A more recent version of these State Liability For Breach Of Eu Law Revision notes – written by Oxford students – is available here.
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NATIONAL REMEDIES FOR BREACH OF EU LAW
Van Gend en Loos: goal was to make EU law effective, but DE alone not enough, need national remedy for when national authorities breach EU law. Apart from, Art 19(1): "MS shall provide remedies sufficient to ensure effective judicial protection of fields covered by EU law", Treaty silent on national remedies. Court through case law developed this area. Must consider (1) development and (2) introduction of specific and uniform remedy of state liability in damages (Francovich)
B. The provision of remedies before the national courts
1. Phase One: Early case law-
The Court early on felt it was for national legal system to determine how to protect EU law, so long as (a) not less favourable then similar domestic actions and (b) national legal system does not make exercise of community right impossible. (Rewe Zentralfinanz v. Lanwirtschaftskammer fur das Saarland) No requirement under Treaty for MS to create new remedies to accommodate claims based on EU law) (Rewe v. Hza Kiel (butter buying cruises)
2. Phase two: The emphasis on the need to provide an effective remedy for breach of EU rightsAt first practical possibility stated in Rewe was understood as min protection, but later emphasis shifted to effectiveness and adequacy and not virtually impossible (Von Colson, Simmenthal San Giorgio)So, clear tension between procedural autonomy and principle of effectiveness as we see in Factortame Litigation. The Judgement is littered with talk of 'effectiveness' and their solution of suspending the Act of Parliament if all conditions of interim relief were there, to give effectiveness to EU law, is telling. Critics: goes against idea of creating new remedies.
3. Phase three: The post-Factortame tension between effectiveness and procedural autonomyPost Factortame, lots of strong rulings in favour of effectiveness. This area is completely based on case law, and the issue in all these areas is basically the same: Can national law that contravenes EU effectiveness stand or must it be set aside because compromises effectiveness of Eu law?
Two possible approaches:
* Craig & de Burca identify a chronological approach: phase of judicial activism in the early nineties followed by one of selective deference.
* Overall balancing approach: when "activist" rulings compared with later decisions, clear that some early cases explainable on particular facts.
Domestic prohibitions on unjust enrichmentNational rules that prohibit unjust enrichment are cool with effectiveness: San Giorgo However, compare Cotter. After Cotter bit of controversy, but cases after Cotter show national provisions on unjust enrichment are compatible with EU law: Comateb.
National rules on time-limitsReasonable time limit is cool with effectiveness because give legal certainty and citizens and authorities (Rewe Zentralfinanz, Pontin, Pamisani)Emmott : The national rule set aside because while time limit to bring claim in theory not a problem, cannot start the clock so long as the directive is not proeprly implemented. I.e until MS implement directives on time, national time limits cannot begin to run.
Later case law began to limit the effect of the ruling in Emmott. Steenhorst-Neerings allowed time limit of 1 year for retroactive claiming of benefit after directive became vertically effective. The difference between two cases explained in Johnson II: Emmott was deprived of exercising right of equal treatment at all, whereas in Steenhorst it was simply limited to 1 year which was reasonable.Fantask finally confined Emmott to its facts, so long as limitation period no less favourable and does not create virtual impossibility. Uniqueness of Emmott: estoppel Opinion of AG Jacobs in Denkavit) and complete deprivation versus limitation. Restrictions on Retrospective Claims As seen, limitations on retrospective may be justified as promoting sound administration (Steenhorst Neering and Johnson but not if the delay in bringing the claim was attributable to the person from whom the payment was due (Levez ) National rules establishing a ceiling on the amount of damages recoverable In *Marshall (II) (1) a national rule fixing an upper limit on damages disapplied in order to provide effective remedy; (2) And jurisdictional rule that did not permit award of interest set aside.
- However in Ex parte Sutton, national rule allowed to stand, distinguished Marshall by saying that amounts paid by way of social security benefits are to compensatory in nature and thus payment of interest not be demanded. Also, Draehmpaehl  a ceiling of 3 months worth of lost salary instead of 3.5 was allowed to stand, distinguished Marshall because in Marshall applicant had been unlawfully dismissed, Draehmphaehl only lost opportunity to be considered for job he most likely would not have gotten.4. Phase four: The more recent case law.
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