The Future of Remedies in Europe

by Claire Kilpatrick (Editor), Tonia Novitz (Editor), Paul Skidmore (Editor)

Overview

Remedies lie at the heart of European legal systems. They both reflect and shape the balance of power between states and individuals and between state and supranational institutions. These profound political implications can be better understood by thinking about the functional roles and institutional histories of remedies. These implications,roles and histories are considered in this volume of challenging and original essays on remedial systems in Europe.

This book explores the lively and often controversial dialogues between courts, national and supranational, on remedies. In so doing, it addresses the adequacy of these dialogues in the light of perceived systemic goals, both in an overall institutional sense and as regards specific sectoral objectives or institutional actors' aspirations. In particular, the book looks at the way in which remedies in the EC legal order interact with those in other legal orders such as the Council of Europe and private international law. It also identifies problems of interaction between different Council of Europe mechanisms under the Convention on Human Rights and the Social Charter. The book also examines the contribution of courts to remedial systems by considering other methods of formulating and redressing claims.

Contributors: Claire Kilpatrick, Takis Tridimas, Leo Flynn, Antonio Lo Faro, Carol Harlow, Steve Weatherill, Bernard Ryan, Miguel Poiares Maduro, Henry G.Schermers, Angela Ward, Paul Beaumont, Robin White, Phil Syrpis, Tonia Novitz, Richard Rawlings.

Product Details

ISBN-13:	9781841130828
Publisher:	Bloomsbury Academic
Publication date:	11/20/2000
Series:	EC/International Law Forum, University of Bristol , #2
Pages:	345
Product dimensions:	6.14(w) x 9.21(h) x 0.81(d)

About the Author

Claire Kilpatrick is Professor of International and European Labour and Social Law at the European University Institute.
Tonia Novitz is a Lecturer in Law at the University of Bristol.
Paul Skidmore is a Lecturer in Law at the University of Bristol.

