Several expressions of consistency can be identified in the EU legal system ranging from its status as an objective in the Lisbon Treaty, as a constitutional principle or the core of a method of interpretation, to it being a goal of the preliminary reference procedure or its position in the Charter of Fundamental Human Rights of the European Union (CFREU) settling the relationship between right in the Charter and the European Convention on Human Rights (ECHR). In the following, I address these expressions thereby outlining the map of consistency-related provisions and institutions in EU law.
This part will not engage in the in-depth analysis of these provisions, but rather will remain on the level of demonstrating the extensive presence of consistency in the EU system in order to show that it plays a fundamental role in the EU law.
First, mention must be made of the numerous instances where consistency as a value is reflected in the Lisbon Treaty. We can distinguish the provisions referring to consistency based on whether they relate to legal drafting or judicial decision-making.
As for legal drafting, the first reference to consistency in the Treaty of Lisbon may be found in art 7 of the Treaty on the Functioning of the European Union (TFEU) stipulating that ‘the Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers’.40 As under the principle of conferral all EU acts must have a lex specialis legal basis in the TFEU – ensuring that the EU solely acts within the purview of its own
35 The text of the article is as follows: “3. There shall be taken into account, together with the context (c) any relevant rules of international law applicable in the relations between the parties.”
36 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1991 I.C.J. 53, 69–70 (Nov. 12); Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), 2008 I.C.J. 37 (June 4).
37 ILC (n 29) para. 420.
38 Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (Springer, 2012) Art. 31, para. 91.
39 ibid.
40 Consolidated version of the Treaty on the European Union [2007] 2008/C 115/01, Article 7.
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competences – which is believed to ‘produce consistency, coherence and predictability’,41 art 7 TFEU assists in tackling the legitimacy gaps in the system.42 Similarly, pursuant to art 13 of the Treaty of the European Union (TEU), ‘the Union shall have an institutional framework which shall aim to […] ensure the consistency, effectiveness and continuity of its policies and actions’.43 This suggests that consistency serves as a value also in the drafting of EU legislation.44
Further to institutional arrangements, pursuant to arts 16(6) and 18(4) TEU, both the General Affairs Council and the High Representative of the Union for Foreign Affairs and Security Policy have the task of ensuring consistency in the work of the different Council configurations and in the EU’s external action respectively. Consis-tency in external actions and between EU policies also lies at the heart of art 21(3) TEU, analogically to art 26(2) TEU in the field of common foreign and security policy.
Lastly, in terms of drafting and Union policies, art 334 TFEU also requires the Council’s and the Commission’s cooperation to ensure the consistency of activities undertaken in the context of enhanced cooperation and the consistency of such activities with the policies of the EU. Besides expressions of consistency affecting legal drafting, it plays a significant part in decision-making processes as well. Such aspect is stipulated by the procedures of the review of the decision of the General Court and that of preliminary reference in art 256 TFEU, as well as the corresponding procedural rules in arts 62 and 62b of the Statute of the CJEU.
Consistency as the goal of the preliminary reference procedure in itself warrants a second category among the expressions of consistency in EU law. A preliminary ruling can be sought from the CJEU if a case before a national court in one of the Member States of the EU requires a decision on the interpretation or validity of an EU legal measure.45 The procedure provides a channel for dialogue between the CJEU and national courts to ensure the consistent application of EU law.
As a third category attention shall be drawn to consistency as a constitutional principle. In EU law, consistency is usually referred to as an all-encompassing principle embodying the absence of contradictions.46 Consistency implies that two rules are consistent when they produce the same result on the same set of facts or raise a similar legal issue,47 and as a systemic principle it is emphasized in constitutional texts an element of the rule of law helping to ensure legal certainty. In this respect we can recall
41 Esther Herlin-Karnell and Theodore Konstadinides, ‘The Rise and Expressions of Consistency in EU Law:
Legal and Strategic Implications for European Integration’ [2013] 15 Cambridge Yearbook of European Legal Studies 139, 145.
42 ibid, 145.
43 Consolidated version of the Treaty on the Functioning of the European Union [2008] OJ 115/13, Article 13.
44 Herlin-Karnell and Konstadinides (n 41), 145.
45 Consolidated version of the Treaty on the Functioning of the European Union [2007] 2008/C 115/01, Article 267.
46 Herlin-Karnell and Konstadinides (n 41) 251.
47 Herlin-Karnell and Konstadinides (n 41) 139, 141.
From Consistency to Legitimacy in the European Union Regime i127 the Rule of Law checklist made by the Venice Commission which specifies the
elements of rule of law in order to make it possible to assess the rule of law from the view point of constitutional and legal structures, the legislation in force and the existing case-law.48 Under the category of legal certainty, the Venice Commission makes reference to the consistency of law and whether it is applied consistently as factors affecting legal certainty and thereby the level of rule of law.
Scholarship differentiates between vertical and horizontal consistency in EU law.
Vertical consistency refers to a clear competence delimitation and conflict resolution between the EU and Member States, whereas horizontal consistency entails cooperation between different institutional actors in EU decision making.49 While examples for the latter may include the instances referenced above with respect to the provisions of the Lisbon Treaty, an example for the former forms the fourth category of the present classification of the expressions of consistency, that is – the principle of consistent interpretation. This principle entails an obligation on national courts and administrative authorities to interpret the applicable national law as much as possible in a way which ensures the fulfilment of obligations deriving from EU law. As the principle will be further elaborated on inn the context of the CJEU’s jurisprudence, for the purposes of the present categorization it suffices to reference that the principle, by solving clashes between different norms, aims at eliminating inconsistencies within legal inter pretations.
Lastly, as a fifth category, reference shall be made to fundamental rights within the EU, and specifically art 52(3) of the CFREU addressing the relationship of the regimes of the CFREU and the ECHR. As stipulated by this paragraph, the corresponding rights contained in the CFREU and in the ECHR have similar meaning and scope. The rationale behind this provision was pointed out by Opinion 1/2013 of the CJEU stating that ‘Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed in the ECHR, without adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union.’50 As such, it was intended to avoid any conflicts and inconsistent interpretations of the CFREU and the ECHR by the CJEU and European Court of Human Rights (ECtHR).
48 European Commission for Democracy through Law (Venice Commission), Rule of Law Checklist CDL-AD(2016)007rev [2016] para. 24.
49 Marise Cremona, ‘Coherence through Law: What Difference Will the Treaty of Lisbon Make?’ [2008] 3(1) Hamburg Review of Social Sciences 17; Esther Herlin-Karnell and Theodor Konstadinides, ’The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration’ [2013]
15 Cambridge Yearbook of European Legal Studies 139, 142.
50 Gerrit Betlem, ’The Doctrine of Consistent Interpretation—Managing Legal Uncertainty’ [2002] 22(3) Oxford Journal of Legal Studies 397–418, 402, 398
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