Montaigne Centre Blog


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

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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.

Lesson #1: The duty of consistent interpretation is a binding legal norm governing conflicts of interpretative rules
Articles 288 Treaty on the Functioning of the European Union (TFEU) and 4(3) Treaty on European Union (TEU) are binding legal norms that provide the legal basis for the obligation for national courts, as well as administrative authorities, to interpret national law in conformity with EU law directives so far as possible (it is noted that there is an obligation to interpret national law in conformity with all EU law, but my PhD thesis focused on directives only). The first implication of this is that the duty of consistent interpretation must be viewed as a methodological standard. Not only does it prescribe the interpretative outcome that the national courts are to pursue, but it also imposes binding instructions detailing how the national courts should approach their task of bringing national law in conformity with the directive by means of interpretation. The second implication concerns the usefulness of existing theories on the relationship between EU and national law (primacy, national constitutionalism and constitutional pluralism; as regards the first theory, I am aware of the conceptual differences between primacy and supremacy, but it is outside the scope of this blog to address this issue, see further Avbelj). It has been put forward that these theories only apply when there is an actual conflict between a substantive norm of EU and national law, e.g. EU law provides that the contract is void whereas national law provides the opposite (see Besselink). Such a conflict does not seem to exist in the context of the duty of consistent interpretation, as it is precisely this type of conflict that it aims to avoid by means of reconciliatory interpretation. From this perspective, a substantive conflict would only really exist should a consistent interpretation fail. However, it is argued that the theories can still be applied if the duty of consistent interpretation is viewed as making its own normative claim that can lead to a conflict, not of substantive rules, but of interpretative rules. The conflict is then between, on the one hand, the duty of consistent interpretation and, on the other hand, the national interpretative rules.

Lesson #2: National case law confirms the applicability of the conflict theories
When is there a conflict in the context of the duty of consistent interpretation? This can occur in two situations; namely, when the national courts transgress the discretion available to them by either national interpretative rules or the duty of consistent interpretation. The first situation provides support for viewing primacy of EU law as a theory that adequately explains the practice of consistent interpretation. For this, it is not sufficient if the adopted interpretation merely departs in some way from the traditional interpretation or interpretative process. The national court’s application of the duty of consistent interpretation only supports the theory of primacy if national interpretative rules, even if they are stretched to their outer limits, can no longer explain the adopted interpretation. They were thus effectively set aside. An example of this is found in the shift in approach occurring in the judgment in Murphy v An Bord Telecom Éireann, where the Irish High Court departed from the traditional and well-established literal approach to interpretation (briefly put: if a provision’s wording is clear and unambiguous, it has to be applied in accordance with its ordinary meaning) in favour of a more purposive approach aimed at putting into effect the relevant EU law directive. Another example is found in the Wandelvierdaagse judgment, where the Dutch Supreme Court, contrary to the traditionally flexible nature of Dutch interpretative rules, required that the legislature’s intention to implement the directive be structurally prioritised over opposing, more specific, intentions.

The second situation, (i.e. where the discretion afforded to national judges by the duty of consistent interpretation is transgressed) can provide support for national constitutionalism or constitutional pluralism. If a national court rejects a consistent interpretation, this is not in itself sufficient for providing such support. This is so because the European Court of Justice has recognised a number of limitations to the duty of consistent interpretation; in a large number of cases it will be possible for national courts to justify their rejection of a consistent interpretation. Nevertheless, if such a rejection exceeds the discretion afforded by the duty of consistent interpretation and it is based on grounds with a national constitutional pedigree, national constitutionalism or constitutional pluralism could provide an adequate explanation. An example of national constitutionalism is found in the Irish Supreme Court’s Albatros Feeds Ltd v Minister for Agriculture and Food judgment. It can be derived from this judgment that the scope to interpret national provisions in conformity with a directive is limited if this would create public powers whose exercise interferes with national fundamental rights law. In the concerned case, the fundamental right to property, laid down in the Irish Constitution, would be restricted as a result of reading into Irish law the power to issue seizure, detention and recall notices in respect of imported animal feed. An example of constitutional pluralism is found in a judgment of the German Federal Constitutional Court. This judgment concerned the scope to reject a consistent interpretation on the basis of the principle of legitimate expectations as laid down in Article 20(3) of the German Constitution. The German Federal Constitutional Court annulled the appealed judgment from the German Federal Labour Court, which had rejected a consistent interpretation. The German Federal Constitutional Court pointed out that national courts should first participate in a dialogue with the European Court of Justice in order to take the latter’s position into account as it was recognised that the rejection of a consistent interpretation was also a matter of EU law. Yet, the German Federal Constitutional Court’s finding that the protection offered through the principle of legitimate expectations and the connected rejection of a consistent interpretation were, at least also (‘zumindest auch’), a question of EU law, appears to leave open the question of which court has the final say, should an incompatibility persist after such a dialogue.

Lesson #3: Do not mistake the forest for the trees
Certainly, it is important to see that the theories of primacy, national constitutionalism, and constitutional pluralism expand beyond the traditional context in which EU law is invoked by means of direct effect and when there is a substantive conflict of norms. The theories can be applied in the context of consistent interpretation if an interpretative conflict has been identified. Having said that, the fact that these theories adequately explain the interaction between EU and national law in some of the cases in which national courts apply the duty of consistent interpretation, should not obfuscate that, in terms of the day-to-day application of consistent interpretation, genuine interpretative conflicts occur infrequently. The cases in which such a conflict was identified represent a patch of trees (and not the forest).  This, in turn, should not obfuscate the fact that it is of value in itself that it is made clear when there is a conflict, and when there is not. A degree of flexibility and adaptive power is inherent in nearly all interpretative rules. I argue that, even if national courts stretch the limits of national interpretative rules considerably to reach a consistent interpretation, most of the time this falls short of being a genuine conflict of interpretative rules. At the same time, EU law recognises and respects that there are limits to what a national court can do in terms of interpretation. It is this mutual flexibility of the duty of consistent interpretation and national interpretative rules that makes the remedy a success and the first port of call when national courts are required to resolve tensions between EU and national law.

by Sim Haket