NATIONAL PROCEDURAL AUTONOMY

Question 1

Part I: Introduction- outline of lecture?

Answer 1

Part I: Introduction

    CJEU case law explored

     Part II: Period of judicial restraint

Part III: Period of judicial intervention

Part IV: Period of judicial balance

Part V: Summary

Question 2

I. Introduction: Where does national procedural autonomy fit in?

Answer 2

The wider picture – where does “national procedural autonomy” fit in?
if direct effect doesnt work for you- you may rely on indirect effect
interp in light always works with national procedural autonomy

Key principles of „national enforcement“ of EU law

e.g u bring action what are the procedures she needs to follow?- what is the time limit- does she only ahve a wekk 6 weeks or 6 months to bring action- ms is next week

Question 3

I. Introduction: The underlying problem?

Answer 3

UNDRR=ERLING PROB = Member States have different rules on standing, on time limits, on burdens of proof and on remedies - 28 OF THEM NOW 27 - remedies = damages your right is infriged= u want damages, but lets assume u havesuffered aim - our law student a suffereed pain on not getting holidays and she claims so called non pecuniary damages- prblem is here- it is difficult to quanitfy inmonetary terms and some ms allow it and toehrs dont even though EU RIGHT IS SAMWE- SAEM RIGHT BUT DIFFERENT PROCEDURES FROM EU PERSPECITIVE WE DONT LIKE THAT

OTHER Problem: harsh MS rules on procedures and remedies can undermine your EU rights-

EU law to the rescue?- SO EASY WAY FORWAR LETS HAVE EU PROECUDRAL LAW- 1 STANDARD THROUGHOUT THE WHOLE OF THE UNION

Does a MS have to implement special EU procedures & remedies that allow you to enforce your EU rights in national courts?

Question 4

I. Introduction: The underlying problem 2?

Answer 4

HW IT DOESNT EXIST- THERE IS -No general EU legislation governing procedures and remedies SO ITS FOR BELOW TP

-Consequence: principally the task of MS to provide procedures & remedies- SO WE CAN SAY THIS IS SUBJECT TO NATIONAL PROECUDRES - BRING ACTION ANTIONAL CTS U HAVE TO FOLLOW NATIONAL PROCEDURES BC WE DONT HAVE GENRAL EU LEGISLATEU- THIS BACKGROUND HERE IS FOR FURTHER READING -BUT IF NOT THAT EASY IT WILL BECOME MESSY THE CJEU HAS CREATED IN ROLES INTO THESE MS LAWS DOWN BELOW

But: CJEU has created inroads into these MS laws- CJEU A DOESNT LIKE DIFFERNCES IN MS EVEN THO EU RIGHT IS SAME AND B IT PARTIC HATES HARSH MS LAWS THAT CAN UNDERMINE UR EU RIGHT- WE WILL HAVE A LOOK WHAT THAT MS COULD LOOK LIKE

Question 5

I. Introduction: The underlying problem 3?

Answer 5

Background: EU legislative procedural/remedial rules exist in certain areas of law (e.g. insolvency, competition law)
These EU rules take precedence over national rules
They are outside the scope of our module!

Question 6

National procedural autonomy: Overview of the lecture?

Answer 6

Part I: Introduction

SO NOW WE WILL EXPLOR CJEU CASE LAW - IT VARIES OVER TIME
CJEU case law explored
Part II: Period of judicial restraint

Part III: Period of judicial intervention

Part IV: Period of judicial balance

Part V: Summary

Question 7

Part II: A guide through the case law?

Answer 7

Variations in CJEU case law over time – 3 phases- WE HAVE 1.

1.Period of judicial restraint
Case 33/76 Rewe-Zentral- HAPPENED IN 80’S LATE 70’S - followed by period of judical int

2.Period of judicial intervention
Case C-213/89 Factortame No 1
Case C-6/90 Francovich v Italy [next week]

3.Period of judicial balance
Case C-432/05 Unibet

Caveat: This is one way to conceptualise the case law. Other academics [further reading] disagree with this view. - when we discuss this well understand

HAVE TO DELVE INTO FURTHER READING

Question 8

Part II: Period of judicial restraint- Case 33/76 Rewe-Zentral [1976] ECR 1989 - FACTS?

