#17728 - National Remedies For Breach Of Individual Rights Under Eu Law Notes - European Law

National Remedies for Breach of Individual Rights Under EU Law Notes

CJEU rulings on the impact of EU law in national legal proceedings, combined with national judicial willingness to follow suit, has ensured a deep penetration of EU norms into national practice

• National courts are, in a sense, also EU courts – as the EU has not created its own system of courts, EU courts are parasitic on national courts

  • This means that the EU has to show some defence to national judicial practices – if you’re going to just take over the system of national courts, you have to at least show some respect to national traditions.

What is national procedural autonomy?

Definition

National procedural autonomy provides that if there are no EU rules specifying the remedies and procedures available for breach of EU law, then the matter is left to national law

• Dougan has suggested that “procedural competence” or “national procedural responsibility” are better terms than “procedural autonomy” given that the case law and Art 19(1) TEU clearly emphasises the responsibility of Member States, absent EU rules, for determining the conditions under which EU rights are to be protected.

  • In a similar vein, the language of autonomy is potentially confused – “autonomy” implies that there is a choice. In reality this is just the default back to national rules in the absence of EU rules.

• Rewe-Zentralfinanz

  • Facts: The applicant applied for a refund, including interest, of charges that they had paid in Germany for 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 CJERU to see whether EU law required that they be granted the remedy sought

  • Held: “The prohibitions have direct effect and applying the principle of cooperation Article 4(3) TEU, national courts are entrusted with ensuring that the legal protection which citizens derived from the direct effect of EU law

    • In the absence of EU rules on the subject, it is for domestic legal systems to designate the courts having jurisdiction to determine the procedural conditions governing actions at law

    • The CJEU also referred to the “no new remedies” rule – “although the Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Court of Justice, it was not intended to create new remedies in the national courts to ensure observance of Community law other than those already laid down by national law”

      • BUT: the no new remedies rule has been qualified in later rulings

        • San Giorgio – the CJEU effectively held that a right to repayment must be, in principle, available under national law as this flowed directly from the substantive provisions of EU law in question

        • Unibet – the CJEU insisted that EU law does not require the creation of new remedies, except where it is a apparent from the whole 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.

          • In Unibet, the Court eventually ruled that there was no need for Swedish law to provide a self-standing action to challenge the compatibility of a national provision with EU law because there were other domestic legal remedies available

Limitations

The rule in Rewe is subject to two important limitations

• Comet

  • Held:

1. Principle of Equivalence – national rules must not be less favourable that those governing the same right of action on an internal matter

2. Principle of Effectiveness – Conditions must not make it impossible in practice to exercise the rights which national courts are obliged to protect

NOTE: the language in Rewe is negative (must not make it impossible), but recently the language has shifted towards a more positive formulation.

• Some have argued that this represents the CJEU changing its approach.

  • However, this is not the case. Jeremias notes that in cases like i-21 the CJEU puts the negative formulation in brackets, showing that it is the same thing

Beyond this, there are further important qualifications of the principle:

• Proportionality

  • Sagulo

    • Held: The CJEU held that while states were entitled to impose reasonable penalties for infringements of administration requirements governing EU residence permits by migrant works, the penalties must not be disproportionate to the offence in questions

• Adequacy and Effective Judicial Protection

  • Von Colson

    • Facts: The plaintiffs were subject to sex discrimination in applying for posts as prison workers

      • They were told that they were only entitled by way of remedy to “reliance loss”, such as the costs of travel to the interview.

        • They were told that they were entitled to no compensation no appointment to the post

    • Held: The CJEU derived from the Equal Treatment Directive the robust principles of the adequacy and effective judicial protection

      • These were later confirmed as applying outside of the sex discrimination context in Johnston, Heylens and Panayotova

      • Krommendijk (2016) distinguishes between Rewe effectiveness and the Von Colson principle of effective judicial protection

        • He ultimately finds that the main difference between the two is the more encompassing nature of PEJP, which entails positive (procedural) obligations

Treaty and Charter Recognition

Article 19(1) TEU and Article 47 of the Charter are a confirmation of the CJEU’s approach in this area.

• Article 19(1) – Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

• Article 47 - everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal

How has the principle of effectiveness been developed and applied?

Definition

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)

• This has meant 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”.

The case law has illustrated the tension between the principle of effectiveness and the no new remedies rule

• Factortame (No 1)

  • Facts: The Merchant Shipping Act 1988 required fishing vessels to be 75% UK owned. F didn’t satisfy this, its shareholders and directors consisted mainly of Spanish nationals.

    • F argued that this breached EU law, and he sought interim relied pending final judgement. However interim relief was barred by (a) a common law rule prohibiting grant of an interim injunction against eh Crown; and (b) the presumption that an Act of Parliament conforms with EU law until a contrary decision is given

  • Held: The CJEU held that the award of a remedy unrecognised under English law fell within the jurisdiction of English court in cases with an EU element – were it otherwise, the effective protection of EU law rights would be compromised.

    • The national court has a duty to grant interim relief to safeguard against infringement of EU rights until a CJEU decision in the interpretation of EU law is available

      • Where a rule of national law would deny such relied, that national rule must be set aside

    • The basis of such a duty lies in the nature and object of effective EU law rights – these are intended to be fully effective throughout the EU

      • Where it is necessary in order to safeguard these rights, the national court must grant interim measures

    • NOTE: the emphasis in this case is on the effectiveness of EU law and not on the national procedural rules

Interim Measures

In Factortame, the CJEU did not address the question of the criteria to be applied in granting or withholding this sort of interim relief.

• One might have assumed that the substantive conditions for interim relief protection would be defined by national law (subject to the EU principles of equivalence and effectiveness) thus creating a hybrid remedy of EU derivation but of national content

However, the CJEU did address this question in Zuckerfabrik, laying down substantive rules to be applied by a national court in assessing whether to suspend the application or implementation of EU acts

• Zuckerfabrik

  • Facts: There was a national law based on an EU provision. C argued that the EU provision was invalid, and thus that the national law was also invalid.

    • C requested interim relief, arguing that, in order for the preliminary reference procedure to function properly, the national court must be able to grant interim relief suspending the application of a national measure based on an EU measure hose validity is doubted

  • Held: The CJEU held that where interim measures are sought before a national court while a ruling from the CJEU on the validity of a measure is pending, the national court may suspend the operation of the national measure adopted in the implementing of the measure

    • Suspension will only operate if:

      1. The national court is satisfied that there are serious doubts as to the validity of the EU act in question

      2. The matter is urgent

         • Matters mut not be purely financial and must materialise before the CJEU rules on the validity of EU acts (Atlanta)

      3. There is risk to the applicant of serious and irreparable harm

      4. The national court took due account of the EU’s interest

         • The national court is under an obligation to...