European Union Rights in National Courts

Name: European Union Rights in National Courts
Brand: Kluwer Law International
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Kluwer Law International (Verlag)

Erschienen am 18. Dezember 2014

416 Seiten

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Cover
Half Title Page
Title Page
Copyright Page
Table of Contents
List of Abbreviations
Introduction
I PRELIMINARY REMARKS
II AIMS AND SCOPE OF THE WORK
CHAPTER 1 EU Law Rights and Their Protection
§1.01 EU RIGHTS (CLAIMS)
[A] Rights and Claims
[1] Subjective Rights, Entitlements and Claims
[2] EU Rights
§1.02 LEGAL PROTECTION AND ITS INSTRUMENTS
[A] Remedies
[B] Remedies and Procedural Law
[C] Rights and Remedies
[1] Relation between Rights and Remedies in EU Law
[2] Subjective Procedural Rights
§1.03 INCOMPLETENESS OF THE EU SYSTEM WITH RESPECT TO LEGAL PROTECTION
[A] Decentralised Administration
[B] Incompleteness of EU Procedural System
[1] Harmonisation Actions in Civil, Administrative and Criminal Procedure
[C] Completing the Legal Protection System by Substantive Law Harmonisation
[1] Substantive Law Harmonisation
[2] Principles of Substantive Law as a Rationale for the EU Standard of Legal Protection
CHAPTER 2 Institutional and Procedural Autonomy of the Member States
§2.01 INSTITUTIONAL AUTONOMY
[A] The Concept of Institutional Autonomy
[B] Competence as an Element of Institutional Autonomy
[C] Institutional Autonomy after the Lisbon Treaty
§2.02 PROCEDURAL AUTONOMY: THE PRINCIPLE OF NATIONAL PROCEDURES
[A] Procedural Autonomy: The Concept
[1] Initial Case Law on Procedural Autonomy
[2] The Concept of Procedural Autonomy
[B] Procedural Autonomy and Division of Powers
[C] The Principle of National Procedures
CHAPTER 3 EU Law Effectiveness and Effective Legal Protection
§3.01 EFFECTIVENESS OF THE UNION SYSTEM
[A] Effectiveness as a Principle
[B] Effectiveness and Sincere Cooperation
[C] Uniform Enforcement of EU Law
[D] The Role of Private Enforcement
§3.02 EFFECTIVE LEGAL PROTECTION
[A] Effective Legal Protection: Introduction
[B] EU Standard of Effective Legal Protection in Primary Law
[C] EU Standard of Protection in Secondary Law
[1] Codification of the Legal Protection Standard in Acts of Secondary Law
[D] Effective Legal Protection and the Principles of Primacy and Direct Effect
[1] Effectiveness as Substantiation of Primacy and Direct Effect
[2] Direct Effect and Primacy as Conditions of Effective Legal Protection
[3] Effectiveness of the Direct Effect
[4] Procedural Primacy
[5] Removal of Obstacles to Practical Implementation of the Principle of Direct Effect and Primacy
[6] Effectiveness as an Equivalent of a Directly Effective Norm and as an Interpretational Rule
[7] Conclusions
[E] Primacy and Direct Effect as the Source of Administrative Authorities' Obligations
§3.03 EVOLUTION OF THE CJEU CASE LAW IN THE AREA OF LEGAL REMEDIES
[A] Views on the CJEU Case Law
[B] Critical Review of the Doctrine
[C] Negative and Positive Harmonisation of Legal Remedies
CHAPTER 4 Requirements of Effective Legal Protection
§4.01 EQUIVALENCE AND EFFECTIVENESS
[A] The Concept and the Scope of Application
[B] Effective Protection of Rights or Effective Enforcement of Obligations?
