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Law Second Year > EU Law - State Liability and National Remedies x2 > Flashcards

EU Law - State Liability and National Remedies x2 Flashcards

1
Q

What case required damages be available in principle for breach of EU law?

A

Courage v Crehan

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2
Q

What was the basic principle disabled in Factotame?

A

No interim relief against the Crown

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3
Q

When is it more likely the EU will lead it to the national remedies?

A

If court emphasises national autonomy and concerns ancillary procedural rights

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4
Q

What was considered unacceptable in Factortame?

A

An absolute prohibition on interim relief

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5
Q

What section of what Treaty covers duty of Members to offer remedies and EJP?

A

Article 19 TFEU

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6
Q

What case affirmed and extended Marshall?

A

Evans

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7
Q

What case said specific remedy required at national if flows from substantive provisions?

A

San Giorgio

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8
Q

Duty of Members to make good any damage caused

A

Article 340 TFEU

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9
Q

Just remedy under EU Charter

A

Article 47

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10
Q

Dekker-Stichting general

A

Pregnant, ETD

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11
Q

What created uncertainty in national remedies?

A

Creative national courts displaying national rules in some cases and not in others

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12
Q

What case added effectiveness and adequacy to twin principles?

A

Von Colson

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13
Q

What case drew a distinction between dismissal on grounds of sex and discriminatory denial of social security?

A

Ex p Eunice Sutton

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14
Q

Case allowing Domestic law still primary role in determining conditions for grant of specific remedy required by EU law

A

San Giorgio

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15
Q

What two cases show the CJEU being lenient on sufficiently serious SL requirement?

A

Ex p BT and Kobler

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16
Q

Who said it was better to refer to national procedural autonomy as responsibility?

A

Dougan

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17
Q

Metalgesellschaft

A

Rejected UK argument of failure to mitigate losses to reduce damages

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18
Q

Why was there no SL in Ex p BT?

A

The measure was unclear so breach was understandable

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19
Q

What three things did Francovich require for state liability?

A

Intended to confer, ascertainable from measure and causal

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20
Q

What two rules were disapplied in Marshall?

A

Jurisdictional and substantive

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21
Q

Dekker-Stichting judgment

A

Didn’t allow Member to subject redress claim to ‘fault’ nor allow defence of justification

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22
Q

Danfoss

A

Virtually impossible

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23
Q

What case confirmed that Von Colson goes wider than just sex discrimination?

A

Johnston v CC

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24
Q

Academic on the Schoppenstedt test

A

Beutler

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25
Q

Who highlighted how Unibet was not erga omnes

A

Arnull

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26
Q

Pizzarotti

A

No automatic review of res judicata judgment if EU provision adopted AFTER delivery

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27
Q

Beutler on SL

A

Not in regal isolation, court can be held liable if makes it insurmountable and never MI yet doesn’t mean it is insurmountable

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28
Q

Who argued that SL is a residual remedy?

A

Prechal and Beutler

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29
Q

Von Colson general

A

Equal Treatment Directive

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30
Q

Ex p Eunice Sutton general

A

Arrears of benefit but no interest

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31
Q

Case on rules of evidence and effectiveness

A

Boiron v URSSAF

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32
Q

What did the court say was required for dismissal on grounds of sex in Ex p Eunice Sutton?

A

Reparation for loss and damage

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33
Q

No automatic review of res judicata judgment if EU provision adopted AFTER delivery

A

Pizzarotti

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34
Q

What case said that there is very little difference between Factortame and Fvrancovich?

A

Dillenkoffer

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35
Q

What are the two requirements for national remedies for breach of EU law?

A

Equivalence and practical possibility

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36
Q

If there is no EU remedy required, what is the default position?

A

NPA/NPR through Article 19(1) TEU

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37
Q

Ex p Eunice Sutton judgment

A

Distinction between dismissal on grounds of sex and discriminatory denial of social security

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38
Q

Who argued SL is residual?

A

Beutler

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39
Q

Two examples of application of Rechberger

A

Com v France; Schmidburger v Austria

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40
Q

What did Factortame require for SL test

A

grave and manifest infringement

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41
Q

What case tried to limit lucchini effect?

A

Pizzarotti

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42
Q

What type of case was Marshall (according to Ex p Eunice Sutton)?

A

dismissal on grounds of sex

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43
Q

What is it suggested led to the outcome in Marshall?

A

Substantive importance of ETD in EU law

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44
Q

What case rejected that the breach needed to be intentional for SL?

A

Traghetti

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45
Q

What case did they rely on in Dekker-Stichting?

A

Von Colson

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46
Q

What did the court allow in Factortame?

