The Duty of Consistent Interpretation (EU Law) PDF

The duty of consistent interpretation EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  Preliminary remarks  The EU legal order is based on the decentralised application of its dispositio...

The duty of consistent interpretation EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  Preliminary remarks  The EU legal order is based on the decentralised application of its dispositions, based on the principles of  procedural autonomy of the Member States, equivalence and effectiveness  Ever since the entrance into force of the Treaty of Rome, EU Institutions have been granted with the possibility to adopt acts of EU secondary law having a general scope and direct applicability  This makes clear that EU law has always been thought as a set rules to be applied by national administrations and, in particular, national judges  Decentralized application of EU law is based on two fundamental principles, the principles of equivalence and effectiveness, which are in essence expressions of the principle of loyal cooperation 1  Preliminary remarks (2)  principle of equivalence = it ensures that national remedies for the enforcement of EU rights cannot be less favourable than similar actions under national law (case Rewe, 1976; case Comet, 1976)  Similar situations cannot be treated differently unless the different treatment is objectively justified, and this applies also to the identification by national law of the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law.  Principle of effectiveness = it obliges Member State (and Member States’ courts) to ensure that national remedies and procedural rules do not render claims based on EU law impossible in practice or excessively 2 difficult to enforce  Preliminary remarks (3)  In this context, and without prejudice to (and actually in the light of) the principle of primacy of EU law over national law, it is necessary to assess what effect can (and must) be recognized to EU law when one disposition pertaining to this legal order does not comply with the requirements posed by the Van Gend en Loos case (and subsequent case law) to enjoy direct effect, and therefore cannot be directly applied to solve a specific case 3  Preliminary remarks (4): three possible scenario + direct effect Disapplication by any national (if compliance with judge of the internal rule that is VGL criteria) not compatible with EU law Primacy (always and in any Duty of consistent case) interpretation But no direct effect Indirect effects (if no compliance VGL criteria) of EU law Liability of Member States 4  Duty of consistent interpretation  Origin = the duty of consistent interpretation is a remedy created by the ECJ (see the Von Colson case), according to which this obligation of national courts is inherent in the system of the Treaty, as it enables the national courts to ensure, in the context of their jurisdiction, the full effectiveness of the rules of EU law when resolving a dispute brought before them  Source = the duty of consistent interpretation is firmly rooted in the obligation of loyal cooperation between Member States and the EU, of which it is a specific application  Subjects bound = mainly, national Courts  Object = national law (national law is the law that shall be interpreted consistently, EU law is the parameter) 5  Duty of consistent interpretation  Content = national courts are requested to interpret and apply domestic rules, where possible, in accordance with EU law, and this is the case regardless of whether the EU rule that comes into play has or does not have direct effect  Scope = mainly rules without direct effect and in particular non- transposed directives (the absence of direct effect prevents the disapplication of the internal rule by national courts, as the national court would have nothing to apply instead of the domestic rule), but it also applies to rules with direct effect, as an alternative – less “intrusive” for the domestic legal order – to disapplication 6  Duty of consistent interpretation vs. direct effect In case of a conflict between a EU disposition and a national disposition  If the EU rule has direct effect, the national court shall apply the EU rule and, if necessary, is obliged to disapply the domestic rule that is in conflict with it  NB: if the goal set by EU law can be reached without the disapplication of national law, the national court is not obliged to do so, it may for example rely on the theory of the consistent interpretation also with regard to rules having direct effect  If the EU rule does not have direct effect, the national court cannot disapply the national law (what would then apply?) but is obliged to make an attempt to obtain the same (or a similar) effect by complying with its duty of consistent interpretation:  while the national court cannot but apply the domestic rule, the national court is obliged to interpret it in a manner that7 is as much as possible adherent to and coherent with the content of the EU rule that cannot be directly applied  Duty of consistent interpretation vs liability of the Member State for breaching EU law  The objective and effect of the duty of consistent interpretation is to allow, albeit indirectly, the EU rule to exert its effects  Thanks to the fact that national judges are bound by the duty of consistent interpretation , individuals can obtain, albeit through the interposition of a national provision, the recognition and application of exactly the right that the EU rule without direct effect was intended to confer on them  “It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective” (Cases C-397/01 to C-403/01, Pfeiffer, § 111)  By contrast, the Member State’s liability for breach of EU law (on which see the next lecture) is a sort of residual and last resort remedy  This remedy applies in those situations where it is not possible to obtain specific enforcement of the content of the EU provision at stake, neither trough direct effect or through the duty of consistent interpretation  This remedy offers a form of “subsidiary protection” to individuals that cannot enjoy the right that EU intended to confer upon them, consisting of the 8compensation for the damage suffered as a result of this impossibility The origin of the remedy of the consistent interpretation: the national rules transposing a directive  The duty of consistent interpretation has been firstly established by the ECJ to cope with those cases in which a national Court was dealing with the interpretation and application of the national provisions adopted by a Member State specifically to implement a directive at the national level  The ECJ created the remedy at issue by noting that, in such cases, by virtue of the principle of loyal cooperation, it is possible to presume and assume that the Member State had intended to comply fully with its obligations under the directive.  