The Doctrine of Consistent Interpretation: Managing Legal Uncertainty

Author(s): Gerrit Betlem

Source: Oxford Journal of Legal Studies , Autumn, 2002, Vol. 22, No. 3 (Autumn, 2002),
pp. 397-418
Published by: Oxford University Press

Stable URL: https://www.jstor.org/stable/3600652

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Oxford Journal of Legal Studies, Vol. 22, No. 3 (2002), pp. 397-418

The Doctrine of Consistent

Interpretation-Managing Legal
Uncertainty
GERRIT BETLEM*

Abstract-This article reviews ECJ case law on the conceptualizat

circumscription of the doctrine of consistent interpretation, reflecting
importance as a mode of giving effect to Community law before na
Legal uncertainty, an inherent characteristic of the technique, shou
is argued, by improving the reasoning of the ECJ's judgments. In p
critical discussion of the Arcaro judgment concludes that its precede
limited. A parallelism in approach to both consistent interpretation
is suggested. Partly, this has already been achieved insofar as the
the transposition period of directives is concerned. In addition, th
a reform of the case law on consistent interpretation in actions by
individuals and offers explanations for the seemingly inconsistent n
producing a horizontal impact of directives despite the lack of horizo
properly so-called (incidental effects). In considering whether the d
to unacceptable legal uncertainty, a comparison with the interpr
under the UK Human Rights Act 1998 is made, which produces s

1. Introduction

This overview examines cases by the European Court of Justice (ECJ) dealing
with aspects of the principle of consistent interpretation which were hitherto
unsettled or which highlight its sometimes hidden nature. In certain situations-
so-called horizontal relations between private parties-there is debate in the legal
literature whether either consistent interpretation or direct effect has been used.
This article suggests reforms that seek to develop a parallelism between these
two doctrines-direct effect and consistent interpretation-as well as ways and
means for coping with legal uncertainty.
What is meant by 'consistent interpretation? In broad conceptual terms, a
norm of EC law is used as an aid to the interpretation of another rule; the latter
is the one actually being applied by a court (or other authority) but is construed
in the light of the former. That is to say, it is being interpreted consistently with
* Senior Lecturer in EU and International Business Law, University of Exeter; email: g.betlem@exeter.ac.uk.
This article is based on a paper presented at the Conference 'Direct Effect; Rethinking a Classic of EC Legal
Doctrine', Amsterdam, June 2001 and builds on G. Betlem: Civil Liability for Transfrontier Pollution (1993) and
'The Principle of Indirect Effect of Community Law', 3 ERPL I (1995).
@ 2002 Oxford University Press

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398 Oxford Journal of Legal Studies VOL. 22
the hierarchically higher norm of EC law. As will become ap
method thus differs fundamentally in theory from the doctrine
where a court simply applies the relevant norm of Commu
(directly), if necessary, displacing any conflicting rules of
The method involving consistent interpretation seeks to solv
conflicting norms regulating the same issue or between a hig
constraining the effect of a lower rule by way of choosing
possible interpretations. The impact of the rule of EC law o
therefore an indirect one. There is a close analogy with inter
employed by courts in jurisdictions with a written constitution
conflicts between their legislation and the constitution: in
fassungskonforme Auslegung (interpretation in conformity with
A conflict between the Constitution and another lower rank
by construing the latter consistently with the former. By the s
courts employ this technique in the context of the impact of pu
law on domestic legislation. Generally speaking, it is a canon
that statutes should not be so construed that they would vio
law, whenever another possible interpretation remains.2
A good example is the UK House of Lords 1999 Pinochet ju
the (English) State Immunity Act of 1978 was interpreted in
the law of nations. The Act entitles a former head of state t
prosecution in the performance of official duties. Accordin
Lords,

those functions can[not], as a matter of statutory interpretation, ex

are prohibited as criminal under international law. In this way o
one must seek to do, the provisions of the Act of 1978 with the req
international law.3

This canon also applies in the Community legal order. In fact

consistent interpretation works within several contexts, as a
Three levels can be distinguished. First, the national law level
to EC law within the domestic legal sphere. Second, the l
Community law which must be construed in conformity with
And third, the level of the Community legal order (primar
law) vis-ai-vis public international law.5 Here one is dealing w

See M. H. Wissink, Richtlijnconforme interpretatie van burgerlijk recht (2001), No. 168
2 See generally Sacha Prechal, Directives in European Community Law (1995) at 201 a
Cottier and K. N. Schefer, 'The Relationship between World Trade Organization Law
Law', 1 Journal of International Economic Law (1998) 82, 88; on English law, see Mur
Rights Law in English Courts (1998), at 14-25 and ch 8.
3 R. v Bartle and the Commissionar of Police for the Metropolis and Others, ex parte Pin
Lord Philip of Worth Matravers.
4 See e.g. Case C352/95 Phytheron [1997] ECR 1-1729; Case C-135/93 Spain v Co
1651, para 37; Case C-90/92 Dr Tretter [1993] ECR 1-3569.
5 See in particular Case C-284/95 Safety Hi-Tec [1998] ECR 1-4301, para 22; Cas
Germany [1996] ECR 1-3989 (re International Dairy Agreement); Case C-70/94 Werner
23 and Case C-83/94 Leifer [1995] ECR 3231, para 24: GATT and the Dual Use Goo

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AUTUMN 2002 The Doctrine of Consistent Interpretation 399
Community law in conformity with the international legal obligations incumbent
on the EU; in turn, this may require an interpretation of-again-national law
giving effect to, say, a Community law Regulation; the whole track of national-
EU level must be construed in accordance with the overarching instrument of
public international law.6 In all three spheres a form of indirect effect is given
to the higher norm by using it to inform the construction of the lower one.
Hereafter, the discussion is limited to the impact of EC law, in particular
directives, on domestic law, i.e. the interpretation of national law in conformity
with a Directive.

2. The Doctrine of Consistent Interpretation: the Von

Colson Principle
Until around the 1990s, the legal literature on EC law focused on one mode of
giving effect to Community law before national courts: the doctrine of direct
effect (in combination, of course, with supremacy).' The significance of the
doctrine of consistent interpretation as an equally important method of giving
effect to EC law was not appreciated in full. Presently, textbooks still tend to
devote many more pages to direct effect than to consistent interpretation but
the doctrine's autonomous value is generally appreciated.8 Indeed, it can be said
that it is currently the main form of ensuring effect of directives whether correctly,
incorrectly or not transposed at all.' In the light of its theoretical origins in the
relationship between public international and domestic law this is unsurprising;
a potential conflict of norms in that sphere would first of all be addressed by a
'defusing' interpretation.
Under EC law, the doctrine of indirect effect has priority over direct effect:
in the event of a potential conflict between a European Community and a
domestic norm, a court will first seek to neutralize such a clash by way of
'reconciling interpretation'; it is only where this proves to be unfruitful that the
doctrine of direct effect is employed, setting aside the national law provision and
directly applying the European one."1 The interpretive obligation is relevant to
two distinct situations: both where the directive in question has and has not
been properly transposed." Indeed, because Community law requires that the
result envisaged by the directive must be attained in law and in fact, judicial
interpretation and application will often be decisive for the correct transposition

6 See most recently Case C-89/99 Schieving-Nijstad and Others [2001] ECR 1-5851 (judgment of 13 September,
2001), [2001] 1 CMLR 44, para 55.
7 See e.g. Jean-Victor Louis, The Community Legal Order (2nd edn, 1990) at 107.
8 Representative texts are Paul Craig and Grdinne De Bfirca, EU Law. Text, Cases and Materials (2nd edn,
1998) and T.C. Hartley, The Foundations of European Community Law (4th edn, 1998).
9 Wissink, above n 1 at No. 49.
10 Opinion of A-G Darmon in Case C-177/88 Dekker [1990] ECR at 1-3958; Prechal, above n 2 at 205; R.H.
Lauwaars and C.W.A. Timmermans, Europees gemeenschapsrecht in kort bestek (1997) at 100.
" Prechal, above n 2 at 210 et seq.; see for an example of the decisiveness of a Directive even after correct
transposition, British Horseracing Board v William Hill [2001] 2 CMLR 12 (at 215).

