Page1

European Law Review

2011

The principle of effective judicial protection in EU law: an unruly horse?

Anthony Arnull
Subject: European Union
Keywords: Domestic remedies; EU law; National courts; Principle of effectiveness; Principle of
equivalence; Right to effective remedy
Cases: Pontin v T-Comalux SA (C-63/08) [2009] E.C.R. I-10467 (ECJ (3rd Chamber))
Impact v Minister for Agriculture and Food (C-268/06) [2008] E.C.R. I-2483 (ECJ (Grand Chamber))
Unibet (London) Ltd v Justitiekanslern (C-432/05) [2007] E.C.R. I-2271 (ECJ (Grand Chamber))
Levez v TH Jennings (Harlow Pools) Ltd (C-326/96) [1998] E.C.R. I-7835 (ECJ (1st Chamber))
Transportes Urbanos y Servicios Generales SAL v Administracion del Estado (C-118/08) [2011] All
E.R. (EC) 467 (ECJ (Grand Chamber))

*E.L. Rev. 51 Abstract

The purpose of this article is to consider the origins and scope of the general principle of effective
judicial protection in EU law. Focusing on recent case law of the Court of Justice, it examines the
implications of that principle for the national courts of the Member States and its relationship with the
principle of national procedural autonomy. In that context, particular attention is given to the
availability of alternative national remedies to the one chosen by the applicant and the duty of national
courts to raise points of EU law of their own motion. The article also looks at the effect of the principle
of effective judicial protection on the jurisdiction of the Court of Justice itself. It discusses the potential
significance of that principle's status as a general principle of EU law and speculates about how it
might develop in the future.

Introduction
“It is a very unruly horse, and when once you get astride it you never know where it will carry you. It
may lead you from the sound law.” That famous observation about the concept of public policy was
made by Burrough J. in an English case decided in the 19th century.1 It is an observation which might
equally be applied to the principle of effective judicial protection in European Union law, a principle
which appears to be assuming increasing prominence in the case law of the Court of Justice. In
theory, it applies to both the Union judicature and to the national courts of the Member States, but it is
the latter which have so far been affected most profoundly by it. For them, it belongs to the body of
principles they must apply when asked to uphold a right conferred on a litigant by Union law.
Those principles began to emerge in the mid-1970s. They deal with the remedies and procedural
rules applicable to claims in national courts based on Union law. They therefore add flesh to the
skeleton of primacy, direct effect and state liability,2 helping to bring it to life. The starting point was a
principle that has come to be known as national procedural autonomy. As the Court put it in Rewe 3 :
*E.L. Rev. 52 “In the absence of [Union] rules on this subject, it is for the domestic legal system of
each Member State to designate the courts having jurisdiction and to determine the procedural
conditions governing actions at law intended to ensure the protection of the rights which citizens have
from the direct effect of [Union] law ….”
That principle was subject to two provisos. The first is now known as the principle of equivalence,
according to which “the detailed procedural rules governing actions for safeguarding an individual's
rights under [Union] law must be no less favourable than those governing similar domestic actions”.4
The second is the so-called principle of effectiveness. This means that procedural conditions laid
down by national law may not be applied if their effect is to render “practically impossible or
excessively difficult the exercise of rights conferred by [Union] law”.5
 Page2

The next section sketches briefly the way in which the Court's attitude to national procedural
autonomy has evolved since the 1970s. The Court's contemporary approach is then considered
through an examination of the Unibet case.6 The discussion proceeds to focus on two problems which
have assumed particular prominence in recent case law: the availability of alternative national
remedies to the one chosen by the applicant and the duty of national courts to raise points of EU law
of their own motion. The article concludes with an overview of Union legislation on remedies and
some reflections on the impact the principle of effective judicial protection may have in the future.

Continuity and change in the approach of the Court

Although the appropriateness of the term “national procedural autonomy” has been questioned,7 it is a
convenient abbreviation for the approach outlined in Rewe and has been endorsed by the Court.8 The
underlying idea is consistent with the principle of subsidiarity and recognises that national procedural
rules may reflect deep-seated cultural and ethical values9 and should not be lightly set aside. Indeed,
the Court initially trod warily, showing deference to national procedural autonomy and repeatedly
urging the Union legislature to take action to harmonise national procedural rules.10
In the 1980s, the Court grew frustrated by the legislature's failure to heed its pleas for such legislation
and began to adopt a more muscular stance. This was perhaps exemplified most dramatically by
Emmott, 11 Factortame 12 and Francovich 13 in the early 1990s, where the Court gave effective
protection of Union law rights marked priority over respect for national procedural autonomy. Of equal
significance was the way in which the Court began to exploit the potential of a legislative provision on
remedies that had been adopted, even if it appeared to be limited in scope.
In its original form, art.6 of Directive 76/207 on equal treatment for men and women as regards
access to employment, vocational training and promotion and working conditions14 stated:
*E.L. Rev. 53 “Member States shall introduce into their national legal systems such measures as are
necessary to enable all persons who consider themselves wronged by failure to apply to them the
principle of equal treatment … to pursue their claims by judicial process after possible recourse to
other competent authorities.”
In Von Colson, 15 the Court said that the effect of art.6 was to require Member States,
“to adopt measures which are sufficiently effective to achieve the objective of the directive and to
ensure that those measures may in fact be relied on before the national courts by the persons
concerned.”
Sanctions for unlawful discrimination, the Court observed, had to be “such as to guarantee real and
effective judicial protection”.
The Court went a step further in Johnston, where it declared16 :
“The requirement of judicial control stipulated by that article reflects a general principle of law which
underlies the constitutional traditions common to the Member States. That principle is also laid down
in Articles 6 and 13 of the European Convention on Human Rights ….”
In other words, art.6 was merely a specific expression of a principle--that of effective judicial
protection--which was of general application. The Johnston ruling was later cited by the Court in UPA,
17
an action for the annulment of a Community regulation. In the course of upholding the decision of
the General Court that the action was inadmissible, the Court held that Member States were
responsible for establishing “a system of legal remedies and procedures which ensure respect for the
right to effective judicial protection”.18 That requirement is now enshrined in art.19(1) TEU.19
The Court's enthusiasm for interfering with national procedural autonomy in the name of the effective
protection of Union law rights eventually began to wane. The response to its decision in Emmott 20 in
particular suggested that it might have gone too far. The Court held in that case that a Member State
could not rely on a national limitation period as a defence to a claim by an individual based on a
directive unless and until the directive had been properly implemented. The ruling had the effect of
exposing a Member State to claims dating back many years, even if it had done its best to implement
the directive properly and its default had only recently come to light. In a series of cases decided in
the 1990s culminating in Fantask, 21 Emmott was effectively sidelined. This was symptomatic of a
reassessment by the Court of the importance of national procedural autonomy and heralded the start
of a less intrusive phase in its case law,22 although it remained willing to intervene where it thought
 Page3

there was a compelling case for doing so.

