HLS Private Law Workshop: Rebecca Williams, The ECJ’s ‘Remedies Jurisprudence’ and the Role of Domestic Courts

Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School

One of the major catalysts behind the resurgence in England and Wales of the law of unjust enrichment has been the influence of fundamental rights jurisprudence of the European Union. Where a member state levies charges on persons contrary to EU law (such as discriminatory taxes), the European Court of Justice (ECJ) recognizes an entitlement to repayment. While the right to restitution arises from EU law, the content of the remedy is grounded in the domestic law of each member state. This dynamic is intended to preserve the respective competencies and autonomy of national courts and the ECJ.

In England, the private law of unjust enrichment has been the vehicle for vindicating the EU restitutionary right. The challenges of integrating EU principles into the recognized domestic causes of action—the ‘unjust factors’ of an ultra vires charge (Woolwich EBS v IRC) and mistake of law (Kleinwort Benson v Lincoln CC)—have in turn influenced the ECJ’s growing “remedies jurisprudence.”

In her paper on The European Court of Justice’s ‘Remedies Jurisprudence’ and the Role of Domestic Courts—How to Transfer Principle alongside Competence, presented at last Wednesday’s Private Law Workshop, Rebecca Williams contends that the law defining the EU restitutionary right faces a coherence problem. The right is grounded in the ECJ’s two primary limiting principles on member state procedural autonomy: the principle of equivalence (by which the rules governing disputes with an EU law dimension “cannot be less favourable” than those governing similar domestic disputes), and the principle of effectiveness (by which the exercise of EU rights may not be rendered “virtually impossible or excessively difficult” by rules of national procedural law). Ultimately, it is the ECJ that determines whether the remedies provided in national law satisfy these primary principles.

The general trend in the unjust enrichment cases has been toward EU-level intervention. Yet, in contrast to its member state damages liability jurisprudence, the ECJ has generally shown reluctance to specify the content and bounds of the restitutionary right. This has injected considerable ambiguity and unpredictability into the restitutionary jurisprudence. In distilling the relatively abstract principles and, in some cases, inconsistent holdings into their domestic actions, the English courts have come to develop more expansive remedies against the state than what subsequent ECJ guidance suggests is necessary.

Williams proposes that both the ECJ and national courts could take steps to improve matters. At the member state level, courts should not take too deferential a line when referring questions of law up to the ECJ, and when they do they should articulate their view of the law so as constructively to influence the content of private law principles at the European level. At the European level, the ECJ should recognize that the more it becomes involved in developing an EU remedies jurisprudence, the greater responsibility it holds for comprehensive and principled reasoning.