Sometimes, the enforcement and application of Community law may have to yield, and it must be recognised that the national legal envi- ronment in which Community law is applied, poses limits to its application.
4.5. CONCLUSION
Direct effect and supremacy, as said, form the alpha of the Community mandate of the national courts. They involve the national courts in the
174Case 6/60Humblet v Belgian State [1960] ECR 559, at 569.
175Opinion of AG Mischo in Joined Cases C–6/90 and C–9/90 Andrea Francovich and Others v Italian Republic[1991] ECR I–5357, at marginal number 65.
application and enforcement of Community law and transform them into Community law courts. Yet, they are not the omega. It is one thing to say that the national courts must ‘apply’ and ‘enforce’ Community law and
‘protect the rights which individuals derive from Community law’; but what exactly does that mandate entail? How are the national courts required to act in cases involving Community law? How is the mandate to be put into effect? That is what the second generation cases are about, and this is analysed in the next chapter.
5
Refining the Mandate: Second Generation Issues
IT IS NO longer disputed that directly effective provisions of Community law take precedence over conflicting national provisions and that national courts are under an obligation to disapply conflicting national law. Yet, this rule of thumb does not solve all problems for the national courts. What procedures, remedies and causes of action must be applied in the enforcement of Community law? Should a national court when acting as Community court, apply the same procedural and juris- dictional rules as in the case of national law and should it offer the same remedies? What should the court do if it lacks jurisdiction to award a par- ticular remedy? The answers to these questions form what is generally called the second generation1case law and clarify the duties and obliga- tions of the national courts when acting under their Community mandate.
The case law is difficult to understand, since it follows various paths, apply- ing several principles and techniques,2and the Court varies the intensity of its review of national procedural rules, without explaining which technique applies in which case. The Court does not explain where the Community requirements concerning the national courts’ mandate stop and where
1 The term ‘second generation’ was coined by J Mertens de Wilmars, ‘L’efficacité des dif- férentes techniques nationales de protection juridique contre les violations du droit com- munautaire par les autorités nationales’, CDE, 1981, 379. And counting on: D Curtin and K Mortelmans, ‘Application and Enforcement of Community Law by the Member States:
Actors in Search of a Third Generation Script’, in Essays in Honour of Henry G Schermers (Nijhoff, Dordrecht, 1994) 423.
2 See on the various strands in the Court’s case law, among others, S Prechal, ‘Community Law in National Courts: The Lessons from Van Schijndel’, (1998) 35 CML Rev681; and her Directives in European Community Law(Oxford, Clarendon Press, 1995) Ch 8; F G Jacobs,
‘Enforcing Community Rights and Obligations in National Courts: Striking the Balance’, in J Lonbay and A Biondi (eds), Remedies for Breach of EC Law(Chichester, Wiley, 1997) 25 and AG Jacobs’ Opinion in Van Schijndeland Peterbroeck, Joined Cases C–430/93 and C–431/93, Van Schijndel[1995] ECR I–4705 and Case C–312/93, Peterbroeck[1995] ECR I–4599; M Hoskins, ‘Tilting the Balance: Supremacy and National Procedural Rules’’
(1996) 21 ELR 365; A Biondi, ‘The European Court of Justice and Certain National Procedural Limitations: Not Such a Tough Relationship’ (1999) 36 CML Rev1271; W van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev501.
