The European Commission's Interpretative Guidance and National Courts

Given the extent of soft law and interpretative guidance by bodies which are not courts, there is a need for further insight into interinstitutional communication between the EU and national levels. This contribution focuses upon the ‘diagonal’ relationship between the European Commission and national courts. It explores the impact of the Commission’s ostensibly non-binding interpretative guidance on national judicial decision-making. Applying the concepts of active and passive interpretation of EU law by the Commission to cases in national courts, it examines the relative interpretative roles of the Commission and the Court of Justice, and finds examples of both being employed. Through active interpretation it can be argued that the Commission oversteps its competence. However, the Commission also uses its role to ‘bootstrap’ the Court of Justice’s case law and further encourage compliance. The significance of soft law is viewed both from the ‘supply side’ of the European Commission, revealing its representation of the EU interest in context, and the ‘demand side’ of national courts as recipients.