Fundamental rights are an essential trait of the European Union (EU) legal order, both as general principles of EU law developed gradually by the Court of Justice of the European Union (CJEU) since the 1970s, and through the elevation of the Charter of Fundamental Rights of the European Union (CFR) to the level of EU primary law by the Lisbon Treaty. Consequently, individuals should enjoy the highest level of protection of their fundamental rights under EU law against potential breaches by both EU and Member States’ actions. Perhaps one of the most famous expressions of individual protection against breaches of his/her fundamental rights is spelled out in Article 47 CFR enshrining generously an effective judicial remedy for ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated’. Yet, to date, this legal expression of a comprehensive right to judicial protection against breaches of the fundamental rights guaranteed by EU law is not fully realized, as it does not stand a serious reality check. Focusing specifically on legal protection against fundamental rights breaches by EU action, this blog post argues that there are serious blind spots in the system of judicial remedies available to the individual. A quick fix is suggested to partly bridge the current legal protection gap the individual is facing when his rights are breached by EU action. Next, a more overarching system of legal protection is suggested, by assigning a primary role to non-judicial remedies in redressing fundamental rights breaches by EU action. The way forward lies in developing a coherent system of effective non-judicial remedies with in principle judicially reviewable outcomes.

The ‘mirage’ of a complete system of judicial protection against fundamental rights’ breaches by the EU

Already a long time ago, in Les Verts, the CJEU proclaimed ‘a complete system of legal remedies’ ensuring presumably full judicial review against EU acts. Yet until now this promise remains unfulfilled as far as effective protection of fundamental rights against EU action is concerned.

Several arguments support this claim. First, the current system of judicial remedies does not sufficiently account for fundamental rights breaches caused by mere EU factual conduct, as argued in my contribution here. Second, the current system is ill-suited for effectively addressing fundamental rights breaches by EU action, be it in the form of factual conduct or a legally binding act adversely affecting the legal situation of the individual. On the one hand, that is because of legal design limitations in the current system of judicial review, in particular a too optimistic reliance on the preliminary reference procedure to address legal protection gaps (see Unión de Pequeños Agricultores), as well as its perceived insufficient capacity to react to and address promptly EU action potentially harming fundamental rights. On the other hand, the system remains lacunary also in the way in which it is interpreted and applied in practice by EU Courts. Thus, effective judicial protection of individual’s fundamental rights is significantly reduced by the rather strict approach taken by EU Courts as regards the admissibility conditions for annulment (Article 263 of the Treaty on the Functioning of the European Union [TFEU], as interpreted recently by CJEU in Carvalho) and failure to act (Article 265 TFEU) actions, as well as regarding the conditions for engaging EU liability under the action for damages (Article 340 TFEU). As a result, too often individuals cannot obtain sufficient and timely protection against fundamental rights breaches by EU action in front of EU Courts.

Hence one may conclude that the complete system of judicial protection against fundamental rights breaches by the EU remains, at least in part, a ‘mirage’. One needs then to consider what could realistically be done to turn the mirage as much as possible into a palpable reality.

Making judicial review more effective

One quick fix to the defective legal protection against fundamental rights breaches by EU action consists of a more ‘fundamental rights’ friendly interpretation of the admissibility and substantive requirements of existing judicial remedies. Article 47 CFR giving expression to the principle of effective judicial protection and enshrining it as a fundamental right seems to allow, and even impose, such an approach.

Hence, I argued here that (1) a more extensive understanding of the concept of ‘reviewable act’ under Articles 263/265 TFEU, (2) a more generous interpretation of the conditions pertaining to the standing of EU individuals before EU Courts along the lines suggested already a long time ago by Advocate General Jacobs in Unión de Pequeños Agricultores, as well as (3) a more flexible reading of the conditions of action for damages when breaches of fundamental rights are at stake could arguably make judicial protection more effective. This will require a change of attitude by EU Courts currently downplaying the relevance of Article 47 CFR through its so-called ‘dependent approach’ taken in Inuit and applied consistently ever since. While it is true that Article 47 CFR should not run counter the system of judicial remedies laid down by the Founding Treaties, the fear voiced by the CJEU in Carvalho that invoking fundamental rights breaches would lead to rendering the requirements of the proceedings against EU action meaningless or that this may result in an unconditional entitlement of the individual to challenge EU action before courts seems to be misplaced.

