8. EL CASO DEL POLÍGONO FUENTE DEL JARRO
8.3. PROYECTO INGENIAL: INICIATIVA PARA LA GESTIÓN DE LA
Effectiveness as a concept is elusive: is it a “principle, arbiter, standard or result”?84 From an
analytical point of view of effectiveness, it is argued that effectiveness has sometimes been considered as a standard, while sometimes the reasoning has drawn more attention to the balancing being undertaken.85 In addition, the normative power of procedural autonomy has
increased. Initially, the effectiveness test was an independent assessment of the needs of
79 A. WARD, 'Do unto others as you would have them do unto you: Willy Kempter and the duty to raise EC law
in national litigation', (2008) 33 European Law Review, 739.
80 In Keck, the Court distinguished product requirements from selling arrangements. Under the internal market
logic, product requirements would be subject to court scrutiny, while mere selling arrangements (such as opening hours and the like) would be accepted provided that the two conditions set out by the Court were met Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097.
81 A. WARD, 'Do unto others as you would have them do unto you: Willy Kempter and the duty to raise EC law
in national litigation', (2008) 33 European Law Review, 739, 751.
82 M. BOBEK, 'Why there is no principle of "Procedural Autonomy" of the Member States', in Hans- W. Micklitz
& Bruno de Witte (eds), The European Court of Justice and the Autonomy of the Member States (Intersentia, 2011), the contribution is also notable for being outspokenly critical of the recent developments of procedural autonomy.
83 See W. VAN GERVEN, 'Of Rights, Remedies and Procedures', (2000) 37 Common Market Law Review, 501,
504.
84 M. ROSS, 'Effectiveness in the European legal order(s): Beyond supremacy to constitutional proportionality',
(2006) 31 European Law Review, 476, 479
85 This is not to say that using effectiveness as a standard does not imply a certain trade-off between different
values. However, the inherent balancing does not surface in a reasoned form. The last part of this thesis draws attention to the value choices inherent in procedural law.
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effectiveness from an EU law point of view. Over the past ten years, ‘procedural autonomy’ has increasingly become a positive claim on behalf of national rules. The test now involves a weighing up of the procedural autonomy possessed by Member States against the effectiveness of EU law.
Effectiveness as a standard
Under the ‘effectiveness’ limb, the Court tests that a national rule must not render virtually
impossible or excessively difficult either i) the exercise of rights conferred by European law or
ii) the application of European law. These formulations differ from one another as one is geared towards the protection of a right, and the other towards protection of the law itself. These two formulations exemplify a subjective and an objective approach respectively.86
Subjective in this context refers to a specific interest of an individual or group right based test, whereas objective relates to the pure application of law in order to protect a wider common interest of society. Depending on the limit chosen (impossible/excessively difficult) effectiveness is the tool used to set a standard based on which national rules must realize EU law/rights. The question of national procedural rules is framed as an instrumental one, in which national procedural law merely realizes substantive law.
Effectiveness as a balancing exercise
The test of ‘effectiveness’ was rephrased in the van Schijndel/Peterbroeck cases, during which the ECJ used additional and seemingly cumulative considerations when testing the ‘effectiveness’ of a national rule:
“…national procedural provisions […] must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole before the various national instances. [context part] In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the
86 The acceptance of the terms subjective and objective for the indication that the protected interest can either
be specific or general varies across legal traditions. The distinction is meant similarly to the French distinction between “public policy rules designed to order society (règles d’ordre public de direction), adopted in the general interest and which the court may raise of its own motion, and public policy rules designed to protect specific interests (règles d’ordre public de protection), adopted in the interest of a particular category of persons and which may be relied upon only by persons belonging to that category”. See Case C-429/05
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principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration [balancing part]”.87
The structure of the effectiveness test has changed88 from that of a standard to place new
emphasis of the national context (‘contextualization’). In addition it takes into account the purpose of the national rule (‘purposive approach’), followed by a subsequent balancing of the two. Generally, the van Schijndel/Peterbroeck test is therefore referred to as a ‘balancing approach’. It is not only the purpose (“the role of that procedure”) of the national rule that is taken into account, but the context, which is a wider notion including role, progress and various judicial instances. Moreover, the purpose is taken into account at both levels, EU and national. Accordingly, the rationale or purpose of a given procedural rule can justify a restriction of or limitation to the bringing of a claim based in EU law. The Court referred to rights of the defense, legal certainty, proper conduct of procedure, but one might also consider, for example, unjustified enrichment89. However, the test goes further than a
merely ‘contextualised’ understanding of a national procedural rule, which would only imply a method for determining the ‘real’ nature of a national rule. In addition, the basic principles upon which these national rules are based must “be taken into consideration”. Herein lays the truly fundamental importance of the contextual approach: the balancing aspect is a novelty, as for the first time the national procedural law receives “standing”. By taking into consideration national procedural rules, and the national considerations which justify the existence of these rules, these national value judgments enter into conflict with EU law requirements. The conflict is not automatically resolved by primacy as a rule but through a balancing exercise. However, this is not an alternative to effectiveness as a standard. In understanding the contextualized van Schijndel/Peterbroeck test as a balancing exercise, effectiveness as a standard is used to determine the EU law requirements on accuracy in the
87 Joined Cases C-430/93 and C-431/93 Van Schijndel / Stichting Pensioenfonds voor Fysiotherapeuten [1995]
ECR I-4705, para 19; Case C-312/93 Peterbroeck, Van Campenhout & Cie / Belgian State [1995] ECR I-4599, para 14.
