Our volume “Article 47 of the EU Charter and the Principle of Effective Judicial Protection – Volume 1: the Court of Justice’s Perspective” has explored the impact of Article 47 of the Charter in the EU legal landscape. Aided by our contributors, we have embarked into a qualitative investigation addressing a twofold issue, namely, the constitutional significance and influence of Article 47 of the Charter, and the way in which the requirements stemming from Article 47 are interpreted by the Court of Justice in various policy areas. In this blog post we set out the main conclusions we reached in the volume.
The constitutional impact of Article 47 of the Charter in the EU Legal Landscape: Between Continuity and Rupture
The constitutional impact of Article 47 of the Charter features both continuity and rupture. These two dynamics emerge when observing the positive and negative impact of this provision.
Starting with the positive impact, Article 47 of the Charter shapes the way in which the EU administers justice. It is the central provision used by the Court of Justice to ensure that justice can be seen to be done in the EU. This profile is evident in the chapters authored by Gentile and Menzione on the Justice Title of the Charter and the chapter by Wallerman Ghavanini and Rauchegger on the synergies between Article 47 of the Charter and the preliminary ruling.
Moving on to the negative impact of Article 47 of the Charter, this provision constraints the procedural systems’ design choices of the Member States. Prechal, Krajewski and Bonelli showcase Article 47’s constraining force in a number of settings, ranging from the way in which the Member States should ensure compliance with the EU principle of judicial independence to the duty of Member States to provide sufficient legal remedies in the fields covered by EU law.
These consequences of the EU jurisprudence on Article 47 of the Charter appear, to an extent, as a natural evolution of the previous case law on the EU principle of effective judicial protection. Indeed, since the Johnston case, the principle of effective judicial protection has allowed the Court of Justice to draw the path for national courts in ensuring the effective enforcement of EU law. In this sense, we have identified continuity. However, two new profiles highlighting a partial rupture with the past emerge when it comes to Article 47 of the Charter.
On the one hand, the Court of Justice uses it in more prescriptive terms compared to the principle of effective judicial protection. The more prescriptive nature of Article 47 is facilitated by the binding nature of the Charter and the links between Article 47 and norms included in the Treaties having foundational value, such as Articles 2 and 19 TEU. On the other hand, Article 47 is officially part of the normative content of the EU rule of law. Although already since Les Verts judgment the Court of Justice had highlighted the connections between the rule of law and effective judicial review, with the judgment in the ‘Portuguese judges’ case it has become clear that a violation of the principle of effective judicial protection would also breach the EU rule of law.
Article 47 of the Charter in the Policy Areas: A Kaleidoscope of Colours with Increasingly More Visible Shapes
A. The Relationship Between Article 47 and the Principle of Effective Judicial Protection
With respect to the interactions between Article 47, the general principle of effective judicial protection, and the other key EU law principles of equivalence and effectiveness the chapters in our volume show a great deal of continuity in the current case law of the CJEU. However, since the pre-Lisbon case law had filled in aspects of the principle of effective judicial protection beyond what is strictly required under Article 47, these broad contours have been taken over and are now arguably ‘embodied’ in Article 47 to give further flesh to the obligations under this provision.
As is well known, the principle of effective judicial protection historically also has strong links with the right to a fair trial under Article 6 ECHR and the right to an effective remedy under Article 13 ECHR. The case law of the Court under Article 47 contributes to the effort of aligning the scope of the notion of effective judicial protection with the right to a fair trial.
B. The Relationship Between Article 47 with EU Secondary Rules of a Procedural Nature, Primary Law and International Law
The chapters in our collection comprise policy areas with various degrees of proceduralisation, ranging from heavily proceduralised fields, such as public procurement, migration and non-discrimination, to fields with fewer (but still present) secondary EU rules of a procedural nature, to non-proceduralised fields, such as tax law. The presence of these rules clearly has an influence on the way in which Article 47 is used by applicants and by the Court, but this influence does not always produce similar results.
For example, in procurement, the existence of remedies clearly spelled out in secondary law, has given rise to a line of case law more focused on the Remedies Directive than on Article 47 or the principle of effective judicial protection.
The fields of non-discrimination and migration point instead to quite different results. Here, the extensive proceduralisation of the fields caused secondary rules to be used in combination with Article 47, most often as an interpretation aid for procedural rules which leave a wide margin of discretion to Member States as to their implementation. However, there is also evidence of a self-standing use of Article 47.
