Einde inhoudsopgave
Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/5.3.1
5.3.1 Horizontal proceedings? Consistent interpretation above all
mr. I.V. Aronstein, datum 01-09-2019
- Datum
01-09-2019
- Auteur
mr. I.V. Aronstein
- JCDI
JCDI:ADS141499:1
- Vakgebied(en)
EU-recht / Algemeen
Burgerlijk procesrecht / Algemeen
Voetnoten
Voetnoten
In Faccini Dori the Court of Justice clarifies first that although the directive in question is unconditional and sufficiently precise, it cannot impose obligations upon private parties (paras. 12-25). Subsequently, the Court recalls that in horizontal proceedings national courts are obliged to interpret national law in conformity with the directive (paras. 26). Lastly, the Court discusses the option of Member State liability in case consistent interpretation is impossible (paras. 27-29). CJ 14 July 1994, Case C-91/92 (Faccini Dori).
See also the recapitulising paragraphs in CJ 4 July 2006, Case C212/04 (Adeneler). Although, as noted, the duty of consistent interpretation relates to all sources of Union law, the current chapter focuses on directives.
Cf. CJ 24 January 2012, Case C-282/10 (Dominguez), para. 23. CJ 17 April 2018, Case C‑‑414/16 (Egenberger), para. 71. CJ 11 September 2018, Case C-68/17 (IR/JQ), para. 63.CJ 6 November 2018, Joined Cases C-569/16 and C-570/16 (Bauerand Broûonn), paras. 25 and 65. CJ 22 January 2019, Case C-193/17 (Cresco Investigation), paras. 72-80.
Like direct vertical effect or setting aside a provision of national law. See Chapter 2 and the sections below.
Cf. CJ 19 April 2016, Case C-441/14 (Dansk Industri), para. 46. CJ 24 January 2012, Case C-282/10 (Dominguez), para. 27. CJ 4 July 2006, Case C-212/04 (Adeneler), para. 111. CJ 6 November 2018, Joined Cases C-569/16 and C-570/16 (Bauerand Broûonn), paras. 25 and 65-66.
E.g. CJ 17 October 2018, Case C-167/17 (Klohn), paras. 61-65; CJ 24 January 2012, Case C-282/10 (Dominguez), para. 25; CJ 15 April 2008, Case C-268/06 (Impact), para. 100; CJ 23 April 2009, Joined Cases C‑‑378/07 to C‑‑380/07 (Angelidaki), para. 199. Prechal 2005, pp. 203-208.
CJ 4 July 2006, Case C-212/04 (Adeneler), para. 110.
This can be derived from a number of rulings of the Court of Justice in which the Court interpreted a directive in a way that would have a considerable negative impact on one of the private parties to the case to which the interpretation would apply via consistent interpretation of national law with the directive at hand. See e.g. CJ 22 April 1997, Case C-180/95 (Draehmpaehl); CJ 13 July 2000, Case C-456/98 (Centrosteel); CJ 27 June 2000, Joined Cases C-240/98 to C-244/98 (Océano); CJ 17 October 2018, Case C-167/17 (Klohn), para. 48.
CJ 17 October 2018, Case C-167/17 (Klohn), paras. 66-71 and dictum.
CJ 24 January 2012, Case C-282/10 (Dominguez), para. 25. See §5.2.1.2 and footnote 26 supra.
CJ 4 July 2006, Case C-212/04 (Adeneler), para. 124; CJ 17 October 2018, Case C-167/17 (Klohn), paras. 34-45.
241. Directives lack direct horizontal effect and can thus not be relied upon as such in proceedings between private parties. In such proceedings, falling within the scope of a directive, national courts are, above all, obliged to interpret national law in conformity with that directive.1 The doctrine of consistent interpretation has been crystallised to a great extent. In §2.3.1 the main elements of this duty have been set out.2 In Dominguez the Court of Justice emphasised that only after a national court has concluded that no consistent interpretation of a national provision with a directive proves possible, the question arises whether that national provision must be disapplied.3 Irrespective of the nature of the legal relationship, in each case falling within the scope of Union law, above all other possibilities4 a national court must first do whatever lies in its jurisdiction to interpret national law in conformity with Union law.5
Nevertheless, the Court of Justice recalls that the principle of interpreting national law in conformity with Union law has certain limits.6 First, national law must serve as a starting point. Logically, if in a particular case there is no national law available for consistent interpretation, the duty does not exist. In such a case an action against the Member State should be considered. Second, interpretation cannot be in conflict with general principles of law, which particularly means that the result of consistent interpretation may not be unacceptable in light of the principle of legal certainty and the prohibition of retroactivity.7 This does however not imply that any unexpected outcome would qualify as incompatible with the principle of legal certainty.8 In Klohn the Court of Justice has added that also the force of the res judicata of a judicial decision can limit the duty of consistent interpretation.9 Third, the duty of consistent interpretation cannot serve as a basis for interpretation contra legem, which means that Union law neither requires nor prohibits interpretation contra legem: it is a question governed by national law.10 Fourth, the duty of consistent interpretation exists only after the expiry of the implementation period.11 Given the case law of the Court of Justice, it can legitimately be stated that the limits of the duty of consistent interpretation should be applied restrictively and that, overall, national courts have to do everything they can possibly do to interpret national law in conformity with Union law.