The obligation of consistent interpretation and the validity of domestic procedural law: an unsolved riddle?

• Author: Dr. Pedro Manuel Quesada López
• Profession: Associate Professor of Procedural Law Universidad de Jaén
• Pages: 161-177

161

The obligation of consistent interpretation and the validity

of domestic procedural law: an unsolved riddle?*

D. P M Q L

Associate Professor of Procedural Law

Universidad de Jaén

1. INTRODUCTION

In this chapter, we will proceed with an analysis of the very useful implications

of the principle of consistent interpretation in the respective domestic procedural

law. Doubts about the conformity of domestic procedural law with European

Union law are becoming more frequent, and the complexity of compatibility is

becoming so specific that it requires the application of very specialized knowledge

in both Union law and domestic procedural law, generating grey areas of dubious

scope.

Consistent interpretation of national legislation is the task of national courts,

not the CJEU. Consistent interpretation lies at the core of the relationship

between an EU directive (or other Union legislative act) and provisions of

national law that fall within the directive’s scope. Case law of domestic courts is

regularly preoccupied with the question of how far a court can stretch national

legislation to achieve consistency with a directive.

In this work, we will consider some limits and effects of the application of the

principle of consistent interpretation, both for the CJEU and for domestic courts,

especially in light of the principles of effectiveness, procedural autonomy, and

the rule of reason. We will also explore various interpretative criteria to avoid the

collision of norms in the context of the most recent European case law.

Dr. Pedro Manuel Quesada López

162

2. THE PRINCIPLE OF EFFECTIVENESS IN EUROPEAN UNION

LAW: FUNDAMENTAL CHARACTERISTICS

Scholarly doctrine has discerned various dimensions of the principle of

effectiveness 1. One can consider the effectiveness of specific normative or

legislative provisions of European Union law (which would be safeguarded

through mechanisms like direct effect or consistent interpretation, for instance);

effectiveness in the pursuit of the Union’s objectives and the protection of

its fundamental values; effectiveness in the allocation of competences; or

effectiveness in the functioning of processes and procedures. These dimensions

of the effectiveness procedure naturally and logically intertwine with each other 2.

In particular, the principle of effectiveness can be conceptualized within

domestic procedural regulations to ensure compliance with European law. This

involves the synergy of the effectiveness of normative or legislative provisions of

European law, to which, depending on the corresponding legal act, the effects,

scope, and binding implications of Article 288 TFEU would be attributed 3.

This, in itself, generates binding effects for the Member States. Simultaneously,

it addresses the effectiveness in the functioning of various processes regulated in

diverse domestic legal systems.

In a negative conception, it is directed at rules of national procedural law that

may hinder effective protection for the rights of individuals arising from the direct

effect of Union law 4. Indeed, the fundamental importance of this approach is

underscored by the manner in which it gives effect to Union law, prompting some

doctrinal perspectives to assert that consistent interpretation takes precedence

over direct effect 5.

The case law of the Court of Justice, in addressing the amalgamation of the

scope of consumer protection offered by Directive 93/13 with the diverse civil

procedural laws of the Member States, has chosen to enhance the consumer’s legal

1 Vid., by way of example, the differentiation of S R-E, D., El control de

proporcionalidad de la actividad administrativa, Valencia, Tirant lo Blanch, 2004, pp. 661-663. In the author’s

opinion, the first group would include the evaluation of the conformity of national procedural rules

with Community law (procedural effectiveness). This would include the actual possibility of exercising

Community subjective rights, and national procedural rules are judged. The second group would

include the substantive rules that would accompany Community rights, and effectiveness would be aimed

at preventing national substantive rules from distorting the guarantees of Union law; and finally, when

fundamental rights come into play.

2 O, M., «A reading of the EU constitutional legal system through the meta-principle of

effectiveness», Cahiers de droit europeen, vol. 52, 1, 2016 p. 101.

3 This would encompass everything that would make the Union’s normative provisions possible:

interpretation, application, implementation and enforcement in order to achieve full and effective force

and effect. It would also include consistent interpretation, useful effect, direct effect, or direct applicability.

4 Q L, P. M., El principio de efectividad del Derecho de la Unión Europea y su impacto en el

Derecho procesal nacional, Madrid, Iustel, 2019, pp. 100-101.

5 B, G., «The Doctrine of Consistent Interpretation», en P, J. y S, A.

(coords.) Direct effect. Rethinking a classic of EC legal doctrine, Europa Law Publishing, Groningen, 2002, p. 103.