Eu-Law Remedies In National Courts

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Previously

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National courts become EU courts to implement EU Law.

~This relationship was bilateral and horizontal but has become increasingly multilateral and vertical

Direct Effect also ensures that citizens have substantive rights.

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However

Heylens (222/86)

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means nothing unless individuals can obtain a remedy for any violation of substantive rights.

~ . free access to employment is a fundamental right which the Treaty confers individually on each worker in the [Union], the existence of a remedy of a judicial nature. against any decision of a national authority refusing the benefit of that right is essential in order to secure for the individual effective protection

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Art 4(3)

Pursuant to principles of sincere cooperation, the Union & the MS shall..

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~In full mutual respect, assist each other in carrying out tasks which flow from Treaties.

~MS shall take any appropriate measure, general or particular, to ensure fulfilment of obligations arising out Treaties or resulting from the acts of the institutions of the Union.

~MS shall facilitate achievement of the Union's tasks & refrain from any measures which could jeopardise attainment of Unions's objectives.

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Art 19 TEU

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~MS Shall provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.

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Art 47 of the Charter of Fundamental Rights

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~Everyone whose rights & freedoms by law of the Union has the right to an effective remedy before a tribunal in compliance w/ the conditions laid down in this article.

~Everyone is entitled to a fair & public hearing within a reasonable time by an independent and impartial tribunal previously established by law.

~Legal Aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

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Overview of Principles

Rewe Zentralfinanz (33/76)

Peterbroeck (C-312/93)

Van Schinjdel (C-430 and C-431/93)

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1. Principle of national procedural autonomy ('it is for the domestic systems of each MS to designate... effects of Union law')

2. Principle of non-discrimination ('conditions cannot be less favourable than those of a domestic nature')

3. The principle of effectiveness ('nor render impossible or exercise of rights conferred")

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National Procedural Autonomy

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Autonomy-- Self Governance

~Particularly in relation to the remedies that are available to its citizens.

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Effectiveness

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*Sex Discrimination

*ETD (Directive 76/207) now replaced by the Recast Directive (2006/54)

~Art 6- and obligation to provide judicial remedies for those with a substantive claim under the directive.

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Effectiveness in Sex Discrimination Law

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1.Sex Discrimination

2. ETD (Directive 76/207) now replaced by the Recast Directive (2006/54)

~~ Art 6- an obligation to provide judicial remedies for those w/ a substantive claim under the directive.

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Effectiveness in Sex Discrimination Law

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Von Colson (14/83)

~2 women applied for jobs but did not get them

~Damages given were travel expenses (effective?)

*If MS chooses to penalize breaches... by award of compensation, to ensure this is effective and has a deterent effect, compensation must be adequate in relation to the damage sustained & must amount to more than purely nominal compensation such as, e.g., reimbursement of expenses incurred in connection w/ application

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Effectiveness

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Remedies must be effective (Von Colson)

~w/o recompense rights have little or no value

~Any compensation must make violation of EU law seems less attractive.

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Beyond Von Colson

Dekker (C-177/88)

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Dekker(c-177/88) Not employed because she was pregnant.

~Claims subject to justification/fault of the defendant.

~No absolute right to compensation

~Held: any infringement of the prohibition suffices in itself to make the person guilty fully liable =Pushed boundaries of effectiveness.

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Beyond Von Colson

Marshall (No 2) (c-271/91)

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Marshall (No 2) ( C-271/91)

~ Statutory ceiling on the amount of damages.

~Jurisdictional limit against the Tribunal awarding interest.

Held: where damages awarded for breaches of individuals' right under the directive, national courts must provide 'full' compensation including interest on the award from the date of judgement.

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Limitations ?

-R v Sos for social Security, ex parte Sutton (c-66/95)

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R v SOS for Soc Sec, ex parte Sutton (C-66/95)

~ Equal treatment for men and women w/ social security

~ Statutory bar on backdated payments of interest.

