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A. Effective Judicial Protection

Andrea Biondi

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 21 September 2023

A.  Introduction

‘Union law requires, in addition to observance of the principles of equivalence and effectiveness, that the national legislation does not undermine the right to effective judicial protection’ (Mono Car Styling SA, para. 49).

In the absence of supranational rules to enforce European Union (EU) law and to ensure judicial protection of EU-derived rights, it is necessary to rely upon national legal systems and the rules of their procedural machinery. European Court of Justice (ECJ) case law has gradually, however, imposed a series of ever more stringent obligations on national courts as to ensure the effective application of EU law—the principle of effective judicial protection. The test developed to assess the compatibility of national procedural rules with EU law goes under the so-called principles of effectiveness and of equivalence (the ‘procedural autonomy test’). National procedural rules comply with the principle of effectiveness when they do not render the exercise of EU rights impossible or excessively difficult. The principle of equivalence requires, instead, that procedural rules used to enforce EU rights are not less favourable than those used for similar claims under national law. The early procedural autonomy test has gradually morphed and become intertwined with many hard constitutional principles of EU law. In order to provide a systematization of this developing and widely discussed topic within academic writings, this entry is structured not from a perspective of conflict, for example, national versus supranational, but instead based on a postulate articulated in several corollaries: the postulate is that ‘effectiveness’—in its main declination of judicial redress—is an inherent characteristic of the EU law order. Its intensity, however, is variable when such a principle is applied vis-à-vis national procedural rules. In other words, on a scale, the maximum point of intensity is reached where the EU norm has preempted the national enforcement system and directly provides for rights and remedies as to afford stakeholders full and effective judicial protection; when EU law consists only of basic remedial tools, intensity is at its minimum and the national norm prevails. Unfortunately (at least for the entry author) these are just two stationary points interjected by several points of inflection. These are numerous: there are the general principles of EU law, which have ‘constitutional status’ (Audiolux, para. 63) including the general principle of ‘effective judicial protection’. There is then Article 4(2) of the Treaty on European Union (TEU) recognizing the respect which the Union must give to the ‘national identities’ of the Member States, arguably including their essential procedural features. Article 4(3) of the TEU, however, sets out a duty of ‘sincere cooperation’ incumbent on Member States as a limit upon the accommodation of national diversity. Article 19(1) (second indent) of the TEU also specifically states that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Finally, Article 47 of the Charter of Fundamental Rights (‘Charter’) recognizes an individual’s ‘right to an effective remedy’ wherever Member States implement EU law. These constitutional constants function both as outer limits within which national provisions can operate, but also as possible triggers used to assess the validity of national provisions against EU law standards. The following sections will attempt to disentangle this rather complicated hodgepodge.

B.  The Postulate: Effectiveness as the Primordial EU Soup

In the composite EU legal order, the operational principle—without which the whole system would collapse (or might have not even been born)—is that the Member States are under an obligation to ensure that the supranational component is fully observed. It was no coincidence that the Court of Justice of the European Union (CJEU) transformed the Treaty provisions contained now in Article 4 of the TFEU into a ‘principle inherent in the Community legal order’ (Brasserie du Pêcheur, para. 95). Article 4 includes a duty to (a) ‘take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ (second indent) and (b) to ‘facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardize the attainment of the Union’s objectives’ (third indent). The principle of loyal collaboration is arguably then the most important within the EU legal order, as it is ‘the legal basis of the obligation on all national courts and authorities to comply with all other general principles’ (Temple Lang). The principle of loyal collaboration therefore merges into another general constitutional requirement of the EU legal order: effectiveness. As stated in the seminal Simmenthal judgment, the principle of effectiveness requires that any provision of a national legal system and any legislative/administrative measures or judicial practice which might impair the effectiveness of EU law should not prevent European rules from having full force and effect (Simmenthal, paras 21–22). Additionally, the Court specified that these obligations apply regardless of the nature of the national measure in question (Erich Ciola v Land Vorarlberg). Finally, the principle of loyal collaboration complements the basic norm of the EU legal order, that of supremacy. Whilst the principle of supremacy applies only in cases of substantive conflict between Union and national rules, the principle of loyal collaboration/effectiveness goes further, and has applicability outside the sole actual conflict between two norms (Snyder). In short, the principle of loyal collaboration/effectiveness specifically requires Member States not to apply conflicting national law (CIF v Autorità Garante della Concorrenza e del Mercato), to take all appropriate measures, and to use all means at their disposal to guarantee the full effect of EU law (Commission v France). As eloquently put, the principle of effectiveness ‘establishes a kind of procedural supremacy in favour of EU law’ and is ultimately ‘a competence regulatory principle, conceived in the framework of national institutional and procedural autonomy’ (Neframi 330). Thus, the principle of sincerity and cooperation within the EU system of judicial protection are essential components of the ‘autonomy’ of the EU legal order both vis-à-vis its Member States, and externally (Opinion 2/13).

