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Remedies for breach of individual rights under EU law
Article 19(1) TEU- Requires Member States to provide sufficient remedies to ensure effective legal protection in the fields covered by Union law. It does this to protect the substantive rights offered by EU law, with the constitutional principles which allow the individual to rely on them at a national level: direct effect, supremacy, and the Art 267 preliminary reference procedure.
The applicant companies applied for a refund, including interest, of charges they had paid in
Germany for import inspection costs, which had been imposed in violation of the treaty. The national time limit for contesting the validity of national administrative measures had passed, and the case was referred to the CJEU to see whether EU law required that they be granted the remedy sought.
Applying Article 5 of the Treaty, the Court held it is for the national courts which are entrusted with ensuring the legal protection which citizens derive from direct effect of the provisions of Community law. So in the absence of Community rules, the national courts must be exercise the right conferred by EU law in accordance with the conditions laid down by national rules.
The position would be different only of the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.
In response to a Dutch time bar, the Court was asked to address the adequacy of the procedural rules.
The rule that was laid down was that the national authorities, when creating procedural rules for the enforcement of EU rights which are directly effective, are able to choose the same right of action as would be the case in an internal matter. Equally, it must be the case that it is not impossible in practice to exercise rights which the national courts have a duty to protect.
These stand as the principles of equivalence and effectiveness. Subsequent cases elucidate the nature of national procedural autonomy's conditionality.
Factortame The grounded Spanish sailors want interim relief for the effect the Merchant Shipping Act had on them. National laws at that point precluded the granting of interim relief against the application of a statute.
Held, that the principle of effectiveness required a rule barring the granting of interim relief against the application of a statute to be set aside.
Leczykiewicz: Factortame is about effectiveness- effectiveness of rights granted under EU
law would not be achieved if it were possible to have irreversible harm committed on a victim in the lapse of time between preliminary reference and ruling by ECJ.
The case elucidated the precise conditions under which interim relief against a provision of national law which implemented Union law should be available.
1) If the factual and legal circumstances are such as to persuade the national court that serious doubts exist as to the validity of the Community regulation on which the contested administrative decision is based.
2) Must retain the character of an interim measure: suspension can only be granted until such time as the Court has delivered its ruling; and so incumbent on the national court to refer that question and explaining its doubts.
3) May only be granted in the event of urgency, if it is necessary for them to be adopted in order to avoid serious and irreparably damage to the party seeking the measures of suspension. The damage must be liable to materialise before the Court of Justice has been able to rule on the validity of the contested Community measure.
The damage can also not just be purely financial damage, which cannot be regarded as irreparable.
4) NC must also take into account the interests of the Community: it must ask itself if the Community measure would be deprived of all effectiveness if not immediately implemented.
The challenged act was a Council Regulation on the common organisation of the market in bananas, establishing a common import regime. The applicants, traditional importers of bananas, found themselves with import quotas which they viewed as insufficient. They brought proceedings to tackle the measures associated with the implementation of the EU
Significance: clarified the conditions laid down in Zuckerfabrik:
1) As to the concerns of validity of the EU measure, this doesn't mean simply sending the question, but also must set out the reasons for which it thinks the EU measure should be held invalid. The conditions for the grant of relief is granted on the same conditions as apply when the ECJ is dealing with an application for interim measures.
2) Urgency: same characteristics, must materialise before judgement, must be more than merely financial.
3) Interests of the community: must think of the cumulative effect which would arise if a large number of courts were also to adopt interim measures for similar reasons and, and whether the features of the applicants case distinguish him from other operators.
4) When assessing the grant for interim relief, the national court must respect prior ECJ
decisions- so if they've dismissed the merits of an action, the national court must follow this. An applicant, to avoid this, must show a specific situation which distinguishes him from other operators in the relevant sector, otherwise the nc will have to accept any findings already made by the ECJ as to the serious and irreversible nature of the damage.
An employee sought damages for arrears in payment which had been denied to her in breach of EU equal pay rules. The CJEU had ruled that the 2 year limit on arrears of damages in Industrial Tribunal proceedings could not be applied to her on account of the role played by her employer's deception in the delay. However, the UK argued that the time limit should nonetheless apply to her case, because an alternative full remedy before the county court in an action for deceit against her employer and in an action based on the Equal Pay Act had been open to her, so that the exercise of her right was not rendered ineffective in practice.
The ECJ accepted the point on effectiveness, but went on to consider the requirement of equivalence:-In order to determine whether the principle of equivalence has been complied with, the nc must consider both the purpose and the essential characteristics of allegedly similar domestic actions.
When it falls to be considered whether a procedural rule of national law is less favourable than those governing similar domestic actions, the national court must take into account the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the national courts.
If it transpires that a claim under the Act which is brought before the county court is similar to one of the forms of action listed before a national court, it would remain for the court to determine whether the first mentioned form of action is governed by procedural rules or other requirements which are less favourable. Relevant in that regard is whether additional costs and delays are incurred by the applicant who brings a claim under EU law to the County court than an applicant who brings a similar form of action to the Industrial Tribunal under domestic law, which is a simpler and cheaper process. Bobek sees this as a third wave case: that it is not about national procedural autonomy as such but is only a very narrow case applicable when one party to a private law relationship deceives another.
Courage Ltd v Crehan
Even when a party to the anti-competitive contract, an individual must not be barred from bringing an action on account of violation of competition rules. However, Community law does not prevent national courts from taking steps to ensure that the protection of rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them.
Similarly, provided principles of equivalence and effectiveness are respected, Community law does not preclude national law from denying a party who is found to bear significant responsibility for the distortion of competition the right to damages from the other contracting party.
In that regard, consideration must be had of the relative bargaining positions of the parties,
and the general economic and legal context- includes the party's freedom to negotiate and his capacity to avoid loss or reduce its extent.
