(25) The EU Charter of Fundamental Rights

 Human Rights (Movie)ECHR26

Art. 47 in the Case Law of the European Court of Justice

Reference to Art. 47 CFR is rather unfamiliar in the case law of the ECJ.9 Although the Charter has been mentioned in the vast majority of the decisions on the matter, the Courts have made reference to the right to an effective judicial protection,10 to the right to a fair trial,11 to the right to a hearing within a reasonable time12 and to the right of defence, whichrepresent specific manifestations of the former.

Moreover, the rules of procedure state that the parties are entitled to free legal aid so to ensure access to justice regardless of the citizens’ financial resources.13

The relevant case law mostly concerns EU competition law, for it is in this field that legal or natural persons risk having their rights violated by the European Commission in the course of an administrative procedure, and can seek judicial review before the GC (Court of First Instance before the Lisbon reform) and, on appeal, before the EUCJ.

The Right to an Effective Judicial Protection

As the ECJ said in Johnston14:

 

The right to an effective judicial protection of the rights that derive from the Community legal order is one of the general principles of law stemming from constitutional traditions common to the Member State.

Moreover, the Luxembourg judges underlined that this principle is also enshrined in Arts. 6 and 13 ECHR.15 This interpretation and its implementation has some interesting implications. First of all, the conditions for the admissibility of an action for annulment are not dependent upon the claimant’s interpretation of the right to effective judicial protection: the Court stated that an individual who is not directly and individually concerned and whose interests consequently could not be affected cannot invoke the right to judicial protection.16 Otherwise, the ECJ would exceed the jurisdiction it enjoys under the treaties.17

However, the EU legal order guarantees the possibility to address the Court. The latter claims that, by virtue of Arts. 263 (230 TEC) and 277 TFEU (241 TEC), combined with Art. 267 TFEU (234 TEC).

The Treaty has established a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions, and has entrusted such review to the Community Courts.18

However, if they cannot directly challenge EU measures of general application under Art. 263 (4) TFEU (230 (4) TEC), natural or legal persons are able – depending on the case – either to indirectly plead for the invalidity of such acts before the European Union courts under Art. 277 TFEU (241 TEC) or, alternatively, to act before the national courts applying for a preliminary reference to the EUCJ as to their validity.19 In fact, as argued by AG Kokott in Roquette Frères:

 

Where no other possibility exists for an applicant to obtain a review of the lawfulness of a Community legal act concerning him, the fundamental right to effective judicial protection requires the indirect route – outlined immediately above – not to be barred to him and his indirect challenge to be admissible in an action before national courts.20In this case, in fact, the exclusion of the indirect challenge in an  action before national courts can only be justified in cases where it would undoubtedly have been open to the individual to bring annulment proceedings before the EU Courts. By contrast, should objective uncertainties remain, the private parties are by and large granted standing under Art. 263 (4) TFEU (230 (4) TEC). Moreover, individuals have the possibility to act before the EUCJ promoting an action for non-contractual liability under Arts. 268 (235 TEC) and 340 TFEU (288 TEC). However, given the strict liability conditions laid down therein, their chances of success are rather limited.21

As to the protection of EU rights within the national legal orders, the Court has in more than one occasion underlined those fundamental rights, which form an integral part of the general principles of European Union Law, “must also be observed by the Member States when they implement Community rules.”22 Therefore, Member States have the responsibility to ensure, at the national level, judicial protection against such proceedings with all the guarantees provided for by domestic law.23 In fact, the EU legal order requires that national legislation not undermine the right to an effective judicial protection.24

The Right to a Fair Trial

 

To describe the concept of “fair trial”, the EU judges have regularly referred to the Strasbourg case law. In Ordre des barreaux francophone et germanophone et a., for instance, they underlined that it constitutes a fundamental right which the European Union respects as a general principle under Art. 6 (2) TEU. On other occasions the ECJ clarified that this concept consists of various elements which include the rights of defence, the principle of equality of arms, the right of access to the courts and the right to legal assistance both in civil and criminal law proceedings.25

