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This Part summarizes the doctrines of effective judicial protection and effet utile, and the extent to which these doctrines require national courts to ignore or modify national procedures when deciding cases under Community law. Other articles have provided comprehensive analyses of the historical evolution and contents of the doctrines.[2] I do not aim at providing yet another academic summary of the law, nor do I pretend to offer fresh insights into the state of the law after recent Court decisions such as Brasserie du Pecheur or Factortame III.[3] Rather, my goal is two-fold: (i) to summarize the essential aspects of the doctrines for background purposes, and (ii) to distill the aspects of the doctrines that would be most relevant to the Court in answering the national court's question in Save-a-Bird's case.
The principle of direct effect is the starting point for understanding the operation of the doctrines of effective judicial protection and effet utile in the field of legal remedies against Member States. The doctrine of direct effect allows individuals to invoke before national courts provisions of the Treaty, and of Community regulations, directives and decisions that are "sufficiently clear and unconditional."[4] Individuals may avail themselves of rights arising under these provisions against Member States ("vertical direct effect"). They may, under certain circumstances, also invoke these rights against other private parties ("horizontal direct effect").[5]
The Court has not (yet) extended the doctrine of direct effect to permit private parties to invoke clear and unconditional provisions of directives against individuals. The Court, however, has attenuated the impact of this gap in protection by requiring national courts to interpret national law, "as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view."[6] In addition, in its landmark Francovich decision,[7] the Court held that Community law requires Member States to compensate individuals for damages incurred as result of the State's breach of its obligations under a directive. Liability would attach, the Court held in Francovich, if "three conditions are fulfilled ... The first of those conditions is that the result prescribed by the directive should entail the grant of rights to individuals. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, the third condition is the existence of a causal link between the breach of the state's obligation and the loss and damage suffered by the injured parties."[8]
The Francovich Court based its decision primarily on the effective judicial protection and effet utile doctrines. "[I]t has been consistently held," the Court stated, "that the national Courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals."[9] "The full effectiveness of Community law would be impaired and the protection of the rights which they grant would be weakened," the Court concluded, "if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible."[10]
The next section describes the principle that national law supplies the "procedural conditions" governing actions to enforce rights supplied by Community law. The section discusses the tensions that have arisen between this principle and the effectiveness of judicial protection and effet utile doctrines, and the Court's approach to this problem.
The Court has early on established a dichotomy between rights created by Community law and the "procedural conditions" governing actions to enforce these rights in national courts.[11] "Applying the principle of cooperation laid down in article 5 of the Treaty," the Court has held, "it is the national Courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of Community law. Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the Courts having jurisdiction and to determine the procedural conditions governing actions" brought under Community law.[12‡] National procedural autonomy, the Court specified, would apply as long as a rule of procedure does not discriminate against Community claims or render the exercise of Community rights "virtually impossible or excessively difficult."[13]
The procedure/substance dichotomy, however, did not provide a tidy doctrinal tool to classify the areas in which Member States retain control over the conduct of actions brought under Community law. Procedure meets substance whenever a rule labeled as procedural prevents the enforcement of a substantive right, and the effective judicial protection and effet utile principles quickly came into conflict with procedural rules limiting litigants' ability to assert rights under Community law.
This conflict produced a line of cases in which the Court relied on the effective judicial protection and effet utile doctrines to set aside national procedural rules deemed to place excessive burdens on the exercise of Community rights. In San Giorgio,[14] for example, the Court asked a national judge to set aside an evidentiary rule conditioning the restitution of taxes withheld in violation of Community law on proof that the charge had not been passed on to the end consumer. The excessive difficulty inherent in meeting such a rule of evidence, the Court held, violates the principle of effective judicial protection. In another case involving rules of evidence, the Court was asked to decide whether effective judicial protection precludes Member States from assigning to administrative bodies the exclusive power to make determinations of fact in actions against a public authority. While the Court did not reach the issue, Advocate General Darmon opined that Member States may not, consistent with the principle of effective judicial protection, require litigants to choose experts from a pool of candidates whose independence and neutrality is not insured.[15]
The following section reviews selected cases where the Court relied on effective judicial protection and effet utile to direct national Courts to set aside national procedural rules. These cases were selected because of their precedential value to the question whether national courts should be required to set aside national rules of standing denying associations access to court.
