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.Continue reading
The Egenberger and Bauer judgments concern what has been described as probably the most important development in EU fundamental rights law in a long time (Sarmiento): establishing the horizontal direct effect of some of the provisions of the EU Charter of Fundamental Rights (Charter). The Bauer judgment also established the duty of consistent interpretation in relation to the Charter. Despite the clear terms of the judgments, the role played by individuals as either beneficiaries or addressees of the Charter is worthy of further reflection; is the Charter a direct source of rights and obligations in disputes between individuals? I first discuss in a more general way the remedies of direct effect and consistent interpretation in EU law before I turn to the Egenberger and Bauer judgments and their meaning for consistent interpretation and in particular the direct effect of the Charter in disputes between individuals. Continue reading
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.