Article 47 of the EU Charter of Fundamental Rights and Its Impact on Judicial Cooperation in Civil and Commercial Matters
It is well known that one of the most important innovations of the Lisbon Treaty is the binding force attributed to the EU Charter of Fundamental Rights (hereinafter, CFR or the Charter).1 Art. 6 TEU, as amended by the Reform Treaty, confers to the latter the same legal value of the treaties. This formal incorporation in the new “EU constitutional legal order” – which is addressed to Member States and their nationals and is based on the rule of law – implies that by acquiring the status of primary law, the CFR will prevail over conflicting national legislation and practice. Moreover, provided the relevant conditions obtained, its provisions, such as Art. 47, will be recognized with direct effect and will thus be invoked by citizens before national authorities.
From a general standpoint, the change seems to indicate that the European Union is evolving into a political entity with the characteristics of a modern federal State. In this context, the Charter would play the same role as the catalogues of fundamental rights contained in the national constitutions, making it possible to assimilate the European Court of Justice (hereinafter ECJ or EUCJ) to the highest domestic courts, with a new and extensive human and civil rights jurisdiction in the vast area now covered by EU law.2 This means that all EU legislative, judicial and executive acts will have to be consistent with the Charter. It is arguable that the latter will impose an obligation on the Union not just to avoid breaching the rights therein, but also to take positive action in order to promote them.3
The specific aim of these papers are therefore to verify whether and to what extent a newly binding Charter will influence the scope of the principles of effective judicial protection and effective access to justice. To that end, a brief outline of the nature, scope of application and implementation of the right to an effective judicial remedy before a judge, and of the measures aimed at ensuring access to justice on the part of individuals, will be necessary. These guarantees are inherent to a “Community based on the rule of law”, as the EC was depicted by the ECJ.4
The contribution will then focus on the impact of the Charter on the standing of private applicants before the CFI and ECJ when challenging acts with a general scope of application. It is well known that the restrictive interpretation followed by the ECJ in defining “individual concern” and the right to an effective remedy under Art. 230 (4) TEC caused some preoccupation. In this regard, it will be argued that the binding force of the Charter, combined with the modifications resulting from Art. 263 (4) TFEU, effectively addresses the mentioned concerns.
The last yet central aspect to be analysed is represented by the possible repercussions of a legally enforceable Charter in the field of judicial cooperation in civil law matters, with particular reference to the principle of mutual recognition of judgments and of extra-judicial decisions.5 The practical and theoretical repercussions of a binding Charter on the creation and the development of an Area of Freedom, Security and Justice (hereinafter, AFSJ) is yet to be assessed although it can already be predicted with a reasonable degree of certainty that the principle of access to justice enshrined therein will become a major yardstick in this field of action of the European Union.
Effective Judicial Protection: An Old Concept with a New Vest
The principle of an effective judicial protection is codified by Art. 47 of the Charter (“Right to an effective remedy and to a fair trial”) which reads: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. 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.
The fundamental rights enshrined in this Article find their origin in the traditional “right to a judge”. All these guarantees – i.e. the right to a legal remedy, to an independent and impartial tribunal, to a fair hearing and to be judged within a reasonable time and to legal aid – are all functional to an effective access to justice, necessary in a “Community governed by the rule of law”.6
To begin, it should be noted that the Charter merely reaffirms and consolidates fundamental rights which the ECJ already respects. It is well known that the ECJ established the duty to respect fundamental rights in the late 1960s, despite the fact that this obligation had not been enunciated in the founding treaties.7 More precisely, the principle of effective judicial protection was first proclaimed in the 1986 Johnston case8 as ageneral principle stemming from the constitutional traditions common to the Member States and to the international agreements on the protection of human rights, namely to the European Convention on Human Rights and Fundamental Freedoms (hereinafter, ECHR).
