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Constitutional and institutional law of the European Union.

Section C: Remedies and procedures in European Union law.

Chapter 6: Member state liability for failure to comply with EU law.

Notes by Kaihsu Tai, 2011-10-17.

Equivalence and effectiveness
In principle, the Member States implement EU law within their existing legal systems, retaining procedural autonomy: Case 33/76 Rewe v Saarland. However there are two conditions: equivalence and effectiveness. National procedural “rules [1] must not be less favourable than those governing similar domestic actions [2] nor render virtually impossible or excessively difficult the exercise of rights conferred” by EU law; “a rule of national law preventing the procedure laid down in” Article 267 TFEU (preliminary rulings) “from being followed must be set aside”: summarized in Case C-312/93 Peterbroeck v Belgium.

“Where a directive is transposed belatedly into a Member State’s domestic law and the relevant provisions of the directive do not have direct effect, the national courts are bound to interpret domestic law so far as possible, once the period for transposition has expired, in the light of the wording and the purpose of the directive concerned with a view to achieving the results sought by the directive, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive”: Case-212/04 Adeneler.

There is no requirement for the national court to “raise of its own motion a plea alleging infringement of the provisions of Community legislation, since neither the principle of equivalence nor the principle of effectiveness require it to do so”: C-222/05 van der Weerd.

ECJ can review national administrative decisions which by court of final instance judgment has become final, without a plea relying on EU law by claimant in the national court; there is no “limit in time for making an application for review of an administrative decision that has become final. The Member States nevertheless remain free to set reasonable time-limits for seeking remedies”: Case C-2/06 Kempter.

To ensure effectiveness, interim relief can be granted by national courts in challenges of compatibility with EU law; but effectiveness does not require providing new remedies in national law such as a free-standing declaration of incompatibility: Case C-432/05 Unibet v Justitiekanslern.

The Francovich principle
A Member State is liable to compensate individuals for loss caused to them as a result of a breach of EU law for which the Member State is responsible: Case C-6/90 Francovich v Italy. "[Union] law confers a right to reparation where three conditions are met: [1] the rule of law infringed must be intended to confer rights on individuals; [2] the breach must be sufficiently serious; and [3] there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties."

This includes wrongful acts by the legislature: Joined cases C-46/93 and C-48/93 Brasserie du Pêcheur v Germany and The Queen v Secretary of State for Transport ex parte Factortame and Others. This also includes an incorrect ruling by the judiciary causing “a serious breach”: Case C-224/01 Köbler v Austria, confirmed in Case C-173/03 Traghetti del Mediterraneo. Therefore, state liability covers all three Montesquian branches of governance.