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Individual Rights in EU Law pp 9–30Cite as

Individual Rights in EU Law: General Sub-Topics and Issues

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Abstract

In this chapter, some fundamental aspects of the link between rights, remedies and procedures will first be described (Sect. 2.1.1). Thereafter, the particular idea of a ‘procedural autonomy’ for Member States of the European Union will be presented (Sect. 2.1.2), before turning to the Union law principle of, and right to, judicial protection of individual rights (Sect. 2.2). This forms the background for explaining the differences—and, in part, connections—between the two crucial Union law principles of, respectively, effectiveness (effet utile) and judicial protection (Sect. 2.3).

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Notes

  1. 1.

    Case 6/60 Humblet [1960] ECR 559, 571–572.

  2. 2.

    Zakrzewski (2005), p. 58.

  3. 3.

    David (1980), p. 4. Hence, the axiom ‘remedies precede rights’ has held true for the Common Law, as access to the Common Law courts was granted via a writ which gave access to a specific form of action, while the subsequent issues of the rules applied (if any) and the rights acknowledged (if any), as well as—naturally—the outcome, were left completely to the court. A shift in interest, from ‘the technicalities of procedure to the consideration of substantive law’, happened only after the forms of action were abolished in the mid-1800s, cf. David (1980), p. 8. The French courts, however, did not operate with particular forms of action or transfer of jurisdiction. Under French law, the starting point was to allege that one’s rights had been infringed and, subsequently, let the court derive the legal consequences from the right. Thus, the axiom ‘rights precede remedies’ has been more apt as regards French law.

  4. 4.

    Cf. David (1980), p. 14.

  5. 5.

    Cf., e.g., Miller (2007), pp. 92–95.

  6. 6.

    Cf. Quézel-Ambrunaz (2012), pp. 31–32.

  7. 7.

    Cf. van Boom (2010), p. 18. Cf., also, Mak (2012), p. 227.

  8. 8.

    Lenaerts (2011), p. 13.

  9. 9.

    Cf. van Gerven (2000), p. 501.

  10. 10.

    Cf., also, Prechal (2001), p. 45.

  11. 11.

    Such as, e.g., Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1); or Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

  12. 12.

    Cf., out of many, e.g., Bobek (2014), pp. 165–166.

  13. 13.

    Case 33/76 Rewe v Landwirtschaftskammer für das Saarland [1976] ECR 1989; and Case 45/76 Comet [1976] ECR 2043.

  14. 14.

    Case 13/68 Salgoil v Italy [1968] ECR 453, 462–463.

  15. 15.

    Case 179/84 Bozzetti [1985] ECR 2301, para 17.

  16. 16.

    Case 222/84 Johnston [1986] ECR 1651.

  17. 17.

    Case 222/84 Johnston [1986] ECR 1651, para 18.

  18. 18.

    Case 14/83 Von Colson [1984] ECR 1891.

  19. 19.

    Cf., also, e.g., Prechal and Widdershoven (2011), p. 34.

  20. 20.

    Case 294/83 Les Verts [1986] ECR 1339.

  21. 21.

    Cf., e.g., Engstroem (2009), pp. 37–39 (especially footnote 200).

  22. 22.

    Cf., in particular, Case 222/84 Johnston [1986] ECR 1651, paras 18–19; and, consequently, e.g., Case 222/86 Heylens [1987] ECR 4097, paras 14–16; and Case C-97/91 Borelli [1992] ECR I-6313, para 14.

  23. 23.

    Cf., e.g., W, B and R v United Kingdom Series A No 121 (1987).

  24. 24.

    Kudla v Poland [2000] ECHR 512, 35 EHRR 11.

  25. 25.

    Specifically, the Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights, vol. II, pp. 485 and 490, and vol. III, p. 651.

  26. 26.

    Kudla v Poland [2000] ECHR 512, 35 EHRR 11, para 152.

  27. 27.

