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The Coherence of EU LawThe Search for Unity in Divergent Concepts$

Sacha Prechal and Bert van Roermund

Print publication date: 2008

Print ISBN-13: 9780199232468

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199232468.001.0001

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Rights in EU Law

Rights in EU Law

Chapter:
(p.91) 5 Rights in EU Law
Source:
The Coherence of EU Law
Author(s):

Saša Beljin

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199232468.003.0005

Abstract and Keywords

This chapter investigates the notion of EU rights, starting with a glance at the historical development of rights. This constitutes the starting point for discussions on the relationship between rights and judicial protection, on the differences between rights and interests, as well as on the basic characteristics and determination of EU rights. It argues that the EU model can bear similarities to certain aspects of established Member State models and can unite various elements from different national concepts. Insights into the national concepts are a starting point. However, an exploration of the concept of EU rights must go beyond this and should lead to an autonomous understanding. Apart from that, the significance of the national systems in the development of a concept of EU rights is limited to them being a mechanism of implementation that is subordinated to EU law.

Keywords:   EU rights, judicial protection, national rights, national law, national systems

1 Introduction

1.1 Use of the term ‘rights’ in the EU context

One frequently encounters the term ‘rights’ both in primary and secondary EU law. Perhaps the clearest contemporary example lies in the fundamental rights listed in the Charter of Fundamental Rights. But there are numerous further examples. And the European Court of Justice (ECJ) itself has used the term in hundreds of rulings. They can be classified historically in the order in which they have arisen in the case law.1 One can also attempt to arrange them according to viewpoints and factors as regards content. The ECJ emphasizes EU rights especially in three contexts: judicial enforceability, the liability of the Member States and the Union, and finally regarding the requirements for the implementation of directives.

Enforceability in national courts and the EU courts

Since EU law is for a large part implemented by the Member States, judicial protection predominantly occurs when brought before the Member State courts. As the case law has repeatedly emphasized, they are obliged effectively to protect the EU rights: it is the responsibility of the Member States to warrant the protection of EU rights in the absence of EU legal (p.92) provisions.2 The protection is the responsibility of the courts of the Member States within the order of national law which must observe the limits of effectiveness and equality.3 The implementation of rights in directives must ensure the possibility of relying on them before the national courts.4

The significance of EU rights for judicial protection on the EU courts level is by far less explicit in case law. Nor has this question received a great deal of scholarly attention.5 There are, on the other hand, numerous examples which show that EU rights are relevant for judicial enforceability at the EU courts. This is obvious for any liability action against the Community. And with reference to the action of annulment according to EC Treaty, Article 230, the ECJ has emphasized that ‘individuals are entitled to effective judicial protection of the rights they derive from Community law’.6 However, this protection bears clear limitations because the ECJ requires the plaintiff to exhibit a high degree of concern, in accordance with EC Treaty, Article 230 (4).7 But there is a connection between the protection of rights and the action of annulment.8

Liability

Rights play an important role when considering the liability of Member States for breaches of EU law. The ECJ states that ‘it follows from the requirements inherent in the protection of the rights of individuals relying on Community (p.93) law that they must have the possibility of obtaining redress in the national courts for the damage caused by the infringement of those rights’.9

Regarding the liability of the EU in accordance with EC Treaty, Article 288 (2), the ECJ has also gone over to using the term ‘rights’, now requiring the violation of a legal norm that aims at granting rights to the individual.10 Previously, the ECJ had required that the violated norm serve the purpose of protecting the individual, without explicitly speaking of rights.11

Implementation of EU law and miscellaneous

The purpose of EU rights is not limited to judicial protection and liability. The national implementation of directives must not only secure judicial protection, it must also be conducted in such a manner that ‘the persons concerned are in a position to know the full extent of their rights and, where appropriate, to rely on them before the national courts’.12 According to EC Treaty Article 253, the requirement to give reasons for a (general or individual) EU Act is also geared towards the plaintiff. In order to preserve his rights, he has to be aware of the core reasons for the act and Community Courts have to be enabled to exercise their jurisdiction.13 The Court of First Instance (CFI) appropriately speaks of a double target.14

1.2 Questions

Neither EU legislation nor the ECJ have ever fundamentally identified the basic characteristics of EU rights nor the criteria by which to determine them. Such an outline could be deemed dispensable because all national legal systems know similar terms. The fundamental concept of a right can be described as somebody being entitled by law to demand something from the other.15 However, the term exhibits diverse conceptions and contents within the same legal order as well as between different legal orders.16 Therefore, (p.94) when Member States refer to rights, very different things may be meant. It seems only too obvious that this can result in different interpretations of what EU rights actually are.

In reality, dealing with these rights can lead to problems that can go so far as to act contrary to the recognition of rights at the EU and the Member State levels. This is illustrated by an example stemming from environmental law. Although the ECJ has clarified that third parties must have the possibility of relying on the obligation to conduct an Environmental Impact Assessment (EIA) in legal proceedings,17 German case law is rigid in its estimation that rights to file an action can be derived neither from the EIA-Directive nor from the German EIA-Act.18 Can ignorance of the ECJ's jurisprudence be solely responsible for this contrast? Or can such contradictions be caused precisely by uncertainties regarding the notion of EU rights?

In the face of such problems, this chapter attempts to investigate the notion of EU rights, starting with a glance at the historical development of rights.19 This constitutes our starting point for reflections on the relationship between rights and judicial protection, on the differences between rights and interests, as well as on the basic characteristics and determination of EU rights.

2 Historical development of rights

The term ‘(individual) right’ was already in use in the ius commune, ie Roman (canon) law, but, since the nationalizing of jurisprudence has also been among the basic concepts of the nineteenth-century legal doctrine of private law in all legal orders.20 If one traces its development in Germany, there has been a focus on the right of the individual in the German legal system since the period of Enlightenment21, especially in the sphere of private law.22 And (p.95) in German administrative law since the beginning of the twentieth century, individual rights have advanced to become a central legal concept.23

2.1 Distinction between ‘law’ and ‘rights’

The development of the notion of rights in all of its different forms took place in two fundamental steps: the first was the emergence of a stricter distinction between objective law—in terms of the entire legal system—and individual rights. The dual meaning of the terms Recht and jus 24 as well as of the French term droit exemplifies the lack of strict distinction between the two concepts at the basis of juridical thinking. When referring to the right of the individual, French legal terminology adds the term subjectifsubjektiv in German—for the purpose of notional clarity. In contrast, there are the distinct terms ‘law’ and ‘right’ used in English legal terminology.25

2.2 Distinction between rights and judicial protection

In a second step, the right—in a substantive sense—was more significantly distinguished from judicial protection in respect of procedural law—a development that did not occur uniformly and simultaneously in all legal systems. Contrary to the minor degree of distinction that used to exist between substantive law and procedural law—as was the case in Roman and older common law—the nineteenth century witnessed a shift of the focus on ‘actions’ (without differentiation between procedural and substantive law) to the focus on law and rights in a substantive sense.26 Rights and procedural law became more clearly separated. Since then, it has been possible to make a distinction between the creation of a right on the one hand and judicial protection on the other hand, both in continental European27 and in common law.28

The distinction between rights and judicial protection is not merely theoretical, however. In practice, it is exemplified by the simple fact that quite naturally it is not always necessary to call upon help from the courts. (p.96) Whether or not rights have to be enforced by judicial protection depends on their implementation. In addition, further explanation is needed of the fact that judicial enforceabilty can exist without rights, just as—conversely—rights can exist that are not judicially enforceable.29

3 On the relationship between rights and judicial protection

3.1 The problem

Traditionally, despite their separation, rights and judicial protection are closely connected in legal debate, comparable to the estimation of rights in the context of judicial enforceabilty by the ECJ. A reason for this is that the enforcement of rights is a particularly significant instrument for their realization.30 As a result, rights and judicial protection are often mentioned in one breath: ‘rights and remedies’, respectively ‘material rights’ and ‘procedural remedies’31 or ‘rules of substantive law’ and ‘rights’ on the one hand, and ‘procedural rules to enforce those rights’ on the other.32

Moreover, one faces the idea, at least in German legal writing, that rights and their enforceabilty run parallel, and that the notion of rights is to a large extent influenced by the respective model of judicial protection,33 whatever that may mean in detail. However, since rights are not limited to judicial protection,34 this approach is problematic. According to EU rights, the idea of parallelism between rights and their enforceabilty faces difficulties, because, as observed above, their protection lies to a large extent in the hands of the Member States but is also in part in the hands of the EU courts. Thus, several systems of judicial protection are juxtaposed for the protection of EU rights—that of the EU and those of the Member States. Due to the differences in judicial protection, there could be up to twenty-eight differently (p.97) articulated EU rights, notwithstanding regional differences within one Member State. Such a situation is difficult to conceive.