Answer 8

lets start with perood of judicial restraint

FACTS: Applicants applied for a refund of charges they had paid in Germany for import inspection costs, which had been imposed in violation of art. 30 TFEU. Art. 30 TFEU is directly effective. However, the national time limit for contesting the validity of the national administrative measures had passed. Does EU law help the applicants?

there eu right was not be charged -cost cos infringes art 30 tfeu and still german gov done it - so what do i do - i enforce it in national cts - but there is time limti and that had expired - applicants though- if my right comes from eu law MAYBE THE PROCEDURE ALSO COMES FROM EU LAW - BUT THAT IS NOT WHAT CT SAID

Question 9

Part II: Period of judicial restraint- Case 33/76 Rewe-Zentral [1976] ECR 1989 - HELD?

Answer 9

COURT SAID ‘… in the absence of [EU] rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of [EU] law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature.

-EACH MEMBER STATE HAS TO DETERMINE PREOCDURAL CONDITION GOVERNING ACTIONS AT LAW BC WE DONT HAVE EU LEG - HW THERE ARE 2 CONDITIONS

HW IT CANNOT BE LESS FAVORUABLE THAN THOSE RELATING TO SIMILAR ACTIONS OF A DOMESTIC NATURE- THAT BASICALLY MEANS U CANKNOT DISCIRM AGAINST EU LAW - WE HAVE ACTIV LATER ON WHERE WE APPLY LATER

[…] The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.’ [5]

SECOND CONDITION ABOVE - LOOK WITH SPECIF EXAMPLE

Question 10

Part II: Period of judicial restraint- Case 33/76 Rewe-Zentral [1976] ECR 1989 - TAKE HOME?

Answer 10

TAKE HOME:

1. Procedures and remedies are a matter for national law- THAT IS WHY THIS PIC ON WHITE BOARD - THAT MEANS THE DEFAULT IS WE ARE SUBJECT TO NATURE PROCEDURE BUT 2 CONDITIONS
2. These laws must be equivalent to similar actions under domestic law (the principle of equivalence)
3. and they must not make it practically impossible to bring a claim (the principle of effectiveness)

PRICNIPLE OF EQUIVALANCE AND PRICNIPLE OF EFFECTIVBENESS

Question 11

Part II: Period of judicial restraint - Case 33/76 Rewe-Zentral [1976] ECR 1989 - RULES THAT WHAT?

Answer 11

SO WE END UP WITH COMPLEX INTERACTION WITH NATIONAL AND EU LAW

Rules that apply are national but they are subject to the EU law safeguards of effectiveness and equivalence
complex interaction between national and EU law

SO WE HAVE EU SAFEGUARDS THAT CAN INTERVENE INTO NATIONAL PROCEDURES= EQUIVALENCE AND EFFECTIVENESS AND EFFEECTIVENESS IS SHORT FORM FOR MAKES IT PRATCIALLY IMPOSSIBLE TO BRING AN ACTION OR TIME LIMIT IS TO SHORT FOR E.G - SO IF U LOOK AT REWE ITSELF WHAT DID CT DECIDE

Question 12

Part II: Period of judicial restraint - Case 33/76 Rewe-Zentral [1976] ECR 1989 - IN REWE WHAT?

Answer 12

CT SAID In Rewe:
(a) national time limit does not infringe EU law as long as procedural conditions governing the action are equivalent, and

(b) reasonable time limits do not infringe effectiveness principle

IS THAT CLEAR SO FAR?

Question 13

Part II: Period of judicial restraint - Case 33/76 Rewe-Zentral [1976] ECR 1989 - HELD AGAIN?

Answer 13

The EU Treaty ‘was not intended to create new remedies in the national courts to ensure the observance of [EU] law other than those already laid down by national law.’ The EU Treaty ‘implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of EU law having direct effect.’

-Principle of national procedural autonomy

YOU CAN FINALLY SEE DEF OF NATIONAL DEF OF AUT- MEANS IN LAUNCHING DIRECT EFFECT SHE MUST COMPLY WIT NATIONAL RULES ON PROECEDURE AND REMEDIES IN THE FIRST PLACE

Question 14

ACTIVITY?

Answer 14

Activity

The UK Limitation Act 1980 states that for contract law claims you must bring your claim within 6 years. Would it offend EU law if the UK tried to place a limitation of 5 years on EU contract law claims in the UK?

The UK sets a time limit of 5 days to bring a judicial review claim against decisions issued by public officials on matters of EU law. Does this offend EU law?

