Remedies for infringements of EU law
EU law has not provided for specific remedies to be available in national courts in case of infringements of EU law. The European Court of Justice (ECJ) has no opportunity to develop such remedies since it cannot itself adjudicate on complaints by individuals that rights under EU law have been violated. Instead, minimum standards for remedies to be provided by national courts have been developed through the requests by national courts for preliminary rulings under Article 267 TFEU.
Different national legal systems provide a variety of remedies for infringements of laws in the field of employment and industrial relations. While the ECJ has recognised the necessity for enforcement of EU law in national courts, it has insisted that national labour courts exert themselves to enforce EU law. The ECJ has attempted to maintain equilibrium between the autonomy of national systems to enforce EU law and the imperative of effective and uniform enforcement of EU law across all Member States. Referring to the third paragraph of Article 288TFEU, the Court held: ‘Although that provision leaves Member States to choose the ways and means of ensuring that the directive is implemented, that freedom does not affect the obligation imposed on all the Member States to which the directive is addressed, to adopt, in their national legal systems, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective that it pursues’ (Von Colson and Kamann v. Land Nordrhein-Westfalen, Case 14/83).
The ECJ has moved in the direction of scrutinising national systems of judicial protection of EU rights by laying down some general principles regarding the adequacy of national laws on remedies. These include the principle of equivalence of EU law remedies to national remedies, and the requirement that remedies for infringements of EU law be effective. National autonomy as regards enforcement of EU law is subject to these principles.
Thus, for example, the adequacy of financial compensation as a remedy for breach of EU rights in employment and industrial relations is questionable. Particularly in the case of the exercise of collective rights, such as information and consultation, it may be that the award of compensation to employees affected by the employers’ failure to inform or consult employee representatives is insufficient to achieve ‘real and effective judicial protection and have a real deterrent effect on the employer’ (M.H. Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) (No. 2), Case C-271/91).
The choice of remedy for breach of EU law may be left to national law, but EU law requires this choice to be scrutinised closely. That a Member State does not allow a remedy by way of injunctive relief does not preclude consideration of this remedy if it is capable of guaranteeing real and effective judicial protection and a real deterrent effect.