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 400 Oxford Journal of Legal Studies VOL. 22
of it.12 Numerous references for preliminary rulings have b
context; a notable example is the Transfer of Undertakings D
fact, gave rise to so much case law-all after correct and timely tr
the Council adopted a codified version to enhance manageabil
Where the legislature has timely and correctly transposed t
normal situation-a court is unlikely to encounter the bounda
interpretation. However, in the absence of such a transpositio
situation-and where there is some discrepancy between the
directive and the implementing legislation, Community law does
judicial creativity.'"
The requirement of consistent interpretation in situations
deficiencies follows from the Von Colson case. There the ECJ
authorities of the Member States' must interpret their nation
of the wording and the purpose of the directive in order to
referred to in the third paragraph of Article 189 EC (now Art. 2
must, insofar as they are given discretion to do so under nati
and apply that law, and in particular the implementing legislation
with the requirements of Community law (ibid, para 28).
This interpretive obligation was extended in Marleasing;16 t
as follows:

[I]n applying national law, whether the provisions in question were adopted before or
after the directive, the national court called upon to interpret it is required to do so,
as far as possible, in the light of the wording and purpose of the directive [para 8].

The cited passage has become the standard terminology.17 The ECJ subsequently
even prescribed to the national court the outcome of this exercise and held that
the requirement to construe national law in conformity with the Directive
'precludes' the interpretation of the former in such a manner that other grounds
of nullity of companies than the ones listed in the Directive apply (para 9; the
Marleasing case involved company law). It follows that the Community law
doctrine of consistent interpretation goes further than a general spur to 're-
conciling interpretation'. In fact, in outcome-and even in formulation: 'Com-
munity law precludes application of national law'-the result is the same as for
direct effect, despite, as is well-known, the absence of direct effect of directives
in horizontal relations (dispute between two private parties). The way effect was
given to the Directive in the present case boiled down to a 'prohibition' against

12 Case C-300/95 Commission v UK [1997] ECR 1-2649 (re Product Liability Directive).
13 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States
relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of
undertakings or businesses, O.J. 2001 L 82/16.
14 Prechal, above n 2 at 214.
15 Case 14/83 Von Colson and Kamann [1984] ECR 1891, para 26; see also Case 79/83 Harz [1984] ECR 1921.
16 Case C-106/89, [1990] ECR 1-4135.
17 See most recently Case C-456/98 Centrosteel [2000] ECR 1-6007 (judgment of 13 July, 2000), [2000] 3
CMLR 711 and C-365/98 Brinkmann II [2000] ECR 1-4619 (judgment of 15 June, 2000).

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AUTUMN 2002 The Doctrine of Consistent Interpretation 401
the Spanish court applying a provision of the Civil Code insofar as it would
produce a result not envisaged by the Directive.'8
It seems to me that this obligation not to apply a rule of national law if it is
contrary to the Directive, as a matter of interpretation of domestic law where
there is a choice between different relevant rules is one of the most important
aspects of the doctrine. The crucial point is that as long as no legal vacuum is
created by the impact of the Directive, courts will stay within the bounds of
interpretation.19 They simply apply another rule of domestic law or, as in
Marleasing itself, decline to apply a general provision of contract law to the
specific situation in hand, which can be regarded as interpreting the scope of
that rule in the light of the facts of the dispute and a Directive. Consider a
situation comparable to Marleasing, where reliance on a ground of nullity of a
company under Spanish law was blocked; national contract law lays down a
requirement to register a contract subject to the sanction of nullity for non-
compliance with this requirement.20 If and when a Directive rules out such a
registration, all the national court has to do is to simply uphold the contract as
a matter of construing the three types of rules in issue: the registration re-
quirement, the nullity of contracts rules and the Directive. Admittedly, the
impact of a Directive in such a context may be regarded as stretching the notion
of interpretation, but it is doctrinally quite acceptable, in my view.21
To date the most far-reaching application of consistent interpretation has been
confined to sanctioning infringements of the prohibition of sex discrimination
as laid down in Directive 76/207/EEC on Equal Treatment of Men and Women,22
where an employer-despite the absence of direct effect-was held liable in a
situation where there would not have been liability under the applicable national
rules. The ECJ ruled that the mere breach of this prohibition suffices for civil
liability 'without there being any possibility of invoking the grounds of exemption
provided for by national law' (Dekker case).23 In other words, the national court
was obliged not to apply any grounds of justification and the requirement of
fault, as applicable to the dispute under the Dutch tort law system. In the
Draehmpaehl case of 1997,24 the ECJ affirmed its decision in Dekker. The pattern
is becoming familiar: because the limits to liability under, in this case, German
law may not be applied, the employer-in the context of the doctrine of consistent
interpretation-incurs more liability than under German law applied in isolation

18 See also Case C-421/92 Habermann-Beltermann [1994] ECR 1-1657 and more recently, Case C-456/98
Centrosteel [2000] ECR 1-6007; [2000] 3 CMLR 711.
19 Cf Miriam Lenz et al., 'Horizontal What? Back to basics' (2000) 25 ELRev 509, 519-520 analysing what
they call 'l'invocabilitr d'exclusion': a blocking effect by a Directive on national law.
20 See Case C-215/97 Bellone v Yokohama [1998] ECR-I 2191.
21 See also Opinion of A-G Jacobs of 13 July, 2000 in Case C-456/98 Centrosteel [2000] ECR 1-6007; [2000]
3 CMLR 711, No. 36. But see Anthony Arnull et al., Wyatt and Dashwoods's European Union Law (4th edn, 2000)
at 94: cannot be called interpretation at all.
22 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment
for men and women as regards access to employment, vocational training and promotion, and working conditions,
O.J. 1976 L39/40; see also Amended Proposal to amend the Directive, O.J. 2001 C 270 E/9.
23 Case C-177/88, [1990] ECR 1-3941, para 25.
24 Case C-180/95 Draehmpaehl [1997] ECR 1-2195.

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 402 Oxford Journal of Legal Studies VOL. 22
(that is without the Directive). However, it should be noted t
had introduced a lex specialis into its law of damages, restricting
discrimination cases. Not surprisingly, these restrictions wer
law. Now that the Directive precludes its application, the lex gen
Code will have to be applied. In itself that cannot be objecti
Neither could one say that the ECJ forced an interpretatio
contra legem (i.e. effectively redrafting express wording) by int
which was not in place at all.25
What these cases do illustrate is the level of uncertainty partie
with in coping with conflicts between directives and national
scope for reconciling them as a matter of interpretation.26 Acco
General Jacobs, this type of uncertainty is in fact less accept
fully fledged horizontal direct effect to directives: that is, he ar
the latter partly because of a worse state of legal uncertainty un
of consistent interpretation.27 However, others argue that
uncertainty in the interpretation context is acceptable and n
different from the purely national context.28 To an extent,
inevitable, in my view, and inherent in the notion that the
ambiguity in the national rule for it to be construed consistently
law ('... as far as possible ...').
It is less satisfactory that the ECJ has not always been consiste
the duties EC law imposes on the national courts. As noted
that a directive precludes the application of a rule of national law
is a far reaching obligation which leaves little scope for any in
those courts. In subsequent cases the ECJ has not retreated fr
radical approach because it followed exactly this pattern in th
of 2000 (see further below). What looked like a retreat from M
cases in this interim is apparently not a general rule.29 Below
contributing to the uncertainty surrounding consistent inte
examined.

