Giving Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation

Abstract

This paper explores differences and similarities in how domestic courts — mainly Dutch courts — apply two distinct forms of non‐domestic law: public international law and European Community law. The article focuses on the application of the principle that dominates practice in both areas: that courts should, whenever possible, construe national law in conformity with, respectively, public international law and European Community law. This article offers a systematic comparison of how courts employ this principle. On the basis of a detailed analysis of the relevant national case law and the case law of the European Court of Justice (ECJ), it is argued that there is no fundamental divide between the application of public international law and EC law (despite the theoretically opposing starting points); differences in application are a matter of degree not of principle. The principle of consistent interpretation proves to be effective and of great practical importance in both areas and further testifies of similarities in the impact of the two areas on domestic law.