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Effectiveness...

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Effectiveness

Effectiveness of EU Law - 1st Premise: - Principles of supremacy (Case 6-64 Costa v Enel) and direct effect (Case 26-62 van Gend & Loos) provide that national authorities must apply EU law. - These principles do not say which national authorities must apply EU law and what procedures they have to follow to enforce EU law. 2nd Premise: - Difference between substantive rules (including remedial rules) and procedural rules. - The general principle: EU law, including individual EU rights, rely on the national legal systems of the Member States and their courts to be enforced: principle of national procedural autonomy. - The exceptions: occasionally EU law itself (Directives, Regulations) provide remedies or procedural rules (examples: intellectual property, consumer protection, damages claims based on breach of competition law, etc.). Problem with National Procedural Autonomy

Application of national rules may frustrate the enforcement of EU rights. In other words, national law may jeopardise the ‘effectiveness’ of EU rights. Which rules ‘restrict’ / ‘frustrate’ the enforcement of EU law?

§ Some national law providing a poor remedy for breach of individual rights deriving from EU law (e.g. inadequacy of compensation) § Some national procedural rules (e.g. short time-limits to make a claim before national Courts) make difficult to enforce EU rights

Doctrine of Effectiveness

The CJEU developed the principle of ‘Effectiveness’ in response to the problem that national rules (on remedies or procedures) were frustrating the enforcement of EU rights Different meanings of the requirement of effectiveness of EU law:

§ Effective enforcement of EU rights (general meaning) § Meaningful enforcement of EU rights (adequacy of remedies) § Procedural rules (or national law in general) must not make the exercise of EU rights impossible or excessively difficult before national courts Principle of National Procedural Autonomy

Case 33-76 ReweZentralfinanz

- Principle of national procedural autonomy: reliance on national procedural law to enforce EU law CJEU held: “In the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law However, two conditions must be met for the application of national law:

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Effectiveness – national rules must not make the exercise of EU rights practically impossible or excessively difficult; and

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Equivalence – national rules applicable to enforce EU rights must be the same (or no less favourable) than those rules governing similar actions of domestic nature.

If these two conditions are not met, the national court must set aside the national rule. Problems with Effectiveness and Equivalence

§ Legal Uncertainty: No clear test to determine when a domestic rule makes the exercise of EU rights impossible in practice or excessively difficult. § Legal Uncertainty: National procedural law provides a party with legal certainty over the way procedures are enforced by courts. Setting aside a national procedural rule on grounds of effectiveness or equivalence disrupts the balance between a claimant and a defendant. § Potential Discrimination: Citizens exercising the same EU rights in different Member States may receive different treatment as national enforcement rules (and the available remedies) may differ among Member State

Remedies for Breach of EU law

Case 158/80 Rewe (‘butter-buying cruises’ case) No obligation for the Member States to create new remedies (i.e. the existing remedies provided by national law in theory are sufficient)

‘[the Treaty] was not intended to create new remedies in national courts to ensure the observance of Community Law other than those already laid down by national law’. Case 14/83 Von Colson

- - Full implementation of the directive does not require any specific form of sanction for unlawful discrimination, it does entail that that sanction must be such as to guarantee real and effective judicial protection’ - - ‘Compensation must in any event be adequate in relation to the damage sustained’. -

Article 19(1) Treaty on the European Union: ‘Member States shall provide remedies sufficient to ensure effective legal protection in the Constitutionalization of the fields covered by Union law.’ Principle of Effective EU Charter of Fundamental Rights, Article 47: ‘Everyone whose Remedies rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’

Development of CJEU Case Law on Effectiveness

1. A first strong ‘interventionist phase’ to guarantee effectiveness of remedies: willingness of the CJEU to set aside national rules when they jeopardised the effectiveness of EU law; 2. A later retreat phase – ‘deferential phase’: CJEU held the legitimacy of national law (remedies and procedural conditions) that would jeopardise the effectiveness of EU law; 3. Current phase - synthesis: the balanced approach between judicial protection of EU rights and national remedies and/or procedural rules. ( look at cases in slides)

Third phase: A Balanced Approach

Balance between two competing interests: 1. Effectiveness of EU law; and 2. Application of national procedural and national remedy provided by a Member State’s legal system (analysis of the function and the role of the national rule which restricts the effectiveness of EU law). (cases in the slides)...