Remedial control of national procedural autonomy

Question 1

how does EU law ensure effectiveness

Answer 1

the principles of direct effect and supremacy
these principles are reinforced by a number of other important procedures that help to secure the effectiveness
(side doctrines wich add additional effectivness)

Question 2

what are the four doctrines that provide additional effectiveness?

Answer 2

1. remedial control of national proecdural autonomy
2. the commission enforcement procedure
3. the doctrine of state liability
4. The Preliminary Reference procedure

Question 3

what is remedial control of national procedural autonomy

Answer 3

in simple- national legal procedures can be used to implement EU law but this is controlled by EU procedures

Question 4

what is the decentralized enforcement of EU law?

Answer 4

the EU system of enforcing EU law relies on national bodies and courts to to enforce and implement EU law
-MS have their own procedures and remedies for this
-example -area of external customs policy (EU controls this area of polict and sets overalll legislative framework, MS responsible for policing and lebying charges)

Question 5

Article 4(3) TEU

Answer 5

treaty basis for the role of MS in implementing
sets out the principle of loyal co-operation- a duty which MS owe to the EU
- “MS shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainement of the unions objectives”- 2 duties

Question 6

further rights which must be implemented in the duty of loyal co-operation

Answer 6

article 47 Charter of fundamental rights- the right to effective judicial protection (may need to create a new remedy as a result of this right- unibet [2007] )
article 19(1) TEU- the right to an effective judicial remedy
-‘Member States shallprovide remedies sufficient to ensure effective legal protection
in the fields covered byUnion law.’

Question 7

the overall picture that the EU is decentralized and subject to the duty of loyal co-operation

Answer 7

position set out in Rewe v Landwirtschaftskammer fur das saarland [1976]

Question 8

doctrines that flow from the general duty of loyal co-operation that allow the CJEU to regulate the MS perfroming their tasks

Answer 8

the principles of
equivalence and
effectiveness
(controls how the national procedures and remedies are applies- explained in the Rewe case)
-also control the way the national courts interpret the remedies - stated in von colson case

Question 9

CJEUs ability to insist remedial consequences (flows from EU law not the principles)

Answer 9

can interpret existing EU law and require that a remedy be put in place flowing from it
- Amministrazione case [1983]- state breached free movement rule by imposing levy, held the free movement right included the right to a remedy if breached

Question 10

principle of equivalence

Answer 10

actions based on EU law in national courts should be treated with equally favourable remedies and procedural rules available as national rules would
(Rewe case)
-litigants have tested this by trying to obtain the maximum possible remedy- Levez [1998]:
-first stage- national court must determine whether the union and domestic cliam is similar to argue equivalence
(assessment guided by objective and purpose of the action in question)- eg not an individal against the state vs in private law between two individuals

Question 11

the principle of effectiveness

Answer 11

a requirement that national reemdies and procedural rules should not deem the exercise of union rights virtually impossible or exessively difficult
- prescribes that a minimum standard of redmedial provision must be provided (could mean EU is given higher standards if national law standards are poor and dont meet the expectations of EU)
-cofidis [2002]- the decision is made on a case by case basis and take sinto account factuala nd legal context as a whole

Question 12

example cases of the principles in action

Answer 12

Marshall II [1993]- a national cap on damages for breach of directive derivative rights had to be disapplied because of the need to ensure an effective judicial remedy

factortame [1990]- a national rule preventing interim relief in the case of a breach of a union law right had to be set aside. in pursuit of the duty of loyal co-operation

Question 13

scholars for this topic

Answer 13

Steiner and woods- against- may be circusmatnces in which an equiavalenet domestic remedy does not exist

Question 14

discussing how this relates to uniformity and effectiveness

Answer 14

FOR- decentralized nature means lack of uniformity and effectiveness (external customs policy)

-Doctrine of Equivalence, established in Rewe 1976…
- reflected in the case of Levez 1998 whereby the court held that, in regards to a preliminary ruling regarding a time limit for bringing a claim, the limitation period will have complied with the principle of equivalence if “it be applied without distinction to infringements of community law and of national law”

-Doctrine of effectiveness, established by CJEU in case law
- reflected in the case of Cofidis 2002, whereby the council Directive 93/13 on unfair terms prevented a national court from creating a provision which prohibited them from deeming a term of contract unfair, therefore promoting the exercise of the EU law.

• byestablishing these principle the CJEU is ensuring that EU law is not discriminated against by the member states and therefore ensures that is protected in its application and can be continud to be applied consostently

-Koen Lenaerts- “in the absence of any degree of harmonisation of national procedurs and remedies, EU rights oculd be seriously weakened”
“those two principles operate as a ‘framework’ limiting and directing- but in no sense- supplamenting- the procedural autonomy of the member states”

Limitations
-While these principle may be seen as beneficial due to its flexibileness and effectiveness, this may be considered a limitation to ensurance of uniformity.

-cofidis [2002]- case decisions “merely the result of assessments on a case by case basis”
-in Van Schijndel 1995- the principle of judicial passivity was compatible with the exercise of EU rights as the CJEU ruled that national court did not have a duty to apply EU law.
-in comparison to peterbroeck 1995- whereby the application of national rules did render the exercise of EU rights excessively difficul as the CJEU rules that national court do have a duty to ensure EU law is applied properly.

-craig and burca- “this results in a substantial continuining flow of litigation”