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A Union of Effective Judicial Protection: Addressing a Multi-level Challenge through the Lens of Article 47 CFREU
Abstract
This article explores the evolving EU standard of effective judicial protection under Article 47 of the Charter of Fundamental
Rights of the European Union (CFREU) and describes it as being composite, coherent, and autonomous. The standard is composite
in that the different levels of EU law adjudication complement each other by the protection they respectively grant. The standard
must be coherent given that the fundamental right applied to and at the different levels of EU law adjudication is one and
the same. Finally, the aspiration of an ever closer and deeper Union appears to call for an EU autonomous definition of what
exactly constitutes effective legal protection in a shared legal order based on loyal cooperation and mutual trust. With the
Court of Justice asserting competence to define the binding EU standard of protection, it may be expected to further clarify
what constitutes the essence of effective judicial protection.
... The two reflections on the principle of effective judicial protection currently contained in the primary law of the Union have been the subject of considerable jurisprudence of the Court in recent years (also determined by the piecemeal state of written EU procedural law), generating an equally abundant literature. Part of the doctrine (particularly some judges of the Court, as part of their extra-judicial activity) considers that through the interaction of Articles 47 of the Charter and paragraph 2 of the Article 19(1) TEU "a Union of effective judicial protection emerges", this being characterized "by a unique, common and autonomous standard of protection", which applies both at national and EU level and which is "infuses" into the legal orders of Member States through the interpretative jurisprudence of the CJEU on the requirements of effective judicial protection and the effectiveness of EU law [7]. As such, the EU system of judicial protection is coherent and completes [8]. ...
... It appears quite evident from the case -law of the Court that for a more effective judicial protection of individuals responsibility is transferred from the EU Court of Justice to the domestics courts. In this context it could be framed and the point of view of Judge Safjan, who believes that "the recognition and enforcement of an individual right under EU law to have access to the preliminary ruling procedure could be the cornerstone of our Union of effective judicial protection" [7]. ...
The principle of effective judicial protection, established by jurisprudence as one of the constitutive elements of a rule of law at the level of the European Union, is now enshrined in the primary law of the Union both as an obligation for the Member States (Article 19(1) paragraph 2 of the Treaty of the European Union), and as a right guaranteed to individuals (Article 47 of the Charter of Fundamental Rights). The article will mainly analyze the obligation for Member States to ”provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”, trying to identify, on the basis of the case-law of the Court of Justice of the European Union, the content of this obligation and its main implications in the internal legal systems of the Member States. The analysis of the various meanings of effective judicial protection requires the analysis of its relationship with other principles of Union law, as well as with the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights. Will be highlighted the autonomous dimension recognized by the case-law to the obligation laid down in Article 19(1) paragraph 2 TEU to guarantee the functioning of the decentralized system for the protection of EU rights via the preliminary reference procedure and it is assessed that it may impose certain obligations on Member States even if they do not implement or act within the scope of EU law in the strict sense.
... A prominent example is the preliminary references to the European Court of Justice. In more than 50% of the cases, the claimants, respectively, their lawyers, use the Charter of Fundamental Rights to strengthen their argument (Safjan & Düsterhaus, 2014). So far, the CJEU is somewhat reluctant to extend fundamental rights to consumer protection issues, perhaps except for Article 47 of the Charter. ...
In Western democracies, consumer law arose as consumer protection law to protect the weaker parties against manufacturers’ market power, which was disconnected from the parallel rise of environmental protection and environmental law. The consumption society of the 1960s and 1970s, a widespread political conviction in Western democracies, called for regulatory intervention. The beginning decline of welfare state thinking in the late 1970s in Europe and the US allowed the EU to step in to instrumentalize consumer policy and law for legitimating the completion of the Internal Market, hammered down in the 1985 Single European Act. Connecting consumer policy and law to market-building policy enabled the EU to develop a seemingly consistent body of consumer law over the last four decades, setting standards that influenced consumer law worldwide. This is common knowledge. Today, the dark side of EU consumer law and policy dependency from the perspective of market-building purposes can be observed. The dramatic change from the industrial to the digital economy and society led to the rise of a new body of law—EU Digital Policy Legislation, which is about to overrule and undermine the EU consumer law acquis. The process is further enhanced through the politically promoted greening of the economy and society, which puts the tension between consumer law and policy and environmental law and policy into the limelight. The question is what remains for and of consumer law and polity in a digital and green economy and society.
... 93 A key element in the ongoing fight for the rule of law is, at the EU-level, the principle of the independence of the judiciary. This is derived from Art. 19(1) TEU 84 Safjan and Düsterhaus (2014). 85 Editorial comment (2019), p. 3; Dawson (2013), p. 371. ...
