The following is intended to help you with reading the cases listed in the ARL; it indicates what you should look for when reading them. I added some other readings to those provided in the ARL, but as usual, it’s only optional - if you want to get a broader (and at times also deeper) understanding of what is going on here. At the end, you will find instructions concerning your essays for week 4.
National procedural autonomy and its limitations (via requirements on equivalence and effectiveness)
33/76 Rewe-Zentralfinanz [1976] ECR 1989 and 45/76 Comet [1976] ECR 2043 As stated in the ARL: these are the cases that are normally taken as the basic starting point in asserting a conditional principle of national procedural autonomy in cases involving the vindication of EC law rights; what is most important is the following often-reiterated part: “national courts, when they apply Community law, may do so pursuant to their own national procedural rules. Thus, in the absence of harmonisation of such rules, ‘it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law”.
The following cases concern some procedural rules that may affect enforcement of rights based on EC law (in fact, there is a huge body of case law concerning enforcement of EC rights on the national level!):
C-213/89 Factortame (no.1) [1990] ECR 1-2433 Interim protection against national legislation conflicting with EC law; the case is also an excellent elaboration of the principle of effectiveness;
143/88 & 92/89 Zuckerfabrik Suderdithmarschen [1991] ECR I-415 and C-465/93 Atlanta [1995] ECR I- 3761 Interim protection, but this time against national implementation of EC legislation! So, the question is, to what extent can a national court grant interim protection against EC rules, being allegedly illegal (under Community law)? In this respect, remember what 314/85 Foto Frost [1987] ECR 4199 tells us as regards the jurisdiction of national courts to rule on validity of EC measures.
C-326/96 Levez [1998] ECR I – 7835 Time limitations and the requirement of effectiveness. Does the Court review effectiveness in abstract, or, does it examine how the rules apply in practice? (For this, you may find useful also a recent judgment in Joined Cases C-222/05 to C-225/05 van der Weerd and Others, para. 28)
C-255/00 Grundig Italiana [2002] ECR I – 8003 National legislation retroactively reducing time-limits for bringing proceedings: whether, and if so, under what conditions can a Member State reduce time-limits for bringing actions based on EC law with retroactive effect?
C-432/05 Unibet v Justitiekanslern judgment of 13 March 2007 Well, here you have several questions nicely packed in one judgment, all turning around interim protection against Community law violations; do you think that a gambling company should have an action in national courts to prevent the administration from requiring the company to apply for a permission to operate on the national market? Do you think that individuals should have the right to judicial review of national legislation even before their Community rights are violated? For a response, read the judgment!
C-392/04 & C-422/04 i-21 Germany [2006] ECR I-8559 Equivalence: is Community law treated in the same way as national law? Concerning re-opening final administrative acts, issued in breach of Community law. There is a recent comment by M. Taborowski in 44 (2007) CML Rev 1463. We will discuss this case in detail, since it nicely illustrates application of the requirement of equivalence, so read the judgment carefully!!!
Actions for damages in cases of breach of Community law
6/90 & 9/90 Francovich [1991] ECR I-5357 “The first one.” Simply read it.
C-48/93 Factortame (no.3)/Brasserie de Pecheur [1996] ECR I-1029 In relation to the actions for damages, focus on this judgment; it specifies the conditions under which national courts should award damages for breaches of Community law.
C-392/93 R v HM Treasury, ex p. British Telecom [1996] ECR I-1631 In this judgment the Court found that some of the conditions for imposing liability on a Member State had not been fulfilled. Which and why?
C-224/01 Köbler [2003] ECR I – 10239 and C-173/03 Traghetti del Mediterraneo [2006] ECR I-5177 Not happy with your courts and their treatment of Community law? Try this one(s)! Focus on Köbler, the latter one essentially applies what the Court said in it. If you want to read someone truly sceptical about the judgment and the Court itself, read this one: Peter J. Wattel: “Köbler, CILFIT and Welthgrove: We Can't go on Meeting Like This”, (2004) 41 CML Rev 177. It’s refreshing reading…
C-453/99 Courage Ltd. v Crehan [2001] ECR I-6297 Enforcement of the Treaty competition rules between private parties. In that relation, you may wish to refresh yourself with a nice judgment given by the House of Lords in consequence to the ECJ’s judgment. It will help you to realize that (like it or not), national courts are still those who actually decide: House of Lords, judgment of 19 July 2006, Inntrepreneur Pub Co (CPC) and others v. Crehan, [2006] UKHL 38; or, if you prefer doctrinal writings to their lordships’ opinions, a case comment in (2007) 44 CML Rev 817 by C. Hanley. (N.B: It does not concern the Q of liability, but rather the Q concerning the existence of breach as such, whereby the House of Lords decided that national courts are not bound by Commission's findings - it is submitted that this was contrary to ECJ's case law).
Questions for essays
This time no additional Qs from me. BUT, in your group, avoid writing on Q1 and Q2 at the same time. In other words, if any of you opts for Q1, no other one should write on Q2 (and obviously, vice versa). It is because they cover the same area and I want to discuss the whole range of problems included in this tutorial subject. And, it would be nice (although not strictly required), if someone picks Q3 (the problem one).
