Considering the EU Charter in the French Jurisdiction

Any comparative research on the impact of Article 47 of the EU Charter of Fundamental Rights in the European Union (EU) legal order on  the one hand, and in the French jurisdiction on the other hand may give to contradictory results. The EU Charter – the ‘Magna Carta’, the ‘Bill of Rights’ of the EU – is playing a growing role in the construction of a ‘constitutional identity’ of the EU. It also offers a major instrument in the judicial protection of fundamental rights since its Article 47 on the right to an effective remedy and a fair trial has given rise to an important case law of the Court of Justice of the European Union (CJEU). Despite this significant role in the EU legal order, the impact of Article 47 of the Charter in the French legal system remains quite limited.

In that respect, the French constitutional context is a first relevant indicator. Indeed, the French Constitution does not make an explicit reference to the EU Charter. The constitutional basis of the Charter only derives indirectly from Articles 55 and 88-1 of the French Constitution. Based on the general clause contained in Article 55 of the French Constitution, all international and European legal instruments have a higher status than ordinary domestic law. We can thus presume that this ‘supra-legislative’ value is also provided for the Charter. As regard Article 88-1 of the Constitution, this is the only provision that expressly refers to the Treaties on the European Union (TEU) and on the functioning of the European Union (TFEU), which themselves refer to the EU Charter of Fundamental Rights (see in particular Article 6 § 1 TEU).

Against this background, it is extremely rare in France that acts of the Parliament mention Article 47 of the Charter or any other of its provisions. Although there is a growing tendency in EU secondary law to make reference to the Charter, this is absolutely not the case for French legislative instruments, even the ones that transpose or implement EU law.

Therefore, looking for Article 47 of the Charter in the French legal system leads us mainly to study the case law of the French administrative and ordinary courts. Indeed, these are the only courts having jurisdiction to assess the compliance of all acts, including acts of Parliament, with EU law and its Charter.

The Limited Effect of Article 47 of the Charter in the French Case Law

Our research, mainly based on Legifrance open data (i.e. the French public service for the digital dissemination of law), acknowledges that the impact of Article 47 in the French case law is not significant. In administrative disputes, Article 47 is quoted in more than 400 judgments, while around 70 decisions by the ordinary courts quote this provision. This number of cases of both ordinary and administrative courts referring to Article 47 is quite disappointing, even if since 2014 there has been an expansion of its application by the French courts. There is no doubt that the right to an effective judicial protection became more visible and accessible in the French legal system since its recognition by the Charter. However, its codification in the Charter since 2000 – more than 20 years ago – and the entry into force of the latter 14 years ago could have given rise to a more important number of cases applying effectively Article 47. In addition, while the latter is the most often invoked article of the Charter before the French administrative judge, the Conseil d’État has never ruled thatit had been breached. It is also very rare that lower administrative courts applied this Article to annul a provision of national law.

In the great majority of cases in which Article 47 is effectively applied, French judges apply it in too confident a manner or, in other words, ‘too autonomously’, without bringing the matter before the CJEU. Certainly in these cases, courts are generally applying Article 47 in line with the case law of the CJEU and frequently recall it. It is however surprising that only very few cases have given rise to a question to the CJEU for a preliminary ruling dealing with the interpretation of this article. Most of the time, courts refused to refer a question to the CJEU on the basis of the ‘théorie de l’acte clair’. This is obvious when the almost 500 judgments of administrative and ordinary case law where Article 47 was mentioned are compared with the only four requests for a preliminary ruling: a rather disappointing figure for the most often invoked article of the Charter!

In some cases, like the Lactalis (2020) and Kermadec (2022)judgments, the Conseil d’Etat refused to submit a request for a preliminary ruling on the following question raised by the applicants: Does the right to an independent and impartial tribunal granted by Article 47 of the Charter prevent a national court from ruling on an action for damages arising from an infringement of EU law that is coming from a previous decision of the Conseil d’État adjudicating at last instance? In both cases the Conseil d’Etat held that it can be simultaneously ‘judge and party’ in the same case since, due to the principle of procedural autonomy of the Member States, it is for it to decide the competent court to adjudicate in such a case without having to the CJEU. Beyond the criticism that has been exercised by the French doctrine on these judgements, the simple lapidary rejection of the argument of the applicants asking for a preliminary ruling question by the Conseil d’État did not allow an effective application of Article 47 of the Charter, which constitutes a basis on which the CJEU relies in order to interpret Article 267 TFEU (see CJEU, Consorzio Italian Management case of 2021 :

“it follows from the system established by Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter, that, if a national court or tribunal against whose decisions there is no judicial remedy under national law takes the view, (…), that it is relieved of its obligation to make a reference to the Court under the third paragraph of Article 267 TFEU, the statement of reasons for its decision must show either that the question of EU law raised is irrelevant for the resolution of the dispute, or that the interpretation of the EU law provision concerned is based on the Court’s case-law or, in the absence of such case-law, that the interpretation of EU law was so obvious to the national court or tribunal of last instance as to leave no scope for any reasonable doubt”  – bold added; for more discussion on this case, see here). 