*E.L. Rev. 54 A new era of judicial restraint

The Unibet case

A comprehensive modern summary of the basic position was provided by the Court in Unibet. 23 The
Court began by underlining the status of the principle of effective judicial protection as a general
principle of Union law. In addition to the sources mentioned in Johnston, it noted that it was
“reaffirmed” in art.47 of the Charter of Fundamental Rights (right to an effective remedy and a fair
trial).24 The Court reiterated that, under the principle of sincere co-operation laid down in art.10 EC
(now as amended 4(3) TEU ), Member States were responsible for ensuring judicial protection of an
individual's rights under Union law. In the absence of Union rules, it was for national law to designate
the competent courts and establish a system of legal remedies and procedures which ensured
respect for the right to effective judicial protection. The procedural rules laid down had to satisfy the
familiar principles of equivalence and effectiveness. Moreover, national courts were required,
“to interpret the procedural rules governing actions brought before them … in such a way as to enable
those rules, wherever possible, to be implemented in such a manner as to contribute to the
attainment of the objective … of ensuring effective judicial protection of an individual's rights under
[Union] law.”25
However, Union law was not intended to create new remedies in the national courts unless it was
“apparent … that no legal remedy existed which made it possible to ensure, even indirectly, respect
for an individual's rights under [Union] law …”.26
What did this mean in practice? The applicants in Unibet were British and Maltese internet betting
companies who had attempted to promote their businesses in Sweden through advertisements in the
press. Their attempts had been met by legal action by the Swedish authorities against the
newspapers concerned for infringement of Swedish gaming law. The applicants brought proceedings
in the Swedish courts for interim and declaratory relief and damages. A reference was eventually
made to the Court of Justice.
The referring court's first question asked whether national law had to permit a free-standing action for
review of a national provision's compatibility with the EC Treaty where there were other legal
remedies available to a claimant that would allow that issue to be examined. The answer to this
question was essentially “no”. The Court took the view that the relevant Swedish rules satisfied the
principles of equivalence and effectiveness. Swedish law did not provide for a free-standing action for
the review of national provisions, regardless of the origin--national or Union--of the superior rule with
which they were said to be incompatible. Moreover, Swedish law did permit the compatibility issue to
be raised in proceedings before the ordinary courts or the administrative courts by way of preliminary
issue. In such proceedings, the competent court would be required to disapply the contested
provisions if it took the view that they conflicted with a higher-ranking legal rule, again regardless of
that rule's origin. Swedish law also made provision for various indirect legal remedies which could be
used to challenge the compatibility of national legislation with Union law. For example, this could be
done in the context of a claim for damages. The issue could also be raised in an application for
judicial review of a refusal to grant the applicants an exception from the prohibition laid down in the
Swedish gaming legislation.
*E.L. Rev. 55 On the question of interim relief, the applicants had been thwarted in the national
courts because their application for a declaration had been found to be inadmissible. Was that
outcome compatible with Union law? The Court said that, where there was uncertainty about the
admissibility of proceedings to protect rights derived from Union law, interim relief had to be available.
However, interim relief did not have to be available in the context of an application that was
inadmissible, unless Union law cast doubt on its inadmissibility. Where an action was admissible,
interim relief had to be available where necessary to ensure the full effectiveness of the national
court's final judgment. The Court added that the criteria to be applied by a national court in deciding to
grant interim relief were those laid down by national law. It thereby dealt with a question put to it in
Factortame in 198927 but left unanswered in that case. The response given in Unibet confirmed the
correctness of the approach taken by the House of Lords in Factortame, 28 where in granting interim
relief the House applied the guidelines laid down in American Cyanamid. 29
 Page4

Some comments on Unibet

It was already clear before Unibet that any description of the principle of national procedural
autonomy would be incomplete if it did not refer to the principles of effectiveness and equivalence.
Unibet showed, however, that national procedural autonomy was but an aspect of the broader
principle of effective judicial protection.30 It also established that the latter principle imposes on
national courts a duty of consistent interpretation reminiscent of that laid down in Marleasing. 31 A
similar duty was imposed on the national courts in UPA, 32 but its ambit was limited, merely requiring
them,
“to interpret and apply national procedural rules … in a way that enables natural and legal persons to
challenge before the courts the legality of any decision or other national measure relative to the
application to them of a Community act of general application, by pleading the invalidity of such an
act.”
The significantly broader scope of the interpretative duty imposed on national courts in Unibet will
immediately be apparent. It supports--and may help to avoid breaches of--the duty imposed on
Member States by art.19(1) TEU.
The Court's express acceptance in Unibet that the principle of effective judicial protection may
exceptionally require the creation of new national remedies finally removed the uncertainty created by
the Butter-Buying Cruises case in 1981.33 In that case, the Court said that the Treaty was not
intended to create new national remedies. This raised the question of where the distinction lay
between creating a new remedy and adapting the circumstances in which an existing remedy should
be granted. The case law suggested that the Court would rarely decline to intervene on the sole
ground that to do so would involve *E.L. Rev. 56 the creation of a new remedy in the national courts.
34
However, the dividing-line was never clearly drawn. The judgment in Unibet makes it clear that the
overriding consideration is the effective protection of Union law rights. The obligation is now
reinforced by art.19(1) TEU. Indeed, the Court might have been encouraged to take the view it did in
Unibet by the inclusion of the same provision in the Constitutional Treaty.35
The referring court had pointed out that, if the applicants ignored Swedish gaming law and
proceedings were brought against them by the national authorities, they would be able to challenge
the compatibility of the national provisions with Union law in the national courts. The Court said this
was not enough. In the absence of other remedies, effective judicial protection would not be secured
if an applicant could only test the legality of a national rule by breaking it first. A similar point was
made by A.G. Jacobs in UPA 36 and by the General Court in Jégo-Quéré 37 in the context of
annulment proceedings. When the latter case reached the Court of Justice, however, it said that, in
the absence of individual concern, “an action for annulment … should not on any view be available”,
even where national procedural rules did not allow an individual to challenge the Union act at issue
without breaking it first.38 The Court seemed to consider it acceptable for individuals to have no
remedy under what is now art.263 TFEU where access to justice in the national courts is available
only if they first break the law, but not acceptable for individuals to have no remedy in national law
unless they break the law. We shall return to this apparent paradox below.
On the criteria to be applied in dealing with applications for interim relief, the Court distinguished
between two types of case. Where the challenge in the national court was to a Union act, it said that
uniform EU criteria based on those employed by the Union Courts in considering applications for
interim measures were applicable. In cases such as Unibet, where the challenge was to a piece of
national legislation, national criteria were to be applied. This involved a departure from the
Zuckerfabrik decision,39 which suggested that the criteria applicable in both types of case were the
same. The Court seems to have been persuaded by the argument of A.G. Sharpston that, where the
principle of effectiveness was satisfied, the more appropriate comparison in cases like Unibet was
with applications for the interim suspension of a national law on purely domestic grounds. While the
judgment in Zuckerfabrik gave more weight to the uniform application of Union law, the judgment in
Unibet showed greater respect for national procedural autonomy.

The availability of alternative domestic remedies

At the heart of the Unibet case was the question whether an applicant was entitled to insist on a
particular remedy when the national system offered alternative remedies which might have been used
to protect its rights under Union law. The ambitious nature of the applicants' claim in Unibet meant
 Page5

that the Court seems to have had little difficulty in dealing with the issue. Other cases have caused it
more difficulty.

Levez v Jennings
Levez v Jennings, 40 a reference from the United Kingdom, was an equal pay case which turned on
the applicability of a national limitation period. The applicant, a woman, discovered after leaving her
job with *E.L. Rev. 57 the respondent that she had been paid less than her male predecessor even
though the work they had both done was the same. The respondent had deliberately misled the
applicant about the level of her predecessor's pay and, by the time she found out about the disparity,
she was prevented by a national limitation period from claiming arrears of pay for the first seven
months during which she had held the post. The Employment Appeal Tribunal asked the Court of
Justice whether the Union law right to equal pay precluded the application of the national limitation
period.
The Court accepted that the period laid down was not in itself objectionable. However, it took the view
that to allow an employer to rely on it in circumstances such as these would be,
“manifestly incompatible with the principle of effectiveness … Application of the rule at issue is likely,
in the circumstances of the present case, to make it virtually impossible or excessively difficult to
obtain arrears of remuneration in respect of sex discrimination. It is plain that the ultimate effect of this
rule would be to facilitate the breach of [Union] law by an employer whose deceit caused the
employee's delay in bringing proceedings for enforcement of the principle of equal pay.”41
The British Government argued before the Court that a claim based on the UK Equal Pay Act rather
than directly on the Treaty would have been subject to the same time-limit. In any event, it said, the
applicant could have brought proceedings in the county court, where the limit would not have applied.
The Court accepted that, in circumstances such as these, Member States did not have to “extend
their most favourable rules to all actions brought … in the field of employment law”.42 What the
national court had to do was “consider both the purpose and the essential characteristics of allegedly
similar domestic actions”.43
The Equal Pay Act was not the right comparator because “one and the same form of action is
involved”.44 Since the Act gave effect to the Union law principle that men and women should receive
equal pay for equal work, it could not “provide an appropriate ground of comparison against which to
measure compliance with the principle of equivalence”.45 As for proceedings in the county court, the
Court said that the existence of an alternative remedy made no difference if it was “likely to entail
procedural rules or other conditions which are less favourable” 46 than those applicable to claims
brought before employment tribunals under domestic employment law. It was for the national court to
determine whether that was so, though the Court noted that proceedings in the county court might
prove more protracted and expensive.