3.2 National rights and their judicial protection

Individual protection and general judicial control of legality

In the case of national rights it is difficult to summarize the interrelationship between judicial protection and rights in a few, tangible phrases, let alone to attribute to judicial protection a shaping effect on rights. This can be exemplified by means of two fundamental aspects that are often emphasized in the discussion on rights. The first aspect concerns the two basic models of judicial protection: the model of the ‘protection of individual rights’ and the model of ‘general judicial control of legality’. Although neither the one nor the other model can—in its purest form—be encountered in any legal system, criteria to differentiate between the ideal types exist.35 Individual protection focuses on the protection of the plaintiff's rights. Admissibility and giving the reasons for a judicial action are closely co–ordinated. Furthermore, the courts are bound to the plaintiff's application and judgments must be effective among the parties only. Regarding the model of (general) judicial control of legality, the purpose of proceedings is to review the (objective) legality of an action. Here, admissibility and giving reasons for judicial action need not be closely co–ordinated. There is also no obligation for the courts to be bound to the plaintiff's application and judgments must be effective erga omnes.

The practical differences in the range of norms that fall under judicial protection are limited. This is due first to the fact that differentiation is only relevant in those fields in which a right is not provided for by every legal provision. Traditionally, there is no such problem in private law. Private law serves specifically to balance private interests, and therefore regularly grants rights.36 Consequently, the differentiation between law and rights is of minor relevance for judicial protection between private persons. The distinction does become relevant, however, for the legal relationships between the citizen and the State as well as judicial protection in this sphere. In this case, the sphere of law is larger than that of rights. Yet the consequences for judicial protection are limited. First, in models that prioritize the protection (p.98) of rights, not only rights and not all rights can be enforced by legal action. Second, in systems of judicial control of legality not everybody can sue for everything. The plaintiff requires an entitlement to legal action. To summarize: in both systems there can be judicial protection without rights and rights without judicial protection.

Judicial protection without rights and rights without judicial protection

Germany, for example, is a prime example of the model of individual protection. A central factor is the guarantee of judicial protection in the German Constitution (Grundgesetz, GG) Article 19(4) which guarantees judicial protection for those whose rights have been impaired by public authority. Accordingly, the most important suits in Germany that can be filed at the administrative court are geared towards rights both in terms of admissibility and of the wellfoundedness of the action, in accordance with the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO) s 42(2) and s 113(1),(5).37

However, this does not imply that judicial protection must always be given when rights are impaired. Nor does it imply that judicial protection in Germany may be geared only towards the protection of rights. The existence of rights that are not legally enforceable can be illustrated by (general) procedural rights in Germany. This sort of procedural right is customarily only enforceable if the impairment of the procedural right is supplemented by the impairment of a substantive right.38

Legal exceptions to the precondition of rights for judicial enforceability are an example of judicial protection without rights. VwGO s 42(2) does not require the assertion of an individual (public) right without exception, but only ‘insofar as no other legal provision is made’. The right of associations to take legal action under German environmental law is a good example.39 Furthermore, the impairment of a right in terms of VwGO s 42(2) is naturally affirmed in cases of the addressees of a burdening individual act.40 Determining concrete rights is practically irrelevant in these cases because the (p.99) addressee of a burdening individual act has wide-ranging rights of action, and an extensive examination into the justification takes place.41

In the system of judicial control of legality, the fact that there can be protection without rights is due to the fact that rights—as they are understood in Germany—play no significant role in that context. This shows that there can be judicial control without rights. However, rights are substituted by other attributes that restrict an individual's entitlement to legal action. In the French administrative process, an extensive examination can take place of the state measure which is being opposed, measured on the scale of the entirety of the law.42 The accessibility to the complaint process is less object-ively oriented, because it is also the case in France that not everyone can file a legal action for everything. For the most important type of claim—the recours pour excès de pouvoir—the plaintiff must have an interest, the so-called intérêt à agir,43 and the ‘interested’ cannot confront every act.44 The effect on the access to legal action through the courts, both for rights and interests is comparable, even if interests result in broader access to courts than rights. A comparable situation occurs in British law where the justification of legal actions against government bodies is examined on the basis of law.45 In terms of admissibility, though, there is also the precondition of locus standi or ‘standing’ which exists when there is ‘sufficient interest’, in accordance with s 31(3) of the Supreme Court Act.46 The content of this prerequisite ranges from a (factual) concern to rights that include European Human Rights.47

Furthermore, where no connection is required between right or interest in admissibility to the court on the one hand and illegitimacy in the justification of a legal claim on the other, judicial protection is generally broader (p.100) than the concept of rights.48 Consequently, if a right or interest effects the admissibility of a legal claim, it can open the door to varyingly extensive legal scrutiny of its justification, both in terms of width (scale of control) and depth (intensity of control).

These examples show that the legal systems of the Member States contain elements of both individual protection and judicial control of legality. Thus the differences between the two fundamental concepts—‘individual protection’ and ‘objective judicial control’—are in balance due to the respective designs of the requirements for action.49 Since one encounters neither the one nor the other model in its pure form, the understanding of rights gains little from making reference to basic differences between the two systems.

Order between the granting of rights and judicial protection

A similar picture emerges when regarding the second fundamental aspect that is discussed in connection with rights—the chronological order of the granting of a right and judicial protection. It is repeatedly emphasized that in continental European legal orders substantive law constitutes primary law, while the possibility of enforcing its implementation is merely consequential and thus secondary.50 The sentence ubi ius, ibi remedium applies.51 In contrast, the situation in common law is distinguished by the traditionally strictly formal character of judicial protection. It is characterized by the causes in law and the legal consequences of judicial protection. Rights are the result of judicial protection, which is why rules of procedure are superordinate to substantive law.52 Thus, the reversed phrase ubi remedium, ibi ius applies.53

However, the two approaches need not necessarily result in differences in practice. Rather, the tailoring of rights and of judicial protection is the (p.101) key: a legal order that bears extensive and general substantive rights does not confer a greater breadth of rights than a system that provides exhaustive opportunities of judicial protection, and vice versa.54 Therefore, the tailoring of the rights and the possibilities of their judicial protection within a legal order are the key and not the (temporary) priority of either rights or judicial protection.

Trying to explore the range of rights and interests reveals the fact that the problems lie in the precise detail. For instance, in Germany who could claim that it is always possible reliably to determine whether a right is upheld or not? The actual situation resembles difficult casuistry55 despite the existence of the ‘theory of protective norms’ (Schutznormtheorie) as a comprehensive instrument for the identification of rights.56 In addition, development is ongoing, showing that the notion of rights cannot be understood as ‘a fixed institution with selectively emphasized features’.57 The bulk of judgments regarding the issue of rights and interests show that the situation in a Member State is far more differentiated than can be exemplified by fundamental differences alone. The sum of all individual provisions is by far more relevant to the practical outcome. In the light of the vast number of relevant provisions, it appears barely feasible to sketch one specific scope of rights and interests.

3.3 EU rights and their judicial protection

Judicial protection without EU rights and EU rights without judicial protection

Much like the situation in the Member States, the concept of EU rights is partly wider and partly narrower than that of judicial enforceability. Apart from the fact that Member States courts naturally protect both EU and national rights, the idea that judicial protection exists (and must exist) without EU rights also applies to (direct) legal protection by the EU courts. The concept of judicial protection is wider than the concept of EU rights because protection can also be achieved without them. This is at least the case for actions of a person against a decision addressed to that person. Locating rights is not the issue here, because—within the framework of the action of (p.102) annulment according to EC Treaty, Article 230(4)—the addressee is always authorized to file an action.58 In the case of general acts and third-party judicial enforcements against decisions, the provisions require the addressees to be directly and individually concerned. Whether or not this is only the case when a right is violated remains to be explored.59 Should this not be the case, then it can be deemed another example of judicial protection without EU rights by EU courts. Furthermore, the justification of a claim for action of annulment is every ‘infringement of this Treaty or of any rule of law relating to its application’.60 So there is no requirement for a connection between the concern (as examined in the admissibility) and the unlawfulness (as examined in the justification). This shows that the concept of EU judicial protection is wider than that of EU rights.

