The use of comparative reasoning by courts, particularly for interpreting fundamental rights, has been steadily increasing around the world.²³ As Christopher McCrudden asserts, ‘It is now a commonplace in many…jurisdictions…for courts to refer extensively to the decision of the courts of foreign jurisdictions when interpreting human rights guarantees.’²⁴ The growing use of comparative reasoning in judicial interpretation is regarded as a part of a larger phenomenon: the globalization of the practice of modern constitutionalism.²⁵ Yet, as the use of comparative reasoning has been expanding, both the legitimacy and efficacy of this method have raised some concerns. There is an open debate about the appropriateness of using comparative reasoning in judicial interpretation,²⁶ particularly in the domain of constitutional law.²⁷

1.2.1 Arguments supporting comparative reasoning

Some academics have sought to justify the use of comparative reasoning or, at least, to describe the normative justifications offered by courts when they use it. Comparative reasoning might be used in different ways, and the question of legitimacy might be different for each of these uses.²⁸ Basically, foreign sources might be advanced, first, as an independent argument for the interpretation of domestic law. In this vein, a reason to interpret that a specific constitutional right means X is that courts in a foreign system interpreted an analogous right to mean X.²⁹ This is not to say, however, that foreign interpretations are binding as precedent. Instead, the fact that these (p.148) interpretations are authoritative in a foreign state is regarded as a reason to attribute the same interpretation to a domestic right.³⁰ These are called ‘authority-based comparisons’.³¹ Additionally, foreign sources might also be used in a ‘non-authoritative’ way to enlighten the interpreter by providing information about foreign constitutional experiences,³² or to better ascertain the traditional methods of interpretation.³³ The reasons provided by the literature supporting the use of authority-based comparisons are basically the following:

1. 1. Genealogical. The use of foreign sources might be justified when there is a relationship of descent and history between the constitutions of different legal systems. Sujit Choudhry explains how ‘those relationships are sufficient justification to import and apply entire areas of constitutional doctrine’.³⁴ This author distinguishes genealogical relationships from genetic relationships. A genetic relationship exists when one constitution influences the framing of another, whereas a genealogical relationship ‘describes a rather different phenomenon literally, the birth of one constitutional order from another’.³⁵ Understood in the latter, the reach of this mode of comparative reasoning would be very limited in its scope. Indeed, a mere genetic relationship might be regarded as a good reason to borrow foreign constitutional law, even though it does not provide such a strong basis for justifying authority-based uses of comparative law.

2. 2. Procedural. According to a ‘procedural argument’, there are reasons to borrow from other constitutional democracies since these polities follow procedures set to guarantee the fairness of outcomes. As Jens Danmann put it, ‘If one assumes that democratic and legal procedures meeting a certain standard of fairness are apt to lead to desirable laws, then…the fact that a variety of such procedures have produced a certain rule can indicate the desirability of this rule’.³⁶

(p.149)

3. 3. Universalist. The use of comparative reasoning might be justified on the basis of natural law.³⁷ The argument for comparative reasoning premised upon natural law assumes that there is a universal standard of justice and that all legal systems are aimed at interpreting legal provisions according to this universal standard. Therefore, if several countries have adopted the same interpretation, there are reasons to adopt it as an approximation to the universal standard of justice.³⁸ This justification is, nonetheless, highly contested, in part because the existence of natural law is controversial and clearly opposed by cultural relativists.³⁹ Even if the existence of natural law were accepted, empirical convergence would not necessarily imply that the outcome approximates the content of natural law,⁴⁰ as multiple examples demonstrate, such as the widespread legal discrimination of women over time around the world.

The most common underlying justifications for non-authoritative uses of comparative law are the following:

1. 1. Legal innovation. To consult the law of other systems might provide new insights and ideas to interpret one's own law.⁴¹ Foreign experiences enrich and broaden our horizons. Comparative reasoning might help to see one's own law in a new light and to reach outcomes that would not have been possible otherwise.⁴² In this vein, knowledge of foreign interpretations might be a source of legal innovation.⁴³

2. 2. Self-understanding. Engaging in comparative analysis might help to better understand one's own constitutional system.⁴⁴ In the words of Choudhry, ‘Courts identify the normative and factual assumptions underlying their own constitutional jurisprudence by engaging with comparable jurisprudence of other jurisdictions.’⁴⁵ This use of comparative reasoning might show striking similarities with underlying constitutional principles of other systems and then favour the reception of foreign interpretive outcomes. Conversely, it might contribute to an (p.150) awareness of constitutional distinctiveness.⁴⁶ In any event, comparative constitutional interpretation is an ‘important stimulus to legal self-reflection’,⁴⁷ which contributes to self-understanding.

3. 3. Avoiding failure. Knowledge of foreign constitutional experiences might help to avoid others’ mistakes.⁴⁸ In this case, engaging in comparative reasoning provides information about failed constitutional schemes and thus borrowing is avoided.

1.2.2 Objections to comparative reasoning

The fact that the sources of interpretation are external to the interpreter's own legal system casts doubts about the legitimacy and effectiveness of the comparative method for interpreting fundamental rights.⁴⁹ There are normative and pragmatic reasons against the use of comparative reasoning as a method of judicial interpretation. The first objection applies to authority-based uses of foreign sources. The rest might apply to both.