In the European Arrest Warrant system, after some initial hesitance, Article 47 now firmly underpins the interpretation of secondary law and works as a key constitutional benchmark even when it is not explicitly mentioned in the case law of the Court.
C. The Pivotal Role of Article 47 to Further the Acquis Communautaire
The overwhelming impression arising from the chapters contained in our collection is that the Court of Justice has used the potential of Article 47 (alone or in combination with EU procedural rules) to boost the protection offered by EU substantive law. In some areas, this has also had the effect of limiting the procedural autonomy of the Member States.
This is evident, for example in the case law in the fields of migration and non-discrimination. With respect to the latter, Article 47 has served to strengthen the protection offered by EU secondary rules of a procedural nature, and, thereby, thanks to Article 47, ultimately the level of protection in non-discrimination cases has been raised. In relation to migration, Article 47 has been used not only to interpret secondary rules which are complex and sometimes vague, but also to limit the discretion of Member States in their (possibly too restrictive) implementation of secondary rules. In the EAW system, the Court has in recent times developed a ‘dynamic’ interpretation of the EAW Framework Decision that allows a strengthening of the protection offered by secondary legislation.
However, in virtually all areas covered by the book, there is some untapped potential for Article 47. The most striking example appears to be the procurement field. Here, Article 47 could have been used possibly as aid in interpreting secondary rules and in filling gaps left by secondary rules. However, this has not happened so far: national courts have tried to rely on Article 47, but the CJEU has so far stuck to the text of the relevant Directives.
D. The Broad Range of Procedural Areas Affected by Article 47
The range of procedural areas touched by first the principle of effective judicial protection and later Article 47 of the Charter is very broad, as the contributions in our volume illustrate. The national rules concerning access to court appear to be those which have probably most often been challenged by the requirements of effective judicial protection. For example, national rules on standing and access to court have been tested against Article 47 in the field of non-discrimination, migration, environment, the EAW and tax law. Also EU rules on access to court have been scrutinised under Article 47, sometimes successfully, such as in the CFSP field, and other times unsuccessfully, such as in environmental policy, but also in competition law.
Closely linked to access to court are rules on costs of proceedings, for which the case law of the CJEU has played a crucial role in environmental policy. Rules on legal representation and legal aid are also connected to those on access to court, and they have been at stake mostly in tax litigation.
Beyond rules on access to court, the case law on Article 47 has impacted rules concerning the scope and intensity of review by national courts. This has been the case especially in the field of migration. In the field of public procurement, in contrast, attempts to expand the scope of review of national courts based on Article 47 of the Charter have been unsuccessful. Several contributions in this collection point furthermore to an increasing role of Article 47 in respect of national rules on evidence and on the burden of proof, for example in migration, non-discrimination, and tax litigation.
Finally, Article 47 has significantly influenced rules on remedies. This may be observed in the area of migration law, and, with respect to sanctions, also in the field of non-discrimination. Along those same lines, national rules on interim relief have also been affected by the case law of the CJEU on effectiveness and effective judicial protection.
Conclusions
The contributions contained in this collection demonstrate that Article 47 has become a cornerstone of the European system of multi-level judicial protection. Together with a number of ‘friends’ (Article 19 TEU, Articles 6 and 13 ECHR, as well as the increasing number of EU secondary law provisions of procedural nature), and ‘relatives’ (the principle of effective judicial protection, as well as the twin principles of equivalence and effectiveness), it has been used by the Court of Justice to shape not only national procedural rules, but also systemic features of the national legal orders of the Member States. However, while showing the breadth and potential reach of Article 47, the contributions of this first volume have only shed light on one side of the story, that told from the Kirchberg plateau. The story of the role of Article 47 will only be complete if the perspective of the thousands of national courts – the European courts of ‘general jurisdiction’ – is also accounted for. After all, in the decentralised system of enforcement of EU law, it is first and foremost national courts that are called to apply and protect the rights which individuals derive from EU law, and to consider whether their own national (procedural) rules comply with Article 47 of the Charter. Our second forthcoming volume turns to the perspectives of the national courts.
Posted by Dr Giulia Gentile (Fellow LSE), Dr Matteo Bonelli (University of Maastricht) and Professor Mariolina Eliantonio (University of Maastricht)
Suggested citation: G Gentile, M Bonelli and M Eliantonio, “Concluding thoughts on Article 47 of the Charter and effective judicial protection – Volume I”, REALaw.blog available at https://wp.me/pcQ0x2-Aw.
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