On the other hand, there are EU rights without judicial protection, meaning EU rights which need not be enforceable. In the case of the EU courts not every EU right needs to result in the direct possibility of bringing an action. This is clearly exemplified in case law. The ECJ recently stressed that the individual must have the opportunity to call upon judicial protection of those rights that he derives from EU law.61 In doing so within an action of annulment, the ECJ has itself created a connection between EU rights and the possibility of suing before the EU courts. This connection is also incorporated in Article 47(1) of the EU Charter of Fundamental Rights which warrants an effective legal remedy against violations of EU rights. It should be remembered that in Germany the comparable guarantee of judicial protection of GG, Article 19(4) effected the orientation of judicial protection towards the protection of individual rights. However, an EU right does not always lead to the admissibilty of an action of annulment.62

It remains to be seen whether it is conceivable that there may be types of EU rights which are not enforceable before Member State courts—for example, in a situation comparable to that of procedural rights in Germany.63 As a rule, one would have to reject this possibility, because one (p.103) key difference between procedural rights in EU law and in German law lies in the fact that those of the EU are not accessory to substantive rights.64 Thus, the explanation used in Germany for the exclusion of judicial enforceability of mere procedural rights appears to be missing for EU rights. On the other hand, exceptions seem likely. Possible examples of rights which are not judicially enforceable are the rights of participation, which are stipulated in the directives to implement the Aarhus Convention (AC). The Convention, which is insufficiently transposed by the EU in this respect, differentiates in AC, Article 6 between the participation of the public concerned and the entire public.65 AC, Article 9(2) requires only a right of action for the public concerned and not for the entire public, AC, Article 9(3) leaves it to the Parties of the Convention to provide further members of the public with a right of action. Consequently, EU law can contain a right of participation for everybody, which nevertheless need not be judicially enforceable by each and every person.

Effects of EU rights on judicial enforceability in EU courts

Although there are differences between the concept of EU rights and judicial protection, as described, the former have effects on judicial enforceability both in the courts of the EU and in national courts. Under EC Treaty, Article 235, in an action for liability the bearer of an entitlement to liability can enforce his right according to Article 288(2). Here, the entitlement according to Article 288(2) presupposes the infringement of an EU right.

With respect to the action for annulment according to EC Treaty, Article 230, the question occurs as to whether there is a link between the condition of direct and individual concern according to Article 230(4) and EU rights. One might think that direct and individual concern has nothing to do with rights, if only because of the wording. However, there are rulings which have addressed the issue of whether the individual is directly and individually concerned in (specific) rights, for example in patent rights,66 in trademark rights,67 or in rights to participate in proceedings.68 Accordingly, there is the (p.104) assumption of some link between EU rights and the direct and individual concern.69

The question whether rights are a necessary requirement for the right of action in accordance with EC Treaty, Article 230(4) is a different issue. Rights are not a necessary requirement for addressees of decisions. As was argued above, these persons are always entitled to bring an action in accordance with Article 230(4). And also in cases in which someone sues against a general act or a third party sues against a decision, the provisions that are actionable by action of annulment are not limited to EU rights. Instead, the ECJ repeatedly emphasizes factual elements without expressing a normative approach in its examination. This is the case, for example, for the (factual) market position and involvement in procedures such as the formal examination of state aids.70

Overall, EU rights play a role in enforceability in EU courts insofar that a (specific) right can—but does not have to—be meaningful. Direct and individual concern and rights are not identical, but there is a link: the impairment of rights is one possible way to argue in favour of direct and individual concern. One can thus differentiate three groups of individuals that are authorized to bring an action in accordance with EC Treaty, Article 230(4): the addressee of a decision being unrestrictedly concerned, the non-addressee being concerned in his rights, and the non-addressee being otherwise concerned.

Coming back to rights as a basis for direct and individual concern, case law shows that they are not a necessary requirement for filing an action of annulment. Merely the restriction of a right by a provision is insufficient to fulfil the conditions of Article 230(4).71 The plaintiff will have to exhibit more than just a right in order to be individually affected.

Effects of EU rights on judicial enforceability in national courts

When an EU provision grants a right, the Member State must warrant the enforceability. This applies equally to directly applicable EU rights and to the implementation of EU rights in national law.72 Because it is ‘in principle, (p.105) for national law to determine an individual's standing and legal interest in bringing proceedings’73 the EU right must be equipped with criteria that grant a possibility to enforce the right in accordance with national law. In general, the Member State formulates—if legislative implementation is required—individual rights and in doing so creates the prerequisite for judicial enforceability, if this is necessary in the legal system concerned. Elsewhere, the affirmation of an interest must be warranted, if such is the precondition for judicial enforceabilty in the respective Member State.74 There are EU provisions in which both of these possibilities are explicitly juxtaposed, ie they make rights dependent on either the impairment of a right or on sufficient interests.75

4 On the differences between rights and interests

4.1 Overview of the legal situation in some Member States

As has been shown, the Member States require either a right or an interest for access to court. The differentiation between rights and interests varies among the Member States. In Germany, rights also comprise legally protected interests that need only be differentiated from economical, political, aesthetic, or miscellaneous other interests.76 If a right is not explicitly phrased, it needs at least to be determined—by means of interpretation according to the Schutznormtheorie— whether a legal norm is meant to serve not only general but also individual interests.77 Therefore, the normative approach is (p.106) decisive,78 and additionally restricts itself as far as possible to one norm,79 but in doing so also comprises (specified) interests.

In contrast, the difference between rights and interests is underlined more clearly in France. A normative connection is not a required precondition for an interest—the interest in question need not be protected by law. Rather, the plaintiff's affiliation to a group is sufficient: for example to the group of tax payers, residents, users of institutions, pupils, students, or civil servants.80 In some circumstances, not even this is required, while on the other hand, there are cases in which some affiliations are insufficient.81 What this means more specifically is difficult to estimate. The literature describes the main difference as follows. Rights concern the assertion of legal norms whose protective intention needs to be determined (if necessary by interpretation). In contrast, in the case of interests, the only relevance is whether they are factually concerned.82

Another difference might possibly lie in the legal consequences. While interests serve as a form of defence, rights can effect legal consequences that have more than merely defensive functions, such as obligation and liability. This is, however, barely advantageous for the determination of rights and interests in a legal order.

4.2 Legal and factual factors

One cannot make as clear a distinction between legal and factual elements as one is led to believe by the comparison of normative intention on the one hand and factual concern on the other. Initially, regarding interests that function as a precondition for judicial enforceabilty, the concern lies in a legal appraisal of whether there is in fact the required interest for the suit in question.83 This becomes especially clear in the requirement of a sufficient interest, which indicates that not every factual interest need in fact suffice. The methods employed in this legal assessment are certainly distinct: in the case of rights the method lies in the interpretation of norms, while in the (p.107) case of interests it lies in the assessment of facts rather than in the search for normative intentions.

It is, however, not the case that Germans concentrate entirely on determining the intention of a norm, while in the case of interests in other legal systems this is out of the question. Thus, Schutznormtheorie does not exclude factual aspects: the factual relevance can become important when dealing with the question of the scope of a right, when the norm does not define in detail the intended factual and personal protective purpose.84 Here, the scope of a right is not derived merely from the norm itself, but instead its attributes are not fixed and are thus reliant on case-specific evaluation. With this in mind, the less normative content a right has, the more it depends on factual circumstances.

On the other hand—at least for an external observer—for one's affiliation to a group in terms of the French intérèt', it seems plausible that the explanation of this interest also makes reference to legal provisions, for example tax provisions that define different groups of tax payers, or local provisions that determine who is in fact a local resident.85 In short, one can put on record that rights and interests are not opposites in terms of being purely legal and purely factual judgments.

4.3 On the extent of rights and interests

Even when methodological differences are taken into account, they cannot explain whether rights or interests tend to be affirmed more or less generously. There is a customary assumption that the sphere of interests is wider in many Member States than the sum of rights in Germany.86 Since the requirements for the intensity of the interest may vary, it is by all means plausible to believe that the sphere of interests in one Member State is narrower than the sphere of rights in another. In Germany, for example, despite the approach of the protective norm theory—which in general is perceived as being strict—some assume generous practice with a wide range of legally protected interests.87 It would be interesting to examine the widespread (p.108) belief of there being more interests than rights on a case-by-case basis. Such tightly focused investigations, however, are few and far between.88

Regarding EU rights it would be particularly interesting to examine why rights or interests are wider or narrower. To date, no efficient explanation has been found. Factors such as the historical development and constitutional tradition, the role of administration and courts, or the fundamental position of the citizen within the state are named as reasons.89 Some also refer to ‘historical coincidences’.90 Such reasoning has little significance for the concrete application of law.

