Provision Of Effective Remedies In National Courts example essay topic

The complex relationship of UK law and European law has given UK litigants access to legal remedies in a wide variety of situations further illustrating the extensive impact of the latter legal system on the former. Describe and explain these legal remedies. "Member States shall take all appropriate measures... to ensure fulfilment of the obligations arising out of this treaty, or resulting from actions taken by the institutions of the community". Article 10 is essentially the legal basis for the implementation of remedies to protect community rights.

In order to explain the remedies which UK litigants use to protect Community rights it will be necessary firstly to discuss the rights that these legal remedies protect and the way in which these rights are conferred upon European citizens through the doctrines of Supremacy, Direct and Indirect effect. This discussion will help to illustrate the necessity for a variety of measures to provide real access to these rights, as well as the complexities of this implementation- are member states to be solely responsible for implementation within their own jurisdictions, or would the European Institutions be justified in becoming directly involved? Case law will illustrate the way in which the development of Community remedies conferred in article 10 has developed into a legal doctrine in its own right. In order to fulfil obligations contained within article 10, the UK had to enact the European Communities Act 1972. This was due to the UK's unique Doctrine of Parliamentary Sovereignty, which, according to Dicey, requires that "Parliament has... the right to make or unmake any law whatever".

Section 2 (2) of the European Communities Act provides that "all rights... arising under the treaties... and all such remedies... provided under the treaties... are... to be given legal effect... in the United Kingdom". All European measures would therefore be incorporated into English law through the European Communities Act. In Bulmer vs. Bollinger, Lord Denning pointed out that "The treaty... is unlike any of the enactments to which we have become accustomed... All the way through the treaty there are gaps and lacunae". One such gap lies in the realm of the Doctrine of Supremacy of Community law. Although implied within articles 10 and 189 (involving the transfer of power to the Community's institutions), it has been left to the Court of Justice to articulate this doctrine.

The first case in which it did so is that of Van Gend en Loos. The Court of Justice used the occasion to state that " The community constitutes a new legal order... for the benefit of which states have limited their sovereign rights... and the subjects of which comprise not only Member States but their nationals". The magnitude of this ruling is in its confirmation that European law confers rights onto individuals capable of being enforced in their national courts. It is expressed by Burley and Mattli as "single-handedly (transforming) the Treaty of Rome from an essentially non-enforceable international treaty to a domestic charter with direct and enforceable effects". This was followed by the case of Costa vs. ENEL where it was stated that "the law stemming from the treaty could not... be overridden by domestic legal provisions, however framed".

Here the doctrine of supremacy was further developed, and the reference to "permanent limitation of sovereign rights" established European measures as a higher tier of UK law. The Doctrine was further developed on a case-by-case basis by the Court of Justice, and in Internationale it was established that Community law would prevail even over measures of written constitutions. The Doctrine of Supremacy is crucial to the development of remedies in UK law as it renders inapplicable any measure of national law held to conflict with community law. It also paved the way for the doctrine of direct effect that allows for the enforcement of community rights in national courts.

The judgment in Van Gend en loos contained the extract: "Community law... imposes obligations on individuals but is also intended to confer rights upon them". This conferral of rights upon individuals is the basis for direct effect. The Court of Justice justified direct effect by pointing out that transfer of sovereign rights to the community is directly relevant to individuals, so they should be allowed to rely on community rights in national courts. For the benefit of observers who felt that such judicial activism amounted to a political exercise, the court set strict guidelines limiting the number of measures of community law that could confer directly effective rights. As such, provisions in question must be "sufficiently clear and precise", "unconditional", and "directly applicable". Van Gend en Loos was used to specify that treaty articles could be directly effective in Member States where individuals sought redress against the state.

This is referred to as "vertical direct effect", and the Court of Justice specifically justified it in judgment: "The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between member states and their subjects". It remained unclear however whether or not individuals could enforce treaty articles horizontally against other individuals. This question was answered positively in the case of Defrenne vs. SABENA. Here, the Court of Justice ruled that the rights conferred by article 141: "extend to all agreements which are intended to regulate paid labour collectively".

