‘A spectre is haunting Kirchberg’ – the Spectre of Article 47: the CJEU Case Law on the Finality of Judicial Decisions and on the Ex Officio Application of EU law, by Mariolina Eliantonio


The rules on the finality of judicial decisions serve to strike a balance between two competing imperatives: that of legality, which would hold unlawful decisions to be ideally revocable by an authority or reviewable by a court indefinitely, and that of legal certainty, which requires that legal relationships between citizens and administration be definitively settled at a certain point. The question of where to strike the balance between legality and legal certainty assumes a whole new dimension in the context of the EU legal order, since rules limiting the re-opening of a final administrative decision or a judicial decision which has acquired the status of res judicata, prevent the correct application of EU law and might even be considered a threat to the primacy of EU law.

Similarly, rules on the power or duty for courts to raise ex officio points of law which have not been invoked by the parties aim to balance, on the one hand, the need to uphold ‘objective legality’, protecting collective interests (when, e.g., rules of public policy are at stake), or upholding the imperative to deliver a sound judgment irrespective of the capacities and actions of individual litigants or their legal counsels, considerations which would all speak in favor of broad ex officio powers for courts. In the context of the EU legal system, the need for courts to apply EU law ex officio may also be regarded as linked to the need to ensure the effective application of EU law. On the other hand, considerations of procedural fairness (linked to the need to ensure the ‘party disposition’ principle in a dispute) as well as procedural economy would seem to limit the ex officio powers of judges.

This post, drawing on a chapter contained in a book on the role of Article 47 of the Charter in the case law of the CJEU, will review the case law on these rules and consider how the principle of effective judicial protection, and the right to an effective remedy enshrined in Article 47, have been used by the CJEU.

Re-Opening Final Judicial Decisions: Procedural Autonomy Limited by Equivalence and Effectiveness

The case law of the Court (see, for example, Kapferer, Fallimento Olimpiclub and, most recently, Vueling) on the rules concerning the reopening of judicial decisions having acquired the force of res judicata remains anchored to the principle of national procedural autonomy. Res judicata and the principle of legal certainty will have to give way to EU legality and the effective application of EU law only where the principle of equivalence or effectiveness so require, an assessment which national courts are called to make on a case-by-case basis and following the guidance of the CJEU arising from earlier case law.

In order to justify the importance attached to the authority of res judicata and the possible re-examination of a judicial decision taken in violation of the law of the Union, the Court of Justice has not engaged with Article 47 of the Charter, either to justify the questioning of the res judicata (because of the possible violation of the right to an effective remedy) nor to justify when it is not called into question (so as to ensure legal certainty).

What can also be observed is that the question of the re-opening of res judicata rulings of the national courts initially arose before the Court of Justice before the entry into force of the Charter. It is therefore to be imagined that, also after the entry into force of the Charter, the Court stuck to its pre-Lisbon line of reasoning without any new arguments based on Article 47 of the Charter, because it did not see any need or added value in the engagement of the Charter, especially as national courts did not seem to seek this engagement.

The ensuing question is however whether the Court should have engaged more with Article 47, and whether this could have delivered different results or a different balance between legality (and the effective application of EU law) and legal certainty. An interesting perspective of the possible added value of Article 47 can be offered by the situation at stake in XC. The referring court only grounded the question on the principle of effectiveness, which was relatively easily dismissed by the Court through the observation that the parties ‘were fully able to plead an infringement of [the relevant EU law] provisions and that [the competent] courts considered those complaints’. If the threshold of effectiveness is met through the mere existence of national courts hearing claims under EU law, it can surely be maintained that the right to an effective remedy requires somewhat more in terms of national rules. Therefore, if the test of effectiveness is interpreted as narrowly as in XC, it is certainly conceivable that Article 47 could offer litigants an enhanced level of protection beyond what the Rewe effectiveness test can offer.

Raising Points of EU Law Ex Officio

As made clear by the CJEU in Verholen, national courts are allowed to raise ex officio points of EU law not put forward by the parties. With regard instead to the duty of national courts to examine the conformity of national law with EU law of their own motion, according to the CJEU’s case law, the principle of effectiveness is the guiding factor, and the intrinsic nature, the aim and the purpose of the rule, and its application to the set of circumstances of the concrete case all have to be analysed.