C.  The First Corollary: Effective Judicial Protection ‘as Matter of EU Law’

The Treaty on the Functioning of the European Union (TFEU) recognizes specific competences to harmonize procedural law. For instance, in the areas of judicial cooperation (Arts 81 and 82 of the TFEU), the creation of sanctions for so-called ‘Euro crimes’ (Art. 83(1) of the TFEU), police cooperation (Art. 87 of the TFEU), language arrangements and rules governing the creation of European intellectual property rights (Art. 118 of the TFEU), administrative cooperation (Art. 197(1)–(2) of the TFEU), and combating fraud (Art. 325(4) of the TFEU). The measures of primary legislation include pro effectiveness norms as they contain specific procedural provisions aimed at guaranteeing effective judicial protection of the individual rights affected by the substantive regulatory choices made by the supranational legislator. Apart from the legal bases of the Treaty, procedural harmonization in its remedial dimension exists de facto, and one could be tempted to call it a physiological implication of a process of market approximation. The availability of effective judicial remedies remains fundamental in guaranteeing the effective operation of the European Economic Constitution. Hence the ponderous procedural machinery in the area of competition law (maybe entry on interim measures or damages?) and state aid control, (maybe recovery) that is required to fulfil the promise of supranational level playing field protection. The EU legislator has also adopted several measures, which introduce specific and uniform procedures in the recognition that these rules are essential in achieving true economic integration. The most striking examples are directives on public procurements, on consumer protection, the regulation on cross border insolvency, or those concerning aspects of contract law. Here, the impact of EU law is at its height. From the perspective of the efficiency of the system so devised, the ‘enforcement of EU law/judicial protection’ should, in theory, not be overly complicated as the national regulator has either to conform to existing provisions or to adopt new and uniform rules. In reality, these EU provisions are mostly based on a hybrid model whereby national and supranational contents tend to sometimes interact smoothly, and sometimes in a more fractious way. For example, in many instances, secondary legislation merely requires national legal systems to provide ‘penalties [which are] effective, proportionate and dissuasive’ (see eg, Art. 34 of the Directive on safety of offshore oil and gas operations; Art. 13 of the Directive on energy efficiency and often requiring an interpretation from the CJEU as to fill lacunae or to recalibrate the existing EU provisions (Textdata Software; Criminal proceedings against Mauro Scialdone). This phenomenon is particularly relevant to those fast-expanding sectors of EU regulatory competence that tends to be juxtaposed to extremely well consolidated national systems (eg banking supervision). Pre-emption of national law does not have to be achieved only through legislation, as EU primary law (Treaty) can also be directly used to render national law compatible with EU rights or as to afford protection to EU rights. In a string of cases, for instance, the Court assessed the compatibility of national procedural law in relation to the general principle of non-discrimination contained in Article 18 of the TFEU. The Court found that although the rule in itself was not intended to regulate activity of a commercial nature, it still had the effect of placing such traders in a less advantageous position than nationals of that State regarding access to its courts (Mund and Fester; Data Delecta Forsberg; see also Hayes and Saldanha and MTS). To give an example, in Bickel and Franz the CJEU held that the limitation imposed on the two German nationals—the denial of standing trial using their mother tongue German, a possibility available to Italian citizens resident in the bilingual region of Alto-Adige—had to be considered discrimination on the grounds of nationality (para. 17; see also Krystyna Alder and Ewald Alder v Sabina Orlowska and Czeslaw Orlowski). Giving effect to those judgments is again not very problematic from a national procedural perspective, as they simply require the extension of the ordinary procedural rules to other Member State litigants. In conclusion, with regard to all the aforementioned examples, the obligation to provide for an effective judicial protection is imposed on national courts as a matter of EU law.

