Remedies in National Courts: EU Law

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  • Created by: Calgary
  • Created on: 14-05-12 15:06

European Union Law: Remedies in National Courts

  • European Law creates 'rights' for individuals, Where EU law is directly effective, National administrations and courts must apply its provisions. Where not directly effective they must interprit their national law 'as far as possible' in line with EU law.
  • BUT if ind. wishes to enforce rights in nat courts, what can they do if there are no 'proceduarl devices' available to bring an action? Each 'right' must have a 'remedy'.

Limiting the Principle of National Authority:

  • Early case law recognised principle of national procedural autonomy.This means European law must be enforced through use of national remedies. No special remedies invented for euro law.
  • Case: Rewe-Zentralfinanz: 'it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of [European] law'
  • Case: Rewe Handelsgesellschaft: 'it was not intended to create new remedies in the national courts to ensure the observance of [Union] law other than those already laid down by national law.'
  • However, Court of Justice qualified national autonomy through 2 principles:
    • equivalence: nat remedies must be extended to breach of EU law - must be same procedural remedies available. Doesn't alter content of procedural rule.
    • effectiveness: change of substance, alter content. National rem insufficient where they render app of eu law impossible.
  • These 2 P's have grown in  strength over last 50 yrs. Led to de facto harmonization of national procedural laws.

Development of equivalence principle: extension of nat procedural law to eu law, procedural rules must not discrimniate and remedies must be 'equivalent'.

Development of effectiveness principle: equivalence only extended scope of nat remedies to European rights.EU law didnt affect substance of these remedies. Effectiveness principle has much higher potential to interfere with national leg. Tensions between principle and idea of nat autonomy and 'no new remedies'.

  • Court shifted principle from negative requirement of 'non-impossibility' to positive requirement of the adequacy of nat remedy. Comes close to re-writing nat remedies.
  • Court may have thought to great an intrusion on nat procedural autonomy as a second jurisprudential line in 90's signified a partial judicial retreat. Makes intrusion dependant on nature of EU right at stake.
  • Case: Steenhorst v Neerings - seemed to overrule broader principle that mem state cant rely on domestic procedural limitations.
  • Balancing approach found? Between the equivalence and effectiveness principles and the prima facie principal of national procedural autonomy. A proportionality test for weighing restrictive effect of nat rule on a particular union right against legitimate aim served by that rule…


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