In summary, rights and interests are determined to some extent in methodologically differing ways. How narrow or wide they are is unlikely to be solely attributable to this. Thus, one cannot derive a great deal from the terms ‘right’ and ‘interest’. This applies the more where there are EU rights which pick up the differences between the Member States and alternatively require a sufficient interest or an infringement of a right. In so doing, on the one hand, the EU legislator reacts to the differences between rights and interests in the Member States. On the other hand, both concepts appear to be equally appropriate to transposing the same EU right into national law. One may wonder if this works only with rights to action. Thus, in the end, one achieves as little understanding of EU rights from the comparison between rights and interests as one does from an examination of the relationship between rights and judicial control.

5 Basic characteristics of EU rights

5.1 Advantages of an autonomous concept of EU rights

On this basis, when dealing with EU rights it is advisable not exclusively to explore differences in and parallels to national systems by comparative means, for such differences or parallels reveal little about the concept of EU rights. Since it is already very difficult even to pinpoint the key attributes of every individual Member State's national concept, one certainly cannot expect them to disclose too much knowledge of the concept of EU rights. On (p.109) the contrary, by overemphasizing national concepts one would unnecessarily burden an examination of EU rights with the insecurities and differences of the Member States.

This does not exclude the possibility of parallels between the concept of EU rights and elements of the national concepts of rights. The character of EU rights must nonetheless be autonomous. This means that the EU model can—without obligation to do so—bear similarities to certain aspects of established Member State models. It can also unite various elements from different national concepts.

In addition, being aware of the national concepts is important in the detection of possible differences between the national concepts and EU rights and the detection of possible differences in understandings. From this perspective, elaborating the characteristics of EU rights is to some degree inseparable from the respective national approaches, which are necessarily influenced by national ideas, at least to some extent. Insights into the national concepts are a starting point: no more and no less than that. However, exploring the concept of EU rights must go beyond this and should lead to an autonomous notion. Apart from that, the significance of the national systems in the development of a concept of EU rights is limited to their being a mechanism of implementation that is subordinated to EU law, ie the Member States have to set and apply the necessary (procedural and material) rules.

5.2 Substantive notion and normative approach

Substantive notion

On the basis of the case law of the ECJ and CFI one can remark, first of all, that EU rights are not a purely procedural notion but also a substantive one, because they are not of importance in terms of judicial enforceability alone. Judicial enforceability concerns only the enforcement of a right, not its existence. The substantive nature of EU rights should not be obscured by the previous case law of the ECJ which prioritized the procedural possibilities of rights rather than their factual and personal scope.91 This substantive nature does not rule out that an EU provision can grant a mere right to participation in legal procedures or a right of action.92

The differentiation between the (substantive) granting of EU rights and their (procedural) enforcement is especially important because rights can be (p.110) granted in one legal order, whereas judicial protection is offered by another. The right is thus granted by EU law, while its protection occurs through national law, insofar as taking direct legal action before the EU Courts is not possible or unless EU law makes exceptional requirements of judicial protection at Member State level. There is only one model of EU rights, while simultaneously, there are different conceptions of judicial protection.

EU rights can also be said to be a substantive notion in the sense that they largely derive from substantive (written or unwritten) law and not from procedural EU law, of which there is not a great deal anyway.

Normative approach

The rights of the individual are derived from EU provisions. So the normative approach is another characteristic of EU rights,93 namely the requirement of a legal norm of the EU to indicate whether (to whom and to which extent) a right is granted. The normative approach can be recognized in the method of the ECJ for determining rights. It examines both the wording and the purpose of a provision.94 Therefore, one can define EU rights as the normatively protected position of an individual.

The normative approach of EU rights is, however, shaped quite differently from the way it is in German law, for the normative connection at EU level is less intense. It is sufficient that an EU legal act, for example a directive—including the recitals in the preamble—generally indicates that the individual is intended to have rights.95 Single elements of a provision are less relevant for granting an EU right. At least this is true for the question of whether an EU right is granted. In contrast, the normative approach can be more intensive for the scope of a right.96

There is no contradiction between the normative approach and the existence of EU rights that refer to rights or interests. The EU norm clarifies that a right is intended. Additionally, it can determine who is entitled to it and what it grants—but it need not regulate this in all details.97

(p.111) 5.3 How EU rights reach the individual

Implementation, direct application, and interpretation of national law

There are several ways for EU rights to reach the individual. One must distinguish this from the question as to whether an EU legal act contains a right98 and from the effect of EU rights on judicial enforceabilty.99

One possibility is the direct application (in respect of direct effect)100 of EU rights. The ECJ occasionally equates the notion of rights with the possibility of ‘relying’ on these norms in court.101 This can lead to misunderstanding in two ways. First, the notions of direct applicability and of EU rights are not identical, because direct application does not require individual rights as a precondition and vice versa.102 And second, the ways in which EU rights reach the individual—including the route of direct application—apply independently of the question of whether or not a right needs to be judicially enforceable.

Other EU rights stem from EU law but need to be implemented by means of national provisions.103 The possibility exists, however, of interpreting national provisions—in conformity with EU law—in such a way that they grant rights. The implementation does not always need to result in an explicit right. It can also result in an obligation serving individual interests, as long as it clearly covers the extent of the EU right both personally and in substance. However, due to the requirements concerning the implementation of directives, explicit rights in directives should be implemented by explicit national rights.104 Upon implementation EU rights are national law, while in terms of their content they remain EU rights, at least insofar as the content of the right is specified in EU law. In cases when EU law provides for minimum rights, the content of the right remains EU law within the scope of the minimum right.

(p.112) The categories of directly applicable EU rights and those to be nationally implemented can overlap. This becomes clear in cases where directives provide for rights: a right provided for in a directive can be directly applicable until it is implemented.105

Relationship between EU rights and direct applicability

Direct application is just one technique by which a right that is stipulated in EU law can be brought to the individual. An EU provision that has no direct effect can very well contain rights. For example, rights against private persons in directives have no direct effect due to the limits of horizontal directive effects.106 Another example is a directive that is not precise enough to be directly applied, but which stipulates the granting of a right in national law. This was relevant in the case of a directive that stipulated a right for employees in the event of the insolvency of their employer, but did not identify the person liable to provide the guarantee.107

On the other hand, whether a directly applicable provision always grants a right is not yet entirely clear. This is, in part, assumed in the literature,108 notwithstanding the question who can enforce the right.109 One may argue for this, that the ECJ affirms a right just by reference to precedent cases on direct applicability.110 On the other hand, the ECJ emphasizes the difference between the direct obligation of state authorities and the possibilty of the individual relying on a directly applicable provision.111 From this, one can conclude that direct application is first an objective phenomenon concerning the duties of public authorities within Member States. This can—without obligation to do so—be supplemented on a second level by the issue of rights.112 From this, one can also draw the conclusion that an individual right cannot be a necessary precondition for direct application.113 Further-more, (p.113) one can conclude that one does not face different types of direct applicability but the consequences of the same direct applicability for the obligated State bodies, on the one hand, and the persons relying on the direct application, on the other.114

6 Criteria for determining EU rights

6.1 Explicit and non-explicit EU rights

In accordance with the normative approach, whether or not an EU provision grants a right depends on what it aims to regulate and thus on the content. In this, it is possible that an EU provision explicitly provides for a right. The search for an explicit right therefore ranks first.115 Numerous provisions of EU law contain such explicit rights. Examples are both the fundamental rights of the EU and many directives and regulations within secondary legislation.116 However, the use of the term ‘right’ is not obligatory. Rather, one often encounters the term ‘entitlement’, as is the case, for example, in Article 7(6) of the so-called Deposit-Guarantees Directive.117

However, norms that do not explicitly formulate a right can be interpreted in such a way that they do in fact grant rights. The ECJ noted this for fundamental freedoms long ago: ‘Rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the Institutions of the Community.’118 A further practical example for non-explicit rights is the directive about information in the field of technical standards and regulations.119 Such non-explicit rights raise the question of how to recognize whether and possibly upon whom the obligation in question grants a right.

(p.114) 6.2 Differentiation of non-explicit EU rights (the ‘whether’ of granting a right)

Criteria stemming from EU law

Whether an EU right is granted—if it is not explicitly stated in the text of a norm—depends on what the norm aims to regulate. Since the granting of rights occurs within the legal order of the EU, EU law delivers the criteria and the standard for the test of whether and to whom an EU legal act confers a right. Scholarly discussion on whether the EU right is determined according to criteria of the EU or by national criteria120 can only decide in favour of the former if the argument follows on from the autonomous concept of EU rights. However, this does not rule out the possibility that one of the criteria for the determination of EU rights can be whether the Member States grant rights through comparable provisions.121

Direction of protection as the most important aspect

Provisions on the allocation of powers between the EU institutions grant no rights to individuals because they are not designed for the individual's protection but to protect the balance between EU institutions.122 Furthermore, an EU provision with the sole purpose of providing the Commission with information grants no individual rights. Such a legal act only concerns the relations between the Member States and the Union.123 A state's duty of supervision in the sphere of deposit guarantees also grants no right. A different right does exist in this particular field, however.124

One can infer from the explanations given by the ECJ and CFI that emphasis is placed on whether the individual is meant to be protected by the legal norm (that is, emphasis on the purpose of the legal norm), and whether the individual is involved in the legal relationship that the norm aims to regulate. First of all, this clarifies that the (often controversially) debated question as to whether the protection of individual interests is a precondition for the granting of an EU right125 needs to be answered in the positive. (p.115) If this was not the case, then every binding requirement that is regulated in an EU provision would have to grant a right. However, the ECJ does not go this far.