D.  The Second Corollary: Effective Judicial Protection in the Absence of a European Normative Measure

A more complex scenario arises when EU rights should be protected by the national legal systems in the absence of uniform rules or substantive provisions of EU law. The ‘traditional’ principle is that so long as no EU rules have been adopted and so long as no specific competence has been attributed to the European Union by the Member States, the enforcement of EU rights has to be governed by national procedural systems. Such national competence, however, does not mean that EU law cannot affect procedural law. The leading early case is Rewe v Landwirtschaftskammer Saarland of 1976, concerning the possibility of refunding charges unlawfully paid in contravention of Treaty prohibitions and the compatibility of national limitation rules. The Court reasoned in two steps. The first: it is up to the national courts to ensure ‘the legal protection that citizens derive from directly effective protection of Community law’. The second: ‘In the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law’ (Rewe v Landwirtschaftskammer Saarland; Comet v Produktschap voor Siergewassen; Peterbroeck v Belgian State; Van Schijndel and others). The CJEU function is ‘declaratory’, of which provisions of EU law should be considered as a source of rights, whilst it is up to national law to ensure the proper remedy for the violation of those rights. As for the effects on national procedural law, if the two conditions—equivalence and effectiveness—are not satisfied, this does not imply the application of EU law but simply the disapplication of the specific rule at stake. The national legal system does not, in theory, need to be changed save for the specific rules found to be incompatible with one of the two conditions. This limited outing into a sacred domain of national courts has often been labelled as national procedural autonomy, a principle discussed at length by many illustrious commentators. In a very influential article, former AG Van Gerven argued that the term ‘procedural autonomy’ in reality, should be replaced by ‘procedural competence’, as the Member States are competent to determine the procedural rules to enforce EU law at a national level in the absence of EU measures for this purpose (Van Gerven). More recent writings tend to dismiss the whole assumption on which such a principle is based: the autonomy of Member States. Such a conceptualisation of the Member States’ competence to preserve their legal order disregards that: ‘… in the areas of domestic enforcement of EU law, the area is either harmonised or the Member States are obliged to ensure the enforcement is equivalent and/or effective. In this area, there is no autonomous space of the Member States’ (Bobek 320). It would be useful at this point to detail a few brief observations. First, as for any other area of EU law, the specific meaning of the principle of effective judicial protection has evolved over time. This is especially so, as it has developed within the matrix of Court case law. It has thus served different purposes over time, across the evolution and development of European legal integration. Further, the CJEU has remained ever vigilant as to not upset the usually serene relationship it enjoys with national courts by adopting a stance softer than the rather brash primacy lexicon (Haapaniemi 96). This has been through emphasizing that national procedural rules tend to be presumed sufficient as to guarantee a full and effective protection of EU rights save in specific circumstances (Prechal and Widdershoven). As succinctly explained by AG Jacobs, ‘the primacy of Community law does not require that they [national procedural rules] should be overridden in all circumstances so as to allow Community law to enter the arena at any stage in the proceedings. As the Court’s case-law has shown, it is sufficient that individuals are given, by the national procedural rules, an effective opportunity of enforcing their rights’ (Opinion of AG Jacobs, Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten, para. 25). The assessment of compliance with equivalence/effectiveness criteria requirements remains therefore within the competence of national courts, since it concerns national provisions (The Queen on the application of Delena Wells and Secretary of State for Transport, Local Government and the Regions, para. 70; Cristiano Marrosu and Gianluca Sardino v Azienda Ospedaliera, para. 56). It is significant that the expression ‘principle of procedural autonomy’ is still contained in the Court dictionary (Aquino, para. 48). Thirdly, the CJEU approach cannot be explained in terms of deference/strategic positioning with national courts alone, as attention must be given to the practical considerations of procedural economy. This being the need to conclude proceedings that involve EU law swiftly, to avoid the replication of hurdles and eventually to create legal certainty. For instance, in the Impact judgment, CJEU was asked to rule on the Irish implementation of a Directive dealing with a framework agreement on fixed term work that conferred exclusive jurisdiction over labour courts. The Irish rules did not, however, expressly confer jurisdiction on these courts to apply directly effective provisions of EU law, although that was possible before ordinary courts. The CJEU first confirmed that allocation of jurisdiction is a matter for Member States (see in particular Bozzetti, para. 17), however it observed that individuals were going to be put in a situation of a procedural disadvantage by not being allowed to bring a claim directly based on EU law before the specialized courts (Bozzetti, para. 51). Here the Court corrected an oversight of the national legislator and suggested—even from the perspective of the efficiency of national law—that the most practical and economic of solutions was to group similar forms of action under the same head of jurisdiction, as to ‘facilitate optimal efficiency in the organization of the administration of justice’ (Opinion of AG Kokott, Bozzetti, para. 55). Thus, it was not necessary to oblige individuals to go through a duplication of costs, possible delays, and, in short, a series of ‘procedural complications’ (Opinion of AG Kokott, Bozzetti, para. 53). Lastly, if national law either does not provide a remedy or insufficiently protects EU rights, the presumption of adequacy of national procedures can be overturned. The Court will then step up, as to ensure access to a judicial process independent from considerations of the ‘effectiveness/equivalence’ of remedies (Mono Car Styling, para. 49). The famous case of Johnston remains a cogent example. In Johnston, an employee could not bring a claim for sex discrimination to an Industrial Tribunal due to a national provision that allowed the Secretary of State to certify—conclusively—that her case concerned national security and thus derogations from the principle of non-discrimination were therefore justified. The CJEU stamped its authority by characterizing such a rule as ‘depriv[ing] an individual of the possibility of asserting by judicial process the rights conferred by the directive’ (Johnston, para. 20). The most celebrated example of judicial response to a national remedial vacuum is, of course, the action in damages against defaulting Member States. The Court considered the possibility for individuals to sue in damages their own Government as a ‘completely consistent with and logical extension of a value which has been upheld on several occasions without question in Luxembourg: effectiveness of Community provisions and hence complete judicial protection’ (Opinion of AG Tesauro, Brasserie du Pêcheur, para. 32).

The above general reconstruction is best summarized by the celebrated Unibet judgment (paras 39–43):

Under the principle of cooperation laid down in Article 10 EC, it is for the Member States to ensure judicial protection of an individual’s rights under Community law … In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights, which individuals derive from Community law … Although the EC Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Community Court, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law … It would be otherwise only if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual rights under Community law … Thus, while it is, in principle, for national law to determine an individual’s [sic] standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection … The detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favorable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness).