LOOK LATER

Question 15

Part II: Period of judicial restraint- NATIONAL procedural autom?

Answer 15

National procedural autonomy: MS do not need to create new remedies to deal with EU law claims, they can rely on existing national remedies
WHATS CONSEQUNCE

• Consequence: Procedural law varies from MS to MS, so no uniform enforcement of EU rights in the EU - SO THERE IS NO UNFIROM - VARIESBC REMEBER DAMAGES EXAMPLE- THAT NOT IDEAL SIT THAT VARIES MS SO WHY DONT WE HAVE EU LEG THAT WOULD BE A SOLUTION
• Possible solution: EU legislation harmonising procedures & remedies

Question 16

Part II: Period of judicial restraint- - apparently what?

Answer 16

APPARENTLY

But until now, no general EU scheme governing procedures & remedies

—Why? Procedures & remedies allegedly involve sensitive issues, and MS cannot agree in Council - NOW LAST BIT MS CANNOT AGREE - REMEEBR LAW MAKING IN EU- DIFF PROCEDURAL LAWS CANT AGREE- WHY THAT IS ? MAYBE THINK INVOLVES SENSITVITY ISSUES ? BUT THAT IS THE PREVAILING VIEW AND FOR A FACT TEHY CANT AGREE

-With the EU legislature unable to act, guess who stepped in in the 1990s:
CJEU used effectiveness principle as a tool to interfere with procedural autonomy of MS and started to “harmonise” procedures & remedies by case law

CJEU STEPPED IN AS SAVIOIR- IT USES EFFECTIVES PRINCIP R.A.W
SO WE CAN SEE EFFECIVENESS USE AS TOOL AND THAT DOESNT REALLY WORK WITH THIS STANDARD OF PRACTICALLY IMPOSS WHICH IS WHY THE CT CHANGHED IT BC CANT DO IT - BLUE SKY

SO IN REVE

Question 17

Part II: Period of judicial restraint- extension ?

Answer 17

• Extension of effectiveness principle
• In Rewe: MS laws must not make the exercise of EU rights practically impossible - LOW STANDRD OF INTERVENTION SUDDENTLY THAT BECAME
• Later case law: MS laws must “not render virtually impossible or excessively difficult the exercise of EU rights” [e.g. Case C-326/96, Levez]- IF I ONLY LOOK AT WORDING - TO ME EXCESSIVELY DIFFICULT IS AN EASIER STANDRD THAN PRACTICALLY IMPOSSIBLE - SO THIS STANDRD HERE EFFECTIVENESS IS NOW ACCESS DIFFICULT AND THAT MEANS STANDRD OF INT INTERNAL PRCEDURAL LAW ON THIS SCALE HERE INCREASES- NO WHERE IN THE TREATY - DID IT SAY ANYTHING ABOUT THESE 2 SAFEGUARDS- THIS IS CJEU CASE LAW- CJEU MADE IT UP

… and so, the CJEU case law became more interventionist…

SO CASE LAW BECOME MORE INTERVENTIONISHT

Question 18

context slide: what are doing next?

Answer 18

Part III: Period of judicial intervention - NEXT CASE PERIOD OF JUDIC INTER 2 CASES WE HAVE FOR THAT PERIOD 1 TODAY AND 1 NEXTR WEEK - REASON WHY

REASON WHY 1ST PERIOD CALLED PERIOD OF JUDICAL RESTRAINT IS BC DEFAULT LIES WITH NATIONAL RPECUDRAL LAW - THE WAY CT STARTED THIS MS LAW APPLY- THAT CHANGED A BIT IN EARLY 90’S

SO THIS SLIDE

Part IV: Period of judicial balance

Part V: Summary

Question 19

Part III: Period of judicial intervention - facts of factortame?

Answer 19

Case C-213/89 Factortame No 1 [1990] ECR I-2433

-Factortame applied for interim relief against the UK government in order to protect its EU rights whilst the dispute (Factortame challenged the compatibility of UK law with EU law) was settled. The House of Lords found that Factortame would suffer irreparable damage if the interim relief were not granted. Interim relief is generally recognised as a remedy in the UK, but a national rule prevented the interim relief from being granted against the Crown. House of Lords referred matter to CJEU.

fishing in ienlgihs waters predom owend by non english people- THIS WAS RESTRICTED- FACTORMTAME NOT ALLOWED TO FISH ANYMORE IN ENGLISH WATERS- THEY WANTED INTERIM RELIFE- IF U DONT GIVE ME THAT RIGHT I WILL GO BANKRUPT

Question 20

Part III: Period of judicial intervention - question raised?