1. 1. Democracy as popular sovereignty. The use of foreign judicial opinions on the basis of their authoritativeness in the country of origin for the interpretation of one's own constitutional rights gives rise to a democratic concern from the perspective of popular sovereignty. According to this principle, law's legitimacy is ultimately derived from the ‘people’. Arguably, interpreting constitutional clauses according to what foreign legislators and courts have decided detracts from this principle.⁵⁰ Underlying this argument, there is a notion of popular sovereignty that conceives the constitution as the expression of the values and commitments of a certain national community (‘the people’). It is incompatible with this principle to interpret the content of one's own constitution according to the views expressed by ‘other peoples’. To put it differently, the choices and values of others cannot be imposed upon a national people through the constitution.⁵¹ The use of foreign sources to give meaning to (p.151) constitutional provisions betrays the promise of a democratic constitution: self-government by the people.⁵²

2. 2. Irrelevancy. It has been argued that foreign sources, if not illegitimate, are irrelevant to the interpretation of one's own constitution. Constitutions encapsulate the values of a particular society and are inextricably interwoven with the political and social context in which they operate; therefore, the argument goes, the experience of other nations says little or nothing of relevance about one's own constitution.⁵³

3. 3. Constitutional identity and culture. What is worse, reliance on foreign law might hinder the development of a national constitutional identity and culture.⁵⁴ For a constitutional culture to develop, constitutional law ought to be experienced as a unique and final source for the resolution of conflicts.⁵⁵ The emergence and promotion of one's own constitutional identity is hindered if courts constantly refer to foreign systems for the interpretation of constitutional law.

4. 4. Arbitrariness. Also, scholars have voiced concerns regarding the arbitrary use of comparative reasoning. Judges have been accused of ‘cherry picking’ the jurisdictions from which they cite, so that the ‘jurisdictions chosen will be those which are likely to support the conclusion sought, leading to arbitrary decision-making, not legitimate judging’.⁵⁶ As such, it has been claimed that the use of comparative law is result-driven. Once the court has reached a decision about the meaning of the right to be interpreted, it will look for those jurisdictions that reached the same conclusion to support that interpretation. There are no clear criteria about which countries should be consulted and with what consequences.

5. 5. Misunderstanding. Additionally, there is a risk of misunderstanding when consulting foreign sources. There are several reasons that make (p.152) it difficult to fully understand foreign norms, from language barriers to cultural differences. It is easy to misrepresent the purpose or meaning of a foreign principle.⁵⁷ The true understanding of a foreign legal system ‘requires knowledge not only of the foreign law, but also of its social, and, above all, its political context’.⁵⁸

6. 6. Transplantation. Furthermore, even if foreign law is correctly appraised, there might be yet another difficulty in transplanting a particular legal norm to a different legal order. Certain legal concepts might work in a given system, but not in others.⁵⁹ As Mirjan Damaska has metaphorically put it, ‘The music of the law changes…when the musical instruments and the players are no longer the same’.⁶⁰

7. 7. Preponderance of internal sources. Finally, the comparative law method is seen as illegitimate if it contradicts the interpretive results reached through other methods that make use of domestic sources, such as text or history. At most, comparative reasoning is recognized to have a purely auxiliary use.⁶¹ Thus, the use of the comparative method should be limited to cases in which the traditional methods have failed. The comparative method should be discarded, however, if the interpretive outcome contradicts the one reached on the basis of any of the traditional methods of interpretation.

It is not the aim here to offer a general theory demonstrating the legitimacy of comparative reasoning as an independent method of interpretation. Instead, an argument justifying the (even authority-based) use of comparative law by the ECJ for interpreting EU fundamental rights on the basis of state constitutional law will be articulated. Indeed, it will be shown that this is an adequate method to give reasons for the interpretation of EU fundamental rights. Furthermore, it will be argued that the EU supranational nature and the particular framework in which judicial interpretation takes place change the premises underlying the foregoing arguments against the comparative method.

(p.153) 1.3.1 Justifying the comparative method

The justification of any judicial interpretation requires giving reasons. The methods of interpretation indicate the kinds of reasons that should be given to justify the attribution of meaning to a text, according to the corresponding sources. As shown above, there are several methods of interpretation. They do not indicate unambiguous results, and sometimes they lead to contradictory interpretations. Despite the efforts to reconcile and rank them, there is no widespread agreement within scholarly literature about how to choose among them.⁶² The choice of a concrete method of interpretation (and the correlative sources) as opposed to another method usually depends on the grounds for the legitimacy of judicial adjudication in the broader constitutional-political system, and also on the kind of law being interpreted.⁶³ The claim here is that given the supranational nature of EU fundamental rights and the view of dialogue as providing the grounds for the normative legitimacy of ECJ adjudication, the comparative analysis of state constitutional law provides the most adequate reasons to justify the attribution of meaning to EU rights. Comparative reasoning as a method for interpreting fundamental rights complements and follows the dialogic model delineated in the previous chapter. Comparative reasoning allows continuing the dialogic ideal in the process of interpretation that takes place within the ECJ, and enhances the same values underlying dialogue: participation and the reasoned-quality of the decisions. First, comparative reasoning furthers participation since it brings as many viewpoints as possible to the interpretive process. Also, the comparative method might contribute to overcome limitations to direct participation by bringing the views of member states not directly intervening in the proceedings before the Court. By welcoming participation and assessing a variety of viewpoints stemming from diverse political and social values judicial decision-making itself becomes a form of collective deliberation.⁶⁴ Second, the ability to gather diverse approaches in the process of interpretation enhances the quality of the decision. Being aware of competing viewpoints enlightens the ECJ and allows for innovative decisions, tailored to the specific needs of this supranational community. Also, problems of particular interpretations might be detected. As asserted, the comparative method is justified on the basis of the (p.154) ‘enhanced quality of the decisions resulting from the likelihood that cross-national research will either turn up potential errors in and problems with a particular legal solution or open the door to innovation based on a wider range of potential models’.⁶⁵

