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  • Print publication year: 2018
  • Online publication date: January 2019

Chapter 4 - The European Legal Duty of Conforming Interpretation

Summary

When national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive.

This statement by the CJEU expresses the legal principle which is referred to as the European legal duty of conforming interpretation (or short: conforming interpretation) in this book. Conforming interpretation of national legislation is the task of national courts, not the task of the CJEU. Conforming interpretation lies at the core of the relationship between an EU directive and provisions of national law that fall within the directive‘s scope. Case law of English and German courts is regularly preoccupied with the question of how far a court can strain national legislation to achieve consistency with a directive. Chapter 4 thus compares the outer limits and techniques of conforming judicial law-making as applied in English and German judicial practice. It has been suggested in scholarship that English courts may not show the same commitment to interpreting domestic law in conformity with directives after the Brexit referendum of 23 June 2016. As post-referendum case law shows, however, that has not happened. The EU legal duty of conforming interpretation will impact on the interpretation of English law as long as the European Communities Act 1972 (ECA) is in force and the UK is a member of the EU. The UK's obligations under the EU Treaties have been incorporated into English law by the ECA. I will demonstrate in Section 8 of this chapter that conforming interpretation will continue to apply after exit day to UK legislation enacted prior to exit day according to the European Union (Withdrawal) Act 2018. Conforming interpretation will thus retain an important role in statutory interpretation in the UK after Brexit. It will also be shown that the EU legal duty of conforming interpretation will continue to apply in the UK during the transition period as if the UK were still a Member State of the EU if the Withdrawal Agreement in its current draft form is finalised and incorporated into UK law.

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