The goal of this chapter is to contribute to the growing Article 7 TEU literature by showcasing the strong and weak points of this provision in the context of the on-going rule of law backsliding in Hungary and Poland threatening the very fabric of EU constitutionalism. This is done by presenting the general context of the institutional reactions to the so-called ‘reforms’ in Poland and Hungary aimed to hijack the state machinery by the political parties in charge; introducing the background of Article 7 TEU and the hopes of the drafters the provision was endowed with; to move on to the analysis of its scope and all the procedures made available through this instrument as well as the key procedural rules in place. The conclusion restates the necessity of putting our hopes in alternative instruments of combatting rule of law backsliding, outlining three possible scenarios of this, which are not (necessarily) connected to Article 7 as such.
... Furthermore, Article 47 of the Charter, which guarantees effective judicial protection, may reach the Luxembourg courtrooms. 130 For the latter, Article 45 of the Charter is a questionable provision the Court of Justice is going to be troubled with. Because the free movement of persons is thoroughly regulated in the TFEU and in EU secondary legislation, the value added by this provision is dubious, to say the least. ...
The Court of Justice of the European Union (the Court of Justice) decided to strike again. On 18 December 2014, for the second time in history, the Court rejected the European Union's (EU) accession to the European Convention on Human Rights (ECHR). Although the judges do not seem to negate the idea as a matter of principle, they made the renegotiation of the Draft Accession Treaty very difficult, to say the least. The message sent by the Court of Justice to the Member States may have surprised some, but for many it was a rather expected development. The Court of Justice has always been a fierce defender and promoter of the autonomy of EU law. For that purpose, the procedure based on Article 218 (11) TFEU has been, among the others, the Court's greatest weapon. Over the years a clear pattern has emerged: Whenever there is a threat to the autonomy and to the Court's exclusive jurisdiction, the judges will not shy away from taking bold decisions going against the will of the Member States. For obvious reasons, the raison d'être behind the Court's decision is kept secret behind the doors of the deliberation rooms at Kirchberg in Luxembourg. Still, it cannot be denied that Opinion 2/13 shows that the Court of Justice will not give up its resistance to the ECHR accession so easily. In 1996, in Opinion 2/94, the Court held that the European Community, as the law stood then, had no competence to accede to ECHR. Now that Article 6(2) TEU provides for an obligation to accede, subject to conditions laid down in Protocol No 8 to the Founding Treaties, the Court has opted for strict interpretation of the latter, which, ultimately turns the caveats laid down therein into locks. It is clear that these caveats turned into locks are something that the judges will hold on to in the future and, by the same token, they will happily pursue interpretation that is very different from what the Member States intended when negotiating the Treaty of Lisbon and the Draft Accession Agreement.
... The Court adjudicates issues relating to effective judicial protection before national courts on a regular basis. 95 The Court's strong mandate to concretise the standards of effective judicial protection is strongly supported, in my view, by teleological arguments. Enforcement of EU law has always been based on the vigilance of private parties willing to invoke their EU rights in domestic courts, oftentimes against the individual policies of Member States. ...
The LM case offered first proof of the expected disruptions to judicial cooperation between EU Member States and Poland due to its controversial judicial reforms. It concerned a European Arrest Warrant issued by a Polish court. In the judgment, the Court of Justice confirmed that the risk of an unfair trial in a Member State issuing a European Arrest Warrant may result in a non-surrender of the person sought. The Court did not however autonomously assess the state of judicial independence in Poland. Instead, it delegated this task to domestic courts executing Polish judicial decisions. Moreover, the Court held that cogent evidence of systemic breaches to judicial independence in a Member State issuing an European Arrest Warrant does not provide sufficient grounds to refuse its execution. The executing court must also carry out a concrete assessment of the individual situation of the person sought by the European Arrest Warrant. The executing court must determine whether that person runs the risk of undergoing an unfair trial in the issuing Member State due to personal circumstances.
This commentary focuses on the potential impact of EU law and EU institutions on domestic judicial independence in the aftermath of the LM judgment. Firstly, it analyses the considerable difficulties entailed by the ‘abstract’ prong of the test prescribed by the Court. Domestic courts may have difficulty assessing foreign laws that affect the functioning of their counterparts in other Member States, which rather spoke in favour of a centralised review of domestic judicial independence by the Court of Justice. Secondly, the commentary argues that when courts are asked to rule on the execution of Polish judicial decisions, they should focus, within the abstract prong, on those elements of the Polish reforms that have an impact on rank-and-file judges, i.e. the new legal regime of disciplinary proceedings. Thirdly, the commentary argues that the Court’s approach in LM to its own powers and responsibility contrasts with that in Associação Sindical dos Juízes Portugueses. In the latter case, settled a few months earlier, the Court had firmly asserted its mandate stemming from Article 19(1), para. 2, TEU to autonomously scrutinise domestic measures affecting judicial independence. In LM, on the contrary, the Court delegated the assessment of the Polish system entirely to domestic courts executing European Arrest Warrants. Moreover, ignoring the suggestion of the referring court, the Court upheld the second, ‘concrete’ prong of the double test transplanted from Aranyosi and Căldăraru, which may render excessively difficult the review of the risk of unfair trials in issuing Member States. The Court’s reasoning suggests that it sought to avoid an automatic ban on surrenders to Poland so as not to pre-empt a decision by the European Council under Article 7(2) TEU. The latter depends, however, on political factors and may actually never be reached. As a consequence, domestic judicial independence may not receive a level of protection under EU law as strong as one might have expected in the aftermath of Associação Sindical dos Juízes Portugueses.
