Enforcement of Ec Law at the National Level: the Unibet Judgment

Enforcement of EC Law at the National Level: The Unibet Judgment

Introduction

EU supremacy in substantive law runs parallel to the procedural autonomy of member states with the common purpose of ensuring individuals are accorded judicial protection of EU law. Developments in ECJ jurisprudence however, suggest that procedural autonomy has become constrained by the application of the principles of equivalence and effectiveness. The case of Unibet (London) Ltd. and Unibet (International) Ltd. v Justitiekanslern can be interpreted as providing confirmation and proof of the perception the ECJ's is more concerned with the effective enforcement of EU law than it is with the procedural autonomy of member states.

An examination of ECJ case law and the effectiveness of member states remedial and procedural laws provide greater insight into the validity of the perception created by the Unibet case. This paper is therefore divided into two parts. The first part of this paper will provide a synopsis of the Unibet judgment. The second part of this paper will offer a critical analysis of ECJ case law on the remedial and procedural rules established by member states. It will be argued and illustrated that the while the ECJ's primary concern is for the effective enforcement of EU law, it does not disrespect the procedural autonomy of member state. In fact the ECJ is only concerned that member states exercise that autonomy responsibly and effectively for the purpose of ensuring the effective enforcement of EU law.

I. The Unibet Judgment

In the Unibet case, the issue of incompatibility with EU law and a claim for judicial protection arose when Unibet attempted to advertise online betting services in Sweden which was prohibited by Swedish law. The Swedish authorities commenced criminal proceedings against Unibet in which case Unibet challenged the Swedish prohibition on the grounds that it contravened Article 49 of the EC Treaty which allows for liberal services provision. The challenge was taken up in separate proceedings in which case it was held that Unibet could only bring the challenge before the criminal courts which were already seized of the issues.

The matter was taken to the Swedish Supreme Court who referred the matter to the ECJ on the issue of effective judicial protection. Specifically the main question referred was whether or not EC law required a stand-alone action under national laws where there was a claim that national laws contravened EC law. Tied to this question was whether or not the claim could be pursued during the course of the enforcement process.

The ECJ confirmed that "the principle of cooperation" established by the EC Treaty under Article 10 meant that Member States were charged with the responsibility for ensuring "judicial protection of an individual's rights under Community law". In other words the procedure for securing individual protection of EC law was for the member state. However, after citing a number of previous cases, the ECJ stated that the procedural autonomy accorded member states was not absolute. The ECJ specifically stated that there was no procedural autonomy:

...if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual's rights under Community law.

The ECJ went on to reaffirm that effective judicial protection does not necessarily mean that it had to provide for "a free-standing action" for claims alleging that national provisions were incompatible with Community law. However, the national judicial remedial system had to be such that they were reflective of the principles of equivalence and effectiveness. The ECJ defined the principle of effective judicial protection as not limited to free-standing procedures but a legal remedy that is "no less favorable than those governing similar domestic actions" facilitating the determination of the issue of compatibility "as preliminary issue".

Given that the ECJ did not elaborate on what specifically amounts to effective and equivalent procedural remedies, it is fair to conclude that it does not seek to undermine member states' procedural autonomy. In fact the ECJ in Unibet essentially requires that where member states do not provide for procedural remedies they are required to implement new procedures, making it possible for individuals to challenge incompatible national laws.

It appears that the ECJ is determined to ensure that procedural autonomy is honored and respected by member states and less concerned about access to justice on the part of the individual. By insisting that members states change or modify their procedural laws the ECJ is likewise insisting that individuals have little or no direct access to the ECJ on questions arising out of the enforcement of EU law. Moreover, as Koch observes, member states are known to be "hesitant and slow in their compliance with Union requirements to reform their legal systems" with the result that individuals may be denied national remedies until such time as the requisite legal constructs are implemented by member states.

II. ECJ Jurisprudence on Procedural Autonomy and State Liability

A review of ECJ case law indicates that initially, the ECJ was hesitant to intervene in national jurisdictions and demonstrated a particular preference for member states' procedural autonomy. This is hardly surprising since the ECJ's principles for regulating "Community intervention in the domestic systems of judicial protection" rests on "structural concepts" one of which presumes that national courts are competent to "determine remedies and procedural rules".

It appears however, that the ECJ lost faith in national jurisdictions' competency to implement the requisite procedural rules for ensuring access to and protection of Community law. There was a tendency for the ECJ to take become more interventionist. For example in the early part of the 1990s there were cases in which the ECJ handed down judgments calculated to decrease the number of inconsistent procedures among the member states with a view to ensuring that community rights were protected. For example in Case C-213/89 Factortame [1990] ECR 1-2433the ECJ ruled that national courts were obliged to grant preliminary relief protecting the Community rights of an individual until the ECJ determined a matter relative to Community law. If a rule prevented the grant of interim relief that rule must be vacated.

In Emmot, the ECJ undermined procedural autonomy