Hybrid methodology for the EU principle of consistent interpretation

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Abstract

This article examines the legal methodology that courts have to employ when they construe domestic law in accordance with European Union directives. It demonstrates that the Court of Justice of the European Union (CJEU) has set up autonomous ‘European methodological rules’. These rules apply together with national legal methods. The relationship between both regimes can be described with the concepts of overlapping, intervention, and Europeanization from the inside. The article thus holds that the doctrine of consistent interpretation possesses a hybrid methodology. The reanalysis of the CJEU’s case law offers answers to some unresolved questions. The article shows how consistent interpretation affects national principles of interpretation. It demonstrates the extent to which domestic judges are required to depart from traditional methods of construction and to what extent European methodological rules broaden the limits of the judicial function as accepted under national law. The contra legem limit is defined, and some of its misinterpretations in legal scholarship are highlighted.
Original languageEnglish
Pages (from-to)134-154
JournalStatute Law Review
Volume39
Issue number2
Early online date10 Jan 2017
DOIs
Publication statusPublished - 6 Jun 2018

Bibliographical note

This is a pre-copyedited, author-produced version of an article accepted for publication in Statute Law Review following peer review. The version of record Brenncke, M. (2017). Hybrid methodology for the EU principle of consistent interpretation. Statute Law Review, in press, is available online at: https://doi.org/10.1093/slr/hmw048

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