http://hdl.handle.net/1814/60447
... 83 Some authors have even called for a further individualisation of the preliminary reference, also in the light of art.47 of the Charter. 84 Much has already been written about the deficiencies of the procedure, so there are only two points which will be addressed in the remainder of this article. *E.L. Rev. 57 85 A first problem relates to the actual application of the procedure. ...
The European Court of Human Rights (ECtHR) considered the failure of the highest Italian court to provide a statement of reasons for its refusal to request a preliminary ruling from the European Court of Justice (ECJ) to constitute a violation of article 6 ECHR in Dhahbi and Schipani. These judgments have been criticised for changing the nature of the preliminary reference procedure from a mechanism of inter-judicial co-operation to a mechanism safeguarding the individual right to a fair trial. This article argues that these fears are somewhat exaggerated since the ECJ and national courts have also scrutinised the preliminary reference procedure under an individual fundamental rights-based approach. What is more problematic, however, is the inconsistent approach of the ECtHR. The ECJ should therefore provide guidance to national courts what their obligations are if they refuse to refer. This all the more given that the preliminary reference procedure shows significant shortcomings from the point of view of effective judicial protection.
The work argues that the EU is legally responsible for fundamental rights violations in the EU hotspots. In a doctrinally precise, theoretically ambitious and empirically sound manner, it begins with an overview of the EU’s role in the European asylum administration since 2015. It then presents the integrated EU hotspot administration and its systemic deficits. On this basis, it establishes the EU’s legal responsibility under EU liability law, discussing the central questions of attribution and causation in great detail. The work is of interest to all those who deal with the European asylum system in an academic, journalistic, legal, administrative or political capacity.
Fundamental rights have been a significant component of European Union law for decades and an integral normative element of primary law since the entry into force of the Lisbon Treaty together with the Charter of Fundamental Rights (hereinafter the “CFR”) (2009). However, the application of the CFR is strictly and formally delineated, in a way which, broadly speaking, excludes the independent application of the guarantees contained in the Charter sets out a number of conditions. These conditions and limitations define the scope of the ECJ’s competence, preventing it from being characterized as a human rights court, unlike the European Court of Human Rights (hereinafter the “ECHR”). Nevertheless, it is evident that fundamental rights play an increasingly significant role in the case law of the ECJ, and the EU’s protection system in this area makes good use of its autonomy. This approach ensures that fundamental rights serve as vital tools of interpreting EU norms, allowing to decode the content and meaning from them that best correspond to the EU axiology, while also ensuring the implementation of the principle of effectiveness. Thus, fundamental rights can be regarded as the source of what is sometimes referred to as their ‘radiation’ throughout the entire EU legal system. In the debate on the future of the CFR, we must not lose sight of the fact that the European Union is first and foremost an organization serving citizens and that the effectiveness of the protection of fundamental rights is crucial in shaping pro-European attitudes in our societies.
A wind of change is blowing through the European judicial landscape. During the past decade, the European Union (EU) judiciary has undergone its biggest institutional overhaul in generations, the rise of authoritarian populism in Central and Eastern Europe has prompted a Rule of Law crisis, several supreme and constitutional courts challenged the supremacy of EU law, while the Court of Justice re-articulated the scope of the duty to refer under Article 267 TFEU and, for the first time, found that domestic last-instance courts breaching it triggered state liability. This Article argues that these and similar developments, once looked at together, suggest that something fundamental has shifted in the EU’s judicial architecture. A new form of judicial federalism has emerged, which departs from the traditional way in which relations between EU and Member State courts used to be structured. Although this new federalism is multifaceted and is marked by both centripetal and centrifugal forces, its distinguishing feature is a stronger centralisation, which manifests itself in a considerably expanded federal judiciary, a greater emphasis on hierarchy, a more careful use of European judicial resources, as well as tighter supervision of national procedures and court structures.