After all, the conditions for individuals to make use of available judicial remedies are not defined per se in the Treaties, but are foremost the result of the interpretation by EU Courts. EU Courts’ case law is dynamic and it can be shaped in light of changing circumstances. Accordingly, admissibility and substantive conditions enabling the individual to make use of judicial remedies against EU action can and should be shaped in light of new ‘constitutional’ elements such as Article 47 CFR. This would by no means require giving up such conditions altogether, but reading them in a way that gives full effect to the principle and fundamental right enshrined in Article 47 CFR. This may indeed require the CJEU to revisit inter alia its understanding of ‘reviewable act’, its Plaumann case law, and its restrictive view on the EU liability conditions more in line with the commandment to ensure full protection of fundamental rights.

An additional but partial route to ease effective judicial review could in principle be offered by Article 263 (5) TFEU concerning specifically acts of EU bodies, offices and agencies intended to produce legal effects in relation to natural and legal persons. Here one may argue that the invitation addressed to the EU legislator to provide ‘specific conditions and arrangements’ regarding actions brough by individuals against such EU acts, read in light of Article 47 CFR, could result in more lenient admissibility conditions for individuals claiming breaches of their fundamental rights. Yet it will very much depend in how far the CJEU sees such specific conditions and arrangements as an acceptable deviation or as an incompatible threat to its own interpretation of admissibility conditions under Article 263 TFEU. If the latter, the ‘specific conditions and arrangements’ laid down by the EU legislator would, in the best-case scenario, not change anything, or, in the worst-case scenario, add new hurdles to the restrictive approach taken by CJEU with regard to Article 263 TFEU (e.g. compelling the individual to exhaust demanding administrative procedures before going to court), potentially rendering judicial review even more difficult for the individual.

Switching the focus to the ‘bulk of the iceberg’: the primary role of non-judicial remedies in the system of legal protection against fundamental rights breaches by EU action

Debates around judicial review and legal protection within the EU concern primarily the availability and sufficiency of judicial remedies. Yet judicial remedies, though essential for a European Union based on the rule of law, are only the ‘top of the iceberg’ of the system of legal remedies, and often the last resort solution (they often come too late!) against EU action harming fundamental rights. Without downplaying the role of judicial remedies in addressing fundamental rights violations by EU action, it is argued that more attention should be paid to the role of non-judicial remedies (i.e. actions and procedures against EU action that do not directly involve courts) as a means to offer effective protection against fundamental rights breaches. In other words, the focus should be switched to the ‘bulk of the iceberg’. As I argued here, non-judicial remedies, be they internal or external, ‘(…) could provide easier access to the individual, comprehensive scrutiny, and relatively timely redress against potentially harmful EU action’ as compared to ‘costly, time-consuming, and restrictive judicial remedies’. EU administration should thus have the opportunity and the duty to offer in the first place redress for fundamental rights breaches by EU action, dispensing as much as possible the individual of the burden to seek justice before EU Courts.

The duty to put in place accessible and effective non-judicial remedies for protecting fundamental rights against EU action can find its legal foundation in the commandment of an ‘open, efficient and independent European administration’ in Article 298 (1) TFEU, in the general duty of the EU to respect the CFR in Article 51 (1) CFR, and, in particular, in the principle of good administration, also enshrined as a fundamental right in Article 41 CFR. Regarding the latter aspect, I argued that availability and access to effective non-judicial remedies could be regarded as an inherent guarantee for the enforcement of the specific rights encompassed within the right to ‘good’ administration given expression in Article 41 CFR. Alternatively, I suggested that availability of effective non-judicial remedies could be seen more broadly as an element of the general principle of good administration continuously developed by EU courts. As a result, EU non-judicial remedies should be designed and applied with the idea of fundamental rights protection in mind.