    Kudla v Poland [2000] ECHR 512, 35 EHRR 11, para 158.

  28. 28.

    Cf. Silver v United Kingdom Series A No 61, [1983] 5 EHRR 347, para 113.

  29. 29.

    Opinion of Advocate General Cruz Villalón in Case C-69/10 Samba Diouf [2011] ECR I-7151, para 39.

  30. 30.

    Cf., also, Case C-199/11 Otis [2012] (OJ 2013 C 9, p. 14) (EU:C:2012:684), para 47.

  31. 31.

    Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) 29.

  32. 32.

    Case 222/84 Johnston [1986] ECR 1651, para 18; cf., further, Póltorak (2015), p. 47.

  33. 33.

    Case C-175/11 HID [2013] ECR I-nyr (ECJ 31 Januar 2013) (OJ 2013 C 86, p. 3) (EU:C:2013:45), para 102.

  34. 34.

    Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13), preamble recital 27 (second sentence). Cf. now Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

  35. 35.

    In other words, it is suggested that—even within the framework drawn up by Walter van Gerven—various types of relationships between European Union law rights and remedies are possible. Rebecca Williams has set out two such relationships, referring to them as ‘model 1’ and ‘model 2’: either the case-law on rights and remedies ‘is simply to be regarded as requiring the existence of a cause of action’ (model 1), a position which bears similarities to that adopted by the European Convention for the Protection of Human Rights and Fundamental Freedoms; or it requires ‘not just the existence of any actionable story at national level, but the existence of a particular cause of action’ (model 2), cf. Williams (2010), pp. 569–570. Another scholar has similarly noted that at times an issue arises as to whether ‘it is the right to reparation rather than the mere availability of a cause of action that is guaranteed by EU law’, cf. Dunne (2014), p. 1822.

  36. 36.

    Engstroem (2009), p. 57.

  37. 37.

    Case 199/82 San Giorgio [1983] ECR 3595.

  38. 38.

    Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357.

  39. 39.

    Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029.

  40. 40.

    Case C-94/10 Danfoss [2011] ECR I-9963.

  41. 41.

    Cf. Sect. 2.3.2.

  42. 42.

    Prechal and Widdershoven (2011), p. 50.

  43. 43.

    Nazzini (2009), p. 403, cf., also, p. 416.

  44. 44.

    Bobek (2014), p. 167.

  45. 45.

    Bobek (2014), p. 169.

  46. 46.

    Hjelmeng (2013), p. 1010.

  47. 47.

    Engstroem (2009), pp. 3–4.

  48. 48.

    Joined Cases C-317/08, C-318/08, C-319/08 and C-320/08 Alassini [2010] ECR I-2213, para 49.

  49. 49.

    Case C-169/14 Morcillo [2014] ECR I-nyr (ECJ 17 July 2014) (OJ 2014 C 315, p. 35) (EU:C:2014:2099), para 35.

  50. 50.

    Case C-93/12 Agrokonsulting [2013] ECR I-nyr (ECJ 27 June 2013) (OJ 2013 C 225, p. 28) (EU:C:2013:432), paras 48–58 (effectiveness) and 59–60 (judicial protection).

  51. 51.

    Case C-12/08 Mono Car Styling [2009] ECR I-6653, para 49.

  52. 52.

    Case 417/13 ÖBB Personenverkehr [2015] ECR I-nyr (ECJ 28 January 2015) (OJ 2015 C 107, p. 5) (EU:C:2015:38), para 21.

  53. 53.

    Cf. Case C-93/12 Agrokonsulting [2013] ECR I-nyr (ECJ 27 June 2013) (OJ 2013 C 225, p. 28) (EU:C:2013:432), paras 50–58.

  54. 54.

    Case C-93/12 Agrokonsulting [2013] ECR I-nyr (ECJ 27 June 2013) (OJ 2013 C 225, p. 28) (EU:C:2013:432), para 60.

  55. 55.

    Cf., in general, Poli and Tzanou (2009).