The general principle of effective judicial protection grants the right to obtain a remedy in the fields covered by EU law and is an essential component of the EU enforcement toolkit. Recent jurisprudential developments have complexified the role of this principle, by transforming it into a vehicle for the enforcement of the rule of law in the EU. As a result, the principle of effective judicial protection appears as the factotum of the EU legal system: it acts as a fundamental right and is an expression of the EU rule of law; furthermore, it is a legal basis to influence national fundamental rights and to impose procedural obligations on the EU institutions. This overview Article offers a novel account of the evolution of this principle in the EU legal landscape. First, it reflects on the trajectory of this evolving principle in the EU case law and in the academic discourse. Second, it identifies conceptual issues surrounding the role of effective judicial protection in the EU legal order in the light of the latest jurisprudential developments.
EU Criminal Justice and the Challenges of Diversity examines how questions of cultural difference between Member States' legal traditions are being constructed, addressed, and resolved in the development of the European Area of Freedom, Security, and Justice. The volume brings together leading socio-legal scholars and criminal justice professors from eight European countries and combines analytical approaches rooted in the social sciences with more normative approaches based on legal doctrine. It examines the construction of a common European criminal policy, explores some of the paths that may be followed by the EU in seeking to cope with national diversity in the field of criminal justice, and finally provides some insights into various forms of legal and cultural resistance offered by Member States to the European harmonization process. In so doing, it bridges disciplinary boundaries between law and social sciences and draws in a range of perspectives from around Europe.
International, European and in Italy and France - constitutional law take into account the vulnerability that characterises asylum seekers, by providing substantial disciplines to grant them some form of political-humanitarian protection when they fall under the conditions normatively provided for those purposes The thesis aims toverify whether this weakness is considered by the procedural disciplines as well. Indeed, the guarantee of the fundamental rights of the foreigner does not concern only the normative level, but it involves the judges as well. The asylum seeker must enjoy the possibility of defending his/her personal position before these latter. The question is very urgent, especially when considering the tendency to approve increasingly restrictive national laws. The positivisation of the right to asylum, an essential prerequisite for its realization, is not likely to cancel the distance between its enunciation and its realization; it rather reproduces it on a different level, that of effectiveness. The question arising is then that of verifying the effectiveness of the protection for asylum seekers, with specific reference to the judicial phase of the procedure for the recognition of the right. More particularly, this thesis aims at studying the concrete possibility for these individuals to apply to the judge by asking him/her the recognition of the right to asylum after the negative decision of the administrative authority on the same request.
The purpose of this chapter is to compare the scope of application of the principles of effectiveness and effective judicial protection in Union law. The chapter starts with a brief account of the origins, rationale and implications of both principles. It then spells out the commonalities and differences between their respective scopes of application, so as to demarcate the area of overlap where they both project themselves. Finally, the chapter reflects upon the interplay between both principles in that area, showing that it is mostly a function of the stakeholders whose interests are at stake. In order to do so, the analysis draws on the conceptual toolkit of economic regulation and on the notion of regulated actors and regulatory beneficiaries.
The Schrems I and Schrems II judgments (C-362/14 Maximillian Schrems v Data Protection Commissioner EU:C:2015:650 and C-311/18 Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems EU:C:2020:559) are well known for the sweeping implications that the law student’s crusade against the data giant Facebook had on international data transfers and for the ensuing headache that they gave to companies, as well as to legislators and public authorities on both sides of the Atlantic.What has remained slightly unexplored, on the other hand, are the constitutional side effects of the combined operation of the two judgments on the relationship between the right to an effective remedy and Member States’ procedural autonomy.In its first part, therefore, this article will review the unusual procedural path that, on the basis of the first Schrems ruling, brought the second Schrems case from the Irish Data Protection Commissioner to the Court. The second part will examine the consequences of the two judgments on effective judicial protection, in particular on the extent to which those appear to create an obligation for the Member States to provide new remedies where the rights of individuals are infringed by secondary EU law.
New Private Law Theory opens a new pathway to private law theory through a pluralistic approach. Such a theory needs a broad and stable foundation, which the authors have built here through a canon of nearly seventy texts of reference. This book brings these different texts from different disciplines into conversation with each other, grouping them around central questions of private law and at the same time integrating them with the legal doctrinal analysis of example cases. This book will be accessible to both experienced and early career scholars working on private law.
This article analyses the main debates over the application of the Charter to disputes between private parties and assesses the ways in which the case law over the last ten years has responded to them. The article goes on to propose an alternative schema, whereby horizontality can be understood as a structural principle of EU fundamental rights adjudication on its own terms, rather than as an extension of the direct effect doctrine. It is argued that a self-standing principle of horizontality with equally valuable—yet operationally distinct—direct, indirect, and state-mediated manifestations, could respond more coherently to the conceptual, procedural, and remedial challenges displayed in the case law.
