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National Remedies For Breach Notes

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NATIONAL REMEDIES FOR BREACH OF INDIVIDUAL RIGHTS UNDER EU LAW The Commission may bring a breach of EU law by an MS before the ECJ and the Commission has some powers to investigate breaches by private parties (e.g. competition rules). National courts are empowered by direct effect and supremacy to become EU courts engaged in policing EU law. Dougan narrative: suggests a 'core' narrative of the ECJ's jurisprudence: (i) early period (until mid 80s) --- characterised by an emphasis on national procedural autonomy; (ii) middle period (until 1993)
--- the most ambitious, interventionist, period; (iii) late period (from 1993) --- ECJ seems to encounter a crisis of confidence, backing down from its interventionist stance. NATIONAL PROCEDURAL AUTONOMY Starting point: where no relevant EU law exists, national law determines procedure and remedies, subject to the principles of effectiveness and equivalence.
? Rewe [1976]: C claimed a refund for import duties paid to Germany in violation of the Treaty, but was time-barred under national law. ECJ: the reasonable time bar did not violate EU law. o Principle of national procedural autonomy based on Art. 4(3) (sincere cooperation); in absence of EU rules, "it is for the domestic legal system ... to determine the procedural conditions governing actions at law" intended to protect EU law rights of individuals. o Principle of equivalence: national remedies / procedures for breach of EU law cannot, however, "be less favourable than those relating to similar actions of a domestic nature" o Principle of effectiveness: national remedies must not make it "impossible in practice to exercise the [EU] law rights which the national courts are obliged to protect."
? Comet [1976]: C claimed for export costs paid to D, under a contract of sale, which were incompatible with a directly effective Treaty provision. D argued C was time-barred. ECJ: Dutch limitation period was valid; rejected C's argument that the limitation period undermined the impact of the direct effect of treaty provisions in MS. Thus, directly effective EU law will be enforced according to national procedures / remedies; there is no requirement for national courts to create new remedies for the protection of EU law rights. TIGHTENING OF REQUIREMENTS Since Rewe and Comet the ECJ has developed effective judicial protection as a general principle of EU law (now confirmed in Art. 47 Charter); this has led to limits on the principle of national procedural autonomy and the strengthening of the effectiveness / equivalence requirements. Interventionism illustrated by:
? San Giorgio [1983]: principle of effectiveness was altered to require that national procedural rules should not make it "virtually impossible or excessively difficult " to exercise/protect EU law rights and seemed to require a new remedy be available in national law by ruling that the right to repayment of charges levied in breach of EU law must be available in principle. These developments were based on Art. 4(3): "pursuant to the principle of sincere cooperation... MS shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union." Tightening of Requirements I: Remedies

No new remedies rule rejected and emphasis placed on full effectiveness of EU law:
? Factortame I [1990]: Spanish fishermen were prevented from registering their vessels by UK law. Cs argued that the Merchant Shipping Act 1988 breached EU law and sought interim relief before UK courts. HL interim relief was prevented by a CL rule that an injection could not be granted against the crown. CJEU: interim relief must be available as a matter of EU law, but left it to HL to determine conditions in which relief would be available. They restated the principle of national procedural autonomy, but stated the "full effectiveness of Community law would be impaired if a rule of national law could prevent a court... from granting interim relief." Emphasis on effectiveness / judicial protection I Factortame contrasts emphasis on national procedural autonomy in Comet and Rewe. Zuckerfabrik [1991] and Atlanta [1995] (see preliminary ref. notes) establish that national courts may suspend EU acts / implementing national legislation while the validity of the act is being determined under the preliminary ref. procedure.
? The issue: in these cases, the ECJ laid down criteria for the availability of such relief and, in Zuckerfabrik, emphasised that interim protection must be governed by the same rules regardless of whether an individual contests EU law (Zuckerfabrik) or national law (as in Factortame) --- thus, in laying down conditions for the grant of interim relief, the ECJ further eroded national procedural autonomy in favour of the uniformity / effectiveness of EU law.
? The ECJ retreated from this position in Unibet [2007]: distinguished two cases: o Case concerns compatibility of a national law with EU law: the national court must be able to grant interim relief (as in Factortame), but the conditions for the grant of such relief are to be determined by national law, not EU law (as long as compliant with equivalence/effectiveness). o Case concerns validity of EU secondary legislation: here interim relief is an EU law right, the substantive conditions of which are exhaustively determined by EU law (as in Z and A). Arnull: drawback to U is that it will lead to disparities in the law between MS, doesn't fit well with the emphasis in Z on the uniform application of EU law as a fundamental requirement of the EU legal order. Tightening of the Requirements II: Equivalence Equivalence asks what causes of action in domestic / EU law are sufficiently similar to require equivalent treatment in terms of remedies / procedure. Levez [1998] C wanted to assert her EU law right to equal pay before a tribunal, but under UK law was time barred from doing so. ECJ: was for national courts to decide whether the two-year time limit breached the principle of equivalence but it probably did: "The principle of equivalence requires that the rule at issue must be applied without distinction, whether the infringement alleged is of [EU] law or national law, where the purpose and the cause of action are similar ." In determining the equivalent national law proceedings, the court has to take a context-driven balancing approach --- e.g. need to look at the most similar cause of action and see if additional barriers apply in bringing the EU law action, including whether it is more expensive / lengthy to bring EU law action.
? Likely outcome (ECJ does not decide cases on the facts): two-year limitation breached the principle of equivalence as the most similar UK action (for salary arrears) did not have a two year limit.

