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National Remedies for Breach of Individual Rights Under EU Law Notes
CJEU rulings on the impact of EU law in national legal proceedings, combined with national judicial willingness to follow suit, has ensured a deep penetration of EU norms into national practice
National courts are, in a sense, also EU courts - as the EU has not created its own system of courts, EU courts are parasitic on national courts
This means that the EU has to show some defence to national judicial practices - if you're going to just take over the system of national courts, you have to at least show some respect to national traditions.
What is national procedural autonomy?
National procedural autonomy provides that if there are no EU rules specifying the remedies and procedures available for breach of EU law, then the matter is left to national law
Dougan has suggested that "procedural competence" or "national procedural responsibility" are better terms than "procedural autonomy" given that the case law and Art 19(1) TEU clearly emphasises the responsibility of Member States, absent EU
rules, for determining the conditions under which EU rights are to be protected.
o In a similar vein, the language of autonomy is potentially confused -
"autonomy" implies that there is a choice. In reality this is just the default back to national rules in the absence of EU rules.
Facts: The applicant applied for a refund, including interest, of charges that they had paid in Germany for 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
CJERU to see whether EU law required that they be granted the remedy sought
Held: "The prohibitions have direct effect and applying the principle of cooperation Article 4(3) TEU, national courts are entrusted with ensuring that the legal protection which citizens derived from the direct effect of EU law
In the absence of EU rules on the subject, it is for domestic legal systems to designate the courts having jurisdiction to determine the procedural conditions governing actions at law
The CJEU also referred to the "no new remedies" rule - "although the
Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Court of Justice,
it was not intended to create new remedies in the national courts to ensure observance of Community law other than those already laid down by national law"
BUT: the no new remedies rule has been qualified in later rulings
San Giorgio - the CJEU effectively held that a right to repayment must be, in principle, available under national law as this flowed directly from the substantive provisions of EU law in question
Unibet - the CJEU insisted that EU law does not require the creation of new remedies, except where it is a apparent from the whole 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.
In Unibet, the Court eventually ruled that there was no need for Swedish law to provide a selfstanding action to challenge the compatibility of a national provision with EU law because there were other domestic legal remedies available
The rule in Rewe is subject to two important limitations
1. Principle of Equivalence - national rules must not be less favourable that those governing the same right of action on an internal matter
2. Principle of Effectiveness - Conditions must not make it impossible in practice to exercise the rights which national courts are obliged to protect
NOTE: the language in Rewe is negative (must not make it impossible), but recently the language has shifted towards a more positive formulation.
Some have argued that this represents the CJEU changing its approach.
o However, this is not the case. Jeremias notes that in cases like i-21 the CJEU
puts the negative formulation in brackets, showing that it is the same thing
Beyond this, there are further important qualifications of the principle:
Held: The CJEU held that while states were entitled to impose reasonable penalties for infringements of administration requirements governing EU residence permits by migrant works, the penalties must not be disproportionate to the offence in questions
Adequacy and Effective Judicial Protection
Facts: The plaintiffs were subject to sex discrimination in applying for posts as prison workers They were told that they were only entitled by way of remedy to "reliance loss", such as the costs of travel to the interview.
o They were told that they were entitled to no compensation no appointment to the post
Held: The CJEU derived from the Equal Treatment Directive the robust principles of the adequacy and effective judicial protection
These were later confirmed as applying outside of the sex discrimination context in Johnston, Heylens and Panayotova
Krommendijk (2016) distinguishes between Rewe effectiveness and the Von Colson principle of effective judicial protection
He ultimately finds that the main difference between the two is the more encompassing nature of PEJP,
which entails positive (procedural) obligations
Treaty and Charter Recognition
Article 19(1) TEU and Article 47 of the Charter are a confirmation of the CJEU's approach in this area.
Article 19(1) - Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
Article 47 - everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal
How has the principle of effectiveness been developed and applied?
