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Article 47 of the EU Charter and Effective Judicial Protection, Volume 1: The Court of Justice’s Perspective
9781509947942, 9781509947973, 9781509947966

Author / Uploaded
Matteo Bonelli
Mariolina Eliantonio
Giulia Gentile (editors)

Table of contents :
Contents
List of Authors
List of Tables and Figures
List of Cases
Introduction
The Project
The First Volume and its Structure
PART 1: THE CONSTITUTIONAL DIMENSION OF ARTICLE 47 OF THE CHARTER
1. Article 19 TEU and National Courts: A New Role for the Principle of Effective Judicial Protection?
I. Introduction
II. From Van Gend & Loos to Article 19(1) TEU
III. Article 19(1) TEU Brought to Life
IV. The Content and Scope of Application of Effective Judicial Protection
V. Another Perspective
VI. Conclusion
2. Searching for the Pieces of the EU Justice Puzzle: Articles 47, 48, 49 and 50 of the EU Charter of Fundamental Rights
I. Introduction
II. The Justice Title of the Charter: A Systematic Reading
III. Interdependent but Autonomous: Articles 47 and 48 of the EU Charter
IV. Reciprocal Influences and Missed Opportunities: Article 47 and Article 49 Charter
V. Shining in Their Own Lights: Articles 47 and 50 Charter
VI. Finding (Some) Pieces of the EU Justice Jigsaw Puzzle
VII. Conclusion
3. Effective Judicial Protection before National Courts: Article 47 of the Charter, National Constitutional Remedies and the Preliminary Reference Procedure
I. Introduction
II. The Preliminary Reference as an Individual Right
III. Towards a More Rights-Based Approach?
IV. Enhancing Judicial Protection Through Empowered National Courts
V. Conclusions
4. The EU Right to an Independent Judge: How Much Consensus Across the EU?
I. Introduction
II. The Mandate of the Court of Justice
III. Different Aspects of Judicial Independence
IV. Conclusion
5. Article 47 of the Charter, Effective Judicial Protection and the (Procedural) Autonomy of the Member States
I. Introduction
II. Effective Judicial Protection, Article 47 and Procedural Autonomy
III. Procedural Autonomy: The Interplay between Article 47 and EU Secondary Legislation
IV. 'Remedial' Autonomy: The Empowering Function of Article 47
V. Institutional and Structural Autonomy: Judicial Independence
VI. What Has Article 47 Changed? Concluding Thoughts
6. 'A Spectre is Haunting Kirchberg' - The Spectre of Article 47: The CJEU Case Law on the Finality of Judicial Decisions and on the Ex Officio Application of EU Law
I. Introduction
II. Re-Opening Final Judicial Decisions: Procedural Autonomy Limited by Equivalence and Effectiveness
III. Raising Points of EU Law Ex Officio
IV. Conclusions
PART 2: ARTICLE 47 OF THE CHARTER IN SELECTED POLICY AREAS
7. The Role of Article 47 of the EU Charter of Fundamental Rights in the Field of Non-Discrimination: Onwards and Upwards
I. Introduction
II. Origins of the Relationship between Article 47 of the Charter and Non-Discrimination
III. Article 47 of the Charter and the Main Directives in the Field of Non-Discrimination
IV. Opportunities for Further Development of Article 47 of the Charter in the Field of Non-Discrimination
V. Conclusion
8. No Turning Back? The Empowerment of National Asylum and Migration Courts under Article 47 of the Charter
I. Introduction
II. Ensuring the Jurisdiction of National Courts
III. The Scope and Intensity of Judicial Review: Defining the Role of the National Courts
IV. Conclusion
9. Article 47 of the Charter and the European Arrest Warrant: Chronicle of a Death Foretold?
I. Introduction
II. The Role of 'Judicial Authorities' and the Right to an Effective Remedy: Hesitancy and Deference in the Early Case Law of the Court
III. The Development of an Autonomous Concept of 'Judicial Authority' and the Growing Limits to Procedural Autonomy: A Negative Obligation?
IV. What Role for Public Prosecutors? Judicial Independence, Procedural Autonomy and the Disappearance of Article 47
V. The Approach of the Court to 'Judicial Independence' and the EAW: Inconsistencies and Double Standards
VI. The Right to an Effective Judicial Remedy and the EAW: Article 47 and Habeas Corpus Proceedings
VII. Conclusion
10. Article 47 of the Charter of Fundamental Rights in the Common Foreign and Security Policy: Does it Afford an Adequate Protection of the Right to Effective Judicial Protection to Private Parties?
I. Introduction
II. Article 47 of the Charter as an Instrument to Broadly Interpret the Competence of the Court of Justice with Respect to Acts Adopted in the Framework of the CFSP
III. The Legal Standing to Challenge Restrictive Measures in the Light of Article 47 of the EUCFR: Are There Any Limits to Its Scope Ratione Personae?
IV. An Overview of the Substance of Annulment Actions against Individual Restrictive Measures: An Enhanced Protection of Due Process Rights
V. The Obligation of the Council to Verify that the Right to Effective Judicial Protection and the Right of Defence are Respected by Third Countries
VI. Conclusions
11. Article 47 of the Charter and Effective Judicial Protection in Environmental Matters: The Need to Grant Civil Society the Right to Defend the Environment
I. Introduction
II. The CJEU and Access to Environmental Justice
III. The Aarhus Convention and its Criticism of the EU Public Authorities
IV. Possible Ways Ahead
V. Conclusion
12. Article 47 of the EU Charter of Fundamental Rights in the Field of Public Procurement: Time to Take the Charter Seriously?
I. Introduction
II. The Codification of Procurement Remedies
III. Gaps and Shortcomings in the Procurement Remedies Directives
IV. Article 47 and Procurement Remedies
V. Conclusions: Guidance is Badly Needed
13. Article 47 of the EU Charter of Fundamental Rights in EU Competition Enforcement: A Quantitative and Qualitative Assessment
I. Introduction
II. Article 47 EUCFR in Competition Judgments in Numbers
III. The Manifestations of Article 47 EUCFR in Competition Judgments
IV. A Multifaceted Principle in the Process of Crystallisation
V. The Role of Article 47 EUCFR in Competition Enforcement
VI. Conclusion
14. The Evolution of the Right to an Effective Remedy and to a Fair Trial in Direct and Indirect Taxation: Are We There Yet?
I. Introduction
II. The Right to Effective Judicial Protection and to an Effective Remedy in Tax Matters: Setting Up the Framework
III. The Right to an Effective Remedy in the Context of Exchange of Information (Berlioz I and Berlioz II)
IV. Luxembourg State v L
V. The Right to an Effective Remedy and to a Fair Trial in Indirect Taxation (VAT)
VI. Use of Evidence from Criminal Proceedings without the Knowledge of the Taxpayer
VII. Conclusion
15. Conclusions
I. Introduction
II. The Constitutional Impact of Article 47 of the Charter in the EU Legal Landscape: Between Continuity and Rupture
III. Article 47 of the Charter in the Policy Areas: A Kaleidoscope of Colours with Increasingly More Visible Shapes
IV. The Pivotal Role of Article 47 to Further the Acquis Communautaire
V. The Broad Range of Procedural Areas Affected by Article 47
VI. Conclusions
Index

Citation preview

ARTICLE 47 OF THE EU CHARTER AND EFFECTIVE JUDICIAL PROTECTION, VOLUME 1 This ambitious, innovative project examines the principle of effective judicial protection in EU law over two volumes. The principle of effective judicial protection is a cornerstone of the EU’s judicial system and is re-affirmed in Article 47 of the Charter of Fundamental Rights of the European Union. Since the 1980s the Court of Justice has used the principle to shape EU and national procedural rules; more recently, the principle has acquired an even more central role in the EU constitutional structure. In this first volume, an expert team explores how the Court of Justice has interpreted the principle, as expressed in particular by Article 47 of the Charter, in selected policy areas, and reflects on the impact of the principle on the EU’s constitutional structure. Addressing key questions such as legal certainty, judicial independence and procedural autonomy, this volume significantly adds to our understanding of judicial protection within the multi-level EU judicial architecture.

ii

Article 47 of the EU Charter and Effective Judicial Protection, Volume 1 The Court of Justice’s Perspective

Edited by

Matteo Bonelli Mariolina Eliantonio and

Giulia Gentile

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Copyright © The editors and contributors severally 2022 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2022943907 ISBN: HB: 978-1-50994-794-2 ePDF: 978-1-50994-796-6 ePub: 978-1-50994-795-9 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

CONTENTS List of Authors��xi List of Tables and Figures�� xiii List of Cases��xv Introduction�� 1 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile The Project�� 1 The First Volume and its Structure�� 6 PART 1 THE CONSTITUTIONAL DIMENSION OF ARTICLE 47 OF THE CHARTER 1. Article 19 TEU and National Courts: A New Role for the Principle of Effective Judicial Protection?��11 Sacha Prechal I. Introduction�� 11 II. From Van Gend & Loos to Article 19(1) TEU�� 13 III. Article 19(1) TEU Brought to Life�� 16 IV. The Content and Scope of Application of Effective Judicial Protection�� 19 V. Another Perspective�� 22 VI. Conclusion�� 25 2. Searching for the Pieces of the EU Justice Puzzle: Articles 47, 48, 49 and 50 of the EU Charter of Fundamental Rights��27 Giulia Gentile and Serena Menzione I. Introduction�� 27 II. The Justice Title of the Charter: A Systematic Reading�� 29 III. Interdependent but Autonomous: Articles 47 and 48 of the EU Charter�� 32 IV. Reciprocal Influences and Missed Opportunities: Article 47 and Article 49 Charter�� 36 V. Shining in Their Own Lights: Articles 47 and 50 Charter�� 38 VI. Finding (Some) Pieces of the EU Justice Jigsaw Puzzle�� 41 VII. Conclusion�� 44

vi Contents 3. Effective Judicial Protection before National Courts: Article 47 of the Charter, National Constitutional Remedies and the Preliminary Reference Procedure��45 Anna Wallerman Ghavanini and Clara Rauchegger I. Introduction�� 45 II. The Preliminary Reference as an Individual Right�� 46 A. The EU Law Perspective�� 46 B. The National Constitutional Law Perspective�� 50 III. Towards a More Rights-Based Approach?�� 54 IV. Enhancing Judicial Protection Through Empowered National Courts�� 56 V. Conclusions�� 59 4. The EU Right to an Independent Judge: How Much Consensus Across the EU?��61 Michał Krajewski I. Introduction�� 61 II. The Mandate of the Court of Justice�� 64 A. Constitutional Sources: Article 19 TEU and Article 47 of the EU Charter�� 64 B. Legal Avenues and Different Problems�� 66 C. Comparative Reasoning and Risky Transplants�� 68 III. Different Aspects of Judicial Independence�� 71 A. Decision-Making Independence and Judicial Tenure�� 71 B. Personal Independence and Judicial Appointments�� 74 C. Organisational Independence and Judicial Governance�� 77 IV. Conclusion�� 79 5. Article 47 of the Charter, Effective Judicial Protection and the (Procedural) Autonomy of the Member States��81 Matteo Bonelli

I. Introduction�� 81 II. Effective Judicial Protection, Article 47 and Procedural Autonomy�� 83 III. Procedural Autonomy: The Interplay between Article 47 and EU Secondary Legislation�� 86 IV. ‘Remedial’ Autonomy: The Empowering Function of Article 47�� 90 V. Institutional and Structural Autonomy: Judicial Independence�� 94 VI. What Has Article 47 Changed? Concluding Thoughts�� 96 6. ‘A Spectre is Haunting Kirchberg’ – The Spectre of Article 47: The CJEU Case Law on the Finality of Judicial Decisions and on the Ex Officio Application of EU Law��99 Mariolina Eliantonio I. Introduction�� 99 II. Re-Opening Final Judicial Decisions: Procedural Autonomy Limited by Equivalence and Effectiveness��101 A. The Principle of National Procedural Autonomy as the Default Position��101

Contents vii B. Limitations Imposed by the Principle of Equivalence��102 C. Limitations Imposed by the Principle of Effectiveness��104 D. The Lucchini Case and its Follow-Up��106 E. Interim Conclusion��108 III. Raising Points of EU Law Ex Officio��111 A. The ‘Rule’: Peterbroeck and van Schiijndel��111 B. The Exceptions: EU Law as a Matter of Public Policy��112 C. Ex Officio Application of EU Law to the Detriment of the Applicant��115 D. Interim Conclusion��116 IV. Conclusions��118 PART 2 ARTICLE 47 OF THE CHARTER IN SELECTED POLICY AREAS 7. The Role of Article 47 of the EU Charter of Fundamental Rights in the Field of Non-Discrimination: Onwards and Upwards��123 Kathleen Gutman I. Introduction��123 II. Origins of the Relationship between Article 47 of the Charter and Non-Discrimination��124 III. Article 47 of the Charter and the Main Directives in the Field of Non-Discrimination��128 A. Effective Access to the Courts��128 B. Protection against Retaliation��130 C. Burden of Proof��130 D. Standing of Equality Bodies and Other Entities��132 E. Forms of Redress��134 IV. Opportunities for Further Development of Article 47 of the Charter in the Field of Non-Discrimination��136 A. Procedural Obstacles at the National Level��136 B. Tasks of National Courts and Other Competent Bodies��137 V. Conclusion��138 8. No Turning Back? The Empowerment of National Asylum and Migration Courts under Article 47 of the Charter��141 Marcelle Reneman I. Introduction��141 II. Ensuring the Jurisdiction of National Courts��143 III. The Scope and Intensity of Judicial Review: Defining the Role of the National Courts��147 A. The Detention Judge: A Habeas Corpus Examination��148 B. The Asylum Judge: A Full and Ex Nunc Examination��149

viii Contents C. Dublin Cases: From a Limited to a Full Judicial Review (and Back)?��153 D. Visa Cases: A Lighter Form of Judicial Review��155 IV. Conclusion��156 9. Article 47 of the Charter and the European Arrest Warrant: Chronicle of a Death Foretold?��159 Adriano Martufi I. Introduction��159 II. The Role of ‘Judicial Authorities’ and the Right to an Effective Remedy: Hesitancy and Deference in the Early Case Law of the Court��161 III. The Development of an Autonomous Concept of ‘Judicial Authority’ and the Growing Limits to Procedural Autonomy: A Negative Obligation?��163 IV. What Role for Public Prosecutors? Judicial Independence, Procedural Autonomy and the Disappearance of Article 47��165 V. The Approach of the Court to ‘Judicial Independence’ and the EAW: Inconsistencies and Double Standards��169 VI. The Right to an Effective Judicial Remedy and the EAW: Article 47 and Habeas Corpus Proceedings��172 VII. Conclusion��175 10. Article 47 of the Charter of Fundamental Rights in the Common Foreign and Security Policy: Does it Afford an Adequate Protection of the Right to Effective Judicial Protection to Private Parties?��177 Sara Poli I. Introduction��177 II. Article 47 of the Charter as an Instrument to Broadly Interpret the Competence of the Court of Justice with Respect to Acts Adopted in the Framework of the CFSP��179 III. The Legal Standing to Challenge Restrictive Measures in the Light of Article 47 of the EUCFR: Are There Any Limits to Its Scope Ratione Personae?��183 IV. An Overview of the Substance of Annulment Actions against Individual Restrictive Measures: An Enhanced Protection of Due Process Rights��186 V. The Obligation of the Council to Verify that the Right to Effective Judicial Protection and the Right of Defence are Respected by Third Countries��188 VI. Conclusions��192

Contents ix 11. Article 47 of the Charter and Effective Judicial Protection in Environmental Matters: The Need to Grant Civil Society the Right to Defend the Environment��195 Ludwig Krämer I. Introduction��195 II. The CJEU and Access to Environmental Justice��197 A. Access to the European Courts��197 III. The Aarhus Convention and its Criticism of the EU Public Authorities��200 A. The Charter of Fundamental Rights��202 B. The Controversy between the EU and the Aarhus Convention��206 IV. Possible Ways Ahead��208 A. Applying Article 9(2) of Regulation 1367/2006��209 B. Improving Participation in GMO-Related Decisions��210 C. Accepting Environmental NGOs as ‘Negotiators’��211 V. Conclusion��211 12. Article 47 of the EU Charter of Fundamental Rights in the Field of Public Procurement: Time to Take the Charter Seriously?��213 Roberto Caranta I. Introduction��214 II. The Codification of Procurement Remedies��215 III. Gaps and Shortcomings in the Procurement Remedies Directives��216 A. Annulment��217 B. Damages��222 IV. Article 47 and Procurement Remedies��224 V. Conclusions: Guidance is Badly Needed��227 13. Article 47 of the EU Charter of Fundamental Rights in EU Competition Enforcement: A Quantitative and Qualitative Assessment��231 Andriani Kalintiri

I. Introduction��231 II. Article 47 EUCFR in Competition Judgments in Numbers��233 III. The Manifestations of Article 47 EUCFR in Competition Judgments��237 A. The Right to an Effective Remedy��237 B. The Right to a Hearing by an Independent and Impartial Tribunal��239 C. The Right to a Hearing Within a Reasonable Time��241 D. The Duty to State Reasons��243 E. The Presumption of Innocence, the Rights of Defence and the Equality of Arms Principle��245 IV. A Multifaceted Principle in the Process of Crystallisation��246 V. The Role of Article 47 EUCFR in Competition Enforcement��247 VI. Conclusion��250

x Contents 14. The Evolution of the Right to an Effective Remedy and to a Fair Trial in Direct and Indirect Taxation: Are We There Yet?��251 Katerina Pantazatou

I. Introduction��251 II. The Right to Effective Judicial Protection and to an Effective Remedy in Tax Matters: Setting Up the Framework��252 III. The Right to an Effective Remedy in the Context of Exchange of Information (Berlioz I and Berlioz II)��255 A. Berlioz I��255 B. Luxembourg v B and Others (‘Berlioz II’)��257 IV. Luxembourg State v L��261 V. The Right to an Effective Remedy and to a Fair Trial in Indirect Taxation (VAT)��263 A. Effective Access to Justice: Legal Fees and the Grant of Legal Aid: Ordre des barreaux francophones et germanophone and Others��263 B. Collection and Use of Evidence in Proving VAT Fraud: Dzivev��264 VI. Use of Evidence from Criminal Proceedings without the Knowledge of the Taxpayer��266 A. WebMindLicenses��266 VII. Conclusion��269 15. Conclusions��273 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile I. Introduction��273 II. The Constitutional Impact of Article 47 of the Charter in the EU Legal Landscape: Between Continuity and Rupture��273 III. Article 47 of the Charter in the Policy Areas: A Kaleidoscope of Colours with Increasingly More Visible Shapes��276 A. The Relationship between Article 47 and the Principle of Effective Judicial Protection��276 B. The Relationship between Article 47, EU Secondary Rules of a Procedural Nature, Primary Law and International Law��277 IV. The Pivotal Role of Article 47 to Further the Acquis Communautaire��279 V. The Broad Range of Procedural Areas Affected by Article 47��282 VI. Conclusions��284 Index��287

LIST OF AUTHORS Matteo Bonelli is assistant professor of EU law at Maastricht University. Roberto Caranta is Professor of Admininstrative Law at the University of Turin. Mariolina Eliantonio is Professor of European and Comparative Administrative Law and Procedure at Maastricht University. Giulia Gentile is Fellow in Law at the London School of Economics Law School. Kathleen Gutman is a Référendaire in the Chambers of Advocate General Tamara Ćapeta at the Court of Justice of the European Union. Andriani Kalintiri is Lecturer in Competition Law at King’s College London. Michał Krajewski is a Postdoctoral Research Fellow at the University of Copenhagen, iCourts Centre of Excellence for International Courts. Ludwig Krämer is (retired) Head of unit at the European Commission, environmental department. Adriano Martufi is assistant professor of criminal law at the Leiden Law School. Serena Menzione is a PhD researcher at the Institute for European Law of KU Leuven. Katerina Pantazatou is associate professor in tax law at the University of Luxembourg. Sara Poli is full Professor of European Union law at the University of Pisa. Sacha Prechal is Judge at the Court of Justice of the European Union and professor of European law, Utrecht University. Clara Rauchegger is assistant professor of European Union Law and Digital Technology Law at the University of Innsbruck. Marcelle Reneman is assistant professor of migration law at the Amsterdam Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam. Anna Wallerman Ghavanini is associate professor of EU Law at the University of Gothenburg.

xii

LIST OF TABLES AND FIGURES Searching for the Pieces of the EU Justice Puzzle: Articles 47, 48, 49 and 50 of the EU Charter of Fundamental Rights – Giulia Gentile and Serena Menzione Figure 1: The relationship between Article 47 Charter and the other Justice provisions ‘A Spectre is Haunting Kirchberg’ – The Spectre of Article 47: The CJEU Case Law on the Finality of Judicial Decisions and on the Ex Officio Application of EU Law – Mariolina Eliantonio Table 1. Case law on the duty to re-open final judicial decisions and corresponding principles grounding the reasoning of the CJEU Table 2. Case law on the duty to raise ex officio points of EU law and corresponding principles grounding the reasoning of the CJEU Article 47 of the EU Charter of Fundamental Rights in EU Competition Enforcement: A Quantitative and Qualitative Assessment – Andriani Kalintiri Figure 1: Percentage of Specific Competition Field in Judgments with an Article 47 EUCFR Reference Figure 2: Type of Proceedings in Competition Judgments with an Article 47 EUCFR Reference Figure 3: Percentage of Court of Justice Competition Judgments with and without an Article 47 EUCFR Reference Figure 4: Percentage of General Court Competition Judgments with and without an Article 47 EUCFR Reference Figure 5: The Manifestations of Article 47 EUCFR in Competition Proceedings

xiv

LIST OF CASES Court of Justice of the European Union Court of Justice Joined Cases C-19/62 to C-22/62 Fédération nationale de la boucherie en gros a.o. v Commission EU:C:1962:48��198, 204 Case C-25/62 Plaumann v Commission EU:C:1963:17��195, 197–99, 206 Case C-26/62 Van Gend en Loos EU:C:1963:1��13–16 Case C-44/65 Hessische Knappschaft v Singer et Fils EU:C:1965:122�� 46 Case C-10/68 Eridania v Commission EU:C:1969:66��198 Case C-13/68 Salgoil v Italy EU:C:1968:54�� 84 Case C-14/68 Wilhelm and Others EU:C:1969:4�� 38 Joined Cases C-18 and C-35-65 Max Gutmann v Commission of the EAEC EU:C:1967:6�� 38 Case C-11/70 Internationale Handelsgesellschaft EU:C:1970:114�� 34 Case C-41/70 to C-44/70 NV International Fruit Company v Commission EU:C:1971:53��198 Case C-96/71 Haegemann v Commission EU:C:1972:88��204 Case C-166/73 Rheinmühlen I EU:C:1974:3�� 47 Case C-72/74 Union syndicale v Council EU:C:1975:43��198 Case C-33/76 Rewe-Zentralfinanz eG et Rewe-Zentral AG v Landwirtschaftskammer für das Saarland EU:C:1976:188��3, 13, 16, 83–85, 100, 163 Case C-45/76 Comet EU:C:1976:191��13, 85 Case C-113/77 Toyo v Commission EU:C:1979:91��198 Case C-92/78 Simmenthal v Commission EU:C:1979:53��198 Case C-60/79 Fédération nationale des producteurs de vins de table v Commission EU:C:1979:189��198 Case C-158/80 Rewe (‘Butter-buying cruises’) EU:C:1981:163�� 90 Case C-246/81 Lord Bethell EU:C:1982:224��198 Case C-283/81 CILFIT EU:C:1982:335�� 46–47, 49, 51, 53, 55, 206 Case C-14/83 Von Colson and Kamann EU:C:1984:153�� 3, 23, 125, 127 Case C-294/83 Les Verts v Parliament EU:C:1986:166�� 15, 28, 275 Case C-222/84 Johnston EU:C:1986:206��3, 13–14, 23, 83–84, 125–26, 207, 275–76, 282

xvi List of Cases Joined Cases C-67/85, C-68/85 and C-70/85 Van der Kooy v Commission EU:C:1988:38��199 Case C-282/85 Comité de développement et de promotion du textile et de l’habillement v Commission EU:C:1986:316��198 Case C-314/85 Foto-Frost EU:C:1987:452��182 Case C-333/85 Mannesmann v Council EU:C:1987:134��198 Case C-55/86 Arposol v Council EU:C:1988:8��198 Case C-208/86 Apesco v Council EU:C:1988:200��198 Case C-222/86 Heylens EU:C:1987:442��14, 126 Case C-302/87 EP v Council EU:C:1988:461��204 Case C-70/88 EP v Council EU:C:1990:217��204 Case C-131/88 Commission v Germany EU:C:1991:87��204 Case C-152/88 Sofrimport v Commission EU:C:1992:21��198 Case C-361/88 Commission v Germany EU:C:1991:224��204 Case C-213/89 Factortame EU:C:1990:216�� 22 Joined Cases C-6/90 and C-9/90 Francovich EU:C:1991:221�� 14, 22, 223 Case C-64/90 Commission v France EU:C:1991:360��204 Joined Cases C-87/90, C-88/90 and C-89/90 A. Verholen and others v Sociale Verzekeringsbank Amsterdam EU:C:1991:314��111, 116 Case C-313/90 CIRFS v Commission EU:C:1993:11��199 Case C-271/91 Marshall II EU:C:1993:335�� 23 Case C-199/92 P Hüls v Commission EU:C:1999:358��245 Case C-235/92 P Montecatini v Commission EU:C:1999:362��245 Case C-46/93 Brasserie du Pêcheur and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others EU:C:1996:79�� 222–24 Case C-312/93 Peterbroeck Van Campenhout & Cie v Belgian State EU:C:1995:437��111–12, 117, 119 Joined Cases C-430/93 and 431/93 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor Fysiotherapeuten EU:C:1995:441��111–12, 117, 119 Case C-5/94 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) EU:C:1996:205��228 Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Molenheide and Others EU:C:1997:623�� 24 Case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-Holland EU:C:1996:404�� 111, 117, 204 Case C-185/95 P Baustahlgewebe v Commission EU:C:1998:608��242 Case C-261/95 Rosalba Palmisani v Istituto nazionale della previdenza sociale (INPS) EU:C:1997:351��103 Case C-321/95 P Stichting Greenpeace Council (Greenpeace International) and Others v Commission EU:C:1998:153��199 Case C-125/96 Saldanha EU:C:1998:6�� 24 Case C-149/96 Portugal/ v Council EU:C:1999:574��186 Case C-404/96 P Glencore v Commission EU:C:1998:196��198 Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV EU:C:1999:269�� 114–15, 117