§4.02 THE REQUIREMENT OF EQUIVALENCE
[A] The Concept
[B] Similar Claims
[1] General Remarks
[2] Examination of Claims Similarity
[3] Similarity of Claims Derived from the Judgments of CJEU and Constitutional Courts
[C] Absence of Similar Claims
[1] Absence of a Domestic Claim
[2] Absence of a Similar Union Claim
[D] Equivalent Protection of Similar Claims
[1] Analysis of Protection Equivalence
[2] Protection of Claims Following the CJEU Judgments
[3] Equivalent or the Broadest Protection
§4.03 THE REQUIREMENT OF EFFECTIVENESS
[A] The Concept
[B] Fulfilment Criteria
[1] Assessment Criteria for the Requirement of Effectiveness
[2] Examples of Assessing Domestic Provisions with Reference to the Requirement of Effectiveness
[3] Effectiveness of Time Limits on Initiating Actions for Compensation
[4] Individual Approach (Taking into Account the Circumstances of a Given Case)
§4.04 RELATIONS BETWEEN THE REQUIREMENTS OF EFFECTIVENESS AND EQUIVALENCE
§4.05 LIMITATIONS OF EFFECTIVE LEGAL PROTECTION
[A] The Procedural Rule of Reason
[1] The Process of Confronting the Principles
[2] The Rule of Reason
[B] 'Balancing' the Principles in the CJEU Case Law
[C] 'Balancing' the Principles: Justification outside EU System
[1] Margin of Appreciation in the Convention System
[2] Balancing Legal Rules and Principles
§4.06 POSITIVE APPLICATION OF THE PRINCIPLE OF EFFECTIVENESS
[A] Filling the Gap in the Protection of the Rights of Individuals
[B] Application of Measures Non-existing in National Law
§4.07 CONCLUSIONS: THE ROLE OF THE CJEU IN SETTING THE STANDARD OF EFFECTIVENESS AND EFFECTIVE LEGAL PROTECTION
CHAPTER 5 The Right to Court in EU Law
§5.01 INTRODUCTORY REMARKS: THE CONCEPT AND THE CONTENT OF THE RIGHT TO COURT
[A] The Right to Court as an Element of Effective Legal Protection
§5.02 THE RIGHT TO COURT AS THE GENERAL PRINCIPLE OF EU LAW
[A] The Origins of the Right to Court
[B] The Right to Court in the Charter of Fundamental Rights
[1] Outline of the Union Standard with Regard to the Right to Court
[C] Access to Court in Acts of Secondary Law
[1] Provisions of Secondary Law and the Union Standard
[2] Interpretation of the Right to Court Appearing in Acts of Secondary Law
§5.03 THE RIGHT TO COURT AND THE UNION CLAIMS
[A] Identification of a Union Right
[1] Preliminary Remarks
[2] The Significance of Recognising a Claim to Be of Union Origin
[B] Indirectly Conferred Rights
[1] Indirect Conferral of Rights
[2] Examining the Objective of a Regulation
[3] The Need for Ensuring Protection: Subjectivation of EU Law
§5.04 THE DOCTRINE OF DIRECT EFFECT AND THE RIGHT TO COURT
[A] Introduction
[B] Direct Effect and the Right-Conferring Norm
[1] Subjective and Objective Direct Effect
[2] The Effect of Substitution and of Exclusion
[3] Direct Effect Consisting Merely in National Law Review
[4] Direct Effect and Primacy
[5] Conditions for Direct Effect of a Norm
[C] Direct Effect of Provisions Establishing the Right to Court
[1] The CJEU Case Law
§5.05 THE INVOCATION RIGHT: THE OBLIGATION TO REVIEW NATIONAL LAW
[A] The Essence of the Invocation Right
[B] The Invocation Right in Horizontal Relations
[1] Incidental Direct Effect
[C] Invocation Right and Direct Effect: Conclusions
[D] Invocation Right and Indirect Effect (Interpretation Consistent with Union Law)
[E] A Claim for Observance of EU Law
§5.06 LIMITATIONS OF THE RIGHT TO COURT
[A] Conflict with Other Fundamental Rights
[B] Abuse of the Right to Court
§5.07 CONCLUSIONS
CHAPTER 6 Courts and Procedures Meeting the Requirements of Effective Judicial Protection
§6.01 A NATIONAL COURT PROTECTING THE EU RIGHTS
[A] Availability of a Procedure before a Judicial Authority
[1] A Body Which Is Considered Court for the Needs of the Preliminary Ruling Procedure
[2] An Authority Exhibiting the Features of Independence
[3] Courts Entitled to Make Reference for a Preliminary Ruling
[4] Court of Arbitration and the Judicial Protection
§6.02 AVAILABILITY OF PROCEDURES EXISTING IN NATIONAL LAW
[A] Modification of the Procedures Existing in National Law for the Needs of Effective Judicial Protection
[B] Determination of the Accessible Procedure
§6.03 LEGAL ACTION FOR STATING INCONSISTENCY WITH EU LAW
[A] Procedure Providing the Possibility of Stating the Inconsistency of National Law with EU Law
[B] Legal Remedy Resulting from the Infringement of Law
[C] Restricting the Availability of Procedures or Restricting the Locus Standi?
