Fair Trial, Due Process, and Rights of Defence in the EU Legal Order
The aim of these texts is to analyse the relation between Art. 47 of the Charter of Fundamental Rights of the European Union (hereafter CFR or the Charter) and the procedure before the Court of Justice of the European Union, which comprises three judicial instances: the Court of Justice (hereafter ECJ or EUCJ); the General Court (hereafter, GC) and the Civil Service Tribunal.
To that end, after having examined the ECJ’s case law on the matter, the impact of a legally binding Charter, as provided by Art. 6 TEU as amended by the Lisbon Treaty, will be addressed.
According to Art. 47 CFR, everyone has the right to an effective remedy before a tribunal; is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law, and shall have the possibility of being advised, defended and represented.
Moreover, “Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”.
According to Art. 6(1) TEU, the Charter – including Art. 47 – shall be interpreted in compliance with the general provisions of Title VII and in accordance with the Explanations introduced in 2000 – and updated in 20071 – exclusively in order to inform the citizens about the content ofthose provisions2 and therefore cannot be considered exhaustive.3 Since the principles enshrined in this provision can also be found in Art. 6 of the European Convention for the protection of Human Rights and Fundamental freedoms (hereafter, ECHR) and therefore already constitute general principles of EU law, it can be argued that no variation will take place in the way the latter norm is conceived, interpreted and applied.
In the case Asian Institute of Technology (AIT) v. Commission, the claimant invoked Art. 47 of the Charter denouncing the infringement of her right to an effective remedy. In her opinion AG Stix-Hackl stated that: The precepts which can be inferred from the European Convention on Human Rights and which are also binding on the Community institutions, including the Court, could, at most, be considered as the legal basis for the requirement of an effective remedy.4
In relation to the interpretation of the provisions of the Charter, it seems unlikely that the EU’s highest Jurisdiction will depart from the case law of the European Court of Human Rights (hereafter, ECtHR). In particular, it is hard to envisage that the former court would ever deny the protection requested by the applicant when the latter has previously granted it in similar cases. However, at least until the European Union accedes to the ECHR, the applicability of the case law of the Strasbourg Court by its counterpart in Luxembourg will remain problematic, especially with reference to the content of Art. 47 CFR.5
In the future scenario, situations of potential conflict will have to be approached differently. In this regard, the Emesa Sugar order6 provides a good example of how the situation might evolve in the future. Here the ECJ considered the Strasbourg case law on Art. 6 of ECHR7 inapplicable to the rules of procedure, specifying that:
the Advocates General [. . .] are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties.
Having regard to both the organic and the functional link between the Advocate General and the Court [. . .], the aforesaid case law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court’s Advocates General.8
Before analysing these aspects, it is important to evaluate the right to a fair trial in the ECJ’s case law, including the opinions rendered by the Advocates General.
1.Pursuant to the most recent version, these Explanations “have been have been updated under the responsibility of the Praesidium of the European Convention, in the light of the drafting adjustments made to the text of the Charter by that Convention (notably to Arts. 51 and 52) and of further developments of Union law”.  OJ C 303/17. On this topic, see K. Lenaerts, P. V. Van Nuffel, R. Bray (eds.), Constitutional law of European Union (Sweet & Maxwell, 2007); K. Lenaerts, D. Arts, I. Maselis (eds.), Procedural law of European Union (Sweet & Maxwell, 2006); V. Constantinesco, Y. Gautier, V. Michel(eds.), Le Traité établissant une Constitution pour l’Europe. Analyses & commentaries (Presses Universitaires de Strasbourg, 2005); G. Zagrebelsky, Diritti e Costituzione nell’Unione europea (Laterza, 2003).
2.The Explanations set out the background of each Charter Article and try to define its scope. To be sure, pursuant to Art. 6 (1) TEU, as amended by the Lisbon Treaty: “The rights, freedoms and principles in the Charter shall be interpreted [. . .] with due regard to the explanations referred to in the Charter, that set out the sources of those provisions”. See J. Ziller (ed.), Il nuovo Trattato europeo (Il Mulino, 2007) 112.
3.For instance, with regard to Art. 47 CFR, no reference is made to the Vermeulen judgment by the ECtHR (Appl. No 19075/91, Vermeulen v. Belgium, (1996) Reports 1996-I).
4. Case C-547/03P Asian Institute of Technology (AIT)  ECR I-845, AG Stix-Hackl.
5. On the current and future relation between these two courts in the field of fundamental rights protection, see G. Di Federico.
6. Case C-17/98 Emesa Sugar  ECR I-665. See the contribution by P. Oliver in (2002) 39 Common Market Law Review 337.
7. Vermeulen v. Belgium, n. 3 above, and Appl. No 39594/98, Kress v. France, (2001) Reports 2001-VI.
8. Case C-17/98 Emesa Sugar, n. 6 above, para 13.