  56. 56.

    Joined Cases C-402/05 P and 415/05 P Kadi [2008] ECR I-6351, particularly, paras 334–336.

  57. 57.

    Cf., e.g., Case 417/13 ÖBB Personenverkehr [2015] ECR I-nyr (ECJ 28 January 2015) (OJ 2015 C 107, p. 5) (EU:C:2015:38), para 61.

  58. 58.

    Cf., as an example, Joined Cases C-295 to C-298/04 Manfredi [2006] ECR I-6619, paras 95 and 100.

  59. 59.

    Prechal and Widdershoven (2011), p. 40.

  60. 60.

    Case C-63/01 Evans [2003] ECR I-14447.

  61. 61.

    Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17). Cf., now, Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 163, p. 11).

  62. 62.

    Case C-63/01 Evans [2003] ECR I-14447, para 20.

  63. 63.

    Case C-63/01 Evans [2003] ECR I-14447, para 54.

  64. 64.

    Case C-63/01 Evans [2003] ECR I-14447, para 71.

  65. 65.

    Case C-63/01 Evans [2003] ECR I-14447, para 75.

  66. 66.

    Case C-63/01 Evans [2003] ECR I-14447, para 78.

  67. 67.

    Cf., to the latter, also, Article 197 TFEU.

  68. 68.

    Cf., in similar terms, Prechal and Widdershoven (2011), p. 46; with references to Prechal (2005), p. 148; and Gerbrandy (2009), pp. 41–45.

  69. 69.

    An example of judicial protection being discussed in a case unrelated to national administrations or judiciaries is provided for by the ruling in Case C-334/12 RX II Arango Jaramillo [2013] ECR I-nyr (ECJ 28 February 2013) (EU:C:2013:134). This was a review case in which the Court of Justice operated as a second appeal court. Staff in the European Investment Bank had discovered that their salary statements revealed an increase in the rate of contributions to the pension scheme. The General Court had, first, by way of analogy, deduced from an inapplicable rule on time limit that 3 months amounted to a reasonable time for filing a claim, and second, concluded that an application filed after 3 months—as the one in the case—was to be dismissed. This reasoning ran counter to established Court of Justice case law, which called for a broader assessment of whether or not a claim had been filed within a ‘reasonable time’. Upon appeal, the Court of Justice drew inspiration from the European Court of Human Rights (Anastasakis v Greece App No 41959/08 (2011). The judgment is only available in French and has not been reported). It noted, first, that the applicants were entitled to expect that the General Court would apply existing Court of Justice case law—calling for a broader assessment—and, second, that the General Court had imposed a pre-determined limitation period thus finding their applications inadmissible. As such, there had been a distortion of the concept of a reasonable period, which ‘meant the members of staff concerned were unable to defend their rights relating to their remuneration by means of an effective action before a tribunal in accordance with the conditions laid down by Article 47 of the Charter’, cf. Case C-334/12 RX II Arango Jaramillo [2013] ECR I-nyr (ECJ 28 February 2013) (EU:C:2013:134), para 45.

  70. 70.

    Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).

  71. 71.

    Opinion of Advocate General Jääskinen in Case C-61/14 Orizzonte Salute (7 May 2015) (EU:C:2015:307).

  72. 72.

    Case C-312/93 Peterbroeck [1995] ECR I-4599, para 14.

  73. 73.

    Cf. Accetto and Zleptnig (2011), p. 376.

  74. 74.

    Cf. van Gerven (2000), p. 504.

  75. 75.

    Lewis (1996), p. 127.

  76. 76.

    Engstroem (2009), p. XVI.

  77. 77.

    Joined Cases C-295 to C-298/04 Manfredi [2006] ECR I-6619, paras 95 and 100.

  78. 78.

    Case C-69/10 Samba Diouf [2011] ECR I-7151.

  79. 79.

    Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13).

  80. 80.

