National Remedies Flashcards
What is the principle of national procedural autonomy?
The idea that member states have the freedom to create their own rules for the enforcement and remedies of EU law domestically
What did the early case law say about national procedural autonomy?
Rewe-Zentralfinaz & Comet
In the absence of EU rules it is for the domestic legal system to establish procedures to ensure protection of the rights which citizens have from the direct effect of community law. This is subject to two conditions:
* Remedies must not be less favourable than those relating to. domestic acts (principle of equivalnce)
* Remedies must not make it impossible in practice to exercise the right (principle of effectiveness)
Rewe-Handelsgesellschaft
The Treaty was not intended to create new remedies in the national courts to ensure the observance of union law other than those already laid down by national law
How could we see NPA as being conditioned further in the Sagulo and San Gorgio cases?
Sagulo
EU law may limit the remedies/penalties imposed by member states where they are disproportionate and may be so severe as to cause an obstacle to the freedom of entry and residence
San Giorgio
Extended so that national law must not make the exercise of EU law rights virtually impossible or excessively difficult
* Seemed to require a specific remedy in national law by requiring repayment of charges levied by a member state contrary to the rules of community law
How has the principle of effective judicial protection affected the application of national procedural autonomy?
Von Colson
Although implementation of the sex discrimination directive does not require any specific form of sanction, it does entail that the sanction be such as to guarantee real and effective judicial protection
HOWEVER, this was only in context of that directive, extended to general principle in:
Johnston
The principle of judicial control in the Sex Discrimination Directive is a reflection of a general principle of law. All persons have the right to an effective remedy in a competent court
What are some examples of far reaching intrusions into national law?
Factortame- Effectiveness of community law would be impaired if it would not allowing granting interim relief, a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obligied to set aside that rule (INTERIM RELIEF)
Francovich- Member State damages liability where none is possible in national law, right to damages founded directly upon EU law reinforced by Art 4(3) TEU
Emmott- Member State cannot rely on a time limit where it has not transposed the relevant directive
Marshall No2- Award of interest must be regarded as an essential component of compensation to ensure real equality of treatment
What are some examples of critiques or pushbacks to the far reaching intrusions?
Sutton- Narrowed Marshall No2, said the principle did not apply because the case concerned social security benefits and that was not the type of payment Marshall was concerned with (ILLOGICAL)
Fantask- Criticised the Emmott decision, said the solution in that case was justified by the particular circumstances, time bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment
How could we say the law has now taken a more balanced approach?
Van Schjindel & Peterbroeck
Each case must be analysed by reference to the role of that provision in the procedure, its progress and special features, viewed as a whole, before the various national instances
* We have to consider this question in context of the whole legal system and remedies available in that legal system
How has the principle of effective judicial protection developed to take a more central role?
Art 47 CFR: Every EU citizen has the right to an effective remedy
LISBON TREATY
Art 19(1) TEU: Member States shall provide remedies sufficient to ensure effective legal protection
- Central to the courts rulings in DEB, eventhough reference was made in terms of equivalence and effectiveness the CJEU focused just on the principle of effective judicial protection
Have member states therefore endorsed the CJEU’s case law? Treaty reform requires unanimous decisions
What case can be used to show a useful application of the principle of equivalence?
Levez
The national court should consider whether similar domestic action have more favourable procedural rules, are less costly or not subject ot the same limitation period
* Made a rule of effectiveness but not equivalence, perhaps this shows we should only be following this instead?
What was the principle outlined in the case of Francovich?
- Directive in question was not vertically directly effective
- However, court then emphasised the new legal order placed down by EU, reiterated Costa, Van Gend En Loos, etc.
- The full effectiveness of community law would be impaired if individuals were unable to obtain address where a directive has been untransposed, created the idea of member state liability
What are the conditions for member state liability given in Francovich?
- Directive should confer rights on individuals
- Should be possible to identify the content of those rights on the basis of the wording of the measure
- Casual link between the breach of the State’s obligation and the loss and damaged suffered by the injured parties
Reparation is to be made ‘on the basis of the rules of national law on liability’. It is for the national courts to determine based on national rules the existence of the casual link
How did the principle of MSL develop with Brasserie and Factortame (No.3)?
- Developed richer justification for the principle
- German government argued liability should be created by legislation
- Said liability is inherent to the treaties and therefore to be interpreted by CJEU
- Linked to EU non-contractual liability
- Additional criteria: there must be a sufficiently serious breach
What discretion does the member state have with regards to MSL?
- Failure to implement a directive is per se a sufficiently serious breach, Dilenkofer
- Limited or no discretion can be a SSB
- Situations where greater MS discretion exist (often incorrect transposition of directive) are less like to result in SSB, British Telecommunications
What is the significance of the Köbler v. Austria case?
- A national / supreme court could be subject to state liability, however this was not the case here as the conditions were not made out
- In international law the state is regarded as one irrespective of which branch the damage is attributable to
- CJEU stressed this was not questioning the decisions of the court made res judicita
- Can only be so where the court at last instance has manifestly infringed the applicable law
What happened in the Traghetti del Mediterraneo case?
Italian government attempted to limit Köbler liability to cases where there had been an intentional breach of EU law or serious misconduct
* Contrary to EU law, a member state cannot make itself immune from such liability
* Specific factors to raise the remedy is a manifest infringement, cannot impose higher threshold than SSB
How might we see state liability as a residual / subsidiary remedy?
Sutton
CJEU noted that although the direct effect route did not work, the parties (as they had raised in their argument) could consider damages against the member state and this was referred back to the national court to determine whether the failure to award interest was a breach of EU law
What are some academic commentary on national remedies and state liability?
Bobek: NPA is unhelpful as an idea, it raises expectations that are not justified given the demands of effectiveness
Dougan: There has been three key stages with NPA (Starting cases, big infringement, balancing)
Arnull: Principle of effectiveness should be done away with, redundant to speak of this. We should just use effective judicial protection and this could also do away with equivalence as this will surely be satisfied from effective judicial protection
