EU LAW IN MEMBER STATE COURTS: “ADEQUATE JUDICIAL PROTECTION” AND EFFECTIVE APPLICATION – AMBIGUITIES AND NONSEQUITURS IN GUIDANCE BY THE COURT OF JUSTICE?

Abstract

1. IntroductionOne of the most str iking aspects of procedural la is the role of Member State courts a nd nat ional procedural and r emedia l rules. A vast amount of EU law1 exists EU in Member Here, the focus is on the interaction of EU with national remedial and procedural law, and on the EU r equir ements for decisions by nationa l courts. The t heme of judicial protection with a view to national remedies and procedures is of broad practical relevance, even though part of the discussion in this contribution focuses especially on the context of damages claims relating to differ ent fields of EU (such as competition, free movement and employment). The issues of remedies and procedure are intertwined and may actualize in horizontal relationships between individuals as well as in vertical relationships between individuals and Member States. Both public and private law matters with an EU aspect may be instances where EU requirements for national enforcement systems are of relevance.The so-called procedural autonomy case and loyal or sincere cooperation-based principles of effectiveness and equivalence are often among the first ment ioned when the discussion concer ns relying on EU la w or r ea cting to infr ingements of EU la w in na t iona l c ourts. In addition to containing substantive and concrete rules, EU law, which needs to rely on national systems for enforcement, sets limits of acceptability for national that intertwines with EU law. Case by the Court of Justice of the EU (CJEU) on the express limits of acceptability, the twin principles of effectiveness and equivalence, has since the starting point in Rewe2 developed into a ma ssive bulk which bot h int er pr ets t he principles and, to some extent, encourages balancing them against other factors and legal concerns.Other on EU infringements before national courts includes the general principle of effective judicial protection3 and the right to an effective remedy and to a fair trial in Article 47 of the Charter of Fundamental Rights of the European Union (CFR). The relationship between the twin principles (eff ectiveness a nd equivalence) and the r ight a nd pr inciple of eff ective judicial protection may be described as blurry. A further aspect of the theme is the duty of Member States to offer sufficient judicial remedies (Article 19(1) Treaty on European Union, TEU).4 As regards the various legal bases relating to judicial protection, a rough description could be that they are all aspects of a whole which requires that appropriate judicial protection may be obtained and which requires national systems to ensure that relying on EU may be effectively achieved in national courts so that sufficiently powerful reactions to EU infringements are possible. Following this line of thought, details of the whole are also expressed by the requirements on sanctions for EU infringements, the full effectiveness of EU being an under - pinning goal.5The principle of effective judicial protection - and, post-Lisbon, increasingly also the corresponding right - seems to occupy an overarching role and to precede EU procedural autonomy law. However, the situation is anything but clear.6 Works by EU scholars have discussed the relationship between the (Rewe) principle of effectiveness and the principle of effective judicial protection, or the corresponding right.7 Here, not all issues pertaining to the legal and theoretical structure of effective judicial protection in national courts may be examined at length. However, as a background to this research it should b e not ed t ha t t he principle of (and r ight to) eff ective judic ia l protection may be described as truly interested in judicial protection in a Rechtsstaat way, whereas the principles of effectiveness and equivalence appear to be mainly motivated by effective application of EU law.8In this article, the aim is a closer look at the nuances and effects of procedural autonomy reasoning. …