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Remedies National Procedural Autonomy Notes

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TABLE OF CONTENTS

I - Remedies in the National Courts...................................................................................................3
A - Statement of the Principle of (conditional) national procedural autonomy?......................3
- Case 33/76 Rewe-Zentralfinanz [1976] ECR 1989............................................................................................................3
- Case 45/76 Comet [1976] ECR 2043.................................................................................................................................3

B - Specific Applications of the Principle................................................................................................4 1 - National Time Limits.................................................................................................................................................4
- Case C-255/00 Grundig Italiana [2002] ECR I - 8003;......................................................................................................5
- Case C-326/96 Levez [1998] ECR I-7835 (equal pay case which turned on the applicability of a national limitation period)...................................................................................................................................................................................5 2 - Interim Protection......................................................................................................................................................5
- Case C-213/89 Factortame (No. 1) [1990] ECR 1-2433 (against a NATIONAL act potentially in breach of EU law)........6
- Cases 143/88 & 92/89 Zuckerfabrik Suderdithmarschen [1991] ECR I-415 (against a potentialy invalid EU ACT).........6
- Case C-465/93 Atlanta [1995] ECR I-3761 (against a potentially invalid EU ACT)...........................................................6
- Case C-432/05 Unibet v. Justitiekanslern [2007] ECR I-2271...........................................................................................7 3 - Setting aside a defence in national law?..........................................................................................................7
- Case C-453/99 Courage Ltd. v. Crehan [2001] ECR I-6297 (no blanket ban for breach of competition law)..................7 4 - Legal Aid........................................................................................................................................................................7
- Case C-279/09 DEB v. Germany, [2010] ECR I-3849 (nuanced ruling on whether effectiveness requires legal aid)......7
- NOTE P. Oliver (2011) 48 CMLRev 2023...........................................................................................................................8 5 - Res Judicata..................................................................................................................................................................9
- Case C-392/04 & C-422/04 i-21 Germany and Arcor v. Germany [2006] ECR I-8559;.....................................................9
- C-119/05 Lucchini [2007] ECR I-6199 (duty to recover State aid in spite of res judicata);..............................................9
- Case C-2/08 Fallimento Olimiclub Srl [2009] ECR I-7501;................................................................................................9
- *Case C-168/05 Mostaza Claro v. Centro Movil Milenium [2006] ECR I-10421;...........................................................10 6 - Raising issues of EU law ex officio....................................................................................................................10
- *Case C-168/05 Mostaza Claro v. Centro Movil Milenium [2006] ECR I-10421;...........................................................11 7 - Creating new remedies..........................................................................................................................................11
- Case C-432/05 Unibet v. Justitiekanslern [2007] ECR I-2271 (must be able to bring actions to court themselves).....11
- NOTE A. Arnull, 'The Principle of Effective Judicial Protection in EU law: an Unruly Horse?' (2011) 36 ELRev 51;......11

C - Is there such thing as procedural autonomy?..............................................................................12
- Bobek, 'Why There is no Principle of Procedural Autonomy of the Member States' in B. de Witte and H. Micklitz
(eds), The European Court of Justice and Autonomy of the Member States (Intersentia, 2011).......................................12
- M. Ross, 'Effectiveness in the European legal order(s): beyond supremacy to constitutional proportionality?' (2006)
31 ELRev 476;......................................................................................................................................................................12