In this context, a sort of genealogical argument might have some bite regarding the choice of sources and method in the EU. Since EU fundamental rights are rooted in state constitutional rights, interpretation according to these sources is warranted. This relationship is confirmed by article 6.2 EU Treaty,⁶⁶ which consecrated judicial doctrine. This is not to deny the autonomy of EU fundamental rights. The ECJ has insisted that state constitutional rights are not binding upon EU institutions. This simply means that state constitutional rights cannot determine the validity of EU law, but not that the ECJ may ignore them in ascertaining the meaning of supranational fundamental rights. Indeed, the ECJ has recognized that it is ‘bound to draw inspiration’ from the constitutional traditions common to the member states.⁶⁷ As Weiler asserted, ‘The constitutional traditions of the Member States are the obvious place to seek this inspiration…because it will be there that one may be able to find a European content to human rights.’⁶⁸ In this way, the ECJ interpretive freedom to build supranational, common rights would be partly constrained by the constitutional understandings of the members (and creators) of this supranational community. A further reason that justifies the consultation of state constitutional law is the fact that all member states are constitutional democracies (procedural argument). All member states have set internal procedures to guarantee the protection of rights. Almost all recognize the power of judicial review of legislation, usually centralized in a constitutional court. This does not mean that there are no failures of protection. Given these internal checks and balances, however, if a majority of states coincide upon a specific interpretation, there are good reasons to adopt the same interpretation at the supranational level.

(p.155) From a more pragmatic perspective, inter-state comparisons facilitate the elaboration of interpretations that can be extended to the community as a whole.⁶⁹ The interpretation that the ECJ reaches in a certain case is going to be applied not only to that case, but also to future cases involving other states. Being aware of diverse national sensibilities and essential moral and political values would allow the ECJ to foresee the implications of a particular interpretation for the several states and to strive for a synthesis that all could assume. Thus, the use of this method would contribute to the avoidance of conflicts. Former Justice Pescatore affirms that thanks to the comparative analysis of national constitutions, it is possible to give response to two exigencies: the development of solutions adapted to the needs and logic of building the European community as well as the avoidance of conflicts with the constitutional rules of particular states.⁷⁰

1.3.2 Responding to general objections to the comparative method

Academic literature tends to refer to the phenomenon of comparative reasoning very broadly. The use of foreign decisions in judicial interpretation, however, can occur in very different settings and with different degrees, functions, and purposes.⁷¹ In the EU, the ECJ is not just borrowing from a foreign legal system to interpret rights of a separate system. The ECJ interprets supranational rights that, in turn, are binding upon the state legal systems that provide the sources of interpretation. In addition, the legal systems consulted are not totally foreign since member states are the constitutive parts of the EU. Given the particular political structure in which comparative reasoning takes place, the general objections formulated above become inapplicable.

Foreign sources are regarded by some as illegitimate because in a constitutional democracy all authority is derived from the people. Therefore, the argument goes, state constitutional rights should not be interpreted according to the will of other nations. In the EU, however, there is no single ‘European people’. To the contrary, this is an overarching community embracing a plurality of European ‘peoples’. Given the supranational nature of EU fundamental rights, these rights should reflect the common understanding of the European peoples. In this context, the democratic objection to authority-based comparisons fades away. Also, reliance on state constitutionalism for the interpretation of EU rights would not undermine the (p.156) development of a European constitutional culture. Indeed, a European constitutional culture should develop from the member states. This is not to say that it should replicate national constitutional cultures, which would not be possible because each member state enjoys its distinctive culture. At the same time, the EU supranational community encompasses its own values and interests. National and supranational constitutional cultures influence, one another in a process of dialogic interaction.

Moreover, the relevancy of member states’ constitutional laws as the sources for shaping EU rights becomes evident since the states are the constitutive parts of the supranational community whose common values are being defined. State constitutional sources do not properly belong to the EU legal system, but they are not purely ‘foreign’ either since they are found within the state legal orders constituting the EU. Furthermore, national and supranational courts participate in a broader common project of integration.⁷² This does not mean that the ECJ cannot consult other legal systems, but those sources do not carry the same relevance for the interpretation of EU rights as state constitutional law.⁷³ Because the relevant systems are those of the member states, there are some guidelines to control the arbitrary use of the comparative method. If the ECJ arbitrarily picked those jurisdictions that favoured a certain interpretation, while ignoring others, state courts from those states would have reasons to challenge those interpretive outcomes. In this guise, the dialogic framework provides state courts with a check upon the arbitrary use of the comparative method.

Although the risk of misinterpretation does not disappear in the EU, it can be significantly reduced thanks to the dialogic framework. In the event of misinterpretation in a certain case, state courts are encouraged to speak to the ECJ. As has been observed, state courts might re-submit a question to the ECJ, or courts from other states could provide further information to the ECJ in future preliminary references. Moreover, state governments may also provide information in the process before the ECJ. In addition, the same composition of the ECJ might contribute to avoid misinterpretations since (p.157) there is one judge from each member state. Former ECJ Justice Everling declared: ‘Each Judge has the important function of introducing the legal thinking and basic concepts of the Member State to which he belongs into the Court's consideration. Each Judge must also ensure that the decision and the reasoning on which it is based are expressed in such a way that they may be understood in his home country.’⁷⁴ The dangers of transplantation do not purely disappear either, since the interpretation given to a particular right within a member state might not work in the EU legal system, in which other interests and values might need to be balanced. Comparative analysis, however, does not entail automatic borrowing from another system. Rather, it offers the possibility to get to know and compare different solutions given by different member states to the same problem. The shortcomings or benefits of different interpretations can be assessed in light of the needs and goals of the EU legal system itself. In this way, the scope of protection granted to EU rights can be adapted to the structure of the EU.

Finally, should the EU Charter of fundamental rights enter into force, it would make available some of the traditional methods of interpretation, such as text or intent. Until the drafting of the Charter (2000), still deprived of binding force, there was no written catalogue of rights in the EU. Hence, the textual method lacked its source. For the same reason, original intent was not available either. Also, since there is no single and unitary European civil society, social understandings might vary across the states. The dynamic method would need to be applied by means of a comparison of the diverse cultural and social understandings. The drafting of a written catalogue of rights for the EU might have been regarded as creating the opportunity to cut the umbilical cord linking EU rights and state constitutionalism. Instead, the text of the Charter explicitly acknowledges, and even emphasizes, the role of constitutional traditions as sources for interpreting EU rights (article 52.4).⁷⁵ Some authors argue that the Charter could actually increase the influence of state constitutional traditions.⁷⁶ Ultimately, even (p.158) if the Charter were granted legal force, after the eventual ratification of the Lisbon Treaty, this would not justify abandoning state constitutional law as a relevant source for interpreting EU rights.

