#16779 - Remedies For Breach Of Individual Rights Under Eu Law - European Human Rights Law

Remedies for breach of individual rights under EU law

Article 19(1) TEU- Requires Member States to provide sufficient remedies to ensure effective legal protection in the fields covered by Union law. It does this to protect the substantive rights offered by EU law, with the constitutional principles which allow the individual to rely on them at a national level: direct effect, supremacy, and the Art 267 preliminary reference procedure.

Rewe-Zentralfinanz

The applicant companies applied for a refund, including interest, of charges they had paid in Germany for import inspection costs, which had been imposed in violation of the treaty. The national time limit for contesting the validity of national administrative measures had passed, and the case was referred to the CJEU to see whether EU law required that they be granted the remedy sought.

Applying Article 5 of the Treaty, the Court held it is for the national courts which are entrusted with ensuring the legal protection which citizens derive from direct effect of the provisions of Community law. So in the absence of Community rules, the national courts must be exercise the right conferred by EU law in accordance with the conditions laid down by national rules.

The position would be different only of the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.

Comet

In response to a Dutch time bar, the Court was asked to address the adequacy of the procedural rules.

The rule that was laid down was that the national authorities, when creating procedural rules for the enforcement of EU rights which are directly effective, are able to choose the same right of action as would be the case in an internal matter. Equally, it must be the case that it is not impossible in practice to exercise rights which the national courts have a duty to protect.

These stand as the principles of equivalence and effectiveness. Subsequent cases elucidate the nature of national procedural autonomy’s conditionality.

Factortame

The grounded Spanish sailors want interim relief for the effect the Merchant Shipping Act had on them. National laws at that point precluded the granting of interim relief against the application of a statute.

Held, that the principle of effectiveness required a rule barring the granting of interim relief against the application of a statute to be set aside.

Leczykiewicz: Factortame is about effectiveness- effectiveness of rights granted under EU law would not be achieved if it were possible to have irreversible harm committed on a victim in the lapse of time between preliminary reference and ruling by ECJ.

Zuckerfabrik Suderdithmarschen

The case elucidated the precise conditions under which interim relief against a provision of national law which implemented Union law should be available.

1. If the factual and legal circumstances are such as to persuade the national court that serious doubts exist as to the validity of the Community regulation on which the contested administrative decision is based.

2. Must retain the character of an interim measure: suspension can only be granted until such time as the Court has delivered its ruling; and so incumbent on the national court to refer that question and explaining its doubts.

3. May only be granted in the event of urgency, if it is necessary for them to be adopted in order to avoid serious and irreparably damage to the party seeking the measures of suspension. The damage must be liable to materialise before the Court of Justice has been able to rule on the validity of the contested Community measure. The damage can also not just be purely financial damage, which cannot be regarded as irreparable.

4. NC must also take into account the interests of the Community: it must ask itself if the Community measure would be deprived of all effectiveness if not immediately implemented.

Atlanta

The challenged act was a Council Regulation on the common organisation of the market in bananas, establishing a common import regime. The applicants, traditional importers of bananas, found themselves with import quotas which they viewed as insufficient. They brought proceedings to tackle the measures associated with the implementation of the EU regime.

Significance: clarified the conditions laid down in Zuckerfabrik:

1. As to the concerns of validity of the EU measure, this doesn’t mean simply sending the question, but also must set out the reasons for which it thinks the EU measure should be held invalid. The conditions for the grant of relief is granted on the same conditions as apply when the ECJ is dealing with an application for interim measures.

2. Urgency: same characteristics, must materialise before judgement, must be more than merely financial.

3. Interests of the community: must think of the cumulative effect which would arise if a large number of courts were also to adopt interim measures for similar reasons and, and whether the features of the applicants case distinguish him from other operators.

4. When assessing the grant for interim relief, the national court must respect prior ECJ decisions- so if they’ve dismissed the merits of an action, the national court must follow this. An applicant, to avoid this, must show a specific situation which distinguishes him from other operators in the relevant sector, otherwise the nc will have to accept any findings already made by the ECJ as to the serious and irreversible nature of the damage.

Levez

An employee sought damages for arrears in payment which had been denied to her in breach of EU equal pay rules. The CJEU had ruled that the 2 year limit on arrears of damages in Industrial Tribunal proceedings could not be applied to her on account of the role played by her employer’s deception in the delay. However, the UK argued that the time limit should nonetheless apply to her case, because an alternative full remedy before the county court in an action for deceit against her employer and in an action based on the Equal Pay Act had been open to her, so that the exercise of her right was not rendered ineffective in practice.

The ECJ accepted the point on effectiveness, but went on to consider the requirement of equivalence:

• In order to determine whether the principle of equivalence has been complied with, the nc must consider both the purpose and the essential characteristics of allegedly similar domestic actions.

• When it falls to be considered whether a procedural rule of national law is less favourable than those governing similar domestic actions, the national court must take into account the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the national courts.

• If it transpires that a claim under the Act which is brought before the county court is similar to one of the forms of action listed before a national court, it would remain for the court to determine whether the first mentioned form of action is governed by procedural rules or other requirements which are less favourable. Relevant in that regard is whether additional costs and delays are incurred by the applicant who brings a claim under EU law to the County court than an applicant who brings a similar form of action to the Industrial Tribunal under domestic law, which is a simpler and cheaper process.

Bobek sees this as a third wave case: that it is not about national procedural autonomy as such but is only a very narrow case applicable when one party to a private law relationship deceives another.

Courage Ltd v Crehan

Even when a party to the anti-competitive contract, an individual must not be barred from bringing an action on account of violation of competition rules. However, Community law does not prevent national courts from taking steps to ensure that the protection of rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them.

Similarly, provided principles of equivalence and effectiveness are respected, Community law does not preclude national law from denying a party who is found to bear significant responsibility for the distortion of competition the right to damages from the other contracting party.

In that regard, consideration must be had of the relative bargaining positions of the parties, and the general economic and legal context- includes the party’s freedom to negotiate and his capacity to avoid loss or reduce its extent.

Grundig Italiana

The Court ruled that although national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not in itself incompatible with the effectiveness principle, the new limitation period must remain reasonable and must include adequate transitional arrangements.

On the facts, the Court held a 90 day transitional limitation period was unreasonable, given that it replaced a previous five-year period for preparing and submitting proceedings.

Unibet

The Treaty was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law. But it would be otherwise if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under Community law.’

The court indicated that if an individual were forced to be subject to administrative or criminal proceedings with possible penalties as the sole form of legal remedy for a conflict between EU...