Regarding the purpose of a legal provision, use of the word ‘protection’ is a main indicator for a granting intention.126 If the act serves to protect the individual or a subject of protection that benefits the individual, then the act contains at least one right. In this way, the ECJ justified the granting of rights on the grounds that an EU provision serves to ‘protect human health in particular’,127 to ‘protect human beings against the effects of lead in the environment’,128 to ‘protect public health’,129 to ‘protect tenderers against arbitrariness on the part of a contract-awarding authority’,130 to ‘protect consumers’,131 to ‘protect the Community's groundwater’,132 or to ‘protect depositors’.133

However, the term ‘protection’ need not be explicitly stated. It is sufficient if, for example, a legal norm serves other objectives that are advantageous for the individual, such as the free movement of goods.134 In addition, the objective of protection can be very general, just as long as it includes the individual, as is exemplified by the protection of human health or the movement of goods.

In the light of the case law up to now, it is unclear whether there is—next to the examination of protection—an independent criteria of a legal relationship that is regulated by the respective provision.135 As was pointed out above, the ECJ has justified the denial of a right with the fact that the provision in question solely concerns the legal relationships between the Member State and the Community. But the key question is why this is so. For there are provisions whose contents are obligations of the Member States to the Commission, but which still contain a right. One can find directives in (p.116) which private parties are not part of the relationship, their rights or obligations not mentioned.136 Such a directive can nonetheless grant the individual a right because it serves the free movement of goods, and therefore—in the end—also serves the individual.137 As a consequence, the normative purpose is also relevant when determining the legal relationships that are covered by an EU provision. Finally, the criterion of legal relationships does not have an entirely individual meaning. One could perhaps differentiate two categories of provisions. Provisions regulating relationships of a private party always grant rights. Where private parties are not part of the legal relationship, the question as to whether rights are granted depends on the protective purpose of the provisions.

Overall, the criteria for the granting of an EU right are generous. There are few EU legal acts from which one cannot derive any right. However, this is limited by the fact that when it comes to legal acts containing explicit rights, no further rights are drawn from respective provisions of that legal act.138 This concerns the scope of the rights that stem from the directive in question, rather than the question of whether any rights are granted. The scope of the limitation will depend on how often the EU legislator stipulates explicit rights.

Reasons for granting EU rights and significance of the functional aspects

The criteria for granting an EU right could be influenced by the reasons for doing so. There is a widespread thesis that the granting of EU rights is geared less towards the interests of the individual and more towards mobilizing him as an instrument for enforcing EU law.139 This functional orientation has the effect that every EU norm grants rights as long as it contains only sufficiently unambiguous obligations. Quite apart from the fact that the thesis of mobilizing or functionalizing the individual is also contended—and that its significance is in the end relativized140—one must not fail to register that the grounds for granting a right and the criteria for determining a right operate on different levels.141 A mutual influence is not out of the (p.117) question. However, reference to the functional orientation on its own can hardly explain why there are EU norms that grant no rights at all. This does not exclude the possibility of it being one of a number of criteria.142 It is by all means possible that functional aspects can constitute the main argument for the granting of an EU right. For example, the ECJ has an eye on the effectiveness of an EU legal act143 or on ensuring fair trading and the transparency of markets in the Community.144

6.3 Scope of EU rights

Difference between the granting of rights and their scope

The (general) protective purpose of EU provisions does not have significance in terms of their contents or their scope.145 The determination of rights therefore requires two examinatory steps. This two-step test is recurrent in the jurisprudence of the ECJ. The first step is an examination of whether a Community provision grants a right or not, and the second aims at determining the scope of the right, ie whether or not the person in question can actually draw on it.146

The scope of a right can be of great practical relevance because a generous grant of a right can be put into perspective by restricting the scope of the right.147 Since EU law grants rights quite generously, the more practically relevant question in the future may be who is entitled to the right and what it contains.

On the determinability of an EU right's scope

To date, the criteria for determining the personal and substantive scope of an EU right are not greatly developed. The ECJ has rarely addressed this issue.148 One of only a few exceptions is a directive on the guarantee of deposits.149 This may be attributable to the fact that EU provisions often make no or only limited statements as to who should be entitled to a right and what scope the right has as regards content. In the literature, this is (p.118) sometimes pinpointed as the main deficit of EU rights.150 However, the lack of outlining of rights in the directives is often deliberate. They often provide either for minimum rights, for the implementation of which the Member States retain a certain degree of discretion.151 Alternatively, the directive requires ‘sanctions’ that are not defined in detail but which can also include rights.152 In the light of such practice, the national legislator and the national executive have no choice but to deal with the problems that result from it.

First indications

The starting point for the question of who is entitled to a right has to be the group of people that is stated in the granting EU act. In some provisions, the circle of beneficiaries is more closely specified than in others, for example regarding the consumer, bidder, or depositor.

Problems arise when the circle of entitled persons is broad, especially in cases when everyone is protected. In such cases, the entitled persons can be determined by the degree to which they are (actually or potentially) concerned.153 The following rule should apply in EU law as it does in national law: the less one can derive from the norm, the greater the significance of being concerned factually. However, how the latter is determined is again not clear. EU law grants a right to those who are ‘affected or who have an interest’154 without elaborating whether there is a difference and if so, what that difference is. In another provision, affectedness functions as a generic term for the parties concerned and entities with an interest.155

Those entitled need not be limited to those people who fall within the coverage of personal applicability of the legal act. An example is the principle of equal treatment of men and women in Directive 79/7, of which the scope covers discriminated people of both genders. In addition, the husband of a discriminated woman can deduce rights from the directive.156

(p.119) Just because an EU provision protects the free movement of goods does not give any indication of whether this covers the manufacturer personally, the distributor, and/or the consumers. All of these groups are in fact covered as long as the use or marketing of a product is hindered.157 This is, however, not the case with the use of a product by the public authorities, inasmuch as it is not liable to create an obstacle to trade.158

In order to determine the substantive content of a right, ie its substantive scope, the ECJ has to make grammatical, systematic, and teleological interpretations of the provisions in question. Indications for or against a certain content can be deduced from the recitals in the preamble to the legal act, if they—for example—explicitly rule out a right.159 However, the ECJ additionally performs an interpretation of the provisions of the legal act in question.160

The existence of an explicit, selective right can—for systematic reasons—allow the conclusion that another provision within the same legal act does not grant a further right.161 Should a number of legal acts concern the same subject and should one of these acts of law grant rights, then one can conclude that the other legal acts do not grant any rights.162 In such cases, the lex specialis rule should apply. Does this lead to a result that an EU legal act without explicit rights grants more rights than an EU act where no explicit rights are stipulated? The answer to this question depends on the scope of rights in EU acts without explicit rights. Such rights need not be endless. This assumption is supported by the fact that in the past, the ECJ has refused to draw rights from a directive that (as a whole) served to protect humans' health, without indicating the speciality of other rights.163

From a teleological point of view, the ECJ inquires as to whether a certain substantive content of the right is needed in order to achieve the purpose of the legal act.164 A directive that generally requires the interested party to be able to assert his rights in court leaves the Member States with discretion regarding the contents of these rights.165 If the Member State opts for an (p.120) entitlement to compensation, then this entitlement has to be efficient. The compensation has to be in appropriate relation to the suffered damages.166 Equally, the legal consequences of entitlement to community liability must be appropriate and effective.167 The complexity of a statutory duty and the vast range of interests that are to be protected while the duty is being pursued could be an argument against granting a right.168 In general, effectiveness of an EU legal act does not only play a role for the question as to whether an EU provisions grants a right or not169 but also in relation to the scope of the right.170 Finally, it can be of relevance if comparable provisions at the national level grant rights.171

7 Results

The notion of EU rights must not be reduced to aspects of enforceabilty. The ECJ might emphasize the judicial enforceabilty of EU rights. Yet, it also stresses their relevance outside judicial enforcement. In addition, the limitation of EU rights to judicial protection is contradicted by the fact that judicial protection without EU rights exists and that there can also be EU rights without judicial protection. Furthermore, Member States' rights and their systems of judicial protection are multi-layered to a degree that renders it impossible to denominate the distinctive features of rights. Regarding EU rights, it must be added that they are enforced by up to twenty-eight systems of judicial protection—that of the EU and those of the Member States—or even more, depending on (regional) differences within a Member State. The clear distinction between EU rights and judicial protection does not rule out the possibility of EU rights affecting their enforceabilty before EU and national courts.