Impact v Minister for Agriculture and Food

The availability of alternative domestic remedies also led the Court into difficult waters in the Impact
case,47 a reference by an Irish court on the interpretation of the framework agreement on fixed-term
work annexed to Directive 1999/70.48 That directive was transposed into Irish law by an Act of
Parliament adopted in 2003, just over two years after the expiry of the deadline for its implementation.
The 2003 Act gave jurisdiction to hear complaints to a Rights Commissioner, from whom appeal lay to
the Labour Court. The applicant, a trade union, brought a claim on behalf of members employed in
various government departments for periods which straddled the date of entry into force of the 2003
Act. Neither the Rights *E.L. Rev. 58 Commissioner nor the Labour Court had jurisdiction under
national law to hear claims based on directly effective provisions of Union law. However, there were
alternative remedies available to individual employees before the ordinary courts.
The referring court's first question therefore asked whether Union law required the Rights
Commissioner or Labour Court to hear claims based directly on the directive. The Court declared that
a claim based on an infringement of the 2003 Act and a claim based directly on the directive had to
be regarded as covered by the same form of action: although their legal basis was formally distinct,
both sought the protection of the same rights. These derived from Union law, namely Directive
1999/70 and the framework agreement. Although the jurisdiction of the Rights Commissioner and the
Labour Court was not compulsory, the Court said that individuals should be able to seek protection of
rights derived directly from the directive before the same courts if splitting their action into separate
 Page6

claims, one for the period before and one for the period after the entry into force of the 2003 Act,
would lead to unacceptable procedural complications. It was for the national court to assess whether
this was so.
The Court therefore had to answer the referring court's second question, which asked whether cll.4(1)
and 5(1) of the framework agreement were directly effective. The Court held for the first time that its
case law on the direct effect of directives applied to framework agreements implemented by Council
directive, of which the Court said such agreements were “an integral component”.49 It went on to find
that cl.4(1) had direct effect, but that cl.5(1) did not. The latter provision was concerned with
preventing abuse arising from the use of successive fixed-term contracts. It gave Member States
discretion to choose from a range of alternative methods for preventing such abuse. The Court
concluded that this made it insufficiently precise to produce direct effect.
The Court was not asked to consider what effect, if any, cl.5(1) might have once a Member State had
exercised the discretion conferred on it by that provision. That issue arose in the European Schools 50
case before the English Court of Appeal, where Impact was cited. Mummery L.J. said that, once the
United Kingdom had made its choice and given effect to the directive,51 “the discretion of the United
Kingdom was exhausted and the relevant parts of the Directive became directly effective for the
purpose of engaging the principle of effectiveness”.52 This led the Court of Appeal to modify territorial
limitations applicable under domestic employment law53 which might otherwise have prevented the
claimant from enforcing his rights under the directive. No reference was made to the Court of Justice.
The third question referred in Impact also concerned cl.5(1) of the framework agreement. The
referring court wanted to know whether it precluded a Member State, acting as an employer, from
renewing a fixed-term employment contract for up to eight years shortly before the national
implementing legislation entered into force. A.G. Kokott said that, if cl.5(1) did not have direct effect,
the answer to that question had to be “no”. The Court took a different approach. It said that Member
States were required by art.4(3) TEU and the third paragraph of art.288 TFEU, as well as by the
directive itself, to take any appropriate measure to achieve the objective of preventing the abusive
use of fixed-term contracts. That obligation *E.L. Rev. 59 would be rendered ineffective if a Member
State, acting as an employer, were permitted to renew contracts for an unusually long term in any gap
there might be between the expiry of the deadline for implementation and the entry into force of the
national implementing legislation. The effect would be to deprive the individuals affected of the benefit
of that legislation for an unreasonably long time. Public authorities were not therefore entitled to
behave in that way.
This part of the judgment is problematic given the Court's ruling in response to the second question
put to it that cl.5(1) of the framework agreement could not be relied on before a national court. It has
echoes of Inter-Environnement Wallonie, 54 a case cited by A.G. Kokott but not by the Court itself. In
Inter-Environnement, it was held that Member States were required to refrain, during the period laid
down for the implementation of a directive, from adopting measures liable seriously to compromise
the result prescribed by it. That obligation was also imposed by what are now art.4(3) TEU, the third
paragraph of art.288 TFEU and the directive concerned. It might be said to extend a fortiori beyond
the expiry of the implementation deadline where measures giving effect to the directive have not been
adopted in good time.55
What then are the consequences for individuals if the prohibition is breached? One can readily
understand how a breach of the obligation, whether of the Inter-Environnement or Impact variety,
might lead to infringement proceedings, or perhaps even an action for damages, against the Member
State concerned. However, neither judgment explained what further consequences a breach of the
prohibition might produce. The ruling in Inter-Environnement was given in the context of national
proceedings brought by a private applicant for the annulment of domestic implementing legislation
introduced before the deadline for implementing the directive in question had expired. The Court did
not explain the effect of its ruling on the well-established rule56 that an individual cannot rely directly
on a directive in the national courts until the implementation period has ended. If the Court accepted
the applicant's argument that it was not seeking to assert individual rights in the national proceedings,
it did not say so.
The Court was no more forthcoming in Impact, though it seems evident that it saw no inconsistency
between the answers it gave to the second and third questions and that it expected the referring court
to apply its answer to the third question in the proceedings before it. Perhaps the prohibition, being
based in part directly on the Treaties, should be regarded as having direct effect in its own right. But
the prohibition is not based exclusively on the Treaty: it is said to be based in part on the directive. It
 Page7

is the directive which gives the duty a content that is useful to the claimant. This surely means relying
before the national court on the relevant provision of the directive (in Impact, cl.5(1) of the framework
agreement), the very thing the Court ruled, in response to the referring court's second question, could
not be done. Given that A.G. Kokott had drawn the Court's attention to the apparent inconsistency
that would arise if it chose to answer the referring court's second and third questions along these
lines, the Court's failure resolve the resulting conundrum is mystifying.
In case the referring court concluded that it did not have jurisdiction to apply the directive directly, the
Court then turned to its fourth question. This asked whether a national court's obligation to interpret
national law in conformity with Union law required it to give the 2003 Act retrospective effect to the
date by which the directive should have been implemented. In reality, this question related only to the
section transposing cl.4 of the framework agreement. It was agreed that the section transposing cl.5
could not be interpreted in this way. The referring court drew attention to a national rule of
interpretation which precluded *E.L. Rev. 60 the retrospective application of legislation unless there
was a clear and unambiguous indication that this was intended. The Court said that it was for the
national court to establish whether the relevant section contained any such indication. If it did, then
the section would have to be given retrospective effect. But if it did not, Union law would not require it
to be given such effect, because this would amount to interpreting the section contra legem.
This strikingly restrained approach to the application of the principle of consistent interpretation may
be contrasted with the more robust statement of the principle in Pfeiffer, 57 where the Court was at
pains to emphasise that it required the referring court “to do whatever lies within its jurisdiction, having
regard to the whole body of rules of national law” to ensure that the directive in question was “fully
effective”. The more sanguine approach of the Court in Impact was of a piece with its recent case law
on the principle of national procedural autonomy, but made the answer it gave to the third question all
the more puzzling.

Pontin v T-Comalux
The Levez and Impact cases were among those cited by the Court in Pontin, 58 a dispute over the
dismissal of a pregnant employee which again required it to consider the importance of alternative
domestic remedies. The essential question raised by the case was whether national law could restrict
the remedies available to the employee to nullity and reinstatement, to the exclusion of all other
remedies under employment law such as an action for damages.
Pregnant workers benefit from the provisions of Directive 92/85 on the introduction of measures to
encourage improvements in the safety and health at work of pregnant workers and workers who have
recently given birth or are breastfeeding.59 Article 12 of that directive provides:
“Member States shall introduce into their national legal systems such measures as are necessary to
enable all workers who [consider] themselves wronged by failure to comply with the obligations
arising from this Directive to pursue their claims by judicial process (and/or, in accordance with
national laws and/or practices) [sic ] by recourse to other competent authorities.”
Moreover, art.2(7) of Directive 76/20760 provided:
“Less favourable treatment of a woman related to pregnancy or maternity leave with the meaning of
Directive 92/85/EEC shall constitute discrimination within the meaning of this Directive.”
Like the provision of Directive 76/207 considered in Johnston, art.12 of Directive 92/85 was said by
the Court in Pontin to constitute “a specific expression, in the context of that directive, of the principle
of effective judicial protection of an individual's rights under [Union] law”.61 Measures chosen by
Member States to give effect to that provision had to be,
“such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with
regard to the employer and must be commensurate with the injury suffered … .”62
*E.L. Rev. 61 The Court concluded that national legislation laying down a specific remedy with its
own procedural rules where workers covered by Directive 92/85 were dismissed was legitimate as
long as the principles of equivalence and effectiveness were satisfied. The Court cast doubt on the
compatibility with the latter principle of a short limitation period such as that laid down by the national
legislation in question, but made it clear that this was a matter for the national court to determine. If
the national court were to conclude that an action for nullity and reinstatement did not comply with the
principle of effectiveness, this would be “an infringement of the requirement to provide effective
 Page8

judicial protection” laid down in Directive 92/85. That would in turn constitute “less favourable
treatment of a woman related to pregnancy” for the purposes of art.2(7) of Directive 76/207 and
therefore amount to discrimination within the meaning of that directive. In that event, the national
court,
“would have to interpret the domestic jurisdictional rules in such a way that, wherever possible, they
contribute to the attainment of the objective of ensuring effective judicial protection of a pregnant
woman's rights under [Union] law ….”63

