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9. The Application of EU Law: Remedies in National Courts
Abstract
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the application of EU law by national courts and the way in which the CJEU controls national remedies for breach of EU law. Article 19 of the Treaty on European Union contains a new clause added by the Lisbon Treaty, which specifies that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Article 47 of the Charter of Fundamental Rights provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. However, beyond these broad new provisions, EU law does not lay down any general scheme of substantive or procedural law governing remedies for its enforcement. The European Court of Justice has responded to the lack of a harmonized system of EU remedies by requiring national courts, in certain cases, to make available a particular type of remedy (e.g., restitution or interim relief), regardless of whether this would be available under national law. The UK version contains a further section analysing issues concerning remedies and EU law in relation to the UK post-Brexit.
Air pollution severely damages human health and causes premature deaths. In order to fight against it, the European Commission initiated a revision of the Ambient Air Quality Directives aiming to improve the quality of outdoor air and to reach the Zero Pollution goal. However, the CJEU is already facing requests for a preliminary ruling dealing with state liability for health damage caused by excessive air pollution. The old common law maxim <The King does no wrong= according to which a citizen may not seek redress from the government for wrongs committedmby the latter has long been surpassed. The institution of state liability is thus a widely recognised concept. The paper analyses the main features of state liability for health damage caused by polluted air and its boundaries. It focuses on the recent development of EU law in this regard and the established case law of the ECtHR. Since the right to a healthy living environment is recognised by several constitutions across the world, including Slovenia, the paper deals also with the Slovenian case law on state liability for damages caused by air and noise pollution from road and rail transport.
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