25 See opinion of A-G Van Gerven in Case C-106/89 Marleasing [1990] ECR at 1-4147.
26 See also P. Craig, 'Indirect Effect of Directives in the Application of National Legislation' in M. Andenas
and F. Jacobs (eds), European Community Law in the English Courts (1998) 37 at 53.
27 Opinion of AG Jacobs in Case C316/93 Vaeetveld [1994] ECR 1763, No. 31. Cf e.g. Joined Cases C-240-244/
98 Ocnano Grupo [2000] ECR 1-4941 (also known as Murciano Quintero; judgment of 27 June, 2000), where A-G
Saggio concluded there was no possibility to construe any rule of Spanish law in conformity with the Directive
(No. 28-29); nonetheless, the ECJ instructed the national court to do just that (para 32); see also the case note
by Stuyck in 38 CMLRev. 719 (2001).
28 Aidan O'Neill, Presentation at Conference 'Enforcing Community law before national courts: ten years of
Francovich', Trier, Academy of European Law, 14 May 2001; cf, in WTO context, Cottier and Schefer, above n
2.

29 See in particular Case C-334/92 Wagner Miret [1993] ECR 1-6911 where the ECJ leaves it up to the national
court to decide whether it can give a consistent interpretation (probably not, para 22) 'without dictating' the
outcome.

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AUTUMN 2002 The Doctrine of Consistent Interpretation 403

A. The Time Factor: Is Expiry of Transposition Period for Directives

Relevant?

One aspect of the doctrine of consistent interpretation which contributes to legal

uncertainty and is controversial in legal doctrine concerns the relevance or
otherwise of the expiry of the transposition period.30 In one interpretation of
Kolpinghuis Nijmegen the interpretive obligation applies even before expiry of the
transposition period (although legal doctrine frequently criticizes this result).31
A more balanced approach to this issue, according to Advocate General Jacobs,32
is to distinguish between a broad and a narrow duty to construe national law
in conformity with EC law. The narrow duty relates to the specific implementing
provisions. If these are in force before the deadline for transposition has expired,
those provisions must be construed in the light of the directive. Consequently,
the narrow duty concerns situations of timely implementation and can be
assimilated to what has been termed above 'normal' consistent interpretation.
The broad duty, on the other hand, concerns all the relevant national law and
operates especially in cases of non-implementation. The Advocate General
contends that this duty can only apply after expiry of the period for im-
plementation to prevent the national court from being obliged to pre-empt any
action by the national legislature.
Taking up the thread of parallelism in the application of the doctrines of direct
effect and consistent interpretation, it would be advantageous if the basic
attributes of the two doctrines do not differ too much; the less unnecessary
complexity, the easier it is for practitioners to manage the doctrines and thereby
give effect to Community law. As said, there is authority for the view that it
follows from the Kolpinghuis judgment that national courts have to start applying
consistent interpretation before expiry of the period for transposition of the
Directive. As is well-known, a directly effective provision of a Directive can only
be relied upon after that period has expired. In fact, the ECJ went as far as
saying that it cannot produce any effect capable of being taken into account by
national courts before that date.33
In the light of such apparent and unjustified inconsistency between direct
effect and consistent interpretation it is no surprise that national courts have
queried the ECJ on various occasions whether they indeed must ignore the
transposition deadline. For example in Mendes Ferreira it was asked, in the
context of the Directives on compulsory car accidents insurance, whether such
interpretation had to be employed even where the accident took place before
the end of the transposition period.'4 Unfortunately, the ECJ did not give an

30 See e.g. U. Ehricke, 'Die richtlinienkonforme Auslegung nationalen Rechts vor Ende der Umsetzungsfrist
einer Richtlinie', EuZW 1999, 553.
31 Case 80/86, 1987] ECR 3969. See e.g. the Opinion of A-G Darmon in Joined Cases C-87 to 89/90 Verholen
[1991] ECR 1-3757, No. 15. See also Craig, above n 26 at 45 and Prechal, above n 2 at 23-24.
32 Opinion of A-G Jacobs in Case C-156/91 Mundt [1992] ECR 1-5567.
33 Case C-148/78 Ratti [1979] ECR 1629, para 47.
34 Case C-348/98 Mendes Ferreira [2000] ECR 1-6711 (judgment of 14 September, 2000).

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 404 Oxford Journal of Legal Studies VOL. 22

answer as that particular point was not relevant in the lig

other questions.
However, guidance on this matter can be gleaned from C
with the Directive on commercial agents and basically fo
judgment of the ECJ, the case of Bellone.36 Indeed, Centro
the same situation as the earlier Bellone judgment, namely the
of a contract under Italian law where it was not entered in a re
agents, whereas, under the Directive no such requiremen
allowed. The national court knew that this had already bee
but expressed its doubt as to how to apply the ruling in t
effect between individuals which would seem to entail that
the Italian Act with the registration requirement. Accordi
before the ECJ is how to give effect to the Directive betw
The ECJ acknowledged that the situation here is identic
recalled that it had ruled that the Directive precludes impo
requirement. Does that mean that the Directive thus impo
a private person? It does not. Citing the Marshall I and Fa
confirm that a Directive cannot of itself impose obligation
Court likewise reiterates its standard phrase on consistent
as possible interpret relevant national law, whether adop
Directive in the light of the Directive's wording and pur
follows that in keeping with settled case law, consistent inter
to block the application of a provision of national law at o
in a dispute between private parties.
The next paragraph does more than merely confirm prev
the ECJ says: 'Where a court is seised of a dispute falling
the Directive and arising from facts postdating the expir
transposing the Directive, the national court, in applying p
law or settled domestic case-law', must interpret that law s
the aims of the Directive (para 17). The new elements here are: (i) facts
postdating expiry transposition period and (ii) reference to case law. In no other
ruling on consistent interpretation has the Court included a reference to the
temporal aspect regarding the facts of the dispute having taken place after the
period for transposition has expired.
It now also refers to settled domestic case law, which is important but
less relevant to the issue of parallelism between direct effect and consistent
interpretation. Of course, where the national law consists of case law any required
reinterpretation cannot be limited to legislation alone. This significance of

35 Case C-456/98 Centrosteel [2000] ECR 1-6007 (judgment of 13 July, 2000); [2000] 3 CMLR 711.
36 Case C-215/97 Bellone v Yokohama [1998] ECR-I 2191.
37 Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority [1986] ECR 723; Case C-
91/92 Faccini Dori v Recreb [1994] ECR 1-3325.
38 Citing Case C-106/89 Marleasing [1990] ECR 1-4135; Case C-334/92 Wagner Miret [1993] ECR 1-6911;
Faccini Dori, and Joined Cases C-240-244/98 Ociano Grupo [2000] ECR 1-4941 (also known as Murciano Quintero;
judgment of 27 June, 2000).