The Court addressed the relationship between effective judicial protection and standing in Verholen.[16] That case involved a challenge to provisions of a Dutch pension fund alleged to violate a directive prohibiting discrimination between men and women in the administration of social security schemes. Before implementation of the directive, the rules governing the fund denied certain benefits to married women whose husbands worked outside of the Netherlands. These rules, however, did not apply to married men whose wives worked abroad. The Dutch government eliminated the discriminatory provisions prospectively when it transposed the directive, but it did not provide for the retroactive adjustment of benefits for the victims of discrimination.
The plaintiff in Verholen was a man indirectly affected by the Dutch government's failure to provide retroactive benefits, in that his pension rights would have been higher had his wife (a direct victim of the discriminatory rules) received the benefits discriminatorily withheld. The plaintiff's wife had no standing to participate in the proceedings under Dutch law. The Dutch court referred the question whether an indirect victim of discriminatory treatment may (from a substantive subject-matter rather than a standing viewpoint) avail himself of the provisions of the directive.
The Advocate General and the Court answered the Dutch court's question in the affirmative and, although the Advocate General suggested that the husband would have standing under Dutch procedural law anyway, discussed the standing question under European law in the course of their respective answers. The standing issue, the Advocate General wrote, "is rather delicate ... Hitherto that difficulty has been resolved at a purely national level, in so far as the court hearing the main dispute examines, where necessary, the standing and the interest in bringing proceedings of the person concerned in the light of its domestic procedural rules. If that person may properly bring an action, he may, in order to defend his rights, rely on the existence of a Community rule which he believes to be of benefit to him."[17].
However, the Advocate General specified, the national procedural aspect of standing "does [not] mean that only national law is capable of determining who is entitled to rely on Community law." "National legislative provisions," the Advocate General stated, "cannot undermine the principle of the right to obtain a judicial determination. That would be the case, for example, if a person who was the victim of discrimination prohibited by Community law could not, by reason of purely domestic procedural rules, rely on his rights before a court (emphasis added)." In addition, the Advocate General reiterated the general principle that procedural rules, including standing, "must not render virtually impossible the exercise of rights conferred by Community law."[18]
In its opinion, the Court did not elaborate on the issue as much as the Advocate General did. The Court did, however, express general agreement with the Advocate General's premise that "[w]hile it is, in principle, for national law to determine an individual's standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection . . . and the application of national legislation cannot render virtually impossible the exercise of the rights conferred by Community law."[19]
A few principles relevant to the associational standing analysis may be extracted from Verholen. First, while standing falls on the procedural side of the divide, the Court views the doctrine as belonging to the family of rules that do not operate unconstrained by principles of effective judicial protection. Next, the principle of effective judicial protection encompasses, at least in the opinion of the Advocate General, a right of access to national courts to obtain a judicial determination of Community law issues. Third, on a related note, the right to a judicial determination appears to belong to the class of plaintiffs upon whom the directive intends to confer benefits. It therefore becomes relevant to scrutinize the relevant directive, in a Francovich-like manner, to ascertain its beneficiaries and determine the extent to which it gives them rights.
The Court's decision in Factortame I[20] demonstrates its willingness to require national courts to set aside a national procedural rule even if the rule is based on important policies of the Member State.
In Factortame I, the House of Lords referred to the Court the question of whether Community law requires a British court to issue a provisional injunction suspending the application of a measure alleged to violate Community law in order to avoid irreparable injury to a complainant pending judgment on the merits. Under British law, courts had no power to issue an injunction against the Crown with respect to a measure that has not been found by a judge to violate Community law.
