The Directives are all entitled ‘right to’ as are many of their provisions, and as instruments
designed to make certain aspects of the human right to a fair trial more effective, it would seem
logical that they should be capable of being invoked by individuals.
Start from the basis that provisions of the Directives entitled ‘right to’ and which
unequivocally oblige Member States to ensure that suspected or accused persons
have a certain right do in fact create such rights and have direct effect in favour of
your client. Let the prosecution argue the contrary.
5. The duty of conforming interpretation
Regardless of whether a provision has direct effect, national law must be read in light of the wording
and purpose of a directive in order to achieve the objectives pursued by the latter, in accordance
with the conception of national courts as part of the Member State subject to the result obligations
of a directive. Though this ‘duty of conforming interpretation’ applied originally to domestic
legislation specifically implementing the directive, the duty is broader. The CJEU has explained that:
‘The principle that national law must be interpreted in conformity with EU law
requires national courts to do whatever lies within their jurisdiction, taking the whole
body of domestic law into consideration (…), with a view to ensuring that the directive
in question is fully effective and achieving an outcome consistent with the objective
pursued by it.’13
The principle provides you with a solid basis to argue for certain interpretations of national law in
line with the Directives. So, again:
Be prepared to argue in relation to any question relating to the Directives that
national law must be interpreted in such a way as to give effect to the Directive in
question. This applies irrespective of whether the provision is determined as
having direct effect.
It is worth noting, since the topic is criminal procedure, that the Pupino14 judgment famously applied
the duty of conforming interpretation to framework decisions adopted under the Treaty on
European Union prior to 2009. The ruling effectively gave these measures, more loosely binding vy
virtue of their legal basis which fell outside the main Community law structure, a status proximate to
Directives adopted under the Community basis.
Though much is written about this judgment in criminal law publications, (a) it is arguably now
redundant since framework decisions are, following the expiry of transitional provisions in the Treaty
on the Functioning of the European Union (‘TFEU’), in any case part of the main EU law structure,
and (b) the measures we are presently concerned with are directives, adopted under the TFEU;
accordingly, you need not concern yourself with the Pupino principle.
13
14
Case C-69/10 Samba Diouf ECLI:EU:C:2011:54, paragraph 60.
Case C-105/03 Pupino ECLI:EU:C:2005:386.
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