1.  The operation of effective judicial protection

Bearing the above observations in mind, it is now necessary to verify which tools are available as to determine how the principles of effectiveness and equivalence actually operate. The two rather ancient decisions of Peterbroek and Van Schijndel persist as particularly useful reference points. In these two cases, the Court held that compliance with the principles of equivalence and effectiveness should be analysed in light of the role of the national procedural rule and the basic principles of the domestic legal system, such as the rights of the defence or the principle of legal certainty. This test has been cleverly drafted to provide the CJEU with a sensible ‘escape route’ so as, on the one side, to avoid entanglement in the minutiae of national procedural law and on the other, to serve as a reminder to national courts that the EU dimension must always be considered in the articulation of their judgments. In short, the test is clearly devised so as to leave national courts in charge while at the same time necessitating that effectiveness of EU law should also be considered as an ‘argument’ to be accepted in national court proceedings. In other words, in reaching a decision, the national court has to weigh up, on the one hand, the nature of the EU right and of the rule from which it is derived, ie, the nature and the gravity of a possible breach and the seriousness of the injury caused where no remedy is made available. On the other hand, it has to consider the nature and the aim of the domestic law provision under scrutiny in light of fundamental principles such as due process of legal certainty, the right of defence, and so on. The Court further provided other elements that may have to be taken into account when carrying out such a balancing exercise. Variables including the financial situation of the parties, the length of proceedings, the cost of litigation or the potentially frivolous nature of the claim (Rosalba Alassini v Telecom Italia SpA; Edwards and Pallikaropoulos). Thus, if the outcome of such a balancing act guarantees a fair trial and proper access to justice, the Court would not step in. Certiorari style and filters to appeal to higher courts have, for instance, escaped the control of the Court as the preliminary reference procedure route under which to raise a point of EU law was anyway guaranteed (Peterbroeck v Belgian State; Criminal proceedings against Kenny Roland Lyckeskog). The default position is, of course, that ultimately the Member States none the less have responsibility for ensuring that ‘rights are effectively protected in each case’ (Raimund).

(a)  The principle of effectiveness

The principle of effectiveness has been most employed in those cases where the presumption of functionality of the national standards had to be overturned as to make space for the protection of EU rights. In those cases, the dimension of supremacy played a prominent role in relation to the principle of effectiveness, in that the national court had no other option as to set aside the national legislation and apply the EU rights as defined by the CJEU. The Court found, for instance, in Peterbroeck that a procedural rule barring national appeal courts the ability to raise its own motion points of EU law was preventing the full application of EU law as it precluded parties to obtain adjudication over EU-derived rights. The operation of the principle of effectiveness can be better understood if a specific and essential component of any judicial proceedings, such as time limits, are taken into account. Generally, the Court has been respectful of national limitation periods, mostly considered by the Court as proper tools to ensure legal certainty (Danske Slagterier v Bundesrepublik Deutschland, para. 32 and the case law cited therein; Friedrich G Barth v Bundesministerium fur Wissenschaft und Forschung, para. 28). Still, these considerations did not prevent the Court from stepping in, in those cases where EU rights could have been affected by what the Court considered as excessively strict limitation. The Court, for instance, found in Uniplex that the English judicial review rule that action should be brought ‘promptly’, rendered impossible or excessively difficult the exercise of EU private parties’ rights in public procurement procedures. This was because a limitation period, of which the duration lay in the discretion of the national court, was not predictable as to its effects and did not therefore effectively provide an adequate standard of judicial protection (Uniplex). The Court did not hesitate to intervene as to ‘rewrite’ national procedural limitations. Likewise, in Evelyn Danqua, the Court considered that 15 days to apply for refugee status did not offer an effective enjoyment of the rights deriving from EU refugee law, as any individual that finds him/herself in such a situation is not reasonably expected to comply with such a short time limit (Evelyn Danqua v Minister for Justice and Equality Ireland and the Attorney General). Once again, these cases confirm that a national procedural rule should be presumed to be providing an adequate form of protection, save when instead by their nature they may hinder the full enjoyment of EU rights, and then should be subject to the scrutiny of the Court (Soledad Duarte Hueros v Autociba SA and Automóviles Citroën España SA).

The question of finality of judgments serves as another useful illustration. In several cases, the Court was asked the question of whether EU law requires national courts to ignore the finality of their previous judgments in order to provide for an effective judicial remedy to breaches of an EU right. This is a rather ‘extreme’ scenario, as respect for the principle of res judicata ensures legal certainty and is a universally recognized principle in any system of procedural law, however there may be cases where finality could leave the violation of an EU right unsanctioned. The Court attempted to navigate these acque si procellose by trying to be as ecumenical as possible. In its rulings in i-21 and Arcor, Kapferer, and Kempter (see also, in the context of the principle of equivalence, Dragoș Constantin Târșia), the Court of Justice reaffirmed the centrality of the role played by the national courts and in particular the importance of the finality of judgments as a fundamental value in ensuring the proper conduct of proceedings and legal certainty. It held that EU law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, ‘even if to do so would enable it to remedy an infringement of Community law by the decision at issue’. In all these cases, the national procedural system in question was supposed to have functioned properly as the appeals process, counter claims, evidence, opportunity to raise new pleas, and so on, were all in place. There was no vacuum to be filled. Thus, in many cases, it has been sufficient for the Court to simply recite the litany of judicial protection requirements (Klausner Holz Niedersachsen GmbH v Land Nordrhein-Westfalen; Telecom Italia SpA v Ministero dello Sviluppo Economico). In other specific cases, however, the Court found instead that the principle of res judicata must not be applied in so far as their application prevented the exercise of an EU right. The Court did not engage then, in an analysis of whether the national legal system provided for a possibility for reopening proceedings but simply intervened to set aside a national rule—or the behaviour of the national court?—that the Court considered as trespassing into EU competence. Not by chance, the cases whereby the application of the principle of res judicata would have meant, for example, disregarding a previous Commission decision in the area of state aid or applying an incorrect interpretation of VAT law, were all related to EU exclusive competences (Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA, formerly Lucchini Siderurgica SpA; Fallimento Olimpiclub). In conclusion, the intensity of the scrutiny upon the principle of effectiveness, as now candidly admitted by the Court itself, seems ultimately to depend on ‘the particular features of the situations and interests at issue’ (Hristo Byankov, para. 77).