The British rule was based on sensitive separation of powers principles, which some scholars explained date back to the French revolutionary principle that "local administrative bodies 'cannot be disturbed in the exercise of their functions by acts of the judiciary.'"[21] The Court, nevertheless, replied to the House of Lords that Community law requires the British court to grant provisional relief. The Court relied on its prior decision in Simmenthal, which established that "any provision of a national legal system ... which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legal provisions which might prevent Community rules from having full force and effect [is] incompatible with those requirements which are the very essence of Community law."[22] "[T]he full effectiveness of Community law would be just as much impaired," the Factortame Court reasoned, "if a rule of national law could prevent a Court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the rights claimed under Community law."[23]
As will be explained below, the doctrine of standing is designed, among other things, to further historically rooted, significant separation of powers principles. The Factortame Court's willingness to give effective judicial protection and effet utile prevalence over national policies of this type is, therefore, highly relevant to Save-a-Bird's case.
The Court has asked national judges to set aside domestic law provisions limiting damages that do not "guarantee real and effective judicial protection."[24] Thus, in von Colson, the Court required the national judge to set aside a rule limiting damages in gender discrimination cases to a nominal amount. The Court explained that the relevant directive (requiring implementation of the principle of equal treatment between men and women) did not compel the Member States to choose any "specific form of sanction for unlawful discrimination." However, the Court stated, "that sanction [must] be such as to guarantee real and effective judicial protection [and] it must also have a real deterrent effect on the employer. It follows that where a Member State chooses to penalize the breach of the prohibition of discrimination by the award of compensation, that compensation must in any event be adequate in relation to the damage sustained."[25]
The von Colson decision has relevance to the analysis of Save-a-Bird's associational standing question because of the methodology used by the Court. The Court in essence let the Member State free to experiment with various forms of remedies for gender discrimination. The Court empowered the national judge, guided by the Court's judgment, to ensure that his or her government meet a minimum standard of effectiveness. This approach forms the basis of the "controlled experimentation" suggestion set forth in the conclusion of this paper.[§]
In its recent decisions in van Schinjdel[26] and Peterbroeck,[27] the Court added a new analytical layer to its evaluation of national procedures. These decisions, it may be argued, narrowed the range of procedural rules that remain within the exclusive jurisdiction of national law and may have signaled the Court's intent to move further into the harmonization of the field of legal remedies against Member States.«[«]
The Court reiterated in both cases the traditional "impossible or excessively difficult" test and the prohibition of procedural discrimination against Community rights. The Court, however, added that "[flor the purposes of applying those principles, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analyzed 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. In the light of that analysis, the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration."[28]
Both van Schinjdel and Peterbroeck presented challenges to procedural principles preventing the national court from raising issues of Community law of its own motion. In van Schinjdel, the plaintiffs challenged a Dutch law requiring certain professionals to participate in a pension fund. When their case reached the Supreme Court of the Netherlands (Hoge Raad), the plaintiffs sought for the first time to rely on Community rights. The Hoge Raad, however, could not entertain the Community law claims because Dutch procedure prevents (i) litigants from raising new points of law in cassation and (ii) the Hoge Raad from raising such points of its own motion if doing so entails a new factual inquiry. In Peterbroeck, the plaintiffs unsuccessfully challenged a tax assessment before an administrative officer based solely on national law. They sought to rely on Community rights for the first time when appealing the adverse administrative determination before an appellate court (the Cour d'Appel). However, a statute of limitation barring claims made after the expiration of a 60-day period commencing with the filing of the challenged tax determination prevented the litigants from asserting, and the court from considering of its own motion, the Community claims.