In sum, the general objections to comparative Constitutional Measuring do not seem to be applicable in the EU context. This is not to say that state constitutional rights are binding at the supranational level, but that the ECJ should justify the interpretation of EU fundamental rights by referencing them.⁷⁷ At the same time, this does not mean that EU rights must replicate state constitutional rights. In the process of synthesizing different approaches, the ECJ might come up with innovative solutions better adapted to the EU legal system. In any case, a bottom-up construction of the meaning of EU fundamental rights, on the basis of a cross-national comparison of state constitutional law, is responsive to the supranational nature of these rights and the legitimacy of the ECJ's adjudication within the EU pluralist structure.

The use of comparative law in the EU context has prompted a discussion about the standard of interpretation that the ECJ should follow when faced (p.160) with divergent state interpretations. It will be concluded that neither lowest nor highest standard models provide satisfactory answers and they should not be pursued.⁸⁵

2.1.1 Lowest common denominator

One available option is to establish that EU rights should be interpreted according to the lowest common denominator for all states. Let us imagine, for example, that the lowest common denominator is X. Hence, all states would agree that, at least, a specific right protects X. Some states, however, might expand the scope of this right to protect Y as well. If the ECJ mandated X, this standard of protection could fall below the standard of protection granted by states protecting X and Y. Since the ECJ interpretation sets a floor and a ceiling, some states would be precluded from protecting Y when acting within the field of application of EU law.⁸⁶

This approach has been expressly rejected by the scholarly literature and by several ECJ judges. Among the academics, Leonard F. M. Besselink opposed the ECJ's adjudication according to the lowest common standard.⁸⁷ Also, Francis G. Jacobs asserted that the common constitutional traditions’ formula ‘cannot be taken to mean that the Court will apply the lowest common denominator’.⁸⁸ In academic writings, ECJ Justices have confirmed (p.161) that the ECJ does not, and should not, follow a lowest common denominator approach. Former ECJ Justice Rodríguez Iglesias, elaborating on how the ECJ proceeds to define the EU standard of protection, explained that ‘it is clear that this standard is not built upon the basis of a “common minimum standard”?’.⁸⁹ Justice Skouris, in a hearing before the Constitutional Convention in charge of drafting the failed European Constitution, was asked about the ECJ's approach to common constitutional traditions of member states. He stated, ‘It is not the Court's duty to discern, and, as it were, mechanically transpose into the community legal order, the lowest common denominator of constitutional traditions common to the member states.’⁹⁰ The lowest common denominator was clearly ruled out by the drafters of the Charter. The Explanations to the article commanding the use of common constitutional traditions as sources of interpretation (article 52.4) were clear: ‘Rather than following a rigid approach of a “lowest common denominator”, the Charter rights concerned should be interpreted in a way offering a high standard of protection which is adequate for the law of the Union and in harmony with the common constitutional traditions’.⁹¹

2.1.2 Highest standard of protection

An alternative approach to state divergences would require that the ECJ identify the state interpretation that offered the highest level of protection to the individual. This approach is contested in the literature. On the one hand, according to Besselink, if the ECJ interpreted rights according to this standard, this would guarantee an optimal human rights protection, while securing respect for the uniformity and supremacy of EU law.⁹² On the other hand, others reject this approach.⁹³ It is argued that it would be very hard for the ECJ to decide which legal order offers the best level of protection in every case, particularly when several rights conflict with each other.⁹⁴ Even if easily identifiable, the highest level of protection would not necessarily be the most desirable solution at the supranational level. If (p.162) the ECJ followed this approach, it would be captured by the interpretation reached in a particular member state.⁹⁵ The specific standard of protection granted in a particular member state might not be the most suitable in the context of the EU legal order or in other member states.⁹⁶

When article 53 of the Charter, entitled ‘levels of protection’, establishes that ‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights…as recognized…by the Member States’ constitutions’, this could be read as indicating the need to construct EU rights according to the highest standard. In other words, interpreting EU fundamental rights according to the highest national level of protection would ‘not restrict or adversely affect’ constitutional rights. However, compelling the ECJ to identify and apply the highest national standard in each and every case, even if feasible, would hinder the development of an EU catalogue of rights best suited for the community as a whole.⁹⁷ Instead, as further explored below, this article is better understood as suggesting the possibility of being deferential to state courts. As Bruno de Witte once said, ‘It is wise for the Court not to adapt the “maximum standard” of protection but to exercise some judicial restraint in applying fundamental rights’.⁹⁸

2.2.1 Access to sources of interpretation

In order to conduct a comparative analysis, the ECJ should proceed to look into the constitutional laws of the member states. The ECJ might obtain the information needed for an inter-state comparison from several sources.⁹⁹ These sources refer not only to the constitutional law of single states, but some sources also provide the ECJ with extensive comparative law analyses. These sources may be grouped in (i) sources in the domain of the ECJ: Advocate General Opinions, the ECJ Service of Research, and deliberations among judges coming from different countries; (ii) non-judicial actors in procedures before the ECJ: Commission, member state governments, and (p.163) parties; and (iii) judicial actors: state courts and the European Court on Human Rights (ECtHR).