The Court ruled that although national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not in itself incompatible with the effectiveness principle, the new limitation period must remain reasonable and must include adequate transitional arrangements.
On the facts, the Court held a 90 day transitional limitation period was unreasonable, given that it replaced a previous five-year period for preparing and submitting proceedings.
The Treaty was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law. But it would be otherwise if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly,
respect for an individual's rights under Community law.'
The court indicated that if an individual were forced to be subject to administrative or criminal proceedings with possible penalties as the sole form of legal remedy for a conflict between EU and national law, this would not constitute effective legal protection.
However, on the facts of Unibet it was held there was no need for Swedish law to provide a self-standing action to challenge the compatibility of a national provision with EU law, as there existed other remedies which enabled the compatibility question to be tackled indirectly.
DEB v Germany
Is legal aid necessary for effective protection?
The principle of effective judicial protection, as enshrined in Article 47 of the Charter, must be interpreted as meaning that it is not impossible for legal persons to rely on that principle and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer.
In that connection, it is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right; whether they pursue a legitimate aim; and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.
Oliver: disagrees with any distinction between Article 19(1) TEU and the principle of effectiveness. While some claim the latter is broader, and the former only has to do with remedies, it is more likely that this is caused by the Court's 'almost chronic inability to adhere to any consistent legal terminology. Note AG Trstenjak in NS v Sec of State for Home
Dept- she stated with reference to Article 47 that 'The minimum content of the right to an effective remedy includes the requirements that the remedy to be granted to the beneficiary must satisfy the principle of effectiveness'. SO the two principles have been subsumed under Article 47 now.
Tension: between the principle of effectiveness of EU law and legal certainty/national procedural autonomy
Arcoro v Germany**** note relevance in harmonious interpretation
Held, that the obligation of a national court to refer to the content of the directive when interpreting its own rules of national law reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, more especially, where it has the effect of determining or aggravating,
on the basis of the Directive and in the absence of any law enacted for its implementation,
the liability in criminal law of persons who act in contravention of that directive's provisions.
Significance: a narrowing of the principle of interpretation such that where an interpretation of national law in the light of a directive amounted to the imposition on an individual of an obligation laid down in the directive, it went too far and wasn't permitted or required by EU
law. Interaction with res judicata
Concerning recovery of unlawful state aid, the CJE went further and ruled that EU law precluded a national rule on res judicata from being applied by a court to prevent recovery of aid which had been found by the Commission to be definitely incompatible with EU law.
However, the Court also ruled that this was specific to the state aid context, and the subsequent case of Pizzarotti (2013) confirmed that the Lucchini judgement had been given in a highly specific situation.
Contrast with Olimpiclub, where the Court ruled that a national court could not rely on the principle of res judicata in the context of VAT, as to do so would undermine the effectiveness of EU VAT rules.
Bobek: Sees the Lucchini judgement as being less about any destruction of the principle of res judicata, but rather is about misuse of powers on the part of the government.
The case law is confusing: so sometimes res judicata will have to give way to the need to take a binding EU law ruling into consideration- however, not clear where… could the
'effectiveness' argument employed in Olimpiclub be extended?
The consumer had failed to challenge the arbitral award within the time limit stipulated by national law, the Court accepted that the principle of res judicata and ensuring sound administration of justice were important enough that the national rule of finality should stand, as long as equivalent domestic actions were also applied in this way.
Mostaza Claro v Centro Movil Milenium
The Court decided that a national court dealing with an action for annulment of an arbitration award must determine whether the arbitration agreement is void where that agreement contains an unfair term even thought the consumer has not pleased that invalidity in the course of proceedings, but only in the action for annulment.
Scope of the Court's jurisdiction: the comptenece of the CJEU is not restricted to fields over which the EU has legislative/positive competence. The Court in its case law introduced congruity between the question of when it has jurisdiction in a case referred to it by a national court and when the MS are subject to EU standards (the ERT case). As a result, the scope of the Court's jurisdiction determines the outer limits of MS obligations under EU law,
including the national courts' duties to modify national procedural and remedial rules or give effect to EU fundamental rights. The jurisdiction of the CJEU depends on whether the
Court can establish a link with EUlaw Theories of CJEU's stance on national procedural autonomy
Dougan suggests 3 periods of case law: initial deference, middle period of assertiveness, and then retreat back into limited negative approximation.
Tridimas accords with the categorisation into 3 periods, however notices that the most recent case law of the court may suggest another resurgence of interventionism.
On the normative side, some argue that the Court of Justice goes too far and upsets the relationship of co-operation between it and the national courts. Conversely, authors like
Van Gerven argue it should adopt a fully-fledged harmonisation agenda in the area of national procedural laws.
BobekThe test of equivalence and effectiveness internally contradicts itself and is almost impossible to conduct.
3 problems of the exercise of comparison as conducted by the CJEU
1) Any comparison involves a value judgment about what is comparable. The choice of points of comparison is subjective by nature. This means the Court of Justice makes choices about national law, and interpret national law, a competence which the
Court of Justice doesn't have.
2) There are more and more cases, as harmonisation of EU law grows, which mean a national comparator is missing. The solution in such a case seems to only be to go further up the levels of abstraction until you reach general provisions, which may be too far from the specific instant case to be of any real use.
3) Practically speaking, the Court will not always have a detailed knowledge of the existing national law. Further, it shouldn't have- it is not the function of the Court.
Especially, if at the end of the day, the only result of the approach is to create 27 different disparate standards.
Problem with effectiveness:-
Not a legal principle as it has no internal limits. Once you surpass the impossibility criterion, it comes down to what the court subjectively thinks it is to be excessively difficult, with no parameters for adjudging this.
It becomes a political rather than a legal matter.
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