~Held: benefits in no way constituted reparation for loss or damage sustained... with the result that the payment of interest cannot be required.

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Limitations?

Draehmpaehl v Urania (C-180/95)

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Draehmpaehl v Urania (c-180/95)

~Job advertised to only female applicants

~ Court held 3 months wage compensation (6 months if more appl involved)was unacceptable.

~Held: 3 month limit only acceptable if employer could prove the applic would not have gotten job if therehad not been discrimination. Otherwise compensation would not be sufficient.

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Limitations

Emmott (C-208/90)

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Individual seeking disability rights, unaware of rights at time of cause of action. When informed still in a state of uncertainty due to Irish implementation.

Held: State cannot benefit from its own wrong doing (Estoppel based arguments. Cannot rely on national procedural rules relating to time limits for bringing proceedings against an action agains them.

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Problems w/ Emmott (C-208/90)

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~Could cause injustice legal uncertainty where the failure of state was inadvertent.

~Particularly as retrospective

~Does this apply only to non or faultily implemented directives

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Beyond Emmott

Steenhorst-Neerings (C-338/91)

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Steenhorst-Neerings (cc-338/91)

~A statutory limit o the retrospective payment of invalidity benefit.

Held: Justified on basis of preserving financial equilibrium of social security funds.

~Time limits will be set aside only where they render the exercise of Union rights absolutely possible. Emmot is effectively limited to its facts.

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Problem Question

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Art 4(3) TEU

Art 19 TEU

Art 47 of Charter of Fundamental Rights

Recast Directive (2006/54)

Von Colson (14/83)

Marshall (No 2) (c-271/91)

R v SOS Soc Sec, ex parte Sutton (C-66/95)

Draehmpaehl v Urania (C-180/95)

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Effectiveness in Other Areas of Law

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~ECJ approach far reaching in anti-discrimination law. In part this is because many sex-discrimination directives have specific provisions built in for remedy.

~~How has ECJ approached other areas where no such provision exist?

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Effectiveness

Factortame I (c-213/89)

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~Challenge to British Legislation and the applicants sought an interim injunction against the Crown suspending the legislation

~Held: any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of [Union law]... are incompatible w/ those requirements, which are the very essence of [Union law]

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Significance of Factortame

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~Shift away from the idea that national rules are the starting point for considering remedies.

~Effectiveness is prioritised over the autonomy of MS

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Van Schijndel (c-430 and 431/93)

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Dutch Rule preventing national courts from referring questions to the ECJ if they have not been raised by the parties themselves.

~Court restated importance of national procedural autonomy.

Held:National procedural provision [which] renders application of [Union law] impossible or excessively difficult must be analysed by reference to role of provision, progress and special features. The principles of the domestic system such as protection of rights of defence, principle of legal certainty & proper conduct of procedure must be taken into consideration.

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Move away from Van Schijndel

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Kuhne und Hetiz (c-453/00)

National authorities bound to reopen national administrative decisions when the ECJ prove that decision to be wrong with subsequent case law?

~Ordinarily no due to legal certainty.

~However 4 circumstances in which they would be able to in conjunction w/ the duty of cooperation under Art 4(3)

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4 exceptions to Kuhne und Hetiz

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1.National law confers on the admin body competence to reopen the decision

2.Decision became final only cus of a judgment of a national court against whose decisions there is no judicial remedy.

3. The judgement was based on interpretation of Union law (w/o a reference being made) which, in light of a subsequent judgement of the ECJ was incorrect.

4. person concerned complained to the admin body immediately after becoming aware of that judgment of the court.

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Kempter (C-2/06)

Revised Kuhne

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Asked 2 questions:

1. Must applicant have relied on EU law in original proceedings

~~Sufficient if point was discussed or court of last instance could have raised matter of its own motion.

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Kempter (C-2/06)

Added two more questions to Kuhne

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2.Does EU law impose a time limit in which such an action for review must be brought.

Held: EU law does not impose time limit. determined w/ national procedural rules, must satisfy twin tests of equivalence and effectiveness.