Direct Effect provides a means of access to legal remedies to a variety of UK litigants by enforcing their Community rights in national courts. In terms of other sources of European law, the same test for Direct Effect as laid down in Van Gend en Loos applies. Regulations by definition are always directly applicable, therefore those which are sufficiently clear, precise and unconditional will be directly effective, for example regulation 1612/68 relating to the employment rights available to workers within the European Union. In recognising that provisions of a directive could confer rights, the Court of Justice began to develop Direct Effect in Van Duyn vs. Home Office. Article 3 (1) of directive 64/221 was held to be directly effective against the government of the UK, despite the lack of implementation of the directive by the government of the UK, confirming that certain directives could be directly vertically effective in Member States. This means that once the deadline for a directive's implementation has expired, it can be enforced against a Member State.

In deciding that directives can have vertical effect, the Court of Justice has employed a broad definition of the state so that they can be effective not only against the government of the state but also "organs of the state". As such provisions of a directive were subsequently held to be "vertically" effective against British Gas. Those individuals who did not fall under the terms of the definition "organ of the state" would apparently avail of no remedy provided through Direct Effect. This amounted to an anomaly in that some individuals could rely on directives in national courts and others could not. For this reason the Court of Justice engineered the doctrine of Indirect Effect, initially through the case of Van Colson and Hartz. While Van Colson sought redress against an organ of the state, Van Hartz sought redress against a private company under the terms of a directive.

The access to a remedy in the former case and the lack of a remedy in the latter highlighted the existing anomaly, in turn highlighting the lack of uniformity in the application of community law. The court adopted the novel approach of adjudicating that national courts must interpret national legislation purposively to give affect to community directives. On this basis, both claimants could access legal remedy, through Direct Effect in the case of Van Colson, and through Indirect Effect in the case of Van Hartz. Indirect Effect would provide access to remedies by using the supremacy of Community law as a justification for altering the interpretation of national legal measures in national courts. This is particularly challenging to the UK, which must reconcile this new doctrine with the doctrine of Parliamentary Sovereignty, which affords parliamentary legislation primacy over any other legal form. Subsequent case law developed Indirect Effect to provide a means of accessing remedies whether the conflicting national legislation was enacted before or after the relevant directive.

Supremacy, Direct and Indirect Effect all serve as means through which community rights can be accessed in UK courts by litigants. They were also developed by the Court of Justice to promote consistency in the application of community law throughout the Community, therefore judgments involving non UK litigants must also apply in the cases of UK litigants. For this reason, it has been necessary to ensure the availability of various remedies to protect community rights, and to deter the infringement of community rights. The first case of an individual seeking remedy by pleading direct effect of community law was that of Rewe Zentralfinanz.

Here, the court decided that it was for the legal systems of member states to decide on the procedural conditions governing actions at law, therefore at this stage, European law was regarded as a solely substantive body that did not prescribe any means of implementation. It became clear in subsequent cases however that the institutions would have to take a more pro-active role in prescribing remedies to ensure the uniformity of application of community law. In terms of remedies, the court had to balance need for further involvement in prescribing remedies with a necessity not to be accused of reprehensible judicial activism. One remedy that can be claimed on the basis of direct or indirect effect is that of damages.

In the case of Von Colson and Kamann, this remedy was granted by the national Court to the litigants on the basis of a breach of a community right conferred by a directive. By German law however the litigants could only claim an amount of damages that clearly did not compensate for the damage caused as a result of the breach. The Court of Justice took this opportunity to state that while the national Courts were not obliged to impose a particular remedy, "the sanction must be as such to guarantee... effective judicial protection". It is clear from the judgment that by this stage, despite that national courts were not obliged to impose any particular remedy, the remedy imposed had to be as formidable as it would have been if the breach had have been one of national law; had to effectively protect community rights, and had to be proportionate to the breach. These specifications indicate a shift in community law from being a merely substantive body to incorporating procedural aspects by prescribing guidelines for implementation. This process was continued in the case of Marshall.

