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Principles of Constitutional Law: the Relationship Between the Community Legal Order and the National Legal Orders: Remedies and National Procedures

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Principles of Constitutional Law: the Relationship Between the Community Legal Order and the National Legal Orders: Remedies and National Procedures Teaching Material PRINCIPLES OF CONSTITUTIONAL LAW: THE RELATIONSHIP BETWEEN THE COMMUNITY LEGAL ORDER AND THE NATIONAL LEGAL ORDERS: REMEDIES AND NATIONAL PROCEDURES J.H.H. Weiler European Union Jean Monnet Professor NYU School of Law AND Martina Kocjan Graduate Member of the Faculty of Law University of Oxford Copyright J.H.H. Weiler & M. Kocjan • 2004/05 These materials are offered as a public service by the Academy of European Law at the EUI in Florence and the Jean Monnet Center at NYU School of Law. They may be used for educational purposes only and cannot be commercialized in any manner. Their origin should be acknowledged in any use made of them. TABLE OF CONTENTS 1 MAKING JUDICIAL PROTECTION MORE EFFECTIVE ........................................... 1 1.1 Joined Cases C-6/90 and 9/90: Francovich .............................................................................1 Note and Questions ...................................................................................................................1 1.2 Case C-91/92: Faccini Dori.......................................................................................................8 Note and Questions ...................................................................................................................8 1.3 Case C-46/93 and 48/93: Brasserie du Pêcheur....................................................................13 Note and Questions .................................................................................................................13 1.4 Decision of the German Supreme Court in Brasserie du Pêcheur .....................................26 1.5 Luigi Malferrari: The “Rebellion” of the Italian Corte di Cassazione against the Francovich Decision of the ECJ ......................................................................................31 1.6 Decision of the English Court of Appeal in Factortame ......................................................33 1.7 Carol Harlow: Francovich and the Problem of the Disobedient State...............................43 1.8 Joined Cases 83 and 94/76, 4, 15 and 40/77: HNL................................................................62 Note and Questions .................................................................................................................62 1.9 Case C-392/93: British Telecommunications........................................................................64 Note and Questions .................................................................................................................64 1.10 Case C-5/94: Hedley Lomas ...................................................................................................69 1.11 Case C-178, 179 and 188/94: Dillenkofer ..............................................................................73 1.12 Case C-94/02 P: Biret..............................................................................................................79 Note and Questions .................................................................................................................79 1.12.1 Opinion of AG Alber............................................................................................................................ 80 1.12.2 Judgement of the Court of Justice ........................................................................................................ 82 1.13 Case C-224/01: Köbler............................................................................................................87 Note and Questions .................................................................................................................87 2 EFFECTIVENESS OF NATIONAL COURT REMEDIES........................................... 102 2.1 Case 33/76: Rewe...................................................................................................................102 Note and Questions ...............................................................................................................102 2.2 Case 158/80: Rewe “Butter-Buying-cruises” ......................................................................104 2.3 Case 265/78: Ferweda ...........................................................................................................107 Note and Questions ...............................................................................................................107 2.4 Case C-213/89: Factortame I................................................................................................112 Note and Questions ...............................................................................................................112 2.5 Case C-208/90: Emmott........................................................................................................116 2.6 Case C-410/92: Johnson........................................................................................................120 Note and Questions ...............................................................................................................120 2.7 Case C-246/96: Magorrian ...................................................................................................125 Note and Questions ...............................................................................................................125 2.8 Case C-312/93: Peterbroeck.................................................................................................127 Note and Questions ...............................................................................................................127 2.9 Joined Cases C-430 and 431/93: Van Schijndel..................................................................131 2.10 Joined Cases 205 to 215/82: Milchkontor ...........................................................................135 Note and Questions ...............................................................................................................135 2.11 Case C-24/95: Alcan..............................................................................................................144 Note and Questions ...............................................................................................................144 3 RECOVERY OF CHARGES LEVIED IN BREACH OF EC LAW.............................152 Note and Questions ...............................................................................................................152 3.1 Case 199/82: San Giorgio......................................................................................................153 3.2 Joined Cases C-192/95 to C-218/95: Comateb and Others................................................157 Update finished on: 6/February/2005 iii 1 MAKING JUDICIAL PROTECTION MORE EFFECTIVE 1.1 Joined Cases C-6/90 and 9/90: Francovich NOTE AND QUESTIONS In 1991, in Francovich, the ECJ fully addressed the question of State liability for breach of Community law and its basis in EC for the first time. 1. What does legal protection look like in a post-Francovich communitarian world? 2. Do you agree that Member State liability to private parties for Community law violations is “inherent” in the Community law system? Andrea Francovich and Danila Bonifaci and others v Italian Republic Joined cases C-6/90 and 9/90 19 November 1991 Court of Justice [1991] ECR I-5357 http://www.curia.eu.int/en/content/juris/index.htm 1 By orders of 9 July and 30 December 1989, which were received at the Court on 8 January and 15 January 1990 respectively, the Pretura di Vincenza (in case C-6/90) and the Pretura di Bassano del Grappa (in case C-9/90) referred to the Court for a preliminary ruling under article 177 of the EEC Treaty a number of questions on the interpretation of the third paragraph of article 189 of the EEC Treaty and Council directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (Official Journal 1980 l 283, p. 23). 2 Those questions were raised in the course of proceedings brought by Andrea Francovich and by Danila Bonifaci and others (hereinafter referred to as 'the plaintiffs') against the Italian republic. 1 3 Directive 80/987 is intended to guarantee employees a minimum level of protection under Community law in the event of the insolvency of their employer, without prejudice to more favourable provisions existing in the Member States. In particular it provides for specific guarantees of payment of unpaid wage claims. 4 Under article 11 the Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within a period which expired on 23 October 1983. The Italian republic failed to fulfil that obligation, and its default was recorded by the Court in its judgment in case 22/87 Commission v Italy ([1989] ECR 143). 5 Mr. Francovich, a party to the main proceedings in case C-6/90, had worked for CDN elettronica SNC in Vincenza but had received only sporadic payments on account of his wages. He therefore brought proceedings before the Pretura di Vincenza, which ordered the defendant to pay approximately lit 6 million. In attempting to enforce that judgment the bailiff attached to the Tribunale di Vincenza was obliged to submit a negative return. Mr. Francovich then claimed to be entitled to obtain from the Italian state the guarantees provided for in directive 80/987 or, in the alternative, compensation. 6 In
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