Party Autonomy in International Property Law - Peace Palace Library

10. Between Articles 14 and 27 of Rome I
firmed and used these methods of interpretation when applying the Brussels
I Regulation on jurisdiction and recognition of judgments (which is
complementary to the Union’s conflict of laws regulations). 12
Each one of these four classical roads – textual, historical, systematic, and
purposive – can, when directed to a European regulation, take on some
special European Union colour, in comparison with a statutory interpretation
of Member State law, with an interpretation of European treaty
law, and with an interpretation of European directives and regulations in
fields other than conflict of laws. This will be illustrated here briefly for
each of them.
As to the wording of rules, it has often been noted that it is less compelling
than in Member State law because the text of a regulation exists in more
than twenty official languages of equal weight, which makes for less precision
of content and for more options to choose from. 13 This is certainly
true, but once we have got a rule in its twenty or so versions, the rule will
and must carry more weight by its sheer existence, since European legislation
is much slower and much more cumbersome to make and to change
than are Member State statutes. This means that once we have the rule,
we must learn to love it.
As to the legislative history, it is conventionally said that it serves to determine
the real intention of the legislator. But we all know that ‘the
legislator’ is an artificial notion, which in a democratic and parliamentary
government designates a great number of often invisible people having
been involved in the making of the statute – those who drafted it, those
who deliberated on it, and those who eventually passed it in the legislative
assembly. To say that there is a will of the legislator is wholly fictional. The
fiction allows us to create a shorthand summary of the many ideas that
went into the legislative text we are reading and to use them again for a
legitimate – now ex post – argument.
zum Internationalen Privat- und Verfahrensrecht, in: Basedow et al. (eds.),
Aufbruch nach Europa, Tübingen 2001, p. 583-594, at p. 590-594.
12
See European Court of Justice, judgment of 23 April 2009, C 533 / 07 – Falco
Privatstiftung, with further references, nr. 20.
13
Weatherill / ​Beaumont (note 11) 185; Waelbroeck (note 11) nr. 12; Riesenhuber
(note 11) § 11 nr. 19. But see recently, and critically, Weiler, Grammatikalische
Auslegung des vielsprachigen Unionsrechts, Zeitschrift für Europäisches Privatrecht
(ZEuP) 2010, 863-882.
Axel Flessner
211
© sellier. european law publishers
www.sellier.de