Answer 20

Question raised: Does a national court have to disapply a national rule that is the sole obstacle which precludes the court from granting interim relief?

APPLY INTERM RELIEF EVEN THOUGH RECOG IN ENGLISH PROECEDURAL LAW - U CANNOT GET RELEIF AGAINST GOVENEMNT - RPBLEM FOR FACTORTAME AND Q WAS - DOES R.A.W

EHY ITS SOLE OBSTACLE- BC ENGLISH LAW KNOWS INTERIM RELIEF - ONLY COS AGAINST GOV COULDNT GET IT - IF U DISAPPLY YOU GET INTERIM RELIEF - SO Q DOES ENGLISH CT HAVE TO DISAPPLY THAT RULE - CT SAID

Question 21

Part III: Period of judicial intervention - what was held?

Answer 21

CTS SAID HELD:
‘It must be added that the full effectiveness of [EU] law would be…impaired if a rule of national law could prevent a court seised of a dispute governed by [EU] 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 [EU] law.’
National court has to disapply the challenged national rule

NOT PRACTICABLY IMPOSS- EU SAFEGUARDS THE FULL EFFECTIVENESS OF JUDGEMSNT EU LAW- EVENTUALLY NATIONAL CT HAS TO DISAPPLY THAT SPECIFIC LAW

SO ALL OF A SUDDEN WE HAVE FULL EFFECTIVENSS AND IF U THINK ABOUT SCALE OF ITNERVENTION- U CAN SEE THIS IS BY FAR HIGHEST STANDRD OF INTERVENTION- IMPOSSIBILITY IS IMPOSSIBLE

BUT FULL INTERVENTION U COULD MAKE BASED ON FULLE FFECTIVENESS REASONING, I COULD CREATE FULLY UNIFORM PRECUDURAL EU LAW IF I WANTED TO - BC THAT WOULD BE FULLY EFFECTIVE COS ONYL THEN WILL I AHVE UNIFOR M ENFORCEMENT BY EU = DODGY REASONING-
NOWHERE IN TREATY DO WE FIND THESE SAFEGUARDS

Question 22

Part III: Period of judicial intervention - take home message?

Answer 22

TAKE HOME: ECJ requires national courts to apply all available national remedies to a case. If there is a national rule which attempts to prevent a certain remedy from being available, it must be set aside.

R.A.W - NO INTERIM RELEIF AGAINST CROWN - PREVENT FACT AND THAT HAD TO BE SET ASIDE ..SO WAHT IS VERY CLEAR FROM THIS CASE

Question 23

Part III: Period of judicial intervention - cjeu used what?

Answer 23

CJEU used effectiveness reasoning to interfere with procedural autonomy of MS

ENGLISH LAW SAID NO INTERIM RELIEF AGAINST CROWN - (NATIONAL PROCEDUAL LAW) - THE CTS SAID NO THA TINFRINGES EU SAFEGUARD OF EFFECTIVENSS SO U HAD TO DISSAPLY - EU LAW INTERVENTND NATIONAL LAW

Q: How far did the CJEU go in Factortame? Did it establish interim relief as an EU remedy (as opposed to national remedy)
Both, narrow and wide reading of judgment possible

HOW FAR THERE ARE 2 VIEWS

Question 24

Part III: Period of judicial intervention - used what continues?

Answer 24

[contd.]
Narrow reading: Case concerned only disapplication of national rule which, as the sole reason, precluded the House of Lords from granting interim relief recognised under national law  no new EU remedy

Wide reading: Reasoning of CJEU applies even if national law does not know interim relief at all  new EU remedy

DO MORE RESEARCH

Question 25

Part III: Period of judicial intervention - effectivness reasoning by cjeu?