A

National court could specify the conditions of th interim relief

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47
Q

Lucchini

A

Res judicata cannot prevent recovery of aid

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48
Q

Three cases on equivalence generally

A

Edis v Ministero; Manfredi and Van Schijndel

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49
Q

Case reiterating new legal order reasoning from Van Gend to justify damages in principle

A

Courage v Crehan

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50
Q

Hakenberg on SL

A

Test is ‘as yet unclear’

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51
Q

When is it more likely the EU will demand a particular remedy?

A

if the court emphasise a substantive right and if it concerns a remedial right

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52
Q

Unibet

A

Gambling

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53
Q

Marshall II judgment

A

Both substantive and jurisdictional rules for discrimination in breach of EU law removed

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54
Q

Three cases showing uncertainty as a result of creativity of national courts in national remedies

A

Factortame, Marshall and Evans

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55
Q

Case stating that non-tranposition = sufficiently serious

A

Dillenkoffer

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56
Q

What was the first case on state liability?

A

Francovich

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57
Q

What case highlights that it is for the Member to enforce EU law and provide remedies etc.?

A

Rewe v Land

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58
Q

What case did Metalgesellschaft draw comparison with?

A

Marshall

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59
Q

What case affirmed Steenhorst?

A

Johnson II

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60
Q

Despite Steenhorst, what was there no retreat from?

A

Effectiveness and adequacy

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61
Q

What case showed SL applies to executive decisions?

A

Ex p Hedley Lomas

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62
Q

Societe Comateb

A

Case suggesting that SL is a residual remedy

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63
Q

Rejected UK argument of failure to mitigate losses to reduce damages

A

Metalgesellschaft

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64
Q

Example of a remedial right

A

Damages/compensation (Marshall) or access to court (Heylens)

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65
Q

3 remedies available in Unibet

A

Apply then JR, criminal proceedings or damages for no advertising

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66
Q

What was influential in Steenhorst?

A

State concerns of financial balancing

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67
Q

Metalgesellschaft essential remedy

A

Interest

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68
Q

What four cases show an obligation to provide a specific remedy?

A

Metallgesellschaft, Courage v Crehan, Factortame and San Giorgio

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69
Q

Who believed that the CJEU preserved the Rechtsfrieden between EU and Members in SL?

A

Wegener

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70
Q

Emmott v Minister for SW general

A

Retrospective disability payment rejected

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71
Q

Boiron v URSSAF

A

If national evidentiary requirements make EU law difficult to be effective, use ‘all procedures available’ to ensure EJP

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72
Q

What case stated no need for adequacy of payment for arrears?

A

Eunice

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73
Q

What was the claim for in Marshall?

A

Compensation for discrimination in breach of EU law

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74
Q

Two cases on ETD

A

Von Colson and Dekker-Stichting

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75
Q

What case suggested effectiveness even trumps a basic principle of a Member State

A

Factortame

76
Q

Conditions for SL in Factortame

A

Intended to confer, sufficiently serious and causal

77
Q

Johnson II

A

Even without state concerns of financial balancing, one year bar was compatible with EU law

78
Q

In what case did AG Jacobs suggest if effectiveness is always emphasised then could discriminate in favour of EU law

A

Van Schijndel

79
Q

Manfredi

A

If similar domestic actions permit specific damages, allow for EU

80
Q

What case sees CJEU stretching national requirements to ensure effectiveness?

A

Boiron v URSSAF

81
Q

What is the current approach to national remedies and what case?

A

Balance EJP with NPA, Peterbroeck v Belgian State

82
Q

What case did the court draw on in Factortame in regard to national remedies?

A

Simmenthal

83
Q

What case stated that Allowing a claim only for ‘reliance loss’ is ineffective under ETD?

A

Von Colson

84
Q

Article 47 EU Charter

A

Just remedy

85
Q

Why is the decision in Dekker-Stichting DOUBTED?

A

Allowing consideration of fault wouldn’t necessarily have made EU law ineffective or impossible

86
Q

Heylens v UNECTEF

A

Right to effective judicial review

87
Q

What case stated that state liability arises ‘whichever’ is the action of the Member State?

A

Brasserie

88
Q

Courage v Crehan

A

Damages need to be available in principle for breach of EU law

89
Q

What case said that if EU law requires compensation, the Member cannot use factors such as effluxion of time to affect the value

A

Evans

90
Q

Who believed Kobler showed excessive deference to Members?

A

Cabral and Chaves

91
Q

National courts can refuse reliance on EU if claimant abusing rights

A

Dionysios Diamantis

92
Q

What case didn’t allow Member to subject redress claim to fault nor defence of justification because of ‘effectiveness’?