national law takes over. It is a tricky exercise even to delineate the different strands in the Court’s case law3and to find out why a particular case was decided under a particular principle,4 or why it left the matter to the national court in some cases, while going into the particulars of national procedural law in other cases. What follows is only an attempt to shed some light on and bring some order to the complex and difficult case law.5
5.1. THE PRINCIPLE OF PROCEDURAL AUTONOMY
The first path in the Court’s case law relies on the principle of national pro- cedural autonomy, introduced in the Reweand Cometcases of 1976,6and has been repeated on numerous occasions since. In essence, the principle means that apart from the fundamentals of the Community doctrines of
3 Various attempts have been made to bring order in the ECJ’s case law: the diversity in outcomes has been explained in terms of a chronology, showing different periods with varying intensity of intervention in national procedural law, so C Kilpatrick, ‘The Future of Remedies in Europe’, in The Future of Remedies in Europe (Oxford, Hart Publishing, 2000) 1–9; van Gerven has explained the case law by distinguishing between rights, remedies and procedures, each requiring a different treatment: W van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev501; Others have analyzed the ECJ’s approach to national procedural law within one sector, which allows a more com- plete view of the relationship between the techniques, and the objectives sought, for instance in terms of decentralized enforcement and protection of individual in a particu- lar area, see the contributions in Part II of J Lonbay and A Biondi, Remedies for Breach of EC Law (Oxford, Wiley, 1997); and C Kilpatrick, ‘Turning Remedies Around: A Sectoral Analysis of the Court of Justice’, in G de Búrca and JHH Weiler (eds), The European Court of Justice (Oxford, OUP, 2001) 143.
4 See, for instance, J Lonbay and A Biondi, Remedies for Breach of EC Law (Oxford, Wiley, 1997); R Craufurd Smith, ‘Remedies for Breaches of EU Law in National Courts: Legal Variation and Selection’, in The Evolution of EU Law (Oxford, OUP, 1999) 286; A Biondi,
‘The European Court of Justice and Certain National Procedural Limitations: Not Such a Tough Relationship’ (1999) 36 CML Rev1271; C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000); W van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev501.
5 The approach will be rather technical and the focus is on the courts and the development of their Community mandate. The downside of this choice is that it may not do justice to the case law in the sense that the underlying policy issues – good or bad – do not come to the fore and the ECJ may seem to be going astray and make random choices. Claire Kilpatrick, for instance, has attempted to explain the different strands in the ECJ’s case law on effective remedies and procedural autonomy in the area of gender equality and/or labour law, showing that the case law is not a pick and choose on the part of the ECJ but a search for the appropriate doctrinal rules in the context of procedures, with a view to their effects and outcomes on cases and in a continuing dialogue with the national courts. It goes without saying that her approach gives a more realistic and com- plete view of the issue. See C Kilpatrick, ‘Turning Remedies Around: A Sectoral Analysis of the Court of Justice’, in G de Búrca and JHH Weiler (eds), The European Court of Justice (Oxford, OUP, 2001) 143.
6 Case 33/76Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989; Case 45/76 Comet BV v Productschap voor Siergewassen[1976]
ECR 2043.
direct effect and supremacy themselves, the remaining questions must be answered on the basis of national law. In the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction, to lay down the detailed proce- dural rules governing actions at law and to provide for the remedies intended to ensure the protection of the rights which citizens derive from the direct effect of Community law.7‘Applying the principle of co-operation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law. Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural condi- tions governing actions at law intended to ensure the protection of rights which citizens have from the direct effect of Community law…’.As pointed out by Advocate General Warner in the case, the Court had little choice in the matter. ‘Where Community law confines itself to forbidding this or that kind of act on the part of a Member State and to saying that private persons are entitled to rely on the prohibition in their national courts, without prescribing the reme- dies available to them for that purpose, there really is no alternative to the appli- cation of the remedies and procedures prescribed by national law… Community law and national law operate in combination, the latter taking over where the former leaves off and working out its consequences’.
It must accordingly be accepted that Community law is not made effec- tive in all cases and that Community law rights are not at all times pro- tected. As in the case of national law, there are other considerations than the full application of the law and the protection of rights, such as princi- ples of legal certainty, rights of the defence, need for finality in litigation, rules of evidence and the like, which regulate the exercise of rights.
Community law is enforceable through the domestic judicial systems, and must accept that national law puts restrictions on the exercise and protec- tion of Community law rights, subject to two conditions: the national legal environment in which the Community rules are applied, enforced and protected must not be less favourable than those governing similar domestic actions (principle of equivalence)or render virtually impossible or excessively difficult (principle of effectiveness) the exercise of rights con- ferred by Community law. Yet, within these two limits, national proce- dural law regulates the concrete application of Community law and the protection of Community law rights. This may imply that Community rights at the end of the day are not protected, and that Community law is not correctly applied.