List of Cases xvii Case C-78/98 Shirley Preston and Others v Wolverhampton Healthcare NHS Trust and Others and Dorothy Fletcher and Others v Midland Bank plc EU:C:2000:247��103 Case C-81/98 Alcatel Austria and Others EU:C:1999:534��215 Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij NV EU:C:2002:582�� 38 Joined Cases C-240/98 to 244/98 Océano Grupo Editorial SA v Rocío Murciano Quintero EU:C:2000:346��113, 117 Case C-424/99 Commission v Austria EU:C:2001:642��207 Case C-50/00 P Union de Pequenos Agricultores EU:C:2002:462�� 15, 54, 202, 204, 207 Case C-92/00 Hi EU:C:2002:379��218, 283 Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission EU:C:2004:6��245 Case C-473/00 Cofidis SA v Jean-Louis Fredout EU:C:2002:705��114, 117 Joined Cases C-187/01 and 385/01 Criminal proceedings against Hüseyin Gözütok and Klaus Brügge EU:C:2002:516��39–40 Case C-71/02 Karner EU:C:2004:181�� 24 Case C-105/03 Pupino EU:C:2005:386�� 16 Case C-275/03 Commission v Portugal EU:C:2004:632��222 Case C-70/04 Switzerland v Commission EU:C:2005:468��185 Case C-234/04 Rosmarie Kapferer v Schlank & Schick GmbH EU:C:2006:178��101, 109 Joined Cases C-295/04, C-296/04, C-297/04 and C-298/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA and others EU:C:2006:461��115, 117 Case C-355/04 P Segi EU:C:2007:116��180 Case C-506/04 Wilson EU:C:2006:587��169 Case C-28/05 Dokter & Others EU:C:2006:408��253 Case C-119/05 Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA EU:C:2007:434�� 106–09 Case C-168/05 Elisa María Mostaza Claro v Centro Móvil Milenium SL EU:C:2006:675��114, 117 Joined Cases C-222/05 and C-225/05 J. van der Weerd and Others v Minister van Landbouw, Natuur en Voedselkwaliteit EU:C:2007:318�� 112, 114, 117 Case C-229/05 Osman Ochalan (on behalf of PKK) EU:C:2007:32��193 Case C-260/05 Sniace v Commission EU:C.2007:700��202 Case C-303/05 Advocaten voor de Wereld EU:C:2006:552��160 Case C-368/05P PPG v Commission EU:C:2006:771�� 198–99, 209 Joined Cases C-402/05 P and C-415/05 P Kadi I EU:C:2008:461��3, 14 Case C-429/05 Max Rampion and Marie-Jeanne Godard, née Rampion v Franfinance SA and K par K SAS EU:C:2007:575��114, 117 Case C-432/05 Unibet EU:C:2007:163�� 2, 14, 91, 126 Case C-70/06 Commission v Portugal EU:C:2008:3��222 Case C-150/06 Arizona v Council EU:C:2007:104��202

xviii List of Cases Case C-210/06 Cartesio EU:C:2008:723�� 46 Case C-427/06 Bartsch EU:C:2008:297�� 24 Case C-445/06 Danske Slagterier EU:C:2009:178��223 Case C-450/06 Varec SA v État belge EU:C:2008:91��220 Case C-455/06 Heemskerk BV and Firma Schaap v Productschap Vee en Vlees EU:C:2008:650��115, 117 Case C-237/07 Janecek EUC:2008:447��204, 208 Case C-349/07 Sopropé EU:C:2008:746��254, 276 Case C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission EU:C:2009:456�� 242–43 Case C-518/07 Commission v Germany EU:C:2010:125�� 79 Case C-2/08 Amministrazione dell’Economia e delle Finanze, Agenzia delle entrate v Fallimento Olimpiclub Srl EU:C:2009:506�� 104–07, 109 Case C-40/08 Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira EU:C:2009:615��102, 109 Case C- 63/08 Virginie Pontin v T-Comalux SA EU:C:2009:666��103 Case C-97/08 P Akzo Nobel and Others v Commission EU:C:2009:536��245 Case C-137/08 VB Pénzügyi Lízing Zrt. v Ferenc Schneider EU:C:2010:659��114, 117 Case C-243/08 Pannon GSM Zrt. v Erzsébet Sustikné Győrfi EU:C:2009:350��114, 117 Case C-263/08 Djurgården EU:C:2009:631��205, 282 Joined Cases C-317 and C-320/08 Alassini EU:C:2010:146�� 23 Case C-407/08 P Knauf Gips v Commission EU:C:2010:389��238 Case C-444/08 P Azores v Council EU:C:2008:793��202 Case C-115/09 BUND EU:C:2011:289��208, 282 Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus EU:C:2011:667��205 Case C-240/09 Lesoochranárske zoskupenie EU:C:2011:125�� 202–03, 208 Case C-272/09 P KME Germany and Others v Commission EU:C:2011:810��240 Case C-279/09 DEB EU:C:2010:811��197 Case C-283/09 Weryński EU:C:2011:85�� 66 Case C-314/09 Strabag EU:C:2010:567�� 222–23 Case C-69/10 Samba Diouf EU:C:2011:102��83, 87 Case C-76/10 Pohotovosť s.r.o. v Iveta Korčkovská EU:C:2010:685��114, 117 Case C-109/10 P Solvay v Commission EU:C:2011:686��248 Case C-386/10 P Chalkor v Commission EU:C:2011:815��55, 240–41, 247 Case C-389/10 P KME Germany and Others v Commission EU:C:2011:816��14, 240 Case C-405/10 QB EU:C:2011:722�� 36 Case C-411/10 N.S. EU:C:2011:865��153 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission and Others v Kadi EU:C:2013:518��14, 186–88, 193, 228 Case C-614/10 Commission v Austria EU:C:2012:631�� 79 Case C-617/10 Åkerberg Fransson EU:C:2013:105�� 18, 31, 39, 256, 268–69, 280

List of Cases xix Case C-618/10 Banco Español de Crédito, SA v Joaquín Calderón Camino EU:C:2012:349��114, 117 Case C-175/11 H.I.D. and B.A EU:C:2013:45��144 Case C-199/11 Otis and Others EU:C:2012:684��23, 232, 236, 247, 284 Case C-260/11 Edwards EU:C:2013:221�� 203, 280, 283 Case C-264/11 P Kaimer and Others v Commission EU:C:2012:498��239 Case C-277/11 M. M. v Minister for Justice, Equality and Law Reform and Others EU:C:2012:744��35, 254 Case C-300/11 ZZ EU:C:2013:363��156 Case C-396/11 Ciprian Vasile Radu EU:C:2013:39�� 33–34, 162–63, 278 Case C-397/11 Erika Jőrös v Aegon Magyarország Hitel Zrt. EU:C:2013:340��114, 117 Case C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107�� 33, 35, 39, 86 Case C-417/11 P Council v Bamba EU:C:2012:718��188 Case C-418/11 Textdata Software EU:C:2013:588��37, 253 Case C-439/11 P Ziegler v Commission EU:C:2013:513�� 239, 244, 247 Case C-472/11 Banif Plus Bank Zrt v Csaba Csipai and Viktória Csipai EU:C:2013:88��114, 117 Joined Cases C-478/11 P and C-482/11 P Laurent Gbagbo EU:C:2013:258��184 Case C-501/11 P Schindler Holding v Commission EU:C:2013:522�� 239–40 Case C-508/11 P Eni v Commission EU:C:2013:289��245 Case C-583/11 P Inuit Kanatami EU:C:2013:625��14–15, 54, 202–03 Case C-625/11 PPG v ECHA EU:C:2017:594��203 Case C-40/12 P Gascogne Sack Deutschland v Commission EU:C:2013:768�� 242–43 Case C-50/12 P Kendrion v Commission EU:C:2013:771��242 Case C-58/12 P Groupe Gascogne v Commission EU:C:2013:770��242 Case C-72/12 Gemeide Altrip and Others EU:C:2013:712��283 Case C-101/12 Schaible EU:C:2013:661��228 Case C-131/12 Google Spain EU:C:2014:317�� 20 Case C-274/12 P Telefónica EU:C:2013:852�� 15 Case C-276/12 Sabou EU:C:2013:678�� 254–55, 271 Case C-280/12 P Council v Fulmen and Mahmoudian EU:C:2013:77��187, 284 Case C-394/12 Abdullahi EU:C:2013:813��153, 157 Case C-295/12 P Telefónica and Telefónica de España v Commission EU:C:2014:2062�� 55, 241–42 Case C-348/12 P Council (Kala Naft) EU:C:2013:776��186 Case C-398/12 M EU:C:2014:1057�� 39 Case C-19/13 Fastweb (II) EU:C:2014:2194��226 Case C-67/13 P Cartes Bancaires v Commission EU:C:2014:2204��240 Case C-166/13 Sophie Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis EU:C:2014:2336�� 35 Case C-168/13 PPU Jeremy F EU:C:2013:358�� 162–63, 170, 172–73, 278 Case C-170/13 Huawei Technologies EU:C:2015:477��236 Case C-198/13 Hernandez EU:C:2014:2055�� 24 Case C-206/13 Siragusa EU:C:2014:126�� 18

xx List of Cases Case C-249/13 Khaled Boudjlida v Préfet des Pyrénées-Atlantiques EU:C:2014:2431�� 35 Case C-383/13 G & R EU:C:2013:533��254 Case C-434/13 P Commission v Parker Hannifin Manufacturing and Parker-Hannifin EU:C:2014:2456��244, 281 Case C-439/13 P Elitaliana EU:C:2015:753��179 Case C-440/13 Croce Amica One Italia EU:C:2014:2435��218, 283 Case C-497/13 Froukje Faber v Autobedrijf Hazet Ochten BV EU:C:2015:357��114, 117 Case C-538/13 eVigilo EU:C:2015:166�� 219–20 Case C-570/13 Gruber EU:C:2015:231��203, 278 Case C-583/13 P Deutsche Bahn and Others v Commission EU:C:2015:404��237 Case C-603/13 P Galp Energia España and Others v Commission EU:C:2016:38��241 Case C-605/13 P Anbouba EU:C:2015:248��187 Case C-609/13 P Duravit and Others v Commission EU:C:2017:46��241, 245 Case C-650/13 Delvigne EU:C:2015:648�� 37 Case C-681/13 Diego Brands EU:C:2015:471��48–49 Case C-49/14 Finanmadrid EFC SA v Jesús Vicente Albán Zambrano and Others EU:C:2016:98�� 105, 109, 118 Case C-61/14 Orizzonte Salute EU:C:2015:655�� 137, 224–25, 229, 281, 283 Case C-69/14 Dragoș Constantin Târșia v Statul roman, Serviciul public comunitar regim permise de conducere și înmatriculare a autovehiculelor EU:C:2015:662�� 103, 105, 109 Case C-71/14 East Sussex County Council EU:C:2015:656��203 Case C-129/14 PPU Spasic EU:C:2014:586�� 40 Case C-160/14 Ferreira da Silva EU:C:2015:565�� 48 Case C-169/14 Sánchez Morcillo and Abril García EU:C:2014:2099�� 58–59, 225 Case C-362/14 Schrems EU:C:2015:650��17, 126 Case C-377/14 Ernst Georg Radlinger and Helena Radlingerová v Finway a.s. EU:C:2016:283��114, 117 Case C-419/14 WebMindLicenses kft v Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vám Főigazgatóság EU:C:2015:832��35, 266–69, 283 Case C-439/14 Star Storage EU:C:2016:688�� 226, 229, 281 Case C-455/14 P H EU:C:2016:569��179, 281 Case C-486/14 Kossowski EU:C:2016:483��164 Case C-495/14 Tita and Others EU:C:2016:230��225 Case C-505/14 Klausner Holz Niedersachsen GmbH v Land Nordrhein-Westfalen EU:C:2015:742�� 108–09 Case C-514/14 P Éditions Odile Jacob v Commission EU:C:2016:55��236 Case C-543/14 Ordre des barreaux francophones et germanophone and Others EU:C:2016:605�� 263–64, 283 Case C-599/14 P Council v LTTE EU:C:2017:583��189 Case C-614/14 Atanas Ognyanov EU:C:2016:514�� 35 Case C-35/15 P(R) Vanbreda EU:C:2015:275��215, 226 Case C-63/15 Ghezelbash EU:C:2016:409��154

List of Cases xxi Case C-72/15 Rosneft EU:C:2017:236��2, 17, 36–38, 180, 182–84, 276, 281, 283 Case C-85/15 P Feralpi v Commission EU:C:2017:709��243 Case C-90/15 Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission EU:C:2017:123�� 31, 241, 247 Joined Cases C-154/15, C-307/15 and C-308/15 Gutiérrez Naranjo EU:C:2016:980�� 57 Case C-155/15 Karim EU:C:2016:410��155 Case C-161/15 Abdelhafid Bensada Benallal v Belgian State EU:C:2016:175��113, 117 Case C-171/15 Connexxion Taxi Services EU:C:2016:506��221, 226 Joined cases C-217/15 and C-350/15 Orsi and Baldetti EU:C:2017:264��39–40 Case C-243/15 Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín EU:C:2016:838��16, 89 Case C-279/15 P Borde EU:C:2016:297��203 Case C-344/15 National Roads Authority EU:C:2017:28�� 46 Case C-391/15 Marina del Mediterráneo and Others EU:C:2017:268��216 Case C-399/15P Romania v Commission EU:C:2017:801��202 Joined Cases C-408/15 P and 409/15 P Ackermann v EP and Council EU:C:2016:893�� 202–03 Case C-430/15 Tolley EU:C:2017:74�� 46 Case C-519/15 P Trafilerie Meridionali v Commission EU:C:2016:682��243 Case C-524/15 Menci EU:C:2018:197�� 36, 39–40 Case C-529/15 Folk EU:C:2017:419��208 Case C-579/15 Daniel Adam Popławski EU:C:2017:503�� 31 Case C-612/15 Nikolay Kolev and Others EU:C:2018:392�� 35 Case C-664/15 Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation EU:C:2017:987�� 89, 136, 202, 277 Case C-682/15 Berlioz Investment Fund EU:C:2017:373�� 91, 96, 255–58, 262, 280, 283 Case C-685/15 Online Games and Others EU:C:2017:452��115, 117–18, 169 Case C-3/16 Aquino EU:C:2017:209�� 48 Joined Cases C-52/16 and C-113/16 SEGRO EU:C:2018:157�� 46 Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas EU:C:2018:117�� 2, 12, 17–19, 28, 65, 78, 170, 275 Case C-73/16 Puškár EU:C:2017:725��23, 137 Case C-122/16 P British Airways v Commission EU:C:2017:861��241 Case C-147/16 Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen VZW v Susan Romy Jozef Kuijpers EU:C:2018:320��114, 117 Case C-181/16 Gnandi EU:C:2018:465�� 87 Case C-201/16 Shiri EU:C:2017:805��154 Case C-244/16 P Industrias Químicas del Valles v Commission EU:C:2018:177��198 Case C-264/16 P Deutsche Bahn and Others v Commission EU:C:2018:60��245 Case C-298/16 Ispas EU:C:2017:843��253 Case C-310/16 Dzivev and Others EU:C:2019:30�� 264–66, 283 Case C-348/16 Moussa Sacko EU:C:2017:591�� 87, 147, 151, 156

xxii List of Cases Case C-358/16 UBS Europe SE and Alain Hondequin and Others v DV and Others EU:C:2018:715�� 35 Case C-360/16 Hasan EU:C:2018:35��154 Case C-384/16 P European Union Copper Taskforce v Commission EU:C:2018:176�� 198–99, 209 Case C-403/16 El Hassani EU:C:2017:960��14, 70, 87, 143–44, 156, 169, 282 Case C-414/16 Egenberger EU:C:2018:257�� 2, 82, 92, 129, 137, 278, 282 Case C-452/16 Poltorak EU:C:2016:858��163–64, 207, 278 Case C-453/16 PPU Özçelik EU:C:2016:860�� 163–64, 278 Case C-454/16 P Global Steel Wire v Commission EU:C:2017:818��241, 247 Case C-457/16 P Global Steel Wire v Commission EU:C:2017:819��241, 247 Case C-477/16 PPU Kovalkovas EU:C:2016:86��163–65, 171, 278 Case C-490/16 A.S. EU:C:2017:585��155 Case C-530/16 Commission v Poland EU:C:2018:430�� 79 Case C-537/16 Garlsson Real Estate and Others EU:C:2018:193��38–40 Case C-585/16 Serin Alheto v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite EU:C:2018:584�� 28 Case C-596/16 Di Puma EU:C:2018:192�� 40 Case C-600/16 P National Iranian Tanker Company EU:C:2018:966��187 Case C-652/16 Ahmedbekova EU:C:2018:801��149, 151 Case C-670/16 Mengesteab EU:C:2017:587�� 154–55 Case C-3/17 Sporting Odds Limited v Nemzeti Adó- és Vámhivatal Központi Irányítása EU:C:2018:130��112, 117 Case C-176/17 Profi Credit Polska S.A. w Bielsku Białej v Mariusz Wawrzosek EU:C:2018:711��114 Joined Cases C-370/17 and C-37/18 Caisse de retraite du personnel navigant professionnel de l’aéronautique civile (CRPNPAC) v Vueling Airlines SA and Vueling Airlines SA v Jean-Luc Poignant EU:C:2020:260��106, 109 Case C-676/17 Călin EU:C:2019:94�� 48 Case C-99/17 P Infineon Technologies v Commission EU:C:2018:773��241 Joined Cases C-138/17 P and C-146/17 P European Union v Gascogne Sack Deutschland and Gascogne EU:C:2018:1013��243 Case C-150/17 P European Union v Kendrion EU:C:2018:1014��243 Case C-160/17 Thibaut EU:C:2018:401��205 Joined Cases C-174/17 P and C-222/17 P European Union v ASPLA and Armando Álvarez EU:C:2018:1015��243 Case C-163/17 Jawo EU:C:2019:218��157 Case C-167/17 Klohn EU:C:20118:844��205 Case C-180/17 X and Y EU:C:2018:775��146, 282 Case C-207/17 Rotho Blaas v Commission EU:C:2018:840��198 Case C-234/17 XC and others EU:C:2018:853��84, 103 Case C-258/17 P Bank Tejerat EU:C:2018:967��188 Case C-268/17 AY EU:C:2018:602�� 39 Case C-300/17 Hochtief EU:C:2018:635��224, 283 Case C-373/17 P Agria Polska and Others v Commission EU:C:2018:756��237

List of Cases xxiii Case C-384/17 Link Logistik N&N EU:C:2018:810�� 36 Case C-396/17 Leitner EU:C:2019:375�� 23, 129, 138 Case C-416/17 Commission v France EU:C:2018:811�� 47 Case C-447/17 P European Union v Guardian Europe EU:C:2019:672��243 Case C-517/17 Addis EU:C:2020:579�� 149, 151–52 Case C-518/17 Rudigier EU:C:2018:757�� 218–19 Case C-530/17 P Azarov v Council EU:C:2018:1031��189, 193 Case C-556/17 Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal EU:C:2019:626��19, 28, 88, 92, 149–50, 152–53, 156, 283–84 Case C-560/17 Izba v Commission EU:C:2020:330��202 Case C-576/17 P(R) Wall Street Systems UK Ltd EU:C:2018:208��227 Joined Cases C-582/17 and C-583/17 H. and R. EU:C:2019:280��155 Case C-617/17 Powszechny Zakład Ubezpieczeń na Życie EU:C:2019:283�� 38 Case C-620/17 Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék EU:C:2019:630�� 102, 105, 109 Case C-654/17 P Bayerische Motoren Werke v Commission and Freistaat Sachsen EU:C:2019:634��236 Case C-660/17 P RF v Commission EU:C:2019:509��238 Case C-661/17 M.A. and others EU:C:2019:53��146 Case C-662/17 E.G. EU:C:2018:847��146 Case C-663/17 P ECP EU:C:2019:923��198 Case C-676/17 Oana Mădălina Călin v Direcţia Regională a Finanţelor Publice Ploieşti – Administraţia Judeţeană a Finanţelor Publice Dâmboviţa and Others EU:C:2019:700�� 104–05, 109 Case C-680/17 Vethanayagam EU:C:2019:627�� 143–44 Case C-723/17 Craeynest and Others EU:C:2019:533��203–04, 218, 278 Case C-10/18 P Mowi ASA v European Commission EU:C:2020:149�� 39 Case C-38/18 Massimo Gambino and Shpetim Hyka v Procura della Repubblica presso il Tribunale di Bari and Others EU:C:2019:628�� 34 Case C-39/18 P Commission v ICAP and Others EU:C:2019:584��249 Case C-49/18 Vindel v Ministerio de Justicia EU:C:2019:106��65, 78 Case C-151/18 Slim Ben Tijani Ben Haj Hamda Ben Ali EU:T:2020:514��191 Case C-189/18 Glencore Agriculture Hungary EU:C:2019:861�� 23 Case C-192/18 Commission v Poland (Independence of ordinary courts) EU:C:2019:924�� 17 Case C-197/18 Burgenland EU:C:2019:824�� 202–03, 208 Case C-216/18 Minister for justice and Equality (Deficiencies in the system of justice) EU:C:2018:586��17, 161 Case C-230/18 PI v Landespolizeidirektion Tirol EU:C:2019:383�� 33 Case C-280/18 Flausch EU:C:2019:928��203 Case C-305/18 Verdi ambiente EU:C:2019:384��205 Case C-377/18 AH and Others EU:C:2019:670�� 35 Case C-403/18 P Alcogroup and Alcodis v Commission EU:C:2019:870��238 Case C-406/18 PG EU:C:2020:216��151, 283 Case C-467/18 EP EU:C:2019:765�� 33

xxiv List of Cases Joined Cases C-469/18 and C-470/18 Belgische Staat EU:C:2019:895�� 267–69 Joined Cases C-496/18 and C-497/18 HUNGEOD and Others EU:C:2020:240�� 225–226 Joined Cases C-508/18 and C-82/19 PPU OG and PI EU:C:2019:456�� 72, 280, 282 Case C-509/18 PF EU:C:2019:457��166, 280 Joined Cases C-542/18 RX-II and C-543/18 RX-II Review Simpson EU:C:2020:232�� 96 Joined Cases C-558/18 and C-563/18 Miasto Łowicz EU:C:2020:234�� 18–19, 66, 72 Case C-564/18 Tompa EU:C:2020:218�� 87 Joined Cases C-585/18, C-624/18 and C-625/18 A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) EU:C:2019:982�� 18–21, 28, 93 Case C-586/18 P Buonotourist Srl v Commission EU:C:2020:152��107 Case C-607/18 P NKT Verwaltung and NKT v Commission EU:C:2020:385��245 Case C-611/18 P Pirelli & C. SpA v Commission EU:C:2020:868�� 33 Case C-619/18 Commission v Poland (Supreme Court) EU:C:2019:531��17, 28, 72, 95 Case C-752/18 Deutsche Umwelthilfe eV EU:C:2019:1114�� 19, 42–43, 202–03, 279 Case C-808/18 Commission v Hungary EU:C:2020:1029��145 Case C-824/18 A.B. and others. (Appointment of judges to the Supreme Court) EU:C:2021:153�� 17–20, 22–23, 25, 65, 126 Case C-826/18 LB a.o EU:C:2021:7��203 Case C-14/19 P SatCen EU:C:2020:492��180 Case C-34/19 Telecom Italia SpA v Ministero dello Sviluppo Economico and Ministero dell’Economia e delle Finanze EU:C:2020:148�� 102, 105, 109 Case C-30/19 Braathens Regional Aviation EU:C:2021:269�� 23, 58, 129, 133–34, 137, 284 Joined Cases C-83/19, C-127/19 and C-195/19 Asociaţia ‘Forumul Judecătorilor din România’ v Inspecţia Judiciară EU:C:2020:746�� 82, 95–96 Case C-113/19 Luxaviation EU:C:2020:228��203 Joined Cases C-133/19, C-136/19 and C-137/19 B.M.M. and others EU:C:2020:577��144 Case C-134/19 P Bank Refah Kargaran EU:C:2020:793��181–83, 281, 283 Case C-194/19 H.A. v État Belge EU:C:2021:270��154 Joined Cases C-225/19 and C-226/19 R.N.N.S. and K.A. EU:C:2020:951��87, 155–56, 283 Joined Cases C-245/19 and C-246/19 État luxembourgeois v B and Others EU:C:2020:795��91, 255, 257–61, 269, 283 Case C-256/19 S.A.D. Maler und Anstreicher OG EU:C:2020:523�� 79 Case C-263/19 T-System Magyaroszág EU:C:2020:373�� 225–26 Case C-272/19 VQ v Land Hessen EU:C:2020:535��76, 78 Case C-352/19 P Région de Bruxelles v Commission EU:C:2020:978��198

List of Cases xxv Joined Cases C-357/19 and C-547/19 Ministerul Public – Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – Direcţia Naţională Anticorupţie EU:C:2021:175��76, 95 Case C-424/19 Cabinet de avocat UR v Administraţia Sector 3 a Finanţelor Publice prin Direcţia Generală Regională a Finanţelor Publice Bucureşti and Others EU:C:2020:581��105, 109 Case C-481/19 DB v Commissione Nazionale per le Società e la Borsa (Consob) EU:C:2021:84�� 34 Case C-487/19 W.Z. EU:C:2021:798��17, 75, 77 Case C-495/19 Kancelaria Medius SA v RN EU:C:2020:431��114, 117 Case C-561/19 Consorzio Italian Management EU:C:2021:799�� 6, 47–49, 274 Case C-564/19 IS EU:C:2021:949��17, 66, 79 Case C-565/19 P Carvalho a.o. v EP and Council EU:C:2021:252��204, 283 Joined Cases C-566/19 PPU and C-626/19 PPU JR & YC EU:C:2019:1077�� 168–69, 174 Case C-702/19 P Silver Plastics GmbH & Co. KG and Johannes Reifenhäuser Holding GmbH & Co. KG v Commission EU:C:2020:857�� 34 Joined Cases C-748/19 to C-754/19 Prokuratura Rejonowa w Mińsku Mazowieckim EU:C:2021:403��22, 25, 66 Case C-771/19 NAMA and Others EU:C:2021:232��215 Case C-791/19 Commission v Poland (Disciplinary regime for judges) EU:C:2021:596��17, 64, 72 Case C-852/19 Gavanozov II EU:C:2021:902��161 Case C-872/19 P Venezuela v Council EU:C:2021:507�� 184–86, 192, 281, 283 Case C-896/19 Repubblika v Il-Prim Ministru EU:C:2021:311��17–18, 20, 25, 67, 75 Joined Cases C-924/19 PPU and C-925/19 PPU FMS and others EU:C:2020:367��88, 144–45, 148, 156 Case C-927/19 Klaipėdos regiono atliekų tvarkymo centras v UAB EU:C:2021:700��111 Joined Cases C-354/20 PPU and C-412/20 PPU Openbaar Ministerie (Independence of the issuing judicial authority) EU:C:2020:1033�� 21 Case C-497/20 Randstad Italia EU:C:2021:1037�� 47 Case C-648/20 PPU PI EU:C:2021:187�� 89 Joined Cases C-428/21 PPU and C-429/21 PPU HM and TZ EU:C:2021:876��162 General Court Case T-585/93 Stichting Greenpeace a.o. v Commission EU:T: 1995:147��199 Case T-257/04 Poland v Commission EU:T:2009:182��185 Case T-150/05 Sahlstedt v Commission EU:T:2006:172��198 Case T-214/06 Imperial Chemical Industries v Commission EU:T:2012:275�� 241–42 Case T-357/06 Koninklijke Wegenbouw Stevin v Commission EU:T:2012:488��246 Joined Cases T-117/07 and T-121/07 Areva and Others v Commission EU:T:2011:69��237 Case T-132/07 Fuji Electric v Commission EU:T:2011:344��245

xxvi List of Cases Case T-56/09 Saint-Gobain Glass France and Others v Commission EU:T:2014:160��239 Case T-127/09 Abdulrahim EU:T:2015:4��188 Case T-286/09 Intel v Commission EU:T:2014:547��239 Case T-511/09 Niki Luftfahrt v Commission EU:T:2015:284�� 238–39 Case T-364/10 Duravit v Commission EU:T:2013:477��246 Case T-372/10 Bolloré v Commission EU:T:2012:325��239, 242 Case T-380/10 Wabco Europe and Others v Commission EU:T:2013:449��245 Case T-400/10 Hamas EU:T:2014:1095��187 Case T-436/10 Hit Groep v Commission EU:T:2015:514��242 Case T-9/11 Air Canada v Commission EU:T:2015:994��244 Case T-28/11 Koninklijke Luchtvaart Maatschappij v Commission EU:T:2015:995��244, 281 Case T-36/11 Japan Airlines v Commission EU:T:2015:992��244 Case T-38/11 Cathay Pacific Airways v Commission EU:T:2015:985��244 Case T-39/11 Cargolux Airlines v Commission EU:T:2015:991��244 Case T-40/11 Latam Airlines Group and Lan Cargo v Commission EU:T:2015:986��244 Case T-43/11 Singapore Airlines and Singapore Airlines Cargo v Commission EU:T:2015:989��244 Case T-46/11 Deutsche Lufthansa and Others v Commission EU:T:2015:987��244 Case T-48/11 BA v Commission EU:T:2015:988��244 Case T-56/11 SAS Cargo Group and Others v Commission EU:T:2015:990��244 Case T-62/11 Air France-KLM v Commission EU:T:2015:996��244 Case T-63/11 Air France v Commission EU:T:2015:993��244 Case T-67/11 Martinair Holland v Commission EU:T:2015:984��244 Joined Cases T-208/11 and T-508/11 Liberation Tigers of Tamil Eelam (LTTE) EU:T:2014:885�� 188–89 Joined Cases T-289/11, T-290/11 and T-521/11 Deutsche Bahn and Others v Commission EU:T:2013:404��237 Case T-297/11 Buzzi Unicem v Commission EU:T:2014:122��246 Case T-302/11 HeidelbergCement v Commission EU:T:2014:128��246 Case T-384/11 Safa Nicu Sepahan Co. EU:T:2014:986��183 Case T-471/11 Éditions Odile Jacob v Commission EU:T:2014:739��238 Case T-486/11 Orange Polska v Commission EU:T:2015:1002��239, 245 Case T-556/11 European Dynamics Luxembourg SA EU:T:2016:248��227 Case T-643/11 Crown Equipment (Suzhou) Co. Ltd and Crown Gabelstapler GmbH & Co. KG v Council EU:T:2014:1076�� 33 Case T-653/11 Jaber EU:T:2013:312��188 Joined Cases T-128/12 and T-182/12 HTTS EU:T:2013:312��186 Case T-265/12 Schenker v Commission EU:T:2016:111��246 Case T-275/12 Football Club ‘Dynamo-Minsk’ ZAO EU:T:2015:747��188 Joined Cases T-329/12 and T-74/13 Al-Tabbaa EU:T:2014:622��188 Case T-392/12 Iran Tranfo EU:T:2013:254��188 Case T-578/12 National Iranian Oil Company EU:T:2014:678��183, 283 Case T-92/13 Philips v Commission EU:T:2015:605��241

