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This article concerns whether, and to what extent the ECJ is prepared to mandate the remedies that are available to victims of breaches of substantive EC law.
For the first twenty years or so of the Communities, the issue of remedies was not particularly prominent. At that time, litigants in the ECJ were primarily members states and institutions of the Communities. Whether or not the ECJ would mandate a remedy became a more pressing question in the 1970s, with the emergence of the doctrine of DirectEffect. When it became apparent that Community law created rights and duties which could be invoked in domestic courts by private individuals, it was only a matter of time before those individuals began to expect particular remedies to be available.
The ECJ's original standpoint was that it is for the national courts to decide what remedies would be available, by applying the Communities' substantive law under their own procedures. It was not in the interests of the ECJ to be seen to undermine the authority of the national courts by defining remedies as well as interpreting the law. Over the years, as you might expect, the ECJ has expanded its juridiction in this area, as it has in others. This expansion has been incremental and has therefore not attracted all that much attention.
Initially, the ECJ contented itself with mandating principles of equivalence and practicality. For example, in Rewe-Zentralfinanz (C-33/76) the ECJ refused to grant a particular rememdy to the claimants, who had been levied charges by the state in breach of the Treaty, and who claimed a refund with interest. The ECJ refused to indicate whether a refund with interest was a reasonable expectation -- the remedy merely had to be equivalent to that available for an action under national law, and it had to be practicable for a litigant to obtain it. The ECJ went on to affirm in subsequent cases that it did not require any member state to create any new judicial remedies to give effect to EC law.
Sagulo (C-8/77) concerned fines imposed by France and Germany on workers from other states for not applying for the appropriate residence permits, in breach of EC legislation. The ECJ held that these fines were so excessive as to amount to a barrier to free movement workers. In Von Colson (1984) a worker was found by the German courts to be a victim of gender discrimination that was unlawful under EC law. However, the court deemed itself unable to award compensation. The ECJ held that the remedy offered must be sufficient to ensure the effectivness of EC law within the member state. A nominal or token remedy would not have that effect.
Consequently, in due course, the ECJ added to the existing requirements of equivalence and practicality the additional requirements of proportionality and effectiveness_.
The first signs that the ECJ was willing to define a remedy came in cases such as San Giorgio (1982). Like Rewe-Zentralfinanz_, etc., these cases concerned the levying of charges by member states on private individuals by the state, in breach of EC law. The ECJ held, reasonably enough, that the national courts must provide for a refund of charges levied by the state in breach of the ECTreaty. In one sense these cases do not represent a major development in the law of remedies, because it was by that time already well-established that the member states would refund charges levied in breach of EC law. However, it is a development in that the ECJ is stipulating the form of the remedy (a refund), when it had not previous done so (or, perhaps, been asked to do so).
Moreover, while the ECJ might not impose a specific rememdy, the requirement of `effectiveness' frequently does dicate the remedy. A particularly striking example is FactortameI1989, in which the requirement of effectiveness implied that that UK courts grant an interim injunction against the Crown -- something which had never been allowed before. As well as imposing what is in practice the particular form of the remedy, the principle of effectiveness has here forced the member state to create an entirely new remedy (injunction against the crown) -- something for which the ECJ had previously denied a need.
In subsequent cases, the ECJ used the principle of effectiveness not only to dicate the form of the remedy, but also to make detailed pronouncements on the amount of compensation payable. A notable example is MarshallII1993, in which the ECJ stated, among other things, that the claimant was entitled to interest on top of her compensation, such being necessary to give full protection to the right of non-discrimination protected by EC law. The ECJ had previously refused to specify the amount of compensation -- stating that it must be `effective' (as in Von Colson). But here the ECJ was not merely mandating an effective compensation, it was involving itself in determination of whether a particular amount was effect or not. Moreover, stipulting that the claimant must be paid interest on the compensation marks a striking departure from earlier cases, such as Rewe-Zentralfinanz.
With hindsight Marshall II, and other cases decided similarly at about the same time, can be seen to represent the high point of ECJ's interventionist approach to the amount of compensation awarded by national courts. In the case of RvSecretaryOfStateForSocialSecurityExParteSutton1997, for example, the ECJ appears to confine the Marshall II decision almost to its particular facts.
Recent cases have seen an increase in the interventionism of the ECJ, but not to the level of Marshall II, and it seems that a balance is gradually being worked out.
In the cases discussed so far, the ECJ has sometimes ruled on the adequacy of a particular remedy, sometimes stated that some sort of remedy ought to be available, and sometimes even by implication dictated the form of the remedy. However, there were few cases, if any, in which the ECJ has expressly granted a specific remedy. However, in Francovitch1991 it did exactly that. This case not only makes it clear that an individual has a cause of action against the state for breach of EC law (which is an important point in its own right, but not directly relevant here -- see StateLiabilityUnderEULaw), it prescribes damages as the appropriate remedy. To be fair, in a case of non-implementation of an EC Directive (as in Francovitch), it isn't entirely clear what other remedy would be appropriate).Nevertheless, it now seems established that, in some circumstances at least, the ECJ will grant a specific remedy against a member state.
So what are we to make of all this? It is fairly clear that, over the years, the willingness of the ECJ to oversee the national courts' remedies for breach of EC law has increased. Moreover, the ECJ has now shown itself willing, as in Froncovitch to award damages against member states directly. On the one hand, the ECJ has to tread very carefully in its dealings with domestic courts to avoid weakening its legitimacy. Incremental expansion of its jurisdiction may be the only way for it to give proper effect to EC law without offending the domestic courts too much. On the other hand, the development of the law in this area has been piecemeal and haphazard, and it is only in recent years that the boundaries of the ECJ's jurisdiction have started to become clear.
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