7 The notion procedural law must be taken in its widest sense and includes not only proce- dural law strictu senso, ie time limits and the like, but extends to more fundamental questions of jurisdiction of courts, types and nature of remedies, access to court and so on.
While the principles of procedural autonomy, effectiveness and equivalence appear to be clear in themselves, and their rationale is evi- dent, the difficulty is, of course, in its application. Which action at law is comparable to the one applicable for the protection of a particular Community law right, in order to assess the principle of equivalence?8 Which time limits are reasonable and therefore pass the test of effective- ness? What rules of evidence make it excessively difficult to exercise particular Community law rights? Many national courts do not feel con- fident to answer the questions of equivalence and effectiveness them- selves, and refer the matter to Luxembourg. The Court has spent much valuable time deciding whether Community and national actions at law were comparable, whether particular time limits could be applied and so on, and has at times been lured into an analysis of national procedural law, which clearly is not its function, and seems not worth the time spent on it. On the other hand, how should a national court assess whether a particular procedural rule would pass the test? The more individual cases the Court decides for the national courts, the more courts will continue to refer questions. In addition, the Court has made mistakes, such as Emmott, which gave the wrong impression that Community law in general, and directives in particular, were so special that national procedural law would always have to yield to it.9The same impression has been created by the use of language of precedence and the duty to set aside even the most fundamental procedural rules of a constitutional nature for the sake of the effectiveness of Community law in Simmenthal and Factortame.
However, it was also clear from the beginning that Community law accepts the limitations of national procedural law: in Rewethe applicant had argued that time limits would have to yield to the supremacy of
8 The ECJ has not formulated a yardstick, but pointed out that domestic actions and actions to enforce a Community right are similar where they pursue the same objective and the essential characteristics are the same in Case C–261/95 Rosalba Palmisani v INPS [1997] ECR I–4025; AG Légér did try to formulate a number of general criteria in Case C–326/96 BS Levez v TH Jennings (Harlow Pools) Ltd[1998] ECR I–7835; the Court did not follow its AG, but it did indicate that an Act adopted to give effect to the relevant Community rule cannot provide an appropriate ground of comparison against which to measure compliance with the principle of equivalence.
9 Case C–208/90 Teresa Emmott v Minister for Social Welfare and Attorney General[1991] ECR I–4296, where the ECJ ruled that time limits would only start to run when the directive is correctly implemented in national law; the ECJ has had to take back that statement, first distinguishing the case (Case C–338/91 Steenhorst-Neerings[1993] ECR I–5475 and Case C–410/92 Johnson[1994] ECR I–5483) and later holding that it was restricted to the case at hand given its particularities, Case C–188/95 Fantask[1997] ECR I–6783; While Emmott seemed justified at the time in order to enforce compliance by Member States and force them to implement directives timely and correctly, and in terms of protecting ‘poor Teresa Emmott’, it may have underestimated the financial consequences for the Member States, and the judgment proved to be exaggerated after the ruling in Francovich. Emmottmay have been a simple mistake, or an ‘audition’ for a principle abandoned later, but it continues to confuse many national courts, and questions related to Emmott continue to be referred.
Community law. This line of reasoning was rejected by the Court and replaced by the principle of procedural autonomy, corrected by the prin- ciples of effectiveness and equivalence.10
In Van Schijndeland Peterbroeck, the Court refined the condition of effec- tiveness, and introduced a rule of reason11 stating that ‘For the purposes of applying those principles, each case which raises the question whether a national procedural provision renders application of Community law impossible or exces- sively 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 var- ious 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, where appropriate, be taken into consideration’. The message seems to be that the national court must verify whether the individual who derives a right from Community law, has sufficient opportunity to seek judicial protec- tion of that right before a court of law which may or must refer the case to the Court of Justice. Being a rule of reason, the test requires a balancing of many aspects, interests and principles. The difficulty, again, is in its application, as is demonstrated in the very cases in which it was intro- duced. In Van Schijndel, the fact that the national court was precluded from applying Community law of its own motion was justified and passed the test, thus restricting the application of Community law and (possibly) denying the protection of Community rights of the applicants.