Transportes Urbanos y Servicios Generales

A more straightforward case was Transportes Urbanos y Servicios Generales, 64 a reference by the
Spanish Supreme Court which arose out of a claim by Transportes Urbanos against Spain for
damages in respect of a breach of Union law. At the origin of the claim was Spanish legislation
imposing restrictions on the right of taxpayers to deduct VAT. Taxpayers were required to calculate
for themselves the amount of VAT for which they were liable, though they could ask for their
self-assessments to be checked and overpayments refunded. In proceedings against Spain brought
by the Commission,65 the Court held that the limitations on the right to deduct VAT were incompatible
with Union law. In Transportes Urbanos, the applicant claimed damages corresponding to VAT unduly
collected from it. It had not asked for its self-assessments to be checked. Although its right to do so
had become time-barred by the time of the Court's judgment in the proceedings brought by the
Commission, this led to the dismissal of its claim by the competent Spanish court. Case law of the
Spanish Supreme Court was said to establish that, in circumstances such as these, administrative
and judicial remedies had to be exhausted before a claim for damages could be brought. However, in
its order for reference, the Spanish Supreme Court explained that actions for damages against the
State arising from the incompatibility of legislation with the Spanish Constitution were not subject to
the prior exhaustion of other remedies. This was due essentially to the difficulty of establishing the
unconstitutionality of legislation under Spanish law.66
The Court said that the fundamental question was whether,
“in the light of their purpose and their essential characteristics, the action for damages brought by
Transportes Urbanos, alleging breach of European Union law, and the action which that company
could have brought on the basis of a possible breach of the Constitution may be regarded as similar
….”67
The Court noted that:
*E.L. Rev. 62 “If Transportes Urbanos had been able to base its action for damages on a judgment
of the Tribunal Constitucional [Constitutional Court] declaring the legislation in question to be void on
the ground of breach of the Constitution, that action might have succeeded, irrespective of the fact
that that company had not requested the rectification of those self-assessments before the time-limits
for doing so had expired.”68
The Court concluded that the two actions were to be regarded as similar and that the principle of
equivalence therefore precluded the application of a requirement such as that at issue in the main
proceedings.

The duty of national courts to raise issues that have not been pleaded
The Court's more measured approach to the principle of national procedural autonomy is clearly
evident in a series of cases dealing with the right of national courts to raise issues of their own
motion.69 The essential issue in such cases is whether national restrictions on that right are
overridden where their effect would be to exclude the application of Union law. The issue came to the
fore in two cases decided in the mid-1990s on the same day, Peterbroeck 70 and Van Schijndel. 71 In
the first case, the Court found that a procedural rule affecting the power of national courts to raise
issues of their own motion was incompatible with Union law, but in the second it came to the opposite
conclusion. A.G. Jacobs said in Van Schijndel that it would be going further than was necessary to
ensure effective judicial protection to insist that national procedural rules should always give way to
Union law. This would “unduly subvert established principles underlying the legal systems of the
Member States”.72 Although some divergence in the way Union law was applied might result, this was
“a consequence of the variety of the national legal systems themselves”.73
The Van Schijndel and Peterbroeck cases were hard to reconcile,74 but the latter has come to seem
 Page9

out of line with the developing trend of the case law. The Van der Weerd case75 again raised the
compatibility with Union law of national provisions restricting the right of courts to raise issues of their
own motion. The Court followed Van Schijndel and held that provisions such as those at issue in the
main action were compatible with Union law. The Court said that Peterbroeck could,
“be distinguished by circumstances peculiar to the dispute, which led to the applicant in the main
proceedings being deprived of the opportunity to rely effectively on the incompatibility of a domestic
provision with [Union] law ….”76
A.G. Maduro, whose Opinion was followed by the Court, declared:
*E.L. Rev. 63 “The principle of effectiveness does not impose a duty on national courts to raise a
plea based on [Union] law of their own motion, even when the plea would concern a provision of
fundamental importance to the [Union] legal order.”77
It simply required national law to give the parties “a genuine opportunity to raise a plea based on
[Union] law before a national court”.78
The issue arose in a novel way in Heemskerk ,79 a reference by a Dutch court. The context was a
challenge by two exporters to an attempt by a national authority to recover part of an export refund
paid to them under Union legislation. The referring court took the view that the national authority
might have made a mistake in interpreting that legislation and that the amount it was seeking to
recover was too low. Dutch administrative law contained a principle prohibiting reformatio in pejus,
which meant that individual litigants could not be placed in a worse position than if they had not
brought the action. The referring court asked the Court of Justice whether national courts were
required to consider questions of Union law of their own motion even where the result would be to
infringe that principle. The Court disagreed with A.G. Bot on this point and said that the answer to the
referring court's question was “no”. Such a requirement would be contrary to the principles of respect
for the rights of the defence, legal certainty and protection of legitimate expectations.

Union legislation on remedies

The political institutions were slow to respond to the Court's early pleas for comprehensive legislative
action on remedies and even now Union legislation in that field remains piecemeal in nature.
Examples of such legislation are given below. Some of it has followed the Court's lead, but some has
inspired important developments in the case law. The overarching principle of effective judicial
protection conditions the interpretation of all legislation of this type.

Free movement of persons

A notable early example of a legislative act containing provisions on remedies was Directive 64/221on
the co-ordination of special measures concerning the movement and residence of foreign nationals
which are justified on grounds of public policy, public security or public health.80 Articles 8 and 9 of
that directive were designed to ensure that individuals had adequate legal remedies against
administrative decisions taken against them on the basis of those grounds. Directive 64/221was
repealed by Directive 2004/38 on the right of citizens of the Union and their family members to move
and reside freely within the territory of the Member States.81 Article 31 of the latter directive contains
new provisions conferring procedural safeguards on those who are the subject of decisions based on
considerations of public policy, public security or public health. Those safeguards to some extent
reflect the case law on the corresponding *E.L. Rev. 64 provisions of Directive 64/221 and it seems
likely that the Court will draw on that case law as it fleshes out the requirements of art.31.82

Equal treatment for men and women

We saw above how a provision in one of the early directives on equal treatment for men and women
prompted the Court to recognise the principle of effective judicial protection as a general principle of
law. The provision in question, art.6 of Directive 76/207, was replicated in other early directives on
equal treatment.83 The legislation now in force on that subject contains much more developed
provisions on remedies and enforcement.84 It includes provisions on sanctions85 which build on the
Court's decision in Marshall II. 86 It also includes rules on the burden of proof87 which first appeared in
Directive 97/80. As the preamble to that directive acknowledged,88 the case law of the Court89 had
established “that the rules on the burden of proof must be adapted when there is a prima facie case of
discrimination and that, for the principle of equal treatment to be applied effectively, the burden of
 Page10

proof must shift back to the respondent when evidence of such discrimination is brought”.

Public procurement
As is well known, elaborate remedial provisions have been laid down by the Union legislature in the
field of public procurement. Article 1(1) of Directive 89/66590 provides:
*E.L. Rev. 65 “Member States shall take the measures necessary to ensure that … decisions taken
by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible …
on the grounds that such decisions have infringed [Union] law in the field of public procurement or
national rules transposing that law.”
The Directive then elaborates on that requirement, in particular by laying down more precise
requirements which national review procedures must satisfy on such matters as interlocutory
procedures, the setting aside of unlawful decisions by contracting authorities, damages and time
limits.91
The success of the remedies legislation in securing compliance with the Union rules on public
procurement has so far been limited.92 Disgruntled contractors often seem reluctant to challenge
contracting authorities in the courts, seeing litigation as protracted, costly and uncertain and liable to
provoke retaliation by the defendant.93 Contractors may prefer to “get on with the business of winning
contracts in the knowledge that they will not always be successful”.94 Partly because of this, the
Commission has been active in bringing infringement proceedings against defaulting Member States.
95
A recent example is Commission v Ireland, 96 where the defendant state was found to have failed to
fulfil its obligations under an earlier version of art.1(1) of Directive 89/665. Whether recent
amendments to that directive will improve matters remains to be seen.