The Opinions of Advocates General (AGS)¹⁰⁰ often carry out studies of national constitutional law in order to interpret EU fundamental rights.¹⁰¹ The ECJ tends to follow AG opinions, although the ECJ rarely brings the comparative analysis to the judgment.¹⁰² For example, in Transocean Marine, ¹⁰³ AG Warner undertook a comparative analysis of all member states law to determine the status of the right to a hearing before the administration takes a decision adversely affecting the individual. He concluded that the right existed in all countries except Italy and the Netherlands, and he recommended that the ECJ embrace it. In spite of not explicitly referring to state constitutional traditions in the judgment, the ECJ enforced this right. In Hauer, ¹⁰⁴ which is often cited by those who accuse the ECJ of selectively and discretionarily choosing certain states,¹⁰⁵ AG Capotorti examined the constitutional laws and the regime of expropriation of all member states to determine the scope of the right to property. In cases regarding the equal protection of transsexuals,¹⁰⁶ the respective AG conducted extensive comparative studies covering all member states.¹⁰⁷ Also, the ECJ has a Service of Research and Documentation comprised of 27 lawyers covering every legal system of the member states.¹⁰⁸ The ECJ often calls upon the Service to carry out comparative studies relevant to cases before the ECJ.¹⁰⁹ Former Justice Pescatore asserted that these studies actually have an influence in the (p.164) decisions, in spite of the lack of any reference in the judgment.¹¹⁰ In addition, the same composition of the ECJ might facilitate the comparative analysis since there is one judge from each member state. As a consequence, there is a diversity of legal traditions represented within the ECJ,¹¹¹ bringing a variety of viewpoints to the discussion. As Kakouris pointed out: ‘The comparative method is underlying in all cases due to each judge's different legal training, knowledge, approach, and reasoning, which reflects the legal system of his country. The deliberations are enriched by the diversity of the contributions made by the judges. The Court's deliberations constitute a living comparative law in action.’¹¹² At the same time, despite the fact that judges come from different legal backgrounds, this does not automatically mean that they engage in systematic comparative law analyses covering all the member states on a regular basis. Moreover, it should be kept in mind that judges usually sit on three- or five-member panels. Thirteen-member panels are convened only when required by the parties or an EU institution, or when the complexity of the case requires it. Plenary sessions are very rare.¹¹³ In any event, even with reduced panels, judges with diverse legal perspectives need to engage in deliberation to reach a decision.¹¹⁴ The deliberative nature of discussions within the ECJ and the Court's diverse composition contribute to comparative judicial reasoning.

Other participants in proceedings before the ECJ might provide information that facilitates the comparative inquiry. Often, the Commission submits comparative law studies, particularly in the course of preliminary rulings.¹¹⁵ Sometimes, the ECJ has expressly asked the Commission to draw up a comparative law study, such as in Miss M. v Commission.¹¹⁶ Justice Pescatore manifested a very positive opinion regarding the Commission's (p.165) contribution in this field. He explained that the Commission is in an advantageous position to elaborate comparative law studies because it has a legal service with lawyers from all member states and, in the course of its function, enjoys broad access to knowledge regarding national legal systems.¹¹⁷ Thus, the Commission's reports are often taken into consideration in the decision-making process.¹¹⁸ As explained in the previous chapter, state governments might also intervene in the preliminary reference. Hence, they may possibly bring information about the scope of protection of the right at stake in that national legal system, as well as about the implications of different interpretations. Although such reports are not necessarily comparative in nature, they offer information to the ECJ to develop inter-state comparisons. Sometimes, comparative studies are submitted, but it is quite rare.¹¹⁹ The parties in the case might also provide arguments based on comparative studies for or against a particular interpretation.¹²⁰ Obviously, they argue from the perspective of their own interests, a fact the ECJ is aware of.¹²¹ For instance, in AM & S Europe,¹²² the ECJ invited the parties and other interveners to submit comparative materials in order to obtain further clarification on questions of comparative law. These materials were discussed in open court.¹²³

State courts, as the main interlocutors of the ECJ through the preliminary reference, might (and should) bring information about the constitutional interpretation of the right at stake in their respective legal systems. Although they do not perform comparative studies, they might refer to other legal systems in submitting their questions to persuade the ECJ. Finally, the European Convention on Human Rights (ECHR) and, more importantly, the ECtHR case law are an important source for finding evidence of comparative law regarding fundamental rights. The ECtHR tends (p.166) to engage in comparative analyses to determine whether there is a European consensus about the scope of protection of a particular right. In the past, the ECJ rarely cited decisions of the ECtHR but presumably did take them into account in reaching a decision. At least, AG opinions and parties’ submissions often refer to ECtHR decisions.¹²⁴ Over time, specific references to ECtHR judgments are becoming more frequent. For instance, regarding the interpretation of the right to equal protection of transsexuals, the ECJ explicitly referred to decisions of the ECtHR that included surveys of national law.¹²⁵ In sum, the availability of all the above sources secures the possibility for the ECJ to get enough information about state constitutional laws to apply the comparative method in interpreting fundamental rights.¹²⁶