Williams (lectures): the application of the principle of equivalence involves value judgments, depends on what factors the court thinks is most important. Tightening of the Requirements III- Effectiveness If used intensively, effectiveness may operate as a harmonisation measure. Now provided for in Treaty:
? Art 19(1) TEU: MS shall provide remedies sufficient to ensure effective legal protection in the fields governed by EU law. San Giorgio [1983] principle of effectiveness was altered to require that national procedural rules should not make it "virtually impossible or excessively difficult" to exercise EU law rights. Effectiveness test balancing
[1995]: introduced balancing exercise effectiveness and procedural is made in light of the national rule. tested for by-case basis, results in various

Pro-effectiveness Factortame 1 Grundig Francovich Zuckerfabrik, Atlanta Courage v Crehan San Giorgio Lucchini Fallimento Olimiclub Mostaza Claro

Pro-national procedural autonomy Comet Rewe Zentralfinanz Rewe Handelsgesellschaft Unibet Courage v Crehan (?) Arcor v Germany Asturcom Telecom

is a context-specific exercise: Van Schijndel a context-specific between the principle of the principle of national autonomy. The judgment the aim and function of Each national rule is effectiveness on a caseleading to different cases (see table).

Note, for example, the different results reached in Mostaza and Asturcom, both involving very similar national res judicata rules. Since the original cases of Comet and Rewe the effectiveness of EU law has been confirmed as a GP of EU law (Art. 47 of the Charter) and has been used strongly in Factortame, Zuckerfabrik, Francovich, and Grundig where it operated to harmonise national procedural rules. Grundig is an example of effectiveness defeating national procedural autonomy:
? Grundig v Italiana [2002]: Italian government sought to retrospectively apply a shorter limitation period on claims for reimbursement of tax payments made contrary to EU law. ECJ: reducing the limitation period from 3-5 years, with only 90-day transition period, violated effectiveness. Although reducing the limitation period was not "incompatible with the principle of effectiveness" such changes must be "reasonable" and there must be "transitional arrangements allowing an adequate period... for lodging claims for repayment which persons were entitled to under the original legislation." o The retrospective change would have been valid with a longer transition period (min. 6 months). Conflict between national autonomy and effectiveness seen in res judicata cases: where such rules prevent individuals enforcing EU law rights before national courts. The tension is clear in Lucchini
[2007] and Falimento Olimpiclub [2009] --- both cases concerned the same Italian res judicata rule, but

very different facts, and in both cases effectiveness triumphed over national procedural autonomy and certainty. Two interpretations of these cases:

1. They illustrate national res judicata rules often have to give way to the principle of effectiveness.

2. They can also be read as highly fact specific: o Lucchini: concerned the finality of an Italian CA decision on the payment of state aid to a company in breach of EU law. ECJ decided res judicata did not apply because the Italian CA (following Foto Frost) did not have the jurisdiction to rule on the validity of the payment. o Fallimento: ECJ emphasised the fact-specific nature of Luccini and that "the rules implementing the principles of res judicata are a matter for the national legal order" but found that, here, effectiveness prevented the rule applying. Again, it was an unusual application of a res judicata rule, under which findings whether transactions were fraudulent in relation to one tax year prevented consideration of whether they were fraudulent relating to another tax year. Mostaza and Asturcom illustrate the application of effectiveness to national res judicata rules involves drawing some fine distinctions. Both concern the Unfair Contract Terms Directive
? Mostaza Claro [2006]: a national rule held C could not have an arbitration award invalidated under UCTD because C had not raised the issue in the course of arbitration proceedings. ECJ: rule could not prevent a finding the agreement was void under UCTD, to find otherwise would undermine the effective protection of weak bargaining power of consumers under UCTD --- this intrusion into procedural autonomy was justified by "the nature and importance of the public interest underlying the protection... of consumers." o ECJ effectively imposes a new procedural rule on national courts, requiring them to consider whether a contract is void for an unfair term of their own motion (not dependant on the consumer raising the issue in arbitration proceedings). Far reaching infringement on national autonomy.
? Asturcom Telecomm [2009]: C sought to set aside an arbitration award on the basis of the UCTD, but did not raise the issue within the two-month limitation period allowed by national law. ECJ: res judicata rule was valid --- distinguished from Mostaza in that C did not bring an action for annulment and took no positive action against the agreement. "The need to comply with the principle of effectiveness cannot be stretched so far" although it can allow a consumer who is unaware of his rights [as Mostaza] to set aside an agreement, it cannot "make up fully for the total inertia of a consumer." o The total inertia of the consumer meant that the principle of national procedural autonomy and legal certainty triumphed over the effectiveness of EU consumer protection law. Recent case law displays a more nuanced, balanced, approach to the balancing exercise:
? Unibet [2007]: C promoted internet betting in Sweden, but his actions attracted criminal law proceedings. In a separate administrative action, C sought a declaration that Swedish law was contrary to EU Treaty provisions on free movement of services --- court held that he could only make such a challenge during the criminal proceedings against him. ECJ: o Principle of effectiveness does not require there to be a separate self-standing action in national law to review legislative measures for compatibility with EU law, sufficient that such measures can be challenged indirectly in the course of enforcement proceedings. o Following the principle of national autonomy, EU Treaties were not intended to create new remedies in national courts, unless national law provided no remedy to protect an EU law right. o Thus, if C could only challenge the validity of the national law in proceedings brought against him by the state, that would not be sufficient and would violate effectiveness.

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