The principle of effective judicial protection in actions for breach of community law before the national courts

The main aim of the thesis has been to examine the development by the European Court of Justice (ECJ) of a principle referred to by Advocate General Van Gerven and various academic commentators as the principle of effective judicial protection. It explores the proposition that the Court has sought to secure an "effective" standard of justice for individuals seeking to enforce their Community rights before the national courts through the application of this principle. It analyses and evaluates the development of the principle of effective judicial protection from the Court's judgment in Humblet to the present, exploring, in particular, its origin, legal basis and key manifestations. It includes an examination of the principle of effective judicial protection in the context of four key areas of the Community system of enforcement, namely the concept of direct effect, the relationship between Community law and national procedural rules and remedies, the concept of indirect effect and the principle of State liability. It appears that where the ECJ is unable to secure full and complete protection by means of one of these concepts, it has explored another. The principle of effective judicial protection consists of a complex paradigm of Community obligations imposed on national courts which ensures that the latter provide a level of judicial protection which is "effective," but which is not always "full and complete." The principle of effective judicial protection underpins the jurisprudence of the ECJ in the four key areas of enforcement and explains how and why the extent of judicial protection they guarantee is limited in scope. This reflects the assertion made in the thesis that the principle of effective judicial protection is related to but nevertheless distinct from the principle of effectiveness (or "effet utile"). It is a self-standing principle based upon the rule of law. The thesis thus provides a valuable insight into the approach of the Court of Justice in the context of remedies in the national courts for breach of Community law.

Name dc:type.qualificationname

Doctoral Thesis

Level dc:type.qualificationlevel

Student thesis

Year dc:date.issued

2000

Author dc:creator

• Drake, Sara

Language dc:language

eng

Identifier

oai:pure.atira.dk:studenttheses/d78f04c8-d2ee-484b-95c0-84372cd51b9a

OAI identifier oai:identifier

oai:pure.atira.dk:studenttheses/d78f04c8-d2ee-484b-95c0-84372cd51b9a