This idea was reaffirmed by the Court of First Instance (now General Court, hereinafter CFI) in Schneider Electric SA/Commission, where it stated that: Observance of all persons’ right to a hearing before an independent and impartial tribunal is guaranteed by Article 6(1) of the Convention, to which reference is made by Article 6(2) of the Treaty on European Union and which was reaffirmed by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.26

In particular, it has been pointed out that the right to a fair hearing is a rule intended to confer rights on individuals and appears amongst the fundamental rights protected in the EU legal order by the ECJ, which is called upon to ensure its respect by the Institutions while exercising their competences.27

This judgment is also relevant because the judges expressly defined the content of Art. 47 of the CFR despite its non-binding nature. To be honest, reference to the Charter (and to some of its provisions) can be found in the opinions of the Advocates General28. Art. 47 of the Charter, for example, was mentioned in the opinions delivered in Maersk Olie & Gas A/S29 and in Pupino.30

In the former case, AG Léger invoked this rule in relation to the (legal) notion of trial. In particular, arguing on the basis of the right to a fair trial, he suggested that in defining the expression “party to proceedings”, the safeguards laid down in Art. 6 ECHR and in Art. 47 CFR, according to whichevery person has the right to be heard, must be respected. The right of every person to a fair hearing is indeed a general principle of European Union law.

In Pupino, AG Kokott suggested that each Member State must also comply with the right of the accused to a fair trial since, under Art. 6 (1) TEU, the European Union, “that is to say, the Community and the Member States”, must respect that right, which is also enshrined in Art. 47 of the Charter. In this regard, the Opinion underlines that Art. 6 ECHR is fully applicable. With the ratification and the entry into force of the Lisbon Treaty this type of reference will no longer be necessary: on the one hand there will be a legally enforceable Charter; on the other, the EU will accede to the ECHR.

The Right to a Hearing within a Reasonable Time

 

The right to a hearing within a reasonable time, which also constitutes one of the general principles of EU law, is enshrined in the second paragraph of Art. 47 CFR, that draws inspiration from the ECHR and its interpretative case law. To analyse those rules and how they must be applied, however, reference can be made to the copious jurisprudence developed over the years by the ECJ and the CFI, especially in the field of competition law. In this sense:

 

Observance of a reasonable period has been seen by the Community judicature above all as a test for establishing a possible breach of certain general principles of Community law such as, notably, the principle of the protection of legitimate expectations, the principle of legal certainty, the principle of protection of the rights of the defence, as well as the right to a due process.31

Furthermore, the right to a fair trial within a reasonable time represents a criterion by which it may be determined whether the EU institutions have acted in accordance with the principle of sound administration. To use AG Mengozzi’s words:

 

Regardless of its classification as a general principle of Community law or a mere component of principles that are classified as such, compliance with a reasonable time limit is a requirement imposed on the Community administration as a basis for assessing the legitimacy of action taken by it.32

This rule, above all, imposes on the institutions a time limit for exercising the powers entrusted to them, since – in compliance with the principle of legal certainty – an Institution cannot unduly and indefinitely defer the exercise of its duties. In Baustahlgewebe, 33 which remains an isolated case, the ECJ recognized the violation of that right by the CFI. This judgment represents a landmark decision on the respect of the right in question by the institutions, both in judicial and administrative procedures. On this occasion, the Court decided on appeal against a judgment of the CFI. In support of its action, the appellant claimed that the time taken by the latter to give judgment had been excessive. By analogy with the ECtHR judgments in Erkner and Kemmache, 34 the ECJ declared that the reasonableness of the time of the trial must be appraised in the light of:

 

(a) The circumstances specific to each case and, in particular, the importance of the case for the person concerned;

(b) The complexity of the case and

(c) The conduct of the applicant and of the competent authorities.

