After exploring in the first volume of this project how the Court of Justice has interpreted and applied Article 47 of the Charter and the principle of effective judicial protection (see our conclusions on the first volume here), our second volume “Article 47 of the EU Charter and the Principle of Effective Judicial Protection – Volume II: the National Courts’ Perspectives” studied how the national courts of eleven legal systems have received the case law of the CJEU and more generally made use of Article 47 in domestic legal proceedings.
One of the key goals of this second volume was to reflect on whether Article 47 plays in national legal orders the same remarkable role that it has at the EU level, and whether national courts faithfully implement the CJEU’s case law ‘at home’. This study, we believe, allows us to understand and better place the role of Article 47 of the Charter in the composite and multilevel European fundamental rights landscape, and its potential to ensure effective judicial protection to individuals as well as a uniform and effective application of EU law.
In comparison to the conclusions offered in the first volume, where the key constitutional role of Article 47 and its fundamental function in the EU legal order strongly emerged both from the horizontal and the policy-specific chapters, our findings on the basis of the contributions of second volume are more nuanced. The national chapters point out that there is remarkable diversity on the role and impact of Article 47 in domestic legal orders, both from a quantitative and from a qualitative point of view. And while it is true that even in the domestic legal orders our authors have studied Article 47 is the provision of the Charter most commonly used by national judges, Article 47 often still plays second fiddle to corresponding rights of the ECHR and of national constitutions.
Given the difficulty or impossibility of offering general conclusions bringing together all national experiences, our final comparative chapter had modest yet tangible objectives. First, to look closer to the ground, within the different legal orders, to explore the peculiarities of the reception of Article 47 in the studies countries; second, to highlight areas where the impact of Article 47 has been significant and others where it has been more limited, or even negligible. That has allowed us to reflect on two matters: on the one hand, the obstacles that may have limited the application of Article 47; on the other hand, on its emerging – at least in some Member States – potential as a tool to ensure a more robust protection of European fundamental rights, and of EU law more generally. Following the structure of the questionnaire we prepared for the contributors, in our conclusive chapter of the volume we summarized quantitative and qualitative findings of the national chapters, analyzed the systemic impact of Article 47 in the legal orders studied, and reflected on what the national experiences can teach us on the role of Article 47 in the European network of fundamental rights protection.
Quantitative findings
As for the quantitative analysis, there is remarkable difference in the Member States studied, ranging from legal systems where Article 47 has only been used in a handful of cases, such as Croatia and Sweden, to systems where thousands of cases can be identified. A frequent use can be noted for example in Germany or Spain, but also in Poland, even if in the vast majority of the Polish cases reference to Article 47 was used as a sheer ‘ornament’, and brought little of added value to the argument built by the national court. The Italian legal system deserves a special mention in this context: the authors of the Italian chapter estimated that more than 3,000 judicial decisions delivered since 2000 by the Constitutional Court, the Court of Cassation, ordinary courts and administrative courts contain a reference to Article 47. Between these two extremes, there is a whole palette of systems, including the Belgian, Dutch, French, Irish and Hungarian ones.
Qualitative findings
The qualitative analysis focused on who (i.e., which courts) applies Article 47 of the Charter, in what areas of law, and when, meaning whether the application is reserved for questions falling within the scope of EU law, or outside its scope as well. We have also considered the dialogue between the national courts and the CJEU on Article 47 within and outside the preliminary reference procedure.
On the ‘who’ question, we can see instances of application of Article 47 of the Charter by all jurisdictions – administrative, civil, criminal, but also constitutional – and at all levels – first instance, appeal, and also supreme courts. This is common to almost all legal systems studied in the volume, with the partial exception being those Member States where Article 47 has an extremely limited impact. Across the board, the most active courts have been administrative courts, with migration, the environment and tax being the most common policy fields. Civil courts come second, with Article 47 of course being used especially in those areas at least partially harmonised by Union law, such as for example consumer law, while Article 47 has had a much more limited impact in criminal law and before criminal courts, the partial exception being, the area of the European Arrest Warrant.
