Judicial implementation of EU law Professor Eleftheria Neframi
University of Luxembourg
Key words: remedies, procedural autonomy, effectiveness, effective judicial protection, preliminary reference, loyal cooperation
Abstract
The seminar analyses the obligation of the Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law (Article 19 TEU). The duty of the national judge, stemming from fundamental EU law principles, to ensure effective implementation of EU law and effective judicial protection, is to be considered in the light of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights, which affects the balancing exercise with national procedural autonomy. The particular place and function of the preliminary reference procedure (Art 267 TFEU) in the legal order of the European Union may shed light on the impact of Article 19 TEU on the European mandate of the national judge.
The role of the domestic courts in the implementation of EU law has been in the origin of the acknowledgement of fundamental principles of the EU legal order, such as direct effect and primacy, but also effective judicial protection. In Simmenthal and Factorame, the Court of Justice recalled that since the task of the national courts is to apply EU law in areas within their jurisdiction, they must “ensure that those rules take full effect and must protect the rights which they confer on individuals”1. Ensuring full effect of EU law, as well as effective judicial protection while implementing EU law, is a double obligation, which affects both substantive and procedural national rules. The national judge has the task to set aside national substantive rules in conflict with EU law, but also national procedural rules, which impede the full judicial implementation of EU law and/or effective judicial protection.
After setting the legal framework through the principles governing the Member States’ and the national judges’ obligations (I), the seminar explores the interaction of those principles in the exercise of the European mandate of the national judge, aiming at ensuring effective implementation of EU law (II), as well as effective judicial protection (III). The analysis leads to the key role of the preliminary reference procedure, as expression of a European standard of judicial protection through a composite judicature (IV).
I. The legal framework
Starting from the fundamental principle of conferral (Art 5 TEU), it is to be emphasized that judicial implementation of EU law falls under a Member State sphere of competence (Art 291 TFE). However, beyond being a reserved sphere of action, implementation of EU law is at the same time an obligation incumbent to the Member States following the principle of loyal cooperation (Art. 4(3) TEU). Required to take
1 Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal SpA, EU:C:1978:49, para 16, and Case C-213/89 Factortame, EU:C:1990:257; para 19.
any appropriate measure, general or particular, to ensure fulfillment of EU law obligations, as well as to facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives, the Member States have the obligation to ensure effective judicial implementation of EU law. Such an obligation, stemming from the duty of loyalty, is to be balanced with the principle of procedural autonomy of the Member States, stemming from the principle of indirect administration expressed in Art 291 TFEU, in the absence of secondary EU procedural law.
The balancing exercise between effectiveness and procedural autonomy is to be accomplished by the national judge, under the auspices of the Court of Justice, through the preliminary reference procedure. At the same time, since the entry into force of the Lisbon Treaty, Article 19 (1) TEU reaffirms the obligation of the Member States to “provide remedies sufficient to ensure effective legal protection in the fields covered by European Union law”. Whereas the obligation of the Member States to provide remedies is the expression of the loyalty obligation to ensure effective implementation of EU law by the national judge, and thus limits the national procedural autonomy, the reference to effective legal protection raises the question of the role of Article 47 of the Charter, of the fundamental right to an effective judicial protection. It should be noted that the adoption of procedural/remedial directives, such as the competition damages directive (2014/104) or the procurement remedies directives (89/665, 92/13, 2007/16), implies an obligation of effective implementation which is at the same time an obligation of judicial protection, and affirms the possibility of the Union to intervene in the implementation sphere.
The relationship between effectiveness and effective judicial protection is not clear. It is necessary in that regard to analyse the double European mandate of the national judge, to ensure effective implementation of EU law, as well as effective judicial protection.
II. The domestic courts and effective implementation of EU law
Judicial implementation of EU law is first of all, and according to the principle of conferral, governed by the principle of procedural autonomy. It is established case law that “in the absence of EU rules governing the matter, it is for each Member State, in accordance with the principle of the procedural autonomy, to lay down the detailed rules of administrative and judicial procedures governing actions for safeguarding rights which individuals derive from EU law”.
However, national rules should not affect the implementation of EU law, and national procedural autonomy is limited by the principles of equivalence and effectiveness, affirmed in Rewe2. The principle of equivalence, according to which actions based on an infringement of national law and similar actions based on an infringement of EU law be treated equally, is the expression of that of non-discrimination. The principle of effectiveness, according to which national procedural rules should render impossible or excessively difficult the benefit of rights deriving from EU law, is the expression of the principle of loyalty. That leads to a balancing exercise between effective implementation and national interests (for example, legal certainty, where
2 Case 33-76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland, EU:C:1976:188.
effectiveness impacts on res judicata, or procedural protection where effectiveness impacts on ex officio review).
In the absence of secondary EU law concerning national remedies, effective implementation of EU law is thus balanced with national procedural autonomy in the light of a negative approach of effectiveness (do not render impossible or excessively difficult the judicial protection). It derives from the case law of the Court of Justice that Article 47 of the Charter does not have particular impact and that effectiveness (in the sense of Rewe judgment) absorbs effective judicial protection3.
Consequently, the obligation of the Member States to provide remedies sufficient to ensure effective judicial protection (Art 19 TEU) does not link procedural autonomy to the fundamental right of Art. 47 of the Charter. The effective judicial protection obligation has however an autonomous significance with regard to the existence of remedies: Member States must ensure access to a judge4. If access to a judge is ensured, the national procedural rules are assessed with regard of their impact on the effective implementation of EU law. It is incumbent to the national judge to proceed to such a balancing exercise with national interests, to set aside national procedural rules, or to interpret national law in conformity with EU law5.
