National Procedural Autonomy and State Liability
1. National Procedural Autonomy
C-33/76 Rewe-Zentralfinanz and C-45/76 Comet
National courts are deemed to have autonomy to determine procedural rules
in cases involving EU law, subject to the principles of equivalence and
effectiveness.
Equivalence = national procedural rules cannot be less favourable than those relating
to similar actions of a domestic nature.
Effectiveness = it must not be impossible to ensure respect for an individual’s rights
under domestic law.
2. Period of judicial activism:
Dominated by the increasing frequency and vitality of EU intervention in the national
systems of judicial protection.
Dougan: this was achieved almost entirely through a renewed conception and
application of the principle of effectiveness.
The key underpinning justification given by the CJEU is ensuring the
effectiveness of EU law.
BUT – this justification has often been lacking in the Court’s
judgement and perhaps this idea of effectiveness does not go far
enough to sufficiently justify the principle of Member State liability.
The Court has focused too much on upholding effectiveness
in the abstract without considering the actual indirect
consequences of the decision which may, ultimately, lead to
undermining the effectiveness the Court so desperately seeks
to protect.
a. Francovich:
C-6/90 & 9/90 Francovich – concerned a claim against the Italian state for damages
to compensate the claimant for losses on account of a failure to implement the
Insolvency Protection Directive.
Court’s judgement was revolutionary, holding for the first time that EU MS
could be liable to pay compensation to individuals who suffered a loss by
reason of that MS’s failure to transpose an EU directive into national law.
In other words, they had to “make good loss and damage”.
Justification = “the full effectiveness of Community rules would be impaired and the
protection of the rights which they grant would be weakened if individuals were
unable to obtain redress when their rights are infringed by a breach of Community
law for which a Member State can be held responsible”.
As such, the principle of state liability was inherent in the system of the
Treaty.
Clear that the key underpinning justification is ensuring the effectiveness of
EU law.
Departure from NPA – says no new remedies.
Is this justification enough?
In the Francovich ruling, the focus on ensuring the effectiveness of EU law
was arguably necessary.
Dougan – if the Court had placed its faith in the underlying adequacy (and
therefore equivalent application) of domestic rules, that faith would have
been overly optimistic.
He relies on disputes such as Von Colson on compensation to victims
of sex discrimination and Factortame (No.1) on interim relief for the
protection of Community rights as evidence that national law often
offered less than satisfactory levels of protection and as such EU
intervention was necessary to fully protect the rights of individuals.
1. National Procedural Autonomy
C-33/76 Rewe-Zentralfinanz and C-45/76 Comet
National courts are deemed to have autonomy to determine procedural rules
in cases involving EU law, subject to the principles of equivalence and
effectiveness.
Equivalence = national procedural rules cannot be less favourable than those relating
to similar actions of a domestic nature.
Effectiveness = it must not be impossible to ensure respect for an individual’s rights
under domestic law.
2. Period of judicial activism:
Dominated by the increasing frequency and vitality of EU intervention in the national
systems of judicial protection.
Dougan: this was achieved almost entirely through a renewed conception and
application of the principle of effectiveness.
The key underpinning justification given by the CJEU is ensuring the
effectiveness of EU law.
BUT – this justification has often been lacking in the Court’s
judgement and perhaps this idea of effectiveness does not go far
enough to sufficiently justify the principle of Member State liability.
The Court has focused too much on upholding effectiveness
in the abstract without considering the actual indirect
consequences of the decision which may, ultimately, lead to
undermining the effectiveness the Court so desperately seeks
to protect.
a. Francovich:
C-6/90 & 9/90 Francovich – concerned a claim against the Italian state for damages
to compensate the claimant for losses on account of a failure to implement the
Insolvency Protection Directive.
Court’s judgement was revolutionary, holding for the first time that EU MS
could be liable to pay compensation to individuals who suffered a loss by
reason of that MS’s failure to transpose an EU directive into national law.
In other words, they had to “make good loss and damage”.
Justification = “the full effectiveness of Community rules would be impaired and the
protection of the rights which they grant would be weakened if individuals were
unable to obtain redress when their rights are infringed by a breach of Community
law for which a Member State can be held responsible”.
As such, the principle of state liability was inherent in the system of the
Treaty.
Clear that the key underpinning justification is ensuring the effectiveness of
EU law.
Departure from NPA – says no new remedies.
Is this justification enough?
In the Francovich ruling, the focus on ensuring the effectiveness of EU law
was arguably necessary.
Dougan – if the Court had placed its faith in the underlying adequacy (and
therefore equivalent application) of domestic rules, that faith would have
been overly optimistic.
He relies on disputes such as Von Colson on compensation to victims
of sex discrimination and Factortame (No.1) on interim relief for the
protection of Community rights as evidence that national law often
offered less than satisfactory levels of protection and as such EU
intervention was necessary to fully protect the rights of individuals.
