⇒ This means that states, including the courts, need to sincerely cooperate with the EU i.e. they are under an obligation to cooperate with the EU

⇒ “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.”

• So this is important as it means the Member States have to provide the remedies, NOT the EU

⇒ “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article.

⇒ Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

⇒ 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.”

⇒ "In the absence of [Union] rules it is for the domestic systems of each Member State to designate the courts having jurisdiction and the procedural conditions governing actions at law intended to ensure the protection of the rights which subjects derive from the direct effects of [Union] law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature nor render virtually impossible or excessively difficult the exercise of rights conferred by [Union law]" - Rewe Zentralfinanz; Peterbroeck; Van Schijndel

1. The principle of national procedural autonomy (‘it is for the domestic systems of each Member State to designate… effects of [Union] law’).
• This idea of procedural autonomy underpins all of the cases and discussion in this area – it means that as much as possible they want to leave it to the national courts and the national Member States to decide how to implement these sorts of remedies
2. The principle of non-discrimination (‘conditions cannot be less favourable than those… of a domestic nature’).
• This is about equivalence – meaning that these measures should be equivalent to all people of all different Member States
3. The principle of effectiveness (‘nor render impossible or excessively difficult the exercise of rights conferred’) → The remedy must be effective

⇒ Autonomy means self governance (particularly in relation to the remedies that are available to it’s citizens)

• So it’s left up to the Member States to introduce remedies: this can lead to difficulties

Von Colson case:

⇒ 2 women applied for jobs but did not get them because of discrimination on grounds of gender

⇒ When it came before the national court they were under an obligation to provide them with some sort of remedy

⇒ Damages given were their travel expenses (the question was whether or not this was an effective remedy? Is this a proper remedy in this sort of case?)

⇒ The CJEU held that if a Member State wishes to penalise a breach by awarding compensation, then in order for it to be effective and have a deterrent effect, then the compensation must be adequate in relation to the damage sustained and must amount to more than purely nominal compensation

• In this case the damages were not effective and the women were entitled to more than just travel expenses (which are nominal)

⇒ Remedies must be effective (Von Colson)

• Without recompense rights have little (or no) value.
• Any compensation must make the violation of EU law seem less attractive.

Beyond Von Colson:

⇒ Dekker case:

• A lady was not employed because she was pregnant.
• The National court, in this case, had a system in place where if something was the defendant's fault then there is no need to give a remedy/compensation i.e. she got herself pregnant, so is her fault, and therefore no need to give compensation
• It was held: if there is any sex discrimination of any form then they (Member State, employer, etc.) will be fully liable!
• This case pushed the boundaries of effectiveness and took a broad approach to remedies

⇒ Marshall (No 2) case:

• The national court had a statutory ceiling on the amount of damages that could be awarded in this case
• Jurisdictional limit against the Tribunal awarding interest.
• So the employment tribunal in the case were barred from awarding interest (e.g. this case had been going on for 7 years so we are going to add interest onto your remedy so you get extra money)
• ECJ HELD: where damages were awarded for breaches of individuals’ rights under the directive, national courts must provide ‘full’ compensation including interest on the award from the date of judgment.
• So, the fixing of an upper limit of damage in this case was held incompatible with EU law... (He should have got more damages)
• So fixing an upper limit on the amount of damages that could be claimed meant the remedy was not effective → this is broad

R v Secretary of State for Social Security, ex parte Sutton:

⇒ A woman tried to claim some sort of disability benefit and wanted the amount of money to be the same between both men and women

⇒ But, she wanted the money backdated (e.g. recover money from past years), but there was a statutory bar on backdated payments of interest

⇒ BUT ECJ HELD: benefits in no way constituted reparation for loss or damage sustained... with the result that the payment of interest cannot be required → it is not an effective remedy

Draehmpaehl v Urania Immobilienservice:

⇒ Job advertised to only female applicants

⇒ The national court held a 3–month statutory limit on compensation for job applicants subjected to discrimination was unacceptable (an aggregate 6-month statutory limit on claims brought by multiple job applicants for the same vacancy was also unacceptable)

⇒ ECJ HELD: they agreed this was not an acceptable remedy

• 3 month limit only acceptable if the employer could prove the applicant would not have got the job if there had not been discrimination. Otherwise compensation would not be sufficient.

Emmott case:

⇒ Ireland had not implemented a directive so individuals were unable to ascertain the full extent of their rights

⇒ Because of this delay caused by the state, the applicant missed the national time limit to bring proceedings

⇒ ECJ HELD: The competent authorities of Member States cannot rely, in an action against them based on the directive, on national procedural rules relating to time limits for bringing proceedings as long as that Member States has not properly implemented that directive into national law.

• So they cannot rely on their own stupidity - this is essentially an estoppel based arguments: The state cannot benefit from its own wrong doing

⇒ Problems with Emmott:

• Could cause injustice and legal uncertainty where the failure of the state was accidental
• Particularly as it deals with issues in the past (retrospective)

⇒ The approach of the ECJ has been far reaching in anti-discrimination law. In part this is because many of the sex discrimination directives have specific provisions built in for remedy.

• How has the ECJ approached other areas of law where no such provisions exist?

⇒ Challenge to British legislation and the applicants sought an interim injunction against the Crown suspending the legislation.

⇒ ECJ 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 with those requirements, which are the very essence of [Union law].

• So they effectively grant a new legal remedy in UK law but only when dealing with EU law – a substantial shift into UK’s autonomy

⇒ The full effectiveness of [Union law] would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law [now Union law] from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under [Union law].

• Shift away from the idea that national rules are the staring point for considering remedies.
• Effectiveness is prioritised over the autonomy of Member States.
• Effectiveness is the most important part of dealing with remedies in EU law

⇒ 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: A national procedural provision [which] renders application of [Union 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 the protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure must… be taken into consideration.