Here, the Court specified that damages paid must be "full". In the case of Francovich, it was established that the remedy of damages could be sought against the state. It was decided that a state was obliged to "make good any damage caused to individuals by a breach of community law", provided that the breach of community law had been by the state legislature, the law infringed conferred rights which had been breached resulting in damages and that the breach was "sufficiently serious". Here, the Court of Justice had directly prescribed a remedy to avail litigants in all member states, furthering of the involvement of the Court in the prescription of remedies. Another remedy available to UK litigants is that of interim relief.

In the case of Factortame, a litigant sought an interim injunction to prevent application of the Merchant Shipping Act, while the Act was under judicial review on the grounds that it breached directly effective rights of the litigants. The House of Lords found that it had no power in English law to grant interim relief of the offending Act, which temporarily suspends the enforcement of a particular legal measure. Having consulted the Court of Justice however, the House was informed that it was obliged to "disapply" rules preventing the interim relief, as they prevented community law from having "full force and effect". Here, the Court of Justice had prescribed a specific legal remedy to a member state and had actually demanded that if a remedy did not already exist within national law one must be created. Following the establishment of state liability, Factortame took their case to the House of Lords again resulting in an estimated bill of lb 100 million of damages to be paid by the UK government on application of the remedy of state liability by the House of Lords. Since Factortame, UK courts have sought to provide remedies to a varied range of litigants to protect community rights, the precise nature of the remedy altering on a case-to-case basis.

In the realm of criminal law for example convictions can be overturned if the legislation on which they are based is found to be contrary to Community law, and in contract law, discriminatory provisions in collective agreements contrary to provisions of community law can be held to be void in the event of a challenge. Concerns that the judicial activism used to enact the doctrines of supremacy, direct and indirect effect went beyond the remit of the Court of Justice were strongly reinforced by the Factortame No. 2 ruling, where the provision of effective remedies in national courts was made obligatory. Rasmussen feared that the Court was adjudicating on political issues rather than legal issues, complaining that "in its endeavour to "make Europe" the European Court went too far too often". This observer's criticism was that by developing the doctrines of Supremacy, Direct and Indirect Effect and availing remedies to litigants to enforce community rights, the Court was encroaching on the sovereignty of member states. Other observers welcomed the assertiveness of the Court. A. G Toth praised the ruling in Factortame, arguing that it was a logical progression from the then established principle of supremacy. In fact, supremacy, direct and indirect effect solidify the substantive aspects of community law by defining the rights that it confers.

It was not until these doctrines had been finalised that the Court of Justice could provide any remedial means for their enforcement. Synder has cited some disadvantages of using cases to develop Community law: "There is a real question whether the effectiveness of law can be ensured by a system triggered solely by individual claims... it is likely to be less... comprehensive than a legislative scheme". The first disadvantage that the Court cannot make any impact on law until a relevant case has been brought before it cannot be disputed. I do not entirely agree however, that the court's jurisprudence is "less comprehensive than a legislative scheme". Are the judgments of the Court not often clear and precise in comparison to the often vague, ambiguous legislative schemes of the Commission? In response to critics of the Courts activism, Burley and Mattli's argument that "the Court of Justice uses the Commission as a political bellwether" is worth consideration.

The members of the Commission are bound to act objectively and independently of national interest, and the Court of Justice uses the Commission to establish tides of political climate and acceptability. When sailing with unchartered territory, each institution relies on each other to operate effectively. The use of the Court of Justice to ensure the effectiveness of Community law as illustrated in the development of Supremacy, Direct and Indirect Effect and the prescription of remedies can therefore be justified by its close interrelation with the other institutions. "Law functions as a mask for politics" argue Burley and Mattli. "Political outcomes are decided in the language of law".

While the decisions of the Court of Justice are part of a legal procedure, the outcomes are often political.