Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/2.3.2.2:2.3.2.2 Contra legem interpretation and disapplying incompatible national law

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/2.3.2.2

2.3.2.2 Contra legem interpretation and disapplying incompatible national law

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

28. A common question is how contra legem interpretation compares to the obligation to disapply a provision that is substantively incompatible with Union law. From the foregoing it follows that, first and foremost, a national court that has to apply a provision of national law in horizontal proceedings falling under the scope of Union law is obliged to interpret the national rule in conformity with the rule of Union law.1 If that appears to be impossible, there are, in theory, three scenarios:

1.

In the specific cirumstances of the case, domestic law allows the national court to apply the technique interpretation contra legem – or an equivalent technique. In such an event the national court can disregard the problematic national provision and apply a different rule to the case at hand.2

2.

The national court cannot apply interpretation contra legem, because the domestic law applicable does not allow such an interpretation method. Nevertheless, on the basis of Union law the national court can review the compatibility of the national provision against the rule of Union law – not being a directive – because this rule of Union law is sufficient in itself to confer a right upon a private party.3 National provisions that are incompatible with the rule of Union law as regards its substance must be disapplied. The consequences of this disapplication for the horizontal legal relationship are determined by remaining law or by an agreement between the parties to the case.

3.

The national court cannot apply interpretation contra legem and neither can the national court disapply a national rule that is incompatible with Union law, because the particular rule of Union law is either a directive, or it is not sufficient in itself to confer on a private party a subjective right that can be invoked as such. In such an event the national court cannot bring solace to the party whose Union right was infringed.4

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