This blog considers whether unity of law should be strived for in the EU law remedy of the duty of consistent interpretation and, if so, how this could be achieved. I explain why it is necessary to differentiate between the national and the EU level when addressing this question. I argue that unity of law is not a pie in the sky on the EU level but that, on account of differences in the national methods of interpretation, the degree of unity will probably not be the same on the national and the EU level. To conclude this blog, I suggest three ideas to achieve a high degree of unity in the application of the duty of consistent interpretation on the national level, and that the Dutch could perhaps learn something from the Germans in this respect.
Duty of consistent interpretation
In order to address the above question, I first explain what the duty of consistent interpretation is. It was established in the European Court of Justice’s (ECJ) Von Colson and Kamann judgment (Case 14/83, Von Colson and Kamann, ECLI:EU:C:1984:153) and is primarily intended to put EU law into effect within the Member States’ legal orders. Prechal defines the duty of consistent interpretation as ‘the obligation of national courts and administrative authorities to interpret the applicable national law as much as possible in a way which ensures the fulfilment of obligations deriving from European law’ (S. Prechal, ‘Direct Effect, indirect effect, supremacy and the evolving constitution of the European Union’, in: C. Barnard (ed.), The fundamentals of EU law revisited: assessing the impact of the constitutional debate, Oxford: Oxford University Press 2007, p. 37-38).
The ECJ’s role is to further interpret the scope of the duty of consistent interpretation. National courts decide whether national law can be given the interpretation required by EU law. This division of tasks has an important consequence: ‘[w]hen searching for an answer to the question whether consistent interpretation is possible or not, and thus when addressing the issue of the discretion of the national courts under national law, the crucial factor is the approach, or methods or rules of interpretation or construction prevailing within the Member State concerned’ (S. Prechal, Directives in EC law, Oxford: Oxford University Press 2005, p. 194). This is important for the question considered in this blog: if methods of interpretation determine the application of the duty of consistent interpretation, unity in respect of the approach to these methods is likely to lead to a more unitary application of the duty of consistent interpretation.
Unity of law and the need to differentiate
The second point that requires further clarification is the concept of unity of law. In his blog on unity of law, Ortlep provided a general description, which links unity of law to the clarity, accessibility and foreseeability of the law, which is primarily achieved through a well-reasoned further development of the law (Ortlep, unity of law 2). In his view, differences in case law are not incompatible with the notion of unity of law, as long as this is supported by proper and explicit arguments. Most of these elements have also been mentioned by other authors, for example Vranken who, in addition, mentions the requirement of consistency (J.B.M. Vranken, Mr. C. Asser’s handleiding tot de beoefening van het Nederlands burgerlijk recht. Algemeen deel**, Deventer: Kluwer 1995/63/189/191).
This section focusses on the question whether unity of law can be achieved in the application of the duty of consistent interpretation between national courts from different Member States. Vranken observed that, on account of the different underlying assumptions and principles, it is not realistic to expect unity of law in the sense of uniformity or unification of different areas of national law. Arguably, it also appears unrealistic to expect unity of law in the sense of uniformity or unification in the application of the duty of consistent interpretation between different Member States with diverse legal cultures and approaches to interpretation. If one looks at the application of the duty of consistent interpretation before a single court, or a number of courts from the same Member State, a more unitary approach is to be expected (I will focus on unity of law within a single Member State in the next section). However, the fact that the same level of unity probably cannot be achieved between different Member States, is in my opinion not an argument to dispense with unity of law on an EU level entirely. Rather, it has to be accepted that the degree of unity will not be the same on the national and EU level. In this way, unity of law is not disposed of, while the diversity in the methods of interpretation between Member States is respected. In principle, this is exactly what the case law of the ECJ accomplishes: on the one hand, the national courts enjoy a large measure of discretion, on the other hand, the ECJ provides a lower limit that must be respected by all national courts which ensures that their efforts to adopt a consistent interpretation are not completely detached.
If one looks beyond a single Member State, the requirement of uniformity does make sense if unity of law is examined in relation to the preliminary reference procedure, which concerns the interpretation of rules shared by the 28 Member States (cf Bauw, unity of law 1; Ortlep, unity of law 3, who both refer to the preliminary reference procedure when discussing unity of law in an EU law context). However, I hope that the above analysis explains why this is not useful when unity of law is examined in relation to a remedy that depends on a Member State’s approach to the interpretation of national law.
The way ahead
While the ECJ’s case law establishes a minimum of unity for the application of the duty of consistent interpretation across the EU (in which context a less unitary approach is to be expected due to the diversity between Member States), the question is how unity of law can be optimised on the national level. As stated above, unity in respect of the approach to methods of interpretation is likely to lead to a more unitary application of the duty of consistent interpretation. Especially with respect to such a complex EU law remedy, the foreseeability of legal decisions benefits considerably from an explicit and consistent approach to interpretation on the national level. How could this be achieved? I would first like to mention two ideas here which are not novel. Nonetheless, it is interesting to see that they could also contribute to unity of law in an EU law context. First, Ortlep suggested that unity of law can be optimised by improving the argumentation of judgments. In the context of the duty of consistent interpretation this requires that a national court makes explicit its reasons for adopting or rejecting a consistent interpretation, and how this decision relates to that court’s and/or the national judiciary’s, approach to interpretation in general. Second, unity of law can be optimised by a supreme court that offers guidance on the approach to interpretation, and is competent to quash decisions exceeding the limits of interpretation. I would like to add a third idea to this, which provides that unity of law can be optimised by a well-developed doctrine of methods of interpretation.
It would be interesting to see whether well-reasoned judgments, a well-developed doctrine of methods of interpretation, and a guarding supreme court, would indeed optimise unity of law in the application of the duty of consistent interpretation on the national level. If this is correct, it seems that a high degree of unity is more likely to be achieved in some Member States than in others. For example, German courts often provide detailed argumentation when applying the duty of consistent interpretation, they can benefit from a well-developed ‘Methodenlehre’, and the Bundesverfassungsgericht provides authoritative guidance on the correct approach to interpretation and guards the constitutional limits of interpretation (see Article 20(3) of the Grundgesetz). At first sight, I would say that, unfortunately, in the Netherlands, it does not seem to be the case that the duty of consistent interpretation is applied under the same conditions. However, in order to determine whether there is indeed a more unitary approach, the national courts’ application of the duty of consistent interpretation must be examined. Relevant aspects for that analysis would be, for example, whether there is a more unitary approach to the methods of interpretation that are taken into account, the order in which they are applied, the weight attributed to them, and the importance attributed to a rule’s objective to implement EU law. It is my intention to further develop this analysis in subsequent contributions to the Montaigne Centre’s unity of law project.
Sim Haket works on his PhD ‘The duty of consistent interpretation: an EU concept in a pluralistic legal order’ at the Montaigne centre.