List of Cases xxvii Case T-181/13 Sharif University of Technology EU:T:2014:607��187 Case T-208/13 Portugal Telecom v Commission EU:T:2016:368��241 Case T-248/13 Al Ghabra EU:T:2016:721��186, 284 Case T-348/13 Kadhaf Al Dam EU:T:2014:806��188 Case T-402/13 Orange v Commission EU:T:2014:991��250 Case T-54/14 Goldfish and Others v Commission EU:T:2016:455��246 Case T-290/14 Portnov EU:T:2015:806��188 Case T-363/14 Secolux v Commission EU:T:2016:521��220 Case T-447/14 NKT Verwaltungs and NKT v Commission EU:T:2018:443��245 Case T-681/14 Aisha Muammer Mohamed El-Qaddaf EU:T:2017:227��188 Case T-691/14 Servier and Others v Commission EU:T:2018:922��238 Case T-720/14 Rotemberg EU:T:2016:689��187 Case T-739/14 PSC Prominvestbank, Joint-Stock Commercial Industrial & Investment Bank EU:T:2018:547��184 Case T-95/15 Printeos and Others v Commission EU:T:2016:722�� 244, 281, 284 Case T-180/15 Icap v Commission EU:T:2017:795��250 Case T-246/15 Ivanyushchenko EU:T:2017:789��188 Case T-255/15 Almaz-Antey EU:T:2017:25��184, 187 Case T-274/15 Alcogroup and Alcodis v Commission EU:T:2018:179��238 Case T-286/15 KF EU:T:2018:718��180 Case T-554/15 Fahimian EU:T:2018:220��155 Case T-582/15 Silver Plastics and Johannes Reifenhäuser v Commission EU:T:2019:497��246 Case T-762/15 Sony and Sony Electronics v Commission EU:T:2019:515��244 Case T-763/15 Sony Optiarc and Sony Optiarc America v Commission EU:T:2019:517��244 Case T-8/16 Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission EU:T:2019:522��244 Case T-43/16 1&1 Telecom v Commission EU:T:2018:660��238 Joined Cases T-274/16 and T-275/16 Saleh Thabet and Others v Council EU:T:2018:826��190 Case T-399/16 CK Telecoms v Commission EU:T:2020:217��249 Case T-712/16 Deutsche Lufthansa v Commission EU:T:2018:269��248 Case T-884/16 Multiconnect v Commission EU:T:2018:665��238 Case T-65/18 Venezuela v Council EU:T:2019:649��184 Case T-274/18 Klymenko v Council EU:T:2019:509��190 Case T-284/18 Sergej Arbuzov v Council EU:T:2019:511��190 Case T-553/18 Delcy Eloina Rodríguez Gómez EU:T:2021:458��187 Case T-246/19 Cambodia and CRF v Commission EU:T:2020:415��185 Case T-291/19 Viktor Pavlovych Pshonka EU:T:2020:448��190 Case T-38/21 R Inivos Ltd EU:T:2021:287��227

xxviii

Introduction MATTEO BONELLI, MARIOLINA ELIANTONIO AND GIULIA GENTILE*

Article 47 of the Charter of Fundamental Rights of the European Union Right to an effective remedy and to a fair trial 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 Project This book is the first of two volumes on the interpretation and application of the principle of effective judicial protection and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in the composite European legal order. It offers a top-down perspective by analysing the Court of Justice’s interpretation and application of Article 47 at the EU level. This inquiry will be then followed and complemented by a bottom-up perspective in the second volume,1 which will explore the national courts’ approaches to the application of Article 47 of the Charter and its related provisions. The project starts from two observations, which are, respectively, of an empirical and a systemic nature, on the state of the evolution of Article 47 and the principle of effective judicial protection. In empirical terms, as is also explained in Gentile and

* Matteo Bonelli is assistant professor of EU law at Maastricht University. Mariolina Eliantonio is Professor of European and Comparative Administrative Law and Procedure at Maastricht University. Giulia Gentile is Fellow in Law at the London School of Economics Law School. 1 M Bonelli, M Eliantonio and G Gentile, Article 47 of the EU Charter and Effective Judicial Protection: Volume II: The National Courts’ Perspectives (Hart Publishing, forthcoming).

2 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile Menzione’s chapter in this first volume,2 we noticed that Article 47 is the provision of the Charter most commonly used by the Court of Justice as well as by national courts in their preliminary references.3 This is not merely a curious statistic. The prevalence of Article 47 in the Court’s case law on the Charter is in fact so remarkable that it merits closer analysis. We have hypothesised that the study of the CJEU case law on Article 47 might reveal important findings on the role of that provision in the EU fundamental rights landscape, as well as on the approach of the Court of Justice towards claims involving fundamental rights issues. The popularity of Article 47 has even been viewed with a degree of concern, as it might obscure other dimensions of the Union’s bill of rights.4 In any event, this preliminary empirical observation generates a series of questions: what are the reasons for the prevalence of Article 47, both at EU and at national level? Is this predominance due mainly to developments in a specific policy area or field, or can we see it across the board? Are particular components5 of Article 47 more invoked and applied than others? Beside these quantitative observations, a qualitative analysis further reveals that Article 47 features prominently in several landmark rulings of the CJEU with a profound constitutional dimension: the key significance of Article 47 in the EU constitutional toolkit is evident.6 This prevalence, if not predominance, of Article 47 in the case law of the Court was the first thrust for us to reflect on its role and impact in the multilevel system of protection of European fundamental rights and more broadly on the Union’s constitutional framework. In systemic terms, what stimulated our analysis is the complex landscape in which Article 47 of the Charter is situated. As the Court of Justice held in Abida and then repeated in Rosneft, Article 47, containing the right to an effective remedy and to a fair trial, ‘constitutes a reaffirmation of the principle of effective judicial protection’.7

2 See also: E Frantizou, ‘Binding Charter Ten Years on: More than a “Mere Entreaty”?’ (2019) 38 Yearbook of European Law 73; K Gutman, ‘Article 47: The Right to an Effective Remedy and to a Fair Trial’ in M Bobek and JM Adams-Prassl (eds), The EU Charter of Fundamental Rights in the Member States (Hart Publishing, 2020); X Groussot and GT Peterson, ‘Je t’aime … moi non plus: Ten years of application of the EU Charter of Fundamental Rights’, (2022) 59 Common Market Law Review 239; and the data of the FRA Fundamental Rights Agency, Fundamental Rights Report 2019, available at https://fra.europa.eu/sites/ default/files/fra_uploads/fra-2019-fundamental-rights-report-2019_en.pdf. 3 As the second volume of this project will make clear, Article 47 is the Charter provision most commonly used by national courts in most domestic legal orders not only in their preliminary references to the CJEU, but also when they autonomously – that is, without consulting the CJEU in a preliminary reference – apply EU law. 4 Frantziou (n 2). 5 Article 47 contains two main dimensions: the right to effective judicial protection; and the right to fair trial. For each dimension, we can then identify many sub-components: see for an overview A Ward, ‘Article 47 – Right to an Effective Remedy and to a Fair Trial’ in S Peers et al (ed), The EU Charter of Fundamental Rights – A Commentary (Hart Publishing, 2021). 6 See eg Case C-414/16 Egenberger EU:C:2018:257 (in which the Court recognised the horizontal direct effect of Art. 47); Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117; Case C-72/15 Rosneft EU:C:2017:236. The point will be developed later. 7 Case C-562/13 Abida EU:C:2014:2453, para 45; and Rosneft (n 6) para 73. See also the earlier decision in Case C-432/05 Unibet EU:C:2007:163, para 37, where the Court used a slightly different formulation: ‘the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and which has also been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union’ (italics added)

Introduction 3 The latter had already been discovered by the Court of Justice in the 1980s with the von Colson and Johnston rulings,8 and developed on the basis of Articles 6 and 13 of the European Convention on Human Rights,9 as well as national constitutional traditions.10 Due to the composite nature of the EU judicial system, the principle of effective judicial protection has been seen as imposing obligations both at the EU level11 and on national authorities, acting as a limit to the national procedural autonomy of the Member States12 together with the principles of equivalence and effectiveness that the Court of Justice had elaborated in the Rewe case.13 Article 47 thus reaffirmed and ‘codified’ the principle of effective judicial protection, but did not replace it: the right and the general principle continue to coexist next to each other. Furthermore, the Treaty of Lisbon did not limit itself to making the Charter and Article 47 legally binding. It also added the current version of Article 19 TEU, which includes another key reference to the concept of effective judicial protection, or to be more precise, to ‘effective legal protection’ (but the concepts can certainly be seen as perfect synonyms). Indeed, the second sentence of Article 19 requires the Member States to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. The primary law landscape is thus rather complex: Article 47 of the Charter, other ‘Justice’ rights of the Charter related to Article 47,14 Article 19 TEU,15 and an unwritten general principle of effective judicial protection, related to the Rewe principles of equivalence and effectiveness. But there is more: Articles 6 and 13 of the ECHR continue to be relevant in the interpretation of the general principle of effective judicial protection and of Article 47, also in the light of Article 52(3) of the Charter, which affirms that Charter rights should be given the same meaning and scope as corresponding ECHR rights.16 What is more, national constitutions also offer protection to the right to a fair trial and the right to effective judicial protection.17 Last but not least, we should mention that in the last few decades the EU has also increasingly adopted procedural rules that concretise the more general

8 Case C-14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen EU:C:1984:153; Case C-222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary EU:C:1986:206. 9 Article 6 ECHR guarantees the right to a fair trial; Article 13 ECHR protects the right to an effective remedy. 10 Johnston (n 8) para 18. 11 Famously see e.g. Joined Cases C-402/05 P and C-415/05 P Kadi I EU:C:2008:461. 12 On this concept, see Bonelli’s chapter in this volume. 13 Case C-33/76 Rewe v Landwirtschaftskammer für das Saarland EU:C:1976:188. The precise relationship between the three concepts has never been fully clarified: see e.g., S Prechal and R Widdershoven, ‘Redefining the Relationship between “Rewe-effectiveness” and Effective Judicial Protection’ (2011) 4 Review of European Administrative Law 31. 14 See Gentile and Menzione’s chapter in this volume. 15 On the relationship between Art. 19 TEU and Art. 47 of the Charter, see in particular the chapters of Prechal and Krajewski in this volume. 16 The Explanations of the Charter clarify that the provision corresponds to Article 6 and Article 13 ECHR. Note however that Article 47 is actually formulated in a broader manner and offers more extensive protection than the two ECHR provisions: see e.g., Gutman (n 2). 17 By way of example, see Art 13 of the Belgian Constitution, Art 29 of the Croatian Constitution, Art 111 of the Italian Constitution, Arts 19 and 103 of the German Constitution, Art 28 of the Hungarian Constitution, etc.

4 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile requirements stemming from Article 47. These EU procedural rules work together with – or sometimes replace – national procedural rules. The landscape therefore becomes even more complex: Article 47 interacts with other EU primary and secondary substantive and procedural rules, EU general principles,18 ECHR rights, national rights and national procedural rules. We thus sought to reflect on those interactions and on the role of Article 47 in that landscape, or, using a different metaphor, on how the different pieces of the jigsaw of EU effective judicial protection fit together. In the light of these observations, we decided to structure the book project around two main perspectives. The first is the perspective of the Court of Justice of the European Union. In this respect, our first volume builds on and contributes to an already rich discussion on effective judicial protection and Article 47 of the Charter at the EU level. So far, the literature on these topics has developed mostly in two directions. A more analytical strand focused on the content of Article 47,19 explored the question of its essence20 and possible limitations,21 and looked at its role in specific policy areas.22 A more systemic strand placed Article 47 in the broader landscape we depicted above, and looked at its interaction with the general principle of effective judicial protection and the other key EU law principles of equivalence and effectiveness,23 and also explored the

18 See also the interaction between Art 47 of the Charter, legality, and legal certainty in Eliantonio’s chapter in this volume. 19 P Aalto et al ‘Article 47 – Right to an Effective Remedy and to a Fair Trial’ in S Peers et al (eds), The EU Charter of Fundamental Rights (Hart Publishing, 2014); Ward (n 5); Gutman (n 2). 20 K Gutman, ‘The Essence of the Fundamental Right to an Effective Remedy and to a Fair Trial in the Case-Law of the Court of Justice of the European Union: The Best Is Yet to Come?’ (2019) 20 German Law Journal 884. 21 T Ojanen, ‘Making the Essence of Fundamental Rights Real: The Court of Justice of the European Union Clarifies the Structure of Fundamental Rights under the Charter: ECJ 6 October 2015, Case C-362/14, Maximillian Schrems v Data Protection Commissioner’ (2016) 12 European Constitutional Law Review 318; G Gentile, ‘The CJEU Scrutiny of National Procedural Rules under Article 47 EUCFR: Between EU Constitutional Essentialism and the Enhancement of Procedural Justice in the Member States’, in C Mak and B Kas (eds), Civil Courts and the European Polity: The Constitutional Role of Private Law Adjudication in Europe (Hart Publishing, forthcoming). 22 A van Duin, ‘Metamorphosis? The Role of Article 47 of the EU Charter of Fundamental Rights in Cases Concerning National Remedies and Procedures under Directive 93/13/EEC’ (2017) 6 Journal of European Consumer and Market Law 190; C Mak, ‘Rights and Remedies: Article 47 EUCFR and Effective Judicial Protection in European Private Law Matters’ in HW Micklitz (ed), Constitutionalization of European Private Law (Oxford University Press, 2014); M Reneman, ‘Asylum and Article 47 of the Charter: Scope and Intensity of Judicial Review’ in A Crescenzi et al (eds) Asylum and the EU Charter of Fundamental Rights (Editoriale Scientifica, 2018). 23 W van Gerven, ‘Of rights, remedies and procedures’ (2000) 37 Common Market Law Review 501; R Barents, ‘EU procedural law and effective judicial protection’ (2014) 51 Common Market Law Review 1437; M Accetto and S Zleptnig, ‘The Principle of Effectiveness: Rethinking Its Role in Community Law’ (2005) 11 European Public Law 375; A Arnull, ‘The principle of effective judicial protection in EU law: an unruly horse?’ (2011) 36 European Law Review 51; M Bobek, ‘Why there is no principle of procedural autonomy of the Member States’ in B De Witte and H Micklitz (eds), The European Court of Justice and the Autonomy of the Member States (Intersentia, 2011); Prechal and Widdershoven (n 13); M Safjan and D Düsterhaus, ‘A Union of Effective Judicial Protection: Addressing a Multi-level Challenge through the Lens of Article 47 CFREU’ (2014) 33 Yearbook of European Law 3; S Prechal, ‘The Court of Justice and Effective Judicial Protection: What Has the Charter Changed?’ in C Paulussen et al (eds), Fundamental Rights in International and European Law (Springer, 2016); J Krommendijk, ‘Is there light on the horizon? The distinction between “Rewe-effectiveness” and the principle of effective judicial protection in Article 47 of the Charter after Orizzonte’ (2016) 53 Common Market Law Review 1395; R Widdershoven, ‘National Procedural Autonomy and General EU Law Limits’ (2019) 12 Review of European Administrative Law 5.

Introduction 5 interaction between the right, the principles and secondary EU procedural law.24 Our volume brings in turn two innovative perspectives. First, it focuses on the constitutional dimension of Article 47 and the principle of effective judicial protection, which have become structural norms of the EU judiciary, expanding on the first analyses offered in the debate.25 Secondly, it offers the first26 cross-sector analysis of the case law of the CJEU on Article 47, which allows for fresh comparisons between different policy fields and can help in answering several questions: do we see similar issues emerging in different areas? Is the approach of the Court to those issues consistent? How does the Court approach the interaction between Article 47 and the other ‘judicial protection’ provisions in these different fields? The second volume takes the perspective of the national courts, which are called on to apply Article 47 and the principle of effective judicial protection in concrete cases. These courts engage with this Charter provision and the parent general principle in a threefold manner: they implement the case law of the CJEU on Article 47; they, on some occasions, involve the Luxembourg Court to clarify the scope and content of the relevant provisions via the preliminary reference procedure; and they manage the interaction of Article 47 and other relevant EU norms with national constitutional provisions and the ECHR. This second perspective contributes to an emerging strand of the literature,27 which has started to explore how the Charter provisions have been received, interpreted and applied by national courts, zooming in on what has so far been arguably the most important and most impactful article of the EU bill of rights. Combining the two dimensions – the EU and the national – the project allows us to better place Article 47 in the composite and multilevel European fundamental rights landscape, bringing to light the main challenges emerging at each level as well as those created by the interaction of different levels, and then to reflect on whether there is a sufficient degree of consistency and convergence in the interpretation and use of Article 47 vertically – between the CJEU and national courts – and horizontally – between national courts in different Member States.

24 R Caranta, ‘The interplay between EU legislation and effectiveness, effective judicial protection and the right to an effective remedy in EU public procurement law’ (2019) 12 Review of European Administrative Law 63; M Eliantonio, ‘The relationship between EU secondary rules and the principles of effectiveness and effective judicial protection in environmental matters: towards a new dawn for the “language of rights”?’ (2019) 12 Review of European Administrative Law 95; L Tsourdi, ‘Of legislative waves and case law: Effective judicial protection, right to an effective remedy and proceduralisation in the EU asylum policy’, (2019) 12 Review of European Administrative Law 143. 25 L Pech and S Platon, ‘Judicial Independence Under Threat: The Court of Justice to the Rescue’ (2018) 55 Common Market Law Review 1827; M Bonelli and M Claes, ‘Judicial Serendipity: How Portuguese Judges Came to the Rescue of the Polish Judiciary’ (2018) 14 European Constitutional Law Review 622; V Roeben, ‘Judicial Protection as the Meta-norm in the EU Judicial Architecture’ (2019) 12 Hague Journal of the Rule of Law 29; A Mickonytė, ‘Effects of the Rule-of-Law Crisis in the EU: Towards Centralization of the EU System of Judicial Protection’ (2019) 79 Heidelberg Journal of International Law 815; M Bonelli, ‘Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature’ (2019) 12 Review of European Administrative Law 35. 26 As noted above, while attention has been paid to the role of Article 47 in specific areas, as far as we know there is limited comparison between policy fields. 27 Bobek and Prassl (n 2); R Tinière and C Vial (eds), Les dix ans de la Charte de droits fondamentaux de l’Union européenne. Bilan et perspectives (Bruylant, 2020).

6 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile

The First Volume and its Structure The first volume of the project focuses on the Court of Justice’s perspective. It includes two sets of contributions. The first group analyses a range of constitutional themes linked to the Court’s interpretation of Article 47 and the principle of effective judicial protection. The goal of this part of the volume is to better grasp the position and impact of Article 47 and of the principle of effective judicial protection in the Union’s constitutional framework, as well as its relationship with other key EU law principles and rights. It also reflects in particular on the more recent case law of the Court that is transforming Article 47 into a key structural norm for the EU legal and judicial structure.28 The first three chapters look at the interaction between Article 47 and other key EU ‘judicial protection’ and ‘Justice’ norms. Prechal compares and contrasts the scope of application of Article 19 TEU and of Article 47 of the Charter, and then reflects on what justifies the exceptionally broad scope of application of Article 19 TEU. Gentile and Menzione concentrate on the interplay between Article 47 and the other rights of the ‘Justice’ title of the Charter, which so far have remained ‘in the shadow’ of Article 47 in both the case law of the Court and academic analysis. Wallerman-Ghavanini and Rauchegger look at the relationship between Article 47 and the preliminary reference procedure established by Article 267 TFEU, explicitly acknowledged in the recent case law of the Court.29 Then Krajewski and Bonelli’s chapters analyze the impact of the ‘constitutional’ jurisprudence of the Court based on Article 47 of the Charter and Article 19 TEU on domestic constitutional orders. Krajewski focuses on the judicial independence case law, assessing how the Court has dealt with the diversity (or commonality) of standards and national constitutional traditions, while Bonelli assesses how Article 47 contributes to shape the traditional question of the limits to the procedural autonomy – or autonomy tout court – of the Member States. This first part of the volume is completed by Eliantonio’s chapter, which reflects on whether and how the principle of effective judicial protection and Article 47 have played a role in the line of cases on the finality of judicial decisions and the ex officio application of EU law. The contributions to the second part of the volume look instead at the role of Article 47 in different policy areas. The analysis is chiefly qualitative, although occasionally complemented by quantitative findings.30 We have selected a few policy areas more closely linked to rule of law and fundamental rights considerations, where Article 47 would be expected to play a decisive role, though in practice that might not always be the case.31 For instance, Gutman analyses the role of Article 47 in the Union’s non-discrimination and equality law; Reneman reflects on how Article 47 has empowered domestic asylum and migration courts; and Martufi offers a critical study of the controversial approach of the Court to the Charter rights in the context of the European Arrest Warrant. The volume also includes more ‘traditional’ areas of EU economic law. In some of those fields, such as competition law, studied by Kalintiri, Article 47 has

28 See

in particular the chapters by Prechal, Krajewski, Bonelli, and Wallerman-Ghavanini and Rauchegger. C-561/19 Consorzio Italian Management EU:C:2021:799. 30 See in particular Kalintiri’s chapter on competition law. 31 See in particular Martufi’s chapter on the European Arrest Warrant system. 29 Case

Introduction 7 started to play a key role since the entry into force of the Charter; in others, such as taxation, analysed by Pantazatou, we are witnessing a slower evolution in the approach of the Court; and in public procurement, as argued by Caranta, Article 47 is not yet adequately considered by the Court. The same might be true for another area of EU law – the environment – where, according to Krämer, the Court is called on to rethink its approach. Finally, Poli’s chapter analyses the use of Article 47 in the Common Foreign and Security Policy and shows how the provision has been used by the Court to expand its limited jurisdiction in the area. In our conclusions, we attempt to tie together the different themes that have emerged in the substantive chapters of the volume and link them to the questions which have prompted us to embark on this research. First, we highlight some trends emerging with respect to the ‘constitutional’ role of Article 47 in the EU multi-level system of governance. Secondly, we present a few observations on the interactions between Article 47 and the principle of effective judicial protection, between Article 47 and EU s econdary law, and on the complex network of protection offered by the Charter, the ECHR and national (constitutional) provisions. We finally examine the role and potential of Article 47 to further the application of EU substantive law and to shape national remedial rules.

8

part 1 The Constitutional Dimension of Article 47 of the Charter

10

1 Article 19 TEU and National Courts: A New Role for the Principle of Effective Judicial Protection? SACHA PRECHAL*

The principle of effective judicial protection seems to have evolved from what might have been considered by some as a ‘mere’ general principle, into a true fundamental right, by now recognized in Article 47 of the Charter of Fundamental Rights and likewise guaranteed by Article 19 TEU. More recently, it has acquired a broader constitutional role by being linked to the rule of law and to Article 2 TEU. This chapter explores this evolution and its significance by concentrating mainly on the case law of the Court of Justice of the European Union on Article 19(1), second paragraph TEU. The contribution first focuses on the origins of the principle of effective judicial protection as inserted into Article 19 TEU and in particular the significance of this codification for the role played by national courts. Next, after a brief discussion of the much-debated ‘Portuguese Judges’ case, it addresses the scope of application of Article 19(1), second paragraph, TEU in comparison with Article 47 of the Charter. Finally, the exceptionally wide scope of application of Article 19(1), second paragraph, TEU, that follows from the recent case law, is put into perspective by linking it to the rationale behind this case law: the role of national courts as ‘organs’ of the judicial system of the EU. As such, national courts must satisfy the guarantees of access to an independent and impartial court previously established by law.

I. Introduction Effective judicial protection was recognised by the Court of Justice of the European Union (hereafter also ‘the Court’) in the mid-1980s as a general principle of Union law.1 For a while, it was considered, at least by some, as a more stringent form of the principle * Sacha Prechal is Judge at the Court of Justice of the European Union and professor of European law, Utrecht University. All views expressed in this contribution are strictly personal. The contribution was finalised at the end of May 2021. 1 See s II.

12 Sacha Prechal of effectiveness,2 and would correspondingly have a much greater impact on national law than was previously the case.3 However, in retrospect, it would seem instead that the principle was from the very beginning recognised as a fundamental right. It was labelled ‘principle’ due to the fact that, for want of a Union list of such rights, fundamental rights in the EU were protected as ‘general principles of Union law’. Even after the entry into force of the Charter of Fundamental Rights, rights not covered by the Charter are protected under this designation.4 The rationale of the principle of effective judicial protection is different to the principle of effectiveness: the principle is inextricably linked to the rule of law.5 The core of the principle is that it aims at protecting the rights of legal subjects which they derive from EU law and, at the same time, at controlling the exercise of the powers by public authorities. The principle of effective judicial protection, its relationship with the principles of equivalence and effectiveness as well as, in particular, its ‘codified’ version, namely Article 47 EUCFR, have generated a wealth of literature.6 In this contribution, I will focus on a new development, namely the operationalisation of Article 19(1), second paragraph, TEU that states the following: ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. It is interesting to compare the English version with the French, which runs as follows: ‘Les États membres établissent les voies de recours nécessaires pour assurer une protection juridictionnelle effective dans les domaines couverts par le droit de l’Union’. Apart from the somewhat ambiguous notion of ‘remedy’, it seems to me that legal protection is a broader notion than judicial protection (protection juridictionnelle),7 a difference which is probably due to the lack of an unequivocal translation in the past. In any case, effective legal protection also comprises the notion of ‘effective judicial protection’. I will start by looking briefly at the genesis of the principle of effective judicial protection and, in particular, of Article 19(1), second paragraph, TEU, which for a long time seemed somewhat minimalist (Section II). Next, I will turn to the much-discussed judgment in the case of Associação Sindical dos Juízes Portugueses (hereafter Portuguese Judges)8 and discuss some crucial features which this judgment has brought into the 2 The requirement that national rules should not make ‘virtually impossible or excessively difficult’ the exercise of rights conferred by Union law. 3 See J Jans et al (eds), Europeanisation of Public Law (Europa Law Publishing, 2015) 61; see also M Bonelli, ‘Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature’ (2019) 12 Review of European Administrative Law 35, 51. 4 See Art 6(3) TEU. 5 See S Prechal and R Widdershoven, ‘Redefining the relationship between “Rewe-effectiveness” and Effective Judicial Protection’ (2011) 4 Review of European Administrative Law 31, 46; see also below, s III. 6 See, eg W van Gerven, ‘Of rights, remedies and procedures’ (2000) 37 Common Market Law Review 501; M Accetto and S Zleptnig, ‘The Principle of Effectiveness: Rethinking Its Role in Community Law’ (2005) 11 European Public Law 375; A Arnull, ‘The principle of effective judicial protection in EU law: an unruly horse?’ (2011) 36 European Law Review 51; H Hoffmann, ‘Article 47’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014); J Krommendijk, ‘Is there light on the horizon? The Distinction between “Rewe effectiveness” and the principle of effective judicial protection in Article 47 of the Charter after Orizzonte’ (2016) 53 Common Market Law Review 1395; R Widdershoven, ‘National Procedural Autonomy and General EU Law Limits’ (2019) 12 Review of European Administrative Law 5; K Gutman, ‘Article 47: The Right to an Effective Remedy and to a Fair Trial’ in M Bobek and J Adams-Prassl (eds), The EU Charter of Fundamental Rights in the Member States (Hart Publishing, 2020). 7 Many other language versions use expressions broader than ‘judicial protection’. 8 Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117.

Art 19 TEU and National Courts 13 limelight (Section III). Section IV focuses, on the one hand, on the overlap between Article 47 EUCFR and Article 19(1), second paragraph, TEU, and, on the other, on the difference in the scope of application of the two provisions, while Section V proposes a different view of the problems raised. In the last section, on the basis of the preceding analysis, I will briefly reflect on the question in the title of this contribution: is there a new role for the principle of effective judicial protection?

