← The hardest concepts in European Union law
In one breath
Where Union law does not lay down the procedure, each Member State decides the courts, time limits and rules for enforcing Union rights, but those rules must be no less favourable than for similar domestic claims and must not make enforcement practically impossible or excessively difficult. This is the case-law pair of equivalence and effectiveness.
The picture
The lodger’s house rules
A lodger rents a room in a family home. The family sets the house rules, such as when the bathroom is used and how the post is sorted, and the lodger lives by them. But two limits apply. The family may not treat the lodger worse than its own members in similar matters, and it may not make rules that in practice leave the lodger unable to enjoy the room he has paid for, such as demanding that he apply for hot water a month in advance.
Union rights are the lodger’s tenancy, and national procedure is the household’s rules. In the absence of Union rules, each State decides which court hears a claim and what the procedure and time limits are. But the rule must be no less favourable than for comparable domestic claims (equivalence) and must not make the exercise of Union rights in practice impossible or excessively difficult (effectiveness).
Where the picture stops working
A lodger can move out. A claimant has to use the national system. The test for effectiveness is also not a mechanical check: the Court asks each time how the rule fits into the whole procedure, its purpose and its operation, taking into account the principles of the national system such as legal certainty and the rights of the defence. And Union legislation has itself set procedural rules in some fields, which the picture ignores.
How it really works
- 1Know where the rule comes from. The principles come from the Court’s case law. The Treaty on European Union (Article 19(1)) also requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
- 2Ask whether Union law itself regulates the point. If it does, that rule applies. The principles operate where Union law is silent.
- 3Leave the choice to the State. In the absence of Union rules, it is for the national legal order to designate the courts and lay down procedural conditions, including time limits (Rewe and Comet).
- 4Test for equivalence: the national rule must not be less favourable than the rules governing similar domestic actions.
- 5Test for effectiveness: the rule must not make it in practice impossible or excessively difficult to exercise rights conferred by Union law. The assessment looks at the role of the rule in the whole procedure, and takes account of principles such as legal certainty and the rights of the defence (Peterbroeck; van Schijndel).
Why people get it wrong
- Thinking Union law sets a uniform procedure for all claims. It leaves procedure to the Member States unless it says otherwise.
- Treating the two tests as the same. Equivalence compares Union and domestic claims; effectiveness asks about practical enforceability.
- Reading effectiveness as requiring the most favourable procedure. The standard is “excessively difficult”, not “as easy as possible”.
- Assuming that every time limit is unlawful. Reasonable limitation periods are compatible with Union law.
- Forgetting the first step. If the Union has its own procedural rule, the national rule yields.
A worked example
The facts are invented
A trader, Odile, paid a national charge that she later learns was contrary to Union law, and sues for repayment. The State has a rule that charges can be reclaimed only within three years, and a rule that, for repayment claims based on Union law, she must prove that no one else bore the cost, with a standard of proof that is almost impossible to meet.
The time limit is a matter for the State, and a reasonable period for such claims is acceptable if it applies equally to comparable domestic claims. The special burden of proof is another matter. It applies only to Union-law claims, so it fails equivalence, and its practical effect is to make recovery virtually impossible, so it fails effectiveness too. The court would set it aside and Odile could recover what she paid.
Try it
A national rule sets a shorter limitation period for claims based on Union law than for comparable claims based purely on national law. What is the usual analysis?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Rewe-Zentralfinanz and Rewe-Zentral v Landwirtschaftskammer für das Saarland, Case 33/76, 1976
- Comet v Produktschap voor Siergewassen, Case 45/76, 1976
- Peterbroeck, Van Campenhout and Cie v Belgian State, Case C-312/93, 1995
- Van Schijndel and Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten, Joined Cases C-430/93 and C-431/93, 1995
Where to go next
More hard concepts in European Union law
- Direct effect (Union law in national courts)
- Vertical and horizontal effect of directives (Union law in national courts)
- Supremacy and national constitutional courts (Union law in national courts)
- Indirect effect and conforming interpretation (Union law in national courts)
- State liability for breach of Union law (Union law in national courts)
- Annulment actions and standing (Union courts and procedure)
- General principles of Union law and the Charter of Fundamental Rights (Fundamental rights)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.