The Chapter “Searching the Pieces of the EU Justice Puzzle: Articles 47, 48, 49, and 50 of the EU Charter of Fundamental Rights” authored by Giulia Gentile and Serena Menzione and included in the edited collection of M. Bonelli, M. Eliantonio and G. Gentile “Article 47 of the EU Charter and Effective Judicial Protection – The Court of Justice’s Perspective (volume 1)” investigates the role of Article 47 of the Charter of Fundamental Rights of the European Union as a provision within Title VI, entitled ‘Justice’. The starting point of the analysis included in the Chapter is that the interplay of Article 47 with the other provisions of the Charter’s Justice Title appears under-explored. Yet all these provisions are essential building blocks to ensure justice in the EU legal order since they delineate the essential entitlements shaping the administration of justice in the EU constitutional space.
Accordingly, our Chapter has two objectives: first, to shed light on the interplay between Article 47 and the other Justice provisions of the Charter, namely Articles 48, 49, and 50; second, to attempt at delineating the conception of justice that emerges from the interpretation and application of the Justice Title in the Court of Justice of the European Union’s (CJEU) case-law. To attain these objectives, the Chapter proceeds in three steps. The first step consists of a systematic interpretation of Article 47 in the Justice Title. The second step moves on to the case-law interpreting these norms. The third step reflects on the aspects of the EU conceptualisation of justice emerging from the homonymous Title of the Charter. The present blog post presents a summary of the key findings following the same structure of the Chapter. A brief conclusion follows.
The Justice Title of the Charter: A Systematic Reading
First, regarding the interplay between Article 47 and the other Justice provisions of the Charter, namely Articles 48, 49, and 50, it is argued that all these provisions enshrine different general principles of EU law which are corollaries of the rule of law. More precisely, while Article 47 enshrines the fundamental right to an effective remedy and a fair trial as a heritage of the general principle of effective judicial protection, Article 48 refers to the presumption of innocence, Article 49 provides guarantees concerning the principle of legality (nullum crimen sine lege, no punishment without law), the one of favor rei (the rule of the retroactivity of a more lenient penal law) and the one of proportionality of penalties; and Article 50 codifies the principle of ne bis in idem (the right not to be tried or punished twice). Therefore, all these provisions overlap to some extent with Article 47 which remains the primus inter pares among the EU fundamental rights in the Justice Title. At the same time, Articles 48, 49, and 50 complement Article 47 in different ways. In particular, Article 48 appears to add further guarantees to the rights of Article 47 mainly in the field of criminal law; Article 49 adds to the protection offered by Article 47 the requirements of foreseeability and fairness in the punishment of individuals, hence its link with the essential aspects of the rule of law; lastly, Article 50 complements Article 47 by guaranteeing specific entitlements in the context of criminal proceedings related to procedural efficiency and fairness. It follows from the above that the complementarity between Article 47 and the other provisions of the Justice Title especially concerns rights to be granted in the field of criminal law, hence suggesting that the evolution of the EU fundamental rights places the individual at a centre stage in shaping the administration of justice. Ultimately, in this regard, the impression is that the EU legal order is becoming more similar to a national one since it deals with questions of fundamental rights entitlements in a similar way to the EU Member States. National constitutions also include entitlements similar to those provided under the EU Charter. In conclusion, Articles 48, 49, and 50 appear as planets gravitating at different distances from Article 47, which is the fulcrum of the Justice Title.
The EU case-law on the provisions of the Justice Title of the Charter
Although Articles 48, 49, and 50 overlap with Article 47 to various extents, their relationships are different in the Court of Justice of the European Union’s case-law. While Article 48 does not add much to Article 47, Articles 49 and 50 appear to have a more autonomous value. More precisely, Article 47 and Article 48 appear to be interdependent in some judgments, such as Spetsializirana prokuratura concerning the right of suspects and accused persons to be present at trial based on the right to a fair trial; or Gambino and Hyka concerning the right to obtain the hearing of a witness. Instead, in other rulings, the same provisions are interpreted as autonomous in so far as Article 48 is an independent source of specific procedural rights, as we can observe in UBS Europe and Others. Moving on to Article 49, the latter appears to have more independence from Article 47 compared to Article 48. In particular, the EU case-law illustrates that Articles 47 and 49 reinforce each other. In this regard, Rosneft and Delvigne suggest that Article 47 is the gateway to Article 49: the existence of an effective remedy and compliance with the right to a fair trial (Article 47) is the preliminary step to then evaluate the principle of legality and the one of proportionality of penalties under Article 49. Yet other judgments have not deployed the full potential of Article 49 Charter, which appears caught up in the net of EU-established case-law on Article 47 and the proportionality of penalties. In other words, the added value of Article 49 of the EU Charter has not emerged in the case-law yet. Lastly, the relationship between Article 47 and Article 50 in the EU jurisprudence suggests that these two provisions shine in their own light. Independence is thus the most prominent feature of their relationship: in the EU case-law, no reference to Article 47 is made when Article 50 applies. Although both provisions give form to the EU notion of justice by ensuring that individuals are safeguarded from the arbitrariness of decisions of public authorities, Article 50 expands the guarantees deriving from Article 47 by laying down the ne bis in idem principle.
