Upper Tribunal Tax and Chancery Chamber

[2024] UKUT 00319 (TCC)

Fecha: 23-May-2024

Conforming interpretation

Conforming interpretation

55.

All of the parties agree on the principles that apply to the adoption of a conforming interpretation or construction. They disagree on their application to the issues in this appeal.

56.

The principle of a conforming interpretation was set out in the decision of the CJEU in Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89), as follows at [8]:

[I]n applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.

57.

Both the UK courts and the CJEU have held that whether a conforming interpretation is possible, or alternatively, what disapplication is required, is a matter for domestic law, and is not a matter for the CJEU: see, for example Teckal Srl (Case C-107/98):

[33] Next, it must be pointed out that in the context of Article 177 of the Treaty the Court has no jurisdiction to rule either on the interpretation of provisions of national laws or regulations or on their conformity with Community law. It may, however, supply the national court with an interpretation of Community law that will enable that court to resolve the legal problem before it (Case C-17/92 Federación de Distribuidores Cinematográficosv Spanish State [1993] ECR 1-2239, paragraph 8).