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

Generally, trial courts are required to seek, according to the factual circumstances of the case, whether the provisions of an international treaty or a European regulation enforceable in the Member State should be applied . The principle of precedence of European law further enables national courts, under certain circumstances, to state of their own motion the grounds arising out of the breach of European law in the context of disputes brought before them. Having laid down the principle according to which a national court may, of its own motion, review whether a national regulation is in conformity with the precise and unconditional provisions of a directive of which the implementation period has elapsed, even if the individual has not relied on that Directive , the Court of Justice has admitted that national procedural rules cannot prevent the court from considering, ex officio, whether a domestic law is compatible with a provision of European law after the expiry of a time-period .

A national court must examine of its own motion grounds based on the breach of European law, in particular, where a national rule requires the court to raise pleas in law based on a binding domestic rule which were not put forward by the parties  or where the purpose of the European provision in question is precisely to ensure the individual's protection . No procedural provision may prohibit a national court, on expiry of a limitation period, from finding of its own motion or following a plea raised by an individual the ground based on European law where this provision is liable to render application of the protection intended to be conferred on individuals by European law excessively difficult .

The fact that national courts raise pleas of their own motion must however be exercised within the limits of the dispute. A national court cannot abandon the passive role assigned to it by relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim . In effect, it is for the parties to take the initiative of a suit. For reasons of the safeguarding of the rights of defense and the proper conduct of proceedings, the court may act of its own motion only in exceptional cases, such as the protection of the public interest . The principle of reformatio in pejus, according to which an individual bringing an action must not be placed in a less favorable position than if he had not brought that action, is also an obstacle to the raising of pleas of the courts' own motion . 

For France, see Cass. crim. (Court of Cassation), 18 Feb. 1971.

Case C-87/90 Verholen and others v Sociale Verzekeringsbank Amsterdam [1991] ECR I-3757, LawLex200900001201JBJ.

Case C-312/93 Peterbroeck, Van Campenhout & Cie v Belgian State [1995] ECR I-4599, LawLex200900002125JBJ.

Case C-72/95 Kraaijeveld and others [1996] ECR I-5403, LawLex200900001162JBJ.

See, in consumer law, the possibility for a national court to determine of its own motion whether a contractual term brought before it is unfair when making its assessment: Case C-240/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, LawLex200700001615JBJ; Case C-243/08 Pannon GSM [2009] ECR I-4713, LawLex200900002359JBJ.

Case C-473/00 Cofidis [2002] ECR I-10875, LawLex200900000951JBJ: domestic rules which set forth a limitation period on expiry of which the national court can no longer find, of its own motion, or following a plea raised by the consumer, that a contractual term is unfair is contrary to Directive No 93/13 on unfair terms.

Case C-430/93 Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705, LawLex200500005149JBJ; Case C-222/05 van der Weerd and others [2007] ECR I-4233, LawLex200900001271JBJ.

Case C-430/93 Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705, LawLex200500005149JBJ.

Case C-455/06 Heemskerk and Schaap [2008] ECR I-8763, LawLex200900002280JBJ.

171. Raising pleas of EU law of their own motion