Indeed, Art. 47 issues directly from Arts 6 (Right to a fair trial) and 13 (Right to an effective remedy) ECHR but presents some distinctive features. Firstly, since the CFR provisions will apply whenever the implementation of EU law (both at a supranational and domestic level) is at stake,9 Art. 47 provides a more extensive protection with respect to Art. 13 ECHR. In fact, while the former expressly guarantees an effective remedy before “a tribunal”, the scope of application of the latter is restricted to “a national body”. Moreover, contrary to Art. 6 (1) ECHR, which limits the right to a fair trial to civil and criminal law cases, Art. 47, (2) CFR applies to all contentious matters.
Regardless of these specific differences, it should be recalled that pursuant to Art. 52 (3) CFR: In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection [. . .]
Also, it is important to underline that the principle of effective judicial protection will have to be respected by the EU Institutions as well as by the Member States, when implementing EU law. Despite this normative leveling of responsibilities, the case law developed under the former treaties by the ECJ – which is ultimately called upon to ensure the legality of all action taken in the field of EU law – indicates that the respect of the principle of effective judicial protection was presumed at the Community level, but closely scrutinized when it came to domestic legislation and practice.10
The double standard applied by the Luxembourg judges clearly emerges in the Unibet case,11 where the Court reaffirmed, with a “surprising”12 direct reference to Art. 47 of the Charter, that the detailed procedural rules governing actions for the protection of individual rights under Community law must not be less favourable than those applicable to similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EC law(principle of effectiveness). Adopting a case by case approach, the ECJ will assess whether these principles are respected taking into consideration the procedural context in which the relevant provision applies but also its specific features and its interpretation by the competent national authorities.13
Of course, it is for the national courts to implement the procedural rules governing actions brought before them so to enable, inasmuch as possible, the effective protection of the rights guaranteed under EC law. In this regard it should also be noted that in order to ensure full and effective protection of the rights granted under EC law Member States are obliged to provide for interim relief whenever the compatibility of a national measure is questioned.14
1.On the Charter, reference must be made to F. Benoït-Rohmer, La Charte des droits fondamentaux de l’Union européenne, (2001), 19 Chronique, 1483; F. Benoït-Rohmer (ed.), ‘La Charte des droits fondamentaux de l’Union européennes’, (2000) 12 Revue Universelle des droits de l’Homme, 1; G.F. Ferrari (ed.), I diritti fondamentali dopo la Carta di Nizza. Il costituzionalismo dei diritti (Giuffré, 2001); L.S. Rossi (ed.), Carta dei diritti fondamentali e costituzione europea (Giuffré, 2002); M. Wathelet, ‘La Charte des droits fondamentaux: un bon pas dans une course qui reste longue’, (2000) 5–6 Cahiers de Droit Européen 584; and S. Weatherill, The EU Charter of Fundamental Rights: Politics, law and policy (Oxford, 2004).
2. For a similar opinion, cf. the contribution in these papers by S. Curzon.
3. On the distinction between positive and negative rights the contribution by O. Zetterquist.
4. Case C-294/83 Parti écologiste “Les Verts”  ECR 1339.
5. Cf. Art. 65 TEC.
6. See Case C-294/83 “Les Verts”, n. 4 above; Case C-26/62 van Gend & Loos  ECR 1 and Opinion 1/91  ECR I-6079, where the ECJ affirms that: “the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. The Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights and the subjects of which comprise not only Member States but also their nationals. The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions” (at para 1). On the “right to a judge”, cf. L.P. Comoglio, ‘Il “giusto processo” civile nella dimensione comparatistica’, (2002) 57 Rivista di Diritto Processuale 702; J.-P. Jacqué, ‘Charte des droits fondamentaux et droit à un recours effectif. Dialogue entre le juge et le “constituant”’, (2002) Il Diritto dell’Unione europea 1.