II - Actions for damages in cases of breach of EU law............................................................13
- D. Leczykiewicz, 'Effectiveness of EU Law before National Courts', ch. 9 in Arnull & Chalmers (eds.), The Oxford
Handbook of European Union Law (OUP, 2015).................................................................................................................13
- * Cases C-6 & 9/90 Francovich [1991] ECR I-5357;........................................................................................................13
- Case C-48/93 Factortame (No. 3)/Brasserie de Pecheur [1996] ECR I-1029 (conditions of liability)............................15
- Case C-392/93 R v. HM Treasury, ex parte British Telecom [1996] ECR I-1631;............................................................17
*Case C-224/01 Kobler [2003] ECR I-10239;.......................................................................................................................17
- NOTE S. Varga, Why is the Kobler Principle not Applied in Practice? (2016) 23 MJ 6 page 984...................................21
- Case C-173/03 Traghetti del Mediterraneo [2006] ECR I-5177;.....................................................................................23
- Case C-160/14 Ferreira da Silva e Brito, Judgment of 9 September 2015;....................................................................23
- Dougan, 'Addressing issues of protective scope within the Francovich right to reparation' (2017) 13 Euro Const Law
Review 124..........................................................................................................................................................................24
- Harlow, 'Francovich and the Problem of the Disobedient State' (1996) 2 ELJ 199;......................................................25
- * M. Dougan, 'What is the point of Francovich?', Ch. 14 in T. Tridimas and P. Nebbia (eds.), European Union Law for the Twenty-First Century, Volume 1: rethinking the new legal order (Hart Publishing, 2004)..........................................25
- Scott and Barber, State Liability under Francovich for Decisions of National Courts (2004)........................................26
EU LAW: NATIONAL REMEDIES
Page 1 - Beutler, State Liability for Breaches of Community Law by National Courts, (2009) 46 CMLRev 773..........................26
- Case C-453/99 Courage Ltd. v. Crehan [2001] ECR I-6297.............................................................................................27
- Weatherill, Law and Values in the European Union......................................................................................................28

EU LAW: NATIONAL REMEDIES

Page 2 I - REMEDIES IN THE NATIONAL COURTS
Article 19(1) TEU (MSs shall provide remedies sufficient to ensure effective legal protection...) and Article 47 Charter (right to an effective remedy before national courts)
are both confirmation of the CJEU's approach.
The issue highlights a tension between:Need to secure effective legal protection
Impossibility of constructing a comprehensive pan-European machinery of redress
(because would be impracticable and touch on sensitive questions (types of interests to protect, time limits, types of loss that can be compensated...) that are addressed differently across Member States)

A - STATEMENT OF THE PRINCIPLE OF (CONDITIONAL) NATIONAL
PROCEDURAL AUTONOMY?
Note that in both cases the CJEU decided that on the facts the national procedural rules are reasonable.
- Case 33/76 Rewe-Zentralfinanz [1976] ECR 1989Facts: A trader claimed a refund for charges unlawfully levied by German authorities.
German authorities argued that the limitation period had passed and the trader couldn't have claimed if the measure had breached an equivalent domestic law.CJEU ([5]): the prohibitions have direct effect, and applying the principle of cooperation (Article 4(3) TEU), national courts are entrusted with ensuring the legal protection which citizens derive from the direct effect of EU provisions. Thus, in the absence of EU rules on the subject, it is for domestic legal systems to:
o Designate the courts having jurisdiction

Determine the procedural conditions governing actions
Provided that:
o conditions cannot be less favourable than those relating to similar actions of a domestic nature

conditions cannot make it impossible in practice to exercise the rights which the national courts are obliged to protect
Reasonable time limits are OK, and with regards to actions of a fiscal nature is an application of the fundamental principle of legal certainty.-

The second condition (impossible in practice...) pushes for the development of an EU system of remedies even where it is not available in domestic cases - sets a minimum standard of protection and provides some harmonization of domestic remedies and procedures.
and
- Case 45/76 Comet [1976] ECR 2043CJEU: in the absence of relevant EU rules, it is for the national legal order of MSs to designate the rules and procedures governing the protection of DEtive rights conferred on individuals by EU law, subject to two provisos that the rule is no less favourable than those governing the same right of action domestically, and it should not be impossible in practice to exercise these EU rights

EU LAW: NATIONAL REMEDIES

Page 3 are the cases that are normally taken as the basic starting point in asserting a conditional principle of national procedural autonomy in cases involving the vindication of EU law rights.
EXAM MATERIAL
The language in Rewe is negative (must not make it impossible...), but recently, the language shifted towards a positive formulation - some argue that this is the CJEU changing in approach, but Jeremias doesn't think so because in cases like i-21 because the CJEU just puts it in brackets, showing that it's the same thing.
The CJEU maintained this position even after Lisbon (Art 19(1) and Art 47 Charter) - ex. C583/11P Inuit v Commission.
B - SPECIFIC APPLICATIONS OF THE PRINCIPLE
But the "relevant EU rules" are few - negligible political will at national level and EU
measures governing remedies are in very niche areas (access to environmental justice,
competition law, public contracting...).
The principle of equivalence = essentially a rule of non-discrimination (no distinction between breaches of EU and national law), with the assessment of similarity of purpose/cause of action belonging typically with national courts in the context of preliminary references.Whether a domestic measure is equivalent to an EU measure = for national courts,
taking into account the purpose and essential characteristics of each law
(Palmisani v INPS, Levez v Jennings)