II. From Van Gend & Loos to Article 19(1) TEU Within the constitutional structure of the European Union, the application of Union law is and, in principle, has always been decentralised. This also implies that judicial protection is, in the first place, a matter for national courts. Ever since Van Gend en Loos9 the Court has maintained and confirmed that it is the task of the national courts to protect the rights of individuals under Union law and to give full effect to the provisions of Union law. Initially, it was assumed that national remedies and procedures were both sufficient and adequate for these purposes. However, litigation involving Union law issues revealed that the national procedures and the panoply of domestic remedies were sometimes lacking. The Court therefore started to interfere with national procedures and remedies. In 1976, the Comet and Rewe judgments10 made explicit the basis of the duty or task of the national court to protect the rights which individuals derive from Union law, namely Article 4(3) TEU, the principle of sincere cooperation. As is well known by now, in these judgments the Court held that: In the absence of community rules on the subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of [Union] law.11

Initially, national procedures and remedies had to satisfy the principles of equivalence and (minimum) effectiveness, ie, the procedural rules governing actions for safeguarding an individual’s rights under Union law must be no less favourable than those governing similar domestic actions and must not render practically impossible or excessively difficult the exercise of these rights. In particular, the latter principle circumscribed the latitude left to Member States, sometimes in a rather far-reaching fashion, and hinted at what effectiveness might require when judicial protection is at stake.12 As from 1986, the identification and further development of the principle of effective judicial protection led to a more intensive scrutiny of national procedural and remedial rules. In its seminal judgment in Johnston v Chief Constable of the RUC,13 the Court

9 Case C-26/62 Van Gend & Loos EU:C:1963:1. 10 Case C-45/76 Comet EU:C:1976:191; Case 33/76 Rewe EU:C:1976:188. 11 Rewe (n 10), para. 5. 12 From the rich literature on the development of this case law, see M Dougan, ‘The Vicissitudes of Life at the Coalface: Remedies and Procedures for Enforcing Union Law before the National Courts’ in P Craig and G De Búrca (eds), The Evolution of EU law (Oxford University Press, 2011). 13 Case C-222/84 Johnston EU:C:1986:206.

14 Sacha Prechal held that the requirement of judicial control stipulated by Article 6 of Directive 76/207 (equal treatment of men and women)14 reflected a general principle of law which underlies the constitutional traditions common to the Member States and which is also laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In Johnston, the principle of effective judicial protection was still closely tied to the directive at issue in that case. However, the statement that Article 6 reflects a general principle of law proved to be crucial for the further application of the principle in areas of Union law where no such principle existed in a codified form. In subsequent cases, starting with Heylens,15 the principle took on an entirely independent role, even in areas of Union law where there was no provision applicable similar to the one contained in Article 6 of Directive 76/207. Moreover, in accordance with its general nature, the principle also applies to the protection of individuals against Union institutions.16 As far as domestic legal systems are concerned, the principle of effective judicial protection has an impact on a wide range of rules, such as rules on standing, rules on limitation periods, evidential rules, obligations to exhaust available – pre-trial – administrative remedies or out-of-court settlement procedures, and rules concerning the payment of interest. Moreover, it also governs the availability of remedies as such. In particular, some form of judicial review must exist and, in certain circumstances, interim relief must be available to litigants.17 Similarly, in the case of loss sustained as a result of a breach of Union law, individuals are entitled to an award of damages.18 While the requirement of effective judicial protection started as a general principle of EU law (but in fact a fundamental right ‘in disguise’)19 and was developed, step by step, by the case law of the Court, subsequently provisions on judicial protection and remedies have been inserted and increasingly elaborated, sometimes in quite some detail, in secondary law. Finally, with the entry into force of the Lisbon Treaty, the principle/fundamental right acquired a written primary law status. The Charter of Fundamental Rights of the European Union, in Article 47, lays down the ‘right to an effective remedy and to a fair trial’. Furthermore, as was already indicated in Section 1, according to Article 19(1), second paragraph, TEU, ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. The main reason behind the insertion of this second paragraph was to guarantee effective judicial protection of natural and legal persons. The limited access of individuals to Union Courts under Article 263 TFEU, in particular when the validity of acts of 14 Council Dir 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/40. 15 Case 222/86 Heylens EU:C:1987:442, para 14. 16 See Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461; Case C-389/10 P KME EU:C:2011:816; Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission and Others v Kadi EU:C:2013:518; see also Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council EU:C:2013:625, where the principle plays an important role in the interpretation of Art 263(4) TFEU. 17 Case C-432/05 Unibet EU:C:2007:163, paras 41 and 64; see also Case C-403/16 El Hassani EU:C:2017:960, para 41. 18 In fact, state liability for breaches of EU law, as laid down in Joined Cases C-6/90 and C-9/90 Francovich EU:C:1991:221, is a culmination of the case law on effective judicial protection. 19 See above, s I.

Art 19 TEU and National Courts 15 general application, such as regulations and directives, is at stake, is, as such, difficult to reconcile with the idea that the Union is a ‘Union based on the rule of law’. That means that neither the Member States nor the institutions can avoid a review of the question whether the measures adopted by them are in conformity with, in particular, the Treaties, the general principles of law and fundamental rights.20 The answer to this problem was clearly articulated in the judgment in the Union de Pequeños Agricultores case. The Court pointed out that the Treaty has established, with Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of Union acts.21 Therefore, where the implementation of an act of general application is a matter for the Member States, the person concerned may plead the invalidity of the Union act at issue before the national courts. The latter may or, in certain circumstances, must request a preliminary ruling from the Court of Justice. In its judgment, the Court also emphasised that: … it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection’ and ‘[i]n that context, in accordance with the principle of sincere cooperation laid down in [Article 4 (3) of the TEU], national courts are required, as far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a [Union] act of general application, by pleading the invalidity of such act.22

During the European Convention that prepared the Treaty Establishing a Constitution for Europe, the obligation of the Member States to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’ was inserted into Article I-29 of the proposed treaty, and was later reproduced in identical terms in Article 19(1) TEU. As such, this text was indeed not something new or revolutionary. As the – then – president of the Court, Rodríguez Iglesias, observed: Lastly, no specific comment is called for from the Court on the suggestion that the Member States’ obligation to ensure that there are effective legal remedies before their own courts – an obligation recognised in the case-law – should be written into the Treaty.23

The reference to a general obligation of the Member States to provide for effective remedies and procedures leads to another vital point. As pointed out above, national courts are required to provide effective judicial protection both against the authorities in Member States and in disputes between individuals. Moreover, they are also the first called upon when the validity of Union law is challenged. Yet, in the Treaties there was never and there is still no explicit provision

20 Case C-294/83 Les Verts v European Parliament EU:C:1986:166, para 23, making reference to the Treaty; Case C-583/11 P Inuit (n 16), para. 91; Case C-274/12 P Telefónica v Commission EU:C:2013:852, para 56, adding ‘the general principles of law and fundamental rights’. 21 Case C-50/00 P Unión de Pequeños Agricultores v Council EU:C:2002:462, para 40; see also Les Verts (n 20), para 23. 22 Unión de Pequeños Agricultores (n 21) paras 41 and 42. 23 See the Secretariat of the European Convention, Oral presentation by M Gil Carlos Rodríguez Iglesias, President of the Court of Justice of the European Communities, to the ‘discussion circle’ on the Court of Justice on 17 February 2003, CONV 572/03, para 4.; see also the Secretariat of the European Convention, Final report of the discussion circle on the Court of Justice of 25 March 2003, CONV 636/03, para 18.

16 Sacha Prechal dealing with their role in the system of judicial protection within the EU. The only exception is Article 267 TFEU, the preliminary ruling procedure.24 Beyond that, the role that national courts play within this system of judicial protection was a matter of case law, with the very general Article 4(3) TEU as its Treaty basis.25 Over the years proposals have been made which aimed at making the role and function of the national courts more visible. For instance, in 2000, the so-called ‘Due Committee’ proposed to include in Article 234 TEC, now Article 267 TFEU, a new paragraph that should emphasise the roles of the national courts in the context of the preliminary procedure by stating that ‘[s]ubject to the provisions of this Article, the courts of the Member States shall rule on the questions of Community law which they encounter in the exercise of their national jurisdiction’.26 Similarly, in the build-up to the EU Constitutional Treaty, Ziller and Lotarski, for instance, proposed to include in that Treaty a provision stating that national courts are ‘associates’ of the CJEU and that they are obliged to apply European Union law.27 The final report of the discussion circle on the Court of Justice mentioned discreetly that the role of national courts ‘as ordinary law courts of the Union could be highlighted in the Constitution’.28 At the end of the day, only the second paragraph of Article 19(1) TEU was inserted in the Treaty. While it is not very explicit on the role and function of the national courts, it may assist them in assuming responsibility for the application of Union law in the exercise of their jurisdiction and in fulfilling their role in the Union law system of judicial protection.

III. Article 19(1) TEU Brought to Life While, after the entry into force of the Lisbon Treaty, Article 19(1), second paragraph, TEU was usually referred to as an aid to interpretation,29 the judgment in the Portuguese Judges case was a game changer. In that case, Article 19(1), second paragraph, TEU was interpreted as a self-standing ground for the assessment of whether general salaryreduction measures were compatible with the requirement of judicial independence. Ever since, preliminary questions have been referred to the Court or infringements

24 Note that Article 177 EEC, as it then was, was used by the Court of Justice as one of the arguments in favour of the direct effect of Union law in Van Gend & Loos (n 9); Some 40 years later, in Case C-105/03 Pupino EU:C:2005:386, paras 37–38, the Court used the existence of the – curtailed – preliminary procedure provided for in – then – Art 35 TEU as one of the arguments for recognising an obligation of framework decision-consistent interpretation. 25 As discussed above, Rewe (n 10) para 5. 26 Report by the Working Party on the Future of the European Communities’ Court System, January 2000 (Annex to the report). 27 See J Ziller and J Lotarski, ‘Institutions et organes judiciaires’ in B De Witte (ed), Ten Reflections on the Constitutional Treaty for Europe (European University Institute, 2003) 70. 28 Secretariat of the European Convention, Final report of the discussion circle on the Court of Justice of 25 March 2003, CONV 636/03, paragraph 16. 29 See, eg Case C-348/16 Sacko EU:C:2017:591, para 29; Case C-243/15 Lesoochranárske zoskupenie VLK EU:C:2016:838, para 50.

Art 19 TEU and National Courts 17 proceedings have been brought in which Article 19(1), second paragraph, TEU plays this self-standing role.30 Many of these cases, which concerned the independence of the judiciary and, more recently, the requirement that a court must be established by law,31 were indeed decided on the basis of Article 19(1), second paragraph, TEU. There are, however, also other crucial features in the Portuguese Judges judgment. Pursuing the lines already set out in former cases, the Court firmly linked the very existence of effective judicial protection32 to the rule of law and declared effective judicial protection to be the essence of the latter principle.33 On this basis it went on to point out that Article 19 TEU gives concrete expression to the value of the rule of law stated in Article 2 TEU and that, according to the first Article, both the Court of Justice and the national courts have the responsibility for ensuring judicial protection in the EU legal order. In other words, national courts share with the Court of Justice the task of ensuring that the law is observed in the interpretation and application of the Treaties.34 This is indeed an explicit recognition in case law of the important role national courts play in the EU judicial system. The very idea that the system of judicial protection in the EU rests on two pillars, ie, on the one hand, the European Union Courts and, on the other, the national courts, and that therefore judicial power is shared between the Union courts and the courts of the Member States is not entirely new.35 However, until the Portuguese Judges judgment this ‘two pillar protection’, combined with the rule of law argument, was mainly elaborated in contexts where the validity of EU measures was at issue. Due to the limitations on standing for individuals and therefore the absence of protection provided directly by the Court of Justice, the national courts have to step in. This was, as discussed in the previous section, also the direct rationale behind the second sentence of Article 19(1), second paragraph, TEU. As far as the material scope of the second paragraph of Article 19(1) TEU is concerned, the judgment in the Portuguese Judges case contains another vital point. That provision is said to relate to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law, within the meaning of Article 51(1) EUCFR. Building upon the above-mentioned findings, the Court came to the conclusion that the Member States must ensure that the bodies, which qualify as ‘courts or tribunals’

30 Case C-619/18 Commission v Poland (Independence of the Supreme Court) EU:C:2019:531; Case C-192/18 Commission v Poland (Independence of ordinary courts) EU:C:2019:924; Case C-824/18 AB and Others (Appointment of judges to the Supreme Court – Actions) EU:C:2021:153; Case C-896/19 Repubblika EU:C:2021:311; Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19 Asociaţia ‘Forumul Judecătorilor din România’ et al EU:C:2021:393; Case C-564/19 IS, EU:C:2021:949; Case C-791/19 Commission v Poland (Disciplinary regime for judges), EU:C:2021:596. 31 This requirement is central to Case C-487/19 WZ EU:C:2021:798; see also Commission v Poland (Disciplinary regime for judges) (n 30). 32 Sometimes slightly different terms are used, like effective judicial review or right to an effective remedy. These differences in wording do not imply difference in substance. 33 Associação Sindical dos Juízes Portugueses (n 8) para 36, referring to Case C-72/15 Rosneft EU:C:2017:236, para 73; see also Case C-362/14 Schrems EU:C:2015:650, para 95; For a slightly different wording see Case C-216/18 Minister for Justice and Equality (Deficiencies in the system of justice) EU:C:2018:586, para 48. 34 Associação Sindical dos Juízes Portugueses (n 8) paras 32 and 33. 35 See Opinion of the Court 1/09 EU:C:2011:123, para 66.

18 Sacha Prechal within the meaning of EU law and which may act in the fields covered by that law, meet the requirements of effective judicial protection.36 In particular, this material scope, which is broader than the scope of application of Article 47 EUCFR or the general principle of effective judicial protection, is important and has in the meantime given rise to litigation. In various cases, certain governments or other parties argued that the organisation of justice and in particular the nomination of judges is a matter of exclusive competence of the Member States and that the Court lacks jurisdiction. In the same vein, it was argued that as in the case of Article 47 EUCFR, for the applicability of Article 19(1), second paragraph TEU, the provisions of national law at issue in the main proceedings must implement EU law or fall within the scope thereof.37 As to the first argument, the Court confirmed that the organisation of justice in the Member States is a matter of their competence. However, when exercising that competence, the Member States must comply with their obligations under EU law.38 In recent cases, the Court even went a step further and found that Article 19 TEU, read together with Article 2 TEU, has a standstill character. According to the Court, in order to enjoy all the rights deriving from the application of the Treaties, the Member States must comply with the values listed in Article 2 TEU. This means that a Member State cannot amend its legislation in such a way as to reduce the protection of the value of the rule of law. Since Article 19 TEU is a concrete expression of the rule of law, the Member States must prevent any regression of their laws on the organisation of justice and they may not adopt rules which would undermine the independence of the judiciary.39 As far as the second argument is concerned, it should be pointed out that Article 47 EUCFR applies, within the Member States, ‘only when they are implementing’ EU law. Notwithstanding the debate about what ‘implementation’ means, in its judgment in Åkerberg Fransson, the Court confirmed the relevance of its earlier case law and held that no systematic distinction should be made between the notions ‘implement’ and ‘act within the scope of application of EU law’.40 In any case, the applicability of the Charter presupposes that the case at hand involves the application or interpretation of a rule of Union law other than a provision of the Charter itself.41 For the purposes of Article 19(1), second paragraph, TEU, however, it is sufficient that the national court concerned may act in the fields covered by EU law. We may question in this respect whether ‘fields covered by EU law’ has another or broader meaning

36 Associação Sindical dos Juízes Portugueses (n 8) paras 37 and 40. 37 See, eg Commission v Poland (Independence of the Supreme Court (n 30) para 52; Joined Cases C-585/18, C-624/18 and C-625/18 AK and Others (Independence of the Disciplinary Chamber of the Supreme Court) EU:C:2019:982, paras 73 and 83; Joined Cases C-558/18 and C-563/18 Miasto Łowicz EU:C:2020:234, para 31; AB and Others (n 30) para 67; Asociaţia ‘Forumul Judecătorilor din România’ et al (n 30) para 109. 38 See AK and Others (n 37) para 115; see Asociaţia ‘Forumul Judecătorilor din România’ et al (n 30) para 111. 39 Repubblika (n 30) paras 63–64; see Asociaţia ‘Forumul Judecătorilor din România’ et al (n 30) para 162. 40 Case C-617/10 Åkerberg Fransson EU:C:2013:105, paras 21–22; For a recent discussion of the material application of the Charter, see P Mádr, ‘Article 51 of the EU Charter of Fundamental Rights from the Perspective of the National Judge’ (2020) 13 Review of European Administrative law 53; S Iglesias Sánchez, ‘Article 51: The Scope of Application of the Charter’ in M Bobek and J Adams-Prassl (eds), The EU Charter of Fundamental Rights in the Member States (Hart Publishing, 2020). 41 The same also holds in principle for general principles of EU law, see Case C-206/13 Siragusa EU:C:2014:126, paras 34–35.

Art 19 TEU and National Courts 19 than ‘the scope of EU law’. But, in any case, the very fact that the said court may act in the field of EU law is enough to trigger the application of Article 19(1), second paragraph, TEU. In other words, it would seem that it is not always necessary that in the case at hand some other rule of EU law applies. The case law suggests that the mere fact of being a court with competence to potentially decide on the interpretation or application of EU law is enough to come within the material scope of Article 19(1), second paragraph, TEU.42 This finding of the Court has considerably facilitated the task of the Commission in bringing infringement cases against Member States where there are concerns about the independence of the judiciary, although, in my opinion, infringements on the basis of non-compliance with Article 47 CFR alone are not entirely inconceivable. An additional difficulty, in this respect, is that the applicability of Article 47 EUCFR presupposes at least an alleged violation of rights and freedoms guaranteed by EU law.43

IV. The Content and Scope of Application of Effective Judicial Protection Effective judicial protection referred to in Article 19(1), second paragraph, TEU is, according to the Court, a general principle of EU law,44 which has also been reaffirmed in Article 47 EUCFR.45 As far as the content is concerned, Article 19 (1), second paragraph, TEU corresponds with the right to an effective remedy and access to court laid down in Article 47 EUCFR. The text of Article 47 EUCFR explicitly lists various components of effective judicial protection, such as access to an independent and impartial tribunal46 previously established by law and the right to a fair and public hearing within a reasonable time. However, it implies more. For instance, according to the case law, a national legal system that allows the judgment of a court to remain ineffective fails to comply with the essential content of the right to effective judicial protection.47 Similarly, other unwritten requirements, such as the rights of the defence and the principle of

42 Associação Sindical dos Juízes Portugueses (n 8), para 40, confirmed for instance in Commission v Poland (Independence of the Supreme Court (n 30) para 51; see Asociaţia ‘Forumul Judecătorilor din România’ et al (n 30) para 194; Note, however, that in all the cases decided until now there was a link with EU law in the sense that some EU provisions applied in the case at hand. In cases where there was no connecting factor between the concrete dispute and the provisions of EU law whose interpretation was sought, the request for preliminary ruling was declared inadmissible, see Miasto Łowicz (n 37). 43 See, AB and Others (n 37) paras 87–88. Indeed, this is another limitation of Art 47 EUCFR when compared to Art 19(1), second paragraph, TEU. 44 In the sense of a fundamental right, since the court adds that it ‘stem[s] from the constitutional traditions common to the Member States, which has been enshrined in Arts 6 and 13 of the [ECHR]’, see Associação Sindical dos Juízes Portugueses (n 8), para 35. 45 ibid; see also Sacko (n 29) paras 29–30; Commission v Poland (Independence of the Supreme Court) (n 30) para 49; see A.K. and Others (n 37) paras 114 and 168–169. 46 A requirement, which, according to the Court, is ‘inherent in the task of adjudication’ and ‘forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial’, see Minister for Justice and Equality (n 33) para 63; Commission v Poland (n 30) para 58. 47 Case C-556/17 Torubarov EU:C:2019:626, para 72; Case C-752/18 Deutsche Umwelthilfe EU:C:2019:1114, para 35.

20 Sacha Prechal equality of arms, are part and parcel of effective judicial protection and therefore also Article 47 EUCFR. After all, that Article builds upon the pre-existing principle of effective judicial protection since it should be interpreted in accordance with the previous case law of the Court.48 In the case of AK and Others, there was a substantive overlap of the content of Article 19(1), second paragraph, TEU and Article 47 EUCFR. The applicant relied, inter alia, on the prohibition of discrimination in employment on the grounds of age laid down in Directive 2000/78 (general framework for equal treatment and occupation).49 This was the necessary link to render the Charter applicable. The case clearly fell within the scope of application of EU law50 and was therefore decided on basis of Article 47 EUCFR.51 According to the Court, an assessment in the light of Article 19(1), second paragraph, TEU was redundant, as it would only reinforce the conclusion already reached in relation to Article 47 EUCFR.52 Not only does the content of Article 19(1), second paragraph, TEU and Article 47 EUCFR seem to be the same, they both have direct effect as well. In AB and Others, the Court recalled that as far as Article 47 EUCFR is concerned, this Article is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer a right on individuals, which they may rely on as such. Further, it pointed out that in particular the requirement of independence, enshrined in that Article, is sufficiently clear, precise and unconditional to have direct effect. Due to the symbiotic relationship between the two Articles, the same holds true for Article 19(1), second paragraph, TEU.53 In other words, Article 19(1), second paragraph, TEU, the substantive content of which is informed by Article 47 CFR, lays down justiciable standards. So, is the only difference the material scope of application discussed above? Will the almost limitless Article 19(1), second paragraph, TEU oust Article 47 EUCFR and as such neutralise the requirements of Article 51(1) EUCFR, with precarious consequences for the division of competences within the Union? Various suggestions have been made to limit the assumed boundlessness of Article 19(1), second paragraph, TEU and, by so doing, delimit both provisions. An early suggestion made was to refuse direct effect to Article 19(1), second paragraph, TEU54 which, indeed, would limit the cases in which effective judicial protection may be directly relied upon in national courts to situations covered by Article 47 EUCFR. Meanwhile though, that ship has sailed.55 48 See the Preamble of EUCFR and Art 53 CFR, which provides that ‘[n]othing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law (…)’; Post-Charter case law often assimilates fundamental rights as guaranteed by the Charter and as they derive from general principles of law, see Case C-131/12 Google Spain EU:C:2014:317, para 68. 49 Council Dir 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/1. 50 See AK and Others (n 37) paras 79–81; Note that the person invoking Art 47 EUCFR must also rely on rights or freedoms guaranteed by EU law, which are allegedly infringed. In the absence of such a right or freedom, Art 47 will not apply, see AB and Others (n 37) paras 88–89; Repubblika (n 30), paras 41–44. 51 See Council Dir 2000/78/EC, Art 9(1), which is the provision on remedies in the Directive. 52 AK and Others (n 37) para 169. 53 See AB and Others (n 37) paras 142–45. 54 PM Rodríguez, ‘Poland before the Court of Justice: Limitless or Limited Case Law on Art 19 TEU?’ (2020) 5 European Papers 331. 55 See AB and Others (n 37), briefly discussed above.

Art 19 TEU and National Courts 21 Advocate General Tanchev proposed another approach to this problem in a series of opinions, pointing in particular to the risk of circumventing the limits of the scope of application of the Charter and of the Court’s own jurisdiction,56 as well as the need to respect the delimitation of competences in the EU.57 In his view, Article 47 EUCFR is applicable when there is ‘a subject-matter nexus between the situation arising under Member State law and the EU law measure relied on’.58 Article 19(1), second paragraph, TEU is confined to structural breaches, which compromise the essence of judicial independence. A structural breach occurs when it affects an entire tier of the judiciary.59 The Advocate General’s line of thought has been well received by some scholars,60 while others have observed that the significance of the delimitation between Article 47 EUCFR and Article 19(1), second paragraph, TEU should not be overestimated.61 Badet, for instance, building upon the Advocate General’s views, submits that Article 19(1), second paragraph, TEU protects only the essence of the right to effective judicial protection,62 that is the core of the right, which cannot be limited. Article 47 EUCFR protects both: the non-essential aspects of the right, which can be limited, as well as the essence itself.63 According to this author, the essence of the right to effective judicial protection can only be violated if the essence of that right is compromised in a generalised fashion.64 Until now, the idea of limiting the application of Article 19(1), second paragraph, TEU to structural breaches, in combination with the essence either of judicial independence or of the right to effective judicial protection, has neither been endorsed nor dismissed by the Court.65 In any case, certain cases decided under Article 47 EUCFR also concerned structural or systemic violations of effective judicial protection and of judicial independence in particular.66 Meanwhile, Advocate General Tanchev has departed from his view that the material scope of Article 19(1), second paragraph, 56 Case C-619/18 Commission v Poland (Independence of the Supreme Court) EU:C:2019:325, Opinion of AG Tanchev, para. 57. 57 Case C-192/18 Commission v Poland (Independence of ordinary courts) EU:C:2019:529, Opinion of AG Tanchev, para 114. 58 Joined Cases C-585/18, C-624/18 and C-625/18 AK and Others (Independence of the Disciplinary Chamber of the Supreme Court) EU:C:2019:551, Opinion of AG Tanchev, para 84. 59 Joined Cases C-558/18 and C-563/18 Miasto Łowicz EU:C:2019:775, Opinion of AG Tanchev, para 125, with references to other cases. 60 LS Rossi, ‘La valeur juridique des valeurs. L’article 2 TUE: relations avec d’autres dispositions de droit primaire de l’UE et remèdes juridictionnels’ (2020) 56 Revue Trimestrielle de Droit Européen 639, 648. 61 P Van Elsuwege and F Gremmelprez, ‘Protecting the rule of law in the EU legal order: a constitutional role for the European Court of Justice’ (2020) 16 European Constitutional Law Review 8, 27. 62 Note that AG Tanchev refers to the essence of independence, see his Opinion in Joined Cases C-558/18 and C-563/18 Miasto Łowicz EU:C:2019:775, para 125. 63 L Badet, ‘A propos de l’article 19 du Traité sur l’Union européenne, pierre angulaire de l’action de l’Union européenne pour la sauvegarde de l’État de droit’ (2020) 56 Cahier de Droit Européen 57, 83–89. 64 ibid, 85. 65 To this we might add that the notion of ‘essence’ of a fundamental right is, as a legal concept of EU law, somewhat elusive and certainly far from crystalised, see M Dawson et al, ‘What is the Added Value of the Concept of the “Essence” of EU Fundamental Rights?’ (2019) 20 German Law Journal 763; K Gutman, ‘The Essence of the Fundamental Right to an Effective Remedy and to a Fair Trial in the Case-Law of the Court of Justice of the European Union: The Best Is Yet to Come?’ (2019) 20 German Law Journal 884, in relation to the right to effective judicial protection. 66 See AK and Others (n 37); see Minister for justice and Equality (n 33); Joined Cases C-354/20 PPU and C-412/20 PPU Openbaar Ministerie (Independence of the issuing judicial authority) EU:C:2020:1033.

22 Sacha Prechal TEU is confined to structural breaches, ie ‘systemic or generalised deficiencies, which “compromise the essence” of the irremovability and independence of judges’.67 For the sake of clarity, it should be pointed out that the Court takes into account the systemic and generalised character of the alleged deficiencies. However, this serves another purpose beyond delimiting Article 47 EUCFR and Article 19(1), second paragraph, TEU. The systemic nature of the deficiencies plays a role in the assessment of the contested provisions or practices. As I have argued elsewhere, the assessment of the lack of independence is a delicate and contextual exercise: it should not consider the relevant elements, contained in various provisions, in isolation, but look at the broader picture, in particular at their cumulated effect and the everyday practice in which they are applied.68

V. Another Perspective I would like to propose another perspective on the problem of the broad scope of application of Article 19(1), second paragraph, TEU in comparison with Article 47 EUCFR. Effective judicial protection as laid down in the latter Article and, before, as the unwritten general principle of EU law is and has always been a fundamental right,69 aiming at the protection of individuals in the first place. In this sense, it has always been a constitutional principle. Moreover, it is also a structural principle of EU legal order. Like other principles, such as primacy, direct effect and loyal cooperation, it is ‘an essential building block of EU constitutional structure’.70 This is already clearly reflected in cases like Factortame and Francovich.71 The role of effective judicial protection in the context of Article 19(1), second paragraph, TEU is, to an extent, different. Article 19 TEU is an institutional provision,72 dealing with the structure and mission of the judicial power in the EU. As discussed above, the second paragraph of Article 19(1) TEU amounted to a somewhat stepmotherly recognition of the role of national courts in the EU constitutional order. The full explicit recognition of national courts as part of the judicial power of the Union came in the Portuguese Judges judgment.73 While the organisation of the national judiciary is an internal matter for the Member States, it must nevertheless satisfy certain

67 Case C-824/18 AB and Others (Appointment of judges to the Supreme Court – Actions) EU:C:2020:1053, Opinion of AG Tanchev, para 90; Recently, another AG has embraced this interpretation, however not as a limitation of the substantive scope of Art 19(1), second paragraph, but rather as a substantive threshold for its breach, see Joined Cases C-748/19 to C-754/19 Prokuratura Rejonowa w Mińsku Mazowieckim EU:C:2021:403, Opinion of AG Bobek, paras 144–46. 68 S Prechal, ‘Effective Judicial Protection: some recent developments – moving to the essence’ (2020) 13 Review of European Administrative Law 175, 187–88; see also AB and Others (n 37); Asociaţia ‘Forumul Judecătorilor din România’ et al (n 30) paras 206 and 240. 69 See s I. 70 K Lenaerts, ‘The Role of the Charter in the Member States’ in M Bobek and J Adams-Prassl (eds), The EU Charter of Fundamental Rights in the Member States (Hart Publishing, 2020) 19, 25. 71 Case C-213/89 Factortame EU:C:1990:216, paras 19–21 (though, still closely linked to primacy); see also Francovich (n 18) paras 32–34. 72 The provision features in Title III, Provisions on the Institutions, TEU. 73 See s III.