§6.04 CONCLUSIONS
CHAPTER 7 The Right to a Fair Trial
§7.01 INTRODUCTION
[A] A Fair Trial in EU Law and in the ECHR
[B] A Fair Administrative Procedure
§7.02 THE RIGHT OF THE DEFENCE
[A] The Obligation to Give Reasons for an Administrative Decision as a Guarantee of the Right of Defence
[B] The Right of Defence and Access to the Case Files
[C] Restricting the Right of Defence
[D] Immediate Enforceability of Sanction and the Right of Defence
§7.03 THE RIGHT TO BE HEARD
[A] The Standard of the Right to Be Heard
[B] The Form of Hearing
§7.04 THE RIGHT TO ASSISTANCE
§7.05 EVIDENTIARY PROCEEDINGS
§7.06 BURDEN OF PROOF
[A] The Burden of Proof in Restitution Proceedings
[B] The Burden of Proof in Proceedings Pertaining to Infringement of the Prohibition of Discrimination
[C] The Burden of Proof in Proceedings Pertaining to Telecommunications
§7.07 THE CHOICE OF A LEGAL REMEDY
§7.08 DILLIGENCE OF THE INJURED PARTY
[A] The Union Law Standard
[B] The Requirement of Diligence and the Requirement of Equivalence
§7.09 PROCEEDINGS WITHIN REASONABLE TIME
§7.10 CONCLUSIONS
CHAPTER 8 Jurisdiction and Competence of the National Courts
§8.01 THE COMPETENT COURT
§8.02 THE COURTS' JURISDICTION AND COMPETENCE
[A] Preliminary Remarks
[1] The Courts' Jurisdiction and Access to Court Procedures
[B] The Courts' Scope of Competence and the General Principles of EU Law
[1] Union Provisions Enforcing National Courts' Competence
[C] The Courts' Competences to Apply the Principle of Primacy and Direct Effect
[1] Procedural Restrictions in Application of the Principle of Primacy and Direct Effect
[D] Modification of the Constitutional Courts' Competences
[E] Europeanisation of the Scope of Review of National Courts
[1] Review of the Exercise of Discretionary Power
[2] Jurisdiction regarding Facts and Evidence
[F] Imposing an Obligation to Undertake Legislative Action
[G] Limitation of Jurisdiction for Reviewing Actions of EU Institutions
§8.03 CONCLUSIONS
CHAPTER 9 The Court's Competence to Apply EU Law of Its Own Motion
§9.01 PRELIMINARY REMARKS
[A] Restrictions in Applying EU Law Ex Officio
[B] Acting Ex Officio and Applying EU Law
§9.02 THE REQUIREMENT OF EQUIVALENCE
§9.03 THE REQUIREMENT OF EFFECTIVENESS
[A] The Requirement of Effectiveness in Peterbroeck and van Schijndel Rulings
[B] The Need to Protect Public Interest
[C] Conclusions Stemming from Peterbroeck and van Schijndel
[D] Going beyond the Ambit of a Dispute
§9.04 ASSESSMENT OF THE REQUIREMENT OF EFFECTIVENESS
[A] Assessment Carried Out by National Courts
[B] The Genuine Opportunity to Rely on EU Law
§9.05 THE SIGNIFICANCE OF THE EU LEGAL PROVISION (PUBLIC POLICY)
§9.06 ACTING EX OFFICIO FOLLOWING SECONDARY LAW INTERPRETATION
[A] Interpretation of the Directives on Consumer Protection
[B] Interpretation of Other Provisions of Secondary Law
§9.07 CONCLUSIONS
CHAPTER 10 National Courts' Competence to Provide Interim Protection