(b)  The principle of equivalence

10  The principle of equivalence means that the procedures and remedies used for EU law-based claims should not be less favourable than those used for similar claims under national law. Although, once again, the ‘practical’ operation of such a principle is left to national courts, such a principle is based on the assumption that the national, and a hypothetical EU procedure or remedy, are somewhat comparable (that is not always the case). The like-for-like operation is thus predicated on a possible identification of the comparable EU right. Then, once a comparison is made, the question becomes whether the same situation has been treated equally. If not, EU rights cannot be said to be adequately protected. Not, therefore, an easy operation. The Court, after some awkward encounters with the intricacies of national law (Aprile Srl v Amministrazione delle Finanze dello Stato; Dilexport v Amministrazione delle Finanze; BS Levez v TH Jennings (Harlow Pool) Ltd), tends therefore to sensibly avoid becoming too embroiled in the minutiae of national procedural rules, instead laying down some general guiding points. In Palmisani, for instance, the Court explained that to establish the comparability of the two systems—national and Community—the specific features as well as the essential characteristics of the domestic system of reference should be examined, such as time limits to bring an action and the prerequisite of exhaustion of other remedies (Friedrich G. Barth v Bundesministerium für Wissenschaft und Forschung). The specific steps that such a comparison should entail were spelled out by AG Cosmas:

first, the claims in respect of which judicial satisfaction is sought must be similar; secondly, the procedural rules on which the comparison is based must not be considered in isolation, but in their procedural context; and thirdly, those procedures must not be chosen at random but must be of a similar kind (Opinion of AG Cosmas, Palmisani, para. 403; see also Câmpean, paras 55–56).

11  The Court also clarified that the principle of equivalence does not impose to extend the most favourable rule to all actions brought in a certain field of law (Orizzonte Salute v Ministero della Giustizia et al). In other words, Member States can of course differentiate between different areas of the law and introduce different procedural requirements. National courts generally are the ‘masters’ of their respective procedures. Thus, for instance, in Abdelhafid Bensada Benallalicy, the question was whether a plea alleging infringement of national law raised for the first time before the national court hearing an appeal on a point of law was admissible, if that plea is based ‘on public policy’ (Abdelhafid Bensada Benallalicy). The CJEU replied first by reiterating that it is for the competent national court to examine whether the condition connected to the principle of equivalence was satisfied in the case before it. Ad abundantiam, it added, that it was for the national court to determine ‘whether the right to be heard, as guaranteed by national law, satisfies the conditions required by national law for it to be classified as a matter of public policy’. Such ‘autonomy’ should be preserved, even if the plea can/could be qualified as such—as a matter of public policy—in EU law. In short, to use the words of the UK Supreme Court in discussing the equivalence principle, ‘this is really a matter of common sense. Differences in the procedural rules applicable to different types of claim are legion, and are frequently attributable to, or at least connected with, differences in the underlying claim’ (Totel Ltd v Commissioners for Her Majesty’s Revenue and Customs).

12  One of the very few cases in which the Court intervened as to find national law in breach of the principle of equivalence was in the Transportes Urbanos judgment (Transportes Urbanos y Servicios Generales SAL v Administración del Estado). In that decision, the Court found that the imposition of the requirement of exhaustion of remedies to bring a claim for damages against the Spanish State, following a breach of EU law, did not respect the principle of equivalence, in so far as similar claims for damages against the Spanish State based on national law infringements were not subject to the same pre-condition. Such a difference was reliant on established national case law based on the idea that, in reality, the difference in treatment was based on the fact that these were vastly different forms of actions. Such a difference made it, however, a near impossibility to bring an action in damages for breaches of EU law before having gone through all the national remedies first. Faced with a rather obvious attempt to circumscribe the principle of state liability, the Court, although framing its answer within the equivalence parameters, recurred de facto to an effectiveness test: firstly, it held that the main purpose of an action in damages is compensation for the loss suffered because of an act or omission of the state regardless of whether in breach of the Constitution or EU law. Secondly, it strongly reaffirmed the general availability of an EU action in damages which cannot be made subject to any ‘preconditions’. A similar case concerned Bulgarian provisions subjecting the right to damages in cases involving the Central Bank to extra conditions when compared to those applicable to EU damages action criteria. The Court, in striking down the national rules, observed that it was incumbent on the Member State to choose the ‘appropriate procedure’ as to guarantee a full application of the rules of State liability (Nikolay Kantarev v Balgarska Narodna Banka).