    As concerns the principle of equivalence , there may also be difficulties in mapping out this principle’s precise scope and consequences, but it is easily separated from the principle of judicial protection. It is also clear that the principle of equivalence covers procedural as well as substantive, remedial, rules. For example, the Court of Justice stated in Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357—the seminal ruling establishing the regime of Member State liability—that not only the procedural, but also the ‘substantive … conditions for reparation of loss and damage laid down by the national law’ must not be less favourable than those relating to similar domestic claims and not be so framed as to make it virtually impossible or excessively difficult to obtain reparation (para 43). Other commentators have long since noted that ‘if national law makes the right to reparation for loss suffered as a result of breach of domestic law subject to less stringent conditions than those laid down in the Court’s case law, the principle of equivalence requires that those conditions must also apply to a claim for reparation based on breach of Community law’ Tridimas (2001), p. 321. Another issue is that the principle of equivalence has the questionable effect that national differences are extended to the area of Union law, which may seem to contradict the effectiveness principle, cf., e.g., Bobek (2012), p. 319. While the initial idea that the Member States should not treat substantive Union law as ‘second grade’ is not itself particularly controversial—indeed, the idea that similar situations should be treated similarly is anything but novel in the European legal systems—, it is somewhat more troublesome in the Union law context, because Member States have different opinions on what should be considered ‘first grade’. Lastly, the equivalence principle poses difficulties because one has to decide which elements of national law should be compared to those affected by Union law. For instance, in Case C-118/08 Transportes Urbanos [2010] ECR I-635, the Court found that since Spanish law did not require that all administrative remedies had to be exhausted before one could question the constitutionality of a national law, in the same vein, such a requirement could not be upheld with respect to questioning the national law’s compatibility with Union law. However, the Court did not really take account of the national administration’s lack of competence to refuse to apply national legislation on the basis of its unconstitutionality versus its competence to apply Union law even where that runs counter to national legislation, cf. Opinion of Advocate General Maduro in Case C-118/08 Transportes Urbanos [2010] ECR I-635, para 37. At the end of the day then, Union law was in some sense better off than national legislation. It appears that, for the Court, this was largely justified by the fact that the Court had already, in Case C-204/03 Commission v Spain [2005] ECR I‑8389, found the relevant national law contradictory to Union law (cf. Transportes Urbanos, para 39).

  81. 81.

    Case C-279/09 DEB [2010] ECR I-13849.

  82. 82.

    Cf., in general, Engstroem (2011).

  83. 83.

    Cf. Barents (2014), pp. 1445 et seq.

  84. 84.

    Case C-470/03 AGM-COSMET [2007] ECR 1-2749, para 88.

  85. 85.

    Wenneras (2007), p. 157.

  86. 86.

    Harlow (1996), p. 206.

  87. 87.

    van Gerven (2000), p. 530.

  88. 88.

    Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes (OJ 1994 L 135, p. 5); First Council Directive 77/780/EEC of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ 1977 L 322, p. 30); Council Directive 89/299/EEC of 17 April 1989 on the own funds of credit institutions (OJ 1989 L 124, p. 16); and Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780 (OJ 1989 L 386, p. 1).

  89. 89.

    Case C-222/02 Peter Paul [2004] ECR I-9425.

  90. 90.

    Cf. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (codification) (OJ 2011 L 26, p. 1), cf. previously Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).

  91. 91.

    Case C-420/11 Leth [2013] ECR I-nyr (ECJ 14 March 2013) (OJ 1993 C 141, p. 6) (EU:C:2013:166), para 32. Cf.; conversely, but written before the judgment; Dougan (2004), p. 240.

  92. 92.

    Case T-238/07 Ristic [2009] ECR II-117 (Summ.pub.), para 60.

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    Bjarte Thorson

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Thorson, B. (2016). Individual Rights in EU Law: General Sub-Topics and Issues. In: Individual Rights in EU Law. Springer, Cham. https://doi.org/10.1007/978-3-319-32771-6_2

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