Despite the similar factual context, the Court reached opposite results in the two cases. In van Schinjdel, the Court found the challenged procedural rule justified on the ground that it "safeguards the rights of the defence [and] ensures proper conduct of proceedings by, in particular, protecting them from the delays inherent in the examination of new pleas."[29] In Peterbroeck, the Court found the 60-day time limit not objectionable per se, but held that its "special features" precluded its application consistent with Community law. These special features were that (i) the Cour d'Appel was the first "court or tribunal" that could make a reference under Article 177, and (ii) the expiry of the 60-day period precluded the Cour d'Appel and any higher court from raising the Community law issues of its own motion and, if appropriate, make a reference.[30]
On a case-specific level, one may distinguish van Schinjdel and Peterbroeck on the ground that the van Schinjdel rule applied in a procedural context in which (lower) courts apparently had the opportunity to raise a Community law issue of their own motion. In Peterbroeck, on the other hand, the litigants' failure to raise the issue prevented the national courts from addressing it altogether.[31] In turn, on a more general level, the national courts' ability to raise Community law issues of their own motion enhances the effective application of Community law. Indeed, some commentators have read the cases as one more example of the forceful injection of effet utile concerns into the evaluation of national procedures, and criticized the Court for overly intruding into the national realm by "looking to achieve a result which is 'correct' as a matter of Community law, rather than simply to resolving the dispute between the parties."[32]
Beyond the effet utile argument, however, Peterbroeck and van Schinjdel may be read to introduce two related new developments that further narrow the area of procedural law that remains within the control of Member States.
The first development is the introduction into the doctrine of what may be termed "hallmarks of procedure". As noted above, the Court held that the evaluation of a given rule requires consideration of its relationship to the "basic legal principles" of national systems such as the "rights of the defense", "legal certainty" and the "proper conduct of procedure". If a rule implicates these policies, the Court seems to say, it is more likely to belong to the family of laws that are traditionally labeled as "procedural" in the Union. A good example of a rule carrying substantial hallmarks of procedure would be res judicata. It protects the rights of the defendants to achieve repose with respect to a disputed matter. It also furthers the proper conduct of procedure and promotes legal certainty by reducing the possibility of duplicative litigation of the same issues.
The nature of the hallmarks listed by the Court, analyzed in light of the rules at issue in van Schinjdel and Peterbroeck and of the Court's gradual expansion of the limitations on national courts' ability to apply national procedural rules, arguably narrows the family of procedural rules over which Member States retain exclusive competence. The hallmarks listed by the Court tend to capture house-keeping matters and "rules of the game" aimed at shaping the legal playing field between the litigants: A party must notify his or her adversary of new claims within a specific time period. He or she must respond to a complaint within a certain number of days after its filing. If a litigant fails to do so, he or she will be penalized for not "playing by the rules." On the other hand, doctrines such as standing, which reflect a judgment on an issue of broad societal importance (access to justice), carry less hallmarks of procedure and may in a post-Peterbroeck world lose the (increasingly thin) protection extended to national procedural rules.
The second (arguable) addition to the doctrine brought about by van Schinjdel and Peterbroeck is the explicit expansion to the entire judicial history of a case of the context in which the evaluation of a rule should take place. This contextual expansion makes sense in that it provides a second level of scrutiny whereby the Court may, in its discretion, assess whether a seemingly procedural rule curtails the effective application of Community law. (This is what the Court did in Peterbroeck.)
The broad definition of the context in which the evaluation of a procedural rule takes place has important consequences for Save-a-Bird's case. As will be seen below, the argument that denying standing to Save-a-Bird deprives beneficiaries of Community law from effective judicial protection requires an empirical showing that no alternative (effective) methods of enforcing the Community rights at stake exists. In this connection, Save-a-Bird may argue that the broad reading of van Schinjdel and Peterbroeck explored here provides the legal space for introducing this type of argument. Conversely, allowing the introduction of evidence of the lack of alternative effective remedies will be met by the counter-argument that alternative methods of enforcing the Community rights at issue exist (e.g., the appointment of environmental managers within industries or the execution of eco-contracts between the government and industries). Here again, the broad framework for evaluating a procedural rule established by van Schinjdel and Peterbroeck arguably permits the introduction of arguments of this sort.
The next section of the paper, which concludes this Part, outlines some of the pronouncements of the Court relating to the need for uniformity of certain legal procedural rules in cases brought under Community law. Here again, the goal is to extract some principles that will be applied in the standing analysis.