The principle of effectiveness has been developed by the CJEU to create a (not wholly consistent) hardening of control over national autonomy (Simmenthal, Factortame,
This has meant that simply granting the litigant the same protection available domestically may not be adequate - domestic procedures may need to be upgraded if they fall below the EU-mandated standard of "effectiveness".
The case law has illustrated the tension between the principle of effectiveness and the no new remedies rule
Factortame (No 1)
o Facts: The Merchant Shipping Act 1988 required fishing vessels to be 75% UK
owned. F didn't satisfy this, its shareholders and directors consisted mainly of
F argued that this breached EU law, and he sought interim relied pending final judgement. However interim relief was barred by (a) a common law rule prohibiting grant of an interim injunction against eh
Crown; and (b) the presumption that an Act of Parliament conforms with EU law until a contrary decision is given
Held: The CJEU held that the award of a remedy unrecognised under English law fell within the jurisdiction of English court in cases with an EU element -
were it otherwise, the effective protection of EU law rights would be compromised.
The national court has a duty to grant interim relief to safeguard against infringement of EU rights until a CJEU decision in the interpretation of EU law is available
Where a rule of national law would deny such relied, that national rule must be set aside
The basis of such a duty lies in the nature and object of effective EU
law rights - these are intended to be fully effective throughout the
Where it is necessary in order to safeguard these rights, the national court must grant interim measures
NOTE: the emphasis in this case is on the effectiveness of EU law and not on the national procedural rules
In Factortame, the CJEU did not address the question of the criteria to be applied in granting or withholding this sort of interim relief.
One might have assumed that the substantive conditions for interim relief protection would be defined by national law (subject to the EU principles of equivalence and effectiveness) thus creating a hybrid remedy of EU derivation but of national content
However, the CJEU did address this question in Zuckerfabrik, laying down substantive rules to be applied by a national court in assessing whether to suspend the application or implementation of EU acts
Facts: There was a national law based on an EU provision. C argued that the
EU provision was invalid, and thus that the national law was also invalid.
C requested interim relief, arguing that, in order for the preliminary reference procedure to function properly, the national court must be able to grant interim relief suspending the application of a national measure based on an EU measure hose validity is doubted
Held: The CJEU held that where interim measures are sought before a national court while a ruling from the CJEU on the validity of a measure is pending, the national court may suspend the operation of the national measure adopted in the implementing of the measure
Suspension will only operate if:
1. The national court is satisfied that there are serious doubts as to the validity of the EU act in question
2. The matter is urgent
Matters mut not be purely financial and must materialise before the CJEU rules on the validity of EU
3. There is risk to the applicant of serious and irreparable harm
4. The national court took due account of the EU's interest
The national court is under an obligation to ensure that full effect is given to EU law, and therefore, must take due account of EU interests
This means that regulations should not be set aside without proper guarantees)
Interim legal protection which EU law ensures before national courts must remain the same, irrespective of whether they concern:
The compatibility of national legal provisions with EU law; or
The validity of secondary EU law itself.
However the CJEU has held that different rules will apply depending on the nature of the rule that is being challenged - this is especially true in relation to purely national measures and national measures which seek to implement EU law.
The CJEU distinguished between
1. Challenge to the Validity of National Law
These types of case are governed in accordance with the usual
Rewe and Comet framework - national procedural autonomy,
equivalence and effectiveness
2. Challenge to the Validity of National Law Based on EU Law
These are governed by the conditions set out in Zuckerfabrik and Atlanta
This ruling implied that the CJEU sees a greater threat to the uniform application of EU law by challenges to the validity of EU law itself rather than challenge to validity of the national measures adopted in breach of the treaty
The general position which the CJEU adopts is that reasonable national limitation periods are in principle compatible with EU requirements.
However reasonable national limitation periods might be rendered incompatible with EU
law where the effective protection of EU law rights is negatively affected by other factors.