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AUTUMN 2002 The Doctrine of Consistent Interpretation 405

national courts' case law regarding the interpretation of domestic law in the light
of directives has been emphasized previously by the ECJ, albeit in a different
context. In an infringement action judgment regarding the Product Liability
Directive,39 it held that an infringement action by the Commission for incorrect
implementation may be premature in the absence of domestic case law (except
where any discrepancy between the Directive and the national law is a priori
irreconcilable and only one interpretation, contrary to the Directive, is con-
ceivable). In other words, without such case law, it cannot be determined whether
the Directive had indeed been incorrectly transposed. As for Centrosteel, the
incompatibility between the Directive and Italian law was in fact produced by
case law of the Italian Corte di Cassazione, not by any legislative provision."4 It
is probably for that reason that the ECJ now included a reference to settled
domestic case law in the 'Marleasing-formula'. It is in this light that the ECJ
rules in paragraph 18 of Centrosteel that it does not have to deal in detail with
the substantive questions in hand as the Italian court 'may' resolve them 'on the
basis of the Directive' and its case law on consistent interpretation.
Unfortunately, regarding the more important new element of Centrosteel, the
inclusion of the term 'post-dating', the Court is not unequivocal as to whether
it is indeed included as a conditional requirement of the doctrine of consistent
interpretation. Ambiguity remains as the facts of the dispute here apparently did
relate to an event post-dating the expiry of the Directive's transposition period
so that the inclusion of this factor does not impose an additional constraint on
the national court in this particular dispute. Also, the operative part of the
judgment does not include it. The 'post-dating' issue is an obiter dictum here
which could not affect the outcome of the Court's ruling, unlike in the cited
Mendes Ferreira case where the facts of the dispute before the national court
occurred before that crucial date. In other words, if the ECJ had answered the
preliminary questions on consistent interpretation in the latter case it would also
have had to confirm its introduction of the postdating-restriction in Centrosteel
and thus rule that the Directive could not be given any effect. Subsequent
references for preliminary rulings in situations pre-dating expiry of the trans-
position period are needed to determine the precedent value of Centrosteel on
this point.
Tentatively, in recollection of the fact that the absence of horizontal direct
effect was also first introduced in an obiter dictum in Marshall I, it is concluded
that the ECJ in Centrosteel has silently overruled its earlier (also somewhat cryptic)
holdings in Kolpinghuis about the role of the transposition period in the doctrine
of consistent interpretation.4' Albeit terse and without any reasoning, it has now
brought this doctrine into line with direct effect by limiting the interpretive

39 Case C-300/95 Commission v United Kingdom [1997] ECR 1-2649.

40 Opinion A-G Jacobs, No. 36. But as is apparent from para 17 of the ECJ's judgment, the Italian Supreme
Court had subsequently changed its case law in line with the Directive.
41 Support for this view may also be gleaned from the denial of any need to interpret a Directive before expiry
of the transposition date and without transposition; implicitly this covered consistent interpretation, see Case C-
165/98 Mazzoleni [2001] ECR 1-2189 (judgment of 15 March, 2001), para.17.

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 406 Oxford Journal of Legal Studies VOL. 22
obligation on national courts to facts occurring after expir
Directive's transposition period.

B. Limits to Consistent Interpretation: the ECJ's Inconsiste

Judgment

Since the Kolpinghuis case, it is well-established that the general principles of

law place limits on the interpretive obligation. It will be remembered that the
ECJ had first decided in this case that also in the context of criminal liability
where the State sought to invoke EC law to the detriment of an individual the
courts are obliged to give indirect effect to a directive (the preliminary question
also asked whether a court was allowed to do so). By contrast, it ruled out any
possibility for the State to rely on direct effect as against an individual (so-called
inverse vertical direct effect). It then considered that the interpretive obligation
'is limited by the general principles of law which form part of Community law
and in particular the principles of legal certainty and non-retroactivity' (para
13). Because the Court refers to non-retroactivity in particular, it would seem
that this reasoning focuses on the criminal liability context, without indicating
what the law is in other contexts (civil and administrative law).
It is true that in Arcaro42 the ECJ addresses in general terms the issue of
consistent interpretation in the state v citizen situation, but the relevant passage:

[the] obligation of the national court to refer to the content of the directive when
interpreting the relevant rules of its own national law reaches a limit where such an
interpretation leads to the imposition on an individual of an obligation laid down by
a directive which has not been transposed [para 42]

is not reiterated in subsequent case law. The mere imposition of an obligation

on individuals is here put forward as a limit to the interpretive obligation without
any reference to the general principles of law, which is difficult to tally with the
cited judgments in Dekker and Draehmpaehl where additional obligations certainly
were imposed as a result of indirect effect in the civil law context. A fortiori, the
ECJ continues in the quoted passage by referring to criminal liability.43
Moreover, it follows from the subsequent Display Workers case44 that the
approach to limit consistent interpretation through the application of general
principles of law (rather than a blanket reference to the imposition of obligations)
still constitutes current law; consequently, no explicit decision by the ECJ has
yet been made about the limits to the interpretive obligation in civil and
administrative cases. For the Court in this case again says that the courts' duty
to construe their national law in conformity with a directive 'is not unlimited,
particularly where such interpretation would have the effect to' determine or
aggravate an individual's criminal liability (para 24). Interestingly, and for the

42 Case C-168/95, [1996] ECR 1-4705.

43 See also Editorial, 'The incidental effect of directives' (1999) 24 ELRev 1, inter alia pointing to Case C-2/
97 IP [1998] ECR 1-8597, para 26.
44 Joined cases C-74 and C-129/95 Procura della Republica v X [1996] ECR 1-6609.

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AUTUMN 2002 The Doctrine of Consistent Interpretation 407
first time, the ECJ specifies the nature of the limit in this type of case (criminal
law; state v citizen) by referring to the 'principle that a provision of the criminal
law may not be applied extensively to the detriment of the defendant, which is
the corollary of the principle of legality in relation to crime and punishment'
(para 25). In addition, the Court explains its approach by pointing to the nulla
poena principle as formulated in Article 7 ECHR.45
This case law is not determinative for the application of the principle of legal
certainty outside the criminal law context. But it is clear now that one must
distinguish criminal cases from others because the crucial principle in Re Display
Workers-the legality principle or nulla poena sine lege-only applies to criminal
liability. Or, in the words of Advocate General Jacobs, affirming the well-
established principles of the doctrine of indirect effect, that 'it may well lead to
the imposition upon an individual of civil liability or a civil obligation which
would not otherwise have existed'."
It is a matter of appreciation when the principle of legal certainty will preclude
an attempt by the state to invoke a non-transposed directive against a private
person in the context of administrative law. The mere fact that the individual is
worse off cannot be enough as this is just what happened in the Dekker and
Draehmpaehl cases (cited above). Whether consistent interpretation boils down
to a kind of direct effect by the back door or whether additional obligations are
imposed on individuals is not decisive, but whether the outcome of a directive-
conforming interpretation of the applicable national law in the case in hand (civil
or administrative) is acceptable in the light of the general principles of law.47
In the civil law context, a distinction must be made between cases where the
state acts against a citizen and horizontal cases (citizen v citizen). In the latter
situation the question arises whose legal certainty should prevail: the one of the
private party seeking to rely on a directive which should have been transposed
into national law at that time, or the legal certainty of the person who invokes
the national law which, contrary to EC law, had not been adapted to the directive?
If and when, in horizontal civil law situations, the possibility of any imposition
of obligations on private parties is denied at all by way of consistent interpretation,
this is detrimental to the rights of another private person-the one invoking the
directive; it also prevents the full effect of the directive (effet utile). In addition
there would be unequal treatment of citizens in states which have and which
have not (yet) transposed the directive." In civil law, it would seem that the
requirements of legal certainty are satisfied because every private person is able
to ascertain on what date the directive must be transposed.49

45 See also the opinion of A-G Ruiz-Jarabo Colomer, Nos. 43-63.

46 Opinion in Case C-456/98 Centrosteel [2000] ECR 1-6007, [2000] 3 CMLR 711, No. 35.
47 Prechal, above n 2 at 242.
48 L. Dommering-van Rongen, Produktenaansprakelijkheid (1st edn, 1991) at 42; Wissink, above n 1 at No. 264.
49 Joined Opinion A-G Jacobs in Joined Cases C-206 and 207/88 Vessoso and Zanetti and in Case C-359/88
Zanetti [1990] ECR at 1-1471.