Furthermore, the determination of whether a national rule preventing a national court from raising points of EU law of its own motion should or should not be considered in violation of EU law, has to take into account the aim and the importance of the EU law provision in question. In competition and consumer protection policy, the CJEU has gone beyond the test of effectiveness, by setting an unconditional duty for national courts to raise EU law ex officio, based on the need to ensure the full effectiveness of the underlying secondary EU law provisions.

As for rules on res judicata, also in this case the foundational case law was handed down before the adoption of the Charter, which explains the lack of engagement with it. A later ruling, however, Sporting Odds, was instead entirely framed around Article 47, and the Court did not venture back to its earlier case law in its reply to the referring Court. Nevertheless, engagement with Article 47 has not raised the level of protection for individuals in this context. Article 47 did not therefore serve to further nuance or move away from the test set out above or raise the level of protection for applicants, but merely set a very minimum threshold which admittedly does not add anything in terms of guidance for national courts as to how to assess their own national rules for compliance with EU law.

With respect to the consumer protection line of case law, more recently, the principle of effectiveness seems to have permeated the case law of the CJEU more intensely and Article 47 has somewhat entered the picture, though in a rather marginal and somewhat confused way. As a consequence, it is doubtful whether the refences to Article 47 have actually changed anything in the end result or the reasoning of the court. At the same time, it should be stressed that, precisely because of the extent of harmonisation reached in this field, it is equally doubtful whether it is possible to extend these conclusions to any field outside that of consumer protection.


National procedural rules concerning the duty to re-open final judicial decisions, as well as the duty to raise ex officio points of EU law which the parties have not relied on are meant to strike a balance between competing imperatives in national legal systems. What the examination of the case law of the CJEU has shown is that the Court does not – in general – favor one value over the other, but aims to find a fair compromise, even at the expense of the primacy and effective application of EU law. What can also be observed is that this balance has been struck largely through the principles of equivalence and effectiveness, with Article 47 of the Charter remaining mostly in the background.

With respect to rules on res judicata, national courts have not been helpful in prompting the Court to engage with Article 47, which has remained very much in the background of even the more recent case law. While most national rules in this area might just as well be tested under the principle of effectiveness or Article 47 with the same results, there may be some potential for an added value in the use of Article 47 as a threshold to assess when re-opening of judicial decisions is needed under EU law, especially if the Court sticks to a restrictive interpretation of the principle of effectiveness in this area.

With respect to the rules concerning the duty to raise points of EU law ex officio, being prompted by national courts, case law seems to have moved to a somewhat increased attention towards Article 47. Engagement with Article 47 has, until recently, however, not raised the protection for applicants nor qualify or modify the general case law in any way. While it can be argued that the case law does not need particular adjustments, since ‘overly’ restrictive ex officio rules would fall foul of the general – effectiveness-based – case law without the need to engage Article 47, a recent ruling from the CJEU seems to call for a re-thinking of this conclusion. After the publication of the book, indeed, the CJEU ruled that national courts are required to ascertain on their motion whether the detention of an illegally staying foreign national is lawful. Unlike the AG who completely constructed his Opinion on the basis of the effectiveness-based case law discussed above, the Court pointed to the gravity of detention as an interference with the right to liberty contained in Article 6 of the Charter and concluded that the national rules preventing ex officio examination of the detention conditions are in breach of Article 47. While this ruling seems to shine a new light on the potential for Article 47 to boost the capacity of national courts to raise ex officio grounds based on the violation of EU law, its potential (as has been argued here) is likely to remain bound to the specificities of migration litigation, as also hinted by AG Kokott in a recent Opinion concerning EU environmental law.

Posted by Professor Mariolina Eliantonio, Maastricht University

Suggested citation: M. Eliantonio, “‘A spectre is haunting Kirchberg’ – the Spectre of Article 47: the CJEU Case Law on the Finality of Judicial Decisions and on the Ex Officio Application of EU law”, REALaw.blog available at https://wp.me/pcQ0x2-zs.