Consumer protection
There are also important remedial provisions in Union legislation on consumer protection. Article 6(1)
of Directive 93/13 on unfair terms in consumer contracts97 provides:
“Member States shall lay down that unfair terms used in a contract concluded with a consumer by a
seller or supplier shall, as provided for under their national law, not be binding on the consumer and
that the contract shall continue to bind the parties upon those terms if it is capable of continuing in
existence without the unfair terms.”
Article 7(1) requires Member States to ensure that “adequate and effective means exist to prevent the
continued use of unfair terms in contracts concluded with consumers by sellers or suppliers”.
The effect of these provisions was considered in Asturcom, 98 a reference by a Spanish court
concerning the enforcement of an arbitration award made in a consumer dispute. The consumer
concerned had not played any part in the arbitration proceedings, nor had she challenged the
arbitration award after it was made, with the result that it had become final. Was a national court
asked to enforce the award required to examine of its own motion whether the contract the consumer
had entered into was unfair for the purposes of Directive 93/13?
*E.L. Rev. 66 In Océano Grupo, 99 the Court said that the system of protection introduced by
Directive 93/13 was “based on the idea that the consumer is in a weak position vis-à-vis the seller or
supplier, as regards both his bargaining power and his level of knowledge”. It went on:100
“The aim of Article 6 of the Directive, which requires Member States to lay down that unfair terms are
not binding on the consumer, would not be achieved if the consumer were himself obliged to raise the
unfair nature of such terms. In disputes where the amounts involved are often limited, the lawyers'
fees may be higher than the amount at stake, which may deter the consumer from contesting the
application of an unfair term. While it is the case that, in a number of Member States, procedural rules
enable individuals to defend themselves in such proceedings, there is a real risk that the consumer,
particularly because of ignorance of the law, will not challenge the term pleaded against him on the
grounds that it is unfair. It follows that effective protection of the consumer may be attained only if the
national court acknowledges that it has power to evaluate terms of this kind of its own motion.”
The decision in Asturcom was more nuanced, reflecting the restraint evident in other recent case law.
Underlining the importance of the principle of res judicata, the Court took the view that the consumer
had had a reasonable opportunity to challenge the arbitration award. It therefore concluded that the
 Page11

national court was not required to compensate for what it described as the “total inertia” 101 of the
consumer. However, while the principle of effectiveness was satisfied, the Court found a potential
infringement of the principle of equivalence. This was because, under Spanish law, a court asked to
enforce an arbitration award could assess of its own motion whether an arbitration clause in a
consumer contract was compatible with national rules of public policy. The Court said that the
relevant provisions of the directive had to be treated as having the same status as such rules.
Also worth noting is Directive 85/374 on the approximation of the laws, regulations and administrative
provisions of the Member States concerning liability for defective products,102 which contains both
substantive and remedial provisions. The Commission has submitted a proposal for a new directive
on consumer rights to ensure a higher level of consistency between existing directives and regulate
the legal consequences of failure to comply with the requirements they lay down.103

Environmental protection
In the field of environmental law, the Aarhus Convention on Access to Information, Public
Participation in Decision-Making and Access to Justice in Environmental Matters, which was signed
by the Community in 1998 and approved by the Council in 2005,104 led to amendments to relevant
Union directives. One of *E.L. Rev. 67 them was Directive 85/337 on the assessment of the effects
of certain public and private projects on the environment,105 into which a new art.10a was inserted.106
It provides as follows:
“Member States shall ensure that, in accordance with the relevant national legal system, members of
the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a Member State
requires this as a precondition,
Member States shall determine at what stage the decisions, acts or omissions may be challenged.
What constitutes a sufficient interest and impairment of a right shall be determined by the Member
States, consistently with the objective of giving the public concerned wide access to justice … .”
That provision played an important part in the Court's decision in Mellor, 107 which raised the question
whether a national authority had to give reasons when deciding not to proceed to an environmental
impact assessment under Directive 85/337. The applicant argued that reasons were necessary in
these circumstances “in order to guarantee effective judicial protection of the environment and the
rights of citizens”.108 The Court observed:
“Effective judicial review, which must be able to cover the legality of the reasons for the contested
decision, presupposes in general, that the court to which the matter is referred may require the
competent authority to notify its reasons. However where it is more particularly a question of securing
the effective protection of a right conferred by [Union] law, interested parties must also be able to
defend that right under the best possible conditions and have the possibility of deciding, with a full
knowledge of the relevant facts, whether there is any point in applying to the courts.”109
It concluded that reasons did not have to be given in the national authority's determination itself, but
that the authority was obliged to give its reasons, or supply the relevant information and documents, if
requested to do so by an interested party.
Article 10a was also in issue in Djurgården-Lilla Värtans Miljöskyddsförening, 110 which concerned
access to a review procedure in order to challenge a decision authorising a project likely to have a
significant environmental impact. The applicant, an environmental protection association, challenged
a national rule to the effect that such associations could only appeal against certain decisions
concerning development consent if they had at least 2,000 members. The Court held that, while a
membership condition might in principle be acceptable, the threshold should not,
“be fixed by national law at such a level that it runs counter to the objectives of Directive 85/337 and
in particular the objective of facilitating judicial review of projects which fall within its scope.”111
*E.L. Rev. 68 The Court noted that a very low threshold could prejudice the position of locally-based
associations which might be best placed to deal with projects of more limited size. It concluded that
art.10a of Directive 85/337 precluded a national provision fixing the minimum threshold at 2,000.
 Page12

The importance of legislation and the role of the Court

The success of measures such as these in helping to achieve policy objectives depends on a range
of factors, some of which were alluded to above in the context of public procurement. They include
the presence of actors with an interest in mounting legal claims and access to the necessary
expertise and resources. Where actors lack resources or feel that litigation would be damaging to
relationships they value, disputes may be resolved through informal means.112 While attractive to the
parties, these may be less effective in protecting the Union's interest in seeing its law upheld. In any
event, where parties are willing and able to bring legal proceedings to assert their rights, they should
be provided with effective remedies to enable them to do so. This is an aspect of the rule of law, one
of the values on which the Union is founded.113 While measures such as those referred to above are
useful, there remains a need for legislation of general application codifying the extensive case law of
the Court to make it more visible and accessible to the citizen. But even if such legislation were to be
adopted, the Court would still have a central role in interpreting it and working out its relationship with
the general principle of effective judicial protection.

The future
Since the 1970s, the Court has taken the lead in ensuring that the remedial and procedural conditions
laid down by the Member States are adequate to ensure that the rights conferred on individuals by
Union law are protected in practice. The extent to which it has been willing to interfere with national
procedural autonomy has varied, however, and the case law since the early 1990s has been marked
by greater restraint than that of the preceding decade or so. However, the tectonic plates of Union law
may be in the process of shifting again. The general principle of effective judicial protection seems to
have established itself as hierarchically superior to that of national procedural autonomy. Article 19(1)
TEU, which partially enshrines the former principle in the Treaty, is likely to be the subject of
references to the Court and perhaps even infringement actions against Member States whose
remedies the Commission deems inadequate. Perhaps more significantly, the principle of effective
judicial protection, as a general principle of law, belongs to the primary law of the EU114 and enjoys
“constitutional status”.115 It was established in Mangold that such principles may in certain
circumstances produce direct effect.116 Could this lead to renewed activism on the part of the Court?
The Impact case shows the tectonic plates grinding against each other. The way the Court dealt in
that case with the issues of direct effect and consistent interpretation was conventional, even
restrained. The *E.L. Rev. 69 puzzling answer it gave to the referring court's third question was more
radical and may have reflected increased preoccupation with ensuring effective judicial protection of
Union law rights. This perhaps also helps to explain the case law on so-called incidental effect, which
began with CIA Security 117 and which has yet to be satisfactorily reconciled with the established case
law on the direct effect of directives.118 It is even conceivable that the Court might feel emboldened by
the principle of effective judicial protection to find that directives embodying rights enshrined in the
Charter of Fundamental Rights119 impose obligations directly on individuals, even though art.51(1) of
the Charter makes it clear that it is not addressed to them.120 But Impact and CIA Security, like
Mangold, show how disruptive of established nostrums such a development would be. The Court's
frequent unwillingness or inability, so clearly evident in those cases, to explain satisfactorily how new
developments can be reconciled with established case law have made severe legal uncertainty one of
the defining characteristics of the modern era.
The status of the principle of effective judicial protection as a general principle of law poses another
challenge for the Court. The Court accepted in UPA 121 that the principle applied, not just to national
remedies, but also to those created by the Treaties. In Kadi, 122 for example, the Court found that the
manner in which the contested regulation was adopted--which failed to respect the claimants' right to
be heard--led to an infringement of the principle of effective judicial protection, because it prevented
the Court from reviewing the substantive lawfulness of the regulation. However, when it comes to the
exercise of its own powers the Court seems uncertain about how much weight to give that principle.
In UPA the Court said that it could not have the effect of overriding a condition (namely individual
concern) “expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the
Treaty on the [Union] courts”.123 This was clearly an allusion to the principle of conferral, the status of
which was subsequently reinforced at Lisbon.124 Leaving aside the obvious retort that the relevant
Treaty provision might have been interpreted consistently with that principle, it is not self-evident that
a principle of constitutional status might not in the last resort prevail over the language of the Treaty,
particularly when the principle concerned reflects provisions of the European Convention on Human
Rights which are themselves replicated in the Charter of Fundamental Rights.125 Indeed, in holding in
 Page13