Where the date on which the period begins is unclear
Where the limitation period applies retroactively
Where the operation of the time limit makes it impossible to obtain a refund due or deduct VAT
Where the national court has too much discretion in determining whether or not proceedings were brough 'promptly'
The CJEU has shown that the question of whether or not time limits are allowed is effectively one of proportionality. The CJEU is not trying to push effectiveness at all costs
Facts: An illegal consumption tax was applied.
C claimed for the tax to be repaid, however the national time limit to bring proceedings had been reduced from 5-10 years to 3 years with a 90-day transition period
CJEU: National legislation shortening the limitation period within which repayment of sums collected in breach of Community law may be sought is not incompatible with the principle of effectiveness.
However, this is subject to two conditions:
1. The new limitation is reasonable
2. The new legislation includes adequate transitional arrangements respecting the principle of legitimate expectations
This is to allow an adequate period after enactment for lodging repayment claims
AG: The AG reaches the same conclusion as the CJEU but says that he cannot judge whether or not the 90-day transition period is too short,
because this requires knowledge of the national legal order
The CJEU was of the view that the period was too short
The AG approach reflects a more nuanced assessment as to issues of national procedural autonomy than that of the CJEU
which seemingly prioritised the effectiveness of EU law over the retention of national practices
The CJEU seemingly has set something of a high threshold for establishing that the effectiveness of EU law would be compromised by a short limitation period
Facts: A woman discovered after leaving her job that she had been paid less than her male predecessor even though they had done he same work. Her employer had deliberately misled her about the level of her predecessor's pay.
By the time she found out about this, the applicant was prevented from claiming arrears by a national limitation period
Held: The CJEU said that the period laid down itself was not in itself objectionable, but to allow an employer to rely on it in circumstances such as these would be "manifestly incompatible with the principle of effectiveness …
[as it] make[s] it virtually impossible or excessively difficult to obtain arrears of remuneration in respect of sex discrimination"
Access to Court
The CJEU has emphasised the importance of access to judicial control and judicial remedy for the vindication of EU law rights even where national security concerns are implicated.
DEB v Germany
Facts: DEB sued the German Government for the late transposition of a Directive which prevented it from bidding for access to the German gas network, which in turn caused it to forego profits.
To bring an action. It was asked to make an advance on court costs of
€274k. It was refused legal aid because there was insufficient public interest in the litigation.
CJEU: The CJEU held that the restrictions on legal aid were incompatible with the principle of effectiveness
Article 47 of the Charter requires that it is possible for legal (as opposed to natural) persons to rely on the principle and required that legal aid granted may cover dispensation from advance payment of costs or proceedings and assistance of a lawyer.
It is for national courts to determine whether or not the conditions for granting legal aid constituted a disproportionate limitation on the right of access to the court which undermines the core of that right
The question is whether or not the limitations pursue a legitimate aim and are proportionate. This will require consideration of
The subject matter of the litigation
Whether or not the applicant has a chance of success
The importance of what is at stake for the applicant,
o The complexity of the law and relevant procedure
Further to this, for legal persons, it may consider
The form of the legal person
Whether it is profit or non-profit making
The financial position of shareholders and partners
Their ability to obtain the sums necessary for the relevant proceedings
AG: AG Mengozzi said that "fixing high procedural costs in conjunction with highly restrictive conditions for the grant of legal aid might be considered likely to result in impairment of the right of access to a court, a fortiori where the payment is required …. Before the proceedings are conducted"
The AG considered the ECtHR case law on Article 6 and the laws of
France, Luxembourg (where commercial companies were ineligible for legal aid), Italy (where legal aid could only be granted to "poor citizens") and Denmark (where commercial companies could receive legal aid only in very limited circumstances) and found that there was no truly common principle amongst the Member States on which the EU could build.
o He therefore concluded that it was for the national court to assess whether the upfront cost was appropriate, and there was no need to consider the question of legal aid separately
This is in stark contrast to the CJEU which addressed the question of legal aid squarely
So DEB stands for the position that legal persons must be allowed to benefit from legal aid,
but that it is for national courts to assess whether the rules undermine the core of the right,
pursue a legitimate aim and are proportionate.
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