We have now addressed both the themes ofnorms, valid sources of law and interpretative arguments. But given that they seem to hold similar characteristics, one could ask: what is their difference? Especially in the case of those principles and other proto-norms436 which are derived from the written law by the ECJ (and not written into the law), are theysources of law, norms or justarguments utilized by the judiciary? If the Court can be seen to generatenorms and even legal sources, how can we differentiate between the norm and the practice of generating it? As Raitio has suggested, “the requirement of acceptability imposed on the validity of a legal norm may mean that the legal principles and policies, or proto-norms in general, used as
435 MacCormick – Summers. 1991. 540-541.
436 Siltala. 2000. 55.
arguments to promote different objectives and values may come to have a normative character as a source of law”.
In Chapter 2.3. we discussed about the dual status of principles (proto-norms) as both norms and sources of law.Tuori argues that principles have a plethora of meanings: principles as norms applicable in legal decision-making, legal principles as arguments in interpreting written sources of law, legal principles as summaries of the normative contents of a branch of law or the legal order as a whole, legal principles as legal sources supporting legal norms and legal principles as normative premises for legislative solutions. The different meaning contents of legal principles are interdependent.437
According to Bengoetxea, the features of the European Community (European Union) largely influence the interpretation of the EU law.
Especially the general principles of EU law have been used in two ways: as general concepts relating to the institutional features of the EU, and as binding, though not necessarily written, general norms, which must be effectively observed if actions of the EU authorities are to be lawful:
“General principles of law can be used in order to fill in gaps in the law, in order to provide further (subsidiary) arguments for a proposed interpretation where the justification is based on more precise legal norms, and in order to guide interpretation functioning as protected reasons or legal norms”.438
Here, the theory offinalistic law by Klami and its application into the realm of legal reasoning by the ECJ by Raitio, is of great benefit. The ontological assumption of law byKlami was based on adialectical relationship between norms and behaviour:
“Lawis a set of norms, but it is also a social order, consisting of behaviour and a feeling of normativity, which are interconnected. This dualism is not a simple conjunction of two things, norms and behaviour, but rather adialecticalrelationship where norms and behaviour aredifferent aspects of the human mind...the essence of law is a question complicated by the fact that law has asocial impact and that it isgenerated by social activity, where knowledge and belief is in a complicated manner transformed into normativity. Quite simply: it is thought that a certain state of affairs is good. It is known – or believed – that the behaviour p is a necessary or sufficient condition to achieve q.
Therefore, the implication p ĺ q is – in certain epistemic conditions – declared to be normative: you should dop (ĺ in order to achieveq).”439
437 Tuori. 2010. 189.
438 Bengoetxea. 1993. 225-227.
439 Klami. 1986. 11.
According toKlami, norms exist in acts of interpretation.440 He argues that normativity is a special kind or reality, referring to behaviour and its normative interpretation after considering a peculiar justification which transforms social teleology into normativity. On the other hand, normativity is connected with behaviour which is interpreted in a normative manner.
Normativity also exists at the level of teleology used for justifying the normative interpretation mentioned above.441 Thus, the practice (of interpreting legal sources) affects the norm-propositions which law-applying officials are giving, but this practice (interpretation) is influenced by the norms.
This work is influenced by the model of Raitio who has combined the finalistic theory ofKlami and its justification levels442 and the theory of norms bySiltala andDworkin into an illustrative picture where the ontology of law as a system of norms is combined with the system of practice (interpretative arguments) where these norms are used. 443 In his model, linguistic legal arguments are connected to the ontology or rules and to systemic validity and teleological arguments to proto-norms of principles and policies and to axiological validity. Between these are systemic arguments, which are connected to concepts.444
By combining the ontology of law and the arguments of justification, we can utilize many of the findings of Chapter 2 on the ontology of EU public procurement law in assessing the reasoning of the ECJ. First, we can see the underpinnings of the different approaches in legal thinking or frames of legal analysis as ideologies of judicial decision-making. There are other benefits as well. We can also point to the suggestion byTuori that problems relating to axiological validity or the acceptability of a norm (values) usually arise only after the norm has been held to meet the criteria of systemic validity.445 When transformed into the issue of arguments, this would support the sequentialist approach.
