European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Although it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights of citizens due to the direct effect of European law, those conditions cannot be less favorable than those relating to similar actions of a domestic nature and must not be organized in such a way as to render virtually impossible the exercise of the rights conferred by the European legal system . Consequently, the principles of legal certainty and effectiveness do not preclude a procedural rule which amends the system of procedures for remedies provided for by the legal system of a Member State by introducing an additional legal remedy and an additional level of jurisdiction and which applies to proceedings already in progress between a consumer and a professional, provided that the new remedy is open to both the consumer and the professional .

The national court - which alone has direct knowledge of the procedural rules governing actions under its domestic law - must consider where the actions concerned are similar as regards their purpose, cause of action and essential characteristics . In effect, the fact that the same procedural rules apply to two comparable claims, one relying on European law, the other on domestic law, is not enough to ensure compliance with the principle of equivalence. The rule at issue must be applied without distinction, whether the infringement alleged is of European law or national law, where the purpose and cause of action are similar. Thus, where the domestic rules require a national court to grant an application for annulment of an arbitration award which is founded on failure to observe national rules of public policy, it must also grant such an application where it is founded on failure to comply with the prohibition laid down in Article 101(1) TFEU . However, compliance with the principle of equivalence does not require Member States to extend their most favorable procedural rules to actions brought under European rules having direct effect . A Member State may reject a claim for a reimbursement by a purchaser to whom an unduly paid duty has been passed on, on the ground that it is not the purchaser who has paid the duty to the tax authorities, provided that the purchaser is able, on the basis of national law, to bring a civil suit against the taxable person for recovery of the sum unduly paid and provided that the reimbursement, by that taxable person, of the duty unduly paid is not virtually impossible or excessively difficult, in particular because of the taxable person's insolvency . 

The national procedural rules must not be such as to render any action by individuals relying on European law virtually impossible . Reasonable limitation periods for bringing proceedings, imposed in the interest of legal certainty, do not make it virtually impossible or excessively difficult to exercise rights granted by the European legal system, even though, by definition, the fact that these periods are exceeded results in the total or partial dismissal of the action brought . By contrast, a national procedural rule which limits the benefit of rights to a period which starts to run from a point in time two years prior to the commencement of proceedings, is contrary to European law, where its effect is to render any action by individuals almost impossible by striking at the very essence of the rights conferred by the European legal system . This is the case of the time-period which restricts the entitlement to arrears of remuneration to the two years preceding the date on which the proceedings were instituted for breach of the principle of equal pay laid down in European law  or the national rule which enables the court to dismiss a claim or to reduce the sums granted as part of claims for restitution or compensation based on the breach of European law, solely because the person concerned has not applied for an advantage which was denied to him under national law . Likewise, the principle of effectiveness, read in conjunction with the principle of legal certainty, precludes the application by a national court of a one-month deadline to submit a request for revision of a final judicial decision, if, at the time the request is submitted, the ruling instituting that deadline has not yet been published .  

Case 33/76 Rewe v Landwirtschaftskammer für das Saarland [1976] ECR 1989, LawLex200900001992JBJ; Case 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043, LawLex200900001993JBJ; Case C-426/05 Tele2 Telecommunication [2008] ECR I-685, LawLex200900000773JBJ.

Case C-381/19 SC Banca E S.A., Order of 15 January 2020, not available in English.

Case C-397/98 Metallgesellschaft and others [2001] ECR I-1727, LawLex200900000632JBJ.

Case C-676/17 Oana Madalina Calin, Judgment of 11 September 2019, LawLex202000001648JBJ.

Case C-78/98 Preston and others [2000] ECR I-3201, LawLex200700001597JBJ.

Case C-126/97 Eco Swiss [1999] ECR I-3055, LawLex200500005067JBJ.

Case C-279/96 Ansaldo Energia and others v Amministrazione delle Finanze dello Stato and others [1998] ECR I-5025, LawLex200900001373JBJ.

Case C-94/10 Danfoss A/S [2011] ECR I-9963, LawLex201200000216JBJ. cf. Case C-427/10 Banca Antoniana Popolare Veneta SpA, Judgment of 15 December 2011, LawLex201200000702JBJ.

Case C-246/96 Magorrian and Cunningham v Eastern Health and Social Services Board and Department of Health and Social Services [1997] ECR I-7153, LawLex200900000927JBJ.

Case C-261/95 Palmisani v INPS [1997] ECR I-4025, LawLex200900001008JBJ.

Case C-326/96 Levez v Jennings Ltd [1998] ECR I-7835, LawLex200900000315JBJ.

166. Principles of equivalence and effectiveness