Art 19 TEU and National Courts 23 Union law guarantees. It is from this institutional perspective that the national ‘courts or tribunals’ must meet the requirements of effective judicial protection and therefore also the guarantee of judicial independence.74 Independence is essential for the functioning of the system of EU judicial protection. Given this role of national courts in the system of Union judicial protection, they must be independent at all times. It is not conceivable that a court is independent in matters concerning EU law, but the same court is not independent in a purely national context, and vice versa – it cannot wear two hats, one for Union law purposes and another for national cases. It is this unitary nature of independence of the judiciary that explains the broad application of Article 19(1), second paragraph, TEU: the very fact that a court may be called upon to interpret and apply EU law is sufficient to trigger the application of that provision. This case law about the institutional safeguards, which ‘courts or tribunals’ as such must satisfy, in general and in concrete cases, should not necessarily extend to other aspects of effective judicial protection, ie, to what may be called the procedural and remedial dimension of the principle, which apply to procedures and remedies available to individuals in national law. This dimension of Article 19(1), second paragraph, TEU has not been the subject of interpretation by the Court yet.75 However, and taking into account the origins of this article, it is an integral part of the principle of effective judicial protection. The majority of the cases decided by the Court concern the impact of the guarantees laid down in Article 47 EUCFR or the principle of judicial protection upon procedures and remedies available before national courts. It would be an understatement to say that the impact is considerable. This influence may affect the rules on standing,76 obligatory pre-litigation procedures,77 evidential rules,78 the rights of defence,79 the form of redress existence and level of damages,80 etc. In contrast to the institutional guarantees discussed above, in relation to procedures and remedies a distinction can be made regarding cases implying the interpretation and application of EU law, and those which do not. Union law intervenes in national procedures and remedies only in cases which concern EU law and where it is deemed necessary to lay down certain standards of judicial protection. This can be and is done through secondary law or through the application of Article 47 EUCFR or the principle of effective judicial protection. 74 AB and Others (n 30) para 68; Asociaţia ‘Forumul Judecătorilor din România’ et al (n 30) para. 111. Indeed, the same applies mutatis mutandis in relation to the requirement that the tribunal be ‘previously established by law’, see Case C-487/19 WZ EU:C:2021:289, Opinion of AG Tanchev, para 19. 75 For the sake of completeness: the requirement for the examination of cases within a reasonable time and the rights of the defence were at issue in Asociaţia ‘Forumul Judecătorilor din România’ et al (n 30) and are under consideration in Commission v Poland (Disciplinary regime of judges), (n 30) pending. However, the notions in play here are in the context of disciplinary, criminal or civil liability procedures against judges and are inextricably linked to the overarching concern of the independence of the judiciary, as protected under Art 19(1), second paragraph, TEU. 76 See, eg Lesoochranárske zoskupenie VLK (n 29). 77 See, eg Case C-317-320/08 Alassini EU:C:2010:146; Case C-73/16 Puškár EU:C:2017:725. 78 See Johnston (n 13). More recently, see Case C-189/18 Glencore Agriculture Hungary EU:C:2019:861. 79 Case C-199/11 Otis EU:C:2012:684, para 48. 80 See Case C-14/83 Von Colson and Kamann EU:C:1984:153; Case C-271/91 Marshall II EU:C:1993:335; More recently, see Case C-396/17 Leitner EU:C:2019:375; Case C-30/19 Braathens Regional Aviation EU:C:2021:269.

24 Sacha Prechal As a rule, in the Member States it is pre-existing national law that is used to enforce EU law provisions and provide judicial protection. This can be the national civil code or code of civil procedure; it can also be general provisions of administrative law or criminal law. In practical terms the application of the requirements of effective judicial protection usually means that for the purposes of EU law, the national rules, where they do not meet the Union law standard, are adapted, or in some cases set aside. This however does not mean that comparable changes are also implemented for the purposes of purely national procedures, ie, procedures where the subject matter of the dispute is not linked to EU law. National courts or national legislators may decide to follow the EU standards, also for purely national law purposes, but they are by no means obliged to do so.81 Requiring, in this context, that at all times national civil codes, general provisions of administrative law or whatever relevant national provisions have to meet the requirements inherent to effective judicial protection for the very reason that they may be used in the fields covered by EU law, would seem disproportionate to me, and as unnecessarily interfering with the division of competences in the Union. Therefore, it is submitted that, for the purposes of national procedural and remedial law, the most appropriate interpretation of Article 19(1), second paragraph, TEU should be that there must a concrete link to EU law, in the same fashion as in the case of Article 47 EUCFR, ie, that the subject matter of the case must fall within the scope of EU law. Obviously, as mentioned above, a discussion is possible about the question whether ‘in the fields covered by EU law’ coincides with ‘the scope of EU law’, as used in connection with Article 51(1) CFR. However, in my opinion, the only circumstance that could extend the application of Article 19(1), second paragraph, TEU would be that there exists some other connecting factor between the national measures at stake and EU law, which goes beyond implementation in a strict sense and beyond ‘acting within the scope of EU law’. In the past there have been some cases which suggested that such a rather loose connecting factor was sufficient for the application of general principles of law.82 However, the Court has dismissed such an approach, which requires only a certain degree of connection between EU law and national measures; it is not sufficient that the matters covered are closely related or that the national measures come within an area in which the European Union has powers to act.83 From the perspective of the division of powers, it would seem that the same reasoning, dismissing such loose connections, should hold true also for the scope of application of Article 19(1), second paragraph, TEU. The rationale behind the exceptionally wide scope of application of Article 19(1), second paragraph, TEU, as to the guarantees that national courts as ‘organs’ of the judicial system of the EU must satisfy, is the indivisible nature of the guarantees of access to an independent and impartial court previously established by law. While such an 81 These instances of the so-called ‘voluntary adoption’ may occur, for example, in order not to treat national actions less favourably than those that are based on Union law, see Woolwich Building Society v IRC [1992] 2 ER 707 (UK House of Lords). 82 Case C-125/96 Saldanha EU:C:1998:6; Case C-71/02 Karner EU:C:2004:181; Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Molenheide and Others EU:C:1997:623; Case C-427/06 Bartsch EU:C:2008:297, Opinion of AG Sharpston, para 69. 83 Case C-198/13 Hernandez EU:C:2014:2055, paras 34–36.

Art 19 TEU and National Courts 25 understanding of Article 19(1), second paragraph, TEU may restrict to a significant extent the apparently limitless scope of its application, obviously, there are various other problems. One of these is the question, raised by Advocate General Bobek, as to whether any potential problem relating to the organisation of the judiciary in the Member States is caught by that Article.84 In his view, the answer should be searched for in the threshold required for the breach, which should be rather high, covering breaches which are ‘likely to threaten the proper functioning of the national judicial system, thereby jeopardising the capacity of the Member State in question to provide sufficient remedies to the individuals.’85 Arguably, this is an issue to be elaborated on by the Court in more detail in future cases. However, the yardstick already applied now goes in the direction suggested by the Advocate General: the rules pertaining to various aspects of the organisation of the judiciary and their application in practice should not give rise to legitimate doubts,86 in the minds of individuals, as to the imperviousness of the members of the judiciary to external factors and as to their neutrality vis-à-vis the interests before them, and thus lead to those members of the judiciary not being regarded as independent or impartial, the consequence of which would be to undermine the trust which justice in a democratic society governed by the rule of law must inspire in individuals.87

VI. Conclusion The judgment in the Portuguese Judges case is the culmination of a long development, starting, as far as Article 19(1), second paragraph, TEU is concerned, with a discrete codification of the UPA case law. The result is a fully fledged recognition of the role of national courts in the EU system of judicial protection and as a part of the judicial branch in the EU. The institutional function of Article 19(1), second paragraph, TEU comes clearly to the fore. Various obligations regarding the organisation of national judiciaries are made explicit and, meanwhile, are further developed in case law. In particular, that case law makes unmistakably clear that certain institutional guarantees must be satisfied by national courts, including judicial independence. In this sense, the principle of effective judicial protection seems to fulfil an additional role, due to the context in which it is placed, namely Title III TEU. However, it should be emphasised that whatever roles the principle may play, what matters at the end of the day is that individuals are protected, both in terms of the rights they may derive from EU law as well as against undue exercise of power.

84 As examples he mentions, inter alia, issues like the judicially desired level of self-governance or self-administration; the non-promotion of certain judges to presidents of chambers; judicial salaries, supplements, benefits and Christmas bonuses; see Joined Cases C-83/19, C-127/19, C-195/19, C-291/19 and C-355/19 Asociaţia ‘Forumul Judecătorilor din România’ et al EU:C:2020:746, Opinion of AG Bobek, paras 222–23: Prokuratura Rejonowa w Mińsku Mazowieckim, Opinion of AG Bobek (n 67), paras 140–49. 85 Prokuratura Rejonowa w Mińsku Mazowieckim, Opinion of AG Bobek (n 67), para 148. 86 Note that in A.B. and Others (n 30) para 129, reference is made to ‘systemic doubts in the minds of individuals as to the independence and impartiality of the judges’. 87 See, eg Repubblika (n 30) para 72; Asociaţia ‘Forumul Judecătorilor din România’ et al (n 30) para 212.

26

2 Searching for the Pieces of the EU Justice Puzzle: Articles 47, 48, 49 and 50 of the EU Charter of Fundamental Rights GIULIA GENTILE AND SERENA MENZIONE*

Located in the ‘Justice’ Title of the EU Charter of Fundamental Rights, Article 47 of the Charter provides the fundamental right to an effective remedy and a fair trial and codifies the EU general principle of effective judicial protection. This Article is multi-faceted and serves different purposes, ranging from ensuring effective remedies in the fields covered by EU law to the protection of the rule of law. Article 47 is the constitutional factotum of the EU legal order. A less-explored aspect of the role of Article 47 in the EU concerns its interplay with the other provisions of the Charter’s Justice Title. The Justice Title of the Charter protects fundamental individual entitlements that are considered crucial for the administration of justice in the EU legal landscape. Hence, Article 47 and its sibling provisions in the Justice Title of the Charter constitute the essential building blocks to ensure justice in the EU. The purpose of this chapter is twofold: firstly, it explores the synergies between Article 47 and the other provisions of the Justice Title of the Charter; secondly, it enquires into the aspects of the EU conception of justice that emerge from the interpretation and application of the Justice Title. The chapter shows that the idea of ‘justice’ in the EU is a complex, evolving puzzle made of a series of fundamental legal entitlements, and most of its pieces are still to be found through the interpretative activity of the Court of Justice.

I. Introduction Since the acquisition of legally binding effects by the EU Charter of Fundamental Rights (the Charter), Article 47 thereof has become the most cited Charter provision

* Giulia Gentile is Fellow in Law at the London School of Economics Law School. Serena Menzione is a PhD researcher at the Institute for European Law of KU Leuven. We thank Mariolina Eliantonio and Matteo Bonelli for their helpful comments.

28 Giulia Gentile and Serena Menzione in EU case law.1 The omnipresence of this norm in EU case law is not accidental: jointly with its parent principle, the principle of effective judicial protection, Article 47 paves the way for the effective enforcement of every other EU right.2 The centrality of the principle of effective judicial protection – and, by reflection, of Article 47 – in the EU constitutional architecture has also emerged in connection with the protection of the rule of law3 since the seminal Les Verts judgment,4 delivered in 1986. More recently, in so far as it protects the principle of judicial independence,5 Article 47 was employed as one of the standards against which the reforms of the Polish Supreme Court and Disciplinary Chamber were scrutinised.6 Article 47 has thus become the jewel in the crown of the Charter, being the right of all other EU rights.7 And yet Article 47 does not exist as a stand-alone provision, but is one of the norms of the Justice Title of the Charter. This section of the Charter provides a series of guarantees that concern the relationship between public authorities and individuals in the management of justice: while Article 48 protects the presumption of innocence and right of defence and Article 49 grants the principle of legality and proportionality of criminal offences and penalties, Article 50 enshrines the ne bis in idem principle. All these articles contribute to shaping the fundamental rights entitlements within the scope of application of the Charter when individuals are confronted with law enforcement. Seen from another perspective, these norms enshrine the EU understanding of the essential elements of fairness in the administration of justice. Remarkably, the Justice Title of the Charter has remained in the shadow of Article 47 Charter and has not received much attention in the literature. Its role and effects in the EU constitutional landscape lie underexplored so far. The following questions thus

1 E Frantizou, ‘Binding Charter Ten Years on: More than a “Mere Entreaty”?’ (2019) 38 Yearbook of European Law 73; K Gutman, ‘Article 47: The Right to an Effective Remedy and to a Fair Trial’ in M Bobek and JM Adams-Prassl (eds), The EU Charter of Fundamental Rights in the Member States (Hart Publishing, 2020). 2 See G Gentile, ‘Article 47 Charter in the case law of the Court of Justice of the EU: between EU constitutional essentialism and the enhancement of justice in the Member States’ in C Mak and B Kas (eds), Civil Courts and the European Polity: The constitutional role of private law adjudication in Europe (Hart Publishing, forthcoming). 3 See A Arnull, ‘Article 47 CFR and National Procedural Autonomy’ (2020) 5 European Law Review 681; Gutman (n 1). 4 Case C-294/83 Les Verts v Parliament EU:C:1986:166. 5 M Bonelli and M Claes, ‘Judicial Serendipity: How Portuguese Judges Came to the Rescue of the Polish Judiciary’ (2018) 14 European Constitutional Law Review 622. 6 Commission, ‘Communication from the Commission to the European Parliament, the Council, The European Economic and Social Committee and the Committee of the Regions, 2020 Rule of Law Report: The Rule of Law Situation in the European Union’ COM (2020) 580 final. 7 The impact of this provision in the EU legal order has been widely discussed. It has been observed that the principle of effective judicial protection enshrined in Art 47 works as a meta-principle that governs the different pillars of the EU judiciary. Namely, Roeben argues that Art 47 has acquired an ‘obligation’ aspect which goes beyond the protection of individual rights stemming from EU law. See on the ‘obligation aspect’ of Art 47 Case C-619/18 Commission v Poland EU:C:2019:531; Joined Cases C-585/18, C-624/18 and C-625/18 AK and Others EU:C:2019:982; Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117; Case C-556/17 Torubarov EU:C:2019:626; Case C-585/16 Serin Alheto EU:C:2018:584. See V Roeben, ‘Judicial Protection as the Meta-Norm in the EU Judicial Architecture’ (2020) 12 Hague Journal on the Rule of Law 29.

Searching for the Pieces of the EU Justice Puzzle 29 arise: what is the interplay between Article 47 and the other provisions of the Justice Title of the Charter? What are the aspects of the EU conception of justice that emerge from the interpretation and application of Articles 47, 48, 49 and 50 Charter? The chapter addresses these questions and proceeds in three acts. The first act consists of a systematic interpretation of Article 47 and the other provisions contained in the Justice Title. This analysis seeks to shed light on the wording of these norms to assess their content and scope. The second act moves on to the EU case law interpreting these norms, with a view to gathering details on the usage of these provisions by the Court of Justice of the EU (CJEU). In this context, the analysis concentrates on two aspects: first, the synergies between Article 47 and the other norms of the Justice Title of the Charter in EU case law; secondly, the interplay of the Charter with the ECHR, EU procedural laws and national procedural autonomy. Without intending to provide an exhaustive discussion, the third act of the chapter reflects on the aspects of the EU understanding of justice emerging from the homonymous Title of the Charter. In so doing, this final part of the chapter builds on previous literature arguing that EU fundamental rights – including the provisions in the Justice Title of the Charter – reveal elements of the EU notion of justice. What then are the pieces of the EU justice puzzle that can be discovered in the Justice Title of the Charter?

II. The Justice Title of the Charter: A Systematic Reading During the drafting process of the Charter, a list of rights was prepared, taking inspiration from the Treaties, international human rights conventions, in particular the ECHR, and the texts of national constitutions. Already in the first version of the Charter dated 2000, the drafters listed what currently are Articles 47, 48, 49 and 50 under the same Title.8 Originally, the rights to an effective remedy and the right to a fair trial were included as two different provisions under the subtitle ‘access to justice and procedural rights.’ In addition, these ‘judicial rights’ also encompassed the right of appeal in criminal matters, the principle of legality (nullum crimen sine lege, no punishment without law), the principle of ne bis in idem (the right not to be tried or punished twice) and compensation for wrongful conviction. Later in the drafting process, the Title collecting these provisions was entitled ‘Justice’. Some adjustments were made: the right to an effective remedy and the right to a fair trial were merged in the same provision; furthermore, the presumption of innocence and right of defence as well as the principle of proportionality of criminal offences and penalties were added. In the current and final version of the Charter, Article 47 protects both the right to an effective remedy and to a fair trial. When interpreting Article 6(1) ECHR, in the light of which Article 47 Charter should be read,9 the ECtHR stated that ‘[…] to construe Article [6(1) ECHR] as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the

8 M Steiert and N Coghlan, The Charter of Fundamental Rights of the European Union: The Travaux Préparatoires and Selected Document (European University Institute, 2020). 9 Art 52(3) EUCFR.

30 Giulia Gentile and Serena Menzione principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention’.10 As a consequence, Article 6 ECHR was deemed to protect multiple sub-rights, such as the principle of equality of arms, to name one.11 Accordingly, Article 47 also protects a series of sub-rights, such as the right to hear witnesses and to remain silent. Article 47 Charter does not specifically apply only to civil or criminal proceedings,12 but to any kind of proceedings.13 Under the heritage of the principle of effective judicial protection, this provision has been used as the vehicle for other rights to become effective in the EU constitutional space. Hence, Article 47 has also strong ties with the rule of law.14 Article 48 appears to add further guarantees to the rights of Article 47, but the overlaps between the two norms are evident. Articles 47 and 48 are referred to in numerous EU secondary measures aimed at protecting individual procedural rights.15 To begin with, Article 48 states that ‘Everyone who has been charged shall be presumed innocent until proved guilty according to law.’ The presumption of innocence laid down in Article 48 applies mainly in the field of criminal law. However, both Articles 47 and 48 protect the right to be defended. Article 47 states that ‘Everyone shall have the possibility of being […] defended […]’, while Article 48 affirms that ‘Respect for the rights of the defence of anyone who has been charged shall be guaranteed’. We could thus argue that the scope of application of the right of the defence under Article 48 is distinct from that in Article 47, since the former applies especially to criminal proceedings. Yet, as mentioned, the wording of Article 47 Charter does not exclude its application to criminal trials. Therefore, both provisions may be in principle used to guarantee defence rights in criminal proceedings. If the defence rights stemming from these Articles were the same, then the question arises as to the autonomous value of Article 48 compared to Article 47. A way to distinguish the content of Article 48 defence rights from those provided under Article 47 would be to interpret the former as providing specific entitlements in criminal proceedings that add to the general ones provided by Article 47 Charter. Moving on to Article 47 and Article 49, their relationship is complementary. While Article 47 ensures that there might be a redress through fair judicial proceedings for the violation of rights and freedoms, Article 49 lays down three principles: that of legality, that of favor rei and that of proportionality of the penalties. First, under the principle of legality, criminal sentences should be issued only with regards to behaviours that were considered as punishable at the time when they were committed. Secondly, Article 49 10 Judgment of the European Court of Human Rights of 19 March 1997 in Case No 18357/91 Hornsby v Greece, para 40. 11 For an analysis on the case law on Art 6 ECHR and the principle of equality of arms, see O Sidhu, The Concept of Equality of Arms in Criminal Proceedings under Article 6 of the European Convention on Human Rights (Intersentia 2017). 12 Art 6 ECHR. 13 As stated in the explanations of the Charter, Art 47 EUCFR introduces ‘in Union law [a] protection [which] is more extensive since it guarantees the right to an effective remedy before a court’. 14 See Explanations relating to the Charter of Fundamental Rights [2007] OJ C303, 29. 15 See, eg Dir 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1.

Searching for the Pieces of the EU Justice Puzzle 31 introduces the principle of favor rei, according to which, if a law lowers the penalty for a criminal offence, the lighter offence should be applied instead of the former heavier penalty. Thirdly, under the principle of proportionality of penalties, Article 49 offers guarantees for those that have been accused of criminal offences that the penalties ‘must not be disproportionate’ to the offence committed. In this regard, it imposes a burden on the addressees of penalties to prove the disproportionate nature of sanctions.16 The negative sentence (ie, ‘must not be disproportionate’) in Article 49(3) leaves open questions on the role of the courts: should judges find that a penalty is disproportionate only when parties submit evidence to that effect, or can they be active in gathering proof to that effect? What remains certain is that, for a penalty to comply with Article 49, there should be no evidence suggesting that the said penalty is disproportionate. Overall, Article 49 requires foreseeability and fairness in the punishment of individuals, and is thus linked with values of the rule of law and retributive justice. Finally, Article 50 Charter codifies the ne bis in idem principle. This provision applies to different areas of substantive EU law and is referred to extensively in secondary EU legislation.17 One of the prerequisites to apply Article 50 Charter is that the final measures are of a criminal nature.18 While Article 47 guarantees an effective remedy and a fair trial for a violation of rights and freedoms, Article 50 Charter expands the protection by granting specific entitlements in the context of criminal proceedings. It ensures that no one should be tried or punished again (ne bis) for the same offence (idem) for which they have already been finally acquitted or convicted (res judicata). The rationale of this provision is twofold. First, Article 50 balances the principles of procedural efficiency and fairness:19 public authorities should not punish the same crimes twice, at the risk of making the justice system inefficient and too repressive. Secondly, Article 50 Charter lays down the foundations of judicial cooperation among EU Member States in the field of criminal law. As provided in the Explanations of the Charter, the ne bis in idem rule applies not only within the jurisdiction of one Member State, but also between the jurisdictions of several Member States.20 Therefore, this provision has a transnational dimension, since it ensures that an individual may not be tried twice for the same conduct in different EU Member States.21 The transnational character of this article grants it a central role in the edifice of the Area of Freedom, Security and Justice (AFSJ). At this point, we can already draw some elements of the conception of ‘justice’ under the homonymous Title of the Charter. Article 47 is the principal gate to access judicial protection of rights when an individual faces a violation of their rights and freedoms, regardless of the civil, administrative or criminal nature of the proceedings. The rights to an effective remedy and a fair trial are instrumental to obtaining justice and, thus, to seeking redress for a violation of any other right. Then, Article 48 regulates how authorities can issue convictions only when an individual is found 16 Case C-90/15 Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission EU:C:2017:123. 17 In the Area of Freedom, Security and Justice, see Art 54 of the Convention of 19 June 1990 implementing the Schengen Agreement [2000] OJ L239/19. 18 Case C-617/10 Åkerberg Fransson EU:C:2013:105, para 33. 19 Case C-579/15 Popławski EU:C:2017:503, para 46. 20 Art 50 EUCFR. 21 Cf with Art 4 Protocol No 7 ECHR.

32 Giulia Gentile and Serena Menzione to be guilty. This article, which also overlaps with the third sentence of Article 47 as far as it concerns the right of the defence, provides specific guarantees in the context of criminal trials. Article 49 is specular to Article 47: while the latter requires the existence of an effective remedy for the violation of rights and grants the right to a fair trial, the former constrains the discretion of public authorities in imposing repressive measures, such as penalties and convictions, and lays down essential guarantees of fairness towards the addressees of those measures. In so doing, Article 49 further complements how authorities should enforce the law and establishes several principles, such as those of the foreseeability of criminal law (principle of legality), favor rei and the proportionality of penalties. Finally, Article 50 concludes the Justice Title of the Charter by explaining that no one can ever undergo punishment twice for the same offence in the territory of the EU. Article 50 is intrinsically linked to the idea of fairness of judicial proceedings enshrined in Article 47. In conclusion, decisions of the public authorities that do not comply with the Articles of the Justice Title cannot be considered as lawful and, ultimately, fair. A main preliminary finding can thus be presented: Articles 48, 49 and 50 all overlap, to varying extents, with Article 47, which is the primus inter pares among the EU fundamental rights related to the administration of justice. Yet, while Article 47 is a catch-all provision, Articles 48, 49 and 50 rather refer to rights to be granted in particular in the field of criminal law. This suggests that the guarantees existing in the Member States in the field of criminal law have also been replicated at the EU level. The expansion of EU fundamental guarantees in the field of criminal law through the Charter is a testament to the evolution of the EU legal order, which now places the individual and her fundamental rights centre stage. Ultimately, the impression is that the EU legal order is becoming more similar to a national one, since it deals with questions of fundamental rights entitlements in a similar way to the constitutional systems of the EU Member States. The following sections will analyse the interplay between the Justice provisions of the Charter in the EU case law. In so doing, it will highlight what Articles 48, 49 and 50 add to Article 47 in shaping the individual guarantees ensuring that justice is provided in the field of application of the Charter.22

III. Interdependent but Autonomous: Articles 47 and 48 of the EU Charter As already observed, the rights provided under Article 48 and following fall within the scope of the macro-right to an effective remedy and a fair trial. Indeed, Article 47 and Article 48 have the same parent: Article 6 ECHR. While Article 47 Charter corresponds 22 Note of criteria selected for the case law on Articles 48 – 49 – 50 Charter: Documents = Documents published in the ECR: Judgments – Orders – Opinions of the Court; Court = “Court of Justice”; Case status = “Cases closed”; Period or date = “Date of delivery”; period= “from 01/01/2010 to 28/02/2021”. Preliminary results about the jurisprudence on the relationship between Article 47 and the other Justice provisions: (i) out of 50 cases concerning Article 48, 42 cases present a combination of Article 48 and Article 47; (ii) out of the 26 cases regarding Article 49, 20 cases present a combination of Article 49 with Article 47; (iii) out of 25 cases concerning Article 50, 19 only 3 cases present a combination of Article 50 and Article 47.

Searching for the Pieces of the EU Justice Puzzle 33 to Article 6(1) ECHR, Article 48 Charter reflects Article 6(2) and (3) ECHR. Sharing the same origin, the relationship between Article 47 and 48 is close and highly influenced by the ECtHR case law on Article 6 ECHR.23 Another element that impacts on the interactions between these provisions is the existence of EU secondary procedural law.24 In the light of the hierarchy of norms in the EU, these measures should comply with the Charter. However, EU legislation may also be used to limit the breadth of the Charter rights in light of the consensus reached at the European level, subject to the condition listed in Article 52 Charter.25 The case law offers multiple examples of instances of joint application of Articles 47 and 48 Charter. While in numerous judgments Article 47 and 48 have been jointly used to protect the same entitlements, in other judgments the CJEU has instead provided Article 48 with autonomy from Article 47. To begin with, Spetsializirana prokuratura26 indicates that the right of suspects and accused persons to be present at the trial is based on the right to a fair trial enshrined in Article 6 ECHR, which corresponds to Article 47(2) and (3) and Article 48. This suggests that Article 48, insofar as it protects the right of the defence, is merely a manifestation of Article 47(2) and (3). This interpretation is further confirmed in the case Rayonna prokuratura Lom.27 In other judgments, Article 47 and Article 48 are said to lay down the right to be heard, which forms an integral part of the rights of the defence.28 This right constitutes a general principle of EU law that ‘requires the authorities to pay due attention to the observations submitted by the person concerned […]; the obligation to state reasons […] is thus a corollary of the principle of respect for the rights of the defence’.29 It follows that both Article 47 and 48 require Member States to ensure that the addressees of decisions that fall within the scope of EU law can ascertain the reasons upon which that decision is based, to enable them to defend their rights and to decide whether it is appropriate to refer the matter to the competent court. However, the right to be heard as enshrined in these provisions may be subject to limitations under EU legislation. In Radu,30 the issue concerned whether a joint reading of the Framework Decision 2002/584 on the European Arrest Warrant (EAW) and Articles 47 and 48 Charter indicates that the executing judicial authorities can refuse to enforce an EAW in cases where the addressee was not heard before the issuance of that EAW. After recalling that the Framework Decision provides the grounds for mandatory non-execution, the Court observed that the infringement of the right to be heard before the issuance of an EAW was not included among the grounds to obtain refusal of the execution. What is more, ‘to hear the requested person before such a European arrest 23 S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014). 24 For an analysis of the relationship between EU secondary law and EU primary law, see M Eliantonio, ‘The Relationship between EU Secondary Rules and the Principles of Effectiveness and Effective Judicial Protection in Environmental Matters: Towards a New Dawn for the “Language of Rights”?’ (2019) 12 Review of European Administrative Law 95. 25 Case C-399/11 Melloni EU:C:2013:107; see also Art 52 EUCFR. 26 Case C-611/18 P Pirelli & C. v European Commission EU:C:2020:868, para 36. 27 Case C-467/18 EP EU:C:2019:765, para 36. 28 Case T-643/11 Crown Equipment (Suzhou) Co Ltd and Crown Gabelstapler GmbH & Co KG v Council of the European Union EU:T:2014:1076, para. 38. 29 Case C-230/18 PI EU:C:2019:383. 30 Case C-396/11 Radu EU:C:2013:39.