E.  A New Postulate? The Impact of the Charter

13  In recent years, the Court—supported by a strengthened Treaty structure—has definitively ‘constitutionalized’ the principle of judicial protection. Several recent CJEU judgments have indeed assessed the compatibility of national procedural law not only under effectiveness and equivalence, but by relying on it as a benchmark to measure effective judicial protection on Article 47 of the Charter and Article 19 of the TEU. It should, however, be remarked that this transformation is not explicitly spelt out in the Court case law. The different principles and analysis tend sometimes to be grouped together or used separately, creating some confusion, and giving rise to different interpretations (Craig and De Burca). Nonetheless, it seems safe to state that effective judicial protection via Article 47 of the Charter is the wider umbrella under which the sub-principles of equivalence and effectiveness continue to operate. Thus, in Mono Car Styling, the Court held that Union law ‘requires, in addition to observance of the principles of equivalence and effectiveness, that the national legislation does not undermine the right to effective judicial protection’ (see Mono Car Styling, para. 49). The Agrokonsulting case is also emblematic of this wider principle (ET Agrokonsulting-04-Velko Stoyanov v Izpalnitelen direktor na Darzhaven fond ‘Zemedelie’). The case concerned the decision to attribute jurisdiction in administrative disputes—disputes regarding the implementation of the European Union’s common agricultural policy—based solely on the seat of the administrative authority, which adopted the contested administrative act, and whether this could be considered as compatible with EU law. The Court approached the question in two ways: firstly, from the perspective of ‘effectiveness/equivalence’ and then from that of Article 47. In their evaluation of the first approach, the Court assessed the characteristics of the procedural rule in question. This was from the perspective of both the equivalence with other national provisions, as well as in light of the principles which formed the basis of the national legal system concerned, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. Under the Article 47 of the Charter route, the Court first clarified if the provision constituted a reaffirmation of the principle of effective judicial protection—a general principle of European Union law—and ‘checked’ whether the applicant had an effective remedy under national law for the enforcement of EU rights. The focus here is slightly different as under the Charter/principle of effective judicial protection, and the CJEU is concerned with the availability of an effective remedy at the national level and whether its design facilitates access to court. Under the principle of effectiveness and equivalence, the CJEU aims at ensuring that EU rights are effectively enforced at a national level, thus concentrating on the attainment of the objectives pursued by EU law at the national level (Biondi and Gentile). It could be thus argued that Article 47 of the Charter constitutes a new dimension in judicial protection, in ensuring full and effective judicial protection of EU rights as well as the protection of the fundamental right for individual parties to an ‘effective remedy’ where their rights have been infringed. For instance, in DEB, on the question of restrictions imposed by German law on legal persons from applying for legal aid, the Court, despite being specifically informed by the referring court that the Bundesverfassungsgericht had not taken issue with this restriction under the German Basic Law, noted the ‘right of a legal person to effective access to justice and … the general principle of effective judicial protection’ (at para. 29). Thus, it re-casted ‘the question referred so that it relates to the interpretation of the principle of effective judicial protection as enshrined in Article 47 of the Charter’ (at para. 33). It then examined at length the case law of the European Court of Human Rights on legal aid under Article 6(1) European Convention on Human Rights and concluded that ‘it is not impossible for legal persons to rely upon Article 47’. It went on to set out a framework of analysis for the national court (at paras 60–62). The Court only referred in passing to the effectiveness/equivalence test and mainly focused on how to enforce substantive guarantees where parties allege that their fundamental right under Article 47 has been infringed. Certainly, in our view, Article 47 makes ‘judicial protection’ instantly recognizable. Additionally, it allows the Court to reorder the elements of judicial protection previously scattered into the same composite box: a fair hearing, right of defence, equality of arms audi alteram partem and so on (see eg Glencore Agriculture Hungary Kft Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága). However, the approach adopted by the Court can be broadly assimilated to the one adopted in the context of effectiveness/equivalence, an approach that has to be modulated according to the EU rights at stake and the efficiency of national procedural rules. Thus, in many cases, the Court, reading Article 47 in conjunction with Article 52 of the Charter, requires that Charter rights remain subject to limitations when these are necessary and genuinely meet objectives of general interests. A useful point to consider is the usual balancing act between the potentially competing interests of the effectible application of EU law and the efficacy of national procedural systems. An example sufficient for this purpose is the relation between the use of Article 47 and data protection. Whilst Article 47 has been deployed by the Court as a criteria of legality to assess the validity of EU measures (Schrems), in the context of national law, the standard has been markedly different. In Textdata, for instance, a case concerning time limits for challenging fines imposed by Austria for the non-disclosure of data, the Court found that the national provision did not prevent the right for applicants to defend their rights. Although the Court recognized that the right of defence is an essential component of Article 47 of the Charter, it also stated that ‘fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, in the light of the objectives pursued, a disproportionate and intolerable interference which impairs the very substance of the rights guaranteed’ (Texdata Software, para. 84; Orizzonte Salute v Ministero della Giustizia and others; Ispas). Once again, in cases where a national procedural framework does not provide adequate forms of protection, the Court has not hesitated to wield Article 47 to set aside those provisions. For instance, in cases where national law did not provide the right to bring direct actions against the decisions of tax authorities (Berlioz Investment Fund; see a contrario State of the Grand Duchy of Luxembourg v B, where the system provided by Luxembourg was considered by the Court as compliant with Article 47 of the Charter) or in the cases where relevant EU policies such as environmental protection could be impaired (Deutsche Umwelthilfe eV v Freistaat Bayern). As a final point, some attention should be given to the new and fast-growing case law on Article 19 of the TEU in conjunction with Article 47 of the Charter. Such a combination deployed in high profile cases seems to have been relied upon by the Court, not just as a legal basis for protecting individual EU rights, but as a parameter for assessing the state of rule of law protection in Member States. As Associação Sindical dos Juízes Portugueses seems to indicate, however, it is the relationship between the principles of procedural autonomy and effective judicial protection that should be ultimately considered through the lens of Article 19 of the TEU. In this judgment, the Grand Chamber has provided the first interpretation of this provision and the consequences stemming from it for the procedural and judicial systems of the Member States. Article 19 of the TEU has been considered as enshrining the principle of effective judicial protection, with which Member States should comply when organizing their judicial systems. Internal judicial systems, which do not comply with the requirements stemming from that principle, including the independence of the members of judicial bodies, would reveal a breach of the principle of effective judicial protection.