There is no doubt that these cases of the Conseil d’Etat are two ‘missed opportunities’ for the French system and for the European legal integration. In that respect, French courts have not contributed to a significant ‘dialogue of judges’ with the CJEU as far as it concerns the interpretation of Article 47.

Some Reasons Explaining the Limited Effect of Article 47 of the Charter

Different reasons may explain this limited impact of Article 47.

First, the principle of effective judicial protection in the French legal system is a historically protected right with constitutional value. Therefore, French courts may feel familiar with this procedural standard which also explain the low number of preliminary ruling references. 

Second, French courts generally apply it only in areas that fall within the scope of EU law and never outside of it. Thus, Article 47 has no ‘spill-over’ effect in the French legal order. In addition, French courts adopt a rather restrictive conception of the scope of EU law and in particular of the notion of ‘implementation’ mentioned in Article 51 of the Charter. This is quite confusing comparing to the broad conception adopted by the CJEU in, for instance, the Akerberg Frasson case.

Third and most important, the French courts are strongly imbued with the fundamental rights laid down by the ECHR. Article 6(1), on the right to a fair trial and Article 13 on the right to effective remedy are indeed the main legal grounds ensuring effective judicial protection within the French legal order. Following a basic search on Legifrance, more than 7,800 French judgments refer to Article 6 of the ECHR whereas only around 500 mention Article 47 of the Charter. Because of the temporal anteriority of the ECHR vis-à-vis the Charter, as well as its general scope of application, its implementation by French courts broadly prevails on the application of the Charter.

In practice, when the applicants ground their demand simultaneously on Article 6(1) ECHR on the one hand and Article 47 of the Charter on the other hand, we observe that French courts implicitly consider that there is only one argument raised with two legal grounds: the ECHR and the EU Charter. This is the reason why Article 47 of the Charter is ‘amalgamated’ with the provisions of the ECHR as provisions ensuring ‘equivalent protection’. This combined application of the Charter and of the ECHR does not give the opportunity to national courts to examine the content of Article 47 in an independent way and to fully ensure its effectiveness.

Toward a Growing Importance of Article 47 of the Charter in the French Case Law?

Despite the fact that the full potential of Article 47 of the Charter has not yet been fully perceived in France, there are two areas in which we can observe a certain ‘expansion’ of Article 47 application, i.e. immigration law and tax procedure. The reason for that is simple: both of these areas fall outside the scope of Articles 6 and 13 of the ECHR.

In the field of taxation, it seems that Article 47 has gained a stronger effect. In Péronne judgement of 2020, the Conseil d’État recognised, for the first time that the right to an effective judicial protection guaranteed by Article 47 includes the right of defence and especially the right to have access to the file by the taxable person. Therefore, Article 47 can be invoked not only in relation to court proceedings but also to administrative proceedings. By recalling the Glencore judgment of the CJEU, it ruled that a breach of the right of access to the file during the administrative procedure is not remedied by the mere fact that access to the file was made possible during the judicial proceedings.

This case will have important practical effects in the administrative case law in the future. Since the rights of defence are considered as component of the principle of effective judicial protection, a new field of application of Article 47 is possible. It will reinforce the legal arsenal of the applicants in tax procedure in France. Indeed, the right to defence has a broader scope of application in EU law compared to French law. Therefore, it will probably oblige French courts in the future to give access to a larger category of documents for situations governed by EU law.

All in all, the application of Article 47 of the Charter before French courts leaves a contrasting impression, a mixture between a fallback position and a combative position. French judges still have room for improvement in the implementation of Article 47 of the Charter and in their dialogue with the CJEU.

Posted by Marion Ho-Dac (Artois University & AIA NRW) & Lamprini Xenou (Créteil East-Paris University, UPEC)

Suggested citation: M. Ho-Dac and L. Xenou, ‘How Do French Courts Deal with Article 47 of the EU Charter? There is Still Room for Progress’ REALaw.blog available at https://realaw.blog/2023/06/02/how-do-french-courts-deal-with-article-47-of-the-eu-charter-there-is-still-room-for-progress-by-marion-ho-dac-amp-lamprini-xenou/