According to Beck, principles are commonly classified (when used as arguments ortopoi in the judicial application of the law) as a sub-category of systemic arguments.446 In the model byRaitio, principles are situated in the same group as teleological arguments.Beck argues, however, that “as many principles reflect the specific features of EU law as a hybrid treaty-based legal system between national and international law and in virtue of the overlap of many general principles with teleological arguments in EU law, principles are perhaps best examinedsui generis when assessing the relative importance of
440 Klami. 1986. 19.
441 Klami 1986. 20-21.
442 The influence of the types of arguments by theBielefeld Kreis is also apparent.
443 Raitio. 2013. 103.
444 Ibid.
445 Tuori. 2002a. 135.
446 Beck. 2012. 230.
the various groups of interpretative criteria in the ECJ’s justificatory discourse”.447 Here the notion by Tuori of the different characteristics of principles is of benefit. As we can see in Chapter 7.1., principles can be used in quite the same way as concepts, which grounds their use firmly to the group of systemic arguments. Some principles may be more akin to policies, which would move them closer to teleological arguments. But if one accepts even a degree of division between rights-based legal standards and purpose-based legal standards, we can see that at least in EU public procurement law, the benefits of clarity and systemic coherence are more apparent in rights-based legal standards (principles of equal treatment, non-discrimination and transparency), as they ensure the protection of the economic rights or freedoms of economic operators (in a tendering procedure), based on the purpose of the “economic constitution” of the EU. In addition, the variations of legal realism in EU law, represented for instance in the work byDuyevre, could be held to support an approach which takes as its starting point (or first sequence) the wording of the law, instead of the objects of that law, because this seems to be the approach utilized by the ECJ working in its institutional setting. AsSankari has stated, the approach where one is “deeply aware of the perils of misplaced extensive and restrictive (re-)interpretation in the EU law context”, is “compatible with an empirically pluralist reality in which the Court of Justice operates and which allows a certain kind of judicial minimalism to play a role, even in preliminary rulings”.448
In conclusion, it is submitted that the ontology of the EU legal system of norms affects the legal reasoning of the ECJ in many ways.First, it illustrates the different ideologies of judicial decision-making present in the sequential use of legal arguments.Second, it situates the decision-making of the ECJ in a dialogue with its surroundings.Third,it ties the legal reasoning to the specific legal framework of the European Union. Fourth, it clarifies the nature and operational mechanics of the principles and policies in EU public procurement law. Finally, it helps us to find similarities and differences in the different types of legal arguments.
447 Ibid. 230-231.
448 Sankari. 2013. 20.
6 ON THE ROLE OF LINGUISTIC AND TELEOLOGICAL JUSTIFICATION IN PROCUREMENT LAW
In the previous Chapter it has been held that the sequentialist approach to the use of arguments is a reasonable approach in legal reasoning. Let us look more closely at the relationship between systemic and teleological arguments or justification.
Many scholars specialised in issues of legal reasoning of the European Court of Justice have argued that the use of linguistic or semantic reasoning has significant problems in the context of EU law. Paunio has argued that terms such as direct effect, effective judicial protection or legitimate expectations might not convey the same meaning or same effects in different legal systems if no shared theory exists on these concepts. According to her,
“not only the inherent indeterminacy of natural languages topped with problems of translation in the EU context but also the contextuality of language and adjudication implies that the meaning of legal texts is
‘potentially ever-changing’”.449 Lindroos-Hovinheimo has referred to the problem of literal meaning being quite hollow in itself.450Sankari has argued that when the meaning of text is problematised, the use of semiotic criteria of interpretation alone will not provide an interpretive solution.451 The approach in this works takes as its starting point the view bySankari that “arguing that semiotic criteria will not solve interpretive questions in hard cases is not the same as arguing that law is wholly indeterminate or that the wording of the law does not matter”. Sankaripresents the doctrine of indirect effect of EU law as an example. Guided by the principle of indirect effect of EU law, the wording of national law must be interpreted in a way that produces an outcome compatible with EU law. This duty is only exhausted when compliance with EU law would require a contra legem interpretation of national law. In these situations, the primacy of EU law takes over “as indirect effect is no longer expected to resolve the conflict between national and EU law, which means that the decision-making process regresses a step back from interpretation to the choice of major premise”.452
Even though the amount of text of the EU Public Procurement Directives has increased exponentially during the last 20 years both in terms of procedural rules and the rules on the scope of application, the rules which form the very basis of the scope of application are very scarce and minimalistic. Both