Back to main page
National procedural autonomy and its limitations (via requirements on equivalence and effectiveness)
33/76 Rewe-Zentralfinanz [1976] ECR 1989 and 45/76 Comet [1976] ECR 2043 As stated in the ARL: these are the cases that are normally taken as the basic starting point in asserting a conditional principle of national procedural autonomy in cases involving the vindication of EC law rights; what is most important is the following often-reiterated part: “national courts, when they apply Community law, may do so pursuant to their own national procedural rules. Thus, in the absence of harmonisation of such rules, ‘it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law”.
The following cases concern some procedural rules that may affect enforcement of rights based on EC law (in fact, there is a huge body of case law concerning enforcement of EC rights on the national level!):
C-213/89 Factortame (no.1) [1990] ECR 1-2433 Interim protection against national legislation conflicting with EC law; the case is also an excellent elaboration of the principle of effectiveness;
143/88 & 92/89 Zuckerfabrik Suderdithmarschen [1991] ECR I-415 and C-465/93 Atlanta [1995] ECR I- 3761 Interim protection, but this time against national implementation of EC legislation! So, the question is, to what extent can a national court grant interim protection against EC rules, being allegedly illegal (under Community law)? In this respect, remember what 314/85 Foto Frost [1987] ECR 4199 tells us as regards the jurisdiction of national courts to rule on validity of EC measures.
C-326/96 Levez [1998] ECR I – 7835 Time limitations and the requirement of effectiveness. Does the Court review effectiveness in abstract, or, does it examine how the rules apply in practice? (For this, you may find useful also a recent judgment in Joined Cases C-222/05 to C-225/05 van der Weerd and Others, para. 28)
C-255/00 Grundig Italiana [2002] ECR I – 8003 National legislation retroactively reducing time-limits for bringing proceedings: whether, and if so, under what conditions can a Member State reduce time-limits for bringing actions based on EC law with retroactive effect?
C-432/05 Unibet v Justitiekanslern judgment of 13 March 2007 Well, here you have several questions nicely packed in one judgment, all turning around interim protection against Community law violations; do you think that a gambling company should have an action in national courts to prevent the administration from requiring the company to apply for a permission to operate on the national market? Do you think that individuals should have the right to judicial review of national legislation even before their Community rights are violated? For a response, read the judgment!
C-392/04 & C-422/04 i-21 Germany [2006] ECR I-8559 Equivalence: is Community law treated in the same way as national law? Concerning re-opening final administrative acts, issued in breach of Community law. There is a recent comment by M. Taborowski in 44 (2007) CML Rev 1463. We will discuss this case in detail, since it nicely illustrates application of the requirement of equivalence, so read the judgment carefully!!!
Actions for damages in cases of breach of Community law
6/90 & 9/90 Francovich [1991] ECR I-5357 “The first one.” Simply read it.
C-48/93 Factortame (no.3)/Brasserie de Pecheur [1996] ECR I-1029 In relation to the actions for damages, focus on this judgment; it specifies the conditions under which national courts should award damages for breaches of Community law.
C-392/93 R v HM Treasury, ex p. British Telecom [1996] ECR I-1631 In this judgment the Court found that some of the conditions for imposing liability on a Member State had not been fulfilled. Which and why?
C-224/01 Köbler [2003] ECR I – 10239 and C-173/03 Traghetti del Mediterraneo [2006] ECR I-5177 Not happy with your courts and their treatment of Community law? Try this one(s)! Focus on Köbler, the latter one essentially applies what the Court said in it. If you want to read someone truly sceptical about the judgment and the Court itself, read this one: Peter J. Wattel: “Köbler, CILFIT and Welthgrove: We Can't go on Meeting Like This”, (2004) 41 CML Rev 177. It’s refreshing reading…
C-453/99 Courage Ltd. v Crehan [2001] ECR I-6297 Enforcement of the Treaty competition rules between private parties. In that relation, you may wish to refresh yourself with a nice judgment given by the House of Lords in consequence to the ECJ’s judgment. It will help you to realize that (like it or not), national courts are still those who actually decide: House of Lords, judgment of 19 July 2006, Inntrepreneur Pub Co (CPC) and others v. Crehan, [2006] UKHL 38; or, if you prefer doctrinal writings to their lordships’ opinions, a case comment in (2007) 44 CML Rev 817 by C. Hanley. (N.B: It does not concern the Q of liability, but rather the Q concerning the existence of breach as such, whereby the House of Lords decided that national courts are not bound by Commission's findings - it is submitted that this was contrary to ECJ's case law).
Questions for essays
This time no additional Qs from me. BUT, in your group, avoid writing on Q1 and Q2 at the same time. In other words, if any of you opts for Q1, no other one should write on Q2 (and obviously, vice versa). It is because they cover the same area and I want to discuss the whole range of problems included in this tutorial subject. And, it would be nice (although not strictly required), if someone picks Q3 (the problem one).
Back to main page
1 comment:
I'll do the problem
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