#16131 - Remedies National Procedural Autonomy - European Law

I - Remedies in the National Courts 3

A – Statement of the Principle of (conditional) national procedural autonomy? 3

Case 33/76 Rewe-Zentralfinanz [1976] ECR 1989 3

Case 45/76 Comet [1976] ECR 2043 3

B – Specific Applications of the Principle 4

1 – National Time Limits 4

Case C-255/00 Grundig Italiana [2002] ECR I – 8003; 5

Case C-326/96 Levez [1998] ECR I-7835 (equal pay case which turned on the applicability of a national limitation period) 5

2 – Interim Protection 5

Case C-213/89 Factortame (No. 1) [1990] ECR 1-2433 (against a NATIONAL act potentially in breach of EU law) 6

Cases 143/88 & 92/89 Zuckerfabrik Suderdithmarschen [1991] ECR I-415 (against a potentialy invalid EU ACT) 6

Case C-465/93 Atlanta [1995] ECR I-3761 (against a potentially invalid EU ACT) 6

Case C-432/05 Unibet v. Justitiekanslern [2007] ECR I-2271 7

3 – Setting aside a defence in national law? 7

Case C-453/99 Courage Ltd. v. Crehan [2001] ECR I-6297 (no blanket ban for breach of competition law) 7

4 – Legal Aid 7

Case C-279/09 DEB v. Germany, [2010] ECR I-3849 (nuanced ruling on whether effectiveness requires legal aid) 7

NOTE P. Oliver (2011) 48 CMLRev 2023 8

5 – Res Judicata 9

Case C-392/04 & C-422/04 i-21 Germany and Arcor v. Germany [2006] ECR I-8559; 9

C-119/05 Lucchini [2007] ECR I-6199 (duty to recover State aid in spite of res judicata); 9

Case C-2/08 Fallimento Olimiclub Srl [2009] ECR I-7501; 9

*Case C-168/05 Mostaza Claro v. Centro Móvil Milenium [2006] ECR I-10421; 10

6 – Raising issues of EU law ex officio 10

*Case C-168/05 Mostaza Claro v. Centro Móvil Milenium [2006] ECR I-10421; 11

7 – Creating new remedies 11

Case C-432/05 Unibet v. Justitiekanslern [2007] ECR I-2271 (must be able to bring actions to court themselves) 11

NOTE A. Arnull, ‘The Principle of Effective Judicial Protection in EU law: an Unruly Horse?’ (2011) 36 ELRev 51; 11

C – Is there such thing as procedural autonomy? 12

Bobek, ‘Why There is no Principle of Procedural Autonomy of the Member States’ in B. de Witte and H. Micklitz (eds), The European Court of Justice and Autonomy of the Member States (Intersentia, 2011) 12

M. Ross, ‘Effectiveness in the European legal order(s): beyond supremacy to constitutional proportionality?’ (2006) 31 ELRev 476; 12

II - Actions for damages in cases of breach of EU law 13

D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’, ch. 9 in Arnull & Chalmers (eds.), The Oxford Handbook of European Union Law (OUP, 2015) 13

* Cases C-6 & 9/90 Francovich [1991] ECR I-5357; 13

Case C-48/93 Factortame (No. 3)/Brasserie de Pêcheur [1996] ECR I-1029 (conditions of liability) 15

Case C-392/93 R v. HM Treasury, ex parte British Telecom [1996] ECR I-1631; 17

*Case C-224/01 Köbler [2003] ECR I-10239; 17

NOTE S. Varga, Why is the Kobler Principle not Applied in Practice? (2016) 23 MJ 6 page 984 21

Case C-173/03 Traghetti del Mediterraneo [2006] ECR I-5177; 23

Case C-160/14 Ferreira da Silva e Brito, Judgment of 9 September 2015; 23

Dougan, ‘Addressing issues of protective scope within the Francovich right to reparation’ (2017) 13 Euro Const Law Review 124. 24

Harlow, ‘Francovich and the Problem of the Disobedient State’ (1996) 2 ELJ 199; 25

* M. Dougan, ‘What is the point of Francovich?’, Ch. 14 in T. Tridimas and P. Nebbia (eds.), European Union Law for the Twenty-First Century, Volume 1: rethinking the new legal order (Hart Publishing, 2004). 25

Scott and Barber, State Liability under Francovich for Decisions of National Courts (2004) 26

Beutler, State Liability for Breaches of Community Law by National Courts, (2009) 46 CMLRev 773 26

Case C-453/99 Courage Ltd. v. Crehan [2001] ECR I-6297 27

Weatherill, Law and Values in the European Union 28

Article 19(1) TEU (MSs shall provide remedies sufficient to ensure effective legal protection…) and Article 47 Charter (right to an effective remedy before national courts) are both confirmation of the CJEU’s approach.

