My contribution to the volume on Article 47 of the EU Charter and Effective Judicial Protection – Volume 1: The Court of Justice’s Perspective, which I have co-edited with Mariolina Eliantionio and Giulia Gentile, analyses the impact of Article 47 of the Charter on a longstanding question: that of the EU-imposed limits to the procedural autonomy of the Member States. In my chapter, I argue that building on a centralisation trend of the EU system of judicial protection, the recent interpretation of Article 47 given by the Court of Justice contributes to further limiting national procedural autonomy. It does so to such an extent that it would be best to speak of limits to national autonomy tout court, rather than concentrating only on procedural autonomy: today, elements of the remedial and institutional autonomy of the Member States are also affected and limited by Article 47. After a brief introduction, I present three lines of the Court of Justice’s case law that, in my view, produce that effect, and then I offer a few concluding reflections on the impact of Article 47 on national autonomy.
The ‘old’ question
The question of the limits to – or even the existence of – national procedural autonomy is certainly not new. It was raised as soon as the Court of Justice delivered its famous Rewe decision, recognizing that, in the absence of EU procedural norms, Member States remain competent to regulate the procedures for the enforcement of EU law, but in doing so they have to comply with the principles of equivalence and effectiveness. Later, the Court added in Johnston that Member States must also ensure that national procedural norms guarantee ‘effective judicial protection’.
Article 47 of the Charter acts in this framework. To be clear from the outset, its impact on the procedural autonomy question has not been revolutionary. Instead, I argue that it has amplified and intensified a centralising trend that was already present in the Court’s case law: a trend, to summarise, of a continuing reduction of the autonomy of the Member States in the procedural field. Furthermore, and this may be a more fundamental step, acting together with Article 19 TEU, Article 47 of the Charter has expanded the reach of EU law beyond questions of procedural and remedial autonomy. EU law now interferes with the institutional autonomy of the Member States, areas of the judicial organisation where equivalence, effectiveness, and even the pre-Lisbon principle of effective judicial protection could not reach, or at the very least had not reached yet. In the next paragraphs – and to a fuller extent in my chapter – I set out these developments.
The first line of cases I have explored are cases in which Article 47 is invoked in conjunction with other EU procedural norms to indirectly determine the validity of provisions of national law or judicial practices transposing or implementing the relevant piece of EU legislation. The Court of Justice read the EU procedural norms ‘in the light of’ or ‘in conjunction with’ Article 47, and this link between secondary and primary norms produces significant consequences. Article 47, depending on the case in question, may guide the interpretation of EU procedural norms, clarify or strengthen them, but may also have a key ‘gap-filling’ function, and broadly contributes to ensuring the EU minimum standard of effective judicial protection within the scope of EU law. We see examples of this line of cases in particular in the field of EU migration and asylum law: the Torubarov and FMS case are some of the most interesting examples of this evolution of case law.
In this scenario, procedural autonomy is thus reduced first and obviously, as a result of the adoption of procedural legislation. But then, when the Court of Justice reads secondary law in the light of Article 47, the margin of discretion of the Member States that is left by EU harmonisation may be further diminished, and thus this constitutionally oriented interpretation of EU secondary procedural law can be seen as a form of reduction of procedural autonomy of the Member States. Here, Article 47 reaches beyond the traditional principles of equivalence and effectiveness, which operate almost exclusively in the absence of EU procedural norms, while the Charter right does not lose relevance even after the adoption of EU procedural law.
The second line of cases I have explored are instances in which Article 47 leads to creating new judicial remedies and/or empowering national courts to declare their competence to adjudicate on questions of EU law, even where national law does not grant them that power or otherwise limits their jurisdiction. Rather than procedural autonomy, I suggested referring to these instances as limits to the ‘remedial autonomy’ of the Member States.
The fact that Article 47, as an expression of the principle of effective judicial protection, may lead to the creation of new judicial remedies is not an entirely new story. After all, while the Court of Justice has often repeated that EU law does not require the creation of new procedures for the enforcement of Union rights, its case law has produced precisely that consequence numerous times, witness for example Unibet. In any event, the decisions of the Court in Berlioz and État luxembourgeois v B have evidently confirmed that in some situations Article 47 may indeed require the creation of new judicial remedies.
