AUTONOMIA PROCEDURALNA PAŃSTW CZŁONKOWSKICH. ZASADA EFEKTYWNOŚCI I ZASADA EFEKTYWNEJ OCHRONY SĄDOWEJ W PRAWIE UNII EUROPEJSKIEJ
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Date
2005
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Wydział Prawa i Administracji UAM
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PROCEDURAL AUTONOMY OF EU MEMBER STATES: PRINCIPLE OF EFFECTIVENESS AND EFFECTIVE JUDICIAL PROTECTION
Abstract
This paper focuses on the relationship between the so called ‘procedural autonomy’ of the
Member States on the one hand and the principles of effectiveness and effective judicial protection
in the European Community law on the other. In Rewe and Comet judgments the ECJ holds that
the creation of individual rights is a matter of Community law, while the remedies for the enforcement
of these rights are - in the absence of relevant Community legal provisions - to be provided
by national (procedural) law. In this context, it is obvious that the effectiveness of Community
rights depends on national procedural rules. However, this national procedural autonomy is restricted
by two important requirements: firstly, such rules are not less favourable than those governing
similar domestic actions (the principle of equivalence) and secondly, they do not render the
exercise of Community rights virtually impossible or excessively difficult (the principle of effectiveness). Recent European legislative interventions in procedural matters show that the concept of
national procedural and institutional autonomy of the Member States no longer explains the very
complicated relationship between the European substantive law and national procedural rules.
This is rather a question of division of competences in procedural matters between the Member
States and Communities and procedural harmonization than the somewhat obscure concept of
autonomy.
On the other hand, the principle o f effectiveness starts to play a crucial role in the protection
of individual Community rights in national courts, so that it replaces the principle of primacy of
Community law in those matters. However, the ECJ has developed the principle of effective judicial
protection, which has received the rank of a fundamental Community legal principle. This
principle can be regarded as more appropriate than the former one, to protect Community rights at
the national level and within national procedural competences.
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Ruch Prawniczy, Ekonomiczny i Socjologiczny 67, 2005, z. 1, s. 35-58.