As for the ‘when’, there is a significant level of commonality, as in most Member States, the application of Article 47 is reserved to issues within the scope of EU law. Outside the scope of EU law, in most legal orders we see at times general references to Article 47 without a direct application of it. The situation is partially different in the Netherlands and Spain, where we see instances of application of Article 47 outside the scope of EU law. Italy is then the real exception. There Article 47 is very often used outside the scope of EU law, together with the ECHR and the national constitution, without a clear distinction on the different scopes of application of the different provisions.
Moving to the issue of judicial dialogue with the Court of Justice on Article 47, the contributions reveal a mixed picture. We can juxtapose, for example, the attitude of the Croatian, French or Swedish courts, traditionally reluctant to send preliminary references to the CJEU, with that of Belgian or Italian courts, who have often asked the help of the Court of Justice under Article 267 TFEU. Moving beyond the number of cases referred to the CJEU, from a more qualitative point of view we can generally conclude that Article 47 is a source of prolific judicial dialogue between national courts and the CJEU. Even in countries where the general engagement with the preliminary reference has been sporadic, we can see key issues relating to effective judicial protection being referred to the CJEU for clarifications on the meaning and standards of Article 47 EUCFR. When the preliminary reference decisions of the CJEU ‘returned home’, the vast majority of them were implemented in the national legal order faithfully and correctly, our contributors observe. There are instances of inconsistencies, in terms of results or narrative and approach, but the overall picture is positive. More generally, even when national courts have applied EU law autonomously – and this of course is the vast majority of cases – they have mostly correctly followed the interpretation of the CJEU, and often also made explicit reference to it. A remarkable exception is here Poland. The authors have observed that the implementation of the Court’s case law on judicial independence standards depends on which court is called on to decide on the domestic case. While judges who are still independent faithfully apply EU standards, judges appointed after the reforms of the judiciary reject them.
The systemic impact of Article 47
As noted earlier, there is great variation on the systemic impact of Article 47 across legal orders. We go from legal systems where Article 47 has almost played no role,, such as Sweden and Croatia, to a few where the impact of the provision has been pervasive, with many others in between. Several chapters further offer individual success stories, where in a single legal order, for peculiar reasons strictly linked to that system, (specific) national courts have begun relying on Article 47 in a specific area. Examples can be found in the Belgian, Spanish, Irish and Dutch chapters.
We can see a more structural impact in three cases. In Italy, as already highlighted, the impact of Article 47 is rather pervasive. Italian courts, including the Corte Costituzionale, have intentionally decided to constantly apply Article 47 and the Charter together with ECHR rights and domestic constitutional rights, leading to an ever-growing number of references and at the provision becoming increasingly ‘rooted’ in the culture of Italian legal professionals. In Hungary, while the overall application of Article 47 by national courts is certainly not as pervasive as in Italy, we can trace several judgments in which Article 47 was used to enable significant interventions seeking to protect individuals against abusive administrative practices and illiberal legislation. And finally in Poland, where the overall impact is relatively limited, Article 47 EUCFR in combination with Article 19 TEU had however a ground-breaking impact in the area of judicial independence. Article 47 is here used as a shield against the executive and the legislative attacks on judicial independence, as a weapon of self-defence for members of the judiciary.
At the opposite end of the spectrum, we see legal systems where Article 47 has been used very little, with Croatia and Sweden being the clearest examples. Leaving aside those almost extreme cases, even where Article 47 is used at times, its application is mostly confined to certain courts, in specific areas of domestic law. Our contributors offered several explanations for that. Some relate to general obstacles to the application of EU law, and the Charter in particular, in domestic legal orders, including the still limited knowledge or familiarity of national courts with EU law, a lack of resources, or again a legal culture not conducive to it. Another point made is that courts have difficulty seeing what the added value of Article 47 would be when compared and contrasted to domestic standards of protection or the ECHR, with the consequence that national judges still prefer to rely on the ECHR.