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408 Oxford Journal of Legal Studies VOL. 22
C. Disguised Indirect Effect and the Communitarization of P
International Law

Both the acceptance of ECJ rulings and the manageability of the modes of giving
effect to Community law would benefit from a more explicit reference to and
better reasoned ruling on how exactly a directive can impact on a dispute between
private parties in the continuing lack of horizontal direct effect. On several
occasions the Court simply interprets the directive in issue, prescribes the result
in unequivocal terms (Community law precludes) and leaves it to the parties
and commentators to work out that this probably was a ruling on consistent
interpretation rather than direct effect because the dispute does not involve a
public authority. Such 'disguised indirect effect' is all the more unsatisfactory
where fundamental doctrinal issues on the relationship between EC and domestic
law are at stake.
This critique may be levied against the Court's judgment in the Ingmar case
where it decided on the territorial scope of the Commercial Agents Directive,
implicitly settling an important theoretical question on the interrelationship
between Community law and national systems of private international law
(conflict of laws), without citing any cases on how to give effect to the ruling in
this horizontal dispute.50 Briefly, as this is not the place to deal with private
(international) law issues, this case established that a rule in that Directive
entitling a commercial agent to compensation- upon termination of the contract
by the principal is applicable even where the whole contract is governed by the
law of a third State. The salient feature of this case is that the agent was based
and operating in the UK but the principal was based in California, USA. Under
relevant rules of private international law, the parties had exercised a choice of
law for Californian law. English law was thus excluded, including, of course,
these protective rules on agent compensation based on the Directive. Therefore
the territorial scope of a protective rule from a Directive was in issue: is that
scope determined by the Directive itself or by the private international law of
the Member State? The English Court of Appeal in its reference to the ECJ
seems to assume that the latter will be the case because it seeks guidance on
interpreting the Directive in the light of the English law principles on mandatory
rules: i.e. rules of English law which apply to a contract even where the whole
contract is governed by another legal system."
The ECJ does not consider the dimension of the national private international
law but focuses on the scope of the Directive as such thus bypassing those rules
of English law on mandatory rules and prescribes the application of the protective
regime of the Directive whenever the situation is closely connected with the
Community such as in this case where the agent is operating in England.
Effectively, the judgment constitutes a Communitarization of the Member States'
rules on private international law through directives in addition to specific

5o Case C-381/98 Ingmar [2000] ECR 1-9305 (judgment of 9 November, 2000) [2001] 1 CMLR 9.
51 Ingmnar GB v Eaton Leonard Technologies [1999] ECC 49 (C.A.).

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AUTUMN 2002 The Doctrine of Consistent Interpretation 409
harmonization of these systems as such on the basis of Article 65 of the EC
Treaty.52 In terms of legal uncertainty, is this a surprising judgment? Most likely
not. This ruling is not wholly unexpected for the national court involved itself
had already pointed out that the same outcome would be quite possible and
even likely where it would apply the doctrine of mandatory rules of English law
(which are of course based on the 1980 Rome Convention on the law applicable
to contractual obligations).53 However, the ECJ does not refer to how to give
effect to its ruling; one must assume that consistent interpretation will be possible.
For the referring court had already established that a 1993 Statutory Instrument
gave effect to the Directive and therefore considered it necessary to refer the
case to the ECJ. Still, the absence of guidance by the ECJ may cast doubt on
the consistency of its case law, in particular in cases which seem to belie the
denial of horizontal direct effect and cause confusion as to whether one deals
with direct effect or with consistent interpretation.

D. The Incidental Effect of Directives

This uncertainty about the delineation between the two techniques is most
notable where it coincides with the uncertainty about the limits to the EC
rejection of horizontal direct effect. The decisive impact of a directive in disputes
involving two private parties proved controversial in the literature; commentator
debate whether the ECJ's case law is inconsistent or not or propose new
terminology to explain the apparent contradictory cases, such as 'incidental
effect'.54 Three cases in particular have fuelled this debate: Pafitis, Ruiz Berndldez
and CIA Security.55 This is not the place for a detailed analysis of these judgments.
Suffice it to say that in my opinion they can all be 'pigeon holed' under direct
effect and consistent interpretation, the two received methods of giving effect to
EC law, and should not be seen as moving away from doctrinal orthodoxy. In
Pafitis, according to Advocate General Tesauro, the dispute before the national
court concerned an act adopted by public authorities, i.e. the Greek Central
Bank and a temporary administrator acting on its behalf, who were responsible
for the management of the formal defendant, a bank in the form of a public
limited company, under Greek law regarding banking supervision.56 In effect,
the Directive in issue was relied upon to preclude the application of these
decisions by public authorities, even though the case, in formal terms concerned
two private parties.

52 Case note on Ingmar by A van Hoek, Sociaal Economische Wetgeving 2001 at 197. See generally, J. Basedow,
'The communitarization of the conflict of laws after the Treaty of Amsterdam' (2000) 37 CMLRev. 687.
53 O.J. 1998 C 27/34 (consolidated version).
54 Editorial, 'The incidental effect of directives' (1999) 24 ELRev 1.
55 Case C-441/93, [1996] ECR 1-1347; Case C-129/94, [1996] ECR 1-1829 and Case C-194/94, [1996] ECR
1-2201.
56 Opinion A-G at No. 25. Given the role of the public authorities with respect to the bank's legal position
one can compare this to the role of public law licences in civil disputes, see English Court of Appeal, R. v Durham
County Council, ex parte Huddleston [2000] WLR 1484; [2000] 2 CMLR 313, No. 18. See generally on this issue
K. Lackhoff and H. Nyssens 'Direct Effect of Directives in Triangular Situations' (1998) 23 ELRev 397.

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 410 Oxford Journal of Legal Studies VOL. 22
As for Ruiz Berndldez, the national court regarded the disp
consistent interpretation of Spanish civil law, including the regu
relations between the insurance company and the insured as
party victims, in the light of the Directives on compulsory m
traffic accidents." In fact, this case is virtually identical to
Centrosteel in that they all involve an exhaustive list of condition
directive-in Ruiz Berndldez a list of permitted exclusions of
preclude the application of additional conditions or exemption
law. The crucial point is that Community law opposes any r
'forbidden fruits' of the national law by way of consistent in
seems to me to be fundamentally different from imposing any fresh-
additional-obligations on the private party concerned; only the latter would
indeed constitute the banned horizontal direct effect of a directive.58
The third noted case, CIA Security, has attracted the most attention and is
perhaps the most confusing given the apparent contradictory views on the chosen
modus operandi between the ECJ and its Advocate General: the former approaches
the case entirely as a matter of (traditional) direct effect whereas the latter refers
to the consistent interpretation of the relevant Belgian legislation on commercial
practices.59 In my view, this case deals with direct effect alone-not with any
possible impact of the directive in terms of an aid to the interpretation of
substantive national law dealing with the same issues as the directive. More
generally speaking, the case involves the interaction between public and privat
law in the sense that the status and validity of public law regulatory standards
determine the private law obligations between private parties (as is common in
environmental and consumer protection law). Undoubtedly, the directive in
issue does not intend to regulate relations between private persons (as a directive
on, say, unfair contract terms in consumer contracts obviously does); Directive
83/189 in fact exclusively concerns the relationship between the European
Commission and the Member States and imposes on the latter the duty to notify
legislation on technical standards before they are adopted so that the Commission

57 Opinion A-G Lenz, Case C-129/94, [1996] ECR 1-1829 at No. 4. See also Case C-348/98 Mendes Ferreira
[2000] ECR 1-6711 (judgment of 14 September, 2000), discussed above: the national court explicitly refers to
consistent interpretation of the Portuguese Civil Code in light of directives on compulsory motor insurance; and
see House of Lords, White and the Motor Insurer's Bureau [2001] 2 CMLR 1 where these same Community law
rules were taken into account to interpret an Agreement between the Motor Insurer's Bureau and the Secretary
of State which implemented a Directive. Even though the House of Lords held that the interpretive obligation did
not apply because the Agreement was not legislation it reached exactly the same result. A term of the Agreement
excluding liability of the insurer was construed narrowly in conformity with the Directive.
58 See also the English Court of Appeal in R. v Durham County Counci,l ex parte Huddleston [2000] WLR 1484;
[2000] 2 CMLR 313, at Nos. 25-26 per Sedley LJ, who thinks that the ECJ's body of case law about this distinction
is coherent.
59 Opinion of A-G Elmer, C-194/94, [1996] ECR 1-2201, No. 72.

