Principle of Effectiveness
1. Definition and purpose
The ‘principle of effectiveness’ in EU law has several different meanings. The European Court of Justice (ECJ) uses the term ‘principle of effectiveness’ (Effektivitätsgrundsatz, principe d’effectivité) in the context of enforcement of EU rights through national courts and administrative authorities. According to its case law, it is not only for the Court of Justice, but also ‘for the national courts … to ensure the full application of European Union law in all Member States and to ensure judicial protection of an individual’s rights under that law’ (ECJ Opinion 1/09 – Unified Patent Litigation System para 68; see also ECJ Case 33/76 – Rewe  ECR 1989 para 5; ECJ Case C-268/06 – Impact  ECR I-2483 paras 44 ff). While the procedural and substantive rules for private actions to enforce individual rights under EU law are, in general, subject to the law of the Member States, EU law holds the Member States ‘responsible for ensuring that those rights are effectively protected in each case’ (ECJ Case C-268/06 – Impact  ECR I-2483 paras 44–5) by requiring that ‘rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)’ (ECJ Case C-268/06 – Impact  ECR I-2483 para 46). As far as directives are concerned, the principle of effectiveness translates into the Member States’ obligation, under Art 4(3) TEU/10 EC, ‘to take all measures to guarantee the application and effectiveness of Community law’, in particular to ensure ‘that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive’ (ECJ Case 68/88 – Commission v Greece  ECR 2965 paras 23 ff).
In its enforcement and remedial dimension, the principle of effectiveness is a consequence of the ‘incompleteness’ of EU legislation which in general restricts itself to establishing primary rights and duties, while questions of remedies and enforcement are left to the law of the Member States. Such division between Union rights and national remedies creates a risk of ineffective or discriminatory enforcement by Member States, a risk which is countered by requiring the Member States, on the basis of their cooperation obligations under Art 4(3) TEU/10 EU (ECJ Case 33/76 – Rewe  ECR 1989 para 5), to ensure effective and non-discriminatory (equivalent) enforcement to safeguard rights which derive from EU law. The Treaty of Lisbon has explicitly spelled out this obligation of effective enforcement in Art 19(1)3 TEU: ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’ (see also ECJ Opinion 1/09 – Unified Patent Litigation System para 66: national courts and the ECJ as ‘guardians’ of the European legal order).
Beyond remedies and enforcement, the principle of effectiveness has been used by the ECJ as an overarching concept on the basis of which several fundamental notions of EU law have been developed. Thus, for interpretation of EU law the principle of effectiveness has been translated into a rule that, ‘where a provision of Community law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness … and which does not detract from its validity’ (ECJ Case 174/05 – Zuid-Hollandse Milieufederatie and Natuur en Milieu  ECR I-2443 para 20; interpretation of EU law). For the interpretation of national law, ensuring the full effectiveness of EU law has meant that national courts are required to interpret their national law in conformity with EU law, as this ‘permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it’ (ECJ Joined Cases C-397/01 to C-403/01 – Pfeiffer  ECR I-8835 para 114). Another early application of the principle of effectiveness can be found in the ECJ Case 26/62 – van Gend & Loos  ECR 1 which lays the foundation for the doctrine of direct effect of EU law. In this judgment, the ECJ explicitly referred to the idea of effectiveness in order to justify the doctrine of direct effect, arguing that ‘the vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted by Article 169 and 170 [Arts 258, 259 TFEU] to the diligence of the Commission and of the Member States’ (for an explicit reference to the effet utile as a justification for direct effect see ECJ Case 9/70 – Grad  ECR 825 para 5). The idea of ‘useful effect’ was also employed in developing the concept of direct effect of directives which have not been implemented, ‘the useful effect’ of which ‘would be weakened if individuals were prevented from relying on it before their national courts’ (ECJ Case 41/74 – van Duyn  ECR 1337 para 12). Likewise, the doctrine of supremacy of EU law was justified by the idea of preventing Member States from nullifying the ‘effects’ of Art 288 TFEU/249 EC (ECJ Case 6/64 – Costa/E.N.E.L.  ECR 585).
As a result of this short survey, it may be concluded that the effectiveness of remedies and sanctions appears to be a sub-category of an overarching principle of effectiveness of EU law, encompassing questions of interpretation of European and national law, the effects of EU law and the consequences of its breach. The following text will concentrate on the consequences of the principle of effectiveness for remedies and sanctions, leaving questions of interpretation or effect of EU law to more specific contributions in this work (European Court of Justice; European internal market; interpretation of EU law, directive, regulation, legal instruments of the EU (others)).