Despite these concerns many chapters end on a more positive note, or they note timid evolutions that might nevertheless contribute to unlocking the potential of Article 47 in domestic legal orders. From a structural point of view, many contributions show that a more extensive reliance on Article 47 (together with, or instead of domestic constitutional provisions) may prove beneficial and conducive to a stronger protection of EU fundamental rights. This is due to the substantive standards developed by the CJEU, but also to the structural features of EU law including its direct effect and primacy. So, for example, several chapters show that, on closer inspection, Article 47 can actually offer higher protection than national standards in specific areas, or on specific issues.
Article 47 in the European network of fundamental rights protection
As noted earlier, while Article 47 is the more ‘popular’ provision of the EUCFR, in almost all Member States studied our contributors point out that national courts still have a preference for relying on the ECHR and/or their domestic constitutions offering corresponding or related rights. When Article 47 is used, it is often cited together with these other sources of protection, in a phenomenon that has been described as ‘cluster citations’[1]. In a sense, this is natural. Article 47, the Explanations to the Charter point out, corresponds to Articles 6 and 13 ECHR, and its meaning should be interpreted in harmony with national constitutional traditions. It is certainly not a new right added by the Charter, but one that already had solid roots in European constitutional law. As a consequence, the lack of references by national courts to Article 47 does not necessarily create a gap in judicial protection.
Yet there are also risks inherent in the ‘cluster’ or ‘network’ approach and more generally in the fairly uncoordinated co-existence between these different layers of protection. National courts in this network of fundamental rights protection might at times be ‘lost in complexity’ and lose track of the higher standards of protection that at times are guaranteed by Article 47 EUCFR. The Charter’s provision thus risks losing its autonomous meaning vis-à-vis the ECHR or national constitutions. The risks are particularly evident when EU and ECHR answers to the same (or very similar) legal questions diverge, potentially creating confusion for national courts or offering them an opportunity to reject the application of the Court of Justice’s case law by making reference to the lower ECHR standard.
Nonetheless, there are also positive signs that suggest that Article 47 is at times able to fulfil its potential and play a significant and autonomous role in the multilevel system of protection. First of all, many chapters point out that Article 47 has a crucial impact in those areas of national law where Article 6 ECHR is not applicable. Then, some chapters further show how national courts have been able to rely on Article 47, also thanks to the interpretation offered by the Court of Justice in preliminary references, in a way that raises the level of protection offered by the ECHR and national constitutions.
To conclude: there is no doubt, as we highlighted in our first volume, that Article 47 EUCFR is truly a cornerstone of the fundamental rights system at EU level, also thanks to the cooperation of national courts that have sent dozens of preliminary references based on that provision. Yet the reality at Member States’ level is more complex and more diverse, and the impact of Article 47 varies quite significantly from one Member State to the other. Read together, the chapters show that Article 47 can have, and at times already has, added value compared to other comparable provisions of the ECHR and national constitutions, and can contribute to raising standards of protection of fundamental rights. On other occasions, the autonomous meaning is not immediately evident and in fact domestic courts continue to prefer to rely on well-established ECHR provisions or domestic ones. The task of national courts could be facilitated if the Court of Justice would bring further clarity to its case law, explaining if and when Article 47 offers more extensive protection than the ECHR provisions, as well as setting out in clearer terms the relationship between Article 47, secondary legislation, and the related principles of effective judicial protection, equivalence, and effectiveness.
Finally, and more broadly, we cannot help but notice that, while national courts are in principle operating in a web as ‘EU courts’, they effectively operationalise Article 47 autonomously in ‘silo-mode’ in the cases on which they adjudicate. This might have implications for the way in which the case law on Article 47 is received and consequently applied at national level: while the CJEU case law on Article 47 applies equally to all national courts, the case law is filtered and translated at national level through the domestic procedural traditions and frameworks. Our second volume volume has taken a first step in looking at the shapes which Article 47 takes at national level. Further comparative law research should focus further on specific policy and/or procedural areas to better understand the nuances of the use of Article 47 at domestic level.
Posted by M Bonelli (Maastricht), M Eliantonio (Maastricht) and G Gentile (LSE).
[1] M. Bobek & J. Adams-Prassl (eds), The EU Charter of Fundamental Rights in the Member States (Hart Publishing 2020).