Answer 25

Effectiveness reasoning by CJEU: flexible concept - THIS IS PICTURE WE HAVE - WHAT CAN WE SEE
Weatherill: its application in case law involves drawing of some fine lines
Ross: its application in case law lacks consistent, principled reasoning and is driven by outcome. Consequence = legal uncertainty

WE CAN SEE THIS IS FLEXIBLE COS WE HAVE NO IDEA WHICH STANDARD GOING TO APPLY AND EVEN IF WE APPLY FULL EFFECTIVENESS WHAT DOES THAT ACTUAL MEAN - 2 SCHOLARS ON THE SLIDE

2 SCHOLARS - WEAHTERWILL SAID LOOK ABOVE
PERSONALLY IM MORE WITH ROSS - THE APPLICAITON OF EFFECTIVENESS LACKS R.A.W - MEANS WHAT CJEU WANT COURT TO BE AND CONSEWUENCE IS LEGAL UNCERT COS WE DONT KNOW WHAT THIS MEANS - WE DONT KNOW HOW FAR GOES AND WE DONT KNOW WHAT EXCESSIBVELY DIFF ID AS OPPOSED TO SIGNFICANTL DIFF

SO U CAN SEE CT IS USING VERY FLEX CONCEPT IN ORDER TO INTERVEN- INT PROCEDURAL LAW AND FROM POINT OF VIEW CJEU I WILL DO SAME BC IT GIVES ME FLEXIBILITY

if you have PROBLEM Q - 2 SCENARIOS CAN HAPPEN WITH EFFECTIVENESS- A ITS CLEAAR U HAVE 5 DAYS SO IT MAKES IT PRACTIABLY IMPOSS- OTHER SCNEAIRO IS THAT IT IS NOT CLEAR LIKE 1 MONTH - AND THAT MEASN I WANT U TO ASSES IT - THERE WILL BE FACTOES IN PROB THAT U CAN PICK UP AND USE AS ARGUMENTS - WILL BE OBVIOUS -IT DOESNT MATTER WHAT RESULT U PICK- UJUST NEED TO KNWO CASES ETC - STANDRD OF EFFECTIVES CHANGE OVER TIME

Question 26

LOOK AT DIAGRAM ON SLIDE?

Answer 26

LOOK AT DIAGRAM ON SLIDE

NATIONAL PROCEDUAL AUTOM MEANS U APPLY NATINAL PRCUEDURAL LAW BUT WE ALSO HAVE SAEFUARGD OF EFFECTINESS AND THAT CA INTERVENE QUITE HIGHLY INTO NATIONAL P LAW - THAT WOULD BE FACTORTAME CASE

JUDCIAL RESTRAINT= REWE CASE - PRINCIPALLY NATIONAL APPLIES UNLESS IMPOSSIBLE = LOWER STANDARD

UNIBET - FALLS IN MIDDLE THATS WHY ITS CALLED PERIOD OF JDUCIAL BALANCE - SO WEHRRE CT KIND OF TRYING TO GAGE CASE BY CASE BASIS WHETHER EVEFFECTIVENESS IFNRINGED OR NOT

NOW LOOKINGAT PERIOD OF JDUCIAL BALNCE

Question 27

context:

Answer 27

Part IV: Period of judicial balance

Part V: Summary

Question 28

Part IV: Period of judicial balance- WHAT IS PERIOD JUDICIAL BALANCE?

Answer 28

Period of judicial balance = current approach - WHAT IS IT

ITS BALANCE CJEU tries to find balance between (a) national procedural autonomy and (b) effectiveness of EU law
= tension between (a) deference to national law and (b) CJEU intervention R.A.W

= balance between min. and max. standard of effectiveness in individual case
Case-by-case analysis; no hard rules- MY POINT OF VIEW - WHY THAT UDNERMINS LEGAL CERTAINITY BC IF U LOOK AT PICYR NEED TO ASSES CASE BY CASE BASIS WHERE I AM U HAVE TO LAY WITH WAHT INDIV CASE./PROBLEM Q GIVES U AND USE THEM

Question 29

Part IV: Period of judicial balance- Case C-432/05 Unibet [2007] ECR I-2271 facts?

Answer 29

FACTS: Unibet sougth declaration by Swedish courts that Swedish legislation violated art. 56 TFEU (freedom to provide services). However, there existed no Swedish court procedure that allowed for an abstract review of whether national legislation is compatible with EU law. Yet, an examination of the compatibility of Swedish law with EU law could take place indirectly in the context of private and administrative proceedings [58, 60].

• SO HOW DID THIS WORK FOR CTS- UNIBET WANTED TO BRING ACTION FOR DECL THAT ITS EU RIGHT VIOLATED BY NATIONAL LEG - PROBLEM THAT ACTION DOES NOTE XIST IN SWEDISH LAW- THERE IS NO ABSTRACT REVIEW COMP WITH EU LAW- THERE IS NO FREESTANDING EU REVIEW PRCEDURE- DOESNT EXIST UNDER ACTION EU LAW - HW THERE WERE DIRECT HOOKS

Question 30

Part IV: Period of judicial balance - question raised?