A

Dekker-Stichting

93
Q

Dougan on SL

A

Reliance on SL reduces the effectiveness of national remedies

94
Q

What case said state liability is inherent?

A

Francovich

95
Q

What is the commensurability requirement in Dekker?

A

The measure must be reasonable - it need not make EU law impossible before it is considered ineffective

96
Q

What case suggested even a mere infringement may = sufficiently serious if little discretion?

A

Ex p Hedley Lomas

97
Q

Dougan on NPR

A

Better NPA

98
Q

Rewe v Hauptzollamt

A

No new remedies

99
Q

Example of substantive EU right

A

ETD - Marshall

100
Q

Article 4(3) TEU

A

Members need to take ‘all effective measures to sanction conduct’ affecting EU financial interests

101
Q

Ceiling on damages is not always impermissible for ‘adequate compensation’

A

Draehmpaehl v Urania

102
Q

Who thought removing subjective fault from SL in Traghetti removed limiting factor of SL

A

Ludner

103
Q

Dillenkoffer on intended to confer

A

Look at provisions of the measure in question

104
Q

Krieger on SL requirements

A

Rare that the hurdle will ever be overcome

105
Q

Re-open final decision if misunderstanding of EU

A

Kuhne and Heitz

106
Q

What case introduced a commensurability requirement for national remedies

A

Marshall

107
Q

What case required that in order to sue the Member over the person who actually caused harm, it must be virtually impossible to sue the latter?

A

Danfoss

108
Q

Johnston v CC

A

confirmed that Von Colson goes wider than just sex discrimination

109
Q

Van Shijndel

A

Per AG Jacobs, if effectiveness is always emphasised then could discriminate in favour of EU law

110
Q

what case showed that there needs to be NO national remedy for EU to demand one?

A

Unibet

111
Q

Fub v Stedt Halle

A

Disregard case law

112
Q

Ex p BT general

A

Unclear

113
Q

Who believed that the requirements for the ‘sufficiently serious’ leg of SL can be ascertained or helped by the Schoppenstedt test?

A

Beutler

114
Q

Case requiring grave and manifest infringement for sufficiently serious SL

A

Factortame

115
Q

Three cases trying to ensure legal certainty and effectiveness

A

Kuhne and Heitz; Lucchini; Pizzarotti

116
Q

What case built on Fvrancovich?

A

Factortame

117
Q

Edis v Ministero

A

Equivalence means no distinction between national and EU law, but not most favourable extended

118
Q

Emmott v Minister for SW facts

A

Didn’t allow a claim for payment under a Directive because time limit had expired by the time the Directive was properly implemented

119
Q

If national evidentiary requirements make EU law difficult to be effective, use ‘all procedures available’ to ensure EJP

A

Boiron v URSSAF

120
Q

why did Ludner criticise Traghetti?

A

Removing subjective fault removes the limiting criteria in sl

121
Q

What case tries to explain Emmott v Minister for SW ?

A

Texaco A/S

122
Q

What type of case was Ex p Eunice?

A

discriminatory denial of social security

123
Q

What case showed SL being imposed because sufficiently serious in disregarding case law?

A

Fub v Stedt Halle

124
Q

Texaco A/S

A

Confined Emmott v Minister for SW , largely due to misleading conduct in that case

125
Q

Rechberger

A

State cannot use misconduct of 3rd as a defence to action for damages for breach of EU law

126
Q

What two sources did the court draw on in Heylens v UNECTEF?

A

Articles 6 and 13 ECHR

127
Q

In what case did the court reiterate that MI is not an insurmountable hurdle?

A

Traghetti v Italy

128
Q

What case was on a Directive almost identical to that in Marshall?

A

Ex p Eunice Sutton

129
Q

Case suggesting that SL is a residual remedy

A

Societe Comateb

130
Q

What did the court say was/was not required for discriminatory denial of social security in Ex p Eunice Sutton?

A

Not for loss or damage, and interest is not essential

131
Q

Example of ancillary procedural rights

A

Time limits (e.g. Steenhorst)

132
Q

Article on principle of sincere cooperation

A

Article 4(3) TEU

133
Q

Ferwerda

A

Grant of a remedy based on national law, subject to E & PP

134
Q

What should the court have in mind for new approach to national remedies under Peterbroeck?

A

aim and function of national rule and importance/objective of EU right

135
Q

What was the broader principle from Emmett?

A

No reliance on domestic law to limit a claim until Directive implemented

136
Q

Ludner

A

Subjective fault

137
Q

What two cases show a strong initial requirement of effectiveness of national remedies?