This chapter analyses the tension between the MiFID and MiFID II conduct of business rules and national private law from the perspective of EU law. The chapter describes how this tension has been generated by the fact that MiFID and MiFID II have subjected conduct of business rules, which are similar in substance to the duties of care formulated in national private laws, to a regime of public supervision and administrative enforcement. The fact that the conduct of business rules also affect private law relationships by imposing standards of conduct on firms when they provide investment services to clients demonstrates the relevance of these rules for national private law. However, the fact that the conduct of business rules are cast as financial supervision standards and that MiFID and MiFID II remain silent with regard to judicial enforcement, makes it difficult to determine the effect of these rules in national private law. The potential effect of EU investor protection regulation in national private law is shown to extend to private law concepts which determine whether and, if so, to what extent investment firms can be required to compensate retail investors based on national contract and torts law. The chapter comprehensively explores two competing approaches to the interaction between the MiFID and MiFID II conduct of business and private law concepts governing a firm’s liability to pay—the subordination and the complementarity model—and advances the latter as the preferred approach.
The study makes an analysis of the legal framework which Member States must take into account when designing their policies on citizenship education. The Charter on Education for Democratic Citizenship and Human Rights Education of the Council of Europe and the international right to education are read in conjunction with EU law. Suitable content for the EU dimension in mainstream education is explored. A method for objective, critical and pluralistic EU learning is proposed, based on the Treaties and on case teaching (stories for critical thinking). Member States are invited to take more action to ensure quality education. The EU has the legal competence to support the EU dimension in education. In the present state of EU law, quality education is no longer conceivable without an EU dimension incorporated in various key competences.
At present the author works at the implementation of the ideas developed in the book as an Affiliated Senior Researcher at Leuven University (Case4EU-project in Belgium and other EU Member States).
Cambridge Core - European Law - The Politics of Justice in European Private Law - by Hans-W Micklitz
This collection asks a direct but complex question: is the EU humane enough? The implementation of EU law and policy and its balance between economic and social values continues to provoke debate. Providing fresh insight, Nuno Ferreira and Dora Kostakopoulou present a novel analytical framework, centred on the notion of humaneness, for assessing EU law and policy. This innovative approach leads to recommendations for policy change towards a more humanistic philosophy for the EU. Broad in its scope, this remarkable volume draws together interdisciplinary perspectives from contributors who examine key EU law and policy fields, including economic integration, asylum and free movement, citizenship and development, and security. This book is essential reading for scholars, students and policy-makers seeking new ways of exploring the economic versus social values debate in EU law.
This chapter reexamines the case law of the Court of Justice of the European Union (CJEU) through the prism of the modern structure of the foundational treaties of the EU: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The Lisbon Treaty has reshaped the structure of the positive law of the EU, marking a new stage in the process of creating a closer union. For EU procedural law, this has led to the formal establishment of three focal points which reflect the issues involved. At one extreme, are general principles of EU law, which have constitutional status including the general principle of effective judicial protection. In the middle of the spectrum are two provisions which recognize the balancing of national and EU interests required at the procedural level. Finally, the treaties recognize the possibility for substantive regulation at the EU level.
The paper analyses the interplay between European regulatory private law and citizens' rights. The financial and sovereign debt crisis has strongly weakened the confidence of the European citizens in the European Union. The Author argues that European regulatory contract law, conveyed by EU secondary law, constitutes a valuable tool to strengthen the citizens' access to goods and services offered by the internal market. This hypothesis is supported by the analysis of recent developments of consumer and services law with regard to law-making and enforcement. In particular, the Court of Justice (ECJ) has assumed a prominent position in ensuring high standards of contractual protection for consumers, clients and users in mortgages and services markets (e.g. energy, telecoms). The high contractual protection of vulnerable parties does not only create the conditions for an effective functioning of internal market but it also grants access to essential goods and services.
The establishment of the European Securities and Markets Authority (ESMA) is one of the most important innovations introduced by the European Union (EU) after the global financial crisis. Whereas a considerable amount of literature has investigated the impact of the ESMA’s powers on regulatory convergence, supervision, and public enforcement, little attention has been paid to the effects that the ESMA’s powers could exert on national contract law and the private enforcement of EU financial regulation. The main hypothesis of this study is that, although ESMA does not have the power of creating, suspending, or terminating contractual obligations, some of its acts (e.g. product’s restrictions, guidelines, recommendations) may become an important tool for the parties to design their contractual obligations and for national courts and alternative dispute resolution mechanism to enforce national contract law. Starting from the analysis of the ESMA’s objectives, tasks and powers this chapter explores the intersections between the ESMA’s (quasi) regulatory and supervisory powers and national contract law and it argues that the ESMA’s powers will enhance the uniform interpretation and enforcement of contract law across national jurisdictions.