The principle of effectiveness is no innovation of EU law, but may be regarded—at least in its function as a rule of interpretation—as a continuation of the general principle ut res magis valeat quam pereat (interpretation of contracts), a principle which can also be found in public international law and has been referred to by the ICJ explicitly as the ‘rule of effectiveness’ (ICJ Rep 1950, 221, 229 – Interpretation of Peace Treaties (second phase)). The existence of a principle of effectiveness in public international law demonstrates that a concern for effectiveness is not uncommon in multi-layer legal orders such as supranational or federal systems (for US law see Davis v Wechsler, 263 U.S. 22, 24).
2. Development of the law
The starting point for private enforcement of EU law can be seen in the doctrine of direct effect (ECJ Case 26/62 – van Gend & Loos  ECR 1) which made it possible to invoke European rights in national courts, thus employing the ‘vigilance of individuals concerned to protect their rights’ as an effective means of supervising EU law in addition to the ‘public enforcement’ entrusted to the Commission and the other Member States. In the early years of its existence, the ECJ did not go beyond this, holding that national courts must ensure that EU rights are indeed protected, but that it is for the national laws to determine how this protection is to be effected (ECJ Case 13/68 – Salgoil  ECR 453, 463).
The risk that overly lenient national sanctions might jeopardize the effectiveness of European rights was first addressed in the mid-1970s with the two seminal decisions Rewe and Comet. In these judgments, the ECJ confirmed again that Art 4(3) TEU/10 EU entrusts the national courts with ensuring the legal protection derived from the direct effect of EU law. It further confirmed that it is, in the absence of European rules on this subject, ‘for the domestic legal system … to designate the courts having jurisdiction and to determine the procedural conditions governing actions … intended to ensure the protection of the rights’ granted by EU law. However, the ECJ went further in holding that ‘such conditions cannot be less favourable than those relating to similar actions of a domestic nature’, and must not make it ‘impossible in practice to exercise the rights which the national courts are obliged to protect’ (ECJ Case 33/76 – Rewe  ECR 1989 para 5; ECJ Case 45/76 – Comet  2043 paras 11, 18; for a possible predecessor ECJ Case 34/67 – Lück  ECR 245, 251).
Apart from a minor amendment in the early 1980s (‘making it virtually impossible or excessively difficult’, ECJ Case 199/82 – San Giorgio  ECR 3595 para 14), the ECJ has continuously reiterated the Rewe/Comet-test, holding that national rules for actions enforcing individual rights based on Union law must ‘be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)’ (ECJ Case C-268/06 – Impact  ECR I-2483 para 44). Even if these principles originally emerged in a public law context, recent years have seen a considerable number of cases in which they have been applied to national civil and civil procedure rules (see 3. below). In many of these cases, the ECJ has been reluctant to formulate specific requirements and rather repeated the general Rewe/Comet-test, leaving it to national courts to apply it in the case at hand. While such reluctance may be understandable, it significantly reduces legal foreseeability as to the exact contours of the principle of effectiveness and demonstrates the limits of judicial intervention in the general law of remedies.
Parallel to the Rewe/Comet line of jurisprudence, two further facets of the doctrine of effectiveness of sanctions have developed. The first concerns the duty of the Member States, based on Art 4(3) TEU/10 EU, to take, even in the absence of specific provisions on remedies or sanctions in a directive, ‘all measures necessary to guarantee the application and effectiveness of Community law’. In particular, the Member States must ensure that ‘infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive’ (ECJ Case 68/88 – Commission v Greece  ECR 2965 paras 23 ff; ECJ Case C-213/89 – Factortame  ECR I-2433 paras 18 ff). Another facet of effectiveness (at least as far as procedure is concerned) is the right to an effective remedy for violation of rights guaranteed by the law of the EU (Art 47 European Charter). This right has been deduced as a general principle of law from the constitutional traditions common to the Member States and in particular Arts 6 and 13 ECHR (ECJ Case 222/84 – Johnston  ECR 1651 paras 18 ff) and is thus based on a doctrinal basis different from the cooperation obligation (Art 4(3) TEU/10 EU) which was the justification of the Rewe/Comet jurisprudence. However, in recent case law both lines of jurisprudence seem to converge into a single guarantee of effective judicial protection of EU rights (ECJ Case C-432/05 – Unibet  ECR I-2271 paras 37 ff). Even if the three lines of jurisprudence (Rewe/Comet, Commission v Greece, Johnston) have developed on the basis of (partially) different doctrinal justifications, it is submitted that all three may be seen as elements of an overarching doctrine of effectiveness, with the last (Johnston) finding an independent justification in the constitutional right to an effective remedy (for a formally separate analysis see ECJ Joined Cases C-317/08 to C-320/08 – Alassini paras 47 ff, 61 ff).
