The EU General Principle of Effectiveness and Judicial Federalism in the EU: Theorising EU Judicial Protection from a Federalist Perspective

Abstract

This paper explores the impact of the EU principle of effectiveness on the EU and national judicial systems from a federalist perspective. Legal scholarship has devoted significant attention to this principle, being an element of the “national procedural autonomy test” jointly with the principle of equivalence. It is established ECJ case law that national courts are required to apply procedural rules which comply with these principles when enforcing EU law. In particular, the principle of effectiveness is applied in order to ensure that EU-derived rights are effectively enforced at national level. This paper argues that the principle of effectiveness enhances judicial federalism in the EU. As a matter of fact, while federalist political reforms are strongly contrasted in the EU, the EU judicial system presents federalist features. Notably, the application of the principle of effectiveness by the ECJ has furthered the federalist relationship between EU and national courts by granting discretion to national courts in the enforcement of EU rights, which become subject to national procedural standards. At the same time, notwithstanding the principle of effectiveness is used in this context of an area of competence left to the Member States, such as procedural rules, through this principle the ECJ has influenced national judicial practices when enforcing EU rights. For instance, the principle of effectiveness may be applied to partially limit national courts’ decisional powers through the imposition of interpretation obligations aimed at granting EU law with full effectiveness, or to require disapplication of national procedural rules undermining the achievement of EU policies. In this sense, by allocating judicial powers between the EU and the national jurisdictions, the principle of effectiveness leads to a hybridisation of the EU and national judicial tools.