In conclusion, it has been observed that Article 47 and, in particular, the right to an ‘effective remedy’ under Article 47(1), are predominant in the CJEU’s case-law regarding fundamental procedural rights, with only a subsidiary role being played by the other procedural rights.
Finding (Some) Pieces of the EU Justice Jigsaw Puzzle
Building on the systematic and case-law interpretation of the Justice Title of the EU Charter, the Chapter then offers preliminary reflections on the notion of justice emerging from the homonymous Title of the Charter. First, justice seen through the lenses of Articles 47, 48, 49, and 50 Charter is the result of various sources of law, namely the ECHR, national procedural rules, EU measures providing for procedural rules and a matrix of different general principles. Hence, how the CJEU reconciles these various sources of law determines how individuals can seek justice in the EU legal order. Justice in the EU is accordingly not monolithic, but rather multi-layered, fragmented and polyform. The complexity of this cross-fertilization reflects an EU conceptualization of justice thriving to accommodate pluralism in a multilevel system of fundamental rights protection. Second, the Justice Title reflects an individual-centre conceptualization of justice by focusing on the protection of individuals against abuses by public authorities in the enforcement of the law. Nonetheless, there are also instances of interpretations that go in the opposite direction in the case-law. In Deutsche Umwelthilfe eV, Article 47 Charter contributes to the effective enforcement of EU legislation on gas emission, rather than to the protection of individuals against the abuses of public authorities. Hence, it is submitted that, arguably, a ‘general-interest-oriented’ application of Article 47 could deprive this norm of its nature as an individual fundamental right as interpreted in light of the individual-centred focus of the EU Justice Title. The expansion of EU competences in the field of criminal and civil procedure as well as the increase of EU secondary legislation providing procedural rights require instead an advancement of EU procedural fundamental rights for achieving justice in the EU legal order.
The interplay between Article 47 and the other provisions of the Justice Title of the Charter, namely Articles 48, 49, and 50, is still in the process of being shaped in the case-law of the CJEU. A more in-depth interpretation and application of these provisions, however, appears necessary to achieve the full potential of the Justice Title of the Charter. Therefore, focusing solely (or mostly) on Article 47 Charter risks fostering an excessively thin version of the rule of law. Against this backdrop, the increasing regulation of procedural rules at the EU level may provide legal practitioners and national courts, in collaboration with the CJEU, the opportunity to further explore the interpretation of the Justice Title of the Charter beyond Article 47. The Chapter thus concludes that the Charter strengthens the idea that the EU is based on justice under an individual-centred approach, yet the Justice Title has a potential that still has to be fully fledged out to develop the EU conceptualisation of justice. This development could also contribute to reinforcing the role of the Court of Justice of the European Union as a Court of Justice and not merely of EU law. In conclusion, justice in the EU is a complex puzzle, and most of its pieces are still to be found.
Posted by Serena Menzione and Giulia Gentile
Serena Menzione is a PhD candidate at the KU Leuven Institute for EU law. Her research deals with EU constitutional and EU procedural law, in particular with regards to the effective judicial protection of individuals’ EU rights.
Giulia Gentile is Fellow in Law at the LSE Law School. Her research interests lie in the fields of EU constitutional law and the protection of fundamental rights in the digital environment.
Suggested citation: S Menzione and G Gentile, “Searching the Pieces of the EU Justice Puzzle: Articles 47, 48, 49 and 50 of the EU Charter of Fundamental Rights”, REALaw.blog available at https://wp.me/pcQ0x2-xx
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