The principle of effectiveness has been developed by the CJEU to create a (not wholly consistent) hardening of control over national autonomy (Simmenthal, Factortame,
Francovich), meaning 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".
Such cases are increasingly decided through the prism of Article 47 Charter, and are applied differently depending on the type of alleged infringement:-Remedies (very little control)
o Measures that cap compensation at very low levels are illegal (Marshall)
o Measures that provide nominal compensation without regard to damage sustained are illegal (von Colson)
o Measures that exclude compensation for certain types of damage (ex.
economic loss) are illegal (Brasserie du Pecheur)
Procedures (more extensive control)
o Not allowed to screen off certain sectors (ex. military) from JR
o Must ensure that any professional, regulatory or administrative body that takes decisions affecting EU rights be subject to JR
o Reasons for decisions must be accessible

Must afford parties standing wherever directly effective rights have been infringed
Time limits (must be reasonable, but CJEU's idea of reasonableness grants considerable leeway for national systems)
o Sixty days for civil proceedings is not too short (Asturcom Telecomunicaciones)

EU LAW: NATIONAL REMEDIES

Page 4 Fifteen days for asylum seekers to appeal an administrative decision refusing asylum was not too short (Samba Diouf) (!!!)
o Control of when the time limit begins (whether the applicant was in a position to ascertain their rights from the moment where the limitation period begins):
-Example - for workers employed on a series of short-term contracts, must begin at the end of the relationship not each individual contract.
Due diligence requirements (requirement to use all legal remedies available before claiming for loss unless this would be excessively difficult)
o Example - under German law there was a requirement of good faith that only allowed employees sue for loss if they had first approached the employer: CJEU
said this was unreasonable because employees are weaker parties oLimitation period cases particularly - they are obviously detrimental to the effective protection of rights but are valuable in promoting legal certainty + efficient administration of justice ? which should prevail? where does the "effective" protection of EU law rights yield to other concerns such as legal certainty?
National procedural law becomes subject to the influence of EU law despite the absence of any legislative content to the EU's role.
1 - NATIONAL TIME LIMITS
- Case C-255/00 Grundig Italiana [2002] ECR I - 8003;--

Facts: illegal consumption tax - C claimed repayment of the tax. National time limit to bring actions for repayment was reduced from 5-10 years to 3 years, with a 90 day transition period.
AG: says the same thing as the CJEU, but says that he can't judge whether the 90 day transition period is too short or not because it requires knowledge of the national legal order.
o CONTRAST: CJEU which says that the period is too short.
CJEU: [36] Given that the detailed rules governing the recovery of national taxes levied though not due are a matter for the national legislature, the question whether such rules may apply retroactively is equally a question of national law, provided that any such retroactive application does not contravene the principle of effectiveness.
[37] In that regard, whilst national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not incompatible with the principle of effectiveness, this is subject to the condition not only that the new limitation period is reasonable but also that the new legislation includes transitional arrangements allowing an adequate period after the enactment of the legislation for lodging claims for repayment which persons were entitled to submit under the original legislation. Such transitional arrangements are necessary where the immediate application to those claims of a limitation period shorter than that which was previously in force would have the effect of retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right...

We see a trade-off here in the judgment - it is really just a matter of proportionality. It shows that the CJEU is not trying to push effectiveness at all costs.
- Case C-326/96 Levez [1998] ECR I-7835 (equal pay case which turned on the applicability of a national limitation period)