 

In particular, as to the first criterion, it is important to underline that both the economic aspect (i.e., the fact that the economic survival of the appellant is not endangered by the proceedings) and the legal aspect (i.e., the need to ensure legal certainty to the applicant, its competitors and other third parties) must be taken into consideration. The second element that judges might appreciate is the number of applications decided concomitantly and which are formally joined for the purposes of the oral procedure, as well as the different languages of the procedure.

As far as the conduct of the appellant is concerned, the courts may evaluate any delaying tactics. With reference to the conduct of the competent institutions, the ECJ has stated that the structure of the EU judicial system justifies, to a certain extent, that the judge – who is ultimately responsible for establishing the facts and undertaking a substantive examination of the dispute – be allowed a relatively long period to investigate actions calling for a close examination of complex facts. However, this does not relieve the EU Court from the duty to observe reasonable time limits in dealing with cases pending before it, acting in accordance with the rules governing the use of languages and the publicity of judgments.

More precisely, the EU judges considered the plea alleging the excessive duration of the proceedings to be well founded for the purposes of setting aside the contested judgment, in so far as it set the amount of the fine imposed on the appellant company. In fact, in the absence of any indication that the length of the proceedings affected their outcome in any way, the ECJ decided not to set aside the contested judgment. For reasons of procedural economy and in order to ensure an immediate and effective remedyagainst the procedural irregularity committed by the CFI, the judges opted for a reduction of the amount of the fine imposed by the Commission (and confirmed by the CFI) without specifying any general criterion, but construing a strict connection between fine reduction and compensation for damages.

This position – which limits the possibility to set aside the judgment under appeal to cases where it appears sufficiently clear that the length of the proceedings affected their outcome but in no way conditions the right to compensation for damages – was reaffirmed in SARL (SGA), 35 Nederlandse Federatieve36 and, most importantly, in Thyssen Stahl AG37 where the judges offered further indications on the issue.

In fact, after having repeated that the right to a fair hearing and to have a case tried within a reasonable period are general principles of European Union law, 38 the ECJ claimed that the reasonableness of such period is to be appraised in the light of circumstances specific to each case, and in particular, of the importance of the case for the person concerned, its complexity, as well as the conduct of the applicant and of the competent authorities. In addition, the ECJ held that the list is not exhaustive and that the assessment of the “reasonable time” does not require a systematic examination of each single criterion where the duration of the proceedings appears justified in the light of (just) one of them. More generally, in fact, the average time needed to handle similar cases will be used like a general benchmark.

Of course, the need for prompt decisions has to be balanced against the necessity to fully establish – and with the highest possible exactness – the facts at the origin of the case at hand. As underlined in the Limburgse Vynil judgment, 39 the aim of swiftness – which the Union judiciary must seek to attain – must not adversely affect the efforts to establish the facts at issue and to provide the parties with every opportunity to produce evidence and submit observations, and to reach a decision only after close consideration.40

 

The Right of Defence and the Right to Be Heard

 

The second aspect to be analyzed concerns the principle of the right to a fair hearing. If, originally, it has mainly been invoked in the context of competition law cases and in infringement procedures against Member States, the principle is now characterizing EU procedural law as a whole. On several occasions, its respect was contested by the parties complaining that they had no right to object to the AG’s opinion. The request was founded on the respect of Art. 6 ECHR as interpreted by the ECtHR. But before addressing the scope of the right to be heard it is necessary to refer to the right to a fair hearing and to the right of defence.

In this regard, the Court of Justice stated that “the principle of the right to a fair hearing is closely linked to the principle of the right to be heard” and that it must be applied to citizens as well as to Member States.41 This is one of the fundamental principles of Community law and all national legal orders “in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person”, must guarantee it, even in the absence of specific domestic rules governing the proceedings in question.42

It will be recalled that in Corus UK43 the ECJ insisted on the need to respect the rights of the defence as one of the fundamental principles of EC/EU law, adding that this principle is infringed whenever a judicial decision is based on facts and/or documents which the parties, or one of them, have not had an opportunity to examine and on which they have been unable to comment.