Answer 30

Question raised: Did the non-existence of a freestanding EU review procedure violate the principle that there must be an effective remedy for breach of EU rights in national law?

Q WAS BC NO FREESTANDING DOES IT INFRINGE PRICNIPLE OF EFFECTIVENESS?

Question 31

Part IV: Period of judicial balance- case unibet?

Answer 31

Case C-432/05 Unibet [2007] ECR I-2271

Chalmers: Unibet = “moment of truth” - CALLED UNIBET MOMENT OF TRUTH BC CJEU HAVE POSS TO DEVELOP R.A.W

Why? CJEU had possibility to (a) develop a freestanding EU review procedure or (b) stick with the elaborate national procedures.
FULL EFFECTIVES I WOUL HAVE ALLOWED UNBET TO BRING THAT ACTION - THE TOEHR ALTERNATIVE STILL WITH ELAB NATIONAL PROCED- THE INDIRECT ROOT

INDIRECT ROOT COULD WORK- VERY CLEAR UNDER SWEIDHS LAW THAT UNIBET COULDTN ADVERTISE IN SWEDISH NEWSPAPERS - CLEAR UNDER SWEDISH SO IDNRECT ROUTE WOULD HAVE BEEN TO ASK SWEDISH BODY FOR AN ACCEPION - WOULD HAVENT HAPPEN DOESNT EXIST IN LAW ADN TEHN COULD AHVE GONE TO COURT CUS CGOT LETTER FROM ADMIN BODY- BASED ON EU IFNRINGE LAW - CT WOULD AHVE ASSES SWEDISH LAW WITH EU LAW - BUT ALTLEAST U KNOW INDIRECT ROOTS EXISTED - HAVING EU PROCEDURE TO GET DECL WOULD BE MUCHE ASIRE BUT THATS NOT WHAT COURT DID

CT DID It chose (b) = the less interventionist option
Unibet falls into period of “judicial balance” AND FELL BACK FROM FULL EFFECTIVENSS TRHAT WE SAW IN FACTORTAME

Question 32

Part IV: Period of judicial balance - held ?

Answer 32

HELD: EU Treaty not intended to create new remedies in the Member States [40], unless “no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under [EU] law” [41]. That is because EU law requires that the national legislation does not undermine the right to effective judicial protection. [42]
Court found that there existed indirect ways that did not make it “excessively difficult” to challenge the compatibility of Swedish legislation with EU law. Request for freestanding action was denied. [58-65]

CT SAID - NOT INTENDED TO CREATE NEW REMEDIES - UNLESS NO LEGAL REMEDY EXISTED TO - SO THERE IS A SAFEGUARD BC EU LAW REQUIRES NATIONAL LEG DOESNT UDNERMINE RIGHT TO AN EFFECTIVE JUDCIIVE PROTECTION- COME BACK TO THAT RIGHT ON NEXT SLIDE - BUT AS EXPLAINED- IDNRIECT WAYS EXISTED THATS WHY REQUEST FOR FREESTANDING ACTION DENIED-

WOULD HAVE BEEN EASIER WYA BUT CT WENT OPPOSITE WAY IT DID NOT FULLY INTERBEENE THAT MEANS IT WENT BACK IN IT SSTANDARD OF INTEVRITO WHCIH IS WHY WERE ON PERIOD OF JUDICIAL BALANCING

Question 33

Part IV: Period of judicial balance- take home message?

Answer 33

TAKE HOME MESSAGE- Principle of effective judicial protection of an individual‘s EU right can in exceptional circumstances require EU remedies for enforcement of EU rights in national courts.

R.A.W SO BASICAKLY NATIONAL PRECUDAL LAW APPLIES BUT CT EXCPLCIITY SAYS BUT WHAT IS NEW THAT CT EXPLCIITY SAYD IN EXCEPTIONAL CIRUCM EU LAW CANT CREATE A REMWEDY- AND CT USE EFFECTIVES JDUCIAL PROETCION OF CASE = UMBRELLA TERM AGAIN NO WHEER IN TREATIES IT IS AN UNWRITTEN GENRAL PRIMCIPLE OF EU

INCORP

Question 34

Part IV: Period of judicial balance- more on take home message of the case?