By juxtaposing rights and interests, again not much can be derived about EU rights. The fact that rights and interests are determined in a (p.121) methodologically different way does not lead to any conclusions regarding their scope. That applies all the more as there are EU rights picking up the differences between the Member States by requiring alternatively a sufficient interest or an infringement of rights. This shows that rights and interests are equally appropriate to transpose the same EU right into national law.

On this basis, when dealing with EU rights it is advisable not exclusively to explore differences in, and parallels to, national systems by comparative means, for such differences or parallels reveal little about the concept of EU rights. Since it is already very difficult even to pinpoint the key attributes of every individual Member State's national concept, one can certainly not expect them to disclose too much elucidation of the concept of EU rights. This does not exclude the possibility of parallels between the concept of EU rights and elements of the national concepts of rights, but the character of EU rights must nonetheless be autonomous. This means that the EU model can—without obligation to do so—bear similarities to certain aspects of established Member State models and can unite various elements from different national concepts. Insights into the national concepts are a starting point, no more and no less than that. However, an exploration of the concept of EU rights must go beyond this and should lead to an autonomous understanding. Apart from that, the significance of the national systems in the development of a concept of EU rights is limited to them being a mechanism of implementation that is subordinated to EU law.

EU rights are a substantive notion and not purely procedural because their relevance is not limited to their judicial enforceability. This does not rule out the existence of pure procedural rights or rights of action in EU law. EU rights are also characterized by the normative approach which means that they stem from EU provisions. So they can be defined as the position of an individual that is protected by law.

The criteria for the question as to whether a non-explicit right is granted can only be delivered by EU law. However, this does not rule out the possibility that one of the criteria for the determination of EU rights can be whether the Member States grant rights through comparable or similar provisions. In a first step, regarding the question as to whether an EU provision grants a right at all, a generally protective orientation of the EU act in its entirety is sufficient. EU rights can be recognized particularly when the act is intended to support the protection of specific groups of people or people in general. The case law of the ECJ and CFI is generous.

In a second step, the scope of a right requires clarification. The generous granting of EU rights gives rise to the belief that in future this step will be (p.122) of more practical relevance. The criteria for determining the scope of a right are not well developed as yet because many EU rights are tailored to leave the details of defining that scope to the Member States. The starting point in determining who is entitled is the protected group of people. The more vaguely this group is defined, the more the entitlement depends on factual aspects of concern. In order to determine the range of what is covered in substance, the ECJ makes grammatical, systematic, and teleological deliberations. From a systematic perspective, the existence of an explicit, selective right can give reason to conclude that other provisions in the same legal act or in other legal acts on the same topic do not provide for further rights. The lex specialis rule applies in such cases.

Whether or not this leads to the assumption that an EU legal act without explicit rights tends to contain more rights than an EU legal act with explicit rights depends on the scope of non-explicit rights. This scope needs not be unlimited—especially if one aims at avoiding discrepancies with EU legal acts with explicit rights.

Notes:

(1) T Eilmansberger, ‘The Relationship Between Rights and Remedies in EC Law’ (2004) 41 CML Rev, 1202–1231.

(2) Case 33/76 Rewe [1976] ECR 1989, para 5; Case 45/76 Comet [1976] ECR 2043, para 11–18 and Case C-224/01 Köbler [2003] ECR I-10239, para 46.

(3) Case C-13/01 Safalero [2003] ECR I-8679, para 49 and Case C-482/01 Orfanopoulos and Oliveri [2004] ECR I-5257, para 80.

(4) Case C-131/88 Commission v Germany [1991] ECR I-825, para 6; Case C-365/93 Commission v Greece [1995] ECR I-499, para 9 and Case C-478/99 Commission v Sweden [2002] ECR I-4147, para 18.

(5) Eg, A Ward, Judicial Review and the Rights of Private Parties in EC Law (Oxford: Oxford University Press, 2000), 202ff, 288ff, 332ff. Limited to the national systems of judicial protection eg Eilmansberger, see n 1 above, 1199; A Epiney, ‘Primär- und Sekundärrechtsschutz im öffentlichen Recht’ (2002) 61 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 396, n 162.

(162) ibid, para 45.

(6) Case C-263/02 P Jégo-Quéré [2004] ECR I-3425, para 29 (emphasis added) and Case C-50/00 P UPA [2002] ECR I-6677, para 39.

(7) cf Case C-263/02 P Jégo-Quéré [2004] ECR I-3425, paras 33ff, 36; Case C-50/00 P UPA [2002] ECR I-6677, paras 40, 44 and cf de lege lata and de lege ferenda C Koch, ‘Locus standi of Private Applicants under the EU Constitution: Preserving Gaps in the Protection of Individuals' Right to an Effective Remedy’ (2005) 30 ELR, 511ff.

(8) See s 3.3 below.

(9) Case C-224/01 Köbler [2003] ECR I-10239, para 36.

(10) Case C-76/01 P Eurocoton [2003] ECR I-10091, para 97 and Case C-234/02 P Ombudsman v Lamberts [2004] ECR I-2803, para 49.

(11) Case 238/78 Ireks-Arkady [1979] ECR 2955, para 9.

(12) Case C-194/01 Commission v Austria [2004] ECR I-4579, para 39 (emphasis added) and Case C-296/01 Commission v France [2003] ECR I-13909, paras 54ff.

(13) Case T-180/01 Euroagri [2004] ECR II-369, para 41.

(14) Case T-124/02 The Sunrider [2004] ECR II-1149, para 73.

(15) cf Case C-6/90 Francovich [1991] ECR I-5357, para 12.

(16) S Prechal, ‘Direct Effect Reconsidered, Redefined and Rejected’ in JM Prinssen and A Schrauwen (eds), Direct Effect: Rethinking a Classic of EC Legal Doctrine (Groningen: Europa Law Publishing, 2002) 20; M Ruffert, Subjektive Rechte im Umweltrecht der EG (Heidelberg: Decker, 1996) 10, 12, 29ff, 89ff; S Prechal, Directives in EC Law (2nd edn, Oxford: Oxford University Press, 2005) 97 and J Coppel, ‘Rights, Duties and the End of Marshall’ (1994) 57 MLR, 864.

(17) Case C-435/97 WWF [1999] ECR I-5613, paras 69–71.

(18) Eg, OVG Lüneburg, Case 8 LA 206/03, Neue Zeitschrift für Verwaltungsrecht-Rechtsprechungs-Report 2004, 408; OVG Münster, Case 10 B 788/02, Neue Zeitschrift für Verwaltungsrecht 2003, 632ff.

(19) cf this volume, M Graziadei, ch 4.

(20) H Coing, Europäisches Privatrecht 1800 bis 1914, Vol 2 (München: Beck, 1989) 25, 270.

(21) J Hruschka, ‘Kants Rechtsphilosophie als Philosophie des subjektiven Rechts’ (2004) Juristenzeitung, 1085ff.

(22) Coing, see n 20 above, 43ff; A von Tuhr, Allgemeiner Teil des Deutschen Bürgerlichen Rechts, Vol 1 (Berlin: Duncker & Humblot, 1957) 53.

(23) S Kadelbach, Allgemeines Verwaltungsrecht unter europäischem Einfluß (Tübingen: Mohr, 1999) 368.

(24) Von Tuhr, see n 22 above, 54, n 2; H Coing, Zur Geschichte des Privatrechtssystems (Frankfurt am Main: Klostermann, 1962) 33–36.

(25) HD Jarass and S Beljin, Casebook Grundlagen des EG-Rechts (Baden-Baden: Nomos, 2003) 72.

(26) Coing, see n 24 above, 36ff, 50ff.

(27) M Ruffert, ‘Rights and Remedies in European Community Law: A Comparative View’ (1997) 34 CML Rev, 332ff.

(28) Prechal, see n 16 above, 106, n 92.

(29) See s 3.2 below.

(30) Case C-224/01 Köbler [2003] ECR I-10239, para 33.

(31) Eilmansberger, see n 1 above, 1199 and Ruffert, see n 27 above, 332.

(32) See the Opinion of Advocate General Cosmas in Case C-261/95 Palmisani [1997] ECR I-4025, para 16.