2.2.2 Toward synthesis at the supranational level

From these inter-state comparative analyses, the ECJ should derive interpretations adequate for the community as a whole. The ECJ should aim at synthesizing different national sensibilities and approaches and offering interpretations that reflect or might promote a consensus among the states, in the sense that these interpretations can be reasonably accepted. In this context, the notion of consensus does not require an actual pre-existing agreement by all states upon certain interpretations.¹²⁷ In other words, the use of the comparative method does not require that all states agree upon a particular interpretation before it can be legitimately incorporated at the supranational level.¹²⁸ If a majority of states interpret a particular right in a (p.167) certain way, this might be a reason for the ECJ to follow that interpretation. Admittedly, the convergence among states does not necessarily secure better protection. Within the EU, however, all member states are constitutional democracies committed to the protection of fundamental rights, which have established internal democratic and procedural guarantees. Under these circumstances, the fact that a majority of member states converge upon a specific interpretation might indicate the desirability of that interpretation for this supranational community. When it is not clear whether there is an actual majority of states in favour of a particular interpretation, the fact that over time more and more states protect certain rights through domestic reforms can signal an emerging consensus. Given this trend, the ECJ could push it further. As such, comparative analysis would help to identify trends of convergence.¹²⁹ Still, one might ask why a majority or a common trend toward a particular interpretation justifies adopting this interpretation over competing ones held by other member states. The answer has to do with the unique kind of community the EU constitutes. All member states mutually recognize and respect each other as participants of this common project of integration. After all, they are part of an overarching community immersed in the process of defining itself. Part of this process entails engaging in a search for common principles and establishing common rights at the supranational level. There cannot be an absolute equivalence between state and EU rights in all cases. On certain occasions, some states will have to accept an interpretation they do not prefer. The dialectical framework ensures the possibility for all to participate in the interpretive process. Hence, all participants are allowed to submit their views and to challenge those of others. The ECJ, which is committed to building the rule of law for this supranational community, should reveal how varying perspectives are systematically considered and how the interpretive outcome is reached in order for this outcome to be regarded as reasonable and justifiable.¹³⁰

To be clear, the comparative method should not be understood as limited to identifying a common interpretation to a majority of states. It should be aimed at better understanding the values informing the meanings (p.168) attributed to fundamental rights across the states. This inter-state comparison would help to transcend superficial differences and to strengthen common understandings, while fostering an in-depth appraisal of pervasive particularities.¹³¹ In this way, the ECJ should seek to capture elements of commonality and assess elements of divergence in order to articulate an interpretation that reflects a synthetic understanding. This interpretive outcome will not necessarily be identical to the law of any particular state. As the comparative analysis brings different viewpoints to bear, it allows for combining national and supranational approaches and arrives at innovative solutions appropriate to the EU legal order. As Ulrich Scheuner held, ‘[The comparative method's] object must be to find the rules best suited to express a common tradition and compatible with the structure of the Community.’¹³² On the whole, through the comparative method, the ECJ should consider the scope of protection granted within each state and strive for a synthesis that all states could partly recognize or, at least, reasonably accept.

2.2.3 Judicial self-restraint

Given the supranational nature of the EU system, comprised of a plurality of constitutional polities interpreting their respective fundamental rights, the ECJ should not seek to impose a uniform interpretation in each and every case. On certain occasions, the best way to proceed would be to accommodate diversity by deferring the interpretation of fundamental rights to state courts. Broadly speaking, deference is a doctrine that governs the extent to which courts will exercise their power of review upon state action or will restrain themselves. At the state level, underlying the doctrine of deference is a democratic concern. Given that laws are enacted by the representatives of the people, the power of judges to strike them down should be limited to cases in which the unconstitutionality is clear.¹³³ Otherwise, if different interpretations are permitted under the constitution, courts should refrain from exercising control and defer to the legislative branch. At the supranational level, the doctrine of deference reflects (p.169) a democratic concern as well since supranational courts review decisions taken by democratic states.¹³⁴ The doctrine of deference is well established in the ECtHR case law, known as the ‘margin of appreciation’ doctrine.¹³⁵ Through this doctrine the ECtHR decides upon the scope of discretion granted to state authorities to interpret specific rights. Therefore, this doctrine responds to the adjudicative question (what institution is responsible for defining the scope of rights), rather than the interpretive one (what is the method of judicial interpretation). The use of this doctrine by the ECtHR is very much debated. While some reject its legitimacy, others worry about the lack of coherent application and clear criteria guiding its functioning.¹³⁶ At the same time, it has been pointed out that this is a flexible mechanism that has helped to avoid clashes with member states, while signalling national authorities ‘the risk that particular policies might one day be regarded as violations’,¹³⁷ as the saga of cases regarding the treatment of transsexuals in the UK illustrates. The debate regarding the margin of appreciation within the Convention system might provide some insights to address a judicial policy of deference in the EU. One should keep in mind, however, that since the European Convention and the EU differ in their natures, goals, and institutional structures, the margin of appreciation doctrine cannot be transplanted automatically to the EU. As seen before, the ECtHR interpretation sets a minimum floor of protection that the states can freely improve upon. In contrast, since the ECJ interpretation sets a floor and a ceiling, deference might be granted to allow for higher standards of protection.

With regard to the ECJ's decision-making, the doctrine of deference would indicate when a decision about the meaning of rights is better taken at the state level, as a matter proper for each state community to decide, or when an interpretive decision at the supranational level is required. In the EU legal framework, deference finds a legal hook in the so-called ‘subsidiarity (p.170) principle’. The notion of subsidiarity is elusive.¹³⁸ Basically, in a strict legal sense, it refers to the exercise of powers in spheres of shared competences. When both the EU and the states have powers over a certain subject matter, the subsidiarity principle indicates that the EU shall take action ‘only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the community’.¹³⁹ Article 1 EU Treaty suggests a broader political meaning.¹⁴⁰ This article establishes that decision-making processes should take place ‘as closely as possible to the citizen’.¹⁴¹ In general, this principle speaks to the action of institutions responsible for law-making, namely Commission, Council, and Parliament. Yet, it should be admitted that the ECJ also participates in law-making, broadly understood, through its interpretive decisions. Particularly when adjudicating fundamental rights, the ECJ needs to make policy choices about the scope of its own powers to interpret those rights.¹⁴² Thus, subsidiarity might also speak to the exercise of powers by the ECJ vis-à-vis state courts. Even if the ECJ has jurisdiction, there might be cases in which the interpretive decision would be better taken at a level ‘closer to the citizen’. Indeed, one should realize that when adjudicating fundamental rights, the ECJ is taking decisions about both the substantive meaning of those rights and the scope of its own interpretive and supervisory powers. As further argued below, the Charter seems to confirm the application of the subsidiarity principle in the sphere of fundamental rights. In particular, article 53 might be read as indicating to the ECJ the need of being deferential to the constitutional interpretation held by state courts to avoid ‘restricting or (p.171) adversely affecting’ fundamental rights recognized by the member states’ constitutions.

