Topic 5: Enforcement of EU Law

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Introduction

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 European Law has direct
effect and therefore can be
invoked in national courts as
Supremacy means that EU
an interpretive aid and, in
law also takes priority over
appropriate circumstances,
inconsistent national law
can give rise to enforceable
rights as against the State or
other private parties
The principles of Supremacy and Direct Effect help to ensure
the effectiveness of EU law

However, these principles are reinforced by a number of other

important procedures that help to secure the effectiveness of EU
law

In this set of lectures, we will review these procedures

The four procedures or doctrines we will look at
are as follows

1 Remedial Control of National Procedural

Autonomy

2 The Commission Enforcement Procedure

3 The Doctrine of State Liability

4 The Preliminary Reference Procedure

Lecture 5 Remedial Control of National Procedural
17
Autonomy

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 17.1
Decentralized Enforcement of EU Law

17.2 of Equivalence
Principle

17.3 of Effectiveness
Principle
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 Decentralized Enforcement of EU
5.1 Law
The EU system as a whole relies on the national administrative and judicial
structures to enforce and implement EU law. Member States determine the
procedural conditions and remedies for enforcing EU Law and any rights that
stem from it.

This is despite the important role played by the Commission in co-

ordinating overall policy implementation, legislative standard setting and in
adjudicative and enforcement functions generally

A good example of this is the area of external customs policy. The EU

controls this area of policy and sets the overall legislative framework. In
practice, the Member States will be responsible for policing and levying
any charges on imported goods into the EU
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The Treaty basis for the role of Member States in the implementation of EU
law is Article 4(3) TEU. The article sets out what is termed the principle of
loyal co-operation: a duty which Member States owe to the EU
Article 4(3) TEU is set out as follows

Pursuant to the principle of sincere cooperation, the Union

and the Member States shall, in full mutual respect, assist
each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure,
general or particular, to ensure fulfilment of the obligations
arising out of the Treaties or resulting from the acts of the
institutions of the Union. The Member States shall facilitate
the achievement of the Union's tasks and refrain from
any measure which could jeopardise the attainment of
the Union's objectives. [Key passage in bold]
The key elements of the duty of loyal co-
operation, as set out in Article 4(3) are

1 The duty to facilitate the achievement of the

Unions tasks and

2 The duty to refrain from any measure, which

could jeopardize the attainment of the Unions
objectives
 It should also be noted that the
right to effective judicial protection The right to an effective judicial
(contained in article 47 of the EUs remedy is also set out in art. 19(1)
Charter of Fundamental Rights) is TEU (after Lisbon)
also implemented via the duty of
loyal co-operation

Member States shall provide The national courts co-operate in

remedies sufficient to ensure the creation of effective judicial
effective legal protection in the protection for rights stemming
fields covered by Union law. from EU law
The overall picture then for the EU is one of administrative and
judicial decentralization subject to the duty of loyal co-operation.
The position on this point was set out in Case 33/76 Rewe v
Landwirtschaftskammer fr das Saarland [1976] ECR 1989

As we will see, the CJEU has evolved some important doctrines

that constrain and regulate the way in which the Member States
perform their tasks within the EUs decentralized administrative
system

These doctrines flow from the general duty of loyal co-operation

 It controls the
It is important to way in which
note that, as a existing national
It also controls
general point, the procedural and
the way in which
line of case law remedial law is
national courts
developing the applied to the
interpret the
two principles of case in hand (see
remedies they
equivalence and Case 158/80
have at their
effectiveness Rewe-
disposal (as
does not ground Handelgesellscha
stated in the Von
the production of ft Nord v
Colson case)
new European Hauptzollamt Kiel
law [1981] ECR
1805).
 Sometimes, the CJEU can insist that a remedial
consequence flows from an existing European right

For example, in Case 199/82 Amministrazione delle

Finanze dello Stato v San Giorgio [1983] ECR 3595, a
State breached a free movement rule by imposing a
levy on a company. It was held that a corollary of the
free movement right included the right to a remedial
response in case of breach

** It should be noted that this requirement of a remedial

response does not however stem from the duty of loyal
co-operation but from the substantive right itself.
Sometimes, a new remedy may need to be created by a Member State as a
result of the more general right to effective judicial protection enshrined in
the Charter of Fundamental Rights and in article 19(1) TEU

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Case C-432/05 Unibet Ltd v Justitiekanslern [2007] ECR 1-
2271 explained (paras. 40-2)

40. Although the EC Treaty has made it possible in a number of

instances for private persons to bring a direct actionbefore
the Community Court, it was not intended to create new
remedies in the national courts to ensure the observance of
Community law other than those already laid down by national
law.
41. It would be otherwise only if it were apparent from the
overall scheme of the national legal system in question that no
legal remedy existed which made it possible to ensure, even
indirectly, respect for an individuals rights under Community
law

42. Thus, while it is, in principle, for national law to determine

an individuals standing and legal interest in bringing
proceedings, Community law nevertheless requires that the
national legislation does not undermine the right to effective
judicial protection. It is for the Member States to establish a
system of legal remedies and procedures which ensure respect
for that right.
We will now turn to a review of the principle of equivalence in
the next section followed by the principle of effectiveness in the
last section
 17.2 Principle of Equivalence