Gestoras Pro Amnistía 126 and Segi 127 that its jurisdiction to give preliminary rulings under the old
Article 35 TEU was not confined to the acts listed in the first *E.L. Rev. 70 paragraph of that
provision, the Court effectively construed it contra legem in order to ensure effective judicial protection
of the claimants' rights.128
An opportunity for the Court to clarify this issue will come when it is called upon to interpret the new
standing rules in art.263 TFEU. These now say that private applicants challenging a regulatory act
which does not entail implementing measures need only show direct concern. The imprecise term
“regulatory act” is not defined.129 The Court's approach to its interpretation130 will provide a measure of
the importance it now attributes to the principle of effective judicial protection.
Barber Professor of Jurisprudence. This article is based on a paper presented at a conference held at
King's College London on June 18, 2010. I am grateful to Michael Dougan for his comments on some
of the issues discussed. The usual disclaimer applies.
E.L. Rev. 2011, 36(1), 51-70

1.
Richardson v Mellish (1824) 2 Bing. 229 at 252; [1824] All E.R. Rep. 258 at 266.

2.
On State liability, see Francovich v Italy (C-6/90 and C-9/90) [1991] E.C.R. I-5357 at [42]-[43]; Danske Slagterier v Bundesrepublik
Deutschland (C-445/06) [2009] E.C.R. I-2119.

3.
Rewe Zentralfinanz eG v Landwirtschaftskammer für das Saarland (33/76) [1976] E.C.R. 1989; [1977] 1 C.M.L.R. 533 at [5]. This
formulation continues to be used by the Court virtually unchanged: see e.g. Danske Slagterier (C-445/06) [2009] E.C.R. I-2119 at [31].

4.
Unibet London Ltd v Justitiekanslern (C-432/05) [2007] E.C.R. I-2271; [2007] 2 C.M.L.R. 30 at [43].

5.
Unibet (C-432/05) [2007] E.C.R. I-2271 at [43].

6.
Unibet (C-432/05) [2007] E.C.R. I-2271 at [43].

7.
See C. Kakouris, “Do the Member States possess judicial procedural ‘autonomy’?” (1997) 34 C.M.L. Rev. 1389.

8.
See Adeneler v Ellinikos Organismos Galaktos (C-212/04) [2006] E.C.R. I-6057; [2006] 3 C.M.L.R. 30 at [95]; Angelidaki v Organismos
Nomarkhiaki Aftodiikisi Rethimnis (C-378/07-C-380/07) [2009] E.C.R. I-3071; [2009] 3 C.M.L.R. 15 at [174] and [176].

9.
See J. Delicostopoulos, “Towards European procedural primacy in national legal systems” (2003) 9 E.L.J. 599.

10.
See A. Arnull, The European Union and its Court of Justice, 2nd edn (Oxford: Oxford University Press, 2006), Ch.9; more generally, M.
Dougan, National Remedies Before the Court of Justice: Issues of Harmonisation and Differentiation (Oxford: Hart Publishing, 2004).

11.
Emmott v Minister for Social Welfare (C-208/90) [1991] E.C.R. I-4269; [1991] 3 C.M.L.R. 894.

12.
R. v Secretary of State for Transport Ex p. Factortame (C-213/89) [1990] E.C.R. I-2433; [1990] 3 C.M.L.R. 1.

13.
Francovich (C-6/90 and C-9/90) [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66.

14.
[1976] OJ L39/40.

15.
Von Colson and Kamann v Land Nordrhein-Westfalen (C-14/83) [1984] E.C.R. 1891; [1986] 2 C.M.L.R. 430.

16.
Johnston v Chief Constable of the Royal Ulster Constabulary (222/84) [1986] E.C.R. 1651 at [18].

17.
Unión de Pequeños Agricultores (UPA) v Council (C-50/00 P) [2002] E.C.R. I-6677; [2002] 3 C.M.L.R. 1 at [39].

18.
UPA (C-50/00 P) [2002] E.C.R. I-6677 at [41].
 Page14

19.
It should really have been included at the end of art.4(3) TEU. It seems out of place in art.19, for that provision is located in a title headed
“Provisions on the Institutions” and the rest of it is concerned with the Court of Justice of the European Union.

20.
Emmott (C-208/90) [1991] E.C.R. I-4269.

21.
Fantask A/S v Industriministeriet (C-188/95) [1997] E.C.R. I-6783; [1998] 1 C.M.L.R. 473. See also Danske Slagterier [2009] E.C.R.
I-2119 at [54]-[55].

22.
See A. Arnull, The European Union and its Court of Justice, 2006, pp.300-334.

23.
Unibet (C-432/05) [2007] E.C.R. I-2271 at [37]-[44]. See A. Arnull, “Case C-432/05, Unibet (London) Ltd v Justitiekanslern” (2007) 44
C.M.L. Rev. 1763.

24.
See further D. Leczykiewicz, “‘Effective Judicial Protection’ of Human Rights After Lisbon: Should National Courts be Empowered to
review EU Secondary Law?” (2010) 35 E.L. Rev. 326; Soprope -- Organizacoes de Calcado Lda v Fazenda Publica (C-349/07) [2008]
E.C.R. I-10369; [2009] 2 C.M.L.R. 5.

25.
Unibet (C-432/05) [2007] E.C.R. I-2271 at [44].

26.
Unibet (C-432/05) [2007] E.C.R. I-2271 at [41].

27.
Factortame (C-213/89) [1990] E.C.R. I-2433.

28.
See R. v Secretary of State for Transport Ex p. Factortame (No.2) [1991] 1 A.C. 603; [1990] 3 C.M.L.R. 375 HL.

29.
See American Cyanamid Co v Ethicon Ltd [1975] A.C. 396 HL.

30.
The later statement of A.G. Kokott that the principle of effective legal protection is a “specific expression of the principle of effectiveness”
is, it is submitted, inconsistent with the judgment in Unibet. See R. (on the application of Mellor) v Secretary of State for Communities and
Local Government (C-75/08) [2009] E.C.R. I-3799; [2010] P.T.S.R. 880 at [28] of her Opinion.

31.
Marleasing SA v La Comercial Internacional de Alimentation SA (C-106/89) [1990] E.C.R. I-4135; [1992] 1 C.M.L.R. 305.

32.
UPA (C-50/00 P) [2002] E.C.R. I-6677 at [42].

33.
Rewe-Handelsgesellschaft Nord mbH v Hauptzollamt Kiel (158/80) [1981] E.C.R. 1805; [1982] 1 C.M.L.R. 449.

34.
e.g. Amministrazione delle Finanze dello Stato v Simmenthal SpA (106/77) [1978] E.C.R. 629; [1978] 3 C.M.L.R. 263; Factortame
(C-213/89) [1990] E.C.R. I-2433; Courage Ltd v Crehan (C-453/99) [2001] E.C.R. I-6297; [2001] 5 C.M.L.R. 28; Muñoz v Superior
Fruiticola (C-253/00) [2002] E.C.R. I-7289; [2001] 3 C.M.L.R. 26.

35.
Article I-29(1) CT.

36.
UPA v Council (C-50/00 P) [2002] E.C.R. I-6677, Opinion of A.G. Jacobs at [43].

37.
Jégo-Quéré v Commission (T-177/01) [2002] E.C.R. II-2365; [2001] 2 C.M.L.R. 44 at [45].

38.
Commission v Jégo-Quéré (C-263/02 P) [2004] E.C.R. I-3425; [2004] 2 C.M.L.R. 12 at [34].

39.
Zuckerfabrik Süderditmarschen v Hauptzollamt Itzehoe (C-143/88 and C-92/89) [1991] E.C.R. I-415.

40.
Levez v Jennings (C-326/96) [1998] E.C.R. I-7835; [1999] 2 C.M.L.R. 363. See also Preston v Woverhampton Healthcare NHS Trust
(C-78/98) [2000] E.C.R. I-3201; [2000] 2 C.M.L.R. 837.

