Metalinguistic interpretation

Within the category of metalinguistic methods, the CJEU resorts to teleological or systematic interpretation (or a combination of both) for different purposes. Metalinguistic methods sometimes help confirm a literal interpretation. On other occasions, literal interpretation turns out to be insufficient and the CJEU needs to move forward to teleological-systematic interpretation. In other cases, when faced with a problem of interpretation, the CJEU resorts directly to a teleological-systematic interpretation. We detail the metalinguistic methods as follows:

M2.1. Not only the wording but also the context/scheme and objectives

The CJEU regards the wording but also examines the purpose and the general scheme. This method equals Derlén’s

‘reconciliation and examination of the purpose’.

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M2.2. Directly

teleological-systematic interpretation

When faced with a divergence, the Court affirms that it is settled case-law that the different language versions of a Community text must be given a uniform interpretation and hence, in the case of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part. This method would be included in Derlén’s ‘radical teleological’.

M2.3. Directly

teleological or systematic interpretation

In these cases the CJEU does not even mention the literal interpretation. It either invokes the purpose/objective or the general scheme/context. The difference with M2.2. is that in M2.3., the Court applies a teleological interpretation but does not use the formulae ‘in the case of divergence […]’.

M2.4. In the light of the C-372/88 Cricket St Thomas in ‘reconciliation and examination of the purpose’, and C-149/97 Institute of the Motor Industry in sole basis for interpretation or be made to override the other language versions’ and that in case of divergence it is necessary to look at the purpose and general scheme. In some cases the CJEU claims that the scope of a provision cannot be determined solely ‘on the basis of textual interpretation’. On other provision it sometimes repeats that terms can acquire a special

163 meaning in the EU context: terms of a provision of EU law which make no express reference to the law of the Member States for the purpose of determining its meaning and scope must be given an independent and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the objective of the relevant legislation.

M2.7. Usual meaning in everyday language

Sometimes the CJEU has to decide on certain terms that are not defined in the legislation. The CJEU has stated that the scope of terms that are no defined must be determined by reference to the general context in which they are used and their usual meaning in everyday language.

M2.8. Real intention of the author

The CJEU has affirmed that it is impossible to consider one version of the text in isolation but it is necessary to consider the real intention of the authors and the aim they seek to achieve, in the light of the versions in all languages.

M2.9. Flexible

interpretation

In some cases, the linguistic divergence has been treated in a previous judgment and the CJEU states that it has given the concept or expression a sufficiently flexible interpretation in keeping with the objective of the legal instrument.

M2.10 Literal + historical + contextual + teleological

In a few cases the CJEU has combined all methods to clarify the question at issue.

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165 CHAPTER 5: PURPOSE OF COMPARISON

Chapter 5 delves into the different examples, dividing the cases into three groups according to the purpose of comparison:

Group 1: Hard cases — divergences treated as a problem of interpretation Group 2: Soft cases — divergences not treated as a problem of interpretation Group 3: No divergences but comparison is used as a tool

In requests for a preliminary ruling, we note whether divergences appeared at early or late stages. Special attention is paid to the methods of interpretation the CJEU applied in each group.

Hard cases (G1) refer to divergences that the CJEU treats as a problem of interpretation that needs to be solved. Soft cases (G2) include divergences that the CJEU admits but which are not treated as a problem; they are often ambiguities that the CJEU removes quite easily by referring to other language versions or by examining the wording. It must be emphasised that a distinction between hard cases (Group 1) and soft cases (Group 2) is not always clear. As Bengoetxea recognises when distinguishing between ‘hard cases’ and ‘clear cases’, ‘there is an area of penumbra where the distinction loses explanatory force’ (1993:182).

Moreover, some cases deal with hard and soft issues. In spite of these difficulties, we propose a systematisation of the cases, especially analysing the method of interpretation applied and resorting to the Opinion of the Advocate General whenever it is available. In the third group (G3), the cases do not deal with any divergences; comparison is used to support an interpretation or to argue that all language versions converge in a single meaning.

From the selected period (01/01/2007-30/06/2013), and applying the criteria detailed in section 4.1.1., we have analysed a total of 136 judgments: ninety-three requests for a preliminary ruling, ten actions for failure to fulfil an obligation, nineteen actions for annulment, one case of compensation for damage, one case of an action addressed by the Civil Service Tribunal and eleven Appeals.²³³ These 136 judgments are distributed in the three groups as shown in the following chart:

233 Appeals include actions brought against decisions of the Board of Appeal of OHIM.

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If we look at the requests for a preliminary ruling, almost half of the cases deal with problematic divergences (fourty-six):

In actions for failure to fulfil an obligation, most of the cases (seven) do not deal with any divergence (Group 3) and there are three cases in Group 1:

Figure 6: Total judgments analysed distributed among the groups

Total: 136

93 Total:

Figure 7: Requests for preliminary rulings distributed among the groups

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Similarly, in actions for annulment, most cases also fall into Group 3 (ten). However, there are some cases of problematic divergences and a few unproblematic divergences:

The action for compensation for damage is in Group 2 and the case addressed by the Civil Service Tribunal in Group 1.

Finally, most appeals fall into Group 2 (seven), a few (three) into Group 3 and one into Group 1:

Figure 9: Actions for annulment distributed among the groups

Figure 8: Actions for failure to fulfil an obligation distributed between the groups

10 Total:

Total: 19

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5.1. Group 1: Hard cases — divergences treated as a problem of interpretation 5.1.1. Requests for a preliminary ruling