449 Paunio. 2013. 15.
450 Lindroos-Hovinheimo. 2012. 6-8.See also Paunio – Lindroos-Hovinheimo. 2010. 395-416.
451 Sankari. 2013. 90.
452 Ibid. 90-91.
the definitions ofprocurement and ofpublic and concession contracts leave much room for interpretation as to what types of arrangements are covered in the procurement directives. Consequently, it is suggested here that linguistic arguments do not by themselves usually provide much justificatory power to solving questions regarding the scope of procurement legislation in the decision-making of the European Court of Justice. They can, however, act as reasons in tackling some of the simpler questions and clarifying the premises of the reasoning.
The tendency in the academic works where problems have been analysed at the level of linguistic arguments is that these problems have been utilized as arguments for emphasizing teleological arguments. Systemic arguments have either not been addressed in detail or they have been coupled with teleological arguments as one group. Many scholars, such asBengoetxea, Sankari, Beck, Lasser andItzcovic see systemic and teleological arguments intertwined.453 Beck has actually used the problems in making strict distinctions between systemic arguments and purposive or teleological arguments as a key critique over the sequentialist approach.454 Itzcovichhas suggested that teleological interpretation could be regarded as a kind of systemic interpretation, if the goal that it takes into consideration has been explicitly established by the legislator, or if the goal is part of the system constructed by the legal doctrine.455 Maduro and Lasser have attempted to decrease the confusion with dividing teleological arguments to teleological, drawing from the objective of a provision, andmeta-teleological, drawing from the objectives of the legal context. The former would be situated within the systemic interpretation.456
It is submitted, however, that there are good reasons for making a distinction between systemic and teleological arguments. First, the interlocking of systemic and teleological arguments seems to tie the building blocks of coherence (in the legal system) to values or at least to consequentalism, a property of the theory ofDworkinwhich was criticised by Raz for undermining the authority of the law.
Conway has suggested that the fuzziness of legal language cannot be utilised in promoting the interpretative freedom of the ECJ:
“A one-sided view on legal indeterminacy has the notable effect of empowering the judiciary: while the judiciary are not bound in a specific way to give effect to democratic intention because of generalised legal indeterminacy (in the sense of the indeterminacy of constitutional or legislative texts), ordinary citizens are bound quite specifically to the courts’ own determinations in the form of legal texts (i.e. judgments) and
453 Sankari 2011. 160. Lasser 2004. 232. Beck. 2012. 279. Itzcovic. 2009. 555.
454 Beck. 2012. 279.
455 Itzcovitch. 2009. 555.
456 Lasser. 2004. 350-360. Maduro. 2009. 356-379.
legislatures are similarly bound by judicial interpretation of constitutions.”457
Second, the coupling of systemic and teleological arguments does not take into the account the existence of value (or in this case, consequence-related) pluralism: there might be significant problems in achieving consistency and acceptability if the number of desirable consequences or values is very high.
Finally, the distinction between systemic and teleological arguments is also beneficial in order to efficiently present the benefits of systemic arguments over teleological arguments in EU public procurement law.
As presented above, there is a notable amount of academic writing which would seem to give precedence to teleological arguments in the models of justification of the ECJ. Some studies pair the systemic and teleological arguments together in the highest step of the podium while others, such as Paunio’s study, emphasize the strong independent role of teleological arguments.458
There are problems relating to the emphasized use of teleological arguments. First of all, as stated above, the study by Sankariwould seem to suggest that, at least in the field of EU citizenship law, the second-order criteria for interpretation would not give precedence to teleological or dynamic arguments over linguistic or systemic arguments. The primacy of teleological interpretation would also seem to override the principle byMacCormickand Summers of the principle of economy of the interpretative effort and the sequential characteristic of legal reasoning, which is assumed as the basis of legal reasoning in the ECJ.
