At the end of the day, the keyword is effectiveness. The main techniques all have the requirement of effectiveness in common: in the Rewe and Comet line of cases, the condition that national procedural law cannot make it excessively difficult or virtually impossible to protect rights under Community law, has been labelled ‘the principle of effectiveness’. Of struc- tural supremacy, which may have given the impression of existing as a principle in Simmenthaland Factortame, it is full effectiveness and the con- comitant duty of the national courts to give full effect to Community law, which have survived as a general principle. And the fundamental right of effective judicial protection exists mainly as the duty in the hands of the
69 So for instance Case C–441/93 Panagis Pafitis and others v Trapeza Kentrikis Ellados AE and oth- ers[1996] ECR I–1347, at 69, even though the Greek court had not submitted the question.
70 For instance Case C–92/00 Hospital Ingenieure Krankenhaustechnik Planungs-GmbH (HI) v Stadt Wien[2002] ECR I–5553.
courts to provide effective protection of the rights which individuals derive from Community law. But at the end of the day, the principle of effectiveness is to be applied with reason in the national legal environ- ment, under the supervision of the Court of Justice.
5.6. CHANGING THE PERSPECTIVE: THE CREATION OF NEW REMEDIES71
In the previous pages, an attempt was made to bring some order to the case law of the Court of Justice by reference to the techniques used by the Court and with the focus on the duties of national courts. When the per- spective changes from the courts to the individual, the focus may be on remedies offered with a view to protecting Community rights. As is well- known, the Court of Justice in the butter-buying cruises case held that Community law does not intend to create new remedies in the national courts other than those already laid down by national law, while on the other hand, every type of action available under national law must also be available for the purpose of ensuring the observance of Community pro- visions having direct effect.72As has been described in the previous chap- ters, the Court has left it to national law to elaborate the specifics of the Community mandate of the national courts under the principle of national procedural autonomy, and to apply domestic remedies as long as the principle of effectiveness and equivalence are complied with. Procedural
71 This is an evergreen in the literature on Community law in national courts. Few authors will however seek to define ‘remedy’ and ‘new’. As for the latter notion, there are only so many remedies a court can offer in order to protect rights. Mostly, the ‘new’ remedy will not be so novel that it does not exist at all in the legal order of a Member State; the novelty will normally consist in the fact that a particular remedy is applied in new cases where it was not previously. The newness may have more to do with the fact that a par- ticular remedy is prescribed as a matter of Community law and that Community law requires jurisdiction of the national courts to provide that remedy. The main difficulty, however, lies in the definition of the notion of ‘remedy’, see on this, M Ruffert, ‘Rights and Remedies in European Community Law: Comparative View’, (1997) 34 CML Rev, 307; W van Gerven, ‘Of Rights, Remedies and Procedures’, (2000) 37 CML Rev, 501.
72 Case 158/80Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen v Hauptzollamt Kiel (butter-buying cruises) [1981] ECR 1805, at para 44. This was an unusual case: the plain- tiffs in the main proceedings were traders who requested the courts to require national authorities to compel a third party to comply with obligations arising from Community law in a legal situation in which that trader was not involved but was indirectly eco- nomically adversely affected by the failure to observe Community law, because of the competitive advantage enjoyed by the plaintiffs competitors as a result of the failure of the authorities to enforce Community law. The Commission pointed out that the recog- nition of a personal right to have the prescribed customs duties applied would mean that individuals could request a national court to order the proper application of Community law in cases which did not directly concern them. According to the Commission, the legal system laid down by the Treaty prescribes that only the Court of Justice had jurisdiction in connection with an infringement of the Treaty by a Member State and then only on the application of the Commission or of another Member State.
autonomy also comprises remedial autonomy: it is first and foremost for the national legal order to provide the appropriate remedies. There are sufficient reasons why this should have been the starting point for the Court, and indeed why it was the only solution available. First, the Treaty and Community law did not (yet)73provide for a separate set of remedies.74 On the contrary, the Treaty lacks a system of sanctions for breaches of Community law and of remedies for the individual whose rights have been violated by a Member State75or by an individual.76While the Treaty does provide for some, albeit limited, causes of action against the institu- tions and some protection of their rights in case of violations committed by them,77there is hardly anything to protect the individual from viola- tions by national authorities. In the absence of sanctions and remedies provided in the Treaties, the Court had to mould them in its case law.
Second, the Court did not wish to legislate detailed rules on remedies itself, leaving that for the Community legislature. Working out the details of available remedies does not seem part of the judicial function. In the absence of Community remedies, the only way forward was to rely on existing national remedies. Third, and irrespective of whether Community remedies would be created in legislation, there is much to be said for national procedures and remedies: in many areas of law, Community law and national law are so intertwined, that a separate set of Community pro- cedures and remedies may complicate matters, rather than making them easier. In addition, national remedies are what national courts and the legal community in a given Member State are familiar with.