A look at the existing EU non-judicial remedies reveals a rather diverse and eclectic landscape, as shown also by Moritz Schramm here. They bear different names (e.g. complaint, referral, appeal) and have different shapes depending on the policy area, relevant legal framework, the roles and tasks of the EU actor involved, and the various functions they are expected to fulfil (e.g. ensuring legal review, scrutiny, accountability of the relevant EU actor) beside serving as a remedy for the individual. Some of them (e.g. European Data Protection Supervisor [EDPS]) seem, at least on paper, legally better equipped than others (e.g. European Ombudsman) in addressing potential fundamental rights breaches by EU, though empirical insights might nuance this assumption (e.g. the EU Ombudsman could be quite effective in addressing instances of maladministration entailing fundamental rights breaches, in spite of its findings not being legally binding on the EU administration, while EDPS, due to resource constraints, might face significant obstacles with ensuring effective enforcement of EU data protection legislation and protection of data subjects’ rights in spite of its significant formal powers). Other mechanisms reveal shortcomings and limitations as to their ability to address fundamental rights breaches effectively (e.g. EU agency Boards of Appeal [BoAs], Frontex fundamental rights complaint mechanism).

One horizontal remark is that such non-judicial remedies seem to have been designed in a rather piecemeal fashion. They lack a clear overall vision and conceptual framework addressing the minimum procedural and substantive standards such mechanisms should meet, as well as the synergies between them with a view to ensuring effective legal protection against fundamental rights breaches by EU action.

The way forward: developing a coherent system of effective non-judicial remedies with judicially reviewable outcomes

An overarching system of legal protection for the individual against EU action entails more extensive reliance by EU courts and the EU legislator on the principle of good administration and the principle of effective judicial protection, enshrined also as fundamental rights in Articles 41 and 47 CFR. On the one hand, EU Courts should revisit their restrictive approach on the access and redress for the individual under the judicial remedies provided in the Treaties (in particular under Articles 263/265 and 340 TFEU) in light of Article 47 CFR. They should moreover actively contribute to the understanding of good administration, be it as a general principle of law or as the fundamental right enshrined in Article 41 CFR, as including an inherent obligation for the EU administration to establish fully effective non-judicial remedies for the individuals invoking breaches of their fundamental rights. On the other hand, the EU legislator should actively develop a coherent and effective system of non-judicial remedies with the idea of fundamental rights protection in mind.

Trying to live up to the expectations of the ideal of a complete system of legal remedies for the individual against fundamental rights breaches by EU action, two propositions are put forward as I further elaborated here.

(1) The EU administration must in the first place offer a quick, effective, full ‘fix’ to the individual whose rights/interests have been affected by its activities. This requires developing principles, criteria and safeguards for designing such effective non-judicial remedies. It also requires a more systemic approach, by looking at and addressing the synergies between various non-judicial remedies and review mechanisms with a view to ensuring coherence and complementarity within the system, as well as adequate legal protection and redress to the individual.

(2) A combined reading of the principle of sound administration (enshrined as a right in Article 41 CFR) and the principle of an effective remedy (enshrined as a right in Article 47 CFR) supports ‘a more complete system of legal protection against EU action, featuring easily accessible, comprehensive, and strong non-judicial remedies with, in principle, judicially reviewable outcomes. This entails, as a rule, that non-judicial remedies should result in final legally binding decisions that can then be challenged before EU courts under Article 263 TFEU’ or under Article 265 TFEU, in case of failure to adopt such binding decisions. The individual would thus have the opportunity ‘to obtain appropriate redress the quicker and easier way (via the non-judicial remedy), with the safeguard that his rights will ultimately be protected by EU courts’ if the relevant EU institution or body fails to do so. ‘Ensuring by default judicial review concerning the final outcomes of non-judicial remedies could also fulfil a preventive function, in that it would increase the pressure on the EU administration to address properly fundamental rights infringements, once the ‘sword of Damocles’ of judicial review is hanging there.’

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Posted by Florin Coman-Kund, Erasmus School of Law, Erasmus University Rotterdam, comankund[@]law.eur.nl

This blog post is based on Florin Coman-Kund, ‘Legal protection against fundamental rights breaches through factual conduct by the EU’. In Melanie Fink, (Ed.) Mechanisms to Redress Human Rights Violations by the EU. (Cambridge University Press 2024) pp. 311-344.