Category Archives: CJEU

Three lessons on the relationship between EU and national law in the context of the duty of consistent interpretation

Sim Haket

Is it possible to avoid a conflict between EU and national law that would result in a national court disapplying the conflicting national provision? Under certain circumstances, the duty of consistent interpretation can offer a solution. For example: two individuals conclude a sales contract, which one subsequently claims is void under EU law whereas the other replies that it is a valid contract under national law. If the dispute comes before a national court, it can resolve this issue by interpreting the provision prescribing the validity of the contract in conformity with the EU law provision. But how do judges determine whether such an interpretation is possible? They will have to take into account requirements imposed by the duty of consistent interpretation, but also the discretion that is available to them under national rules of interpretation. Do existing theories on the relationship between EU and national law, i.e. primacy, national constitutionalism and constitutional pluralism, adequately explain the interaction between EU and national law in the context of the duty of consistent interpretation? In this blog, I offer three important lessons for answering this question. This is based on the full analysis of the question in my PhD thesis The EU law duty of consistent interpretation in German, Irish and Dutch courts.

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Protecting the rule of law by European Courts – which way to go?

blog Janneke ECHRBlog Janneke CJEUJanneke Gerards

The rule of law is under pressure in many States. In recent times, for example, Hungary and Poland have been severely criticised for changes they have made to their systems that undermine judicial impartiality and independence. Moreover, in several States, the pluriformity of the media is under pressure, the role of civil society is threatened, and the fundamental rights of minorities and asylum seekers are breached. These are all worrisome signs of the erosion of democracy and the rule of law in Europe. An important question is what can be done to stop this process of erosion and protect the values underlying the rule of law? Of course, political mechanisms can be used, but people and institutions also increasingly turn to supranational courts such as the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (ECJ). For example, in Hungary, the number of applications lodged at the ECtHR concerning rule of law issues has surged, and in Poland, both the Supreme Court and other Polish courts have brought rule of law issues to the ECJ’s attention. From a strategic perspective, the question can be asked whether it makes a difference for those who want to be involved in this type of litigation to address either the ECtHR or the ECJ with rule of law concerns?This post argues that it does, because of the differences in procedure and approach taken by the two European Courts. Continue reading