A

Dekker-Stichting and Emmott v Minister for SW

138
Q

Evans

A

If compensation/restitution required, no exclusion of factors affecting the compensation value

139
Q

steenhorst-neerings general

A

Retrospective disability benefit for unimplemented period

140
Q

Case stating grant of a remedy for breach of EU based on national law, subject to twin principles?

A

Ferwerda

141
Q

Dionysios Diamantis

A

National courts can refuse reliance on EU if claimant abusing rights

142
Q

What case withdrew from Marshall?

A

Johnson II

143
Q

Three cases on effect of P’s conduct and equivalence

A

Dionysios Diamanis, Rechberger and Metalgesellschaft

144
Q

What case abandoned the broader principle from Emmett?

A

NSteenhorst

145
Q

Arnull

A

Unibet not erga omnes

146
Q

What two principles did Von Colson add to the original twin principles

A

Adequacy and effectieness

147
Q

What was the national rule in Steenhorst-Neerings?

A

Dutch law did not allow payment retrospectively of more than a year

148
Q

Equivalence means no distinction between national and EU law, but not most favourable extended

A

Edis v Ministero

149
Q

What case stated it is not for a Member to refuse to pay interest on a claim?

A

marshall

150
Q

If similar domestic actions permit specific damages, allow for EU

A

Manfredi

151
Q

what did San Giorgio allow?

A

Domestic law still primary role in determining conditions for grant of specific remedy required by EU law

152
Q

Case suggesting SL can run separately from national claims

A

Stockholm Lindopark

153
Q

What are the twin principles?

A

Equvalence and practical possibiity

154
Q

Draehmpaehl v Urania judgment

A

Ceiling on damages is not always impermissible for ‘adequate compensation’

155
Q

No new remedies

A

Rewe v Hauptzollamt

156
Q

What two remedies in Unibet were 100% compliant with EU law?

A

Damages and JR

157
Q

Res judicata cannot prevent recovery of aid

A

Lucchini

158
Q

How did the court distinguish Emmett in Steenhorst?

A

One-year period not a time limit, and not an absolute bar

159
Q

Why did Dillenkoffer not think any difference between Factortame and Fvrancovich?

A

Sufficiently serious assumed in Factortame

160
Q

Case on intended to confer

A

Dilenkoffer

161
Q

Cabral and Chaves on SL

A

Excessive deference to Members in Kobler etc.

162
Q

What case stated that requirements by EU on national remedies are fact-specific?

A

Eunice

163
Q

Kobler general

A

Austrian failure to refer to CJEU

164
Q

How many remedies were there available in Unibet at national level?

A

3

165
Q

What case seemed to suggest effectiveness trumps NPR & UK law

A

Factortame

166
Q

Case showing state response to breach of EU law by individuals still needs to be proportionate and not block fundamental freedoms

A

Sagulo

167
Q

What test is similar to sufficiently serious test?

A

Schoppenstedt

168
Q

Members need to take ‘all effective measures to sanction conduct’ affecting EU financial interests

A

Article 4(3) TEU

169
Q

Emmott v Minister for SW judgment

A

Suspend time limits on bringing a claim pending proper implementation of a Directive

170
Q

Stockholm Lindopark

A

Case suggesting SL can run separately from national claims

171
Q

Draehmpaehl v Urania general

A

Ceiling

172
Q

Right to effective judicial review

A

Heylens v UNECTEF

173
Q

Wegener

A

Rechtsfrieden

174
Q

Sagulo

A

state response to breach of EU law by individuals still needs to be proportionate and not block fundamental freedoms

175
Q

Reliance on SL reduces the effectiveness of national remedies

A

Dougan on SL

176
Q

What part of the Treaty did the court explicitly rely on in Factortame

A

Article 340 TFEU

177
Q

What case showed Factortame SL applies to courts of last instance that fail to refer?

A

Kobler

178
Q

Kuhne and Heitz

A

Re-open final decision if misunderstanding of EU

179
Q

Von Colson judgment

A

Allowing a claim only for ‘reliance loss’ is ineffective under ETD

180
Q

Article 340 TFEU

A

Duty of Members to make good any damage caused

181
Q

What case refused to elaborate on ‘sufficiently serious’?

A

Brasserie

182
Q

What was the requirement in Kobler for SL?

A

Manifest infringement

183
Q

Pregnant, ETD

A

Dekker-Stichting

184
Q

What case was conjoined with Factortame?

A

Brasserie v Germany

185
Q

Article 19 TFEU

A

duty of Members to offer remedies and EJP

186
Q

Four cases showing a more cautious approach to national remedies

A

Steenhorst-Neerings, Johnson II, Ex p Eunice Sutton and Draehmpaehl v Urania

Law Second Year (62 decks)

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