Finally, it may be observed that not only the ECJ, but also the European legislature increasingly turns an eye to the question of sanctions, going beyond a mere re-incantation of the general requirement of ‘effective, proportionate and dissuasive’ remedies by prescribing specific (minimum) remedies in directives and regulations. This development is particularly advanced in the field of intellectual property (intellectual property (enforcement)) and public procurement law, but may also be observed in other areas such as competition (competition law (private enforcement)), anti-discrimination (discrimination (general); discrimination (contract law); discrimination (employment law)) or consumer law (consumers and consumer protection law). Whether these specifications of the principle of effectiveness may also serve as an inspiration for the general principle of effectiveness is an open question which remains to be answered.
3. Contours of EU law
As pointed out above, the principles of effectiveness and equivalence require that the national remedies for safeguarding an individual’s rights under EU law ‘must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights’ conferred by Union law (principle of effectiveness) (ECJ Case C-432/05 – Unibet  ECR I-2271 para 43). The principle of equivalence means ‘that the national rule in question [must] be applied without distinction, whether the infringement alleged is of European Union law or national law, where the purpose and cause of action are similar’, but it does not require the Member States to extend their most favourable rules to all actions brought on the basis of EU law (ECJ Case C-246/09 – Bulicke paras 26 ff). In order to assess a specific national provision by these criteria, ‘each case … must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole’, taking into consideration 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’ (ECJ Case C-312/93 – Peterbroeck  ECR I-4599 para 14). As a consequence, the requirements of effectiveness and equivalence are very much context sensitive in that the provision of national law in question must be ‘interpreted in the light of the general context and aim of the judicial remedy’ in the respective field of Union law (ECJ Case C-314/09 – Strabag para 34). In other words, the requirements of effectiveness may be more stringent if the underlying European right which is enforced under national law pursues important interests of the Union, such as competition rules or the rules of internal market. A further relevant criterion in this analysis seems to be whether the rule of national law limiting the effectiveness of EU law is common to the law of many Member States (ECJ Joined cases 205/82 to 215/82 – Deutsche Milchkontor  ECR 2633 para 30). In general, effective judicial protection will be adequately secured by the remedies existing under national law. EU law, in principle, does not require national courts to create new remedies to ensure the observance of Union law, unless ‘it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under Community law’ (ECJ Case C-432/05 – Unibet  ECR I-2271 paras 40 ff).
More particularly, the ECJ has accepted that the principle of effectiveness does not require a national court to disapply national rules conferring finality on a decision (res judicata), even if to do so would remedy an infringement of Union law by the decision at issue (ECJ Case C-234/04 – Kapferer  ECR I-2585 paras 21, 24; for an exception ECJ Case C-119/05 – Lucchini  ECR I-6199 paras 59–63; for state liability ECJ Case C-224/01 – Köbler  ECR I-10239 paras 34 ff, 39, 42 f, 50). Another acceptable limit to the effectiveness of EU law is the principle that, in civil proceedings, ‘it is for the parties to take the initiative, the court being able to act of its own motion only in exceptional cases where the public interest requires its intervention’ (ECJ Joined Cases C-430/93 and C-431/93 – van Schijndel  ECR I-4705 para 21). This principle may have implications for both questions of fact and questions of law which may arise in the proceedings. As far as the facts are concerned, EU law ‘does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves’ (ECJ Joined Cases C-430/93 and C-431/93 – van Schijndel  ECR I-4705 para 22).
As far as an ex officio application of Union law is concerned, the principle of effectiveness does not, in general, ‘impose a duty on national courts to raise a plea based on a Community provision of their own motion, irrespective of the importance of that provision to the Community legal order, where the parties are given a genuine opportunity to raise a plea based on Community law before a national court’ (ECJ Joined Cases C-222/05 to C-225/05 – van der Weerd  ECR I-4233 para 41). However, a duty to apply EU law ex officio seems to exist if national rules establish such a duty for comparable (public policy) provisions of national law and the nature and importance of the public interest underlying the respective provision of Union law justify treating the provision of European law in the same manner as the public policy provisions of domestic law (ECJ Case C-168/05 – Mostaza Claro  ECR I-10421 paras 27, 35, 38; ECJ Case C-137/08 – Ferenc Schneider para 56; ECJ Case C-126/97 – Eco Swiss  ECR I-3055 paras 36 ff, 40).
In the law of evidence, the principle of effectiveness disfavours any limitation ‘concerning the form of the evidence to be adduced, such as the exclusion of any kind of evidence other than documentary evidence’, and leans towards a principle of free evaluation of all forms of evidence by the court (ECJ Case 199/82 – San Giorgio  ECR 3595 para 14; ECJ Case C-343/96 – Dilexport  ECR I-579 para 48). On the level of fact-finding, the principle of effectiveness may require the national court to order ‘the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document’, if the circumstances of the case and the burden of proof are ‘likely to make it impossible or excessively difficult’ for relevant evidence to be obtained by the party trying to prove a breach of EU rights (ECJ Case C-526/04 – Laboratoires Boiron  ECR I-7529 para 55; ECJ Case C-264/08 – Direct Parcel Distribution paras 33 ff).
