EU Law exam notes written from textbooks and lectures for Remedies for Breach of EU Law. Formatted to be memorised and contains all the necessary information to achieve a 2:1 or 1st on the exam.
-Due to direct/indirect effect and state liabilities being remedies that are pursued in the
national courts (preliminary reference is made to ECJ then ruling is passed back to national
courts to make final ruling on remedy, which normally follows the ECJ ruling on the
preliminary reference), their overall effectiveness is dependant on national rules of
procedural law, which are by their very nature outside the jurisdiction and influence of the
ECJ.
--Therefore, under national procedural autonomy, these remedies fall entirely within the
competencies of the MS, which may interfere with the realisation of EU rights. That is,
national procedure does not provide for a sufficient or effective remedy.
Principle of National Procedural Autonomy
-National Procedural Autonomy: In the absence of harmonised rules on procedure, rights
conferred by EU law must be exercised before national courts in accordance with the
traditions laid down by national procedural rules which are autonomous from the EU legal
system.
*-However, this is subject to two exceptions:
1) The Principle of Non-discrimination
2) The Principle of Effective Remedies
1)Principle Of Non-discrimination
-Principle of Non-Discrimination: Where EU law is involved, national procedural law must
not deprive a litigant of their rights under EU law.
-This is based on:
*-Art.18 TFEU: Provides that there can be no discrimination on the grounds of nationality,
which must not be breached.
*-Art.4(3) TEU: “Pursuant to the principle of sincere cooperation, the Union and the MS
shall…take any appropriate measure, general or particular, to ensure fulfilment of the
obligations arising out of the Treaties or resulting from the acts of the institutions of the
Union…and refrain from any measure which could jeopardise the attainment of the Union’s
objectives.”
-Therefore, discrimination based on nationality (i.e. the national courts discriminating by not
giving an effective remedy), based on Art.18 TFEU and Art.4(3) TEU, gives supremacy to
EU law over national legislation, and national procedural rules that get in the way of the
effective application of EU rights.
*-However, though the application of these Treaty articles and case law giving effect to them
may provide equivalence in ensuring non-discrimination of a remedy by national courts, it
does not extend far enough to provide an effective remedy.
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