(33) Eg, M Reiling, Zu individuellen Rechten im deutschen und im Gemeinschaftsrecht (Berlin: Duncker & Humblot, 2004) 121 and Kadelbach, see n 23 above, 382.

(34) Something different applies for mere rights of action.

(35) For a complete overview see Kadelbach, see n 23 above, 379–381 and Reiling, see n 33 above, 419–421.

(36) H Maurer, Allgemeines Verwaltungsrecht (16th edn, München: Beck, 2006) para 8: 7.

(37) The administrative courts apply s 42 (2) VwGO to all types of legal claims.

(38) BVerwG, Case 4 C 5/95, Deutsches Verwaltungsblatt 1996, 681 and FO Kopp and WR Schenke, VwGO (14th edn, München: Beck, 2005) para 42: 95.

(39) R Wahl and P Schütz in FK Schoch, E Schmidt-Aßmann and R Pietzner (eds), VwGO (München: Beck, 2006) para 42(2): 42, 228.

(40) F Hufen, Verwaltungsprozessrecht (6th edn, München: Beck, 2005) para 14: 75ff.

(41) H Sodan in H Sodan and J Ziekow (eds), VwGO (2nd edn, Baden-Baden: Nomos, 2006) para 42: 384ff.

(42) Epiney, see n 5 above, 373.

(43) J Gerkrath in Jarass and Beljin, see n 25 above, 185; Epiney, see n 5 above, 372 and CD Classen, Europäisiserung der Verwaltungsgerichtsbarkeit (Tübingen: Mohr, 1996) 59.

(44) Reiling, see n 33 above, 49.

(45) cf F Lyall, An Introduction to British Law (2nd edn, Baden-Baden: Nomos, 2002) 165ff; Epiney, see n 5 above, 382.

(46) In detail MT Molan, Constitutional Law: The Machinery of Government (4th edn, London: Old Bailey Press, 2003) 302ff; B Thompson, Textbook on Constitutional & Administrative Law (3rd edn, London: Blackstone, 1997) 439 and T Ingman, The English Legal Process (10th edn, Oxford: Oxford University Press, 2004) 499.

(47) Epiney, see n 5 above, 380ff; Kadelbach, see n 23 above, 381, 385; Thompson, see n 46 above, 440ff; Ingman, see n 46 above, 499ff, and PP Craig, Administrative Law (3rd edn, London: Sweet & Maxwell, 1994) 489ff.

(48) Epiney, see n 5 above, 411 and Wahl and Schütz, see n 39 above, para 42(2): 10.

(49) Epiney, see n 5 above, 384, 421; Reiling, see n 33 above, 49, 531 and H Schulze-Fielitz in H Dreier (ed), GG-Kommentar, Vol 1 (2nd edn, Tübingen: Mohr, 2004) Art 19(4), para 34.

(50) Coing, see n 20 above, 274ff; K Larenz and M Wolf, Allgemeiner Teil des Bürgerlichen Rechts (9th edn, München: Beck, 2004) para 18: 68; M Ruffert, ‘Dogmatik und Praxis des subjektiv-öffentlichen Rechts unter dem Einfluß des Gemeinschaftsrechts’ (1998) Deutsches Verwaltungsblatt, 69.

(51) T Eilmansberger, Rechtsfolgen und subjektives Recht im Gemeinschaftsrecht (Baden-Baden: Nomos, 1997) 63, 64, 66. On EU rights T Heukels and J Tib, ‘Towards Homogeneity in the Field of Legal Remedies: Convergence and Divergence’ in P Beaumont, C Lyons, and N Walker (eds), Convergence & Divergence in European Public Law (Oxford: Hart, 2002) 113.

(52) PS James, Introduction to English Law (12th edn, London: Butterworths, 1989) 63.

(53) Eilmansberger, see n 51 above, 63 and also 60–62.

(54) Judicial protection in British public law has significantly grown; see A Epiney and K Sollberger, Zugang zu Gerichten und gerichtliche Kontrolle im Umweltrecht (Berlin: Schmidt, 2002) 161.

(55) On the extensive case law in the sphere of neighbour protection in building law, Kopp and Schenke, see n 38 above, para 42: 98.

(56) On Schutznormtheorie, see s 4.1 below.

(57) Kadelbach, see n 23 above, 378.

(58) cf M Burgi, in HW Rengeling, A Middeke, and M Gellermann, Handbuch des Rechtsschutzes in der EU (2nd edn, München: Beck, 2003) para 7: 55.

(59) See s 4.3 below.

(60) U Ehricke in R Streinz (ed), EUV/EGV (München: Beck, 2003) Art 230 EC, para 78 and Burgi, see n 58 above, para 7: 100.

(61) For refernces see n 6 above.

(62) As will be discussed below in this section.

(63) Declining L Fichtner, Rechte des Einzelnen im Recht der Europäischen Gemeinschaft (Köln: Heymann, 2005) 83, 181.

(64) For further elaboration Kadelbach, see n 23 above, 415.

(65) cf C Walter, ‘Internationalisierung des deutschen und europäischen Verwaltungsverfahrens- und Verwaltungsprozeßrechts—am Beispiel der Aarhus-Konvention’ (2005) Europarecht, 328–330.

(66) Case T-213/02 SNF [2004] ECR II-3047, paras 68ff.

(67) Case C-309/89 Codorniu [1994] ECR I-1853, para 21 and Case T-370/02 Alpenhaim-Camembert-Werk [2004] ECR II-2097, paras 65ff.

(68) Case T-370/02 Alpenhaim-Camembert-Werk [2004] ECR II-2097, para 67 and Case T-27/02 Kronofrance [2004] ECR II-4177, para 34.

(69) cf Jarass and Beljin, see n 25 above, 205–207; Fichtner, see n 62 above, 289–301 and M Ruffert in M Ruffert and C Calliess (eds), EUV/EGV (3rd edn, München: Beck, 2007) Art 249 EC, para 69; cf also this volume, R Alonso, L Moral, and C Plaza, ch 6.

(70) Eg, Case C-106/98 P Comité d'entreprise de la Société française de production [2000] ECR I-3659, paras 39–41 and Case T-158/00 ARD [2003] ECR II-3825, paras 62ff.

(71) Case C-263/02 P Jégo-Quéré [2004] ECR I-3425, paras 37ff.

(72) On the different ways in which EU rights can reach the individual, see s 5.3 below.

(73) Case C-13/01 Safalero [2003] ECR I-8679, para 50 and Case C-87/90 Verholen [1991] ECR I-3757, para 24.

(74) See s 3.2 above; cf also, this volume R Alonso, L Moral, and C Plaza, ch 6.

(75) Parliament and Council Directive (EC) 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment [2003] OJ L156/17 inserted Art 10(a) in Council Directive (EEC) 85/337 on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 and Art 15(a) in Directive 96/61/EC, concerning integrated pollution prevention and control [1996] OJ L257/26. A comparable approach can be found in Art 12(1) Parliament and Coucil Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56 with the supplementary option of whether the person is affected.

(76) Maurer, see n 36 above, para 8: 2, 5, 8.

(77) HD Jarass in HD Jarass and B Pieroth, Grundgesetzkommentar (8th edn, München: Beck, 2006) Art 19, para 37.

(78) Wahl and Schütz, see n 39 above, para 42(2): 50.

(79) Reiling, see n 33 above, 155.

(80) U Hübner and V Constantinesco, Einführung in das französische Recht (4th edn, München: Beck, 2001) 115.

(81) Classen, see n 43 above, 60.

(82) Epiney, see n 5 above, 385 and Classen, see n 43 above, 83.

(83) D Ehlers, Die Europäisierung des Verwaltungsprozeßrechts (Köln: Heymann, 1999) 53.

(84) Reiling, see n 33 above, 173–179 and Kadelbach, see n 23 above, 375ff.

(85) For a closer look cf Fichtner, see n 62 above, 203.

(86) C Calliess, ‘Feinstaub im Rechtsschutz deutscher Verwaltungsgerichte’ (2006) Neue Zeitschrift für Verwaltungsrecht, 2ff; Fichtner, see n 62 above, 124, 202ff and Classen, see n 43 above, 59ff, 82.

(87) Kadelbach, see n 23 above, 377ff.

(88) Eg, Epiney, see n 5 above, 365–386; Classen, see n 43 above, 40–52, 59–65; and regarding environmental law, Epiney and Sollberger, see n 54 above.

(89) Epiney, see n 5 above, 364, 385ff and cf also Prechal, see n 16 above, 112.

(90) Kadelbach, see n 23 above, 369.

(91) cf Classen, see n 43 above, 78 and Reiling, see n 33 above, 302.

(92) cf the example discussed in s 4.3 above.