§10.01 INTERIM MEASURES AGAINST DOMESTIC ACTIONS IMPLEMENTING EU LAW
[A] Conditions for Application of Interim Measures
[B] Restrictions of the Power to Apply Interim Measures
§10.02 INTERIM MEASURES AGAINST DOMESTIC LAW INFRINGING EU LAW
[A] The Judgment in the Factortame I Case
[B] Conditions for Interim Measures Application with Reference to a Regulation Infringing EU Law
[C] Interim Measures in Proceedings for Compensation: The Consequences of the Unibet Ruling
§10.03 CONCLUSIONS
CHAPTER 11 The Legal Standing (Who Has the Right to Court)
§11.01 INTRODUCTION
§11.02 LEGAL STANDING AND THE CHARACTER OF THE NORM
[A] The Norm Conferring Rights in EU Law and the Schutznorm
[B] Protective Norm in EU Law
§11.03 LEGAL STANDING AND THE ENTITLED ENTITY
[A] The Beneficiary of a Union Right
[1] The Way of Determining the Beneficiaries of a Right
[2] Locus Standi in Claims for Damages
[B] Legal Standing to Initiate a Specific Procedure
[C] Legal Standing in Acts of Secondary Law
[1] Legal Standing Not Only for the Beneficiaries of a Right
§11.04 LEGAL STANDING FOR INVOKING A PROVISION: THE UNION INTEREST
§11.05 ACCESS TO UNION COURTS: DEFICIT OF EFFECTIVE JUDICIAL PROTECTION
[A] Legal Standing for Initiating Proceedings before EU Courts
[B] Complementary Protection Provided by National Courts
[1] Ensuring Protection in National Law
[2] Equivalent Protection?
[3] Judicial Protection in the Former Second and Third Pillar
[4] Access to EU Courts and the ECHR
§11.06 CONCLUSIONS
CHAPTER 12 The Right to Court and Time Limits for Pursuing Claims
§12.01 PRELIMINARY REMARKS
[A] Legal Certainty and Effectiveness in Relation to the Time Limits for Pursuing Claims
§12.02 CRITERIA FOR DECLARING A TIME LIMIT REASONABLE
[A] Conditions of a Specific Legal System
[1] Examples of Judgments on Time Limits in the Case Law of the CJEU
[2] The Criteria for Assessing the Time Limit
[B] Circumstances of a Given Case
[C] The Aim of the Provision
§12.03 LIMITATIONS OF PERIODS OF THE ENTITLEMENTS
§12.04 ESTABLISHING THE LIMITATION PERIOD WITH ADEQUATE TRANSITION PERIOD
§12.05 TIME LIMITS AND THE INFRINGEMENT OF EU LAW
§12.06 NATIONAL TIME LIMITATION OF THE EFFECT OF A RULING ISSUED BY THE CJEU
§12.07 CONCLUSIONS
CHAPTER 13 Legal Instruments for Revoking Administrative and Judicial Decisions
§13.01 PRELIMINARY OBSERVATIONS: SUBSEQUENT LEGAL REMEDIES
§13.02 REVOKING FINAL ADMINISTRATIVE DECISIONS THAT ARE NON-COMPLIANT WITH EU LAW
[A] Opening Remarks
[B] The Kühne & Heitz Case and the Conditions for Re-opening Administrative Proceedings
[C] Conditions for Re-opening Proceedings or Conditions for Revoking the Final Decision
[1] The Condition of the Administrative Authority Having the Power to Re-open a Decision
[2] The Condition of Misinterpretation of EU Law in the Judgment of the National Court
[3] The Condition That There Must Be a Later Ruling by the CJEU