This decision seems to go against what had been affirmed in the Emesa Sugar44 order and in various other occasions. The impossibility to replicate to the solution put forward by the AG has always been “settled” by making reference to Art. 61 of the Rules of Procedure, although this rule assigns to the Court a discretionary power to order the reopening of the oral procedure.45 If the Court of Justice finds it possible to deliver the judgment without acquiring further information, there will be no need to reopen the procedure. This stance conflicts with the Corus UK judgment, as well as with the Vermeulen case law of the Strasbourg’ Court,46 which grants the parties the right to have knowledge of, and comment on, all evidence adduced or observations filed so as to influence the Court’s final decision.

This right is not called into question by the Kress judgment, 47 where the ECtHR found no breach of the principle of equality of arms. In fact, following the Commissaire du gouvernement’s opinion, the parties (lawyers, if they wish, can ask the Government Commissioner, before the hearing, to indicate the general tenor of his submissions) may reply to those submissions by means of a memorandum. This being the case, the compatibility of the national legal order with the ECHR is evident, but the same does not apply to the EU system which, on the contrary, provides that after having heard the opinion of the Advocate General in a public hearing the President “shall declare the oral procedure closed”.48

But the violation of the right to adversarial proceedings resulting from the refusal on the part of the ECJ to allow the reply to the Opinion of the AG was recently argued again before the ECtHR in Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvissarij v. Netherlands.49 Here the Court applied the equivalent protection doctrine elaborated in Bosphorus but found that the applicants had failed to prove that the guarantees available to them under the EU legal order were manifestly deficient; consequently, they had not rebutted the presumption that the procedure before the ECJ provides equivalent protection of their rights. Most notably, the ECtHR accepted as “realistic and not merely theoretical” the possibility offered by Rule 61 of the Rules of Procedure. In doing so it cited AG’s Opinion in Government of the French Community and Walloon Government v. Flemish Government50 and inferred directly from the decision in Landelijke Vereniging that a request for reopening submitted by one of the parties to the proceedings “is considered on its merits”.51

 

14. Case 222/84 M. Johnston, n. 10 above, para 18.

15. Case 50/00 P Union de Pequenos Agricultores, n. 10 above, para 39; Case C-263/02 P

Commission v. Jégo-Quéré [2004] ECR I-3425, para 29, see J. Schwarze, ‘The legal protection of the individual against regulations in European Union law’, (2004) 10 European Public Law 285; B. Jack, ‘Locus standi and the European Court of Justice: A faint light on the horizon?’, (2004) 6 Environmental Law Review 266; C. Brown, J. Morijn, ‘Case C-263/02 P, Commission v. Jego-Quere & Cie SA’, (2004) 41 Common Market Law Review 1639; Case T-228/02 Organisation des Modjahedines du Peuple d’Iran v. Council [2006] ECR I-4665, para 110, see further C. Eckes, ‘Case T-22802, Organisation des Modjahedines du peuple d’Iran v. Council and UK (OMPI)’, (2007) 44 Common Market Law Review 1117; O. Cotte, ‘Des précisions bienvenues quant aux garanties applicables lors de l’adoption de mesures de gels de fonds dans le cadre de la lutte contre le terrorisme’, (2007) 22 L’Europe des libertés: revue d’actualité juridique 19; Y. Moiny, ‘Le contrôle, par le juge européen, de certaines mesures communautaires visant à lutter contre le financement du terrorisme’, (2008) 149 Journal des tribunaux/droit européen 137; Case C-432/05 Unibet Ltd v. Justitiekanslern [2007] ECR I-2271, see the contributions by G. Anagnostaras, ‘The quest for an effective remedy and the measure of judicial protection afforded to putative Community law rights’, (2007) 32 European Law Review 727; A. Arnull, ‘Case C-432/05, Unibet (London) Ltd and Unibet (Internationa l) Ltd v. Justitiekanslern’, (2007) 32 Common Market Law Review 1763.

