When I received the invitation to contribute the German chapter to Article 47 of the EU Charter and effective judicial protection, vol. II: The National Courts’ Perspectives, edited by Matteo Bonelli, Mariolina Eliantonio, and Giulia Gentile, I quickly realised that a comprehensive analysis would not be possible. This is because German courts publish only a fraction of their decisions, certainly a single-digit percentage. The reason for this is that the German Federal Constitutional Court (Bundesverfassungsgericht, see here) and the supreme federal courts recognise an obligation to publish only for decisions ‘worthy of publication’ (see eg, here), and this criterion is applied very differently and flexibly. When I wrote my chapter, the published decisions referring to Article 47 amounted to 292. The last decision I could take into account is dated 5 October 2021.
Self-confident jurisprudence in accordance with EU law
To start with one general result: Nowadays, German courts apply Article 47 of the EU Charter of Fundamental Rights (CFR) with great self-confidence. On a regular basis, German courts have applied Article 47 autonomously. Non-referrals to the Court of Justice of the European Union (CJEU) were justified with recourse to Article 267 TFEU and the case law of the CJEU, especially with reference to the CILFIT judgment (see also Consorzio Italian Management). The German courts’ autonomous application of Article 47 is characterized by respect for EU law. The national courts often explicitly rely on the case law of the CJEU. Occasionally, however, German courts have referred questions for a preliminary ruling to the CJEU. Finally, where the courts did not apply Article 47, they justified this by its lack of pertinence in the specific case.
I could not identify any deliberate deviation in the sense of an explicit departure from EU case law. Occasional minor deviations from CJEU case law – both in a restrictive and in an expansive sense – were rather due to insufficient familiarity with the intricacies of Union law, to adherence to national concepts on the one hand, and to an overly broad understanding of Union law or CJEU case law on the other. For one thing, German administrative courts keep on emphasising that Article 9(3) of the Aarhus Convention (AC), read in conjunction with Article 47 CFR, does not preclude making access to justice for individuals conditional on them having to ‘maintain impairment of a right’ (see eg, here and here). They thereby avoid the crucial question of how narrowly these rights should be interpreted when EU law prescribes rights – a question that challenges the traditionally narrow German understanding of access to justice according to the protective norm doctrine (Schutznormtheorie). By contrast, The Erfurt Regional Court (Case 8 O 481/21, referral of 9 August 2021) took the very broad view that the term ‘person’ used in the EU Charter for legal subjects includes nature and ecosystems such as rivers and forests. According to the court, this also applies to access to justice under Article 47.
Decisions on Article 47 exist in all courts (ordinary, administrative, financial, labour and social), and the range of areas of law involved, of issues addressed and of individual guarantees of Article 47 covered is quite broad. My analysis shows that Article 47 has a non-negligible impact on the German legal system, both in quantitative and qualitative terms. The overall impact of this provision is determined by multiple factors. In the following, I focus on three of them.
Judges as the human factor
Let’s start with the judges. First, the deciding judges’ knowledge of EU law influences the extent to which Article 47 and CJEU case law play a role in German court decisions. It can be assumed that there is a correlation between the qualification of the deciding judges, their knowledge of EU law, and the application of Article 47. Some findings may support this assumption.
The first five decisions up to the year 2007 were all rendered in the area of public law – two by the same senate of the Higher Administrative Court of Bavaria. In total, administrative courts rendered two-thirds of the analysed decisions. This is probably due to the fact that administrative judges have a comparatively good knowledge of Union law, as in the German law faculties, EU law is taught mainly as a sub-area of public law.
Furthermore, in principle (with the exception of the administrative courts), Article 47 was applied more frequently in decisions of the higher courts than in those of the lower courts: No first instance decision quoting Article 47 was published until 2013. Judges at higher courts are, in general, highly qualified, which suggests in-depth knowledge of EU law as well.
Over time, there was a moderate increase of court decisions beyond administrative courts, including in lower courts. This development coincides with the fact that the importance of Union law in German legal education has steadily increased and with it the knowledge of EU law by new generations of judges. With a stronger focus on Union law in the law curriculum – and increasing references to the EU Charter and CJEU case law in court decisions – not only the knowledge of EU law among German judges should grow, but also their willingness to apply the EU Charter.