Dozens of articles and monographs have been written about a potential conflict between the German Federal Constitutional Court (hereinafter FCC) and the European Court of Justice (ECJ), which has so far been limited to shadow-boxing. Karlsruhe relied upon dissuasive tactics and was quite successful. Its warnings encouraged the ECJ to develop reliable human rights standards, restrained an expansive reading of Union competences and fostered judicial respect for national constitutional singularities. Recently, however, power games escalated when the FCC fired a forceful warning shot towards Luxembourg and pronounced that the latter’s Åkerberg Fransson ruling might have been ultra vires. Arguably, this hand-wringing about the precise delimitation of the Charter of Fundamental Rights (hereinafter the Charter) reveals deeper conflicts about how to resolve jurisdictional overlap.
This contribution starts off with a presentation of the background, trigger, contents and context of the German decision. It will proceed with an explanation why the dispute about the Charter will be difficult to resolve, since both courts pursue different visions of the relative autonomy of national decision-making in the field of human rights. While the FCC propagates a dualist ‘separation thesis’, the ECJ focuses on reflexivity and fusion. The third section will indicate theoretical implications of divergent approaches which, arguably, reflect deeper conflicts about the pluralist interaction of legal orders. This contribution will conclude with a positive turn demonstrating the potential for pragmatic appeasement despite fundamental disagreement.
Following the Jussila and Menarini judgments, it is now entirely clear that Article 6 ECHR, as interpreted by the European Court of Human Rights, provides no grounds for abandoning the system in which the European Commission both investigates suspected infringements of the EU antitrust prohibitions and takes decisions finding such infringements and imposing fines. Article 6(1) ECHR requires however that the EU General Court, when reviewing European Commission decisions, exercises full jurisdiction. What is decisive is whether the General Court in fact exercises full jurisdiction, not any general statements which the Courts may make as to its powers. It is nevertheless also important that the General Court is seen to exercise full jurisdiction. For this reason, potentially misleading general statements should be avoided. A number of internal checks and balances and procedural guarantees apply to the European Commission's administrative procedure, and regularly show their usefulness. This however in no way reduces the need for a full review by the General Court, when requested by the undertakings concerned. Indeed, the internal checks and balances and procedural guarantees derive their full effectiveness precisely from the possibility of a subsequent full review by the General Court.
The Charter of Fundamental Rights of the European Union has forced the European Court of Justice and its national counterparts to face a series of difficult and principled questions: Who is the ultimate interpreter of fundamental rights in Europe? Which standard of protection is to be given priority? How does the Charter bind Member States when applying EU Law? This article argues that the first seminal decisions of the European Court of Justice on the matter, in particular the judgments in AkerbergFransson and Melloni , have set the ground for a new framework of fundamental rights protection in the European Union. However, this framework does not depend on the sole authority of the Luxembourg court, but on a complex system of checks and balances that will demand complicity and commitment on the part of national supreme and constitutional courts.
The fundamental right to an effective remedy as guaranteed in Art. II-107(1) of the ‘Treaty establishing a Constitution for
Europe’ (CT)1 is part of a comprehensive guarantee of effective legal protection and procedural guarantees. In the following, this fundamental
right and how it relates to Parts I and III of the CT will be investigated in detail. First, the scope of Art. II-107(1) CT
will be identified in Part B. Part C comments on the binding effect of this right. Finally, in Part D, some aspects of the
Union’s system of legal protection will be investigated in the light of Art. II-107(1) CT, and it will be discussed whether
this right could be an instrument to close gaps in the legal protection of individuals against measures of the European Union.
ECR-I-5177, para. 31 and, on the other, Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667
- Mediterraneo Traghetti Del
Traghetti del Mediterraneo [2006] ECR-I-5177, para. 31 and, on the other, Joined Cases C-188/10
and C-189/10 Melki and Abdeli [2010] ECR I-5667, Case C-416/10 Križan, judgment of 15
That Court has also held that, in an appropriate case, a judgment may constitute due satisfaction in cases where a procedural irregularity has been established, see ECtHR, Hauschildt v. Denmark, judgment of 24 May 1989, para. 58, Series A no. 154. 118 Point 119 of the opinion delivered on 30
- See Notably Ecthr-Xi
See notably ECtHR, Kudl -a v. Poland, Appl. No. 30210/96, § § 156 and 157, 2000-XI. That
Court has also held that, in an appropriate case, a judgment may constitute due satisfaction in cases
where a procedural irregularity has been established, see ECtHR, Hauschildt v. Denmark, judgment
of 24 May 1989, para. 58, Series A no. 154.
118 Point 119 of the opinion delivered on 30 May 2013.
119 In points 123 to 132 of her opinion in Groupe Gascogne (n 115).
Article 47 CFR OJ 2007 C 303
Praesidium Explanations, Article 47 CFR OJ 2007 C 303/30 of 14 December 2007.