However, the Community rights/national remedies system would soon prove insufficient to secure the full and effective enforcement of Community law in the Member States and to ensure the effective protec- tion of the Community rights of individuals. The Court would soon start to interfere with national remedies. The deficiencies of the system result from the limits of direct effect on the one hand and the unsuitability at times of national remedies on the other. The main problem with direct
73 The Court did predict that there would be harmonization of remedies at some stage and in its national procedural and remedial autonomy mantra, the Court often refers to ‘the present state of Community law’.
74 There is a tendency now to prescribe remedies in Community legislation.
75 As for infringements of Community law by the Members States, the Treaty only provides for the public enforcement mechanism of Article 226 EC, which does not formally involve the individual – in practice, most enforcement procedures are instigated upon complaints from individuals. The penalty payments or lump sums which since the Treaty of Maastricht may be imposed on the defying Member State under Article 228(2) EC do not benefit the individual.
76 The exception is Article 81(2) EC that provides that agreements concluded in violation of Article 81 (1) are automatically void. This sanction is however not concerned with reme- dying damage suffered by other individuals.
77 In Articles 230(4) and 288(2) read in conjunction with Article 235 EC.
effect as the basis for the judicial protection of individual Community law rights was, most strikingly, the lack of direct effect of directives in hori- zontal relations, which left a serious gap in the protection of individual rights. Non-implementation is a common violation, and it often causes damage to individuals, as many directives are intended, directly or indi- rectly, to benefit individuals, as entrepreneurs, consumers, tourists and so on. Direct effect, either on its own or in combination with supremacy could not secure a remedy for the individual in horizontal relationships.
The Court attempted to fill the gap by having recourse to the old and familiar technique of conform interpretation, which would allow the courts to offer an adequate remedy.78Yet, there are limits to what a court can achieve by way of conform interpretation, mostly because of the lim- its of the judicial function: the courts may interpret or construe the law made by the legislature, but not re-write it to say the opposite of what was meant, in the absence of a sufficient reason to do so.79Conform interpreta- tion cannot in all cases achieve effective judicial protection of Community law rights.
The second deficit of the system of Community rights/national reme- dies lies, at times, in the inaptness of those national judicial remedies.
National remedies may not be adequate to protect Community law rights.
They may even be completely absent in a particular case, leaving the individual entirely unprotected. In other cases, there may be substantial differences in national remedies available in the different Member States, creating an uneven level of protection. While Community citizens in all Member States may presumably enjoy the same rights, the remedies available to them in case of infringement may vary to such an extent that a sufficient level of uniformity is no longer attained.
Sometimes, the inaptness of the national system of remedies can equally be overcome by recourse to the technique of consistent interpre- tation. In Von Colson and Kamann for instance, the Court required the German courts to offer real and effective judicial protection and to inter- pret and apply German law in conformity with the requirements of the directive in question in so far as they were given discretion under German law. The duty of conform interpretation may allow the courts to offer suit- able national remedies for Community law rights.80Yet, in other cases,
78 Cases in point are Von Colson and Kamann, Marleasingand Faccini Dori, where the tech- nique of conform interpretation is presented explicitly as an alternative for direct effect.
79 Where there is direct effect, the courts may not only interpret the law so as to conform to the requirements of Community law, but even completely re-construe it and even set it aside.
80 See Ph Tash, ‘Remedies for European Community Law Claims in Member State Courts:
Toward a European Standard’, (1993) 31 Columbia Journal of Transnational Law, 377, at 389 et seq.
consistent interpretation will not do to fill the gap. In some of those cases, the Court started to interfere more actively with the national system of remedies.
An example is offered by the case law on access to national remedies. In Johnston, for instance, there was no right to appeal against a particular type of decision; the Court held that this infringed the principle of effec- tive judicial protection. In Heylens, the absence of a duty to state reasons was held to infringe the right to effective judicial review and the right to effective judicial protection. In Borelli, the Court rejected the rule under Italian administrative law that preparatory acts are not open to judicial review. In these cases, the Court extended the jurisdiction of the national courts and required them, by recourse to the principle of effective judicial protection, to provide a remedy, or at least, the possibility for an individ- ual to seek a remedy. The area of restitution of unduly paid sums has formed a miniature laboratory for the Court to test the aptness of national procedural and remedial rules, and of setting standards of effectiveness of Community law, effective judicial protection, and of uniformity. Yet, these cases were still concerned with conditions on, and interferences with, nationalremedies.
The shortcomings of national procedures and remedies and the willing- ness of the Court to interfere was most striking in the Factortamecase, relat- ing to the remedy of interim relief. In contrast to the previous cases, the Court in Factortamedid not interfere with a nationalremedy available in a particular case, nor did it clarify a remedy prescribed by a directive, but it created a Community law remedy which must in all Member States be available before the courts as a matter of Community law. This is at least the practical result of Factortame, and it certainly is the common manner of pre- senting the case. If this is indeed what happened in Factortame, the Court of Justice certainly attempted to conceal it. The decision is phrased not in terms of creating a new remedy, or, for that matter, of the court’s jurisdic- tion to offer a particular remedy, but in terms of the ‘principle’ of structural supremacy and the duty of the national courts to set aside national rules preventing them from giving full effect to Community law and from grant- ing effective judicial protection to individuals under Community law.81
81 Peter Oliver has argued that there is very little difference between setting aside an obstacle to interim relief and creating interim relief as a fresh remedy, P Oliver, ‘Interim Measures:
Some Recent Developments’, (1992) CML Rev, 7, at 16. While this may be true in practi- cal terms and looking with the benefit of hindsight, it does matter a great deal as a mat- ter of principle: the creation of a new remedy raises questions as to the the limits of the ECJ’s judicial function, its likely interference with the legislative function and therefore as to its legitimacy, as was reflected in some reactions to Francovichin literature as well as in the submissions of several Governments in Brasserie/Factortame. More practically, it raises questions of the actual source of the jurisdiction of the national courts: can it really derive from Community itself, and if so, how must this be theorized?