The issue highlights a tension between:

• Need to secure effective legal protection

• Impossibility of constructing a comprehensive pan-European machinery of redress (because would be impracticable and touch on sensitive questions (types of interests to protect, time limits, types of loss that can be compensated…) that are addressed differently across Member States)

Note that in both cases the CJEU decided that on the facts the national procedural rules are reasonable.

• Facts: A trader claimed a refund for charges unlawfully levied by German authorities. German authorities argued that the limitation period had passed and the trader couldn’t have claimed if the measure had breached an equivalent domestic law.

• CJEU ([5]): the prohibitions have direct effect, and applying the principle of cooperation (Article 4(3) TEU), national courts are entrusted with ensuring the legal protection which citizens derive from the direct effect of EU provisions. Thus, in the absence of EU rules on the subject, it is for domestic legal systems to:

  • Designate the courts having jurisdiction

  • Determine the procedural conditions governing actions

• Provided that:

  • conditions cannot be less favourable than those relating to similar actions of a domestic nature

  • conditions cannot make it impossible in practice to exercise the rights which the national courts are obliged to protect

• Reasonable time limits are OK, and with regards to actions of a fiscal nature is an application of the fundamental principle of legal certainty.

The second condition (impossible in practice…) pushes for the development of an EU system of remedies even where it is not available in domestic cases sets a minimum standard of protection and provides some harmonization of domestic remedies and procedures.

and

• CJEU: in the absence of relevant EU rules, it is for the national legal order of MSs to designate the rules and procedures governing the protection of DEtive rights conferred on individuals by EU law, subject to two provisos that the rule is no less favourable than those governing the same right of action domestically, and it should not be impossible in practice to exercise these EU rights

are the cases that are normally taken as the basic starting point in asserting a conditional principle of national procedural autonomy in cases involving the vindication of EU law rights.

EXAM MATERIAL

The language in Rewe is negative (must not make it impossible…), but recently, the language shifted towards a positive formulation – some argue that this is the CJEU changing in approach, but Jeremias doesn’t think so because in cases like i-21 because the CJEU just puts it in brackets, showing that it’s the same thing.

The CJEU maintained this position even after Lisbon (Art 19(1) and Art 47 Charter) – ex. C-583/11P Inuit v Commission.

But the “relevant EU rules” are few – negligible political will at national level and EU measures governing remedies are in very niche areas (access to environmental justice, competition law, public contracting…).

The principle of equivalence = essentially a rule of non-discrimination (no distinction between breaches of EU and national law), with the assessment of similarity of purpose/cause of action belonging typically with national courts in the context of preliminary references.

• Whether a domestic measure is equivalent to an EU measure = for national courts, taking into account the purpose and essential characteristics of each law (Palmisani v INPS, Levez v Jennings)

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), meaning 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”.

Such cases are increasingly decided through the prism of Article 47 Charter, and are applied differently depending on the type of alleged infringement:

• Remedies (very little control)

  • Measures that cap compensation at very low levels are illegal (Marshall)

  • Measures that provide nominal compensation without regard to damage sustained are illegal (von Colson)

  • Measures that exclude compensation for certain types of damage (ex. economic loss) are illegal (Brasserie du Pêcheur)

• Procedures (more extensive control)

  • Not allowed to screen off certain sectors (ex. military) from JR

  • Must ensure that any professional, regulatory or administrative body that takes decisions affecting EU rights be subject to JR

  • Reasons for decisions must be accessible

  • Must afford parties standing wherever directly effective rights have been infringed

• Time limits (must be reasonable, but CJEU’s idea of reasonableness grants considerable leeway for national systems)

  • Sixty days for civil proceedings is not too short (Asturcom Telecomunicaciones)

  • Fifteen days for asylum seekers to appeal an administrative decision refusing asylum was not too short (Samba Diouf) (‼!)

  • Control of when the time limit begins (whether the applicant was in a position to ascertain their rights from the moment where the limitation period begins):

    • Example – for workers employed on a series of short-term contracts, must begin at the end of the relationship not each individual contract.

• Due...