EU LAW: NATIONAL REMEDIES

Page 5 --Facts: The applicant, a woman, discovered after leaving her job with the respondent that she had been paid less than her male predecessor even though the work they had both done was the same. The respondent had deliberately misled the applicant about the level of her predecessor's pay and, by the time she found out about the disparity,
she was prevented by a national limitation period from claiming arrears of pay for the first seven months during which she had held the post. The Employment Appeal
Tribunal asked the Court of Justice whether the Union law right to equal pay precluded the application of the national limitation period.
CJEU: The period laid down 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. It is plain that the ultimate effect of this rule would be to facilitate the breach of [Union] law by an employer whose deceit caused the employee's delay in bringing proceedings for enforcement of the principle of equal pay."
British Government argued that:
o a claim based on the UK Equal Pay Act rather than directly on the Treaty would have been subject to the same time-limit

the applicant could have brought proceedings in the county court, where the limit would not have applied
CJEU accepted that, in circumstances such as these, Member States did not have to
"extend their most favourable rules to all actions brought ... in the field of employment law". What the national court had to do was "consider both the purpose and the essential characteristics of allegedly similar domestic actions".
o The Equal Pay Act was not the right comparator because "one and the same form of action is involved". Since the Act gave effect to the Union law principle that men and women should receive equal pay for equal work, it could not
"provide an appropriate ground of comparison against which to measure compliance with the principle of equivalence".
o As for proceedings in the county court, the existence of an alternative remedy made no difference if it was "likely to entail procedural rules or other conditions which are less favourable" than those applicable to claims brought before employment tribunals under domestic employment law. It was for the national court to determine whether that was so, though the Court noted that proceedings in the county court might prove more protracted and expensive.

2 - INTERIM PROTECTION
For problem questions, cite Zuckerfabrik for the conditions, not Factortame because
Zuckerfabrik sets out all the details.
- Case C-213/89 Factortame (No. 1) [1990] ECR 1-2433 (against a NATIONAL act potentially in breach of EU law)[21] ... the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.

Key principle = there needs to be a principle of interim relief (big deal in the UK
because until Factortame there was no possibility of granting interim relief against the
EU LAW: NATIONAL REMEDIES

Page 6 Crown - and in terms of purely domestic law, there is still no interim relief against the
Crown).NB the CJEU also talks about equivalence - that the UK knows injunctions generally.

- Cases 143/88 & 92/89 Zuckerfabrik Suderdithmarschen [1991] ECR I-415 (against a potentialy invalid EU ACT)Facts: there was a national law based on an EU provision. C argued that the EU
provision was invalid, and the national law was therefore also invalid. Asked for interim relief, arguing that for the preliminary reference procedure to work, the national court must be able to grant interim relief suspending application of a
NATIONAL measure based on an EU measure whose validity is doubted.CJEU ([23-33]):
[A Union] right would be compromised if, pending delivery of a judgment of the Court,
which alone has jurisdiction to declare that a Community regulation is invalid...,
individuals were not in a position, where certain conditions are satisfied, to obtain a decision granting suspension of enforcement which would make it possible for the effects of the disputed regulation to be rendered for the time being inoperative as regards them.
For conditions for granting interim relief (and suspend enforcement of a national measure based on an EU regulation whose validity is in doubt):
o Serious doubts regarding the validity of a measure (which manifests itself by the national court sending a preliminary reference - only the possibility of a finding of invalidity (a matter reserved for the CJEU) can justify it)
o Relief maintains the character of interim measure (the national court must send a preliminary reference and can only grant until such time as the preliminary reference judgment is handed down)
As to other conditions, the rules of procedure are determined by national courts, but uniform application of EU law is a fundamental requirement of the EU legal order, so that suspension of enforcement of national measures based on EU regulations, "whilst it is governed by national procedural law, must in all MSs be subject, at the very least to uniform conditions as to the granting of such relief". These are the same conditions under which the CJEU may itself grant interim measures in case of an Article 173 action:
o Urgency (threat of serious and irreparable damage to applicant which could not be made good if the EU measure is subsequently declared invalid)
-the damage must be liable to materialize before the CJEU has been able to rule on the validity of the EU measure
-in principle (and depending on the circumstances) purely financial damage is insufficient, but it is for the national court to examine the circumstances particular to the case before it.
o The national court is under an obligation to ensure that full effect is given to EU
law, and therefore, must take due account of Union interest (i.e. that such regulations should not be set aside without proper guarantees)
-National court must examine whether the Community measure in question would be deprived of all effectiveness if not immediately implemented.
-If suspension of enforcement is liable to involve a financial risk for the
Community, the national court must also be in a position to require the applicant to provide adequate guarantees, such as the deposit of money or other security.-

- Case C-465/93 Atlanta [1995] ECR I-3761 (against a potentially invalid EU ACT)
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