88 M. HOSKINS, 'Tilting the Balance: Supremacy and National Procedural Rules', (1996) 21 European Law
Review, observing that the Court of Justice “departed from the orthodox principle of procedural autonomy”,
376. However, he criticizes the approach as being too vague and prefers effectiveness as a more useful standard in the national court.
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application of EU law, which are then justified and balanced against the contextualized national procedural provisions.90
To summarize, two uses of the principle of effectiveness are distinguished. The first is ‘effectiveness as a standard’, in which procedural law must meet a standard of accuracy91 in
the implementation of EU substantive law. Secondly, the ‘balancing use’92 of effectiveness –
it allows a departure from the accurate or correct application of EU law and introduces a mechanism of justification. The justification exercise can comprise two dimensions of balancing, namely i) procedural economy balancing against accuracy and ii) a constitutional dimension to the question regarding the source of the justificatory values: whether they derive from European procedural justice values or as exhibited in the national rule, and hence from the national level itself.
While for some time the Peterbroeck test was no longer regarded as pertinent, the procedural autonomy doctrine has over the last two years received increasing attention. Probably as a consequence thereof, the ECJ has increasingly made use of the balancing formulation.93
Judicial protection as a fundamental right
Lastly, the Court sometimes refers to judicial protection as a fundamental right when assessing ‘effectiveness’. Judicial protection as a fundamental right can be separated from effectiveness as a standard. First, it is based on subjective rights language. It develops into
90 For strong criticism on the use of the ‘effectiveness’ limb in general, see A. WARD, 'Do unto others as you
would have them do unto you: Willy Kempter and the duty to raise EC law in national litigation', (2008) 33
European Law Review, 739, 753. According to her, effectiveness as a standard is too indeterminate, and the
contextual approach too unstructured. She therefore proposes to streamline the ECJ’s jurisprudence with Article 6(1) ECHR case law, according to which “non-discriminatory temporal limitations to the enforcement of
Community law, at national level, would only need to be disapplied, under EC law, if they struck at the "very essence" of right of access to a court, failed to pursue a legitimate aim, and were disproportionate.” In my
reading of the case, all of these elements are already implicit in the effectiveness under the Peterbroeck test, with the possible exception of the ‘very essence’ element. A clearer articulation within effectiveness testing would nevertheless be desirable. I do agree with Ward’s criticism of the indeterminacy of effectiveness as standard.
91 In procedural theory the merely ‘servant function‘ of procedural law vis-à-vis substantive law is often
described as the accuracy view. I discuss this aspect in greater detail in Chapter 15.
92 P. HAAPANIEMI, 'Procedural Autonomy: A Misnomer?', in Laura Ervo, et al. (eds), Europeanization of
procedural law and the new challenges to fair trial (Europa Law Publishing, 2009), 98.
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an increasingly independent limb of the procedural autonomy test firstly because it refers to an autonomous and concretizable set of sources of law (Charter of Fundamental Rights, the Convention of Human Rights and Member States’ common traditions). As principled rights deriving from the ECHR, or more recently the Charter of Fundamental Rights, these rights can only inform the interpretation of other EU laws; for the moment, they are not self- standing rights applicable independent of EU secondary legislation. Despite the change of legal status of the Charter, the scope of the Charter is still largely dependent on its future interpretation. Violation of the Charter does not in itself grant applicability, but is contingent on the scope of application of EU law to a case. The rights are thus not self-standing. On the other hand, Convention rights are sometimes limited to specific types of disputes, such as private or criminal proceedings. The respective scopes of application of the Charter and ECHR therefore differ at times. Article 6(1) ECHR guarantees a fair and public hearing within a reasonable amount of time by an independent and impartial tribunal established by law. Article 13 ECHR guarantees the right to an effective remedy to everyone whose rights and freedoms as set forth in the Convention are violated.
The principle of judicial protection was enshrined by the ECJ in the Johnston94 case, in
which recourse was made to the common traditions of the Member States, as well as Articles 6 and 13 of the ECHR for authority (although, for example, Article 6 (1) ECHR concerns fair trials, confined to civil law disputes, granting overall procedural rights).
Steffensen concerned the admissibility of evidence in a procedure, and the Court of Justice
stated that parties “must be afforded a real opportunity to comment effectively on it in order
for the proceedings to reach the standard of fairness required”95. Since Johnston, the
importance of the effectiveness of judicial protection has been continuously stressed,96
although its relation to the ‘principle of effectiveness’ has never been explicitly addressed.
