European Union law is primary to the member states’ law. As established in Pfeiffer, National Courts have a duty to construe national legislation in accordance with the purpose of the directives wherever possible. This is related to the principles of direct applicability and direct effect. In the Van Duyn it was clarified that directives can be directly effective if Member State fails to implement them either in time, or per its purpose The principle of interpretative obligation has arisen, as the Member States (MS) have not implemented European Union (EU) law or have done so incorrectly.
It is essential to stress that it would be impossible for EU law not to influence the laws of Member States. Without the principle of supremacy established in Costa v ENEL, where it was held that ‘EU law should prevail in the event of conflict’ the Union would cease to exist. The supremacy ensures effectiveness of Union law on national level. Per Human Rights Act principle of interpretative obligation means that ‘all existing laws must be interpreted so as to conform with the Convention and any relevant case law from the European Court of Human Rights, unless the law cannot be read in a way which conforms with the Convention’. Section 3 of the same Act seeks to prevail Parliamentary Sovereignty as it reserves the amendment of primary legislation to Parliament, as EU does not intent to restrict the MS’ law making processes.
Moreover, each MS knew that the national law is going to be to some extent influenced by the Union when they entered it. In the Article 4 of the Treaty on the Functioning of the European Union (TFEU) MS promised to implement or remove contrary laws (for the United Kingdom the same principle can be found in Section 2 of the European Communities Act 1972). Still, directives adopted by the Council of Ministers need to be transposed into national legal codes of each MS, before they can have any impact on their law. Yet, transposition is an exact translation of EU legislation, therefore it does not offer any flexibility of interpretation for national courts. Transposition is monitored by the commission to ensure that it is implemented correctly and in time. As a part of the interpretative obligation, members of EU that fail to do so may be taken to the European Court of Justice. While Member States transferred significant amount of sovereignty to Brussels, they had a right to opt out of certain policy areas, and their decision-making process if they wished to do so e.g. UK and Ireland’s opt outs from the Schengen Agreement, or Denmark and UK’s not participating in Monetary and Economic Union established in Maastricht Treaty. Additionally, the UK had not signed the Social Charter and opted out of Treaty’s social protocol. This demonstrates that the EU did not force any unwanted policies into the MS national law. The rest of laws, the MS did not opt out of, per Article 4(3) of the Treaty on the European Union (TEU) alias dictus ‘fidelity clause’ MS are required to ‘honour their obligations under Treaties and other EU legislative Acts in good faith’. This demonstrates itself through national implementation of EU law, ensuring that national courts can interpret and apply EU law correctly.
An example of the case where the judgement is not binding due to an opt-out is Pupino, which also established that MS must interpret the law in conformity with the wording and purpose of framework decision. Court’s ruling offers clearer identification of nature of the legal relationship between EU and national law, as it brings up the issues of effective implementation and conformity. UK courts however are not bound by that decision, as ‘crime and policing measures agreed under Tittle IV of the TEU are not given effect under s.2 of the European Communities Act 1972’ as noticed in the judgment of Assange.
It is important to highlight that interpretative obligation should not be a problem for any of the states, as EU laws are created by MS themselves, and agreed upon in EU Parliament and the Council, which are formed by directly elected politicians, who represent national parties, so ‘representatives of MS at ministerial level, who are authorised to commit the government of that state’ as stated in the Article 16(2) TEU. Noticeably some of the factors that shape EU policies are rivalry between the member states along with controversy between the MS and the Parliament. The key role however falls to the cabinets, which are the offices of personal aides of the Commissioners. And although the Commission is theoretically independent of MS, governments still actively participate in shaping EU policies, e.g. through members of administration, permanent officials or endorsed national experts. Understandably these new policies created on European level may sometimes contradict already-existing national laws or be hard to interpret for national judges. This is where interpretational obligation comes into force.