The effect or result of Factortamewas the creation of jurisdiction for the English courts to grant interim relief by suspending the application of a Statute, which would not be possible under English law. The wording of the judgment hides this effect: the Court pretends that the only rea- son why the courts did not award interim relief was a rule of national law preventing them doing so in a particular case.82 Yet the case was more complicated: the English courts lacked jurisdiction, and in that sense it is remarkable that the case was solved under the Simmenthal reasoning:83 it is difficult to maintain that by setting aside a lack of jurisdiction… jurisdiction is created: two negatives do not necessarily make a positive.
Factortameis often treated as the beginning of a line of cases, which in practical effect imply the creation of new remedies. Yet, one could go back even further in time, and characterise the setting aside of national law for violation of Community law as a remedy. ‘Disapplying national measures which are found to be incompatible with Community law in themselves (..) is the most general remedy which individuals whose rights have been infringed may institute before a national court of law’.84 Where an individual derives a directly effective right from Community law, the national court must offer him the remedy of disapplication of conflicting national law. This remedy is imposed by Community law. In Simmenthal, the focus is on the juris- diction of the courts,and the case is not often interpreted in terms of reme- dies. Few will remember who Simmenthal was and what was claimed before the Italian courts. But we do all know the Spanish fishermen whose Community law rights needed protection and who, given the inappropri- ateness of the English system of remedies, depended on the remedies available as a matter of Community law. However, also in Simmenthal, the Italian court was seized by an individual claiming that his rights had been infringed. In many cases, as in Simmenthal, the disapplying of conflicting national legislation will suffice to remedy the infringement causing harm to an individual.
The case which is most identified with the ‘creation of Community remedies’ is, of course, Francovich, the case that introduced the principle of the liability of the Member States for harm done as a consequence of
82 See egJ Temple Lang, ‘The Principle of Effective Judicial Protection of Community Law Rights’, in Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley, Vol I, (The Hague, Kluwer Law International 2000) 235, at 240 et seq.
83 Perhaps the Johnston/Heylensapproach (see infra)and ‘the right to a judge having jurisdic- tion to (…)’would have been more appropriate in this respect. However, it would have been difficult to convince the English courts that this would imply that they should assume jurisdiction of their own motion, without awaiting a legislative intervention creating it.
84 W van Gerven, ‘Of rights, remedies and procedures’, (2000) 37 CML Rev, 501, at 506.
violations of Community law. Becuase of the magnitude of the case, and because in terms of national constitutional law it poses a number of interesting questions, the Francovichmandate will be analysed in a sep- arate chapter. But before turning to Francovich, the story of the develop- ment of the Community mandate of the national courts is interrupted, and the perspective is shifted from Community law to national law, in order to analyse the national reactions to the Simmenthalmandate.
6
The ‘Simmenthal Mandate’
Embraced
6.1. INTRODUCTION
THE DUTY INCUMBENT on the national courts to review national legislation, including primary legislation of a later date, has by and large been accepted in all the Member States. There are still some minor areas of resistance, but on the whole, the national courts have accepted the message from Luxembourg, and now assume a function which, for some courts, was unheard of before. The obstacles which had to be overcome by the various courts were not always the same. In some countries, the duty to review legislation in the light of Community law did not in principle alter the constitutional position of the courts. In The Netherlands, for instance, the competence of the courts to review primary legislation in light of certain treaties was provided for in the Constitution.
The message from Luxembourg coincided with the constitutional man- date of the courts. In other States, however, there was great reluctance, in the beginning, to accept the new duty. The commands of the European Court conflicted with the national constitutional mandate of the courts.
What the Court of Justice asked the courts to do was something that was unheard of in the constitutional framework. They were actually required by the Court to scrutinise the norms they had always adhered to. This reluctance, or hesitancy, was caused by a number of factors, such as a certain vision of the relationship between national and international law and of the organs which carried the responsibility to ensure respect for international treaties in the internal legal order; the prevailing under- standing of the constitutional position of the courts vis-à-visthe political organs; the existence of a constitutional court which has a constitutionally enshrined monopoly to scrutinise primary legislation; or a misperception of what the duty to review under Community law was really about. These obstacles have now largely been overcome, but this required, in some Member States, a dramatic change of view on all or some of the issues just mentioned. As will be demonstrated later on, in most of the Member States, and indeed, in all of the Member States which did not yet provide