The Doctrine of Consistent Interpretation: Managing Legal Uncertainty
Oxford Journal of Legal Studies, 22, (3), . (doi:10.1093/ojls/22.3.397).
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This article reviews ECJ case law on the conceptualization and legal circumscription of the doctrine of consistent interpretation, reflecting its fundamental importance as a mode of giving effect to Community law before national authorities. Legal uncertainty, an inherent characteristic of the technique, should be reduced, it is argued, by improving the reasoning of the ECJ's judgments. In particular, a highly critical discussion of the Arcaro judgment concludes that its precedent value is very limited. A parallelism in approach to both consistent interpretation and direct effect is suggested. Partly, this has already been achieved insofar as the issue of expiry of the transposition period of directives is concerned. In addition, the article suggests a reform of the case law on consistent interpretation in actions by the State versus individuals and offers explanations for the seemingly inconsistent nature of the cases producing a horizontal impact of directives despite the lack of horizontal direct effect properly so-called (incidental effects). In considering whether the doctrine gives rise to unacceptable legal uncertainty, a comparison with the interpretive obligation under the UK Human Rights Act 1998 is made, which produces similar results.
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