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AUTUMN 2002 The Doctrine of Consistent Interpretation 411
can verify their compatibility with the free movement of goods (ex ante super-
vision).60 How can a failure to notify by a Member State be determinative for a
dispute.between two competitors before a civil court?
The answer is that non-contractual (private law) obligations between these
parties under Belgian law were dependent on the lawfulness of technical standards
adopted under Belgian public law. One producer of alarm systems, Signalson,
contends that its competitor, CIA Security, markets defective systems as they
do not comply with the Belgian standards, whereupon CIA Security sues
Signalson and seeks an injunction restraining further statements about CIA
Security's allegedly unlawful/defective product. In broad terms, the legal basis
for this action in most Member States would be the law of tort (negligence or
breach of statutory duty; libel)."6 In a counterclaim, Signalson sues CIA Security,
also seeking an injunction, in this case to restrain further sales of the allegedly
unlawful product, being contrary to national law (Belgian) standards. It is readily
appreciable that ascertaining the non-contractual rights and obligations between
the competitotrs depends on the validity/lawfulness of the Belgian product
standards. The direct effect of the Directive therefore arose as an incident in a
tort action. It is well-known that the ECJ did consider the Directive to produce
direct effect and held that the 'breach of the obligation to notify renders the
technical regulations concerned inapplicable, so that they are unenforceable
against individuals' (para 54).62 The public law issue of the lack of notification
had to be decisive in the private law context as the very unlawfulness of one
competitor's conduct or the other was linked to these standards; if they are
unenforceable in that they must be disapplied for being contrary to a higher
ranking norm, this unenforceability cannot be dependent on the public or private
nature of the enforcer. The salient feature of this case is that effectively a
competitor seeks compliance with national law product standards, just like an
enforcement agency or other public authority would; the former 'cannot revive'
rules which would have been 'pronounced dead' with respect to the latter.63
Admittedly, the decisive role in a horizontal dispute of a failure by a Member
State to notify rules of domestic law to the European Commission increases
legal uncertainty for private parties (albeit, of course as a matter of direct effect
and not as the allegedly even more uncertain doctrine of consistent interpretation).
It is even more problematic that failures by States during the notification
procedure (i.e. failure to suspend adoption of rules, which had been notified,
during a required stand-still period) can determine the outcome of a contractual
60 Council Directive 83/189/EEC of 28 March, 1983 laying down a procedure for the provision of information
in the field of technical standards and regulations, O.J. 1983 L 109/8 (as amended). Consolidated in: Directive
98/34/EC of the European Parliament and of the Council of 22 June, 1998, O.J. 1998 L 204/37. See generally
Weatherill 'Compulsory Notification of Draft Technical Regulations: the Contribution of Directive 83/189 to the
Management of the Internal Market' (1996) 16 YBEL 129.
61 The legal basis under Belgian law was the Law of 14 July 1991 on Commercial Practices, Arts. 93 and 95,
which prohibit unfair trading practices.
62 Cf the similar legal and factual setting in Case C77/97 Osterreichische Unilever [1999] ECR 1-431.
63 Opinion of A-G Elmer, C-194/94, [1996] ECR 1-2201, No. 71. See also Lord Hoffmann in Seymour Smith
[1997] 2 CMLR 904 and opinion of A-G Jacobs in C-443/98 Unilever Italia [2000] ECR 1-7535 (opinion of 27
January, 2000) [2001] 1 CMLR 21, Nos. 64-71.

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 412 Oxford Journal of Legal Studies VOL. 22

dispute between two private companies. The ECJ neverth

CIA Security ruling from the tort to the contract contex
Centralfood, contrary to the proposal of Advocate General Jac
the fact that the procedural defect here is not a non-notif
far less obvious procedural requirement, assessing the acce
Italia depends on whether or not one focuses on the simila
roles (as noted above) by public authorities and competitors in
litigation. A-G Jacobs thought that the result of CIA Secur
its own context but should be applied with caution and cer
extended to the contractual sphere.65
In favour of the ECJ's ruling that the national court mus
apply the procedurally defective regulatory standards on
analogy with the impact of other public law incompatibilities
private parties. First of all, Unilever Italia is unproblematic in
the result as a matter of direct effect. In fact, the ECJ clarif
in the abstract, the limited scope of the non-horizontal direct
as confirmed in the Faccini Dori case (paras. 50-51). Only
substantive norm of the directive in issue itself is being in
against another and as such imposes new or additional ob
to the existing position under national law, on that private pa
to direct effect apply. In both CIA Security and Unilever Italia
affected by the ECJ's non-enforceability of the technical mea
measures in a dispute with another private party. No party in
law directive either to make the other liable or by contrast to
of liability because of a substantive liability provision under t
On the contrary, the contractual or tortious liability in issu
determined by national law alone. Decisive for that liability w
with a technical standard of, again, national law, in this case p
if that standard is incompatible with a superior rule of law, it
In the tort context, neither a public authority nor a private act
engaged in private enforcement of these standards, can do
sphere, a non-enforceable labelling requirement cannot be i
of a contractual obligation to pay for delivery of goods not la
with such rules; in other words, breach of these (non-enfor
does not constitute the alleged breach of contract. The supe
is of course one of an EC law directive so that EC law also determines the
consequences of this public law conflict for the private law dispute. A sim
scenario is entirely conceivable in many legal systems where such standar
would be conflicting with a superior rule of national law (or a directly effe
Treaty). This public law incompatibility (whether EC or domestic, e.g. in st
64 Case C-443/98, [2000] ECR 1-7535 (judgment of 26 September, 2000), [2001] 1 CMLR 21.
65 Opinion, C-443/98, Nos. 71, 98, 111. The Advocate General noted the limits introduced by Case C-2
Lemmens [1998] ECR 1-3711. See also M. Dougan, 'The "Disguised" Vertical Direct Effect of
Directives?' [2000] CLJ 586, 598.
66 And, as said, in Case C-77/97 Osterreichische Unilever [1999] ECR 1-431.

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AUTUMN 2002 The Doctrine of Consistent Interpretation 413

with a written Constitution) is a preliminary issue in the private law dispute. In

other words, the private law liability is dependent on the resolution of this public
law incompatibility. Therefore, if an EC law directive is determinative, the
decision of the liability question has nothing to do with a horizontal direct effect
of directives. Admittedly, the public-private law nexus is closer in the tort than
in the contract sphere. However, it is still there; examples are the possible impact
of human rights issues such as privacy in the contractual labour law context or
contracts which contents are determined to a considerable extent by law.6'
The legal certainty issue is a different matter; assessments will differ on when
a situation becomes too uncertain-as they did between the ECJ and A-G Jacobs.
Perhaps unfortunately, the ECJ did not consider the lack of transparency during
the Commission's evaluation of the technical norms; to an extent, the existence
of other procedural defects than full scale non-notification is unknowable by
private parties.68 In addition, the connection between any incentives on Member
States to stimulate notification and determining a breach of contract in the light
of notification defects is remote; the detrimental effect of the ruling on contractual
certainty may thus be seen as unjustified.69 On the other hand, is the result of
Unilever Italia so different from the impact of other forms of incompatibility of
administrative law rules with superior norms of law (as pointed out above),
notably a written constitution? If such an incompatibility is raised in a dispute
between two private persons the party who seeks to rely on the rule in issue
could probably not have known in advance that the court would disapply it
because of this incompatibility. This type of uncertainty is inevitable and likely
to become more prevalent even in the UK under the Human Rights Act (see
further below).'"

