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Published online by Cambridge University Press: 27 October 2017
As a general principle of Community law elaborated by the European Court of Justice (hereinafter, ECJ or ‘the Court’), effectiveness ‘requires the effective protection of Community rights and, more generally, the effective enforcement of Community law in national courts’: its origins—it has been argued—‘lie in the interpretative techniques of the Court which, even at an early stage, favoured a liberalised construction of the Treaty provisions so as to ensure their effet utile’. In fact, the roots of the principle of effectiveness can be found in the seminal case of Van Gend en Loos, which, without expressly naming that principle, provided the conceptual tools that have moulded its construction throughout the Community case law.
1 Tridimas, T, The General Principles of EU Law 2nd edn (Oxford, Oxford University Press, 2006) 418 Google Scholar.
2 Case 26/62, Van Gend en Loos [1963] ECR 1.
3 Ibid, 130.
4 On this point, see Eilmansberger, T, ‘The Relationship Between Rights and Remedies in EC Law: in Search of the Missing Link’ (2004) 41 CML Rev 1199, 1204–6Google Scholar.
5 Case C-453/99, Courage v Crehan [2001] ECR I-6297.
6 This interpretation is not, however, universally shared and some commentators consider Courage as no more than an ordinary application of the Court’s case law on the relationship between effectiveness and national remedies: see in particular Dougan, M, National Remedies Before the Court of Justice (Oxford, Hart, 2004) 379 Google Scholar.
7 Courage v Crehan, above n 5, para 27.
8 The assumption that effective enforcement and effective judicial protection are overlapping concepts for academics, as well as for the court, emerges clearly from the following passage in Ross, M, ‘Effectiveness in the European Legal Order(s): Beyond Supremacy to Constitutional Proportionality’ (2006) 31 EL Rev 476, 479: ‘Much has been written … on the enforcement aspects of effectiveness and the tension between the so-called national procedural autonomy and the effective protection of EC rightsGoogle Scholar. Usually bearing the umbrella label of “effective judicial protection”, this thread in the case law does not always rigorously distinguish between a number of situations tat range from a core of procedural protections in EC secondary legislation and fundamental freedom cases to a generalised principle embedded in the Court’s case law.’
9 The so-called ‘private enforcement of antitrust law’ is currently the subject of intense academic and practitioner discussions, triggered by a number of Commission initiatives which, in the aftermath of the Courage decision, aim to facilitate such claims: see the Commission’s White Paper, ‘Damages actions for the breach of the EC antitrust rules’ COM(2008)165 final, 2 April 2008, and the earlier Green Paper, ‘Damages actions for breach of the EC antitrust rules’ COM(2005)672 final, 18 December 2005.
10 See the Commission’s Green Paper, above n 9, para 2.4.
11 Courage v Crehan, above n 5, para 25. For a more detailed discussion of the relationship between effectiveness, the passing on defence and standing, see Nebbia, P, ‘Damages actions for the infringement of Competition Law’ (2008) 33 EL Rev 23 Google Scholar.
12 Courage v Crehan, above n 5, para 26.
13 Ibid, para 27.
14 Ibid, para 26.
15 Case C-127/02, Landelijke Vereniging tot Behoud van de Waddenzee [2004] ECR I-7405.
16 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, [1992] OJ L206/7.
17 Ibid, Art 6(3).
18 Waddenzee, above n 15, para 66.
19 Case C-72/95, Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403.
20 Case C-253/00, Muñoz y Cia SA v Frumar Ltd [2002] ECR I-7289. It is interesting to note the similarity between para 27 of Courage (above n 5) and the following statement: ‘[i]n that context, actions brought before the national courts by competing operators are particularly suited to contributing substantially to ensuring fair trading and transparency of markets in the Community’ (para 31).
21 Case C-194/94, Security International SA v Signalson SA [1996] ECR I-2201.
22 These are, of course, also an expression of a broader right to having the law observed.
23 Eg in Kraaijeveld, above n 19, the ECJ held that the Directive at issue ‘may be invoked by those concerned’ (para 56).