Table of Contents

	Biographies of Contributors	xiii
	Table of Cases	xv
	Table of Conventions and Treaties	xxix
	Table of Legislation	xxxv
	Abbreviations	xli
	The Future of Remedies in Europe	1
1.	The Future of Remedies in Europe	1
2.	The Luxembourg Court and Remedies	2
3.	Re-Examining the Luxembourg Court Account of Remedies in Europe	9
4.	Other European Legal Orders: Co-Existence and Interaction with EC/EU Institutions	16
5.	Courts and Remedies: Placing Courts in Context	28
6.	Conclusion	31
I	Dialogue Between the European Court of Justice and National Courts
1.	Enforcing Community Rights in National Courts: Some Recent Developments	35
1.	The Colonisation of the Law of Remedies: Three Phases in the Court's Case Law	35
2.	The Principle of Equivalence	38
3.	The Principle of Effectiveness	41
4.	Levez: the Inter-Relationship Between Equivalence and Effectiveness	47
5.	Conclusion	49
2.	Whatever Happened to Emmott? The Perfecting of Community Rules on National Time-Limits	51
1.	Introduction	51
2.	Revising Emmott I: Distinguishing Its Material Scope	54
3.	Revising Emmott II: A Ruling on Its Facts	58
4.	Final Thoughts: How Wrong? How Dead? How Necessary?	62
3.	A Common European Law of Remedies?	69
1.	In Support of Uniformity	69
2.	Effective Remedy	70
3.	Constitutional Consequences	78
4.	Conclusion: Empowering National Courts	81
II	Sectoral Approaches to EC Remedies
4.	Addressing Problems of Imbalanced Implementation in EC Law: Remedies in an Institutional Perspective	87
1.	Introduction	87
2.	An Illustration: Hedley Lomas	87
3.	The Implementation Imbalance in Context	89
4.	Features of the Implementation Imbalance	92
5.	Market Transparency: Deepening the Imbalance?	104
6.	What Might Be Done?	107
7.	Are These Problems Unique to the EC?	111
8.	Conclusion	114
5.	The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination	117
1.	Introduction	117
2.	Purely Internal Situations and Reverse Discrimination	118
3.	Reversing Reverse Discrimination	127
4.	The Choice of Remedies and the Choice of Institutions	134
6.	The Private Enforcement of European Union Labour Laws	141
1.	Introduction	141
2.	Three Theories of European Union Labour Law	142
3.	Comprehensiveness	147
4.	Employer or State Liability?	153
5.	National Procedures and Sanctions	157
6.	Conclusion	162
III	Co-Existence and Interaction with Other European Legal Orders
7.	Interplay of Private International Law and European Community Law	167
1.	Introduction	167
2.	European Private International Law Pre-Amsterdam	171
3.	"Remedies Shopping" Post-Amsterdam	180
4.	Conclusion	188
8.	Remedies in a Multi-Level Legal Order: The Strasbourg Court and the UK	191
1.	Introduction	191
2.	The Right to a Remedy Under Article 13 Echr	192
3.	Just Satisfaction Under Article 41 Echr	196
4.	The Human Rights Act 1998 and Remedies	200
5.	Conclusion	203
9.	European Remedies in the Field of Human Rights	205
1.	The European Convention on Human Rights as a Source of European Law	205
2.	The Convention as Part of Community Law	205
3.	The Convention Beyond Community Law	207
4.	Developments Under the Convention	209
5.	Conclusion	211
10.	The Limits of the Uniform Application of Community Law and Effective Judicial Review: A Look Post-Amsterdam	213
1.	Introduction	213
2.	Community Acquis on Effective Remedies and Uniform Application of EC Rules	215
3.	The Jurisdiction of the Court of Justice Post-Amsterdam	217
4.	Critique of the Court's Amsterdam Jurisdiction in the Light of the Effective Remedies Principle and Uniform Application of the Law	221
5.	Fundamental Human Rights and the Amsterdam Treaty	225
6.	Conclusion	226
IV	Access to Courts and Other Forms of Remedial Control
11.	Remedies for Violation of Social Rights Within the Council of Europe: The Significant Absence of a Court	231
1.	Introduction	231
2.	Creation of A European Court of Human Rights and the Exclusion of Socio-Economic Rights From Its Jurisdiction	233
3.	The Supervisory Framework Developed in Respect of the European Social Charter	240
4.	Complications Arising from the Division of Supervisory Machinery and the Indivisibility of Rights	247
5.	Proposals for Court Proceedings in Respect of Charter Rights	249
12.	Social Democracy and Judicial Review in the Community Order	253
1.	Introduction	253
2.	The Social Dialogue Mechanism	254
3.	Access to Judicial Review	257
4.	The Decision in Ueapme	259
5.	Reflections on the Individual Concern Test in the Light of Ueapme	260
6.	Should the Acts of the Social Partners be Subject to Judicial Scrutiny?	263
7.	Conclusion	265
13.	Engaged Elites: Citizen Action and Institutional Attitudes in Commission Enforcement	267
1.	Introduction	267
2.	First Face: International Procedure and Elite Regulatory Bargaining	272
3.	Second Face: Citizens' Europe and Redress of Grievance	278
4.	Third Face: Formalisation, Efficacy and Tariff	286
5.	Re-Inventing Infringement Proceedings. or Can the Commission Change Its Spots?	291
	Index	297

Editorial Reviews

...the varied contributions challenge the reader to really think about the potential future development of remedies in Europe from a number of different perspectives.The Future of Remedies in Europe succeeds admirably in raising important agendas for future research.” —Yearbook of European Law

“The contributions are consistently well written and give rise to a lot of thought. (Bidragen r genomgende vlskrivna och ger upphov till mnga reflektioner.)” —EU and Arbetsratt

From the Publisher

This book explores the dialogues between courts, national and supranational, on remedies. In so doing, it addresses the adequacy of these dialogues in the light of perceived systemic goals, both in an overall institutional sense and as regards specific sectoral objectives or institutional actors' aspirations. In particular, the book looks at the way in which remedies in the EC legal order interact with those in other legal orders, such as the Council of Europe and private international law. It also identifies problems of interaction between different Council of Europe mechanisms under the convention on Human Rights and the Social Charter. The book also examines the contribution of courts to remedial systems by considering other methods of formulating and redressing claims. Distributed by ISBS. Annotation c. Book News, Inc., Portland, OR (booknews.com)

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