Several commentators have read the Court's case law in the field of legal remedies to gradually move towards a jus commune.[33]†[†] For example, Professor (and former Advocate General) Van Gerven has argued that the Court's case law demonstrates that "effectiveness requires uniformity so far as the essential or ´constitutive' preconditions of the remedies are concerned, and sufficient comparability, through the so-called ´bottom line' approach' (i.e. no less favourable protection for Community claims), as far as other rules are concerned."[34] Indeed, the Court is de facto creating a European law of procedures each time it rejects a national procedural provision as incompatible with effective judicial protection or effet utile.
The theme of unification of remedies was also sounded by the Court in cases such as Francovich and Brasserie du Pecheur. Thus, the Court's decision in Francovich held that the principle of Member State liability for breaches of Community law is "inherent in the Treaty," and therefore asked the national courts to apply a Community rule that necessarily must be uniform throughout the Union.[35]
Commentators have noted that this aspect of the Court's decision in Francovich was supported by its previous ruling in Zuckerfabrik Sudertithmarshen.[36] In that case, the Court was asked whether national courts have the power to suspend the enforcement of a national administrative decision pending resolution of a challenge to the validity of a Community regulation that formed the basis for the adoption of the decision. The Court first ruled that its having the exclusive power to rule to invalidate Community law does not prevent national courts from suspending the enforcement of an administrative provision based on Community law. Moving on to discussing the uniform application of Community law, the Zuckerfabrik Court noted that national legal systems differ as to the conditions for granting interim relief. However, the Court stated, uniform application is a "fundamental requirement of the Community legal order." Therefore, the Court held, "the suspension of enforcement of administrative measures based on a Community regulation ... must in all Member States be subject, at the very least, to conditions which are uniform so far as the granting of such relief is concerned."[37] The Court went on to define the substance of the uniform conditions for granting relief in the case before it, using the provisions of Article 185 regarding the Court's own suspensory powers as a starting point.
The Court's decision in Brasserie du Pecheur[38] continued the trend towards unification of tort liability and defined the common rule using a methodology reminiscent of that used by the Court in Zuckerfabrik. In Brasserie du Pecheur, the Court was asked to specify the "conditions under which a right to reparation of loss or damage caused to individuals by breaches of Community law attributable to a Member State [is] guaranteed by Community law."[39] After restating the familiar principle that these conditions should be determined in the light of the doctrines of effective judicial protection and effet utile, the Court moved on to the unification concept and held that the conditions for State liability "cannot, in the absence of particular justification, differ from those governing liability of the Community in like circumstances."[40] To give content to those substantive conditions, the Court, like it did in Zuckerfabrik, looked for guidance in parallel provisions of Community law. In Brasserie du Pecheur, Article 215, governing the non-contractual liability of the Community, provided the requisite analogy.[41]
A few points relevant to the Save-a-Bird case can be gleaned here. First, if the Court decides that effective judicial protection and effet utile require national judges to grant associations standing to litigate diffuse interests, it will need to provide some guidance to national courts as to what principles should be substituted for the widely divergent approaches to associational standing followed by various Member States. Following the model of Brasserie du Pecheur and Zuckerfabrik, the Court will likely attempt to draw an analogy from Community law. As will be described later, however, the associational standing rules developed by the Court are very restrictive, and do not provide much help in fashioning a European rule of associational standing.‡[‡] In these circumstances, the Court will face the highly problematic task of fashioning from scratch a European law of associational standing. (The "controlled experimentation" suggestion discussed in the conclusion of this paper is an attempt to fill this vacuum.)
The next two Parts apply the principles described above to the Save-a-Bird case.
[2] See, e.g., Van Gerven, Bridging the Gap Between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies?, 32 C.M.L.R. 679 (1995); Caranta, Judicial Protection Against Member States: A New Jus Commune Takes Shape, 32 C.M.L.R. 703 (1995); Dantonel-Cor, La mise en jeu de la responsibilité de l'État francais pour violation du droit communautaire, 31 (3) R.T.D.E. 471 (juil.-sep. 1995); Steiner, From Direct Effects to Francovich: Shifting Means of Enforcement of Community Law, 18 Eur. L. Rev. 3 (1993); Duffy, Damages Against the State: A New Remedy for Failure to Implement Community Obligations, 17 Eur. L. Rev. 133 (1992).