• Real emphasis on the importance of effectiveness over national procedural autonomy

⇒ Van Schijndel

• Impact of national rules must be analysed on the facts of each case
• Decisions should be made on a case by case basis – departing from procedural precedent based system
• Is the exercise of the Union law right rendered excessively difficult taking into account the demands of natural justice and legal certainty?
• Balancing act = national courts must weigh requirements of equivalence and effectiveness in light of aim and function of national rule

Kühne und Hetiz

⇒ Are 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 with the duty of cooperation under Article 4(3) TEU….

⇒ A) National law confers on the administrative body competence to reopen the decision.

• A number of jurisdictions can reopen a case in light of new facts etc. – not in UK though!

⇒ B) The decision became final only as a result of a judgment of a national court against whose decisions there is no judicial remedy.

• Decision of Supreme Court essentially

⇒ C) The judgment was based on an interpretation of Union law (without a reference being made) which, in light of a subsequent judgment of the ECJ was incorrect.

• So, they tried to decide on something on EU law, made a hash of it, didn’t refer it up, and later found their interpretation of EU law was incorrect

⇒ D) The person concerned complained to the administrative body immediately after becoming aware of that judgment of the Court.

• Interesting – how could you police that? How would the individual know about EU case law?

Kempter

⇒ Revised and updated Kühne und Hetiz

⇒ Asked 2 questions:

• Must the applicant in such a case have relied on EU law in his original proceedings?
• HELD: It was sufficient that the point of EU law on which the applicant could have based its claim was discussed or that the court of last instance could have raised the matter of its own motion.
• A hugely broad interpretation of effectiveness (2nd part of sentence)
• Does EU law impose a time limit in which such an action for review must be brought?
• HELD: EU law does not impose any time limit within which an application must be brought. Rather this issue falls within to be determined in accordance with national procedural rules, which must satisfy the twin tests of equivalence and effectiveness.
• Time limits come from national procedural rules, and not EU law

⇒ Rewe-Handelsgesellschaft Nord – a Member State is not required to create new remedies for Union law rights.

• Problem: sometimes the remedy is part of the substantive right.
• Customs duties: if there was no right to repayment the substantive right itself would be undermined.
• A specific EU remedy procedurally determined by national law.

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

• In Factortame, 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.
• You are creating a parallel set of different remedies – different remedies in EU law and national law, which is something they were trying not to do

⇒ ECJ consider the substance of EU rights not necessarily linked to repayment.

• Courage case
• A right of action in damages against another private party for breach of Article 101 TFEU must be available.
• The full effectiveness of Article [101]… would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition.

⇒ Antonio Muñoz Cia SA v Frumar Ltd – standards of classifying grapes.

• Civil proceedings even though the Directive 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 is directly applicable).

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

⇒ Italy – German language was to have the same status as Italian in relations between citizens of that area – did not extend to German citizens.

⇒ HELD: Discriminatory in effect contrary to Article 18 TFEU.

• Quite a broad interpretation of what equivalence might mean

⇒ Generous national rules for claiming damages vs restrictive EU rules (5 years vs 1).

• So they said when claiming damages they will allow 5 years when it is a national law and 1 year when EU law

⇒ HELD: the essential characteristics of the domestic system of reference must be examined.

⇒ The Member State must make reparation for the consequences of the loss or damage caused to the claimant on the basis of national rules of liability, provided they satisfy the requirement of effectiveness.

• There has to be some level of equivalence in these kind of cases

⇒ HELD: the principle of equivalence could not be interpreted as obliging a Member State 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.

• They were not able to cherry pick the best of both national and EU law – that is not how equivalence works

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

⇒ HELD: Member States may impose criminal penalties for the improper use of the European Social Fund even though the regulation only provided for civil use.

• As long as effective, proportionate and dissuasive

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

• Interim Relief; Challenge to Statutory Provisions; Damages; Restitution; Time Limits; State Liability

⇒ Factortame

⇒ Zuckerfabrik Süderdithmarschen AG - 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 cases of urgency – what is an urgent situation?
• c) To avoid serious and irreparable damage to the party seeking the relief – perhaps this defines the urgency a bit more?

⇒ This criteria only exists for the validity of EU law. For interpretation this test is not likely to be applied.

• For interpretation national procedural rules are likely to apply.

⇒ ECJ may disapply national law where it conflicts with EU law: Simmenthal (No 2)

• R v SoS for Employment, ex p Equal Opportunities Commission [1995] - could statutes be challenged by national courts?
• Supreme Court made a declaration of incompatibility (not previously recognised by UK law)
• Just said it was incompatible with EU law prompting the UK law to change – NOTE: this is quite a novel judgment as it is before the HRA!

⇒ National rules limiting the amount of damages awarded are unlikely to be successful.

• Particularly in sex discrimination (Directive 2002/73/EC)
• Evans Case - 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.

⇒ Once a Member State has been found to have breached Union law it must take the necessary measures to make good the lawful effects of the breach, making restitution for sums wrongfully levied as a result of that breach (i.e. customs duties)

• Humblet v Belgium

⇒ Acceptable:

• Express Dairy Foods Ltd v Intervention Board for Agricultural Produce - ‘reasonable period allowed’
• Palmisani – one year
• Preston v Wolverhampton NHS Healthcare Trust – six months
• Fantask - five years.
• As long as it does not make it practically impossible.

⇒ Range of different time limits that might be allowed and seen as reasonable – likely to be decided on a case by case basis

⇒ Reflective of the broader divisions (and cooperation) between national courts and the ECJ (for example Article 267 TFEU).

⇒ Balancing act between effectiveness and equivalence