My chapter discusses another set of cases – most notably A.K. but also again Torubarov and FMS – where Article 47 has an empowering function for the national courts. In those judgments, thanks to the combination of the direct effect of Article 47 and the primacy of EU law, national courts acquired the competence to, first, disapply national provisions limiting or excluding their jurisdiction on matters of EU law, and second, to invest themselves with that jurisdiction. These are instances in which effective judicial protection works as a ‘sword’, and not only as a shield. In other words, in interpreting Article 47 the Court of Justice does not stop at the disapplication of the conflicting national norm but sets out in detail what must be done by the national court. In comparison with the traditional Rewe test, Article 47 goes in these judgments much further in empowering national courts and limiting remedial autonomy.
The last line of cases that my chapter discusses is the ‘judicial independence’ case law of the Court of Justice. Speaking of procedural autonomy is in this respect far-fetched. The Court’s rulings evidently do not deal with procedural aspects of the enforcement of EU law, but with structural and institutional elements of the national judiciaries.
The theme was discussed more in detail in Krajewski’s chapter in our volume, so in my contribution, I mostly emphasized the specific role of Article 47 of the Charter – vis-à-vis Article 19 TEU – in the judicial independence’s context (on the topic, see also Prechal on this blog). While Article 19 TEU has been instrumental in opening this new line of cases, starting from the much-discussed ASJP decision and the many follow-up cases, Article 47 has still played key functions. Firstly, and most importantly, the Court of Justice has built the substantive content of Article 19 TEU and the obligations and standards of judicial independence on the basis of Article 47 of the Charter. Furthermore, if, in the context of a preliminary ruling or an infringement action, the case falls within the scope of EU law, then the Charter and Article 47 become fully applicable. This was, for example, the case in A.K., already mentioned above.
The type of questions that have been tackled by the Court of Justice in the Polish cases (see here for an overview), but also in other references coming from Malta, Hungary and Romania, are quite far removed from the ordinary issues tackled under the Rewe test of equivalence and effectiveness. They concern key institutional elements of national judiciaries, including disciplinary proceedings, the composition and functioning of national judicial councils, and even procedures for the appointment of judges. Here too we, therefore, see Article 47 creating further limitations to national autonomy when compared to the earlier Rewe test.
What has Article 47 changed?
After more than a decade, it can therefore be concluded that the codification of the principle of effective judicial protection in Article 47 of the Charter and 19 TEU did not simply crystallise the pre-Lisbon situation, but paved the way to further developments that have, broadly speaking, limited the autonomy of the Member States. To be clear, this is not intended to be a criticism of the approach of the Court or an accusation of judicial activism. Most of the described developments are analytically and systematically sound and can be considered, largely, as logical consequences of the codification of the principle of effective judicial protection with the Treaty of Lisbon or of the Court moving to tackle worrying gaps in judicial protection.
Most notably, Article 47 has pushed the scrutiny of the EU more intensely into aspects related to the remedial autonomy and even the institutional autonomy of the Member States. Once again, this is not a revolution or a radical departure from the past. Rather, the cases analysed are part of a continuous harmonising trend, to which Article 47 has certainly contributed, and the argument developed is that the more recent and ambitious case law of the Court of Justice, as described in my chapter, has further amplified and intensified that trend.
Ultimately, what should we make of the idea of procedural autonomy after the developments described here? It is increasingly clear that it is far from being a domaine réservé, an exclusive competence of the Member States. On a closer reading of Rewe, that was never the position of the Court. Rather, procedural autonomy should be intended in a softer sense: only to the extent that there are no EU harmonising provisions, and providing that the national rules respect Article 47 of the Charter, as well as the principles of equivalence and effectiveness, then a Member State can be said to enjoy a light form of autonomy. The formula developed by the Court of Justice in A.K. and FMS describes the situation effectively:
‘when there are no EU rules governing the matter, although it is for the domestic legal system of every 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 EU law, the Member States are, however, to ensure compliance in every case with the right to effective judicial protection of those rights as enshrined in Article 47 of the Charter’.
In conclusion, procedural autonomy, as well as remedial and institutional autonomy, remain a valuable idea, but should not be seen as a legally binding legal principle, and not even as the starting point of the discussion in an increasingly more Europeanised and harmonised space, with stronger obligations imposed at the EU level.
Posted by Dr Matteo Bonelli (Assistant professor of EU law, Faculty of Law, Maastricht University).
Suggested citation: M. Bonelli, “Article 47 of the Charter, Effective Judicial Protection and the (Procedural) Autonomy of the Member States”, REALaw.blog available at https://realaw.blog/?p=2151