Opinion of Advocate General Cruz Villalón in Samba Diouf
- Airey Ecthr
ECtHR, Airey, Appl. No. 6289/73, judgment of 9 October 1979, Series A, Volume 32, 11.
132 Opinion of Advocate General Cruz Villalón in Samba Diouf (n 70), point 39.
- Düsterhaus Safjan
- Kennedy Waite
- Germany
Safjan and Düsterhaus Waite and Kennedy v Germany [GC], Appl. No. 26083/94, § 59, 1999-I; T.P. and K.M. v the United
Kingdom [GC], Appl. No. 28945/95, § 98, 2001-V and Fogarty v the United Kingdom [GC], Appl.
- I M Ecthr
- France
ECtHR, I.M. v France, Appl. No. 9152/09, judgment of 2 February 2012.
- Haralampiev Ecthr
- Bulgaria
ECtHR, Haralampiev v Bulgaria, Appl. No. 29648/03, judgment of 24 April 2012, § § 32
and 33.
- Nunes Ecthr
- Dias
ECtHR, Nunes Dias v Portugal, Appl. No. 69829/01, judgment of 10 April 2003, 2003-VI.
of the ECHR 'does not go so far as to guarantee a remedy allowing a Contracting State's laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms' (ECtHR, Lithgow v United Kingdom Moreover
The ECtHR has indeed held in Lithgow that Article 13 of the ECHR 'does not go so far as to
guarantee a remedy allowing a Contracting State's laws as such to be challenged before a national
authority on the ground of being contrary to the Convention or to equivalent domestic legal norms'
(ECtHR, Lithgow v United Kingdom [1986], Appl. No. 9006/80). Moreover, in Bosphorus (ECtHR,
Bosphorus v Ireland, Appl. No. 45036/98, judgment of 30 June 2005, 2005-VI, § § 162-165) the
Strasbourg Court has mentioned the strict standing requirements in direct actions, but did not voice
any criticism).
C-389/10 P KME Germany AG and Others v Commission
- A Ecthr
- S R L Menarini Diagnostics
- Italy
140 ECtHR, A. Menarini Diagnostics S.R.L. v Italy, no. 43509/08, 27 September 2011, § 59.
141 Chalkor v Commission (n 120). C-389/10 P KME Germany AG and Others v Commission,
judgment of 8 December 2011, not yet reported.
142 See Van Cleynenbreugel, 'Constitutionalizing Comprehensively Tailored Judicial Review in EU
Competition Law', (2012) 18 Columbia J. Eur. L519-45.
143 Schindler judgment (n 134).
The (non) application of the Charter of Fundamental Rights to a certificate for the return of a child
- See Kuipers
See Kuipers, 'The (non) application of the Charter of Fundamental Rights to a certificate for the
return of a child', (2012) E.H.R.L.R. 397-412.
Some reflections on Mutual Recognition in the Area of Freedom, Security and Justice
- See Bay Larsen
See Bay Larsen, 'Some reflections on Mutual Recognition in the Area of Freedom, Security and
Justice' in Cardonnel, Rosas, and Wahl (n 4), 151.
Standard of Review in Competition Cases: Can the General Court Increase Coherence in the European Union Judicial System Today's Multilayered Legal Order: Current Issues and Perspectives (Zutphen 2011); Lenaerts, 'Due process in competition cases
- Arabadjiev
Arabadjiev, 'Unlimited Jurisdiction: What Does It Mean Today?' in Cardonnel, Rosas, and Wahl
(n 4), 383-402; Jaeger, 'Standard of Review in Competition Cases: Can the General Court Increase
Coherence in the European Union Judicial System?' in Baumé, Oude Elferink, Phoa, and Thiaville
(eds), Today's Multilayered Legal Order: Current Issues and Perspectives (Zutphen 2011); Lenaerts,
'Due process in competition cases, (2013) 1 NZKartR 175-82; Wils, 'The Compatibility with
Fundamental Rights of the EU Antitrust Enforcement System in which the European
Commission Acts both as Investigator and a First-Instance Decision Maker', (2014) 37 World
Competition 5-25.
