The Application of EC Law by National Courts: The Free Movement of Goods

By Malcolm A. Jarvis | Go to book overview

10 Remedies for Breach of Rules on the Free Movement of Goods Before National Courts

1 INTRODUCTION

The question of remedies for breaches of EC law before national courts has taken centre-stage in recent years.1 This issue is of enormous practical importance given its position as the last link in the process towards effective and uniform application of EC law. The application of EC law by national courts may be seen in three stages. The first stage requires the national courts to accord provisions of EC law supremacy and direct effect in the national legal system. At the second stage, the national courts are called upon to apply the substantive provisions of EC law in accordance with the case law developed by the ECJ. The third and final stage concerns the provision of effective remedies for the breach of such substantive provisions. It is this third stage which forms the subject-matter of this chapter. The importance of the third stage is underlined by the fact that, should the national courts fail to provide effective remedies at the third stage, the benefits of correct application of EC law at the first and second stages will be negated. A Community right which can only be enforced through an ineffective remedy renders the right itself worthless.

Given the importance of remedies before national courts as a means to achieve the uniform application of EC law, it is surprising that the EC

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1
An exhaustive discussion of the question of remedies before national courts is beyond the scope of this work. See further Van Gerven, "'Bridging the Gap between Community and National laws: Towards a Principle of Homogeneity in the Field of Legal Remedies'"; Caranta, "'Judicial Protection Against Member States: a new jus commune takes shape'"; Bebr, "'Court of Justice: Judicial Protection and the Rule of Law'" and Curtin & Mortelmans, "'Application and Enforcement of Community Law by the Member States: Actors in Search of a Third Generation Script'", both in Curtin and Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, vol. II ( Martinus Nijhoff Publishers, 1995); Tash, 'Remedies for European Community Law Claims in Member States: Toward a European Standard'; Ruffert, 'Rights and Remedies in European Community Law: A Comparative View' (1997) 34 CMLRev 307; Brealey & Hoskins, Remedies in EC Law; D'Sa, European Community Law and Civil Remedies in England and Wales; Lonbay & Biondi (eds.), Remedies for Breach of EC Law; Steiner, Enforcing EC Law; Lewis, Remedies and the Enforcement of European Community Law. The issue of remedies before national courts is not new: see Hartley, 'The Effect in National Law of Judgements of the European Court of Justice'; Bridge, 'Procedural Aspects of the Enforcement of EC law Through the Legal Systems of the Member States'; Steiner, 'How to Make Actions Suit the Case: Domestic Remedies for Breach of EC Law'; Oliver, 'Enforcing Community Law Rights in English Courts'; Barav, 'Enforcement of Community Rights in National Courts: The Case for Jurisdiction to Grant Interim Relief'.

-365-

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