24 One good example can be found in Case C-216/02, Österreicher Zuchtverband für Ponys [2004] ECR I-10683, where the Court avoided replying to the question of whether the provisions of the relevant Directive and of a related Decision on the recognition of associations in charge of maintaining stud-books could be interpreted so as to grant standing to existing associations to challenge national authorities’ decisions in respect of the official approval of other associations. The Court’s refusal to recognise locus standi was based, rather than on consideration relating to the existing associations’ position in respect of the Community measures, on the fact that the national authorities had full discretion in relation to the approval; hence, granting to the existing association the ability to challenge such decisions would amount to doing away with such discretion.
25 Case C-91/92 [1994] ECR I-3325.
26 Case C-194/94 [1996] ECR I-2201. Large quantities of ink have been spilled by academics in the attempt to systematise and explain the case law on indirect effect: for a recent contribution (that also sums up the terms of the debate), see Dougan, M, ‘When Worlds Collide! Competing Visions of the Relationship Between Direct Effect and Supremacy’ (2007) 44 CML Rev 931 Google Scholar.
27 Case C-443/98, Unilever Italia SpA v Central Food SpA [2000] ECR I-7535.
28 Directive 83/189/EEC, [1983] OJ L109/8, later repealed and replaced by Directive 1998/34, [1998] OJ L204/37.
29 Opinion of AG Jacobs in Unilever Italia SpA, above n 27, para 39.
30 Case C-470/03, AGM-COSMET [2007] ECR I-2749.
31 Ibid, para 88. See also para 42 of the Opinion of AG Kokott.
32 See Nebbia, above n 11.
33 Case C-224/01, Köbler [2003] ECR I-10239. See also Case C-173/03, Traghetti del Mediterraneo [2006] ECR I-5177, paras 31 and 33.
34 Köbler, above n 33, para 33.
35 Ibid, para 49.
36 Van Gerven, W, ‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev 501, 511Google Scholar.
37 Case C-302/97, Konle v Austria [1999] ECR I-3099.
38 Ibid, para 62.
39 Anagnostaras, G, ‘The allocation of responsibility in State Liability Actions for the Breach of Community Law: a Modern Gordian Knot’ (2001) 26 EL Rev 139, 155Google Scholar.
40 M Dougan, ‘The “Intention to Confer Rights” Under the Francovich Case-law: Still Waters Run Deep’, paper delivered at the UKAEL conference ‘Damages in EU Law’ London, IALS, 22 February 2008. The paragraphs which follow aim to summarise, as accurately as possible, the points he made in the course of the conference.
41 Joined Cases C-46 & 48/93, Brasserie du Pêcheur and Factortame [1996] ECR I-1029.
42 Cases C-6 & 9/90, Francovich v Italy [1991] ECR I-5357.
43 It can also be argued, however, that in many of the state liability cases the whole point is that the individual never had the right actually conferred upon her at all: the Member State’s failure to do so is what amounts to the breach of EC law, and the putative right under the Directive is relevant to qualify the individual to be able to bring her claim against the Member State, and in assessing the extent of any damage she has actually suffered as a result of the Member State’s failure to grant that right. In such cases, the actual ‘sufficiently serious breach’ relates specifically to the Treaty obligation upon the Member State to grant those rights, as laid down in Art 249 EC and reinforced by Art 10 EC.
44 Köbler, above n 33.
45 More precisely, two breaches had occurred: the first one concerned the refusal to grant the employment bonus that resulted in discrimination; the second one resulted from the failure to refer the case to the ECJ: Tridimas, T, ‘State liability: what are the limits?’ paper delivered at the UKAEL conference ‘Damages in EU Law’, London, IALS, 22 February 2008 Google Scholar.
46 Francovich v Italy, above n 42, para 33.
47 Ibid, para 36.
48 Harlow, C, ‘ Francovich and the Problem of the Disobedient State’ (1996) 2 ELJ 199, 205CrossRefGoogle Scholar.
49 Caranta, R, ‘Judicial Protection Against Member States: a New Jus Commune Takes Shape’ (1995) 32 CML Rev 703, 710 and 725 respectivelyGoogle Scholar. Fewer commentators, on the other hand, expressed the doubt that a threat of a possible action in damages would in fact be such a powerful deterrent as to force the Member States to execute their Community obligations and thus avoid any claim for reparation of damages: see, eg Bebr, G, ‘Francovich’ (case note) (1992) 29 CML Rev 557, 583Google Scholar.