In Peterbroeck, however, the Belgian procedural rules, which equally had the effect of denying the possibility for the court to apply Community law of its own motion, were considered not to be justified, and Community law precluded their application. Put simply, the difference in outcome can be explained by the fact that taken as a whole, it was too difficult for the individuals in Peterbroeckto have their Community law rights protected before the referring court and impossible for the latter or any other Belgian court for that matter to apply Community law of its own motion and accordingly, to refer questions for preliminary ruling; in van Schijndel, on the other hand, the individuals had plenty opportunity to invoke their rights under Community law and have them protected in earlier instances, which also had the possibility to apply Community law of their own motion, and refer questions for preliminary ruling. Nevertheless, it remains to some extent a matter of taste whether a particular procedural rule in a given context makes it ‘excessively difficult’ or ‘virtually impossible’ to
10 This point will be developed further in the next section.
11 So S Prechal, ‘Community Law in National Courts: The Lessons from van Schijndel’(1998) 35 CML Rev 681, at 690 et seq, see also A Biondi, ‘The European Court of Justice and Certain National Procedural Limitations: Not Such a Tough Relationship’ (1999) 36 CML Rev1271, at 1277.
protect Community law right and make it effective. Questions continue to be referred, and the van Schijndelrule of reason apparently has not made the task of balancing principles any easier.
The principle of equivalence was put in perspective in Ediswhere the Court stated that ‘That principle cannot, however, 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 levies in breach of Community law’.12The Court attempted to withdraw from having to rule on the principle of equivalence and to leave it for the national courts: ‘In order to determine whether the principle of equivalence has been complied with in the present case, the national court, which alone has direct knowledge of the pro- cedural rules governing actions in the field of employment law – must consider both the purpose and the essential characteristics of allegedly similar domestic actions’ and extended the Van Schijndel rule of reason to equivalence:
‘Furthermore, whenever it falls to be determined whether a procedural rule of national law is less favourable than those governing similar domestic actions, the national court must take into account the role played by that provision in the pro- cedure as a whole, as well as the operation and any special features of that proce- dure before the different national courts’.13Yet, it remains a delicate exercise, and to some extent, a matter of taste.
5.2. FROM A‘PRINCIPLE’ OF STRUCTURAL SUPREMACY TO THE PRINCIPLE OF FULL EFFECTIVENESS
In another line of cases, the Court takes a more radical approach, based apparently on a very strong version of supremacy.14 In Simmenthal the duty to conduct judicial review of a statute allegedly infringing Community law was excluded by a constitutional rule restricting juris- diction of the ordinary courts. Indeed, in Società industrie chimiche Italia
12 Case C–231/96 Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze[1998]
ECR I–4951, at para36; see also Case C–260/96 Ministero delle Finanze v Spac SpA[1998]
ECR I–4997; Joined Cases C–10/97 to C–22/97 Ministero delle Finanze v INCOGE’90 Srl and Others[1998] ECR I–6307; Case C–228/96 Aprile Srl, in liquidation v Ministero delle Finanze dello Stato[1998] ECR I–7141; Case C–343/96 Dilexport Srl v Amministratzione delle Finanze dello Stato [1999] ECR I–579; and in the context of employment Case C–326/96 BS Levez v TH Jennings (Harlow Pools) Ltd[1998] ECR I–7835, at paras 41 and 42: ‘The princi- ple of equivalence requires that the rule at issue be applied without distinction, whether the infringement alleged is of Community law or national law, where the purpose and cause of action are similar. (…) However, that principle is not to be interpreted as requir- ing Member States to extend their most favourable rules to all actions brought, like the main action in the present case, in the field of employment law’.
13 Case C–326/96 BS Levez v TH Jennings (Harlow Pools) Ltd[1998] ECR I–7835, at paras 43 and 44.
14 Without, however, using the notion. As has been mentioned, the ECJ never uses the notion of supremacy; it rather refers to the principle as precedence or primacy.