Case C-432/05 Unibet – Some Practical Remarks on Effective Judicial Protection

Abstract

In 1981, when Ronald Reagan became the President of the USA, Prince Charles married Lady Di, and Greece was about to join the Community, the ECJ handed down its judgment in the well-known “Butter-buying Cruises” case. In that judgment the Court determined that the Treaty did not intend to create new remedies which national courts would be bound to apply to ensure observance of Community law. In establishing the Member States’ role in protecting Community law rights, the Rewe II case became a symbol of the ECJ’s conservative attitude towards interference with national systems of legal protection. At that time, the ECJ applied the classical Rewe/Comet formula with a strong emphasis on the equivalence principle. As the years went by, the initial moderation of the ECJ gave way to the growing care for the effectiveness of Community law. The Luxemburg justices allowed an increasingly deeper interference with national remedial frameworks. Judgments in Johnston, Heylens, Factortame I, Marshall II, Francovich, and much later in Courage, and Muñoz showed that unconditional application of the “no new remedies” rule will not always be possible if Community Law is to be applied effectively. Thus, although national courts were sometimes forced to create new remedies, or to apply pre-existing remedies in an unusual way, the ECJ did not officially change the position first expressed some 27 years ago in Rewe II.

The Court was once again tempted to take a position with respect to the “no new remedies rule” in Unibet. Unibet raises a number of intertwined themes related to the enforcement of Community law rights through national procedural provisions. Apart from addressing the principles of equivalence, effectiveness and the principle of state liability for breach of EC law, the ECJ was required to examine the principle of effective judicial protection, which has been subject to a controversial interpretation in the widely discussed cases UPA and Jégo-Quéré. In the shadow of those principles, and balancing the effectiveness of Community law against the autonomy of the Member States, the ECJ attempted to determine the extent to which, if at all, national procedural frameworks should be modified to satisfy the demands of the Community legal order. Due to its factual and legal circumstances, Unibet was an excellent opportunity for the Court to undertake a complex résumé of case-law related to the right to effective judicial protection as well as the rules concerning the availability of interim protection in national courts in cases involving EC law. For that reason, the issues discussed in Unibet reach far beyond Swedish law, and are significant from the perspective both of the European Community and the legislative and judicial bodies of all Member States. Finally, Unibet is of great importance for individuals since it demonstrates the extent to which they may rely on the ECJ’s support while trying to enforce their Community rights.

Keywords: EU Law, principle of effective judicial protection, interim protection, damages action, creation of new remedies in EU Law