16. Case C-260/05 P Sniace SA [2007] ECR I-10005, paras 64–65, see B. Cheynel, ‘Intérêt à agir et participation à la procédure’, (2008) 14 Revue Lamy de la Concurrence: droit, économie, regulation 43; E. Fridensköld, ‘Locus standi in Article 88(2) cases: No cure for the Plaumann-blues I’, (2008) European Law Reporter 17; J. Battista, ‘Is participation in the Commission’s administrative procedure a necessary condition for legal standing?’,(2008) European State Aid Law Quarterly 317.

17. Case C-131/03 P Reynolds Tobacco Holdings Inc. [2006] ECR I-7795, para 81, see the contributions by D. Simon, ‘Non-recevabilité de l’action contre une décision de recours en justice’, (2006) 303 Europe 10; M. Varju, ‘Case C-131/03, Reynolds tobacco and others v. Commission’, (2007) 44 Common Market Law Review 1101; Case C-167/02 P Rothley et a. v. EP [2004] ECR I-3149, para 47.

18. Case C-50/00 P Union de Pequenos Agricultores, n. 10 above, para 40; Case C-263/02

P Jégo-Quéré, n. 15 above, para 30.

19. Case C-263/02P Jégo-Quéré, n. 15 above, para 30. It is well known that national courts are not entitled to review the legality of Community acts. Cf. Case 314/85 Foto-Frost [1987] ECR 4199, see G. Bebr, ‘The reinforcement of the constitutional review of community acts under Article 177 EEC Treaty’, (1988) 25 Common Market Law Review

667; A. Arnull, ‘National courts and the validity of community acts’, (1988) 14 European

Law Review 125; L. Goffin, ‘De l’incompétence des juridictions nationales pour constater l’invalidité des actes d’institutions communautaires’, (1990) Cahiers de droit européen 216 and Case 461/03 Gaston Schul [2005] ECR I-513. On the latter judgment, see L. Coutron, ‘L’arrêt Schul: une occasion manquée de revisiter la jurisprudence Foto-

Frost?’, (2007) 43 Revue trimestrielle de droit européen 491.

20. Case C-441/05 Roquette Frères [2007] ECR I-1993, paras 30 e 33.

21. Case C-131/03 P Reynolds Tabacco Holdings Inc and Others, n. 17 above, para 82.

22. Case C-521/04 P (R) Hans-Martin Tillack [2005] ECR I-3103, para 38; Joined cases C-20/00 e C-64/00 Booker Aquacultur Ltd and Hydro Seafood GSP Ltd [2003] ECR I-7411, para 88.

23. Case C-521/04P(R) Tillack, n. 22 above, para 38.

24. Case C-13/01 Safalero Srl [2003] ECR I-8679, para 50.

25. Case C-305/05 Ordre des barreaux francophone, n. 11 above, paras 29–31 that refers

to the following European Court of Human Rights judgments: Appl. No 4451/70, Golder

v. UK, (1984) A18; Appl. Nos 7819/77 and 7878/77, Campbell-Fell v. UK, (1984) A80;

Appl. No 12005/86, Borgers v. Belgium, (1991) A214-B.

26. Case T-351/03 Schneider Electric SA, n. 11 above, para 181.

27. Case T-309/03 Camos Grau [2006] ECR II-1173, paras 102–103, see the contribution by A. García Ureta, ‘“Qui custodiat custodes?” Sobre las investigaciones de la Oficina Europea de Lucha contra el Fraude’, (2006) 8–9 Unión Europea Aranzadi 13.