Select Bibliography

  • A Biondi and G Gentile, ‘National Procedural Autonomy’ in A Peters (ed), Max Planck Encyclopaedia of International Law (Oxford University Press 2018) 1.

  • M Bobek, ‘Why There is no Principle of “Procedural Autonomy” of the Member State’ in HW Michlitz and B De Witte (eds), The European Court of Justice and the Autonomy of the Member States (Intersentia 2012) 305.

  • P Craig and G de Búrca, EU Law: Text, Cases, and Materials (7th edn Oxford University Press 2020).

  • P Haapaniemi, ‘Procedural Autonomy: A Misnomer?’ in L Ervo, M Grans, and A Jokela (eds), Europeanization of Procedural Law and the New Challenges to Fair Trial (Europa Law Publishing 2009) 87.

  • E Neframi, ‘The Duty of Loyalty: Rethinking Its Scope Through Its Application In The Field Of EU External Relations’ (2010) 47(2) Common Market Law Review 323.

  • S Prechal and R Widdershoven, ‘Redefining the Relationship between “Rewe-effectiveness” and Effective Judicial Protection’ (2011) 4(2) REALaw 31.

  • FG Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ (1993) 56(1) Modern Law Review 19.

  • J Temple Lang, ‘Article 10 EC—The most important “general principle” of Community law’ in U Bernitz, J Nergelius, and C Cardner (eds), General Principles of EC Law in a Process of Development (Kluwer 2008) 75.

  • W Van Gerven, ‘Of rights, remedies and procedures’ (2000) 37(3) Common Market Law Review 501.

Select Documents

  • Directive (EU) 2012/27 of the European Parliament and of the Council on energy efficiency (25 October 2012) [2012] OJ L315/1–56.

  • Directive (EU) 2013/30 of the European Parliament and of the Council on safety of offshore oil and gas operations and amending Directive 2004/35/EC (12 June 2013) [2013] OJ L178/66–106.

Select Cases

  • Case C-33/76, Rewe v Landwirtschaftskammer Saarland, ECLI:EU:C:1976:188.

  • Case C-45/76, Comet v Produktschap voor Siergewassen, ECLI:EU:C:1976:191.

  • Case C-106/77, Amministrazione delle Finanze dello Stato v Simmenthal SpA, ECLI:EU:C:1978:49.

  • Case C-79/84, Bozzetti, ECLI:EU:C:1985:306.

  • Case C-222/84, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, ECLI:EU:C:1986:206.

  • Case C-398/92, Mund and Fester, ECLI:EU:C:1994:52.

  • Case C-312/93, Peterbroeck v Belgian State, ECLI:EU:C:1995:437.

  • Case C-430/93 and C-431/93, Van Schijndel and others, ECLI:EU:C:1995:441.

  • Case C-46/93 and C-48/93, Brasserie du Pêcheur SA v Germany and The Queen v Secretary of State for Transport, ex parte Factortame Ltd and Others, ECLI:EU:C:1996:79.

  • Case C-43/95, Data Delecta Aktiebolag and Ronny Forsberg v MSL Dynamics Ltd, ECLI:EU:C:1996:357.

  • Case C-323/95, Hayes, ECLI:EU:C:1997:40.

  • Case C-261/95, Palmisani v INPS, ECLI:EU:C:1997:351.

  • Case C-265/95, Commission v France, ECLI:EU:C:1997:595.

  • Case C-122/96, Saldanha and MTS, ECLI:EU:C:1997:458.

  • Case C-274/96, Horst Otto Bickel and Ulrich Franz, ECLI:EU:C:1998:563.

  • Case C-228/96, Aprile Srl v Amministrazione delle Finanze dello Stato, ECLI:EU:C:1998:544.

  • Case C-326/96, BS Levez v TH Jennings (Harlow Pools) Ltd, ECLI:EU:C:1998:577.

  • Case C-343/96, Dilexport v Amministrazione delle Finanze, ECLI:EU:C:1999:59.