41.
Levez v Jennings (C-326/96) [1998] E.C.R. I-7835 at [32].

42.
Levez v Jennings (C-326/96) [1998] E.C.R. I-7835 at [42]. See also Edis v Ministero delle Finanze (C-231/96) [1998] E.C.R. I-4951;
 Page15

[1999] 2 C.M.L.R. 995 at [36].

43.
Levez v Jennings (C-326/96) [1998] E.C.R. I-7835 at [43].

44.
Levez v Jennings (C-326/96) [1998] E.C.R. I-7835 at [47].

45.
Levez v Jennings (C-326/96) [1998] E.C.R. I-7835 at [48].

46.
Levez v Jennings (C-326/96) [1998] E.C.R. I-7835 at [53].

47.
Impact v Minister for Agriculture and Food (C-268/06) [2008] E.C.R. I-2483; [2008] 2 C.M.L.R. 47.

48.
Directive 1999/70 concerning the framework agreement on fixed term work concluded by ETUC, UNICE and CEEP [1999] OJ L175/43.
This directive was also relevant in Mangold v Helm (C-144/04) [2005] E.C.R. I-9981; [2006] 1 C.M.L.R. 43. See further below.

49.
Impact (C-268/06) [2008] E.C.R. I-2483 at [58].

50.
Duncombe v Department for Education and Skills [2009] EWCA Civ 1355; [2010] 2 C.M.L.R. 14. See also Bleuse v MBT Transport Ltd
[2008] I.R.L.R. 264 EAT, which involved Directive 2003/88 concerning certain aspects of the organisation of working time [2003] OJ
L299/9.

51.
The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, made under s.45 of the Employment Rights
Act 2002. Of the options mentioned in cl.5(1) of the framework agreement, the Regulations opted for objective justification.

52.
Duncombe v Department for Education and Skills [2009] EWCA Civ 1355; [2010] 2 C.M.L.R. 14 at [130]. cf. Marshall v Southampton and
South-West Hampshire Area Health Authority (C-271/91) [1993] E.C.R. I-4367; [1993] 3 C.M.L.R. 293.

53.
See the speech of Lord Hoffmann in Lawson v Serco Ltd [2006] UKHL 3; [2006] I.C.R. 250, concerning the territorial scope of s.94(1) of
the Employment Rights Act 1996 on the right of employees not to be unfairly dismissed.

54.
Inter-Environnement Wallonie ASBL v Region Wallonie (C-129/96) [1997] E.C.R. I-7411; [1998] 1 C.M.L.R. 1057. See also Adeneler
(C-212/04) [2006] E.C.R. I-6057; VTB-VAB NV v Total Belgium NV (C-261/07 and C-299/07) [2009] E.C.R. I-2949; [2009] 3 C.M.L.R. 17;
Angelidaki (C-378/07 to C-380/07) [2009] E.C.R. I-3071.

55.
See the Opinion of A.G. Kokott in Impact (C-268/06) [2008] E.C.R. I-2483 at [127]. cf. Mangold (C-144/04) [2005] E.C.R. I-9981.

56.
See Pubblico Ministero v Ratti (148/78) [1979] E.C.R. 1629; [1980] 1 C.M.L.R. 96.

57.
Pfeiffer v Deutsches Rotes Kreutz Kreisverband Waldshut eV (C-397/01-C-403/01) [2004] E.C.R. I-8835; [2005] 1 C.M.L.R. 44 at [118].
cf. Mono Car Styling SA v Odemis (C-12/08) [2009] E.C.R. I-6653; [2009] 3 C.M.L.R. 47 at [63]-[65].

58.
Pontin v T-Comalux (C-63/08) [2009] E.C.R. I-10467; [2010] 2 C.M.L.R. 2.

59.
Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and
workers who have recently given birth or are breastfeeding [1992] OJ L348/1.

60.
As amended by Directive 2002/73, [2002] OJ L269/15. Directive 76/207 was repealed and replaced with effect from August 15, 2009 by
Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of
employment and occupation (recast) [2006] OJ L204/23.

61.
Pontin (C-63/08) [2009] E.C.R. I-10467 at [41].

62.
Pontin (C-63/08) [2009] E.C.R. I-10467 at [42].

63.
Pontin (C-63/08) [2009] E.C.R. I-10467 at [75].

64.
Transportes Urbanos y Servicios Generales SAL v Administracion del Estado (C-118/08) [2010] 2 C.M.L.R. 39.

65.
 Page16

Commission v Spain (C-204/03) [2005] E.C.R. I-8389; [2006] S.T.C. 1087.

66.
Transportes Urbanos (C-118/08) [2010] 2 C.M.L.R. 39 at [16]-[20].

67.
Transportes Urbanos (C-118/08) [2010] 2 C.M.L.R. 39 at [35].

68.
Transportes Urbanos (C-118/08) [2010] 2 C.M.L.R. 39 at [42].

69.
See Y. Houyet, “L'application d'office du droit de l'Union européenne par les juges nationaux” (2010) 18 Journal de Droit Européen 69.

70.
Peterbroeck Van Campenhout & Cie SCS v Belgium (C-312/93) [1995] E.C.R. I-4599; [1996] 1 C.M.L.R. 793.

71.
Van Schijndel and Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten (C-430/93 and C-431/93) [1995] E.C.R. I-4705; [1996] 1
C.M.L.R. 801. See S. Prechal, “Community Law in National Courts: The Lessons From van Schijndel ” (1998) 35 C.M.L. Rev. 681.

72.
Van Schijndel (C-430/93 and C-431/93) [1995] E.C.R. I-4705, Opinion of A.G. Jacobs at [27].

73.
Van Schijndel (C-430/93 and C-431/93) [1995] E.C.R. I-4705, Opinion of A.G. Jacobs at [38].

74.
See G. de Búrca, “National Procedural Rules and Remedies: the Changing Approach of the Court of Justice” in J. Lonbay and A. Biondi
(eds), Remedies for Breach of EC Law (Chichester: Wiley, 1997), Ch.4.

75.
Van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit (C-222/05, C-223/05, C-224/05 and C-225/05) [2007] E.C.R. I-4233;
[2007] 3 C.M.L.R. 7.

76.
Van der Weerd (C-222/05, C-223/05, C-224/05 and C-225/05) [2007] E.C.R. I-4233 at [40].

77.
Van der Weerd (C-222/05, C-223/05, C-224/05 and C-225/05) [2007] E.C.R. I-4233, Opinion of A.G. Maduro at [29].

78.
Van der Weerd (C-222/05, C-223/05, C-224/05 and C-225/05) [2007] E.C.R. I-4233, Opinion of A.G. Maduro at [29].

79.
Heemskerk and Schaap v Productschap Vee en Vlees (C-455/06) [2008] E.C.R. I-8763.

80.
Directive 64/221on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified
on grounds of public policy, public security or public health [1963-64] OJ Sp. Ed. 117.

81.
Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the
Member States [2004] OJ L158/77.

82.
See C. Barnard, The Substantive Law of the EU: The Four Freedoms, 3rd edn (Oxford: Oxford University Press, 2010), p.497.

83.
See, e.g. Directive 75/117 relating to the application of the principle of equal pay for men and women [1975] OJ L45/19 art.2; Directive
79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1979] OJ
L6/24 art.6.

84.
See Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ
L180/22 Ch.II; Directive 2000/78 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16
Ch.II; Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of
employment and occupation (recast) [2006] OJ L204/23 Title III Ch.I.

85.
See Directive 2000/43 art.15; Directive 2000/78 art.17; Directive 2006/54 art.25.

86.
Marshall v Southampton and South-West Hampshire Area Health Authority (C-271/91) [1993] E.C.R. I-4367; [1993] 3 C.M.L.R. 293.

87.
See Directive 2000/43 art.8; Directive 2000/78 art.10; Directive 2006/54 art.19. cf. Regulation 1/2003 on the implementation of the rules
on competition laid down in arts 81 (now 101) and 82 (now 102) of the Treaty [2003] OJ L1/1 art.2; White Paper on damages actions for
breach of the EC antitrust rules COM(2008) 165 final.
 Page17

88.
Directive 97/80 on the burden of proof in cases of discrimination based on sex [1998] OJ L14/6 Recital 18.

89.
See, e.g. Handels-og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening Ex p. Danfoss AS (109/88) [1989] E.C.R.
3199; [1991] 1 C.M.L.R. 8; Enderby v frenchay HA (C-127/92) [1993] E.C.R. I-5535; [1994] 1 C.M.L.R. 8.