[4] The Condition of Filing a Complaint Immediately
[D] Other Restrictions Limiting the Option of Revoking Decisions
[E] Union Standard for Revoking Final Administrative Decisions
§13.03 REVOKING DEFINITIVE COURTS' JUDGMENTS INCONSISTENT WITH EU LAW
§13.04 THE BINDING FORCE OF A JUDICIAL OR ADMINISTRATIVE DECISION IN OTHER PROCEEDINGS
[A] Preliminary Observations
[B] The Court's Standpoint
[C] The Specific Character of the Lucchini Ruling
[D] The Union Standard as Regards the Principle of Binding Force of a Judgment in Other Proceedings
[1] Res Iudicata and the Principle of Binding Force
[2] The Binding Force of the Decision and the Primacy of EU Law
§13.05 CONCLUSIONS
CHAPTER 14 Sanctions, Restitution and Compensation Claims
§14.01 SANCTIONS IN NATIONAL LAW FOR INFRINGEMENT OF EU LAW
[A] Obligation to Provide Sanctions in the National Law
[1] Evolution of the Court's Case Law and Requirements of Effectiveness and Equivalence
[2] Obligation to Lay Down Sanctions for the Protection of Every Union Claim?
[B] The Form of the Sanctions
[C] Proportionality of the Penalties
§14.02 RESTITUTION AND COMPENSATION CLAIMS
[A] The Right to Restitution and Compensation as EU Right
[B] Compensation or Restitution Claim
[1] The Choice of Claim
[C] Harmonisation of Compensation and Restitution Claims
§14.03 RESTITUTION CLAIMS
[A] The Content of Restitution Claims
[1] The Right to Recovery of Charges Levied in Breach of EU Law
[2] The Reimbursement Procedure
[B] Application of the Requirements of Equivalence and Effectiveness to Restitution Claims
[1] Limitations Laid Down in National Provisions
[2] Measures Limiting the Effectiveness of the CJEU Judgments
[C] Repayment of Taxes and the Prohibition of Unjust Enrichment
[1] Bearing the Burden of the Tax by Third Persons and the Prohibition of Unjust Enrichment
[2] Evaluation of the CJEU Standpoint
[D] Conclusions
§14.04 CLAIMS FOR DAMAGES
[A] The Content of Union Claims for Damages
[1] General Principles
[2] Entities Entitled to Obtain and Obliged to Provide Compensation
[B] The Conditions for the State Liability
[1] The Nature of the Conditions
[2] Infringement of a Norm Conferring Rights
[3] Qualified Breach (Unlawfulness)
[4] Causal Link
[5] Damage and Compensation
[6] The Sequence of Deciding the Grounds of a Claim
[7] Interim Measures
[8] The Influence of the Conditions for Liability of States on the Conditions for Liability of the EU
[9] The Influence of the Principle of Liability in Damages on Domestic Legal Systems
§14.05 CONCLUSIONS
Summary
I SUMMARY OF THE ANALYSIS
II MECHANISMS GOVERNING THE RELATIONS BETWEEN THE PRINCIPLES OF EFFECTIVENESS AND OF DOMESTIC PROCEDURES
III THE PHENOMENON OF CROSS-FERTILISATION
IV THE COMPETENCE TO CREATE THE UNION STANDARD
V THE ROLE OF THE CJEU AND NATIONAL COURTS AS REGARDS LEGAL REMEDIES
Bibliography
Rulings and Opinions
Index
Back Cover

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