28. Ex multis, Case C-173/99 The Queen v. BECTU [2001] ECR I-4881, AG Tizzano, para 26, underlining for the first time the Charter of fundamental right of the European Union, in particular Art. 31. For an extensive review of the use of the Charter by Advocates General, cf. in this volume V. Bazzocchi, “Chapter 3”, and G. Ricci, ‘BECTU: An unlimited right to annual paid leave’, (2001) 30 Industrial Law Journal 401; S. Mouthaan, ‘The BECTU Case: A la recherche de la charte oubliée’, (2001) 12 European Current Law xi.

29. Case C-39/02 Mærsk Olie & Gas A/S v. Firma M. de Haan en W. de Boer [2004] ECR I-9657, para 36.

30. Case C-105/03 Criminal proceedings against Maria Pupino [2004] ECR I-5285, para 66, on this topic see the contributions by J.R. Spencer, ‘Child witnesses and the European Union’, (2005) 64 The Cambridge Law Journal 569; E. Broussy, F. Donnat, C. Lambert, ‘L’obligation d’interpréter le droit national conformément au droit communautaire s’applique également aux décisions-cadres, (2005) L’actualité juridique – Droit Administratif 2336; M. Fletcher, ‘Extending “indirect effect” to the third pillar: The significance of Pupino?’, (2005) 30 European Law Review 862; A. Weyembergh, P. De Hert, P. Paepe, ‘L’effectivité du troisième pilier de l’Union européenne et l’exigence de l’interprétation conforme: la Cour de justice pose ses jalons (note sous l’arrêt Pupino, du 16 juin 2005, de la Cour de justice des Communautés européennes)’, (2007) 18 Revue trimestrielle des droits de l’homme 269; G. Gebbie, ‘“Berlusconi” v. “Pupino”: Conflict or Compatibility?’, (2007) 1 Journal of European Criminal Law 31; E. Spaventa, ‘Opening Pandora’s Box: some reflections on the constitutional effects of the decision in Pupino’, (2007) 3 European Constitutional Law Review 5.

31. Case C-523/04 Commission v. The Netherlands [2006] ECR I-3267, AG Mengozzi,

paras 57–60.

32. Ibid., para 59.

33. Case C-185/95 P Baustahlgewebe, n. 12 above, paras 26–54.

34. Appl. No. 9616/81, Erkner-Hofauer v. Austria, (1987) A124-D, para 66, “Le caractère raisonnable de la durée d’une procédure s’apprécie suivant les circonstances de la cause et eu égard aux critères consacrés par la jurisprudence de la Cour, en particulier le degré de complexité de l’affaire, le comportement des requérants et celui des autorités compétentes”; Appl. Nos 12325/86 and 14992/89, Kemmache v. France, (1991) A-218, para 60; Appl. No 11804/85, Manzoni v. Italy, (1991) A 195-B, para 17.

35. Case C-39/00P SARL [2000] ECR I-11201, para 46.

36. Case C-105/04P CEF BV and CEF Holdings Ltd v. Nederlandse Federatieve Vereniging and Technische Unie BV [2006] ECR I-8725, para 43, see the contribution by F. Zivy, ‘Le prolongement excessif de la phase d’instruction peut permettre une violation des droits de la défense’, (2006) 4 Revue des droits de la concurrence 115.

37. Case C-194/99 P Thyssen Stahl AG [2003] ECR I-10821, paras 154 to156 and 165

to 167.

38. In Case C-403/04P Sumitomo Metal Industries Ltd and Nippon Steel Corp. [2007] ECR I-729, paras 115 to 123, the Court reaffirmed that the right to a fair trial – and in particular the right to a fair trial in a reasonable time – is enshrined in Art. 6 ECHR.

39. Case C-238/99P, Limburgse Vinyl Maatschappij NV [2002] ECR I-8375, para 234.

40. Appl. No 2122/64, Wemhoff v. Germany, (1968) A7 and Appl. No 1936/6327, Neumeister v. Austria, (1968) A8.

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