The CJEU as an innovator
Second, the impact of Article 47 depends to a large extent on the existence of unambiguous CJEU case law to which the deciding judges can easily refer. The rising number of references to Article 47 can be attributed, in part, to relevant CJEU case law which has been applied by German courts in their decisions. For instance, all decisions in the area of environmental law have been delivered since 2017, the year of the CJEU’s famous Protect judgment on access to justice according to Article 9 of the Aarhus Convention. Several administrative courts referred to the Protect and Lesoochranárske zoskupenie (Slovak brown bear) judgments, according to which Article 9(3) AC, read in conjunction with Article 47 CFR, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law (see eg, here and here). As another example, in 2019 and 2020, 19 decisions were delivered on the dispensability of an oral hearing with reference to the CJEU’s 2017 Sacko judgment (see eg, here and here).
The existence of case law is of such importance for the application of Article 47 by German courts because effective legal protection is also guaranteed by other provisions, in particular by Articles 19(4) and 103(1) of the Basic Law as well as by Articles 6(1) and 13 of the European Convention on Human Rights (ECHR). Courts may also refer to the case law that has been issued on these provisions. In Germany, the ECHR has the status of a federal statute (cf Article 59(2)1 of the Basic Law). Nevertheless, according to the Bundesverfassungsgericht, courts also have to interpret fundamental rights in accordance with the ECHR (as far as possible) as read by the European Court of Human Rights (ECtHR) in its judgments (see here).
In many cases, Article 47 has been cited together with the corresponding provisions of the Basic Law and of the ECHR, as well as the respective case law. The combination of Article 47 with Articles 6(1) and 13 ECHR follows from Article 52(3) CFR. However, its combination with fundamental rights of the Basic Law ran counter to the case law of the Bundesverfassungsgericht until its Right to be forgotten I and II decisions. Until 2019, the court advocated the so-called separation theory (Trennungsthese), according to which the national and the Union spheres of fundamental rights were to be clearly separated from each other, which meant either the Basic Law or the EU Charter was applicable.
In general, German courts assume a parallelism between the guarantees of the Basic Law on the one hand, and the ECHR as well as the EU Charter on the other. Article 47 has therefore its greatest substantive impact where the national understanding of legal protection differs from that of EU law, especially the case law of the CJEU. Applying Article 47 may prompt judges to rethink traditional concepts of national law. The case law of the CJEU can thus trigger innovations in national law. One example is – again – the procedural question of standing, as the broad understanding of enforceable rights in the CJEU case law conflicts with the traditional German perspective, especially in the area of environmental law.
The Bundesverfassungsgericht as a gatekeeper
Third, the role that Article 47 plays in German courts depends on the Bundesverfassungsgericht, in two respects. On the one hand, the decisive turn in its case law in Right to be Forgotten I on the relationship between national fundamental rights and EU fundamental rights leads to an extension of the scope of application of the EU Charter and thus of its Article 47. According to this decision, the Bundesverfassungsgericht continues to review domestic law in situations that are not fully determined by EU law (primarily) on the basis of the fundamental rights of the Basic Law. However – and this is new – this does not rule out that the EU Charter may also apply in certain cases where Member States are ‘implementing Union law’ within the meaning of Article 51(1)1 CFR. Constitutional review cannot rely solely on the fundamental rights of the Basic Law where, in exceptional cases, there is specific and sufficient indication that this standard might not guarantee the level of fundamental rights protection of EU law. Such a scenario requires domestic law implementing EU law to be reviewed directly in light of the Charter rights.
On the other hand, this decision and the Court’s decision in Right to be Forgotten II suggest that the Bundesverfassungsgericht will itself rule on Charter rights more frequently in the future. This may contribute to a stronger significance of these rights, independently of the guarantees of the Basic Law and the ECHR, in the future. As the highest German court, the Bundesverfassungsgericht sets standards for the other German courts in its own handling of the EU Charter of Fundamental Rights and its Article 47. In Right to be Forgotten II, the Bundesverfassungsgericht upheld that the relevant standard of review for national provisions that are fully harmonised under EU law derives solely from EU fundamental rights due to the primacy of EU law. However, to the extent that fundamental rights of the Basic Law are consequently inapplicable, the Bundesverfassungsgericht itself reviews the national application of EU law by German authorities on the basis of EU fundamental rights to fulfil its constitutional responsibility with regard to European integration (Integrationsverantwortung). The Bundesverfassungsgericht conducts its review in close cooperation with the CJEU, requesting a preliminary ruling in accordance with Article 267(3) TFEU where necessary.
The Bundesverfassungsgericht has thus further opened the gateway into the German legal order for Charter rights, acting as a gatekeeper itself.
Posted by Angela Schwerdtfeger (Professor of Public Law, in particular Administrative Law, Georg August University Göttingen)
Suggested citation: A. Schwerdtfeger, ‘The Application of Article 47 of the EU Charter by German Courts’ REALaw.blog available at https://realaw.blog/?p=2670
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