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Creation of New Remedies

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Rewe- Handelsgesellschaft Nord mbH (158/80) - MS not required to create new remedies for union law rights

~Problem: sometimes the remedy is part of the substantive right.

~Custom duties: if there was no right to repayment the substantive right itself would be undermined

~A specific EU remedy procedurally determined by national law.

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Fine line between disapplication of national law and creation of new remedies?

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Factortame I (C-213/890

~National rules precluded the granting of interim relief by injunction against the Crown.

~Held: This rule must be set aside in EU law cases.

~EU derived rights more favourable than other rights?

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Antonio Munoz Cia SA v Frumar Ltd (c-253/00)

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~Civil proceedings even though the directives did not confer rights on individuals

~Held: a trader must be able to bring civil proceedings against a competitor to ensure that the regulation is enforced effectively (assuming it directly applicable).

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Equivalence

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~A rule which discriminates, directly or indirectly, against claimants relying on EU law will be contrary to Union law.

Criminal Proceedings against Bickel & Franz (C-274/96)

~Italy- German language to have same status as Italian between citizens of that area- not apply to German citizens. Held: Discriminatory in effect contrary to At 18 TFEU.

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Palamisani (Case c-261/95)

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~Generous national rules for claiming damages v restrictive EU rules (5 Yrs vs 1)

~Held: the essential characteristics of the domestic system of reference must be examined

~MS must make reparation for consequences of loss or damage caused to claimant on basis of national rules of liability, provided they satisfy requirement of effectiveness.

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Edis (c-231/96)

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Held: principle of equivalence could not be interpreted as obliging a MS to extend its most favourable rules governing recovery under national law to all actions for repayment of charges or dues levied in breach of union law

~National rules are thus permitted to distinguish between different circumstances such as whether public bodies are parties to action.

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Criminal Proceedings against Nunes (C-186/98)

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Criminal Proceedings against Nunes (c-186/98

~ Held: MS may impose criminal penalties for improper use of the European Social Fund even though the regulation only provided for civil use- as long as effective, proportionate and dissuasive.

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Impact of EU Law on National Remedies

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EU law does not prescribe specific remedies but in order to be effective has required some modificiations to national law.

~Interim Relief

~Challenges to Statutory Provisions'

~Damages

~Restitution

~Time limits

~State Liability

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Interim Relief

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Factortame

Zuckerfabrik Suderdithmarschen AG (c-143/88 and 92/89) Interim relief granted if

a) Serious doubts exist about the validity of the union measures on which the contested administrative decision is based

b) in case of urgency.

c) To avoid serious and irreparable damage to the party seeking the relief.

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Conditions of Interim Relief

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Criteria only exists for validity of EU law. for Interpretation of EU law this test is not likely o be applied.

~For interpretation national procedural rules are likely to apply.

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Challenge to Statutory Provisions

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ECJ may dissaply national law where it conflict w/ EU law- Simmenthal SpA (No 2) (106/77)

~R v SOS for Employment ex parte Equal Opportunites Commission [1995] - Could statutes be challenged by national courts.

~Supreme Court made a declaration of incompatibility not previously recognised by UK law).

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Damages

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National Rules limiting the amount of damages awarded are unlikely to be successful

~Particularly in sex dicrimination (Directive 2002/73/ EC)

~Evans (63/01) compensation must take into account of the effluxion of time until actual payment of the sums awarded in order to guarantee adequate compensation for the victims.

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Restitution

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Once a MS has been found to have breached Union Law it must take the necessary effects of the breach, making restitutions for sums wrongfully levied as a result of that breach (i.e customs duties). -Humblet v Belgium 6/60)

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Time Limits

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Acceptable

~Express Dairy Foods Ltd (140/79) 'reasonable period allowed'

~Palmasani - one year

~Preston v Wolverhampton NHS (c-78/98)- 6 mth

~Fantask A/S( c-188/95) - Five years- As long as it does not make it practically impossible.