Duty of consistent interpretation in EU law

1. Duty of consistent interpretation in EU law Karsten Engsig Sørensen

2. The topic • Consistent interpretation ensures that the hierarchy of norms is safeguarded in the EU • National law should be interpreted consistent with EU law • EU norm should be interpreted according to higher EU norm • Sometimes these get mixed: • ‘The MS must not only interpret their national law in a manner consistent with EU law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the legal order of the EU’ (C-356-357/11, Maahanmuuttovirasto) • So how does the duty of interpretation work? • First, we will look at how it works in relation to national law and second, briefly how it works internally in EU law

3. Effect of consistent interpretation in national law • Duty may ensure that a conflict with EU law is avoided • Therefore consistent interpretation should be used prior to the principle of supremacy of EU law and the doctrine of direct effect • Seems also to be preference of law enforcers and judges • Sometimes consistent interpretation works where direct effect does not work: • If provision in EU law is not sufficiently clear and precise to have direct effect • If provision in directive imposes duty on individual (lack of horizontal effect) • If provision for other reasons is not capable of having direct effect (WTO agreements)

4. The origin • First established in case 14/83, von Colson • Based on TEU article 4 (duty of loyalty) and TFEU article 288(3) (duty to implement directives) • Later is was said that the duty ‘is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it’. (C-397/01, Pfeiffer, paragraph 114) • Similar principle often found in national law

5. Who should observe the duty? • All courts and all administrative units applying the law • All levels of administration • Can questions of interpretation be referred to higher authority? • Should the duty be used ex officio? • Only courts and tribunals can refer preliminary questions about the interpretation of EU law to the ECJ

6. What EU law acts should be used when interpreting national law? • All binding EU law including treaties, charter, general principles, regulations and directives • Framework decision in third pillar (C-105/03, Pupino) • Non-binding EU law • 322/88, Grimaldi: if national law is aiming to implement non-binding recommendations or if recommendation is interpreting binding rules • International agreements where the EU is a party • Not clear whether only national law trying to implement international commitments should be interpreted consistent or whether a more broad duty to interpret all relevant national law consistent exists

7. From when? • When they enter into force • Directive from the date of transposition/implementation • Before that a more limited duty exists: ‘from the date upon which a directive has entered into force, the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive’. (C-212/04, Adeneler, paragraph 123) • Sometimes the ECJ limits the retroactive effect of EU law (treaty provisions) but this limitation should not cancel the retroactive consistent interpretation (C-270-271/97, Deutsche Post AG) • The duty would cease after EU law expires, but then the duty could follow from national law

8. Which national rules should be interpreted consistent to EU law? • All national laws • Both national law adopted before and after the relevant EU law • Even agreements (aiming to implement EU law)? • Constitution

9. How far does the duty go? • National judges and authorities should use the full measure of construction to reach the interpretation consistent with EU law • Some decisions seem to indicate a more absolute duty • C-106/89, Marleasing • Later judgment uses terms like ‘as far as possible’ • No duty to interpret contra legem (Adeneler, paragraph 110) • Most recently the ECJ said that EU law • ‘requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring…’ (C-97/11, Amia) • Why then does the ECJ requires that preparatory works are ignored when interpreting? (C-371/02, Björnekulla)

10. How far does the duty go? (continued) • Duty can also be used to impose duties on individuals or to impose additional burdens • However, may not have the effect of determining or aggravating criminal liability • Remember that sometimes national law may aim to go beyond EU law • Minimum harmonization • Sometimes national law aims voluntarily to copy EU law • Not part of EU duty of consistent interpretation, but may be possible to pose questions to the ECJ (Case C-28/95, Leur-Bloem)

11. How far does the duty go? (continued) • How do the national courts and authorities cope with the duty? • Often use the principle • Do they ignore the wording of national law in order to achieve the EU consistent interpretation? • Are they likely to ignore preparatory works if these point in another direction than EU sources? • Is there a tendency to ignore the duty at the lower level of administration? • Probably often depends on whether the lawyers presenting the case invoke EU law

12. Duty of interpretation as a tool to reconcile conflicts within EU law • Secondary law should be interpreted according to primary law • Treaties (most likely free movement rights) • Principles of EU law • Fundamental rights • Secondary law should be interpreted according to international agreements of which the EU is part • C-61/94, Commission v. Germany • Important since such agreements do not necessarily have a direct effect • An implementing regulation must be interpreted consistent with the basic regulation (Case C-61/94, Commission v. Germany)

13. Secondary law and free movement • Many cases here • May illustrate how far the ECJ is going in its effort to avoid conflict – as the alternative seems to be that the secondary act must be invalidated • I divide the case law in three categories (ELR 2011, pp. 339-361) • First category: Wording open to more than one interpretation • If the wording is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the Treaty • Many cases apply this • Hardly surprising

14. Secondary law and free movement II • Second category: Scope of manoeuvre given to MS • Where secondary law authorises MS to introduce specific rules, such authorisation should not be construed as allowing the MS to introduce rules which infringe the free movement rights • Case C-128/89, Commission v. Italy • Also when secondary law introduced minimum harmonisation, stricter harmonisation should respect the free movement rights • So the Court is ready to read limitations in secondary law even though these limitations are not evident in the wording of secondary law • Would they also do so if it were individuals and not MS which had to accept these limitations?

15. Secondary law and free movement III • Third category: Terms and conditions in secondary law interpreted in accordance with free movement rights • Trademark Directive and Art. 34-36: C-427/93 and other, Bristol-Myers Squibb • Directive 2004/38: Free movement of Union Citizens • C-22/08, Vatsouras • C-200/02, Chen • Here the Court goes even further in interpreting consistent • Sometimes it is not clear whether the Court interprets secondary law in light of free movement rights or is just applying these

16. Thank you for your attention • Questions?