The Hybrid Methodology for the EU Principle of Consistent Interpretation

The duty of judges to interpret domestic law in accordance with EU directives (consistent interpretation) still presents unresolved interpretative challenges: How does it affect domestic principles of statutory interpretation? Does it require judges to depart from traditional principles of construction and, if so, to what extent? Does it extend the limits of the judicial function as accepted under national law? What are its interpretative limits? My paper (forthcoming in Statute Law Review) answers these open questions. It takes the fragments of a European methodological standard for consistent interpretation from the case law of the Court of Justice of the European Union (‘CJEU’) and puts them into a coherent framework labelled ‘European methodological rules’. The article also refers to judgments of English and German courts in order to assess whether Member States’ courts correctly apply and accept European methodological rules.

Two ‘European methodological rules’ are being identified in the case law of the CJEU: the interpretative priority rule and the presumption of compliance rule. According to the interpretative priority rule, a domestic court must favour the interpretation of the national legislation which is the most consistent with the result sought by the directive in order to thereby achieve an outcome compatible with the provisions of the directive. The priority rule is limited to a selection rule between different possible meanings of an enactment. A second European methodological rule is the presumption that the domestic legislature intended to transpose the directive fully and correctly into national law. This presumption influences how a judge arrives at possible meanings of an enactment and bears upon the range of possible meanings. The key significance of the presumption is that a court must assume that the national legislature intended to comply entirely with the requirements of the directive. The paper shows that the European presumption of compliance can have far-reaching consequences in the event that the legislative history of an implementing act contains inadvertent inconsistencies with EU law. This can occur if (a) a specific objective of an enactment is expressed in the legislative history but contradicts the directive’s requirements as subsequently interpreted by the CJEU and (b) there is no indication that the legislature realised the inconsistency. The Member State has thus erred with regard to the correct construction of the directive’s requirements. This scenario has exasperated German courts and has also featured in the Court of Appeal of England and Wales.

This presumption of compliance can only be rebutted if a national court reaches an outer limit of consistent interpretation which bars the directive-consistent meaning (contra legem limit). The paper defines the contra legem limit and highlights some of its misinterpretations in legal scholarship. For example, the CJEU has not yet decided whether clear and unambiguous statutory language of national legislation marks or does not mark the contra legem limit by virtue of European law. This question is decided by domestic law and national methodologies can differ between Member States. It is thus possible that the duty of consistent interpretation is applied differently. The paper clarifies that the CJEU has not interfered with this conception of the contra legem limit for copy-out legislation in its Spedition Welter judgment.

European methodological rules interact and apply together with national legal methods. The article resolves the seeming paradox that the CJEU can refer to domestic standards and at the same time intervene in the methodology of consistent interpretation by stipulating European methodological rules. It provides a theoretical framework for the relationship between both regimes. This relationship can be described with the concepts of overlapping, intervention and Europeanisation from the inside. For example, a court must apply the European rules if they permit a consistent interpretation of legislation and if the court cannot reach the result sought by the directive by applying domestic standards alone. In this intervention scenario, the European rules increase the scope for interpretation available to a judge.

As the relationship between national and European interpretative rules shows, the methodology for consistent interpretation integrates a top-down and a bottom-up approach. This methodology is neither solely domestic nor European, but bears elements of both legal orders. Therefore, the EU legal duty of consistent interpretation is, according to its methodological design, a hybrid legal instrument.

Martin Brenncke is Erich Brost Career Development Fellow in German and European Union Law at the University of Oxford.