), p. 324.

Chapter 8

8.2 EUROPEANCOURT OF HUMANRIGHTS

The meaning of the principle of autonomous interpretation has already been discussed in Chapter 4 together with the justification provided for the use of this interpretative principle. The aim of the present chapter is not to duplicate that discussion, but rather to elaborate on the different types of autonomous interpretation. Moreover, the aim is to try to answer the question when the ECtHR will use the instrument of auto- nomous interpretation, how it can establish autonomous interpretation and what kind of criticism has been directed at this form of interpretation.

Before addressing these questions it is important to clarify one aspect of autonomous interpretation, namely its relation to the margin of appreciation doctrine. Often these two instruments are considered as each other’s opposites, since autonomous interpreta- tion seems to be inspired by a desire for uniformity, whereas the margin of appre- ciation is expressly intended to enable the Court to respect national differences, and to allow for divergence and variety in the national protection of fundamental rights.10

The two instruments, however, have clearly different functions in the adjudication process of the ECtHR. Autonomous interpretation, as implied by the terminology, is a concept used in the interpretation process and concerns the applicability of Convention rights to the facts of the case presented to the Court.11_{The doctrine of}

the margin of appreciation, on the other hand, plays a role in the process of establish- ing whether a certain right has been violated and in assessing the justification that