Remedies and liabilities Flashcards
National procedural autonomy
National procedural autonomy is recognised in the EU (Fleischkontor v Hauptzollamt).
Harmonisation of national procedural rules
Decentralised exec and judicial functions mean that rights with no remedy may occur so the union recognises that it can harmonise national procedural autonomy where it may affect the common market (Rewe).
Consistent interpretation
Consistent interpretation means that national courts must interpret national laws in line with EU law as much as possible (Henkel and Art 4(3) TEU).
Equivalence
The enforcement of EU rights cannot be less favourable than national rights (Rewe).
All rules applicable to national appeals are to be the same for EU law appeals (Arcor v Germany).
The question asked by the courts is if there are similar or equivalent actions to public actions of the state in the case of a claim (Edis). If there are, these procedures will be applied.
In case of no equal national procedures
If there are no equal national procedures, the most similar ones will be applied. Thus in Levez no sex discrimination procedures existed in national law so the more generous racial discrimination procedure was used because it is the most equivalent.
Effectiveness
Effectiveness sets a minimal standard of EU law enforcement, sometimes making them easier to enforce than national rights. It went through three stages of development.
The restraint period
The first period of effectiveness evolution is the restraint period where all the ECJ required was that the natonal procedures did not make it impossible to enforce EU rights (Rewe and confirmed in Comet v Produktschap).
The intervention period
The second period of effectiveness evolution is the intervention period where financial remedies must be adequate (Marshall II), and that procedural restrictions should not ‘considerably weaken’ effectiveness of EU law (Dekker). Factortame ruled that a domestic law which restrains the effectiveness of EU law in any way must be disapplied.
The balance period
The third period of effectiveness evolution is the balance period where the courts distinguish between procedural rules which preclude access to remedies and those which restrict it (Steenhorst-Neerings). The procedures must not make enforcement ‘excessively difficult’ (Preston). The court use a test found in Peterbroeck which finds if something is ‘excessively difficult’ by looking at the rights of the defence, legal certainty and proper conduct of procedure. The effectiveness principle was codified in 19(1) TEU.
Van der Weerd
Van der Weerd refined Van Schijndel (which set very low standards in order to raise a plea) requiring the procedural autonomy will only be interfered with where the party did not have a ‘genuine’ opportunity to raise a plea or the EU law in question was not that important. This is the test now used for effectiveness.
State liability
Traditionally states did not have to compensate damages – Francovich established that it was inherent in the treaties for MS’s to compensate victims of their inability to transpose directives.
Brasserie confirmed it. Francovich damages could be claimed where the directive gave rights to an individual, the rights are identifiable and there is a causal link between the state’s breach and the individual’s loss. Brasseries refined the second requirement to being a ‘sufficiently serious’ breach to be enforceable.
Requirements of Francovich damages
Established originally in Francovich, added to in Brasserie and merged in Dillenkoffer:
- there should be a conferral of a right on an individual
- there has been a sufficiently serious breach
- there is a direct causal link between the loss and the breach
Headley Lomas
extended the principle to the executive. The executive is more likely to cause a sufficiently serious breach as they have no discretion in implementing the directive (Larsy). There is stricter liability (more likely to be a breach) in non-action than incorrect transposition of directives.
Kobler
Kobler extended the principle to the judiciary. It is limited to courts of final appeal where the damages concern reparation. The same criteria are applied.
Courage
Courage extended the principle to private individuals. The conditions were that the action must provide a causal relationship between the harm and the private individual must compensate them for damages caused (repeated in Manfredi). There is seemingly no requirement of a sufficiently serious breach.