149 See Section II.B.(iii)(b).
Article 47 CFR OJ 2007 C 303 131 ECtHR
130 Praesidium Explanations, Article 47 CFR OJ 2007 C 303/30 of 14 December 2007.
131 ECtHR, Airey, Appl. No. 6289/73, judgment of 9 October 1979, Series A, Volume 32, 11.
132 Opinion of Advocate General Cruz Villalón in Samba Diouf (n 70), point 39.
DEB (n 50); IFG Weichert (n 103); G (n 80)
- Alassini
Alassini (n 38); DEB (n 50); IFG Weichert (n 103); G (n 80);
Constitutionalizing Comprehensively Tailored Judicial Review in EU Competition Law
- See Van Cleynenbreugel
See Van Cleynenbreugel, 'Constitutionalizing Comprehensively Tailored Judicial Review in EU
Competition Law', (2012) 18
the Court stated that 'the right to be heard, which is guaranteed by Article 6 of the ECHR and mentioned by the referring court in its questions, is today laid down in Articles 47 and 48 of the Charter
- Otis
Otis judgment (n 16), para. 47. In Radu (n 98), the Court stated that 'the right to be heard, which
is guaranteed by Article 6 of the ECHR and mentioned by the referring court in its questions, is today
laid down in Articles 47 and 48 of the Charter. It is therefore necessary to refer to those provisions of
the Charter'.
The Vicissitudes of Life at the Coalface: Remedies and Procedures for Enforcing Union Law before the National Courts The Evolution of EU Law
- Dougan
Dougan, 'The Vicissitudes of Life at the Coalface: Remedies and
Procedures for Enforcing Union Law before the National Courts', in Craig and de Búrca (eds),
The Evolution of EU Law (Oxford 2011), 407-38.
Texdata Software GmbH, judgment of not yet reported; Case C-625/11 P PPG v ECHA, judgment of 26 ECR-I 11535
- Ifg Case
- Weichert
Case C-418/11, Texdata Software GmbH, judgment of 26 September
2013, not yet reported; Case C-625/11 P PPG v ECHA, judgment of 26 September 2013, not yet
reported, Case C-73/10 P, IFG Weichert, order of 16 November 2010 [2010] ECR-I 11535; Case C
Arango Jaramillo and Others v European Investment Bank (EIB), judgment of 28 February 2013, not yet reported; Case C-406
- Oscar Orlando
RX-II, Oscar Orlando Arango Jaramillo and Others v European Investment Bank (EIB), judgment of 28 February 2013, not yet reported; Case C-406/08 Uniplex (UK) [2010] ECR I-817.
A (n 73), as well as Case C-308/07 P, Gorostiaga Atxalandabaso v Parliament
- D See
See D and A (n 73), as well as Case C-308/07 P, Gorostiaga Atxalandabaso v Parliament [2009]
ECR I-1059.
Trade Agency (n 85) Hypoteční banka (n 76), and Alassini (n 38) On the other hand
- See
See, on the one hand, not only, but notably with regard to effective judicial protection, Texdata
(n 54), Trade Agency (n 85), Hypoteční banka (n 76), and Alassini (n 38). On the other hand, ECtHR,
Waite and Kennedy v Germany [GC], Appl. No. 26083/94, § 59, 1999-I; T.P. and K.M. v the United
Kingdom [GC], Appl. No. 28945/95, § 98, 2001-V and Fogarty v the United Kingdom [GC], Appl.
No. 37112/97, § 33, 2001-XI.
114); judgment of 30 April 2014 in Case C-238/12 P FLSmidth v Commission
- Fulmen
Fulmen (n 114); judgment of 30 April 2014 in Case
C-238/12 P FLSmidth v Commission;
Chalkor v Commission, paras 63-65, Case C-339/11 Siemens v Commission, judgment of
- Kme Germany
- Others V Commission
KME Germany and Others v Commission, paras 103-105, Chalkor v Commission, paras 63-65,
Case C-339/11 Siemens v Commission, judgment of 19 December 2013, paras 334-336).
Unlimited Jurisdiction: What Does It Mean Today
- Arabadjiev
Arabadjiev, 'Unlimited Jurisdiction: What Does It Mean Today?' in Cardonnel, Rosas, and Wahl
(n 4), 383-402;
Standard of Review in Competition Cases: Can the General Court Increase Coherence in the European Union Judicial System
- Jaeger
Jaeger, 'Standard of Review in Competition Cases: Can the General Court Increase
Coherence in the European Union Judicial System?' in Baumé, Oude Elferink, Phoa, and Thiaville
(eds), Today's Multilayered Legal Order: Current Issues and Perspectives (Zutphen 2011);
Due process in competition cases
- Lenaerts
Lenaerts,
'Due process in competition cases, (2013) 1 NZKartR 175-82;
- Povse Ecthr
ECtHR, Povse and Povse v. Austria, Appl. No. 3890/11, judgment of 18 June 2013.
Deutliche Worte des EuGH im Grundrechtsbereich
- Winter
Winter, 'Deutliche Worte des EuGH im
Grundrechtsbereich', Neue (2013) Zeitschrift für Arbeitsrecht 473-7.
Die verfassungsrechtliche Absicherung der Vorlagepflicht
- Betz
Betz, Die verfassungsrechtliche
Absicherung der Vorlagepflicht (Tübingen 2013).