UBI IUS, IBI REMEDIUM: DO THE UNION COURTS HAVE THE “LATIN FOR JUDGING” Kieron Beal QC, Blackstone Chambers Bar European Group Conference, Iceland, May 2015 A. Introduction and the obligatory historical anecdote 1. In the Saga of Gudmund the Worthy, a kinsman of Gudmund called Skaering has his hand chopped off by some Norwegian merchants.1 Gudmund is called upon to arbitrate and set an award of compensation for the loss. He pronounces that the sum of “thirty hundreds” should be paid. The Norwegians decline to pay this sum, saying it is too much. After some rather unseemly haggling with the arbitrator, Gudmund amends his award. He determines that he will select one of the Norwegian kinsmen of comparable status and cut off his hand. The Norwegians might then pay such compensation to their own kinsman as they see fit. Forced to recognise the true value of the loss of a hand for one of their own, the Norwegians wisely pay the judgment debt. 2. The common law, in keeping with medieval Icelandic law, has long recognised the need for an effective remedy. That is reflected in the common law brocard2 and the Latin title to this paper: “wherever there is a right, there is a remedy.” In Ashby v. White (1703) 92 ER 126, Lord Holt C.J., in his dissenting opinion, would have granted a voter barred from voting a right to claim compensation. He noted that “if the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.”3 The common law maxim has even been applied by the Court of Appeal in the context of a claim based on EU law. In Ryanair Limited v. Esso Italiana Srl [2013] EWCA Civ 1450, Rix LJ observed that Article 101 TFEU did embody a right, but held it was one which found its remedy in a claim for breach of statutory duty and not in the implication of a term into a commercial agreement for the purchase of aviation fuel. 3. EU law itself requires Member States to provide an effective remedy for the protection of EU rights. The right to effective judicial protection of EU law rights has long been recognised as a principle of EU law.4 Indeed, in his opinion in Case C-18/94 Barbara Hopkins v. National Power plc [1996] ECR I-2281, at [50], Advocate General Fennelly expressly referred to the maxim ubi ius ibi remedium in support of the general EU law principle of effective protection. Article 19 TEU now states that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” Article 47 of the Charter of Fundamental Rights (‘CFR’) provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to 1 Bloodtaking and peacemaking: Feud, law and society in Saga Iceland, William Ian Miller (1990), Chicago University Press, p. 1-2. 2 See Harding v. Wealands [2006] UKHL 32, [2007] 2 AC 1, per Lord Rodger who at [76] rejected the inverted principle of ubi remedium ibi ius as “unsafe” when it was being applied to the distinction between procedural and substantive legal provisions for the purposes of implementing private international law. 3 The right to compensation for the disgruntled voter was recognised by the House of Lords in the subsequent appeal: (1703) 1 Bro. P.C. 62, 1 E.R. 417. 4 Case 20/88 Roquette Frères v. Commission [1989] ECR 1553, ECJ at [15]. 1 an effective remedy before a tribunal in compliance with the conditions laid down in that article. 4. The Court of Justice of the European Union (‘ECJ’) has adopted a similar approach in the application of Article 47 CFR as the Strasbourg Court has adopted in relation to Article 6 of the Convention. In Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Germany [2010] ECR I-13849, the ECJ at [28] reiterated the well-established principle of “effectiveness”, by which the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law. At [29], the Court held that: “29. The question referred thus concerns the right of a legal person to effective access to justice and, accordingly, in the context of EU law, it concerns the principle of effective judicial protection. That principle is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the . ECHR.” 5. In principle, these rights should be equally protected in litigation before the ECJ and the General Court of the European (‘GCEU’). In Opinion 1/2009 [2011] ECR I-1137, the ECJ was invited to rule on a draft proposal for the creation of a unified Patent Court. Having identified (at [65]) that the “essential characteristics” of the EU legal order were founded on the twin principles of primacy and direct effect, the ECJ noted at [66] that the “guardians of that legal order” were the Court of Justice and the courts and tribunals of the Member States. At [70], the Court held that: “The judicial system of the European Union is moreover a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions.” [Emphasis added] More recently, in Opinion 2/13 [2014] ECLI:EU:C:2014:2454, the Court at [174] emphasised that the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law. These Opinions confirm the recognition by the Court of the need for the EU legal system to be based on the rule of law. In an EU context, that means that neither the EU Institutions nor the Member States may avoid a review of the conformity of EU measures with the Treaties.5 6. In other words, a combination of judicial review through direct actions under Articles 263 TFEU and 265 TFEU; and the ability of national courts to request a preliminary ruling under Article 267 TFEU, are intended to constitute a coherent and complete system of remedies. They are designed to ensure the effective review of the legality of all measures emanating from the EU institutions. The concern I shall address in this paper is whether the EU legal system in practice gives proper effect to the right to an effective remedy within its own processes and procedures. Does it recognise the principle of ubi ius, ibi remedium? Do the European Courts, in the words of Peter Cook’s miner, have the “Latin for the judging”? B. The strained hypothetical case 7. As is now customary, in order to answer this question it is convenient to concoct a strained hypothetical case. Chococoins Manufacturing Co (‘CMC’) is a Chinese company 5 See Case 294/83 Les Verts v. Parliament [1986] ECR 1339, ECJ at [23]. 2 that manufactures chocolate coins. Better Together 2016 Limited (‘BTL’) is a company established in England that imports chocolate coins from CMC in China. It imports chocolate coins in each of the currency denominations of the EU. Predicting a surge in demand ahead of the forthcoming referendum on UK membership of the EU, BTL places a large order for a consignment of both chocolate Euros and chocolate pounds from CMC. It proposes to import further consignments in the months up to 2016. 8. At around the same time, the EU Commission receives a complaint from the Association of Chocolate Coin Manufacturers (‘AssocChoc’). It is concerned that chocolate coins from China are being supplied to EU importers at a price which is substantially below the prevailing price for chocolate coins in the EU. A complaint is made that the products are subject to “dumping” which is injurious to EU industry. AssocChoc invites the Commission to impose anti-dumping duties. Following an investigation, the Commission finds that there has been injurious dumping and imposes anti-dumping duties on the import of chocolate coins in a definitive anti-dumping Regulation (‘the ADD Regulation’). An ad valorem duty of 100% is added to the customs duties which are also payable on importation. 9. Furthermore, consumer complaints about the quality of the imported chocolate coins, coupled with fears that they might be mistaken for real currency, prompt the Council and the European Parliament as co-legislators to impose marketing restrictions through the Chocolate Coins Directive (‘the Directive’). The Directive must be implemented by all Member States by May 2016. The Directive imposes strict labelling and packaging requirements on the supply of chocolate Euros, pounds and other currencies in the EU. These include requirements for the packaging to show the following warnings: “Warning: these coins are not real currency” and “Warning: this product is not pure chocolate.” A requirement for a minimum level of cocoa in the chocolate is also imposed. The measure is not preceded by an impact assessment. 10. The combined effect of these measures is to make the ongoing importation of chocolate Euros and pounds from CMC uneconomic. The measures also incense an anti-EU campaigning organisation in the UK, who launch a campaign to save the supply of chocolate pound coins. It will be assumed for the purposes of this paper that there is at least an arguable case that both the ADD Regulation and the Chocolate Coins Directive contravene relevant principles of EU law.