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Actions based upon EU law undertaken in national courts
should not be supported by less favourable remedies and
procedural rules than those available in respect of equivalent
actions based upon purely national law (Case 33/ 76 Rewe-
Zentralfinanz v Landwirtschaftskammer fr das Saarland
[1976] ECR 1989 and Case 45/ 76 Comet BV v Produktschap
voor Siergewassen [1976] ECR 2043)
The boundaries of the principle of
equivalence have inevitably been
tested by litigants seeking to Case C-326/ 96 Levez [1998]
obtain the maximum possible ECR I-7835
remedial redress for successful
claims based on EU law

The first stage concerns when a

Union and domestic claim will be
considered sufficiently similar to
found the basis of an appropriate
comparison. This is, in principle, a
matter to be determined by the
national court
The national courts assessment
should be guided by the objective
or purpose of the actions in
question, determined in the light of
their essential characteristics
For example, the remedy provided for a breach of EU law by a
Member State against an individual would not be comparable
to a remedy for the breach of an obligation in private law
between two individuals
17.3 Principle of Effectiveness

This principle sets out a requirement that national

remedies and procedural rules should not render the
exercise of Union rights virtually impossible or
excessively difficult

It is different from the principle of equivalence in so

far as it prescribes a minimum standard of remedial
provision for EU law rather than an equivalent
provision

This may mean that a higher standard of remedial

provision for EU law than otherwise available for
national law will be required.
 What exactly the principle
requires depends on the In working out the
way in which the CJEU implications of remedial
assesses the remedial effectiveness, the CJEU can
response available in develop the law in
particular circumstances significant ways

The case-law tends to

balance the need to ensure This balancing is largely
the effectiveness of EU law done on a case-by-case
against a respect for the basis and general principles
autonomy and are difficult to extract from
distinctiveness of Member the decisions that have
State legal procedures been made

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 According to this
case decisions on
the adequacy of
national remedies
is merely the
result of
assessments on
A general a case by case
statement of the basis, taking
Case C-473/ 00
balancing account of each
Cofidis [2002]
process is cases own
ECR I-10875
contained in factual and legal
Cofidis:- context as a
whole, which
cannot be applied
mechanically in
fields other than
those in which
they were made.
(para.37)
Another statement of the balancing exercise was
made in the Van Schijndel case

Cases C-430-431/93 Van Schijndel [1995] ECR 1-

4705
For the purposes of applying these principles [relating to the
effectiveness of national remedies], each case which raises
the question whether a national procedural provision renders
application of Community law impossible or excessively
difficult must be analysed by reference to the role of that
provision in the procedure, its progress and its special
features, viewed as a whole, before the various national
instances. In the light of that analysis the basic principles of
the domestic judicial system, such as protection of the rights
of the defence, the principle of legal certainty and the proper
conduct of the procedure must, where appropriate, be taken
into consideration. (para. 19)
A general analysis of the case law is extremely
difficult because of the variety of context
specific balancing exercises undertaken by the
CJEU

A general overview of the case law tends to

divide it into three distinct periods of time during
which, so it is argued, a specific approach was
adopted to the CJEUs exercise of its review of
national remedies and procedures

This approach to the analysis of the case law is

still set out in important authoritative texts like
Craig and de Burca and Wyatt and Dashwood
The first phase in the case law is said to be an early period of
deference during which the CJEU took a cautious approach and
emphasized the idea of national procedural autonomy

A second phase during the early 1990s in which the CJEU

began to take a more forceful approach to challenging the
adequacy of national remedies, placing a great deal of emphasis
on the need to ensure the effectiveness of EU law

From 1993, it is argued that the Court has sought to achieve a

balance between national procedural autonomy and the need for
the effectiveness of EU law
 An alternative view to this narrative advanced by
Dougan is that the CJEU always sought such a
balance but that the variability of the approach of the
case law is down to the highly context-specific nature
of the analysis

For practitioners and researchers, this is the key point:

to pay close attention to the context of each case and
to build up an awareness of the variety of factors that
might lead to a successful challenge against a
national remedial limit to the effectiveness of an EU
right.

It should be noted that one of the key factors is

whether the right to judicial protection is at stake
alongside the duty of loyal co-operation to reinforce
the principle of effectiveness
 Finally, on the
They also basis of the
affirmed at a effective
Simmethal In consequence
Striking remedies
Simmenthal, it that Member
examples of principle, they
will be State courts
the remedial affirmed that
recalled, the were obliged
responses this obligation
European to set aside
that the CJEU needed to be
Courts national legal
was capable discharged
reaffirmed the provisions in
of influencing immediately
principle of conflict with
include:- regardless of
Supremacy EU law national
procedural
rules
Marshall II
A case in which a
national cap on
damages for breach of (Case C-271 Marshall
Directive derivative v Southampton and
rights had to be South-West
disapplied because of Hampshire Area
the need to ensure an Health Authority [1993]
effective judicial ECR I-4367)
remedy
 Factortame

A national rule preventing interim relief in the

case of a breach of a Union law right had to
be set aside. This was in pursuit of the duty
of loyal co-operation under article 4(3) (Case
C-213/89 R v. Secretary of State for
Transport, ex parte Factortame Ltd. and
Others [1990] ECR I-2433)
 Levez

The national limitation periods on an

equality claim could be set aside where
the claimants initial error as to their
rights was encouraged by the employer
(Case C-326/ 96 Levez v Jennings
(Harlow Pools) [1998] ECR I-7835)
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