34 Giulia Gentile and Serena Menzione warrant is issued would inevitably lead to the failure of the very system of surrender provided for by Framework Decision 2002/584’.31 In any event, ‘the right to be heard will be observed in the executing Member State in such a way as not to compromise the effectiveness of the European arrest warrant system.’32 The Court thus concluded that ‘the observance of Articles 47 and 48 of the Charter does not require that a judicial authority of a Member State should be able to refuse to execute a European arrest warrant issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard by the issuing judicial authorities before that arrest warrant was issued’.33 Radu suggests that the consensus reached in EU acts defines the content of EU fundamental rights, and not vice-versa: in the case at hand, the scope of the right to be heard was shaped by the duty of national authorities to execute a European Arrest Warrant. Seen from another perspective, Radu signals that the CJEU gives prevalence to the lex specialis (EU secondary legislation) over the lex generalis (EU fundamental rights). Yet, favouring the lex specialis might entail a curtailment of fundamental rights in order to pursue EU policy objectives. How to strike a balance between EU objectives and fundamental rights has haunted the EU since the Internationale judgment,34 and a definitive methodology has clearly not been defined (yet). Nonetheless, recent case law suggests an opposite approach by the CJEU on this matter. In DB v Consob,35 the CJEU held that EU secondary legislation establishing the sanctions for a failure to cooperate with national authorities should be interpreted in the light of Articles 47 and 48 Charter. DB v Consob is also of relevance because Articles 47 and 48 Charter were interpreted, for the first time, as both enshrining the right to silence.36 Articles 47 and 48(2) were also jointly used to protect the fundamental right to obtain the hearing of a witness. In Gambino and Hyka,37 the CJEU recalled that according to Article 6(3) ECHR individuals do not have an absolute right to call every witness. This norm is instead aimed at ensuring that a procedure, considered in its entirety, gives the accused person an adequate and proper opportunity to challenge the suspicions concerning them.38 Furthermore, the principles of fair trial stemming from Articles 47 and 48 impose that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.39 In Gambino, the influence of Article 6 ECHR over the right to hear witnesses in criminal cases granted by Articles 47(2) and 48 becomes evident.

31 ibid, para 40. 32 ibid, para 41. 33 ibid, para 39. 34 Case C-11/70 Internationale Handelsgesellschaft EU:C:1970:114. 35 Case C-481/19 DB EU:C:2021:84. 36 ibid. 37 Case C-38/18 Gambino and Hyka EU:C:2019:628, para 38. 38 Case C-702/19 P Silver Plastics GmbH & Co. KG and Johannes Reifenhäuser Holding GmbH & Co KG v European Commission EU:C:2020:857. 39 Judgment of the European Court of Human Rights of 26 March 1996 in Case No 20524/92 Doorson v Netherlands, para 70; Judgment of the European Court of Human Rights of 5 October 2006 in Case No 45106/04 Marcello Viola v. Italy, para 51.

Searching for the Pieces of the EU Justice Puzzle 35 When it comes to the right of the defence, the Court has cited as sources both Articles 47 and 48 Charter. In particular, Boudjlida40 suggests that Articles 47 and 48 may be used interchangeably to protect the right of the defence and the right to a fair trial.41 However, in other cases the analysis seems slightly more focused on Article 48.42 Overall, the case law under consideration illustrates that Article 47(2) and Article 48 correspond. In particular, the right of the defence is consistently interpreted as constituting a particular aspect of the right to a fair trial enshrined in Article 47. Yet, in other judgments, Articles 47 and 48 kept their autonomy, in so far as Article 48 was considered the independent source of specific procedural rights. An example is UBS Europe and Others,43 where these provisions were used to protect different rights, namely, the right to an effective remedy under Article 47, and the right of the defence under Article 48. Similarly, in WebMindLicenses44 Article 48 was applied to interpret the rights of the defence, while Article 47 was used as the source of the right to judicial review of a tax decision. Melloni further demonstrates that Article 47 enshrines the right to a fair trial, while Article 48(2) provides the right of the defence. Accordingly, this case offers additional evidence that these provisions have a different scope and are not (at least entirely) interchangeable. Melloni is also interesting regarding the relationship between the Charter and EU secondary legislation. The CJEU recalled that the right to be heard, as protected under Article 6 ECHR, is not an absolute prerogative45 and may also be waived. In particular, the conditions for the waiver of this right in the context of a European Arrest Warrant should be assessed in light of the Framework decision 2002/584. Melloni is yet another instance of the fluctuating approach of the CJEU concerning the relationship between the Charter and EU secondary legislation. In Ognyanov,46 Articles 47(2) and 48 were also interpreted independently as respectively protecting the right to a fair trial and the presumption of innocence. In AH and Others,47 Article 48, found to correspond to Article 6(2) and 6(3) ECHR, was deemed to guarantee the presumption of innocence48 in the context of a criminal prosecution. Finally, Article 48 has also been autonomously interpreted to grant the right to access to documents49 and the right to be represented by a lawyer, as part of the defence rights.50

40 Case C-249/13 Boudjlida EU:C:2014:2431. 41 Art 41 EUCFR, which protects the right to be heard before the administration, is connected to Arts 47 and 48 EUCFR; Case C-166/13 Sophie Mukarubega EU:C:2014:2336, para 44; see also Case C-277/11 M. M EU:C:2012:744, para 82; Case C-166/13 Sophie Mukarubega EU:C:2014:2336, para 53. 42 Case C-612/15 Kolev and Others EU:C:2018:392. 43 Case C-358/16 UBS Europe SE and Alain Hondequin and Others EU:C:2018:715. 44 Case C-419/14 WebMindLicenses, paras 63 and 64. 45 ibid, para 49. 46 Case C-614/14 Ognyanov EU:C:2016:514. 47 Case C-377/18 AH and Others EU:C:2019:670. 48 ibid, para 41. 49 Case C-399/11 S Melloni EU:C:2013:107, para 61. 50 ibid.

36 Giulia Gentile and Serena Menzione We can conclude this section by observing that Article 48 was not consistently used by the EU judicature to expand the guarantees already provided under Article 47 Charter. However, if Articles 47 and 48 Charter were fully interchangeable, we might wonder why Article 6 ECHR has been broken up into two separate provisions under the Charter. As suggested, the additional value of Article 48 could be in granting specific defence rights in criminal proceedings building on and going beyond the scope of Article 47. Interestingly, the analysis of the relationship between Articles 47 and 49 Charter leads to different results, as will be explained in the next section.

IV. Reciprocal Influences and Missed Opportunities: Article 47 and Article 49 Charter As mentioned, Article 49 Charter provides three principles: that of legality, that of favor rei and that of proportionality. The case law signals that Article 49 Charter is used mainly to protect the principles of legality and proportionality of penalties in the field of criminal law. The principle of favor rei is somewhat less developed in the EU case law, and, in any event, not in conjunction with Article 47. Article 49 Charter appears to have more independence from Article 47 compared to Article 48. At the same time, although not apparently linked in EU case law, Articles 47 and 49 reinforce each other. Without the possibility of an effective judicial review of penalties, the principle of proportionality of penalties and that of legality could not be ensured. The link between these two provisions is nevertheless under-explored in the existing jurisprudence, as will be illustrated in the following paragraphs. In Rosneft, the CJEU established that the principle of legality entails that the law of Member States ‘must define clearly offences and the penalties which they attract. That requirement is satisfied where the individual concerned is able, on the basis of the wording of the relevant provision and, if need be, with the help of the interpretative guidance given by the courts, to know which acts or omissions will make him criminally liable’.51 This does not mean that the law should be ‘absolutely clear’. On the contrary, the principle of nulla poena sine lege certa allows the clarification of rules of criminal liability by means of judicial interpretations, provided that those interpretations are reasonably foreseeable.52 The principle of proportionality of penalties, instead, requires the severity of the penalties to correspond to the seriousness of the offence.53 In this area, the CJEU has maintained consistency with the case law from Strasbourg under Article 52(3) Charter. In the light of the ECtHR case law, the CJEU has restated that the circumstances of the specific case should be taken into account in determining the penalty and fixing the amount of the fine.54 The CJEU has further acknowledged that the existence of effective remedies is crucial to enable courts to scrutinise penalties. The connection between the

51 Case

C-405/10 QB EU:C:2011:722, para 48. C-72/15 Rosneft EU:C:2017:236, para 167. 53 Case C-524/15 Menci EU:C:2018:197, para 55. 54 Case C-384/17 Link Logistik N&N EU:C:2018:810, para 45. 52 Case

Searching for the Pieces of the EU Justice Puzzle 37 proportionality of penalties and effective judicial review emerges in Delvigne,55 one of the few cases in which Article 49 Charter has been interpreted. The case involved the challenge of a ban introduced in France to disenfranchise those convicted of a serious crime of the right to vote at the European Parliament elections. The question was whether this legislation was compatible with EU law. In order to support the validity of the French legislation, the Court observed that ‘[…] [the considered] legislation expressly provides for the possibility of persons subject to such a ban applying for, and obtaining, the lifting of that ban. […] The seizing of a national court having jurisdiction under that provision by a person in Mr Delvigne’s situation, who wishes to have a ban that resulted, by operation of law, from a criminal conviction under the old Criminal Code lifted, paves the way for that person’s individual situation to be reassessed, including with regard to the duration of that ban.’56 Therefore, the availability of judicial review contributed to ensure the validity of the ban system, since it offered the possibility for individuals to obtain the review of duration of the ban. Rosneft and Delvigne suggest that Article 47 is the gateway to Article 49: the existence of an effective remedy and compliance with the right to a fair trial are the preliminary step to then evaluate whether penalties are proportionate. The remedies of the courts, including judicial review, may also be helpful to seek interpretation of criminal law and thus assess whether the criminal rules are sufficiently foreseeable. Yet, other EU judgments have not deployed the full potential of Article 49 Charter, which appears caught up in the net of Article 47 Charter and the EU established case law on the proportionality of penalties. Texdata is a case illustrative of the limited – if not absent role – of Article 49 Charter57 and the reluctance of courts to carry out an in-depth analysis of the proportionality of penalties. The issue concerned whether the penalty system existing in Austria for violations of Directive 89/666/EEC was compatible with, among others, the duty of Member States to provide appropriate penalties for failure to disclose financial accounts, and the right to an effective remedy enshrined in Article 47 Charter. Considering the appropriateness of the penalties, the CJEU mentioned its relevant case law on proportionality,58 and, relying on the evidence submitted by the Commission, it concluded that the amount of penalties existing in Austria converged with the average amount imposed by Member States for the same breach.59 The CJEU then moved on to the assessment of the limitations to the right to an effective remedy deriving from the automatic imposition of those penalties, and found that they were lawful. Overall, the outcome of the case was influenced by the principle of proportionality, applied in its soft version, and the right to a fair trial. The absence of any reference to Article 49 Charter in Texdata might suggest the uneasiness of the courts, both at national and EU level, to deal with issues of an administrative nature, such as the level of penalties. The appropriate amount of fines is indeed identified in the light of various elements, such as the conduct of the addressee of the

55 Case

C-650/13 Delvigne EU:C:2015:648. para 57. 57 Case C-418/11 Textdata Software EU:C:2013:588. 58 ibid, para 49. 59 ibid, para 57. 56 ibid,

38 Giulia Gentile and Serena Menzione penalty and the importance of the policy field in which fines are to be imposed. An intense judicial review of these choices might overlap with administrative discretion and lead courts to substitute themselves for the administration. At the same time, a combined reading of Articles 47 and 49 Charter entails that the courts should actively protect rights and offer effective judicial review,60 also of penalties. In this respect, national and EU authorities, and especially courts, should carry out an intense scrutiny of the proportionality of fines. Ensuring that the mandate stemming from a combined reading of Articles 47 and 49 is fulfilled becomes particularly crucial in areas where penalties are tools used to achieve the effectiveness of EU law, such as in the competition field.61 Although the EU courts have stated that the review of penalties in that area should be substantive, EU case law shows a different picture regarding the intensity of the scrutiny: the review of the proportionality of penalties in the competition area has so far been deferential towards the Commission.62 In this respect, it should be remarked that when judicial review does not fulfil the requirements of Articles 47 and 49, the legitimacy of courts and ultimately the entire system on which penalties are based may be affected. Thus, to avoid infringing both Articles 47 and 49 requirements and the objective of ensuring fairness in competition fields, it is essential that both national and EU courts evaluate not only the existence of an effective remedy, but also the proportionality of penalties. Such a review should not lead to favouring the addressee or the administration imposing those measures, but should instead consider how fairness could be restored in the market via the imposition of penalties. After all, justice should also mean that penalties are set to a level that is appropriate to the offence committed.

V. Shining in Their Own Lights: Articles 47 and 50 Charter As stated above, Article 50 Charter enshrines the ne bis in idem principle. Before its codification in the Charter,63 the ne bis in idem rule was protected in the EU as a general principle of EU law,64 representing a ‘general requirement of natural justice’.65 Subsequently, ne bis in idem explicitly acquired the status of a fundamental principle of Community law.66 This principle rests on legal certainty and equity, two founding pillars of every legal system.67 Article 50 Charter shares the same

60 Rosneft (n 52), para 73. 61 Cf with Council Reg (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1. 62 For an analysis of the review of penalties by the EU judicature in the field of competition law, see G Gentile ‘Two Strings to One Bow? Article 47 of the EU Charter of Fundamental Rights in the EU Competition Case Law: Between Procedural and Substantive Fairness’ (2020) 6 Market and Competition Law Review 169. 63 Such provision has been said to have direct effect, see Case C-537/16 Garlsson Real Estate and Others EU:C:2018:193, para 68. 64 Joined Cases C-18 and C-35-65 Gutmann EU:C:1967:6. 65 Case C-14/68 Wilhelm and Others EU:C:1969:4, para 11. 66 Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij NV EU:C:2002:582, para 59. 67 See, eg Case C-617/17 Powszechny Zakład Ubezpieczeń na Życie EU:C:2019:283, para 33.

Searching for the Pieces of the EU Justice Puzzle 39 rationale as Article 47 Charter:68 both provisions give form to the EU notion of justice by ensuring that individuals are safeguarded from the arbitrariness of the decisions of public authorities. In particular, both these Articles protect fairness, Article 47 with regards to the conduct of trials, and Article 50 by avoiding double punishment for the same crime. Yet, Article 50 has specific characteristics indispensable in the EU conceptualisation of justice: this provision enshrines a transnational principle of criminal law, that of ne bis in idem, one of the pillars of the AFSJ. In so doing, Article 50 expands the guarantees deriving from Article 47. Moving on to the interplay between Articles 47 and 50 Charter in EU case law, independence between these two provisions is the most prominent feature. Indeed, in the majority of the cases analysed,69 no reference to Article 47 is made when Article 50 applies. Overall, the result gathered from the case-law analysis is that the Court focuses on Article 50 as a stand-alone provision. This observation allows us to draw the conclusion that Article 50 Charter is the provision that is most autonomous from Article 47 in the Justice Title of the Charter. The distinctive nature of Article 50 Charter becomes evident in EU case law. To begin with, while Article 47 Charter applies to criminal, civil and administrative proceedings, Article 50 concerns exclusively criminal matters. Identifying criminal conducts is particularly relevant in cases where the law provides for proceedings or penalties which are in the grey area between administrative and criminal law, for instance in the field of competition law or in cases concerning VAT and/or tax evasion.70 The CJEU has explained that the assessment of the nature of proceedings and penalties must be conducted not only in light of the classifications present under national law, but also on the basis of the nature of the offence and the degree of severity of the penalty.71 Another condition for the applicability of Article 50 Charter is that the individual invoking this provision must be the addressee of a final decision of conviction or acquittance (res judicata).72 As observed by Advocate General Colomer, the indefinite repetition of the exercise of the ius puniendi is unacceptable.73 The evaluation of the final nature of a decision must be carried out on the basis of national law, yet also taking into consideration possible prosecutions in other Member States.74 However, national legal classifications of the facts and the legal interests protected by criminal law are not a decisive factor.75 In light of the uniform application of EU law, in fact, the scope of the protection conferred by Article 50 of the Charter cannot vary from one Member State

68 See B Van Bockel, ‘The “European” Ne Bis in Idem Principle: Substance, Sources, and Scope’ in B van Bockel (ed), Ne Bis in Idem in EU Law (Cambridge University Press, 2016). 69 See Melloni (n 49). 70 Åkerberg Fransson (n 10); Joined cases C-217/15 and C-350/15 Orsi and Baldetti EU:C:2017:264. 71 Åkerberg Fransson (n 10), para 35; Menci (n 53), paras 26–32. 72 Case C-268/17 AY EU:C:2018:602, paras 41–44. 73 Joined Cases C-187 and 385/01 Criminal proceedings against Hüseyin Gözütok and Klaus Brügge EU:C:2002:516, Opinion of AG Ruiz-Jarabo Colomer, para 48. 74 Case C-398/12 M EU:C:2014:1057, paras 36–37; Case C-10/18P Mowi ASA v European Commission EU:C:2020:149, paras 75–78. 75 M (n 74) para 36; Garlsson Real Estate and Others (n 63), para 37.

40 Giulia Gentile and Serena Menzione to another.76 Advocate General Colomer further explained that ‘[i]t would be contrary to the very concept of justice to deny the effectiveness of foreign criminal judgments. That approach would both undermine the fight against criminality and the rights of the convicted person.’77 We can therefore observe that the application of Article 50 is guided by the EU general principles of mutual trust and mutual recognition, cornerstones of the AFSJ in the EU legal order. Both rules build on the assumption that the systems of the EU Member States are ‘equivalent’ and offer the same guarantees for enforcement of EU law and rights. Furthermore, for the purpose of establishing the existence of the idem factum, meaning the same offence, the relevant criterion according to the case law of the Court is the identity of the material facts. This identity is understood as the existence of a set of concrete circumstances which are inextricably linked together, and which resulted in the final decision.78 Therefore, attention should be paid to substantive factors and not only legal qualifications of the conduct. Finally, with regards to the prohibition of duplication of proceedings and penalties, the CJEU has held that it may be possible to derogate from this rule where the proceedings pursue, for the purpose of achieving an objective of general interest, complementary aims relating to different aspects of the same unlawful conduct.79 Such an interpretation is in line with the case law of the ECtHR.80 However, it should be highlighted that allowing an indefinite progression of proceedings against the same person for the same unlawful conduct, even with the caveat of complementarity, may be at odds with the fair trial principle enshrined in Article 47 Charter, and more generally with a substantive understanding of justice. If applied broadly, this case law could ultimately promote an overly narrow version of the ne bis in idem principle.81 To sum up, notwithstanding the commonality of rationales, Article 47 and Article 50 Charter are more independent than their proximity in the Charter might let us think. The ne bis in idem rule represents an indispensable safeguard for individuals against the ius puniendi and the arbitrariness of decisions in criminal proceedings, which could be hardly considered as enshrined in Article 47 Charter. In the light of this analysis, the next section will offer a description of the content of ‘Justice’ as it emerges from the homonymous title of the Charter.

76 Garlsson Real Estate and Others (n 63), para 38. 77 Joined Cases C-187 and 385/01 Criminal proceedings against Hüseyin Gözütok and Klaus Brügge EU:C:2002:516, Opinion of AG Ruiz-Jarabo Colomer, para 59. 78 ibid, para 35. 79 Menci (n 53), paras 39–44; Case C-596/16 Di Puma EU:C:2018:192, paras 39–41; Case C-129/14 PPU Spasic EU:C:2014:586, paras 55–59. 80 Since, as stated above, Art 50 EUCFR corresponds to Art 4 of Protocol no 7 to the ECHR their meaning and scope have to be interpreted coherently; Art 52(3) EUCFR; Joined cases C-217/15 and C-350/15 Orsi and Baldetti EU:C:2017:264, para 24; Case C-524/15 Menci EU:C:2018:197, paras 61–62; Judgment of the European Court of Human Rights of 15 November 2016 in Case No 24130/11 A and B v Norway, para 132. 81 M Vetzo, ‘The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma’ (2018) 11 Review of European Administrative Law 55, 75.

Searching for the Pieces of the EU Justice Puzzle 41

VI. Finding (Some) Pieces of the EU Justice Jigsaw Puzzle The quest for a conceptualisation of justice in the EU was prompted by a multitude of authors and practitioners. De Burca, Kochenov and Williams have highlighted a relative lack of considerations concerning justice in the EU legal framework.82 Nonetheless, other authors have perceived the EU as a plausible and appropriate site for substantive questions of justice, in particular after the entry into force of the Lisbon Treaty. De Witte is among the first authors to have offered a reconstruction of the notion of EU justice. He has argued that justice in the EU is a tiered concept, which is reliant both on the nation state, with its capacity to generate the redistributive commitments and political structures required for the provision of healthcare, education, social security, social assistance or labour law; and on the European Union, whose rights to free movement bolster the capacity of its citizens to pursue their own perception of the ‘good life’.83 The Charter has further compensated for the criticism raised in the literature and has itself provided the legal basis to mould the notion of justice in the EU. In this respect, authors such as Douglas-Scott84 have argued that human rights are the best route for justice in the EU. Fundamental rights and freedoms are indeed the foundation of the European common heritage to create an area of free movement, sincere cooperation and solidarity among Member States. Focusing on the elements of the EU notion of justice emerging from the Justice Title of the Charter, we can offer two preliminary reflections. To begin with, justice seen through the lenses of Articles 47, 48, 49 and 50 Charter is the result of different sources of law; it is accordingly not monolithic, but rather multi-layered, fragmented and polyform. A primary source of inspiration to interpret the Justice Title is the ECHR, even though the CJEU can build upon the protection provided by the Convention and grant broader guarantees under the Charter Articles.85 Two further sources complicate the puzzle. First, national procedural rules, since the Justice provisions of the Charter focus on enforcement and procedural rights and the Member States remain the masters of the procedure under the principle of national procedural autonomy.86 Secondly, EU measures laying down procedural rules,87 which complement the enforcement of EU-derived rights and obligations. The notion of justice is also shaped by a matrix of different principles. To name but a few, mutual trust, mutual recognition, national procedural autonomy, effective judicial protection, legality, proportionality and fairness in criminal proceedings all inform the EU understanding of justice in the Charter. This network of principles is based on the premise that Member States share common founding values in 82 D Kochenov, G De Búrca and A Williams (eds), Europe’s Justice Deficit? (Hart Publishing, 2015). 83 F De Witte, Justice in the EU: The Emergence of Transnational Solidarity (Oxford University Press, 2015), 51 and ff. 84 See S Douglas-Scott, ‘Human Rights as a Basis for Justice in the European Union’ (2017) 8 Transnational Legal Theory 59. 85 See Art 52 EUCFR. 86 For an account on the principle of procedural autonomy, A Biondi and G Gentile, ‘National Procedural Autonomy’ (2019) Max Planck Encyclopedia of International Procedural Law; C Kakouris, ‘Do the Member States Possess Judicial Procedural Autonomy’ (1997) 34 Common Market Law Review 1389. 87 See, eg Dir 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings [2012] OJ L142/1.

42 Giulia Gentile and Serena Menzione a society in which justice prevails. How the CJEU reconciles these various legal sources while applying the Justice Title of the Charter ultimately determines how individuals can seek justice via national and EU procedural rules. Therefore, the Justice provisions of the Charter are at the crossroads of international fundamental rights, national procedural rules, EU legislation laying down procedural rules and general principles of EU law. Accordingly, the EU conceptualisation of justice that emerges constitutes a prime example of cross-fertilisation, but also complexity. The complexity of the image of ‘justice’ stemming from the homonymous Charter Title could be considered, to a certain extent, to lead to a lack of clarity and coherence. It has nevertheless the advantage of accommodating pluralism in the enforcement of these fundamental rights in the different Member States. United in diversity is not only the motto of the EU; it also represents a guiding principle in the multilevel system of fundamental rights protection, including those included in the Justice Title of the Charter. Second, another reflection arises: justice in the homonymous Title of the Charter is individual-centred. Differently from other provisions included in the Charter, such as those concerning free-movement-related fundamental rights88 which directly contribute to the achievement of the objectives of the internal market, the Justice Title primarily focuses on the protection of individuals against abuses by public authorities in the enforcement of the law. These provisions enshrine an idea of justice that dates back to the primordial bills of rights, which established, for instance, the principles of habeas corpus and natural justice.89 The inclusion of these guarantees in the Charter might appear at first far-fetched: after all, the Member States retain general competence in laying down procedural rules and regulating criminal law. However, the expansion of competences of the EU in the field of criminal and civil procedure90 as well as the increase in EU secondary legislation concerning procedural rights91 also require the advancement of procedural fundamental rights. These rights, by their nature, offer protection to individuals in the interaction with public authorities enforcing the law. In this sense, they are the most crucial rights for achieving justice in a legal order: without the guarantee that public authorities would act fairly and proportionately, there is no appearance of justice in a given society. While the individual nature of these fundamental rights guarantees is evident, recent case law has illustrated that they, and especially Article 47 Charter, may be used beyond an individual dimension. By way of example, in Deutsche Umwelthilfe eV,92 Article 47 was used to enforce national procedures providing detention in case of

88 See, eg Arts 6 and 19 EUCFR. 89 UK Parliament, ‘The Contents of Magna Carta’ (UK Parliament Website, 2021), available at https:// www.parliament.uk/about/living-heritage/evolutionofparliament/originsofparliament/birthofparliament/ overview/magnacarta/. 90 See Arts 81, 82 and 83 TFEU. 91 See, eg Dir 2012/13/EU; Dir 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1; Dir 2016/343 of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1; Dir 2016/800 of the European Parliament and of the Council on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L132/1. 92 Case C-752/18 Deutsche Umwelthilfe eV EU:C:2019:1114.

Searching for the Pieces of the EU Justice Puzzle 43 breach of EU law on gas emission. This interpretation of Article 47 Charter is in sharp contrast with the rationale of the Justice Title of the Charter, being that of equipping individuals with essential guarantees against abuses of public authorities in the enforcement of the law. Had the CJEU contextualised the role of Article 47 in an individual-centred justice perspective, this reading would have been highly unlikely.93 While reliance on Article 47 Charter in Deutsche Umwelthilfe eV contributed towards the effective enforcement of EU legislation on gas emission, it is submitted that a ‘general-interest-oriented’ application of Article 47 could deprive this norm of its nature as an individual fundamental right as interpreted in light of the individualcentred focus of the EU Justice Title. To conclude, the guarantees deriving from the Justice Title and especially from Articles 48, 49 and 50 are still in the process of being shaped in EU case law. Engagement with these provisions, both by national and EU authorities, appears a necessary and required evolution of the EU legal order. An excessive focus by national and EU courts solely on the effective remedy and fair trial right under Article 47 when theorizing, for instance, the protection of the rule of law, risks fostering an excessively ‘thin’ version94 of that value in the EU. Indeed, the possibility of accessing remedies and obtaining a fair trial is not an automatic guarantee for justice. Articles 48 and following could also provide further elements for the EU understanding of the rule of law, and, ultimately, justice. The guarantees existing under the Charter should be seen as a further shield for and an opportunity to expand the rule of law understanding and the notion of justice in the EU legal order. The increasing regulation of procedural rules at EU level may ultimately give prominence to the rights of the Justice Title in the near future. Figure 1 The relationship between Article 47 Charter and the other Justice provisions

50 49 47 48

93 The relationship between effective judicial protection and effectiveness of EU law is notoriously complex, and cases such as Deutsche Umwelthilfe eV do not contribute to its clarification; see S Prechal and R Widdershoven, ‘Redefining the Relationship between “Rewe-Effectiveness” and Effective Judicial Protection’ (2011) 4 Review of European Administrative Law 31. 94 For a discussion on the rule of law conceptions in the EU and beyond, see T Konstadinides, The Rule of Law in the European Union: The Internal Dimension (Hart Publishing, 2017).

