Book Review: National Remedies before the Court of Justice. Issues of Harmonisation and Differentiation
| DOI | 10.1177/1023263X0501200306 |
| Author | Mariolina Eliantonio |
| Date | 01 September 2005 |
| Published date | 01 September 2005 |
| Subject Matter | Book Review |
292 12 MJ 3 (2005)
Michael Dougan, National Remedies Before the Court of Justice. Issues of Harmonisation
and Differentiation, Hart Publishing, 2005, lvi + 418 pp., hardback, s40,
ISBN 1-84113-395-7
The ‘enforcement deficit’ in the Community legal order and, more generally, the
decentralized enforcement of Community law is a widely debated topic in academic
circles. As is well known, given the serious drawbacks in the direct enforcement of
Community rules via the Court of First Instance and, primarily, the European Court of
Justice (ECJ), the latter has constructed over time a supplementary system of
decentralized enforcement.
Firstly, thanks to the principles of direct effect and supremacy, all national courts have
been given both the power and the duty to apply Community law in the cases on which
they adjudicate. Moreover, the Treaty itself establishes a framework (that is, the
preliminary reference procedure), by which the national courts can seek advice from the
Court of Justice on the exact application and interpretation of Community law. However,
well-known problems, such as the lack of horizontal direct effect of directives and the
reluctance of some national courts to ask preliminary questions, have fueled academic
speculation as to whether the time is ripe for a reconsideration of the principles
governing the decentralized enforcement of Community law.
The book under review here is part of this discussion concerning the role of national
courts in the enforcement of Community law and, more in particular, the drawbacks of
the decentralized enforcement system. While Claes has analyzed the reaction of the
national courts to the ‘mandate’ given to them by the ECJ
1
, Prechal has focused on the
current meaning and usefulness of the doctrine of direct effect
2
, and Allott has questioned
the very function of the preliminary reference procedure
3
, Dougan focuses his attention
on the rationale behind and the controversial nature of Community intervention on
domestic remedies.
The author’s investigation departs from the traditional distinction between
decentralized and centralized enforcement of Community law. After highlighting the
limits of the centralised system (via the infringement procedure set out in Article 226 EC
and the action for annulment provided for in Article 230 EC), Chapter 1 places the accent
upon the decentralized enforcement of Community law, and, in particular, on the
Community’s intervention on national remedies.
The fundamental right of access to justice, presumption of national procedural
autonomy, overriding Community rules on procedural law, and the principles of
equivalence and effectiveness are identified by the author as the four columns on which
the Court of Justice has built the temple of rules that are necessary for the decentralized
Book Reviews
1
M. Claes, The National Courts’ Mandate in the European Constitution (Hart, 2005).
2
S. Prechal, ‘Does Direct Effect Still Matter’, 37 C.M.L. Rev. 1047 (2000).
3
P. Allott, ‘Preliminary Rulings: Another Infant Disease’, 25 Eur. L. Rev 538 (2000).
To continue reading
Request your trial