E. Inverse Vertical Indirect Effect of Community Law: a Bridge Too Far?

The Court has consistently ruled in well-established case law that a state can
never invoke a non-implemented directive as against an individual.7' To be more
precise, all these cases where a possible direct effect resulting in the imposition
of an obligation on an individual by a directive as such (so-called inverse vertical
direct effect) was considered concerned the criminal liability of these individuals
under the relevant domestic criminal law. However, in my view the ECJ has
denied this possibility for the wrong reason. It ruled that as directives cannot

67 See in particular Case C-129/94 Ruiz Berndldez [1996] ECR 1-1829, para 20 and operative part: Directive
precludes reliance on incompatible contractual clauses. In addition, a hindrance to marketing a product in the
form of these national technical standards is relevant in both the tort law and the contractual context, see ECJ in
paras. 46-47 of Unilever Italia (cited above).
68 S. Weatherill 'Breach of directives and breach of contract' (2001) 26 ELRev 177, 181.
69 Ibid at 182. See also the critical comments by Dougan: Case Note in (2001) 38 CMLRev. 1503.
70 Through the technique of consistent interpretation which applies to predating legislation; as a result, 'all
settled interpretations of earlier legislation should be open to reconsideration', according to I. Leigh and L.
Lustgarten 'Making Rights Real: the Courts, Remedies, and the Human rights Act' [1999] CLJ 509, 511.
71 From Case 14/86 Pretore di Sal6 v X [1987] ECR 2545; Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969;
Case C-168/95 Arcaro [1996] ECR 1-4705; joined cases C-74 and C-129/95 Procura della Republica v X [1996]
ECR 1-6609 (re Display Workers) to, most recently, joined cases C-304/94, C-330/94, C-342/94 and C-224/95
Tombesi [1997] ECR I-3561.

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 414 Oxford Journal of Legal Studies VOL. 22
impose on obligation as such on individuals then a fortiori this c
for the benefit of the State.72 It thus linked this situation o
direct effect (State v Individual) to the denial of possible horizon
of directives (Individual v Individual). In this same case law,
the applicability of the interpretive obligation, albeit, of cou
limits imposed by the general principles of law (e.g. legal c
principle or nulla poena). Unlike Advocate General Mischo, wh
it acceptable that national courts may take account of untran
as an aid to the interpretation of domestic criminal law to confirm
based on other considerations, the ECJ held that the nationa
matter of Community law, achieve a consistent interpretation w
principle's limits.73 The Court's approach to the effects-or
State v Individual context is problematic as it is quite possible
of horizontal direct effect of directives74 but still deny any
transposed or wrongly transposed directive by the state agai
under either direct effect or consistent interpretation.
The issue of the legal effect of a directive as between private p
effect) does not coincide with the issue of the legal effect of
situation of inverse vertical effect, such as in Kolpinghuis. It is a
to ask whether directives may ever impose obligations on private
ask whether they can produce horizontal direct effect.75 If t
answered negatively, nobody will be able to rely upon a directly
of a directive as against a private person (neither state nor
second question is narrower in scope in that a possible accept
direct effect between private parties inter se does not nece
question whether direct effect may be invoked by the state
party. Put differently, a lack of horizontal effect is not a necess
for the ruling that a directive cannot produce inverse vertical ef
separate questions." As for consistent interpretation, the present
provided the courts stay within the bounds of the general
obligations may be imposed on individuals through the mediation
domestic law even where it is the state that is acting against it.
the cases so far have been concerned with criminal liability alone
an imposition of obligations in a civil law context beyond wh
basis of national law alone is possible.7

72 Case 14/86 Pretore di Salo v Persons Unknown [1987] ECR 2545 at 2570.
73 Opinion of A-G Mischo in Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, No
74 As three Advocates General have: see Opinion of AG Van Gerven in Case C271
14367; opinion of AG Jacobs in Case C316/93 Vaneetveld [1994] ECR 1763; and Opin
C-91/92 Faccini Dori [1994] ECR 1-3325.
75 Amull, annotation of Kolpinghuis, (1988) 13 ELRev 42, 44.
76 Ibid.
77 Opinion of A-G Jacobs of 13 July, 2000 in Case C-456/98 Centrosteel [2000] ECR 1-6007, [2001] 1 CMLR
711, No. 35. In the horizontal context, this is of course exactly what happened in the Dekker and Draehmpaehl
cases: C-177/88, [1990] ECR 1-3941 and C-180/95, [1997] ECR 1-2195.

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AUTUMN 2002 The Doctrine of Consistent Interpretation 415

Given the fact that in practice, courts can be required to reach exactly the
same result through either direct effect or consistent interpretation, it is anomalous
to allow states to benefit from the latter but not the former. It is therefore
submitted that Member States should not be allowed to plead directives which
they have not (correctly) implemented as an aid to the interpretation of national
law. One could paraphrase a well worn legal adage here and argue: quod licet
bovi non licet fovi.78 Private persons who derive protection from a directive are
entitled to rely on them even against private parties but never should the state
be able to rely on them because the state should not benefit from its own wrong
doing. This so-called estoppel argument or nemo auditur, invoked by the ECJ to
justify direct effect against the state in favour of individuals, should be adopted
here as a basis for denying any possibility for Member States to invoke directives
before national courts under both direct effect and the doctrine of consistent
interpretation (except, of course, to construe national law after correct trans-
position)." The notion of estoppel is here used in a more narrow sense than
under the current ECJ's case law, where it forms part of the justification for
('normal' vertical) direct effect to bar reliance on directives by Member States
without their proper transposition.80 So unlike the present situation, it is my
proposal to streamline the two doctrines in this respect. Both doctrines could
thus be applied in parallel in this type of situation. Such a proposed parallelism
would reduce complexity in the application of the two doctrines and thus enhance
legal certainty.

F. Comparative Note: 'the English Marleasing' (Human Rights Act

1998, section 3)
It may be helpful to put the doctrine of consistent interpretation in a wider,
comparative, perspective and to note its prominent role in terms of giving effect
to higher ranking law as a matter of interpretation as opposed to direct effect.
In 1998, the UK legislature adopted the Human Rights Act (HRA)81 in order
to incorporate most, but not all, of the fundamental rights laid down in the 1950
European Convention for the Protection of Human Rights and Fundamental
Freedoms; the HRA came into force in October 2000. In constitutional terms,
the status of so-called Convention rights under the HRA within the UK legal
order is comparable to European Community law: both systems require that
English law, both statutory and common law be compatible with the 'European'
norms. There is, however, an important difference between the powers of the

78 The adage reads: quod licet Jovi non licet bovi (what Jupiter is allowed to do is forbidden for the ox).
79 Cf P. E. Morris, 'EEC Directives and the State' [1991] European Business Law Review 34: inverse direct effect
in civil law perhaps possible but difficult to reconcile with estoppel. But see Wissink, above n 1 at No. 284 arguing
that reliance on estoppel here would lead to unequal treatment of cases between public and private actors and
would compromise the effectiveness of Community law.
so For an early critical assessment of the use of estoppel in the current state of the law, see D. Wyatt, 'The
Direct Effect of Community Social Law-Not Forgetting Directives' (1983) 8 ELRev 241; see also Prechal, above
n 2, at. 255-260.
81 Available on the Website of HMSO, URL: www.legislation.hmso.gov.uk/acts.htm (Acts of the UK Parliament).