[3] Brasserie du Pecheur v. Germany and R. v. Secretary of State for Transport ex p. Factortame Ltd., Joined Cases C-46/93 and C-48/93, [1996] 1 C.M.L.R. 889.]
4 Van Gerven, supra note 2 at 680.]
5 Id.
[6] Id. at 680-681 (citations omitted).
[7] Joined Cases, C-6/90 and C-9/90, [1991] ECR I-5357.
[8] Id. at pars. 39-40.
[9] Id. at par. 32.
[10] Id. at par. 33.
[11] See, e.g., Rewe v. Landwirtschaftskammer, Case 33/76, [1976] ECR 1989 at par. 5.
[12] Id.
[‡] Applying these principles, the Court has held, for example, that a defendant in an action based on Community law could assert a statute of limitations defense provided for by national law. Rewe v. Landwirtschaftskammer, Case 33/76, [1976] ECR 1989.
[13] E.g., Peterbroeck, Case C-312/93, [1995] ECR I-4599.
[14] Amministrazione delle Finanze dello Stato v. San Giorgio s.p.a., [1983] ECR 3595.
[15] Comitato di coordinamento per la difesa della Cava, [1994] ECR 1483.
[16] Verholen v. Sociale Verzekeringsbank, [1994] 1 C.M.L.R. 157 (1991). (I have relied here on a Lexis printout of the decision.)
[17] Id. at p. 14 of Lexis printout.
[18] Id.
[19] Id. at p. 23 of Lexis printout.
[20] Factortame Ltd. v. Secretary of State for Transport, [1990] ECR I-2433. ]
21 See Caranta, supra note 2 at 707-709.
[22] Amministrazione delle Finanze dello Stato v. Simmenthal s.p.a., [1978] ECR 629 par. 22, cited in Factortame, supra note 16 at par. 20.
[23] Id. at par. 21.
[24] von Colson v. Kamann, Case 14/83, [1984] ECR 1891.
[25] Id. at par. 22.
[§] In other words, "experimentation" by Member States is subject to control by the national judge and, ultimately, by the Court.
[26] Joined Cases, C-430/93 & 431/93, [1996] 1 C.M.L.R. 801.
[27] Case C-312/93.
[««] The argument that the Court's effective judicial protection and effet utile doctrines are gradually creating a jus commune in the Union in the field of legal remedies against Member States is discussed in the next section of the paper.
[28] Id. at par 14; van Schinjdel, supra note 26 at par. 19.]
29 Id. at par. 21.
[30] Peterbroeck, supra note 26 at pars. 17-19.
[31] See Szysczak and Delicostopoulos, Intrusions into National Procedural Autonomy: The French Paradigm, 22 Eur. L. Rev. 141, 142-143 (1997).
[32] Hoskins, Tilting the Balance: Supremacy and National Procedural Rules, 21 Eur. L. Rev. 365, 374. See Szysczak and Delicostopoulos, supra note 31 at 142-143.
[33] See, e.g., Van Gerven and Caranta, supra note 2.
[††] In its conclusion, the paper will discuss at a later stage the implications of the process of homogenization in terms of the relationship between the Community and national judges.
[34] Van Gerven, supra note 2 at 698.]
35 Francovich, supra note 7 at par. 35.
[36] Joined Cases C-143/88 and C-92/89, Zuckerfabrik Sudertithmarschen AG v. Hauptzollamt Itzehoe and Zuckerfabrik Soest GmBH v. Hauptollamt Paderbon, [1991] ECR I-415.
[37] Id. at pars. 25-26.
[38] Joined Cases C-46/93 and C-48/93, [1996] C.M.L.R. 889.
[39] Id. at par. 37.
[40] Id. at par. 22.
[41] Id. at par. 41.
[‡‡] The significant of the restrictive Court jurisprudence on associational standing will also be discussed in the context of the relationship between the Court and national judges.
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