90.
On the co-ordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of
public supply and public works contracts [1989] OJ L395/30, as last amended by Directive 2007/66 amending Directives 89/665 and
92/13 with regard to improving the effectiveness of review procedures concerning the award of public contracts [2007] OJ L335/31.
Directive 92/13 [1992] OJ L76/14 lays down special rules for entities operating in the water, energy, transport and telecommunications
sectors. See also Directive 2009/81 on the coordination of procedures for the award of certain works contracts, supply contracts and
service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17 and 2004/18
[2009] OJ L216/76 Title IV.

91.
On time limits, see Uniplex (UK) Ltd v NHS Business Services Authority (C-406/08) [2010] 2 C.M.L.R. 47.

92.
See K. Gelderman. P. Ghijsen and J. Schoonen, “Explaining non-compliance with European Union procurement directives: a
multidisciplinary perspective” (2010) 48 J.C.M.S. 243.

93.
See C. Bovis, Public Procurement in the European Union (Basingstoke: Palgrave Macmillan, 2005), pp.137-139.

94.
P. Trepte, Public Procurement in the EU: A Practitioner's Guide, 2nd edn (Oxford: Oxford University Press, 2007) p.531.

95.
See Trepte, Public Procurement in the EU, 2007, p.531.

96.
Commission v Ireland (C-456/08) [2010] 2 C.M.L.R. 42.

97.
[1993] OJ L95/29.

98.
Asturcom Telecomunicaciones SL v Rodriguez Nogueira (C-40/08) [2009] E.C.R. I-9579; [2010] 1 C.M.L.R. 29. cf. Alassini v Telecom
Italia SpA (C-317/08, C-318/08, C-319/08 and C-320/08) [2010] 3 C.M.L.R. 17.

99.
See Océano Grupo Editorial SA v Quintero (C-240/98-C-244/98) [2000] E.C.R. I-4941; [2002] C.M.L.R. 43 at [25].

100.
Océano Grupo (C-240/98-C-244/98) [2000] E.C.R. I-4941 at [26]. See also Cofidis SA v Jean Louis Fredout (C-473/00) [2002] E.C.R.
I-10875; Mostaza Claro v Centro Movil Milenium SL (C-168/05) [2006] E.C.R. I-10421; [2007] 1 C.M.L.R. 22.

101.
Asturcom (C-40/08) [2009] E.C.R. I-9579 at [47].

102.
[1985] OJ L210/29. See O'Byrne v Sanofi Pasteur (C-127/04) [2006] E.C.R. I-1313; Aventis Pasteur SA v OB (C-358/08) [2010] 2
C.M.L.R. 16.

103.
See COM(2008) 614 final.

104.
See Decision 2005/370 on the conclusion, on behalf of the European Community, of the Convention on access to information, public
participation in decision-making and access to justice in environmental matters [2005] OJ L124/1. For the text of the Convention, see
[2005] OJ L124/4.

105.
[1985] OJ L175/40.

106.
See Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the
environment and amending with regard to public participation and access to justice Council Directives 85/337 and 96/61 [2003] OJ
L156/17.

107.
Mellor (C-75/08) [2009] E.C.R. I-3799.

108.
Mellor (C-75/0) [2009] E.C.R. I-3799 at [41].

109.
Mellor (C-75/08) [2009] E.C.R. I-3799 at [59].
 Page18

110.
Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms Kommun genom dess Marknamnd (C-263/08) [2009] E.C.R. I-9967; [2010] 1
C.M.L.R. 36.

111.
Djurgården-Lilla Värtans Miljöskyddsförening (C-263/08) [2009] E.C.R. I-9967 at [47].

112.
See L. Conant, Justice Contained: Law and Politics in the European Union (Ithaca: Cornell University Press, 2002); R. Cichowski, The
European Court and Civil Society: Litigation, Mobilization and Governance (Cambridge: Cambridge University Press, 2007).

113.
See art.2 TEU.

114.
See Kadi and Al Barakaat v Council (C-402/05 P and C-415/05 P) [2008] E.C.R. I-6351; [2008] 3 C.M.L.R. 41 at [308].

115.
See, e.g., Audiolux SA v Groupe Bruxelles Lambert SA (C-101/08) [2009] E.C.R. I-9823 at [63]; NCC Construction Danmark A/S v
Skatteministeriet (C-174/08) [2009] E.C.R. I-10567, [2010] S.T.C. 532 at [42].

116.
See Mangold (C-144/04) [2005] E.C.R. I-9981; Kücükdeveci v Swedex (C-555/07) [2010] 2 C.M.L.R. 33; A. Dashwood, “From Van Duyn
to Mangold via Marshall: Reducing Direct Effect to Absurdity?” (2006-07) 9 Cambridge Yearbook of European Legal Studies 81; J. Jans,
“The Effect in National Legal Systems of the Prohibition of Discrimination on Grounds of Age as a General Principle of Community Law”
(2007) 34 Legal Issues of Economic Integration 53.

117.
CIA Security (C-194/94) [1996] E.C.R. I-2201; [1996] 2 C.M.L.R. 781. See A. Arnull, The European Union and its Court of Justice, 2006,
pp.228-252.

118.
cf. Sapod Audic v Eco-Emballages (C-159/00) [2002] E.C.R. I-5031; [2002] 3 C.M.L.R. 36 at [52] (referring to the principles of
equivalence and effectiveness); K. Lenaerts and T. Corthaut, “Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law”
(2006) 31 E.L. Rev. 287.

119.
Since the entry into force of the Treaty of Lisbon, the Charter has had “the same legal value as the Treaties”: art.6(1) TEU.

120.
See the Opinion of A.G. Bot in Kücükdeveci (C-555/07) [2010] 2 C.M.L.R. 33 at [90]. The Court referred to the Charter in its judgment in
that case: see [22].

121.
UPA (C-50/00 P) [2002] E.C.R. I-6677 at [44]. See also Commission v Jégo-Quéré (C-263/02 P) [2004] E.C.R. I-3425 at [36].

122.
Kadi (C-402/05 P and C-415/05 P) [2008] E.C.R. I-6351 at [351]-[352]. See also Kadi v Commission (T-85/09), judgment of September
30, 2010.

123.
UPA (C-50/00 P) [2002] E.C.R. I-6677 at [44]. See also Commission v Jégo-Quéré (C-263/02 P) [2004] E.C.R. I-3425 at [36].

124.
See art.5(1) and (2) TEU; K. Lenaerts, “Le traité de Lisbonne et la protection juridictionnelle des particuliers en droit de l'Union” (2009) 45
Cahiers de Droit Européen 711, 712.

125.
See Charter of Fundamental Rights art.47.

126.
Gestoras Pro Amnistía v Council (C-354/04 P) [2007] E.C.R. I-1579; [2007] 2 C.M.L.R. 22.

127.
Segi v Council (C-355/04 P) [2007] E.C.R. I-1657; [2007] 2 C.M.L.R. 23.

128.
See also Foto-Frost (314/85) [1987] E.C.R. 4199; Les Verts v Parliament (294/83) [1986] E.C.R. 1339; [1987] 2 C.M.L.R. 343; Parliament
v Council (C-70/88) [1990] E.C.R. I-2041; [1992] 1 C.M.L.R. 91.

129.
See S. Balthasar, “Locus Standi Rules for Challenges to Regulatory Acts by Private Applicants: the New Article 263(4) TFEU” (2010) 35
E.L. Rev. 542; R. Barents, “The Court of Justice After the Treaty of Lisbon” (2010) 47 C.M.L. Rev. 709, 724-726; D. Chalmers, G. Davies
and G. Monti, European Union Law: Cases and Materials, 2nd edn (Cambridge: Cambridge University Press, 2010), pp.414-415; T.
Hartley, The Foundations of European Union Law, 7th edn (Oxford: Oxford University Press, 2010), p.387; K. Lenaerts, “Le traité de
Lisbonne et la protection juridictionnelle des particuliers en droit de l'Union” (2009) 45 Cahiers de Droit Européen 711, 725-728; S.
Weatherill, Cases and Materials on EU Law, 9th edn (Oxford: Oxford University Press, 2010), pp.222-224.

130.
This and two related issues were described by the President of the General Court as “of some legal complexity” in Inuit Tapiriit Kanatami
v European Parliament and Council (T-18/10 R), Order of April 30, 2010 at [46]. cf. Arcelor v European Parliament and Council (T-16/04),
judgment of March 2, 2010 at [123].
 Page19

© 2011 Sweet & Maxwell and its Contributors