In the case of evidence which has been unlawfully obtained, it is for the national court to decide whether the admission of this evidence creates a risk of an infringement of the adversarial principle and of the right to a fair hearing. In this context, the national court will have to consider ‘whether the evidence at issue … is likely to have a preponderant influence on its assessment of the facts’ and whether the other party still has a real opportunity to comment effectively on that evidence. If the national court decides that the admission as evidence is likely to give rise to an infringement of the adversarial principle, it must exclude that evidence (ECJ Case C-276/01 – Steffensen  ECR I-3735 paras 78 ff).
While rules on costs will only rarely conflict with the principle of effectiveness (ECJ Case C-472/99 – Clean Car  ECR I-9687 paras 27, 29; ECJ Case C-63/01 – Evans  ECR I-14447 paras 75 ff; for legal aid ECJ Case 279/09 – DEB paras 28 ff), it requires on the level of enforcement that national courts take measures which will ensure that the prohibition established by EU law is complied with, even if such measures could not be taken in the case of a corresponding infringement of national law (ECJ Case C-316/05 – Nokia  ECR I-12083 paras 49, 51, 57 ff; see also ECJ Case C-235/09 – DHL paras 53 ff, 58).
The principle of effectiveness also impacts on the substantive law of sanctions. Thus, the ECJ has held that ‘it follows from the principle of effectiveness and the right of any individual to seek compensation for loss caused by a contract or by conduct liable to restrict or distort competition that injured persons must be able to seek compensation not only for actual loss (damnum emergens) but also for loss of profit (lucrum cessans) plus interest’ (ECJ Joined Cases C-295/04 to C-298/04 – Manfredi  ECR I-6619 para 95; see also ECJ Case C-271/91 – Marshall  ECR I-4367 para 31; ECJ Case C-63/01 – Evans  ECR I-14447 paras 69 ff; damages, interest; for a more restrictive position see also ECJ Case C-568/08 – Combinatie Spijker Infrabouw paras 90 ff). As concerns the requirements for an action for damages, the ECJ has held in the context of procurement law that national law ‘which makes the right to damages for an infringement of public procurement law … conditional on that infringement being culpable’ (ECJ Case C-314/09 – Strabag para 45) is incompatible with the requirements of effectiveness in this field. Likewise, national rules of prescription under which the limitation period runs from the time on which the illegal practice was adopted could make it practically impossible to exercise the right to seek compensation for the harm caused by that practice, ‘particularly if that national rule also imposes a short limitation period which is not capable of being suspended’ (ECJ Joined Cases C-295/04 to C-298/04 – Manfredi  ECR I-6619 para 78; see also ECJ Case C-69/08 – Visciano  ECR I-6741 paras 43 ff). On the other hand, national limitation periods even of a short duration (60 days) have been found acceptable if they do not start to run (or even expire) without the respective party ever having been aware of the effects of the breach of EU law and as long as the time period makes it possible for the party to assess whether there are grounds for bringing an action for breach of EU law and to prepare such an action (ECJ Case C-40/08 – Asturcom Telecomunicaciones  ECR I-09579 paras 43 ff; but see also ECJ Case C-63/08 – Pontin  ECR I-10467 paras 48, 55 ff).
Robert Ormand, La notion de ‘l’effet utile’ des traités communautaires dans la jurisprudence de la Cour de justice des Communautés européennes (1975); Clive Lewis, Remedies and the Enforcement of European Community Law (1996); Mark Brealey and Mark Hoskins, Remedies in EC Law—Law and Practice in the English and EC Courts (2nd edn, 1998); Claire Kilpatrick, Tonia Novitz and Paul Skidmore (eds), The Future of Remedies in Europe (2000); Michael Dougan, National Remedies before the Court of Justice—Issues of Harmonisation and Differentiation (2004); Peter Rott, Effektivität des Verbraucherrechtsschutzes: Rahmenfestlegungen des Gemeinschaftsrechts (2006) <http://download.ble.de/04HS033.pdf>; Norbert Reich, ‘Horizontal liability in EC Law: Hybridization of Remedies for Compensation in Case of Breaches of EC Rights’ (2007) 44 CMLR 705; Johan Lindholm, State Procedure and Union Rights—A Comparison of the European Union and the United States (2007); Angela Ward, Judicial Review and the Rights of Private Parties in EU Law (2nd edn, 2007); Christian Heinze, Europäisches Primärrecht und Zivilprozess, Europarecht (2008) 654 ff; Diana-Urania Galetta, Procedural Autonomy of EU Member States: Paradise Lost? (2010).