8.5.2.1 National courts must take non-binding acts into consideration

The Union courts recognised that an act which does not produce binding legal effects “cannot therefore be regarded as having no legal effect”.1 In Grimaldi, the Union Court recognised that a non-binding act of a Union authority may produce legal effects by providing guidance to national courts.2 Specifically, the Court observes that:

Some debate exists about whether the Grimaldi obligations extend to non-binding acts beyond recommendations. Senden observes that the Union courts themselves are not very willing to take any account of interpretative acts which would render it arbitrary for them to impose a heavier burden upon the national courts. While this is perhaps a fair critique on the Grimaldi obligations as such, it is not a convincing argument as to why the Grimaldi ruling would be unsuitable for analogous application to other non-binding acts.4

Importantly, later case law in fact supports the assertion that the Grimaldi obligations also extend to other non-binding Union acts. Besides recommendations, the EU courts have recognised the Grimaldi obligation in relation to ‘joint committee recommendations’,5 ‘conclusions’,6 ‘guidelines’,7 and statements of position.8 Hence, it is reasonable to conclude that Grimaldi is not limited to a specific form of non-binding legal effects.

The question then presents which requirements flow from the obligation of national courts to take non-binding acts ‘into consideration’. In the most intrusive form, the obligation may be interpreted, forwarded by Arnull, as “reminiscent of Von Colson” by imposing an obligation of consistent interpretation of national laws.9 Senden, on the other hand, argues a more restrictive reading of the Grimaldi obligation. Interestingly, she states that an important argument in favour of a restrictive reading is the limited possibility of legal protection against such acts. An extensive application of Grimaldi would amount “to admitting rights and obligations ‘by the backdoor’, also for private parties”.10 However, in reverse, one may argue that because non-binding acts amount to an introduction of rights and obligations by the backdoor, by guiding behaviour and modifying the (perception of) the normative framework, the judiciary should properly acknowledge such effects.

More recent case law indicates that the Grimaldi requirements are, in fact, quite severe. In Koninklijke KPN and Others, the Court first reiterated Grimaldi:

Interestingly, the Court then further qualified the ‘take into consideration’ obligation:

Accordingly, the requirements provided in Koninklijke KPN and Others are perhaps even stricter than a duty of consistent interpretation. In determining the scope of the obligations stemming from the requirement to take the non-binding act into account, the EU courts seem to distinguish between situations where Union law calls for the adoption of a non-binding act and cases where the non-binding act is adopted purely on the initiative of its author.13 If Union law explicitly requires the adoption of a non-binding act to detail further the exact content of the rule laid down in the binding act, the national courts may not depart from that interpretation except when required on grounds related to the facts of the individual case.

On the other hand, where the adoption of the non-binding act is not required by Union law, the Union courts utilise a substantially less intrusive formulation, specifying that “the national court may (…) take account of [the non-binding Commission guidance] document account”.14 However, this formulation by the Union Court may also have been informed by the formulation of the preliminary question that it sought to answer. Future case law will have to show whether the gravity of the Grimaldi requirements varies depending on whether the non-binding act is required by Union law.