This leads to the next point, namely the matter of implementation of the EU policies on national level. In most of the cases interpretational obligation is essential where the EU law significantly alters or contradicts national law. Criteria for the direct effect of Treaty articles were set out in Van Gent en Loos judgment. In order to be immediately binding they have to be clear, unconditional, and not subject to further implementation. As held in Von Colson national courts must interpret directives in the light of its wording and purpose. Therefore, if a directive does not offer any unconditional and sufficiently precise prescriptions, each state can choose the sanctions it wishes to impose. This may be both sample of discrimination (as the law can be used if one is employed by the state, but not by an individual who works for private company) and example of freedom to interpret EU legislation by national courts. Additionally, existence of a loophole confirmed in Wagner Miret allows national judges more independence. Provided by the wording ‘as far as possible’ present in some directives, MS can implement them to the extent they feel is necessary to do so. Italian case of Ratti clarified that the provisions of the directives cannot be directly pleaded by members of public, unless their implementation date has passed or it was implemented incorrectly and ipso facto reaffirmed van Duyn judgment. What restricts national courts before the deadline expiry is the ‘standstill obligation’ defined in Wallone that the MS must refrain from adopting any measures that may remarkably compromise directive’s prescription.
Prescription for directives that do not have direct effect is contained in Arcaro. Per its reasoning European Community law without such effect does not provide for elimination of conflicting national provisions, and the verdict cannot be based upon unimplemented directive. In Marleasing however even though interpretative obligation foregoes the national law, it was held that Spanish law, although predated in the directive must be interpreted in as far accordance with it as possible. This is known to national judges as ‘burden of the interpretative obligation’, so the situation where they must look at MS own law and interpret it accordingly in the light of the directive and its objectives. This is where the interpretative obligation may become a burden for courts. Known as contra legem are cases where judges cannot implement a directive either because it is against the MS law, or there is no law at all.
It is essential to mention that direct effect is exclusively vertical, which means that it only concerns the country and individuals. As defined in Article 288 TFEU ‘a decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them’. This was affirmed in Marshall. Directive only binds the Member States to which it is addressed. National authorities must not rely upon provision of non-implemented directive against an individual, even in cases where it should have been already in force (so e.g. in case where the deadline for implementation has passed, but the directive was still not incorporated into the national law). This was confirmed in Kolpinhuis. Due to the EU primacy if national law is written in such way that is not possible to interpret it accordingly to binding EU law national judges are obliged to either refuse to apply it or to disapply it. There is however no rule was yet established on the matters of annulling, invading or declaring the national law non-existent. Judges are Therefore the interpretative obligation does not directly erase contradicting national laws.
Although the member states are obliged to implement the laws within certain timeframe, and per EU’s intentions, the Union is not indifferent to the MS confused by their laws. Article 267 TFEU outlines the Preliminary Rulings of the Court of Justice of the European Union. It allows local courts and tribunals seek help when implementing laws. Sought rulings may concern issues of Treaties’ interpretation or clarifications as to validity of the acts to be implemented. Concern that should be raised at this point is the matter of declaration of incompatibility such as the one issued in the Factortame as it seems to have been replaced by the Article. Lord Steyn in R v A clearly stated that should be considered as last resort. National Judges agree with his approach and exercise that power sparingly. In most cases, instead of declaring the national law incompatible, they transfer the responsibility for the decision making to the EU courts. This shows reluctance of the judges in changing their approach to the law in the light of European legislation.
Summing up, European Union is an idealistic idea of consolidated Europe. To make this vision a reality it is essential to implement measures that ensure that policies across the Member States are integrated. Within that process however the Union must safeguard sovereignty of its MS. The interpretative obligation may often be interpreted as EU’s way of invalidating and predating Member States’ national laws. It is however merely an insurance for the Union that their policies are implemented accordingly with their purpose. Also, the EU reaches out to the MS giving them some flexibility, providing them with guidance, and offering aid in form of Preliminary Rulings. Even though the MS must significantly conform to actions and measures taken by the EU, most of them aim to improve policies within the member states per the aims of the Union defined in the Art 3 TEU.