The duty to properly and timely transpose directives applies not only to the legislator but also to all the authorities of the Member States, including national courts.  ‹‹The Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the Courts. It follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement directive no 76/207, national Courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 189›› (case 14/83, Von 9 Colson, §§ 26 and ff.)  Progressive extension of the remedy’s scope of application  National provisions older than the directive and therefore lacking any functional link to it (see, e.g., Marleasing case)  Framework decisions adopted under the “old” III Pillar, and this despite the fact that Article 34(2)(b) TEU (pre-Lisbon) specified that such acts had no direct effect (see, e.g., Case C-105/03, Pupino)  General principles of EU law (e.g., Mangold case)  International agreements of which the EU is a party (case C-382/21 P (EUIPO))  In summary, «it is for the national court to determine to what extent all provisions of national law, and more specifically, for the period after their entry into force, the provisions of a law adopted in order to implement Directive 82/76, can be interpreted after the date of entry into force of those provisions in the light of the wording and the purpose of that directive in order to achieve the result pursued by 10 it» (case C-131/97, Carbonari e a, §§ 49 e 50)  The content of the duty of consistent interpretation  «if the application of interpretative methods recognised by national law enables, in certain circumstances, a provision of domestic law to be construed in such a way as to avoid conflict with another rule of domestic law or the scope of that provision to be restricted to that end by applying it only in so far as it is compatible with the rule concerned, the national court is bound to use those methods in order to achieve the result sought by the directive»  «the national court, when hearing cases which, like the present proceedings, fall within the scope of Directive 93/104 and derive from facts postdating expiry of the period for implementing the directive, must, when applying the provisions of national law specifically intended to implement the directive, interpret those provisions so far as possible in such a way that they are applied in conformity with the objectives of the directive […]»  «the principle of interpretation in conformity with Community law thus requires the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law, to ensure that Directive 93/104 is fully effective, in order to prevent the maximum weekly working time laid down in Article 6(2) of the directive from being exceeded».  «when hearing a case between individuals, a national court is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive» (joined cases C- 397/01 a C-403/01, Pfeiffer, §§ 116 and ff.) 11  The limits of the duty of consistent interpretation  Being an interpretative tool, the remedy of consistent interpretation remains subject to the existence of a margin of discretion/appreciation that allows the interpreter to choose among different possible interpretations of the domestic norm  If the national rule can be interpreted only in one way, and the only possible interpretation is contrary to a EU provision, then the remedy of the consistent interpretation cannot be used.  If the EU disposition does not direct effect, the only available remedy is the liability of Member States for breach of EU law (see next class)  The duty of interpretation is not another name for horizontal direct effect of not-transposed directive. 12  The limits of the duty of consistent interpretation (2) No interpretation of domestic law contra legem ‹‹the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non- retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem›› (C-212/04, Adeneler, § 110; C- 268/06, Impact, §§ 100-103) 13  The limits of the duty of consistent interpretation (3) No interpretation of national law in malam partem in the criminal field  In referring to directives when interpreting rules of domestic law, the court must respect the general principles that are part of Community law and in particular those of legal certainty and non-retroactivity, so that the Court shall take into account that a directive cannot have the effect in itself and independently of a domestic law of a member state adopted for its implementation, of determining or aggravating the criminal liability of those who act in violation of its provisions (see case 80/86, Kolpinghuis Nijmegen; see also the Berlusconi case)  Arcaro case (1996): Mr. Arcaro, the owner of a company, is held responsible for illegal cadmium spills into river waters, for failing to obtain the permit required by an EU directive. However, such a permit is not required by national law, which has only partially transposed the relevant EU law on this point.  The interpretation cannot lead to a violation of general principles of law, such as legal certainty or the principle of legality, particularly in criminal matters 14  Thank you! Questions? PROF. AVV. LUCA CALZOLARI, LL.M, PH.D [email protected] 15