  • Case C-224/97, Erich Ciola v Land Vorarlberg, ECLI:EU:C:1999:212.

  • Case C-99/00, Criminal proceedings against Kenny Roland Lyckeskog, ECLI:EU:C:2002:329.

  • Case C-198/01, Consorzio Industrie Fiammiferi (CIF) v Autorità Garante della Concorrenza e del Mercato, ECLI:EU:C:2003:430.

  • Case C-201/02, The Queen on the application of Delena Wells and Secretary of State for Transport, Local Government and the Regions, ECLI:EU:C:2004:12.

  • Case C-234/04, Kapferer v Schlank & Schick, ECLI:EU:C:2005:674.

  • Case C-392/04 and C-422/04, i-21 Germany and Arcor v Germany, ECLI:EU:C:2006:586.

  • Case C-53/04, Cristiano Marrosu and Gianluca Sardino v Azienda Ospedaliera, ECLI:EU:C:2006:517.

  • Case C-119/05, Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA, formerly Lucchini Siderurgica SpA, ECLI:EU:C:2007:434.

  • Case C-2/06, Willy Kempter KG, ECLI:EU:C:2008:78.

  • Case C-445/06, Danske Slagterier v Bundesrepublik Deutschland, ECLI:EU:C:2009:178.

  • Case C-2/08, Fallimento Olimpiclub, ECLI:EU:C:2009:506.

  • Case C-101/08, Audiolux SA e.a v Groupe Bruxelles Lambert SA (GBL) and Others and Bertelsmann AG and Others, ECLI:EU:C:2009:626.

  • Case C-12/08 Mono Car Styling SA v Dervis Odemis and Others, ECLI:EU:C:2009:466.

  • Case C-542/08, Friedrich G. Barth v Bundesministerium fur Wissenschaft und Forschung, ECLI:EU:C:2010:193.

  • Case C-118/08, Transportes Urbanos y Servicios Generales SAL v Administración del Estado, ECLI:EU:C:2010:39.

  • Case C-406/08, Uniplex (UK) Ltd v NHS Business Services Authority, ECLI:EU:C:2010:45.

  • Case C-317/08, Rosalba Alassini v Telecom Italia SpA, ECLI:EU:C:2010:146.

  • Case C-249/11, Hristo Byankov, ECLI:EU:C:2012:608.

  • Case C-325/11, Krystyna Alder and Ewald Alder v Sabina Orlowska and Czeslaw Orlowski, ECLI:EU:C:2012:824.

  • Case C-260/11, Edwards and Pallikaropoulos, ECLI:EU:C:2013:221.

  • Case C-418/11 Texdata Software, ECLI:EU:C:2013:588.

  • Case C-32/12, Soledad Duarte Hueros v Autociba SA and Automóviles Citroën España SA, ECLI:EU:C:2013:637.

  • Case C-93/12, ET Agrokonsulting-04-Velko Stoyanov v Izpalnitelen direktor na Darzhaven fond ‘Zemedelie’, ECLI:EU:C:2013:432.

  • Case C-2/13, Opinion pursuant to Article 218(11) TFEU, ECLI:EU:C:2014:2454.

  • Case C-69/14, Dragoș Constantin Târșia, ECLI:EU:C:2015:662.

  • Case C-61/14, Orizzonte Salute, ECLI:EU:C:2015:655.

  • Case C-362/14, Schrems, ECLI:EU:C:2015:650.

  • Case C-200/14, Câmpean, ECLI:EU:C:2016:494.

  • Case C-505/14, Klausner Holz Niedersachsen GmbH v Land Nordrhein-Westfalen, ECLI:EU:C:2015:742.

  • Case C-429/15, Evelyn Danqua v Minister for Justice and Equality Ireland and the Attorney General, ECLI:EU: C: 2016:789.

  • Case C-161/15, Abdelhafid Bensada Benallalicy, ECLI:EU:C:2016:175.

  • Case C-3/16, Aquino, ECLI:EU:C:2017:209.

  • Case C-425/16, Raimund, ECLI:EU:C:2017:776.

  • Case C-682/15, Berlioz Investment Fund, ECLI:EU:C:2017:373.

  • Case C-298/16, Ispas, ECLI:EU:C:2017:843.

  • Case C–574/15, Criminal proceedings against Mauro Scialdone, ECLI:EU:C:2018:295.

  • Case C-571/16, Nikolay Kantarev v Balgarska Narodna Banka, ECLI:EU:C:2018:807.

  • Case C-46/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, ECLI:EU:C:2018:117.

  • Case C-189/18, Glencore Agriculture Hungary Kft. Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága, ECLI:EU:C:2019:861.

  • Case C-752/18, Deutsche Umwelthilfe eV v Freistaat Bayern, ECLI:EU:C:2019:1114.

  • Case C-34/19, Telecom Italia SpA v Ministero dello Sviluppo Economico, ECLI:EU:C:2020:148.

  • Case C-245/19, State of the Grand Duchy of Luxembourg v B, ECLI:EU:C:2020:795.

  • Totel Ltd (Appellant) v Commissioners for Her Majesty’s Revenue and Customs (Respondent), [2018] UKSC 44.