Second, the fragmentation and ambiguity are not problems only with regards multi-lingual legislation of the EU. In terms of thepurpose of the law, there is also fragmentation and ambiguity,consequence plurality.459 Even the Maastricht Treaty was frowned upon by the ordoliberals for the increase of its goals and decreased role of the economic constitution.460 Raitio has also argued that a specific characteristic of the European Union is the vastness and fragmentariness of its aims and goals.461 EU public procurement law also has many objectives which have become more numerous from year to year. The main objectives of the procurement directives have been addressed above and can be listed as follows:
1) the efficient use of public funds;
2) prevention of corruption;
3) the efficiency of the internal market and the fundamental freedoms;
457 Conway. 2013. 132.
458 Paunio.2013. 194.
459 Beck. 2012. 25.
460 Joerges. 2005. 472.
461 Raitio. 2010. 634. See also Joerges. 2005. 414-477.
4) public procurement as an instrument for other political goals (usually referred to assecondary or horizontal policies in procurement).462 The multiplicity of the goals of EU public procurement law brings forth questions on their background and interrelationship. The goal of efficient use of money is a distinctivelynationalone: it is an instrument of efficient finance politics. The prevention of corruption and the efficiency of the internal market reveal the EU-wide point of view. According toArrowsmith andKunzlik,the goal of the public procurement directives or the fundamental freedoms is not to ensure that the Member States use their funds as effectively as possible.463 The confusion regarding the objectives of the procurement directives has been eloquently summarized by Arrowsmith: “the directives’ functions have now become clouded in misunderstandings: there is no clear or consistent vision of these functions amongst regulators and stakeholders, nor a clear understanding of how their functions fit with the goals and tools of national regulation”.464 According to her, this has contributed to an uncertain legal environment and inhibited the sound and coherent development of the EU regime.465
Here we can also remind ourselves of Tuori’s study on the different constitutions of Europe and their relationship.466 The microeconomic constitution and the social dimension of the EU constitution are in a tension-filled relationship consisting of conflicts between transnational economic rights and national social rights and between transnational access justice and national solidaristic justice. Translated into the realm of teleological arguments this tension seems decrease the formality, coherence and rationality of using teleological arguments based on rights-based principles.
Andráshas split teleological arguments in constitutional interpretation or reasoning into two groups: objective teleological arguments andsubjective teleological arguments. The former arguments stem from provisions themselves and the latter arguments are based on the intention of the law-maker.467 According to András, the most frequent objections to objective teleological arguments are that, firstly, the same text can have several purposes, which may lead to interpretations contradicting each other (and the choice amongst them being unclear). Secondly, even a clear ratio legis
462 See recitals 1-3 in Directive 2014/24/EU and the Commission green paper on public procurement COM (2011) 15 final. 3-6. In Commission communication from 2004 public procurement is also seen as an instrument for increasing the cohesion between new and old Member States. COM (2004) 101 final.
15. See also Graells. 2015. 101-114.
463 Arrowsmith – Kunzlik. 2008. 31-33.
464 Arrowsmith. 2012b. 2.
465 Ibid.
466 Tuori. 2015. 22-26.
467 András. 2016. 45-46. András himself questions, however, whether texts themselves can have intention.
sometimes fails to show which interpretation could support it best as to its consequences.468 Criticism towards subjective teleological arguments, are similar in nature in that they point to the facts that law-maker’s intention may be manifold and that the intention of the law-maker in old legislation (such as constitutions) is quite difficult to reconstruct later or to modernize.469
Finally, the teleological interpretation supported by Paunio seems quite interlocked to the context-bound quality of decision-making by the ECJ. This can lead, asRaitio has suggested, to arbitrariness, ‘the Casanova method’ and the hampering of the coherence of the legal system.470Paunio has suggested that legal certainty could be found best at the level of teleological reasoning
Finally, the teleological interpretation supported by Paunio seems quite interlocked to the context-bound quality of decision-making by the ECJ. This can lead, asRaitio has suggested, to arbitrariness, ‘the Casanova method’ and the hampering of the coherence of the legal system.470Paunio has suggested that legal certainty could be found best at the level of teleological reasoning