7. Case 29/69 Stauder  ECR 419; Case 11/70 Internationale Handelsgesellschaft  ECR 1125; Case 4/73 Nold  ECR 491; Case C-44/79 Hauer  ECR 3727. There is a plethora of critical academic doctrine on the topic. See ex pluribus M. Avbeij, ‘The European Court of Justice and the question of value choices’ (2004) Jean Monnet Working Paper 06/04, accessible at http://www.jeanmonnetprogram.org.; T. Ballarino, ‘Diritti fondamentali dell’Unione europea’, in S. Cassese, Dizionario di diritto pubblico (Giuffré, 2006) 1892; F.G. Jacobs, ‘Human rights in the European Union: The role of the Court of Justice’, (2001) 26 European Law Review 331; A. Rizzo, ‘Il problema della tutela dei diritti fondamentali nell’Unione Europea’, (2001) Europa e diritto privato 59; G. Tesauro, ‘I diritti fondamentali nella giurisprudenza della Corte di Giustizia’ (1992) Rivista Internazionale dei Diritti dell’Uomo 426; A. Tizzano, ‘La protection des droits fondamentaux en Europe: la Cour de Justice et les jurisdictions constitutionnelles nationales’ (2006) 1 Revue du Droit de l’Union Européenne 9.
8. Case 222/84 Johnston  ECR 1651. See also Case 222/86 Unectef  ECR 4097; Case C-97/91 Borelli  ECR I-6313 and Case C-185/97 Coote  ECR I-5199.
9. Cf. Art. 51 CFR.
10. See infra, para 2.
11. Case C-432/05 Unibet  ECR I-2271.
12. Cf. M. Bulterman, ‘Case C-540/03, Parliament v. Council, Judgment of the Grand Chamber of 27 June 2006,  ECR I-5769’, (2008) 45 Common Market Law Review at 256, where the author observes that “the ECJ is now also willing to refer to the Charter in situations where the Community legislature has not acknowledged its relevance for the Community measure under review
13. Ex pluribus, see Case 34/67 Lück  ECR 245, 251; Case 33/76 REWE  ECR 1989, para 5, Case C-54/96 Dorsch Consult  ECR I-4961, para 40; Joined Cases C-279, 280 and 281/96, Ansaldo  ECR I-5025, para 27; Case C-111/97 Evobus  ECR I-5411, para 15. See A. Barav, ‘Effectiveness of judicial protection and the role of national courts’, in Judicial protection of rights in the Community legal order (Bruylant, 1997) 259; A. Biondi, ‘The European Court of justice and certain national procedural limitations: not such a tough relationship’, (1999) 36 Common Market Law Review 1271; L. Flynn, ‘When national procedural autonomy meets the effectiveness of Community law, can it survive the impact?’, (2008) 9 Era Forum scripta iuris europaei, 245; M. Hoskins, ‘Tilting the balance: supremacy and national procedural rules’, (1996) 21 European Law Review 365; C. Kakouris, ‘Do the member States possess judicial procedural autonomy?’, (1997) 34 Common Market Law Review 1389; P. Oliver, ‘Le droit communautaire et les voies de recours nationales’, (1992) 3–4 Cahiers de Droit Européen 348; A. Saggio, ‘Incidenza della giurisprudenza della Corte di Giustizia sulle norme processuali’, (2001) Corriere Giuridico 114; H. G. Schermers and D. F. Waeibroek, Judicial protection in the European Union (The Hague/London/New York, Kluwer Law International, 2001); E. Szyszczak, ‘Making Europe more relevant to its citizens: Effective judicial process’, (1996) 21 European Law Review 351; A. Tizzano, S. Fortunato, ‘La tutela dei diritti’, in A. Tizzano (ed.), Il diritto privato dell’Unione Europea, XXVI, II, 1271, in M. Bessone (ed.) Trattato di diritto privato (Torino, 2000).
14. Cf. Case C-213/89 Factortame  ECR I-2433, para 22, Case 432/05, Unibet, n. 11above, paras 67 ff. The same holds true for the case in which the validity of a Community law is doubtful, see Joined Cases C-143/88 and C-92/89, Zuckerfabrik  ECR I-415 and case C-465/93 Atlanta  ECR I-3761.