III. The domestic courts and effective judicial protection
The relationship between Rewe effectiveness and effective judicial protection is not clear in the case law of the Court of Justice, while it has significant impact on the balancing with national rules. Balancing national rules with Article 47 of the Charter means that such rules, affecting effective implementation of EU law providing rights to individuals, are considered as a limitation to a fundamental right, justified only under the conditions of Article 52 of the Charter. In contrast, balancing national rules with Rewe effectiveness implies only a negative limit to the principle of procedural autonomy.
In the absence of secondary EU law concerning national remedies, Rewe effectiveness absorbs effective judicial protection. However, Article 47 of the Charter acquires an autonomous dimension in the context of judicial implementation, as far as the normative objective of the implemented EU law is judicial protection. In other words, where the national judge is required to ensure effective implementation of procedural / remedial secondary EU law6, the balancing exercise is placed under the scope of Article 47 of the Charter and EU law is to be interpreted in the light of the right to an effective remedy.
Under this perspective, the balancing between national procedural autonomy and the fundamental right of Article 47 of the Charter does not derive from the requirement or Article 19 TEU, but from EU secondary law itself. However, Article 19 TEU comes
3 Case C-432/05, Unibet (London) Ltd, EU:C:2007:163; Joined Cases C-317/08, C-318/08, C-319/08 and C-320/08, Rosalba Alassini, EU:C:2010:146.
4 Case C-279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH, EU:C:2010:811;
Case C-562/12, Liivimaa Lihaveis MTÜ, EU:C:2014:2229.
5 Case C-441/14, Dansk Industri (DI), ECLI:EU:C:2016:278.
6 Case C-61/14, Orizzonte Salute — Studio Infermieristico Associato, EU:C:2015:655.
into consideration as an obligation to ensure effective judicial protection, with regard to the preliminary reference for validity. It stems from the case law of the Court of Justice7 that Member States have to ensure effective judicial protection where the admissibility of an action for annulment does not meet the requirements of Art 263 TFEU. Member States have thus the obligation to provide a complete system of remedies, ensuring that the national judge fulfills the role of EU judge, part of the judicial system of the Union through the preliminary reference for validity when challenging national implementing measures.
IV. Loyal cooperation through preliminary reference as expression of an autonomous standard of judicial protection
Recent case law of the Court of justice underlines the importance of the preliminary reference procedure, considered as the keystone of the judicial system of the Union8. Through Article 267 TFEU, the national court, in collaboration with the Court of Justice, fulfils a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed9. The Member States’ obligation to provide effective remedies, stemming from Art. 19 TEU, finds a particular expression in the obligation to ensure the functioning of the preliminary reference procedure despite national procedural rules, as well as the effect of preliminary decisions despite national substantive or procedure rules, and to sanction, through Köbler liability10, the absence of preliminary reference. Taking into consideration the link between preliminary reference procedure and the right to a fair trial in the case law of the European Court of Human Rights11, it could be considered that Article 19 TEU finds its autonomous dimension in the obligation to ensure the place of the national judge in the judicial system of the Union through Article 267 TFEU. This provision is indeed more that an procedural provision, it constitutes a substantive obligation covered by the duty of loyal cooperation12. In that sense, it could be considered that the composite judicial system of the Union through the cooperation between the national judge and the Court in view of the effective implementation of EU law, is the expression of an EU standard of judicial protection. However, the question is to know whether the preliminary reference procedure is to be considered as a remedy in the sense of Article 19 TEU, and thus if it entails a right for the individuals.
Selected Reading Books
M. CLAES, The National Court’s Mandate in the European Constitution, Oxford, Hart Publishing, 2006.
7 Case C-583/11 P, Inuit Tapiriit Kanatami, EU:C:2013:625.
8 Opinion 2/13, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, EU:C:2014:2454, para 176.
9 Opinion 1/09, Draft agreement - Creation of a unified patent litigation system, EU:C:2011:123, para 69.
10 ECJ, 30.9.2003, Köbler, C-225/01.
11 ECtHR, Dhahbi v Italy, 8.04.2014.
12 Case C-112/13, A v B and Others, EU:C:2014:2195; Case C-614/14, Ognyanov, EU:C:2016:514.
D-U GALETTA, Procedural Autonomy of EU Member States: Paradise Lost?, Berlin, Springer, 2010.
M. KLAMERT, The Principle of Loyalty in EU Law, Oxford University Press, 2014.
H.-W. MICKLITZ, B. DE WITTE (eds), The European Court of Justice and the Autonomy of the Member States, Cambridge, Intersentia, 2012.
E. NEFRAMI (ed), Preliminary Ruling Procedure and Margin of Appreciation of the National Judge, Larcier, 2015.
F. WILMAN, Private Enforcement of EU Law Before National Courts, Edward Elgar, 2015.
Articles:
A. ARNULL, “The Principle of Effective Judicial Protection in EU Law: an Unruly Horse?”, ELRev. 2011, vol. 36, pp. 51-70.
M. DOUGAN, “The Vicissitudes of Life at the Coalface: Remedies and Procedures for Enforcing Union Law before the National Courts”, in P. Graig, G. de Burca, The Evolution of EU Law, Oxford University Press, 2011, 407-438.
O. DUBOS, “The Origins of the Proceduralisation of EU Law: a Grey Area of European Federalism”, Review of European Administrative Law, vol. 8, 2015, pp. 7- 25.
S. PRECHAL, R. WIDDERSHOVEN, “Redefining the Relationship between Rewe- effectiveness and Effective Judicial Protection”, Review of European Administrative Law, vol. 4, 2011, pp. 31-50.
M. SAFJAN, D. DÜSTERHAUS, “A Union of Effective Judicial Protection:
Addressing a Multi-level Challenge through the Lens of Article 47 CFREU”, Yearbook of European Law, Vol. 33, No. 1, 2014, pp. 3–40.