The case of Omega ¹⁴³ offers a good example to show how the ECJ might accommodate diverse levels of protection deferring to the states the decision about the interpretation of the right at stake. Omega was a German company that operated an installation known as the ‘laserdrome’. This game included hitting sensory tags placed on the jackets worn by players with a kind of laser machine-gun. The German authorities banned this activity because ‘playing at killing people’ was regarded as violating the principle of human dignity. The question that reached the ECJ was whether banning Omega from pursuing this economic activity clashed with the freedom to provide services. The ECJ acknowledged that human dignity was a general principle of law protected within the EU legal order. At the same time, the ECJ realized that this principle did not receive the same level of protection in all member states. Despite the lack of a common understanding about the meaning of human dignity, the ECJ admitted the possibility for German authorities to restrict the basic freedom to provide services in order to secure the constitutional standard of protection.¹⁴⁴ The ECJ held that the fact that other member states did not recognize such a broad scope to this right did not preclude Germany from doing so. At the same time, the ECJ did not adopt the more protective German standard of protection for the EU legal system. In sum, the ECJ restrained itself from setting the interpretation of this right for the whole community and accommodated diversity.

On other occasions, the ECJ has deferred the application of the proportionality test to state courts. The proportionality test might be applied to decide whether a measure constraining a basic freedom of movement (or a (p.172) fundamental right) is justified. It is usually applied in cases in which a conflict exists between a fundamental right and a basic freedom of movement. In particular, the ECJ has applied the proportionality test to decide whether state measures enacted to protect fundamental rights were compatible with EU basic freedoms of movement.¹⁴⁵ The proportionality test asks whether the contested measure is adequate to achieve the goal pursued and whether there are less restrictive means for free movement (or a conflicting fundamental right) in achieving this goal. Arguably, there might be reasons to defer the specific application of the proportionality test to state courts.¹⁴⁶ State courts are closer to the facts of the case and may reach a more accurate decision. Also, this would be less intrusive to state autonomy and might avoid conflicts in cases in which state measures protecting constitutional rights are at stake. The ECJ could specify the interests to be balanced and even lay down some guidelines for the performance of the proportionality test, while allowing national courts to decide about the scope of protection granted to the specific right in the case at hand. This was the case in Familiapress, ¹⁴⁷ arising as a consequence of the banning of a German magazine in Austria. The reference brought to the ECJ questioned whether an Austrian law containing a general prohibition on offering consumers free gifts linked to the sale of goods or the supply of services was compatible with free movement of goods and free speech. The Austrian Government alleged that this statute was intended to protect press diversity. The ECJ argued that in order to determine whether the Austrian statute was justified on the grounds of protecting press diversity (as a form of free speech), the proportionality test (p.173) had to be applied regarding the restriction of both free movement of goods and free speech (since there was a claim of free speech on both sides). The ECJ offered several criteria that had to be taken into consideration in order to perform the proportionality test, but the ECJ deferred the decision to the state court.¹⁴⁸ Note that, in this case, the ECJ left the decision about the compatibility between the state measure protecting press diversity and EU law to the domestic court whereas in Omega, the ECJ did decide about the compatibility between dignity and the free provision of services. As Seen before the ECJ ruled that restricting the freedom to provide services in order to protect human dignity was justified.¹⁴⁹ In both cases, the ECJ admitted that, as long as the principle of proportionality was met, free movement might be limited in order to protect fundamental rights, according to the constitutional level of protection. The difference is that, in Omega, the ECJ also ruled that the proportionality test had been fulfilled, while in Familiapress the ECJ left the final decision to the domestic court. On the whole, in both cases, the ECJ accomodated to a higher level of constitutional protection, instead of setting a uniform interpretation for the whole community.

(p.174) It is not clearly established which criteria should guide the ECJ in the exercise of deference (and the degree of deference might vary). Since the doctrine of deference refers to the level of government at which decisions should be taken, the criteria to guide a judicial policy of deference might derive from the underlying EU structure, ie, the overall distribution of authority between the national and supranational systems. Additionally, from a substantive standpoint, given the potential conflicts between standards of protection, deference could also be an instrument for the ECJ to allow for higher constitutional standards of protection, without imposing that standard to the whole community, in the line of Omega .¹⁵⁰

With regard to the overall distribution of power, the doctrine of deference needs to take into account the scope of judicial and legislative powers¹⁵¹ allocated to EU institutions, vis-à-vis member states.¹⁵² The scope of the ECJ's power to review state action under EU fundamental rights is obviously limited by its own jurisdiction. According to established judicial doctrine, state acts bound by EU rights are those falling ‘within the field of application of EU law’. The determination of the boundaries of the ‘field of application of EU law’, however, is itself a matter of interpretation.¹⁵³ Given the generality of this formula as well as the overarching nature of EU law, a broad range of state acts might fall under it, even when the states exercise their own residual powers.¹⁵⁴ Hence, when the state measures under review do (p.175) not directly implement EU law or do not have a cross-frontier nature, there are justifiable reasons for being deferential to state courts. In these circumstances, the efficacy of EU law within the territory of the states would not be significantly undermined and the values of self-government, constitutional identity, individual liberty, and experimentation might be enhanced. States should enjoy more autonomy when further away from the core of EU law. For example, in Abrahamsson,¹⁵⁵ the case regarding a Swedish affirmative action measure concerning certain professors’ and research assistants’ posts, the ECJ might have deferred the decision about the compatibility of this measure with the equality principle to state courts. That measure did not directly implement the EU directive on equal treatment of men and women, nor did it have a cross-frontier nature. Moreover, the state was exercising its own powers to regulate appointments to state public posts, which, in principle, do not directly implicate EU law. Also, the Treaty of Amsterdam had included the following clause: ‘With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers’ (article 141.1 EC Treaty). Hence, accommodating diversity among the states as a result of judicial deference would not have impaired the EU directive on equality in a way that would render it ineffective or threaten the goals of the EU.

