September 30
2020

Sim Haket’s book The EU Law Duty of Consistent Interpretation in German, Irish and Dutch Courts (Intersentia 2019, 356 pp, 85 EUR), which is also his doctoral dissertation, takes on a classic of EU law in six chapters behind a marvellous cover (original artwork by FJ Ramaker).

The introductory chapter sets out the task that the author has set himself, which is not merely to explore what the title promises but also to determine whether the practice of consistent interpretation is most adequately captured by the theory of EU law supremacy, its antithesis – national constitutionalism, or the alternative theory (or is it theories?) of constitutional pluralism.

These three theories are discussed briefly, before Haket proceeds in the second chapter to an analysis of the Court of Justice’s jurisprudence on consistent interpretation. Here, Haket fleshes out several sub-requirements of consistent interpretation, including what he calls the ‘interpretative selection rule’, and analyses the limitations of the concept inherent in the recurring phrases ‘as far as possible’ and ‘contra legem’, which he argues should be understood as distinct limitations with their own specific implications.

This is followed by three chapters that, in turn, discuss the practice of consistent interpretation in the highest courts in Germany, Ireland and the Netherlands respectively. Haket shows how pre-existing national traditions in legal interpretation reinforce (such as the German tradition of judicial Rechtsfortbildung) or hinder (such as the Irish tradition of strong adherence to textual interpretation) consistent interpretation. The final chapter summarises Haket’s conclusions, the most noteworthy of which is that national courts’ reluctance to adopt EU law-consistent interpretations of national law can often be accommodated within the limitations recognised by the Court of Justice.

It is a pity that Haket does not seem to have fully trusted the value of his own topic. His book provides a thorough legal analysis of an under-researched principle, with the national case studies adding context, nuance, and detail. This is a significant and welcome contribution to EU legal scholarship. The additional ambition to position the practice of consistent interpretation within the enduring standoff between the Court of Justice and (some) Member State supreme courts regarding the supremacy of EU law seems superfluous and, unfortunately, somewhat contrived. It leads Haket to focus particularly on cases of interpretative ‘conflict’, which frequently entails hypothetical discussions as to how a national provision might have been interpreted, had it not been interpreted in conformity with EU law. This distracts from other and more fruitful aspects of the study. While it is of course interesting to discuss how national courts have acted in the cases where consistent interpretation presented the greatest difficulties, arguably the attraction of the principle lays precisely in its conflict-avoiding qualities. Indeed, in the book’s final pages Haket observes that ‘mutual flexibility leads to a smooth application of the duty of consistent interpretation’ – a point that this reviewer looks forward to seeing elaborated in his works to come.

These objections notwithstanding, the lasting impression is that the book provides a comprehensive exploration of the principle of consistent interpretation and an insightful analysis of its transformation within and of the legal orders of the Member States. It will certainly benefit scholars and practitioners alike.

 

Anna Wallerman Ghavanini is associate professor of EU law at the University of Gothenburg. Her research interests include EU constitutional law, judicial procedures and decision-making, and legal empirical research.

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