Giving Indirect Effect to International Law within the EU Legal Order: The Doctrine of Consistent Interpretation

Although the clear-cut affirmation of an automatic incorporation of international law into the EU legal order, and the consequent submission that international law is binding upon EU institutions and on its Member States, the ECJ shows a significant reluctance in ensuring compliance with international law. In particular, the judicial recalcitrance concerns the direct effect determination of international obligations and, consequently, their invocability within the internal legal order. The Luxembourg approach in determining the effects of the WTO obligations within the Union is well-known. Despite some contrary indicators given by the ECJ in the last years, this way of looking at the effects of international law represents a constant feature of the aptitude of the Court vis-à-vis the EU international obligations (in particular, as far as treaty law is concerned). This is clearly visible in the Intertanko case, decided in 2008, where the Grand Chamber of the Court approached the challenging of an EU Directive in the light of the United Nations Convention on the Law of the Sea (UNCLOS), and held that the nature and logic of the Convention prevented the Court from assess the validity of the internal measure. Even if the direct effect determination enables the Court to limit the legal effects of international law within the EU legal order, the lack of direct effect does not completely exclude – according to the Court – the taking into account of international rules. More precisely, as the Court made clear in its rulings, EU secondary law shall be interpreted in the light of the wording and the purpose of EU international obligations. Then, instead of accepting that international obligations may product in any case direct effects within the EU legal order, the Court, by way of a conforming (or harmonious) interpretation, guarantees a general indirect effect to such rules. What is also noteworthy is the fact that the judicial attitude seems to permit the recourse to the consistent interpretation also with regard to international rules that are not binding upon the Union and that, consequently, do not form, according to the ECJ’s case-law, integral part of its legal order. In effect, as one commentator put it, the duty of consistent interpretation “does not really distinguish a binding norm from a non-binding one”. As a result, the doctrine of consistent interpretation also guarantees an open attitude of the ECJ towards the international legal order and then contributes to limit the development of the EU legal order as a ‘self-contained regime’ vis-à-vis international law. Despite its importance, there is little literature on the consistent interpretation doctrine addressing international law. This chapter analyses the current state of this topic. To this end, section 2 of this chapter shortly analyses the foundation and rationale in the EU law of the doctrine of consistent interpretation. Section 3 explores the judicial practice of consistent interpretation concerning (a) the EU international obligations, and (b) other international rules not formally binding upon the Union. An assessment of the relevant jurisprudence is contained in the final section.