Answer 34

Principle of effective judicial protection

General principle of EU law

SMART MOVE - MAYBE SMARTER THAN REWE- BC WE DON KNOW WE HAVE GENREAL PRINCIPELS AND IF WE SAYPRICNIPLE EFECTINESS PART OF THIS GENERAL PRICNIPLE U INCREASE ITS LEGITMICY WHEN U REASON WITH IT - BC THESE 2 SAFEGUARDS HERE ON THERE OWN THEY ARE NOWEHRE MENTIONED IN TREATIES- NEITHER IS GEENAL PRINCIPLE BUT ATLEAST WE KNOW WHAT I MEANS AND HOW IT WORKS WHICH S WHY HAVING THIS UMBREALLA TERM INCRESES LEGIT OF CJEU REASONING BUT 1 PROBLEM IT IS STILL MADE UP BC NOT IN TRWATEIS - WHO CREATES GENERAL PRINCIPLE - WHO INVENE EU FR AS GENRAL PRICNIPLES= CJEU AND DID THE SAME WITH THIS GENRAL PRICNIPLE HERE IN ORDER TO INTEVRENM INTO NATIONAL PROCEDURAL LAW

& REALLY SMART MOVE IN RETOSPECT BC IN 2009 IWHT LISOBON TREATY - LEGISLATURE DECIDED TO POUT THAT PIRCNIPLE INTO A TEXT - ART 19 TFEU

-National procedural autonomy

Principle of effectiveness

Principle of equivalence

UNWRITTEN PRICNIPLE INCORPRATES ALL THESE INTO ONE

Question 35

Part IV: Period of judicial balance- HELD ?

Answer 35

HELD:“It is for the Member States to establish a system of legal remedies and procedures which ensure respect for” the right to effective judicial protection [42]

Question 36

Part IV: Period of judicial balance- MORE ON HELD?

Answer 36

LisbonTreaty introduced Art. 19(1) TEU: “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” (cf. Also art. 47 EU Charter of Fundamental rights)

ART 19 1- SO WHAT WE HAVE IS BASICALLY LEGISLATURE DECIDED TO INCORP CJEU CASE LAW IN LEG - NOT UNCOMMON HAPPENS IN UK SOMETIMES COMMON LAW INCORP INTO LEG BUT WHAT IS NOT SO GREAT IS

DOES IT MEAN PRADTICAL IMPOSSIBILTY , DOES IT MEAN EXCESSIBELY DIFFICULT OR DOES IT MEAN FULLEEFECITVENESS - END UP WITH SAME UNCERTAINTY THAT WE HAD BEFORE

Question 37

Part IV: Period of judicial balance- UNIBET APPROACH?

Answer 37

Unibet approach continues to apply under LisbonTreaty (Case C-583/11, Inuit, paras. 103-104)

AND AS BACKGROUND INFO CJEU CONTINUES TO APPLY UNIBET APPRACH AFTER LISBON TREATY- THATS WHAT SAID IN LATER CASE AND BASIOCALY MEANS TASKE HOME MESSAGE INE XCPETIONAL CIRCUM U CAN HAVE EU REMEDIES PRCOEDURAL RULES STILL APPLIES INECEPTIONAL CIRCUM STANCES ONLY- THIS IS THE BALCNING PEIROD

Question 38

WHAT IS PART 5?

Answer 38

Part V: Summary

Question 39

question time?

Answer 39

The default position is that an EU claim (e.g. direct effect) in national courts is subject to …. procedural rules and remedies. [EU or national?]

National procedural law is subject to the EU safeguards of ……. and …

3)
4) Why do you think the CJEU case law appears to lack consistency over time?

COME BACK LATER

Question 40

Part V: Summary

Answer 40

EU legal order

EU right (e.g. equal pay)

National procedural law is subject to EU law safeguards of effectiveness and equivalence

National legal order

Enforcement in national courts, subject to national procedural/remedial rules

Question 41

National procedural autonomy – case list

Answer 41

Case list

Period of judicial restraint
Case 33/76 Rewe-Zentral
Period of judicial intervention
Case C-213/89 Factortame No 1
Case C-143/88 Zuckerfabrik
Case C-6/90 Francovich v Italy [next week]
Case C-208/90 Emmott
Period of judicial balance
Case C-432/05 Unibet
Case C-279/09 DEB