Although Article 6 TEU and Article 51(2) of the Charter restrict the Charter from extending the competences of the EU, it remains to be seen as to how the Fundamental
94 Case 222/84 Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1663. 95 Case C-276/01 Steffensen [2003] ECR I-3735, para 77.
96 One of the most important recent cases being Case C-432/05 Unibet (London) Ltd. and Unibet (International)
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Charter will inform the case law on judicial protection in the future regarding the right to an effective remedy and a fair trial in Article 47, as framed by Article 52 on the scope of guaranteed rights and Article 53 on the level of protection of the Charter:
Article 47
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
Some scholars, for example former ECJ judge Timmermans, heavily stress the different rationales underlying the respective principles of effectiveness. Whereas effectiveness in an objective sense is concerned with the uniform application of the law, effectiveness in a subjective sense, of subjective rights that is, is concerned with the protection of rights. The third form of effectiveness of judicial protection can be phrased as effective “access to justice”,97 as it mostly appears in cases in which an “individual appears to be denied access
to justice or an available remedy“.98 Thus construed, the existence of such a maxim is
connected to the principle of legal protection derived from, for example, Articles 6 and 13 ECHR, in the form of access to an independent and impartial (EU or national) court.99
These values are not national, but due to the sources they are inherently inter/supranational. In the balancing version of effectiveness by contrast, it is possible for a national value to enter the balancing metric. However, the judicial protection rights are, as of yet, not self-standing and serve only as interpretative tools, and would represent a common EU-wide denominator.
97 Christian Timmermans presentation “Limits imposed by EU law to Member States’ Freedom of Action in
Fields not Regulated by EU law”, Robert Schuman Centre for Advanced Studies, 13 April 2011.
98 J. ENGSTRÖM, The Europeanisation of Remedies and Procedures through Judge-made Law - Can a Trojan
Horse achieve Effectiveness? Experiences of the Swedish Judiciary (European University Institute, 2009) Tome I,
48.
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The role that the fundamental right to an effective remedy is going to play in the development of the CJEU’s approach to damages is open to speculation. However, it is likely that the provision is going to play an increasingly important role in interpreting remedies. Again, due to this uncertainty, national courts are going to refer to preliminary references – see for example the reference by the Italian Consiglio di Stato on the relevance of Article 47 of the Charter in relation to the provision on ineffectiveness in the Remedies Directive 89/665.100
3.1.3 ‘Procedural autonomy’ results in considerable uncertainty for the Court
The notion of procedural autonomy is often based on a negative conception: procedural autonomy is what is left between the boundaries of demands of equivalence and effectiveness. In this sense, it is nothing more than a result. As such, procedural autonomy is but the consequence of the absence of Community rules. It is thus characterizable as “just another label”101 for the Rewe/Comet formula, as mere “shorthand for the fact that where
(and as long as) there are no Community rules, Community law has little choice but to rely on national rules”. 102 These are descriptive and non-normative accounts.
The notion of procedural autonomy becomes legally relevant only once the area delimited by equivalence and effectiveness can also make claims independently, therefore deserving a positive description. Implicitly, this is recognized by Kakouris, who consequently denies that Member States possess procedural autonomy.103 The question of procedural
autonomy therefore concerns whether an actual balancing occurs which positively gives recognition to the demands of Member States’ autonomy. The Member States’ claim to procedural autonomy is then capable of being weighed against demands of effectiveness
100 Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 January 2013, Ministero
dell’Interno v Fastweb S.p.a. Case C-19/13.
101 S. PRECHAL, 'Community Law in National Courts: The Lessons from Van Schijndel', (1998) Common Market
Law Review 681, 682 fn 3.
102 Also defended by S. PRECHAL, 'Community Law in National Courts: The Lessons from Van Schijndel', (1998)
Common Market Law Review, 681.
103 C. N. KAKOURIS, 'Do the Member States Possess Judicial Procedural "Autonomy"?', (1997) Common Market
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and equivalence. In the alternative, procedural autonomy is nothing more than the mere residue of those aspects left untouched by the requirements of Community law.
As the doctrine stands so far, the existence of such a claim to autonomy and the precise nature thereof are disputed. In applying procedural autonomy, the ECJ faces significant uncertainties: is Procedural Autonomy descriptive or prescriptive, and if the latter is the case, what does it prescribe?
Procedural autonomy, and in particular the effectiveness limb of the test, constrains judicial reasoning when damages are involved: the ECJ has fully subjected damages claims to the use of the procedural autonomy doctrine. Similarly, the legislator has refrained from legislative action on damages on grounds of the Member States’ procedural autonomy.104
In relation to damages, the inherent ambiguity of the doctrine is exacerbated by the uneasy classification of damages within a substance-procedure category. After all, it is called
procedural autonomy. A general concern of procedural autonomy is whether the procedure-
substance distinction in se is valid. With respect to damages, this concern is particularly relevant.