(93) Also Reiling, see n 33 above, 311.

(94) cf Case C-37/98 Savas [2000] ECR I-2927, paras 39, 46, 51ff and Joined Cases C-178/94, C-179/94, C-188/94, C-189/94, and C-190/94 Dillenkofer [1996] ECR I-4845, paras 34–36.

(95) cf Joined Cases C-178/94, C-179/94, C-188/94, C-189/94, and C-190/94 Dillenkofer [1996] ECR I-4845, paras 37, 39 and Jarass and Beljin, see n 25 above, 179.

(96) See s 6.3 below.

(97) See s 6.3 below.

(98) Prechal, see n 16 above, 96.

(99) See s 3.3 above.

(100) The terms, direct applicability’ and, direct effect’ are used interchangeably within this text.

(101) Case C-37/98 Savas [2000] ECR I-2927, para 38 and Case 8/81 Becker [1982] ECR 53, para 25.

(102) cf Ruffert, see n 68 above, Art 249 EC, paras 66, 108. See for details the next subheading below.

(103) Prechal, see n 16 above, 96. Also Ruffert, see n 27 above, 322.

(104) For details cf HD Jarass and S Beljin, ‘Die Bedeutung von Vorrang und Durchführung des EG-Rechts für die nationale Rechtsetzung und Rechtsanwendung’ (2004) Neue Zeitschrift für Verwaltungsrecht, 8ff.

(105) Eg, Case C-354/98 Commission v France [1999] ECR I-4927, para 11 and Jarass and Beljin, see n 25 above, 64.

(106) cf HD Jarass and S Beljin, ‘Grenzen der Privatbelastung durch unmittelbar wirkende Richtlinien’ (2004) Europarecht, 718.

(107) Case C-6/90 Francovich [1991] ECR I-5357, paras 26ff.

(108) Eg, Ruffert, see n 50 above, 71.

(109) cf the Opinion of Advocate General Kokott in Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee [2004] ECR I-7405, para 138.

(110) Joined Cases C-46/93 and C-48/93 Brasserie and Factortame [1996] ECR I-1029, para 54 and Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paras 35, 30–32.

(111) Case C-431/92 Commission v Germany [1995] ECR I-2189, para 26.

(112) Jarass and Beljin, see n 25 above, 166.

(113) cf HD Jarass and S Beljin, ‘Unmittelbare Anwendung des EG-Rechts und EG-rechtskonforme Auslegung’ (2003) Juristenzeitung, 771 and Ruffert, see n 68 above, Art 249 EC, paras 94–97.

(114) Ruffert, see n 68 above, Art 249 EC, para 101.

(115) Case C-222/02 Peter Paul [2004] ECR I-9425, paras 27, 41.

(116) Eilmansberger, see n 51 above, 68–70 and HG Fischer, Europarecht (3rd edn, München: Beck, 2001) para 6: 38, 40.

(117) Parliament and Council Directive (EC) 94/19 on deposit-guarantee schemes [1994] OJ L135/5. On the right stipulated in this provision see Case 222/02 Peter Paul [2004] ECR I-9425, paras 26ff.

(118) Case 26/62 Van Gend & Loos [1963] ECR 1.

(119) Case C-443/98 Unilever [2000] ECR I-7535, para 51.

(120) cf Jarass and Beljin, see n 25 above, 178ff.

(121) Case C-222/02 Peter Paul [2004] ECR I-9425, para 44.

(122) Case C-282/90 Vreugdenhil [1992] ECR I-1937, para 20 and Joined Cases T-64/01 and T-65/01 Afrikanische Frucht-Compagnie [2004] ECR II-521, para 116.

(123) Case C-380/87 Enichem Base [1989] ECR 2491, paras 19–24 and Case C-194/94 CIA [1996] ECR I-2201, para 49.

(124) See s 6.3 below.

(125) cf Jarass and Beljin, see n 25 above, 177ff.

(126) See also Ruffert, see n 68 above, Art 249 EC, paras 64, 68 and C Calliess, ‘Kohärenz und Konvergenz beim europäischen Individualrechtsschutz’ (2002) Neue Juristische Wochenschrift, 3578ff.

(127) Case C-361/88 Commission v Germany [1991] ECR I-2567, para 16.

(128) Case C-59/89 Commission v Germany [1991] ECR I-2607, para 19.

(129) Case C-58/89 Commission v Germany [1991] ECR I-4983, para 14.

(130) Case C-433/93 Commission v Germany [1995] ECR I-2303, para 19.

(131) Joined Cases C-178/94, C-179/94, C-188/94, C-189/94, and C-190/94 Dillenkofer [1996] ECR I-4845, paras 35ff.

(132) Case C-131/88 Commission v Germany [1991] ECR I-825, para 7.

(133) Case C-222/02 Peter Paul [2004] ECR I-9425, paras 26, 38.

(134) Case C-194/94 CIA [1996] ECR I-2201, paras 40ff, 48–50.

(135) cf Prechal, see n 16 above, 115–118.

(136) Eg, Council Directive (EEC) 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations [1983] OJ L109/8.

(137) Case C-194/94 CIA [1996] ECR I-2201.

(138) See for details s 6.3 below.

(139) J Masing, Die Mobilisierung des Bürgers für die Durchsetzung des Rechts (Berlin: Duncker & Humblot, 1997); A von Bogdandy in E Grabitz and M Hilf (eds), Recht der EU (München: Beck, 2004) Art 288 EC, para 16 and for further references see Fichtner, see n 62 above, 185.

(140) Fichtner, see n 62 above, 219 and Reiling, see n 33 above, 365.

(141) Fichtner, see n 62 above, 18, 21 and Reiling, see n 33 above, 121, 148, 516.

(142) See s 6.3 below.

(143) Eg, Case C-194/94 CIA [1996] ECR I-2201, para 48.

(144) Case C-253/00 Muños and Superior Fruiticola [2002] ECR I-7289, para 31.

(145) Case C-222/02 Peter Paul [2004] ECR I-9425, para 40.

(146) Case C-194/94 CIA [1996] ECR I-2201, paras 40ff, 48–50; similar Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paras 18ff and Case C-222/02 Peter Paul [2004] ECR I-9425, paras 25ff.

(147) Reiling, see n 33 above, 169.

(148) Ruffert, see n 68 above, Art 249 EC, para 64.

(149) Case C-222/02 Peter Paul [2004] ECR I-9425, paras 25ff, 33ff.

(150) Eilmansberger, see n 1 above, 1245ff.

(151) Eg, Case C-303/98 Simap [2000] ECR I-7963, para 68 and Case C-283/94 Denkavit International BV [1996] ECR I-5063, para 39.

(152) Case 14/83 Von Colson and Kamann [1984] ECR 1891, para 18, 23 and Case C-180/95 Draehmpaehl [1997] ECR I-2195, para 24ff.

(153) Jarass and Beljin, see n 25 above, 181 and Ruffert, see n 68 above, Art 249 EC, para 69.

(154) Art 6(4) Parliament and Council Directive (EC) 2001/42 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30.

(155) Art 2(f) Parliament and Council Directive (EC) 2002/30 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports [2002] OJ L85/40.

(156) Case C-87/90 Verholen [1991] ECR I-3757, paras 23, 26 and Case C-343/92 Roks [1994] ECR I-571, para 42.

(157) Case C-226/97 Lemmens [1998] ECR I-3711, paras 32, 35.

(158) ibid, paras 36ff.

(159) Case C-222/02 Peter Paul [2004] ECR I-9425, para 31.

(160) ibid, paras 27–31.

(161) ibid, paras 29ff.

(163) Case 380/87 Enichem Base [1989] ECR 2491, paras 19–23.

(164) Case C-222/02 Peter Paul [2004] ECR I-9425, paras 42ff.

(165) Case 14/83 Von Colson and Kamann [1984] ECR 1891, para 18 and Case C-271/91 Marshall (Compare Ch 16 n 107) [1993] ECR I-4367, para 23.

(166) Case 14/83 V on Colson and Kamann [1984] ECR 1891, para 23 and Case C-180/95 Draehmpaehl [1997] ECR I-2195, para 25.

(167) Case C-373/95 Maso [1997] ECR I-4051, paras 36, 41 and Joined Cases C-46/93 and C-48/93 Brasserie and Factortame [1996] ECR I-1029, para 82.

(168) Case C-222/02 Peter Paul [2004] ECR I-9425, para 44.

(169) See s 6.2 above.

(170) cf Case C-174/02 Streekgewest Westelijk Noord-Brabant [2005] ECR I-85, paras 14–21.

(171) Case C-222/02 Peter Paul [2004] ECR I-9425, para 44.