Additionally, from a substantive standpoint, the ECJ could defer to state courts the interpretation of fundamental rights to allow for more protective standards.¹⁵⁶ Arguably, as suggested above, article 53 Charter could be interpreted along these lines. Since the Charter was drafted, the interpretation of article 53 has brought about a heated debate. Opinions are divided between those who argue that article 53 excepts or at least weakens the supremacy principle,¹⁵⁷ and those who claim that such an (p.176) exception is inadmissible, since it would endanger the efficacy of EU law and deviates from the framers’ will.¹⁵⁸ The latter conclude that this is an empty clause.¹⁵⁹ An interpretation that would give content to it, without directly clashing with supremacy, would understand that this provision contains a self-restraint mandate to the ECJ in applying the Charter.¹⁶⁰ In other words, the ECJ should defer to state courts if the level of constitutional protection were higher and there were no other rights or general interests that should prevail in the particular case. In this context, judicial self-restraint would allow for diverse interpretations regarding a specific fundamental right.

To sum up, in the process of rights interpretation, the ECJ should pay due regard to state constitutional rights and engage in comparative reasoning seeking a synthesis at the supranational level. Dialogue with state courts and other participating actors helps finding interpretations better accommodated to the community as a whole and gives reasons to follow the ECJ's fundamental rights adjudication, according to the arguments spelled out in Chapter 5—dialogue enhances better-reasoned interpretive outcomes, participation, identity building, and is consistent with the EU pluralist framework. Admittedly, a model of dialogue does not necessarily lead to deference. A supranational court may engage in meaningful dialogue with state courts and still be expected to settle on a uniform protection of human rights across the states. Yet, the same exercise of dialogue within a pluralist framework (Chapter 3), in which the values underlying state autonomy are acknowledged (Chapter 4), may well indicate, on occasion, the appropriatness of deferring to the constitutional interpretation of the right at stake. Deference relates to the way a court exercises its authority. As argued, the relevant criteria for the exercise of deference relate to the overall power structure and the standards of protection.¹⁶¹ In this sense, there are good reasons to defer when (p.177) the constitutional standard of protection is higher and the state measure under review is remotely connected to the field of EU law. Admittedly, these criteria might point in opposite directions. The answer cannot be given in the abstract, but the circumstances of the case will have to be considered. The exercise of self-restraint might contribute to the ECJ's authority building by respecting constitutional diversity.

2.2.4 Articulating the comparative reasoning in the judgment

The legitimacy of ECJ interpretive outcomes would be bolstered if the ECJ expressed the comparative reasoning in the judgment. Otherwise, the failure to articulate with precision the functioning of the comparative method might pose a potential threat to the ECJ's claim to authority. Because ECJ decisions are characterized by their laconic brevity, it might be difficult to see how a particular decision is justified. Instead of such a broad reference to common constitutional traditions, there is a need for a more rigorous approach that systematically discusses the sources and shows how the interpretive outcome is reached. As such, the judicial mode of reasoning articulated in the decision,¹⁶² revealing how diverse constitutional viewpoints are balanced in searching for synthetic understandings, might contribute to the perception of the outcome as a fair one. Along these lines, de Witte stated the following:

[The ECJ] could be less vague about the ‘common constitutional traditions’ by venturing, when a case so warrants, into a genuine comparative evaluation of Member States constitutions; this would make a rejection of arguments taken from the law of just one State more compelling.…Justice must also be seen to be done, particularly in the field of human rights.¹⁶³

Thus, in addition to making use of the comparative method in the internal process of deliberation within the Court, the ECJ needs to show how this method is applied. This is important for enhancing the perception of the outcome as legitimate and for better persuading its interlocutors, particularly state courts. By systematically addressing the competing arguments for the interpretation of a specific right, the ECJ would acknowledge a diversity of viewpoints that often reflect essential societal values. The discussion of the arguments advanced for or against a particular interpretation would allow participants to feel they have been heard. In this way, law would be presented (p.178) as the ‘fabric of a diverse community’.¹⁶⁴ Moreover, making judicial reasoning explicit might also foster dialogue because the Court's arguments could be responded to in future cases.¹⁶⁵ In addition, an explicit and articulate writing of the reasons why certain arguments are adopted or rejected works as a self-check. This might be a corrective measure for preconceptions or misunderstandings.

Nonetheless, others, including several ECJ judges, seem to think there are good reasons to leave the comparative analysis aside. Given the complexity of comparative studies and the difficulties inherent in reaching an agreement among judges within the ECJ, the authority of the Court could be undermined if references to comparative law were explicitly included in the decisions.¹⁶⁶ According to this view, the acknowledgement of a range of competing perspectives rooted in differing values or interests should be avoided. This rationale corresponds to a civil law mentality. It derives from the notion that judges must speak ‘the law’. Judicial rulings ought to be presented as incontrovertible interpretations of the text, which is why, for example, dissenting opinions are not admitted in the ECJ. In the domain of fundamental rights, however, it is evident there is room for diverse positions regarding their scope of protection, given the variety of interpretations among member states. Hence, instead of hiding disagreements and the availability of different interpretive choices, the legitimacy and authority of this Court would be better served by engaging in fuller reasoning. Weiler argued that particularly in the constitutional domain, it is crucial that the Court demonstrates in its judgments that national sensibilities are fully taken into account. The ECJ ‘must amply explain and reason its decisions if they are to be not only authoritarian but also authoritative’.¹⁶⁷ If reasons are given and the differing arguments at stake are carefully weighed, the interpretive outcome can be seen as reasonable and justifiable rather than arbitrarily reached and imposed.