44 Giulia Gentile and Serena Menzione

VII. Conclusion The three acts of this chapter had an explorative nature: they sought to cast light on the Justice Title of the Charter with a twofold objective. First, the chapter aimed to unpack the interplay between Articles 47, 48, 49 and 50 of the Charter; secondly, it endeavoured to paint the idea of ‘justice’ that emerges from the homonymous Charter title. The main findings of this study can be summarised as follows. Articles 48, 49, 50 complement Article 47 and all these provisions enshrine different general principles of EU law which are corollaries of the rule of law. While Article 48 does not add much to the scope of Article 47, Articles 49 and 50 appear to have a more autonomous value. Overall, Articles 48, 49 and 50 appear as planets gravitating at different distances from Article 47, which is the fulcrum of the Justice Title.95 The CJEU often interprets the other procedural fundamental rights in combination with Article 47 of the Charter. This occurs mainly in relation to Article 48 of the Charter. A similar path does not emerge in relation to Articles 49 and 50 of the Charter, which seem to possess an autonomous nature from Article 47. Overall, Article 47 and, in particular, the right to an ‘effective remedy’ under Article 47(1), are predominant in CJEU case law regarding fundamental procedural rights, with only a subsidiary role being played by the other procedural rights. The case law under consideration also illustrated some core aspects of the notion of justice: justice in the light of Articles 47, 48, 49 and 50 of the Charter is fragmented, polymorph and individualistic. Article 47 should be seen as the minimum core of the rule of law and, thus Articles 48, 49 and 50 could offer a broader understanding of the rule of law. However, these latter provisions are not extensively applied in EU case law. Cases citing these articles are significantly fewer compared to those referring to Article 47. It follows that the Justice title of the Charter has a potential which has not yet been fully explored by the EU and national judicatures. The chapter invites national courts and legal practitioners to delineate, in collaboration with the CJEU, EU standards of protection of justice rights by dialoguing with the CJEU on the meaning of Charter rights beyond Article 47 thereof. In any event, the best has yet to come: the ‘proceduralisation’ of EU law by way of increasing adoption of procedural measures by the EU institutions may offer national and EU courts the chance to explore the prospects of the other justice provisions of the Charter. In conclusion, the Charter strengthens the idea that the EU is based on justice under a human rights-based approach. The Charter now includes provisions that can allow this notion to be further defined, and, in parallel, to reinforce the role of the CJEU as a ‘Court of Justice’ and not merely of ‘EU law’. However, justice in the EU is a complex jigsaw, and most of its pieces are still to be found.

95 See

Figure 1 above.

3 Effective Judicial Protection before National Courts: Article 47 of the Charter, National Constitutional Remedies and the Preliminary Reference Procedure ANNA WALLERMAN GHAVANINI AND CLARA RAUCHEGGER*

This chapter examines the role of the preliminary reference procedure in ensuring effective judicial protection of EU-derived rights in the Member States. The preliminary reference procedure has often been considered the crown jewel of the EU judiciary and has enfranchised national judiciaries to strengthen the access to judicial protection nationally. The parties to a dispute do not, however, have an individual right to obtain a preliminary ruling. Yet, several national constitutional courts have held that parties’ constitutional fair trial rights are infringed if a national apex court fails to comply with its obligation to refer. This position has recently been adopted by the CJEU. The chapter argues that in developing the precise meaning of this newly established right, the CJEU could draw on national case law to improve the standing and procedural rights of individuals within the preliminary reference procedure in accordance with Article 47 of the Charter.

I. Introduction The preliminary reference procedure has often been considered the crown jewel of the EU judiciary. It is generally accepted that it has strengthened effective judicial protection of EU-derived rights in the EU Member States. At the same time, the relationship between the preliminary reference procedure and the principle of effective judicial protection, now enshrined in Article 47 of the Charter (EUCFR), remains ambiguous. On the one hand, the Court of Justice (CJEU) insists on the importance of the p reliminary reference

* Anna Wallerman Ghavanini is associate professor of EU law at the University of Gothenburg; Clara Rauchegger is assistant professor of European Union Law and Digital Technology Law at the University of Innsbruck.

46 Anna Wallerman Ghavanini and Clara Rauchegger procedure for judicial protection of individual rights before national courts, but on the other, it continues to maintain that the procedure is ‘completely independent’ of the parties’ initiative. The aim of this chapter is to explore the relationship between the preliminary reference procedure and the right to effective judicial protection. The chapter is divided into two parts. The first part examines the procedural right of the parties to a dispute to obtain a preliminary ruling. It takes the perspectives of both EU law and national constitutional law. The second part explores the impact that the preliminary reference procedure has had on effective judicial protection in judicial practice. We argue that despite some promising developments, the full potential of judicial protection inherent in Article 47 has not been realised in the case law of the Court of Justice. To some extent, related shortcomings in judicial protection have been remedied by national constitutional courts.

II. The Preliminary Reference as an Individual Right A. The EU Law Perspective The CJEU established as early as 1965 that the discretion of the referring court under (what is now) Article 267 TFEU precluded the parties from any right to either put forward preliminary questions for consideration or have the original questions revised or withdrawn.1 It elaborated on this point in CILFIT, where it stated that the preliminary reference procedure ‘does not constitute a means of redress available to the parties’.2 While the parties can be consulted on the matter and presumably often in practice provide input on the formulation of the questions,3 their prior involvement in the procedure is entirely at the discretion of the referring court and has advisory effects only.4 While courts at the highest levels of the national judiciaries have an obligation to request preliminary rulings according to Article 267(3) TFEU, the long-standing case law of the CJEU provides that referring courts at all levels enjoy the ‘widest discretion’ when it comes to the subject matter and formulation of the questions.5 This case law has been codified in the CJEU’s ‘Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings’, which specify that ‘the jurisdiction of the Court […] is exercised exclusively on the initiative of the national courts and tribunals, whether or not the parties to the main proceedings have expressed

1 Case C-44/65 Hessische Knappschaft v Singer et Fils EU:C:1965:122. 2 Case C-283/81 CILFIT EU:C:1982:335, para 9. 3 J Krommendijk and J Hoevenaars, ‘Blackbox in Luxembourg the Bewildering Experience of National Judges and Lawyers in the Context of the Preliminary Reference Procedure’ (2021) 46 European Law Review 61, 69. 4 See Case C-620/17 Hochtief EU:C:2019:340, Opinion of AG Bobek, para 130; See also Case C-430/15 Tolley EU:C:2017:74, paras 32–43. 5 Case C-344/15 National Roads Authority EU:C:2017:28, para 32; Joined Cases C-52/16 and C-113/16 SEGRO EU:C:2018:157, para 98; Case C-210/06 Cartesio EU:C:2008:723, para 88.

Effective Judicial Protection before National Courts 47 the wish that a question be referred to the Court’.6 The Recommendations furthermore emphasise that it is ‘for the national court or tribunal before which a dispute has been brought – and for that court or tribunal alone — to determine […] both the need for a request for a preliminary ruling […] and the relevance of the questions which it submits to the Court.’ The CJEU has been remarkably consistent in this case law. Only two case law developments have suggested the possibility of a more prominent role for the principle of effective judicial protection within the preliminary reference procedure: the 2003 ruling in Köbler, which although ground-breaking in theory has so far failed to produce more significant effects in practice, and the 2021 judgment in Consorzio Italian Management, the effects of which remain to be seen. In Köbler, the CJEU designated for the first time Article 267(3) TFEU as a rule intended to ensure the protection of individual rights, holding that ‘it is, in particular, in order to prevent rights conferred on individuals by Community law from being infringed that under the third paragraph of Article 234 EC a court against whose decisions there is no judicial remedy under national law is required to make a reference to the Court of Justice.’7 The CJEU was encouraged to take this step by Advocate General Legér who had opined that it would be ‘logical and reasonable’ that manifest infringements by the highest courts of the Member States to comply with their duty to refer should be capable of giving rise to state liability, regardless of the outcome of the procedure.8 Since it is a condition for such liability that the provision violated should be intended to confer rights on individuals,9 the implications of AG Legér’s statement was clearly that Article 267, or at least its third paragraph, had that purpose.10 Although the CJEU in Köbler did not explicitly use the language of effective judicial protection, its statement quoted above at the very least suggested that the preliminary reference procedure would form part of the safeguards fulfilling that principle, which at the time of the ruling had been recognised both in case law and in the (then not legally binding) Charter. However, in its subsequent case law, the CJEU failed to follow up on this (possible) link between preliminary references and Article 47 EUCFR, assigning to the preliminary reference procedure instead the more systemic purposes of providing assistance to the national courts in their interpretation and application of EU law and, in particular, of ensuring the uniform application of Union law.11 These aims are 6 Court of Justice of the European Union, ‘Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings’ (2019) OJ C380/1. Emphasis added. 7 Case C-224/01 Köbler EU:C:2003:513, para 35. Emphasis added. 8 Case C-224/01 Köbler EU:C:2003:207, Opinion of AG Léger, para 148. 9 The other two conditions being that the breach of EU law is sufficiently serious and that there exists a direct causal link between the breach and the damage incurred by the individual; See Köbler (n 7) para 51; Case C-497/20 Randstad Italia EU:C:2021:1037, para 80. 10 AG Legér himself cited in support of his reasoning a pro memoria drafted by the Court in 1975, in which the Court argued for the creation of a remedy available to individuals for infringements of (then) Art 177 TEC; See Case C-224/01 Köbler EU:C:2003:207, Opinion of AG Léger, para 145; While this pro memoria suggests that the Court, at least in 1975, did not consider a such remedy to exist lex lata, it clearly demonstrates that the idea of preliminary references as a matter of right is not alien to the Court of Justice. 11 See, eg the Opinion of the Court 1/09 EU:C:2011:123, para 83; Opinion of the Court 2/13 EU:C:2014:2454, para 173; Case C-416/17 Commission v France EU:C:2018:811, para 109; Case C-561/19 Consorzio Italian Management EU:C:2021:799, paras 27–28; These functions were also dominant in the case law preceding Köbler, see eg Case C-166/73 Rheinmühlen I EU:C:1974:3, para 2; Case C-283/81 CILFIT EU:C:1982:335, para 7.

48 Anna Wallerman Ghavanini and Clara Rauchegger qualitatively different from that identified by the Court in Köbler in that they emphasise public or collective goods rather than individual rights. Thereby, they also remove the preliminary reference procedure from the remit of Article 47 EUCFR. So far, the CJEU has also failed to confirm that Köbler liability can be based solely on a failure by a highest court to request a preliminary reference, as proposed by AG Legér in that case.12 The Ferreira da Silva case, in which the CJEU held that the Portuguese Supreme Court had infringed Article 267 by failing to request a preliminary ruling,13 did not offer the CJEU an opportunity to clarify its position on this point, as the failure to refer was in that case paired with an erroneous interpretation of EU law on substance. In Diego Brands, the CJEU observed that an unjustified failure by a Member State supreme court to comply with its obligations under Article 267(3) would have rendered the Member State in question subject to state liability.14 While this statement seems to suggest that a failure to refer would in itself constitute a violation of the individual applicant’s rights, it must be remarked that the statement was made à propos a hypothetical situation in which a substantively incorrect ruling had already been adapted by that court. These circumstances may well have affected the CJEU’s statement, entailing that no far-reaching conclusions should be based on the judgment. A right to reparation under the state liability doctrine for the failure of a last instance court to refer was recently endorsed by AG Bobek in his Opinion in Călin, where he observed that the state liability doctrine would be applicable ‘when the alleged infringement of EU law is an infringement of the duty […] to make a reference for a preliminary ruling’, committed by a court of last instance.15 His remark that such infringements are ‘normally’ coupled with other, substantive infringements seems to underline, a contrario, that such a secondary infringement, while common, is not necessary for a compensation claim to arise under the principle of state liability.16 The CJEU, however, failed to follow up on these remarks. It is also worth noting that the AG, even in this context, stopped short of repeating the claim from Köbler that Article 267 TFEU is intended to preserve individual rights, which in hindsight appears as little more than a slip of the judicial tongue. A second, more recent development that seems to strengthen individual rights under the preliminary reference procedure arises from the ruling of the CJEU in Consorzio Italian Management. In that case, the Court held for the first time that Article 267 TFEU must be interpreted in the light of Article 47 EUCFR,17 to the effect that a national highest

12 Although it has, as Turmo observes, not ruled it out either, see A Turmo, ‘A Dialogue of Unequals – The European Court of Justice Reasserts National Courts: Obligations under Article 267(3) TFEU’ (2019) 15 European Constitutional Law Review 340, 351. 13 Case C-160/14 Ferreira da Silva EU:C:2015:565, para 45. 14 Case C-681/13 Diego Brands EU:C:2015:471, para 66. 15 Case C-676/17 Călin EU:C:2019:94, Opinion of AG Bobek. Emphasis added. 16 ibid, para 109. 17 The CJEU had previously been invited to make this connection in Case C-3/16 Aquino EU:C:2017:209, where however it reformulated the questions and answered on the basis of the principles of effectiveness and equivalence rather than Art 47 EUCFR; On the relation between these principles, see eg S Prechal and R Widdershoven, ‘Redefining the Relationship between ‘Rewe-Effectiveness’ and Effective Judicial Protection’ (2011) 4 Review of European Administrative Law 31; J Krommendijk, ‘Is There Light on the Horizon? The Distinction between “Rewe Effectiveness” and the Principle of Effective Judicial Protection in Article 47 of the Charter after Orizzonte’ (2016) 53 Common Market Law Review 1395.

Effective Judicial Protection before National Courts 49 court that refrains from requesting a preliminary ruling must provide reasons for its decision, identifying the applicable exception to the Article 267(3) TFEU obligation.18 In doing so, the Court followed the lead of ECtHR, which has successively established – under Article 6 ECHR – the right to a reasoned decision from Member State courts refusing to request a preliminary ruling from the CJEU.19 Unlike the CJEU’s Köbler case law, the ECtHR however included all national courts in this requirement, regardless of their place in the national judiciaries.20 It remains to be seen whether the CJEU will follow suit and interpret Article 267(2) TFEU in the light of Article 47 EUCFR as well. As a logical consequence of the limitation of its dictum to Article 267(3) TFEU, the CJEU in Consorzio Italian Management did not make the obligation to justify a nonreferral decision conditional on a party’s request for a preliminary reference. However, under Article 6 ECHR, the ECtHR has taken the view that the obligation of the courts to provide reasons is activated by the substantiated request of a party to the proceedings.21 This elevates the parties’ submissions in the matter from mere advice to procedural actions that require the court to deliberate and formally react (but not necessarily acquiesce). While this case law stops short of pronouncing access to the preliminary reference procedure a necessary component of a fair trial in the meaning of Article 6 ECHR, it recognises that such access is relevant from a judicial protection perspective, which is why the parties have a stake – and a say – in the matter.22 That position would, however, be hard to reconcile with the insistence of the CJEU on the preliminary reference procedure as merely a ‘dialogue between one court and another’ that is ‘completely independent of any initiative by the parties’.23 In summary, Article 267 TFEU continues to be perceived as establishing rights for national courts rather than for individual litigants.24 Case law developments have been rather limited and have not altered the basic tenets that the article is to be applied ex officio by (would-be) referring courts and provides no role for the parties; they need not be heard and, where they nevertheless are, their positions can be formlessly ignored. The recognition of a duty in EU law to provide reasons pursuant to Article 47 EUCFR,

18 Consorzio Italian Management (n 11) para 51; See also Case C-160/14 Ferreira da Silva EU:C:2015:390, Opinion of AG Bot, para 90. AG Bot argued that a duty to provide reasons for refusals to refer follows already from the ruling in CILFIT (n 11). 19 See Judgment of the European Court of Human Rights of 16 November 2010 in Case No 3989/07 and 38353/07 Ullens de Schooten and Rezabek v Belgium, paras 57–62; Judgment of the European Court of Human Rights of 23 May 2016 in Case No 17502/07 Avotiņš v Latvia, para 110; Judgment of the European Court of Human Rights of 30 April 2019 in Case No 70750/14 Repcevirág Szövetkezet v Hungary, paras 48–51. 20 See, eg the Judgment of the European Court of Human Rights of 19 May 2015 in Case No 38044/12 Chylinski v Netherlands, paras 41–49. 21 See, eg the Judgment of the European Court of Human Rights of 19 October 2016 in Case No 17073/03 John v Germany. 22 For a critical discussion of this case law, see J Krommendijk, ‘“Open Sesame!”: Improving Access to the ECJ by Requiring National Courts to Reason their Refusals to Refer’ (2017) 42 European Law Review 46, 54–56. 23 See, eg Diego Brands (n 14) See Krommendijk (n 22) 52. 24 M Broberg and N Fenger, ‘Preliminary References as a Right – But for Whom? The Extent to Which Preliminary Reference Decisions Can be Subject to Appeal’ (2011) 36 European Law Review 276; G Butler and J Cotter, ‘Just say No!: Appeals Against Orders for a Preliminary Reference’ (2020) 26 European Public Law 615.

50 Anna Wallerman Ghavanini and Clara Rauchegger so long as it remains limited to the courts against whose judgments there are no national remedies and, crucially, independent of party dispositions, does little to alter this courtcentric paradigm.

B. The National Constitutional Law Perspective Since individuals do not have a remedy under EU law to obtain a preliminary reference, some national constitutional courts have filled this gap in judicial protection, at least to some extent. In particular, several constitutional courts review refusals to refer of national courts of last instance in the light of domestic constitutional law. Individuals can complain before the national constitutional court that the decision of a national court of last instance not to refer violates national fair trial rights. The German, Austrian, Spanish, Czech and Slovak constitutional courts are among the courts that have developed such constitutional guarantees.25 In each case, the breach of the duty of a national court to refer to the CJEU is construed as a breach of a fair trial right protected by national constitutional law.26 Two approaches can be distinguished regarding the national constitutional right that is violated by the refusal to refer. The first approach relies on the right to the lawful judge. Some constitutional courts construe the breach of an obligation to refer to the CJEU as a violation of the national constitutional right to the lawful judge. The idea is that Article 267(3) TFEU implies that the CJEU is the lawful judge in proceedings in which a question concerning the interpretation or validity of EU law is raised. Consequently, if a national court of last instance resolves a dispute without referring to the CJEU, its decision might violate the constitutional right to the lawful judge.27 The case law of the German Federal Constitutional Court is representative of this first approach, which has been followed by the Austrian,28 Czech29 and Slovak30 Constitutional Courts. Already in its famous Solange II judgment, the German Federal Constitutional Court recognised the CJEU as the lawful judge for matters of EU law within the meaning of Article 101, Section 1 of the Basic Law.31 According to the German Federal Constitutional Court, the right to the lawful judge is violated if a national court violates its duty under Article 267(3) TFEU to refer to the CJEU. However, the right to the lawful judge is not violated if a national court does not have a duty, but an option, to refer.32 25 C Lacchi, ‘Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU’ (2015) 76 German Law Journal 1663, 1664–1665. 26 ibid, 1665. 27 ibid, 1668. 28 Austrian Constitutional Court, VfSlg 14.390/1995; M Klamert, ‘Austria’ in M Botmann and J Langer (eds), National Courts and the Enforcement of EU Law: The Pivotal Role of National Courts in the EU Legal Order: XXIX FIDE Congress in the Hague (Eleven International Publishing, 2020) 101; For an analysis, see T Marktler, ‘The European Court of Justice as Lawful Judge’ (2008) 2 Vienna Journal on International Constitutional Law 294. 29 Czech Constitutional Court, Pl ÚS 1009/08. 30 Slovak Constitutional Court, ÚS 206/08-50; L Mokrá, M Siman and V Miháliková, ‘Slovakia’ in Botmann and Langer (n 28) 441; The Slovak Constitutional Court also refers to the right to judicial protection. 31 German Federal Constitutional Court, 2 BvR 197/83. 32 M Jachmann-Michel, ‘Art 101 GG’ in T Maunz et al (eds), Grundgesetz: Kommentar (CH Beck, 2020) 4141.

Effective Judicial Protection before National Courts 51 The second approach, adopted by the Spanish33 and Slovenian34 Constitutional Courts, is that the failure of a national court of last instance to refer deprives individuals of the right to effective judicial protection.35 In contrast to the right to the lawful judge, the right to effective judicial protection does not relate to the division of competences between courts.36 The Spanish Constitutional Court, for instance, emphasised that preliminary references were a means of defence for the parties to the national proceedings.37 Under both approaches, the constitutional courts consider the CILFIT criteria to determine whether a court of last instance is under an obligation to refer to the CJEU.38 However, different degrees can be distinguished regarding the standard of judicial scrutiny of the refusal to refer.39 According to the standard of review, three groups can be identified. The first group of constitutional courts examine in substance whether the court of last instance complied with its duty under Article 267(3) TFEU.40 The second group of constitutional courts require national courts of last instance to give reasons for their decision not to refer and they scrutinise the content and quality of the explanations provided. The reasons must be substantive and persuasive, explaining, for example, why the acte clair doctrine applies to the specific case.41 The third group of constitutional courts simply demand that national courts of last instance provide a statement of reason for their refusal to request a preliminary reference. The duty to give reasons is more of a formal requirement since the reasoning is not assessed in substance. The German and Austrian Constitutional Courts belong to the first group. They examine in substance whether a refusal to refer is in line with the duty of the national court under Article 267(3) TFEU.42 The Austrian Constitutional Court opts for a strict standard of review; not only severe, but all breaches of the duty to refer violate the Austrian constitutional right to the lawful judge.43 Austrian case law comes close to conveying an individual constitutional right to having Article 267(3) TFEU respected.44 The German Federal Constitutional Court adopts a somewhat looser standard of review. It assesses whether the duty to refer was breached in an indefensible, arbitrary way so that the decision appears ‘manifestly untenable’.45 In contrast to the case law of the ECtHR, followed by the CJEU in Consorzio Italian Management, German case law on the right to a lawful judge does not guarantee a right to an explanation of the

33 Spanish Constitutional Court, STC 58/2004. 34 Slovenian Constitutional Court, Up-1056/11. 35 Lacchi (n 25) 1669. 36 ibid, 1674. 37 Spanish Constitutional Court, STC 180/1993; Spanish Constitutional Court, STC 201/1996; Spanish Constitutional Court, STC 203/1996. 38 See Lacchi (n 25) 1669–1677; Marktler (n 28) 299; V Stehlík, D Sehnálek and O Hamuľák, ‘Czech Republic’ in Botmann and Langer (n 28). 39 M Dougan, ‘General Report: National Courts and the Enforcement of EU Law’ in Botmann and Langer (n 28) 55. 40 See Lacchi (n 25) 1678. 41 Dougan (n 39) 55. 42 Lacchi (n 25) 1678. 43 Austrian Constitutional Court, Vfslg 14.889/1997; Klamert (n 28) 101. 44 ibid. 45 Lacchi (n 25) 1679.

52 Anna Wallerman Ghavanini and Clara Rauchegger decision not to refer. For example, the German Federal Constitutional Court held that if the party to the dispute has not suggested a specific preliminary question and the court of last instance has taken EU law into account, there is no violation of German fair trial rights if the court has not given reasons for its decision not to refer.46 The Spanish, Czech and Slovak Constitutional Courts belong to the second group identified above.47 They require national courts of last instance to provide adequate reasons for their refusals to refer. The requirement to give reasons is stricter than that developed by the ECtHR because these constitutional courts actually examine the reasoning of the national court in substance.48 The Spanish Constitutional Court reinforced the duty of last-instance courts to give adequate reasons for a refusal to refer in its Judgment 37/2019.49 In this case, one of the parties had asked the Spanish Supreme Court for a preliminary reference to the CJEU, but the Supreme Court failed to comply. An appeal for judicial protection was filed based on the infringement of the constitutional right to effective judicial protection. The Spanish Constitutional Court ultimately decided that this right had been violated because the reasons for invoking acte éclairé were not sufficiently justified by the Supreme Court. According to previous case law, the national court was only expected to give formal reasons for not triggering Article 267 TFEU.50 In its Judgment 37/2019, for the first time, the Spanish Constitutional Court actually reviewed the reasoning of the Supreme Court and decided acte éclairé could not be invoked because the question to be decided was not materially identical to any previous questions decided by the CJEU.51 The Spanish Constitutional Court thereby established a duty to refer to the CJEU based on national constitutional law.52 The Czech Constitutional Court established a similar duty to give adequate reasons for a refusal to refer to the CJEU. It held in Pfizer that the constitutional right to the lawful judge is violated if a national court of last instance violates its duty to refer.53 According to more recent case law, this happens in three scenarios.54 First, the right to the lawful judge is breached if a party to the case proposes a preliminary reference and the national court ‘does not react to it at all or absolutely insufficiently or its justification is incomprehensible’.55 Secondly, there is a breach of the constitutional right, if the court of last instance disrespects the acte éclairé situation by intentionally deviating from the settled interpretation given by the CJEU. The intention is deduced from the reasoning of the national court, which is scrutinised in substance by the Czech Constitutional Court.56 Finally, the Czech Constitutional Court assesses whether the national court of 46 German Federal Constitutional Court, 2 BvR 63/15. 47 Regarding the Czech and Slovak Constitutional Courts, see Dougan (n 39) 55. 48 See Lacchi (n 25) 1683–1684. 49 JAM Díaz-Asensio and MP Calvo, ‘Spain’ in Botmann and Langer (n 28) 472; See also Spanish Constitutional Court, STC 37/2019. 50 Spanish Constitutional Court, STC 27/2013. 51 Díaz-Asensio and Calvo (n 49) 474. 52 ibid. 53 Czech Constitutional Court, ÚS 1009/08. 54 Czech Constitutional Court, ÚS 1434/17. 55 Czech Constitutional Court, ÚS 3432/17, reported and translated by Stehlík, Sehnálek and Hamuľák (n 38) 167. 56 ibid.

Effective Judicial Protection before National Courts 53 last instance failed to refer to the CJEU in a way that is incompatible with the acte clair criteria.57 Again, it opts for a looser standard of review of the CILFIT requirements. The court of last instance needs to have clear doubts regarding the correct interpretation of EU law, the interpretation of EU law needs to be unequivocally indefensible, and the significance of the issue is also taken into account.58 Likewise, the Slovak Constitutional Court reviews the reasoning of the national courts in substance, but adopts a looser standard of review. It found that ‘not every failure to refer a preliminary question to the Court of Justice constitutes a breach’ of Slovak constitutional law.59 Only ‘fundamental and qualified errors in deciding whether to refer or not’, ‘based on an arbitrary or prima facie entirely incorrect refusal to refer a preliminary reference in a situation, in which a court itself had doubts about the interpretation of EU law, constitutes a breach of the fundamental right to judicial protection or right to a fair trial’.60 The third and final group of constitutional courts consists of constitutional courts that impose on national courts of last instance a duty to give reasons that is more formal than substantive in nature. Croatia and Slovenia seem to belong to this group. The Croatian Constitutional Court held that a constitutional complaint was available as a remedy against the refusal of a national court of last instance to justify its refusal to refer to the CJEU.61 It referred to case law of the ECtHR and explained that, in line with this case law, it was competent to control whether courts of last instance have offered reasons for a refusal to refer, but not competent to assess whether the courts had wrongly interpreted EU law.62 Likewise, the Slovenian Constitutional Court has annulled decisions of the Slovenian Supreme Court for failing to give reasons for not referring the question to the CJEU for a preliminary ruling.63 To sum up, national constitutional courts have developed individual rights that can be seen as the flipside of the duty of national courts of last instance to refer to the CJEU as it results from Article 267(3) TFEU. For most of these constitutional courts, the individual right consists of a right to be provided with reasons for non-referral. The Croatian and Slovenian Constitutional Courts only assess whether such reasons were given by the last-instance court. Here, the duty to give reasons is more a formal than a substantive requirement. In contrast, the Spanish, Czech and Slovak Constitutional Courts perform a more substantive review of the duty to give reasons, which has on occasion resulted in finding that an individual’s constitutional right to effective judicial protection was violated because of wrongful reference to acte éclairé. Only two of the constitutional courts examined above, namely the Austrian and German Constitutional Courts, have developed rights that come close to individual constitutional rights to

57 ibid. 58 Czech Constitutional Court, ÚS 3432/17, reported by Stehlík, Sehnálek and Hamuľák (n 38) 167. 59 Mokrá, Siman and Miháliková (n 30) 441. 60 Slovak Constitutional Court, ÚS 140/2010-50, translated by Mokrá, Siman and Miháliková (n 30) 441. 61 N Bačič Selanec et al, ‘Croatia’ in Botmann and Langer (n 28) 130; See Croatian Constitutional Court, U-III-2521/2015; U-III-2536/2015; U-III-2547/2015; U-III-2565/2015; U-III-2603/2015; U-III-2604/2015; U-III-2605/2015; U-III-1966/2016. 62 Bačić Selanec et al (n 61) 130. 63 V Trstenjak and P Weingerl, ‘Slovenia’ in Botmann and Langer (n 28) 457; See Slovenian Constitutional Court, Up-561/15.