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 416 Oxford Journal of Legal Studies VOL. 22
courts in the event of a perceived incompatibility. The HRA
the courts-unlike under the doctrine of direct effect of EC law-to set aside
an Act of Parliament where it conflicts with the HRA.82 At most, they can issue
a declaration of incompatibility which does not affect the validity, continu
operation or enforcement of the provision in respect of which it is given no
it binding on the parties to the proceedings in which it is made (s 4(6)). By
contrast, section 3 of the HRA obliges the courts to interpret legislation, b
primary and secondary, whenever enacted, 'so far as it is possible to do so'
to give effect to it 'in a way which is compatible with the Convention righ
The wording of this English duty of consistent interpretation is, of course, almo
identical to the ECJ's formulation in Marleasing; in fact, it has been modell
on it. It has therefore been suggested that the limits to the HRA duty should be
drawn along similar lines than the limits to the Marleasing formula.83
A similar far-reaching impact is to be expected under this parallel interpretive
obligation.84 It has been argued that this provision requires a different approach
to statutory interpretation than so far prevalent in England. Not only is there a
stronger pointer to the courts under the HRA to reach compatibility, i.e. stronge
than the rule which allowed consistent interpretation when there is ambigui
Consistent interpretation is considered possible and must be achieved as lo
as the statute is not distorted. Most importantly, a purposive approach to statuto
interpretation is required in this context, just like in the context of giving effec
to EC law; in positive terms courts must proceed from a presumption of
compatibility and achieve congruity unless the wording of the statute makes that
clearly impossible.85 As the HRA is still recent, it is too early to assess the full
impact of it on legal practice.86 However, given the numerous cases in which it
has been invoked already, there can be no doubt about its significance.
These include a ruling of the Court of Appeal, acknowledging that the HRA
is an instrument of constitutional significance. In addition, it considered the
HRA's interpretive obligation (s 3) and held that '[t]he consequence of Section
3 is that legislation which affects human rights is required to be construed in a
manner which conforms with the Convention wherever this is possible'."87 Finally,
in that same case, this court proved itself willing to indeed ensure conformity
by reading words into a criminal law statute which had introduced a mandatory

82 See generally e.g. Beloff, '"What Does it All Mean?" Interpreting the Human Rights Act 1998' in L. Betten
(ed.), The Human Rights Act 1998. What it Means (1999) at 11; Geoffrey Lindell, 'Invalidity, Disapplication and
the Construction of Acts of Parliament: Their Relationship with Parliamentary Sovereignty in the Light of the
European Communities Act and the Human Rights Act' in A. Dashwood and A. Ward (eds), The Cambridge
Yearbook of European Legal Studies (Vol. 2, 2000) at 399; and Leigh and Lustgarten, above n 70.
83 N. Bamforth, 'The application of the Human Rights Act 1998 to public authorities and private bodies' [1999]
CLJ 159, 169.
84 Cf R. Edwards, 'Reading down legislation under the Human Rights Act' 20 Legal Studies 353 (2000); Leigh
and Lustgarten, above n 70 at 511; House of Lords, R. v DPP, ex parte Kebilene [1999] 3 WLR 972; [1999] 4 All
ER 801: 'Section 3(1) enacts a strong interpretive obligation,' per Lord Steyn.
85 Beloff, above n 82 at 29; Leigh and Lustgarten, above n 70 at 538-539; Keir Starmer, Blackstone's Human
Rights Digest (2001) at 28.
86 See for an overview Starmer, ibid.
87 R. v Offen and Others [2001] 1 WLR 253, No. 104. See also J.R. Spencer, "'Rape shields" and the right to
a fair trial' [2001] CLJ 452 (case and comment on R. v A. (No. 2) [2001] 2 WLR 1546).

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 AUTUMN 2002 The Doctrine of Consistent Interpretation 417
life sentence for a second serious offence (popularly referred to as the 'two strikes
and you're out' law). The court found that a compatible reading of this statute,
thus preventing a contravention of the Convention rights, required it to construe
the notion of 'exceptional circumstances' to mean 'no significant risk to the
public.' Without the insertion of the latter, the imposition of such a mandatory
life sentence on a person who does not pose a risk to the public would be
disproportionate and in breach of the ECHR. Significantly, consistent in-
terpretation here produced a result in line with judicial practice before the
adoption of the statute, the Crime (Sentences) Act 1997, which removed the
court's power to take this factor into account; before the HRA, the courts were
unable to reach this result by way of interpretation.88
Accordingly, this early experience with the interpretive obligation under the
Human Rights Act reflects the predicted convergence with the purposive and
result oriented approach to statutory interpretation under the Marleasing formula.
One can expect the courts to adopt this 'European style' canon of interpretation
whenever a potential conflict between Convention rights and English law arises.
To support this view, it is significant to note that the House of Lords in Webb89
has accepted wholeheartedly the ECJ's ruling requiring a drastic reinterpretation
of the relevant English statutes. This national court no longer emphasizes the
limits to consistent interpretation in terms of distorting the meaning of a statute
but instead focuses on reaching the directive's result if at all possible.90
To conclude the comparison, what does this development teach us about the
issue of legal uncertainty inherent in the doctrine of consistent interpretation?
It must follow from the fact that now that the English legislature has voluntarily
adopted the ECJ's approach to consistent interpretation in the context of the
Human Rights Act that it finds the inevitable uncertainty created by this doctrine
acceptable-certainly more acceptable than a setting aside of primary legislation
as a matter of direct effect, as this is not possible under the HRA.91 Surely, this
can be seen as an indication for the acceptability of the ECJ's insistence on
consistent interpretation: if this is good enough for English law than why would
it not be good enough for EC law as well?

3. Conclusions

This article has reviewed a number of ECJ cases particularly relevant to the
conceptualization and legal circumscription of the doctrine of consistent in-
terpretation. They reveal the fundamental importance of this technique; indeed,

88 Cf 'Ruling neutralizes "two strikes" law' The Guardian, 10 November, 2000.

89 Webb v EMO Air Cargo(UK) Ltd (No 2) [1996] 2 CMLR 990; [1995] 4 All ER 577; [1995] 1 WLR 1454.
90 Hunt, above n 2 at 121-122; Craig, above n 26 at 49-50: albeit subject to a distinction between cases
involving express implementing legislation or not. Note in particular the contrast with the House of Lords' first
judgment in Webb (the reference to the ECJ), [1992] 4 All ER 929; [1993] 1 WLR 49: emphasis on further
consideration of possibility to reach a consistent interpretation; reference to limits of the duty: no distortion of
statute.

91 See also Hunt, above n 2 at 298, suggesting a full interpretive obligation on English co
compliance with the UK's obligations under international human rights law.

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418 Oxford Journal of Legal Studies VOL. 22

as a mode of giving effect to Community law before national

priority over direct effect. The scope of this interpretiv
uncertain to a degree. In part this is inevitable as the tec
resolve conflicts between incompatible norms. However, le
be reduced if the ECJ would be prepared to provide more
in its judgments. In particular, a highly critical discussion of
concludes that its precedent value is next to nothing. An e
certainty would be to bring the conditions for applicability
line with direct effect. It has been argued that such a pa
been achieved insofar as the issue of expiry of the trans
concerned. In addition, the article has suggested a recons
law on consistent interpretation in actions by the state versus
on the estoppel principle, no effect whatsoever (direct and
allowed in favour of the state in the context of defective trans
The article also considers the delineation between consisten
direct effect, notably in the light of controversial cases e
incidental effects and offers possible explanations for their se
nature.

In considering whether the doctrine gives rise to unacceptable legal

a comparison with the interpretive obligation incumbent on British co
the Human Rights Act is made. Not only are there notable simil
application of both doctrines, the English law rule confirms the i
this method as an alternative to direct effect and justifies its level of

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