99
Second working session — The impact
has become rather rare. In most cases, national courts, when asking questions
of interpretation, already know whether the relevant norm of EU law has
direct effect; or at least they assume that they know, and the Court of Justice is
usually not going to contradict them. One may note, in this regard, that when
the national court does
not
pose a separate direct effect question, the Court
tends to ‘forget’ to assess the EU law norm’s direct effect and immediately
proceeds to the question of compatibility of national law with EU law. A good
example of such a short-circuiting of the direct effect question is provided by
the
Michaeler
judgment. There, the Court was requested to interpret Clause 5
of the Directive on part-time work which states that ‘Member States, following
consultations with the social partners in accordance with national law or
practice, should identify and review obstacles of a legal or administrative
nature which may limit the opportunities for part-time work and, where
appropriate, eliminate them’. The Court did not discuss the clear and precise
nature of this provision (which seems rather doubtful) but immediately went
on to conclude that an Italian regulation which required employers to notify
all part-time employment contracts to the labour inspection was contrary to
Clause 5 and must be set aside by the national court (
14
). So, the compatibility
question was decided without raising or discussing the direct effect question.
Whereas questions about the direct effect of an EU law norm have become
rare, we have seen an increase of a related category of questions, namely ques-
tions about the nature of the judicial remedies that should be available in na-
tional law for the application of particular norms of EU law. National courts
have a number of duties based on the principle of effective judicial protection
of EU rights, and there has been a steady stream of preliminary references in
which national courts ask the Court of Justice about particular implications of
those duties. A well-known set of cases are those, starting with
Océano Grupo
Editorial,
in which the CJEU has defined a duty for national courts to identify
unfair contract terms (in the sense of the relevant EU directive) of their own
motion (
15
). In a recent follow-up of this case law, the CJEU was asked by a
Hungarian court what further steps a national court has to take once it had
identified such an unfair contract term, namely whether and how it had to
inform the parties about this finding (
16
); and it was asked by a Spanish court
(
14
) Joined Cases C-55/07 and C-56/07,
Michaeler and Others
[2008] ECR I-3135.
(
15
) Among the rich literature on this subject, see V. Trstenjak, ‘Procedural Aspects of European
Consumer Protection Law and the Case Law of the CJEU from the Perspective of Insurance
Law’,
European Review of Private Law
(2013) 451.
(
16
) Case C-472/11,
Banif Plus Bank,
judgment of 21 February 2013.