50 It is also worth noting that ‘effective judicial protection’ does not operate whenever the individual already has, under domestic law, an adequate remedy: in Case C-432/05, Unibet v Justitiekanslern [2007] ECR I-2271, the Court made it clear that the creation of a remedy for the protection of an individual right is not necessary where that right can adequately be protected by the existing remedies. More specifically, it established that ‘Community law does not require that it must be possible to bring a separate action for a declaration that certain national substantive provisions conflict with [a Treaty provision] where it can be shown that that issue will be examined as a preliminary issue in an action for damages on conditions which are not less favourable than those governing similar domestic actions and which do not render it impossible or excessively difficult for the claimant to enforce its Community law rights’ (AG Sharpston, para 60 and, in similar terms, para 65 of the judgment; see also Case C-13/01, Safalero v Prefetto di Genova [2003] ECR I-8679). Ex post, this may explain why state liability can indeed co-exist with direct effect, and in particular why the use of the former remedy cannot be excluded where the latter is also available: they both represent possible means of forcing compliance. If, on the other hand, the basis of state liability were exclusively to be found in judicial protection, the Court would, at some point, have been at pains to point out that state liability was only available where direct effect did not operate.
51 Brasserie du Pêcheur and Factortame, above n 41, para 21.
52 Ibid, para 22.
53 Case C-222/02 [2004] ECR I-9425.
54 It is clear in this context that that reference is to ‘effective enforcement’.
55 Eilmansberger, above n 4, 1225.
56 Joined Cases C-295 & 298/04, Manfredi v Lloyd Adriatico [2006] ECR I-6619.
57 Ibid, para 91.
58 Case C-119/05, Ministero dell’Industria, Commercio ed Artigianato v Lucchini [2007] ECR I-6199.
59 Tridimas, above n 1, 291.
60 Case C-24/95, Land Rheinland-Pfalz v Alcan Deutschland [1997] ECR I-1591.
61 See, eg the well-known decisions in Case C-66/95, R v Secretary of State for Social Security, ex p Sutton [1997] ECR I-2163; and Case C-188/95, Fantask v Industriministeriet [1997] ECR I-6783.
62 Case C-208/90, Emmott v Minister for Social Welfare [1991] ECR I-4269.
63 Case C-326/96, Levez v Jennings [1998] ECR I-7835; see Flynn, L, ‘Whatever Happened to Emmott? The Perfecting of Community Rules on National Time-Limits’ in Kilpatrick, C, Novitz, T and Skidmore, P (eds), The Future of Remedies in Europe (Hart, Oxford, 2000) 51 Google Scholar.
64 The ‘effective and impartial role of the Commission’ is a necessary element of the control of state aid. See, in particular: the Opinion of AG Jacobs in Case C-110/02, Commission v Council (Portuguese Pig Farmers) [2006] ECR I-6333, paras 22 and 23; and AG Mazák in Case C-199/06, CELF v SIDE, Opinion of 24 May 2007, paras 32 to 34.
65 Case C-453/00, Kühne and Heitz [2004] ECR I-837.
66 Case C-2/06, Kempter v Hauptzollamt Hamburg-Jonas, judgment of 12 February 2008.
67 Ibid, para 38.
68 Ibid, para 39. A different outcome should therefore be expected if the re-opening was demanded by a claimant who had not, at the time, availed himself of his right to appeal against the decision. In this case, the judgment in Kühne would not be relevant for the purposes of determining whether, in a situation such as that in the main proceedings, an administrative body is under an obligation to review decisions which have become fi nal: see Joined Cases C-392 & 422/04, i-21 Germany and Arcor [2006] ECR I-8559.
69 Opinion of AG Bot in Kempter, above n 66.
70 Case C-228/96, Aprile v Amministrazione delle Finanze [1998] ECR I-7141, para 19.
71 Case C-62/00, Marks & Spencer v Commissioner of Customs and Excise [2002] ECR I-6325.
72 Case C-255/00, Grundig Italiana v Ministero delle Finanze [2002] ECR I-8003.