54 Anna Wallerman Ghavanini and Clara Rauchegger the respect of Article 267(3) TFEU. The Austrian Constitutional Court opts for a strict standard of review, whereas the German one merely assesses whether the duty to refer was breached in an indefensible, arbitrary way.

III. Towards a More Rights-Based Approach? The CJEU’s reluctance to acknowledge litigant rights in relation to the preliminary reference procedure sits uneasily with its repeated reliance on the same procedure as an integral part of the ‘complete system of judicial remedies’ provided for by the Treaties in protection of individual rights.64 In particular, the restrictive case law of the CJEU on standing for individuals under Article 263(4) TFEU is routinely justified by reference to the ‘complete system of judicial remedies’, which allows individuals to turn to national courts, which in turn may refer the question to the CJEU – ‘may’ being the operative word.65 The constitutional courts examined in the previous part of this chapter have contributed to minimising the gap in this ‘complete system of judicial remedies’ by creating individual constitutional rights to the respect of Article 267(3) TFEU. Constitutional courts of further Member States might follow their example and review the refusal of national courts of last instance to refer to the CJEU in the light of national constitutional law. However, this route to protecting individual procedural rights in the context of the preliminary reference procedure might not be available to all Member States. It does not seem to be a viable option for those Member States that have not adopted a centralised system of constitutional review that entails a specialised constitutional court that is separate from the rest of the judicial branch.66 There is therefore scope for the CJEU to strengthen individual rights in the context of the preliminary reference procedure. In Consorzio Italian Management, it made a first step in this direction by interpreting Article 267 TFEU in the light of Article 47 EUCFR and recognising an EU law duty for last-instance courts to state reasons for non-referrals. The CJEU could build on this case to construct an individual right to be provided with adequate reasons for non-referral by national courts of last instance. Although not obliged to take national case law into account, as Article 47 EUCFR does not result from the constitutional traditions common to the Member States but from CJEU case law on effective judicial protection and from Article 6 and 13 ECHR,67 the

64 See eg Case C-50/00 P Unión de Pequeños Agricultores v Council EU:C:2002:462, para 40; Opinion of the Court 1/09 EU:C:2011:123, para 24; Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council EU:C:2013:625, para 92; Case C-644/17 Eurobolt EU:C:2019:555, para 27; See further R Baratta, ‘National Courts as “Guardians” and “Ordinary Courts” of EU Law: Opinion 1/09 of the ECJ’ (2011) 38 Legal Issues of Economic Integration 297, 307–310. 65 For a critical discussion of this problem in the field of environmental law, see I Hadijyianni, ‘Judicial Protection and the Environment in the EU Legal Order: Missing Pieces for a Complete Puzzle of Legal Remedies’ (2021) 58 Common Market Law Review 777. 66 On the different models of constitutional adjudication in the EU, M de Visser, Constitutional Review in Europe: A Comparative Analysis (Hart Publishing, 2015) 95. 67 See Art 52(4) EUCFR; See further C Rauchegger, ‘Sources and Content of Article 47’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2021).

Effective Judicial Protection before National Courts 55 CJEU could rely on the constitutional case law analysed above as a source of inspiration. In this regard, the Spanish and Slovenian approach based on the right to effective judicial protection appears more fruitful, as Article 47(2) EUCFR does not contain a guarantee that is equivalent to the national right to the lawful judge,68 a procedural guarantee that protects the division of responsibilities between competent (judicial) authorities.69 Within this strand, the CJEU could either follow the example of the Slovenian Constitutional Court and construe the duty to give reasons as a mere formal requirement, or that of the Spanish Constitutional Court demanding that the reasons provided are actually convincing in the light of the CILFIT line of cases. Either option would however entail a departure from the traditional, court-centric view of the CJEU of the preliminary reference procedure. It is therefore doubtful that this is what the future holds. Yet, the failure of the highest national courts to comply with their duty under Article 267(3) TFEU does not seem to be the most acute problem for effective judicial protection. The weak link in the ‘complete system of judicial remedies’ lies where lower national courts can discretionarily and without (effective) scrutiny refrain from making use of the preliminary reference procedure.70 The theoretical possibility of forcing a reference by pursuing a case to the highest instance does not change this, partly because of the zealousness and significant resources this requires of the individual and partly as few, if any, national highest courts actually abide by the letter of that obligation and the strictness of the CILFIT criteria.71 Article 52(3) EUCFR, which prescribes consistent interpretation of the Charter where it guarantees rights already protected by the ECHR, could arguably be cited as a basis for also expanding the duty to justify non-referrals to courts covered by Article 267(2) TFEU.72 From the perspective of judicial protection, this expansion appears well-grounded. It is after all in the lower courts that most individual rights 68 CD Classen, ‘Art 101’ in PM Huber and A Voßkuhle (eds), Grundgesetz: Kommentar (CH Beck, 2018) 33. 69 See, eg Klamert (n 28); Austrian Constitutional Court, VfSgl 2536/1953. 70 See about the lack of remedies for non-referrals Krommendijk (n 22) 57, the author, however, appears to focus on courts falling within the scope of Art 267(3) TFEU. The few remedies available against those courts are largely inapplicable where Art 267(2) TFEU applies. Krommendijk argues in favour of establishing a duty to reason refusals to refer on the basis of (inter alia) Art 47 EUCFR. This appears to be a logical consequence of the ECtHR case law discussed above. However, it can be noted that the Swedish courts of last resort have been legally required to give reasons for non-referrals since 2007 and this was largely dismissed as ineffective because of the practice of the courts of using brief, standard clauses without references to the circumstances of the individual case; See M Johansson and S Ahmed, ‘De högsta domstolsinstansernas motiveringsskyldighet vid beslut att inte inhämta förhandsavgörande från EG-domstolen – en papperstiger?’ (2009) 27 Europarättslig tidskrift 783; While the Swedish experience is not necessarily representative of how a duty to give reasons would be received throughout the EU, it certainly raises questions as to the effectiveness of the solution. 71 See for a particularly candid discussion of this problem, M Bobek, ‘Institutional Report: National Courts and the Enforcement of EU Law’ in Botmann and Langer (n 28) 89; See also R van Gestel and J De Poorter, In the Court We Trust: Cooperation, Coordination and Collaboration between the ECJ and Supreme Administrative Courts (Cambridge University Press, 2019) 110; The CJEU confirmed the restrictiveness of CILFIT in Consorzio Italian Management, rejecting AG Bobek’s proposal for a relaxation of the Art 237(3) TFEU exceptions, see Case C-561/19 Consorzio Italian Management EU:C:2021:291, Opinion of AG Bobek, paras 131–180. It is however doubtful whether this reaffirmation will inspire greater loyalty among national high courts. 72 See eg Case C-386/10 P Chalkor v Commission EU:C:2011:815, para 51; Case C-295/12 P Telefónica and Telefónica de España v Commission EU:C:2014:2062, para 40; C Lacchi, ‘Multilevel Judicial Protection in the EU and Preliminary References’ (2016) 53 Common Market Law Review 702.

56 Anna Wallerman Ghavanini and Clara Rauchegger are pursued, and it is naturally beneficial for all parties involved that relief is granted sooner – in the lower courts – rather than later and after lengthy and costly proceedings. ECtHR case law in this regard also appears to be compatible with the discretion granted to lower courts under Article 267(2) TFEU; that discretion is not diminished by a requirement to explain how it is exercised, and indeed a discretion must not be confused with a freedom to act arbitrarily.73 Much might be won in terms of effective judicial protection if Article 47 EUCFR could be relied upon to place a curb on the discretion of national courts.74 Nevertheless, several reasons can be adduced against creating a fully-fledged right of access to the CJEU through the preliminary reference procedure.75 First, such a right would be complicated to realise. Would the party requesting the preliminary reference then also be responsible for drafting the questions? If so, this appears to have a significant impact on the level playing field between the parties in the procedure before the CJEU; but if not, the right would seem to lose much of its value if the national court were then free to formulate questions that may significantly deviate from what the requesting party wished to achieve by the reference. Secondly, it would threaten to flood the CJEU with preliminary references – and the case load is already recognised as one of the most pressing problems the Court faces.76 Thirdly, an unscrupulous litigant could use their right to have the case referred to the CJEU, and thereby delayed by an average of 16 months (plus the time spent before the national court composing and processing the request), to blackmail their opponent into an unfavourable settlement or to simply obstruct progress of the proceedings. These reservations entail that, if the preliminary reference procedure were indeed to be understood as a part of the effective judicial protection guaranteed under Article 47 EUCFR, that right should be considered to arise only under certain circumstances – the most obvious one being that EU law is applicable and its meaning at least to some extent unclear – and should be weighed against the opposing party’s rights to a fair trial concluded within reasonable time.77

IV. Enhancing Judicial Protection Through Empowered National Courts The previous section explored how reliance on Article 47 EUCFR may strengthen individuals’ judicial protection within the preliminary reference procedure. In this section, we turn the tables and examine instead how the preliminary reference procedure has 73 A Barak, ‘The Nature of Judicial Discretion and Its Significance for the Administration of Justice’ in O Wiklund (ed), Judicial Discretion in European Perspective (Kluwer Law International, 2003) 15; See however C Lacchi, ‘The ECtHR’s Interference in the Dialogue between National Courts and the Court of Justice of the EU: Implications for the Preliminary Reference Procedure’ (2015) 8 Review of European Administrative Law 95, 112. 74 Similarly see Lacchi (n 72) 704. 75 See M Broberg and N Fenger, Preliminary References to the European Court of Justice (Oxford University Press, 2014) 282. 76 ibid, 22; van Gestel and De Poorter (n 71) 50. 77 This is well in line with the non-absolute nature of most elements of Art 47 EUCFR, A Ward, ‘Article 47’ in Peers et al (n 67).

Effective Judicial Protection before National Courts 57 been utilised by national courts to enhance effective judicial protection of EU-derived rights in the Member States. We will demonstrate that ordinary courts have been successful in mobilising the CJEU in order to give concrete effect to Article 47 EUCFR. According to the theory of judicial empowerment, national courts act in such a way as to maximise their own powers.78 From this perspective, the preliminary reference procedure is a win-win situation – or indeed, win-win-win-win: first, the case itself is initiated by private parties, who act in defence of their own interests. Secondly, the reference is made by a national court, which, especially if it is a lower court, thereby elevates itself to a more consequential position in the EU judiciary. This was most famously formulated by Alter as the inter-court competition theory, which holds that lower courts have more to gain in the preliminary reference procedure as it offers them a chance to defy or circumvent their superiors in the national judicial hierarchy, whereas higher courts which already occupy a position of authority would be more reluctant to subordinate themselves to the CJEU.79 However, even courts at the highest echelons of national judiciaries can use the procedure for empowerment vis-à-vis the national legislatures. Thirdly, judicial empowerment goes both ways; the CJEU is itself empowered by the references from national courts, which have provided it with the questions that formed the basis for some of its boldest rulings.80 Fourthly and finally, the Union as a whole is bolstered by the procedure, as the design of the preliminary reference procedure entails that EU law is enforced against individuals and the Member States themselves through the national courts, which have at their disposal the full legitimacy of the national judiciary and the force of the national executive authorities.81 This ‘ingenious’82 design, in which nobody loses except the Member State flouting its EU legal obligations (and the unfortunate individuals who rely on it), has also been at work in the service of the principle of effective judicial protection, where Article 47 EUCFR has provided an additional weapon in the arsenal of both the national courts and the CJEU. Perhaps most common in practice are challenges against national legislation83

78 AM Burley and W Mattli, ‘Europe Before the Court: A Political Theory of Legal Integration’ (1993) 47 International Organization 41; JHH Weiler, ‘The Transformation of Europe’ (1991) 100 The Yale Law Journal 2403; W Mattli and AM Slaughter, ‘The Role of National Courts in the Process of European Integration: Accounting for Judicial Preferences and Constraints’ in AM Slaughter, A Sweet and JH Weiler (eds), The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in its Social Context (Hart Publishing, 1998). 79 K Alter, ‘Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration’ in AM Slaughter, A Sweet and JH Weiler (eds), The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in its Social Context (Hart Publishing, 1998) 227; K Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford University Press, 2003). 80 MA Pollack, The Engines of European Integration: Delegation, Agency, and Agenda Setting in the EU (Oxford University Press, 2005) 178; G Davies, ‘Activism Relocated: The Self-restraint of the European Court of Justice in its National Context’ (2012) 19 Journal of European Public Policy 76, 88; JA Mayoral, ‘In the CJEU Judges Trust: A New Approach in the Judicial Construction of Europe’ (2017) 55 Journal of Common Market Studies 551, 552. 81 GF Mancini, ‘The Making of a Constitution for Europe’ (1989) 57 Common Market Law Review 595, 597; JH Weiler, ‘A Quiet Revolution: The European Court of Justice and its Interlocutors’ (1994) 26 Comparative Political Studies 510, 518–520; Alter 1998 (n 79) 228. 82 JH Weiler, ‘The Political and Legal Culture of European Integration: An Exploratory Essay’ (2011) 9 International Journal of Constitutional Law 678, 690. 83 See, eg Joined Cases C-154/15, C-307/15 and C-308/15 Gutiérrez Naranjo EU:C:2016:980.

58 Anna Wallerman Ghavanini and Clara Rauchegger that insufficiently protects, or even hinders the enforcement of EU legal rights. The right to an effective remedy, inherent in Article 47 EUCFR, has been particularly important in these developments. We will examine two examples from the case law of the Court, illustrating how national courts utilise the preliminary reference procedure to improve judicial protection in the Member States. First, an unusually clear example of this is Sánchez Morcillo and Abril García, which arose in the aftermath of the financial crisis and concerned a dispute on the fairness of mortgage agreement terms in a consumer contract.84 In the order for reference, the referring court observed – under the pointed heading ‘The inadequate adaptation to EU law and CJEU criteria’ – that national legislation had been recently amended in an effort to accommodate a prior CJEU ruling, but that the crucial provision for the case at hand had not been revised in that reform. It went on to argue that the provision in question was incompatible with inter alia Article 47 EUCFR.85 The referring court thus took an explicit position on the incompatibility of national with EU law,86 and it did so in concrete terms, referring to specific national provisions. The Court of Justice readily followed suit and ruled – on the basis of a reasoning that echoed the concerns raised by the referring court and a close examination of the national legislation at issue – the provision in question to be precluded by Article 47 EUCFR. A second example is provided by the 2021 ruling in Braathens Regional Aviation, which was referred by the Supreme Court of Sweden and concerned the question of whether sanctions for discrimination must include explicit recognition that the individual had indeed been discriminated against. When contrasted with Sánchez Morcillo and Abril García, the case illustrates how the preliminary reference procedure may contribute to strengthen the impact of Article 47 EUCFR under very different circumstances. It is well established, although it has never been conclusively explained, that referral patterns differ significantly between Member States, both in the number of cases referred and in the behaviours of the courts when referring.87 In this regard, the Spanish courts appear to have been more than averagely eager to turn to the CJEU for support against national authorities both inside and outside the judiciary,88 whereas the Swedish courts are infamous for their reluctance to refer and known for their loyalty towards the (national) legislature.89 The referring courts in the two cases were thus at opposing ends of the Union not only geographically but also culturally. This is visible in the order for reference in Braathens Regional Aviation, which is significantly less argumentative than

84 Case C-169/14 Sánchez Morcillo und Abril García EU:C:2014:2099. 85 Order for reference of 2 April 2014 by Audencia provincial de Castellón in Case C–169/14 Sanchez Morcillo and Abril Garcia EU:C:2014:2099, paras 13–15. 86 Previous research shows that courts take positions on only about 30 per cent of the questions they refer, and of those positions only about half are put in the bold and unambiguous terms employed by the Audencia provincial de Castellón; See A Wallerman, ‘Can Two Walk Together, Except they be Agreed? Preliminary References and (the Erosion of) National Procedural Autonomy’ (2019) 44 European Law Review 159, 165. 87 See Broberg and Fenger (n 75) 35. 88 R Romeu, ‘Law and Politics in the Application of EU Law: Spanish Courts and the ECJ 1986–2000’ (2006) 43 Common Market Law Review 395, 415. 89 M Wind, ‘The Nordics, the EU and the Reluctance Towards Supranational Judicial Review’ (2010) 48 Journal of Common Market Studies 1039; U Bernitz, ‘Preliminary References and Swedish Courts: What Explains the Continuing Restrictive Attitude?’ in P Cardonnel, R Allan and N Wahl (eds), Constitutionalising the EU Judicial System: Essays in Honour of Pernilla Lindh (Hart Publishing, 2012) 177.

Effective Judicial Protection before National Courts 59 that in Sánchez Morcillo and Abril García and did not contain the view of the referring court on possible outcomes. Nevertheless, the referring court did observe, at the request of the applicant in the national proceedings, that the relevant Union provisions ought to be interpreted in the light of Article 47 EUCFR, which subsequently became decisive for the conclusion of the Court.90 This brief discussion demonstrates the concrete and powerful effects that the preliminary reference procedure is capable of having in securing effective judicial protection in the Member States. However, the realisation of this potential requires national courts to be willing to refer cases to the CJEU. Despite the established narrative of the preliminary reference procedure as a success story of the collaboration between national courts and the CJEU, preliminary references remain a rare occurrence in the Member State courts.91 Furthermore, recent research has shown a shift in the reference patterns within judiciaries, with highest level courts being responsible for an increasing proportion of preliminary references, and the CJEU reinforcing this development by more often responding by reasoned order or not at all to references from lower courts.92 While this development might herald a new willingness on the part of highest courts to constructively make use of the preliminary reference procedure to secure the correct and effective enforcement of EU law, it also contributes to moving access to the CJEU even further away from individuals.

V. Conclusions Although the preliminary reference procedure has been described as a ‘citizen’s infringement procedure’,93 litigants have no influence as a matter of right on whether, when or how a preliminary ruling is requested. They need to rely on the good will of national judges. The ruling of the CJEU in the seminal Köbler case had suggested that the Article 267(3) TFEU duty of national courts of last instance to refer to the CJEU served to uphold individual procedural rights. However, this chapter has demonstrated that the CJEU did not follow up on this potential link between the preliminary reference procedure and the principle of effective judicial protection in subsequent case law, even after Article 47 EUCFR acquired binding force and gained a prominent role in CJEU

90 The function of Art 47 EUCFR in this case is examined more closely in A Wallerman Ghavanini, ‘Remedies for Non-Material Damages: Striking Out in a New Direction? Braathens’ (2022) 59 Common Market Law Review 151. 91 See A Wallerman, ‘Who is the National Judge? A Typology of Judicial Attitudes and Behaviours regarding Preliminary References’, and M Glavina, ‘Reluctance to Participate in the Preliminary Ruling Procedure as a Challenge to EU Law: A Case Study on Slovenia and Croatia’ in C Rauchegger and A Wallerman (eds), The Eurosceptic Challenge: National Implementation and Interpretation of EU Law (Hart Publishing, 2019). 92 A Dyevre, M Glavina and A Antanasova, ‘Who Refers Most? Institutional Incentives and Judicial Participation in the Preliminary Ruling System’ (2020) 27 Journal of European Public Policy 912; T Pavone and RD Kelemen, ‘The Evolving Judicial Politics of European Integration: The European Court of Justice and National Courts Revisited’ (2019) 25 European Law Journal 352. 93 B De Witte, ‘The Preliminary Ruling Dialogue: Three Types of Questions Posed by National Courts’ in B De Witte, JA Mayoral and U Jaremba (eds), National Courts and EU Law: New Issues, Theories and Methods (Edward Elgar Publishing, 2016) 17.

60 Anna Wallerman Ghavanini and Clara Rauchegger case law. Under the current state of EU law, Article 47 EUCFR does not convey an individual right to obtain a preliminary ruling. Nevertheless, it has also been shown in this chapter that the preliminary reference procedure fulfils an important function in ensuring effective judicial protection in the Member States. The procedure has offered ordinary courts a way of improving judicial protection nationally by pleading to the CJEU against the more restrictive stances taken by national legislatures and highest courts. While not offering individuals rights-based access to the CJEU, it has enfranchised national judiciaries to strengthen the access to judicial protection nationally. Moreover, the CJEU’s explicit linking of Article 47 EUCFR to the preliminary reference procedure in Consorzio Italian Management can be construed as a first step towards formally recognising the contribution of the procedure to the protection of individual procedural rights. It remains to be seen whether the CJEU will construe the duty of national last-instance courts to provide reasons for their refusal to refer as a formal or substantive duty in subsequent cases. It could follow the Croatian and Slovenian Constitutional Courts and demand simply that national courts of last instance provide a statement of reason for their decision not to refer, without an actual assessment of the reasoning in substance. This would transplant the ECtHR’s case law into EU law, but it would not offer much further protection. Alternatively, the CJEU could follow the examples of the Spanish, Czech and Slovak Constitutional Courts and turn the duty to state reasons into a substantive requirement, meaning that the content and quality of the explanations are actually scrutinised. This would entail better protection of individual rights in the context of the preliminary ruling procedure. The CJEU, in future case law, might even go further than national constitutional courts in connecting the right to effective judicial protection to the preliminary reference procedure, for example by extending the right to reasons to lower national courts. This would close an important gap in the ‘complete system of judicial remedies’. The strongest possible coupling of Article 267 TFEU and Article 47 EUCFR would, however, be one that prescribed not only a right to reasons for refusals to refer to the CJEU, but a right to actually obtain a reference. As this chapter has shown, the Austrian and German Constitutional Courts have developed such a right for individuals. However, this chapter has observed that the right to the lawful judge lacks a direct equivalent in the EU legal order, making a transplant of this case law unlikely. The chapter has also cautioned that the overall workload of the CJEU as well as countervailing interests of opposing parties to the dispute should be considered. The CJEU needs to balance these rights and interests when developing individual rights in relation to the preliminary reference procedure. For the time being, an expansion of the newly established right to a reasoned decision seems the most appropriate direction.

4 The EU Right to an Independent Judge: How Much Consensus Across the EU? MICHAŁ KRAJEWSKI*

Seen by many as an indispensable rescue tool for domestic judicial independence in several EU countries, the CJEU case law and concepts based on Article 19 TEU and Article 47 of the Charter of Fundamental Rights must also accommodate pluralist constitutional and legal arrangements regarding the judiciary across the EU. The chapter examines the extent to which the CJEU’s approach is protective of the variety of mechanisms for judicial tenure and accountability, appointments and status, administration and governance. This approach is inspired by strong constitutional consensus regarding the protection of judicial tenure and irremovability while respecting different national traditions regarding judicial appointments through the doctrine of the ‘appearance of independence’, apt for decentralized application by national courts. At the same time, the CJEU expresses caution about contesting domestic judicial administration and governance models. Although representing a balance between the need to protect domestic judicial independence and pluralist domestic traditions, the CJEU’s approach encounters obstacles at the stage of domestic enforcement posed by constitutional courts and political pressure on rank-and-file judges.

I. Introduction Recent Court of Justice case law relating to Article 47 of the EU Charter of Fundamental Rights and Articles 2 and 19 TEU has been acclaimed by legal scholars and commentators, judicial organisations and civil society, especially in Poland, as providing tools for opposing the undermining of judicial independence. These actors continuously place high hopes in EU legal means for fighting off governmental attempts to set up institutional and procedural channels for political control over the judiciary.

* Michał Krajewski is a Postdoctoral Research Fellow at the University of Copenhagen, iCourts Centre of Excellence for International Courts.

62 Michał Krajewski On the one hand, some scholars perceive this case law as ‘the key force to fill in the values’ void’1 and foreseeing an EU ‘constitutional moment’, during which the essential constitutional characteristics of the EU as a polity committed to judicial independence and the rule of law will be hammered out.2 It is sometimes argued that such common constitutional standards imply the maximum insulation of the judiciary from the political institutions. As claimed by Wind, ‘the government and those who answer to it cannot (and should not) be directly involved in the appointment of judges or in determining the length of their contracts, the timing of their promotions, their retirement age or any other issues through which their impartiality might be threatened’.3 Moreover, the EU institutions are persistently called on to enforce common EU values upon backsliding Member States, especially Poland and Hungary.4 This approach is rooted in the conception of the EU as a ‘militant democracy’, which must steer the national conflict and protect liberal democracy through ‘flanking institutions’ such as constitutional courts, including the CJEU.5 On the other hand, it is argued that this evolving case law should not undermine European constitutional pluralism. Von Bogdandy argues that ‘the diversity of Member State constitutions, which is protected by Union law, is enormous. It comprises states with strong, weak or no constitutional courts, markedly different ways of organising judicial independence, and considerably divergent protections of fundamental rights …’.6 According to this argument, EU institutions – including the CJEU – should aim at indicating the ‘red lines’ of the rule of law rather than developing an overall structure for the judicial system irrespective of national constitutional traditions.7 Admittedly, the CJEU legal mandate to specify the requirements of judicial independence rests on strong functionalist8 and historical9 arguments. However, binding normative sources 1 D Kochenov, ‘On Barks, Bites, and Promises’ in U Belavusau and A Gliszczyńska-Grabias (eds), Constitutionalism under Stress (Oxford University Press, 2020) 151. 2 A von Bogdandy et al, ‘A Potential Constitutional Moment for the European Rule of Law: The Importance of Red Lines’ in A von Bogdandy (ed), Defending Checks and Balances in EU Member States: Taking Stock of Europe’s Actions (Springer, 2021). 3 M Wind, The Tribalization of Europe: A Defence of Our Liberal Values (Polity, 2020) 87. 4 K Scheppele, D Kochenov, and B Grabowska-Moroz, ‘EU Values Are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union’ (2021) 39 Yearbook of European Law 3. 5 M Dawson, ‘How Can EU Law Respond to Populism’ (2020) 48 Oxford Journal of Legal Studies 183, 208. 6 A von Bogdandy, ‘Towards a Tyranny of Values? Principles on Defending Checks and Balances in EU Member States’ in A von Bogdandy et al (eds), Defending Checks and Balances in EU Member States (Springer, 2020) 91. 7 ibid, 92. 8 The enforcement of EU law has always rested on the cooperation between the CJEU and independent national courts to strike down incompatible national laws and this paradigm has never been questioned within the multiple Treaty changes; See also S Menzione, ‘Anything New under the Sun? An Exercise in Defence of the Reasoning of the CJEU in the ASJP Case’ (2019) 12 Review of European Administrative Law 219. 9 The second sentence of Article 19 TEU was added in the Lisbon Treaty specifically to highlight the duty of the Member States to ensure access to effective legal protection mechanisms (implying, by definition, independent national courts) in the fields of EU law in which the CJEU lacked direct jurisdiction; Case C-896/19 Repubblika EU:C:2020:1055, Opinion of AG Hogan, para 40; A von Bogdandy and L Spieker, ‘Countering the Judicial Silencing of Critics: Article 2 TEU Values, Reverse Solange, and the Responsibilities of National Judges’ (2019) 15 European Constitutional Law Review 391, 415; M Krajewski, ‘Who is Afraid of the European Council? The Court of Justice’s Cautious Approach to Independence of Domestic Judges’ (2018) 14 European Constitutional Law Review 792, 808.

The EU Right to an Independent Judge 63 on which the CJEU can rely in this regard are scant and open-ended.10 An attempt by the CJEU to indicate sharply defined institutional standards of judicial independence might clash with national conceptions and traditions, involving a risk for its authority in the long run.11 This chapter confronts existing CJEU case law relating to national judicial independence with these normative stances. It argues that the approach of the CJEU can be interpreted as demonstrating sensitivity to variegated judicial models across Europe rather than endorsing clear-cut institutional solutions.12 On the one hand, the CJEU definitively ruled out arbitrary interference with judicial tenure and political influence on disciplinary action against judges. The institutional protection of judicial decisionmaking from illicit external pressure finds strong recognition in the case law of the European Court of Human Rights (the ‘ECtHR’) and the laws of EU Member States. On the other hand, the CJEU approached with caution questions relating to the system for judicial appointments and judicial organisation brought within the preliminary reference procedure. It confined itself to providing national courts with detailed guidance and entrusted them with performing a holistic and contextual analysis of contested national measures considering local perceptions of judicial independence. This caution is justified as, despite common trends, the national constitutional traditions in Europe still vary in these areas. Section II discusses the EU procedural and constitutional framework, which structures the reasoning of the CJEU regarding judicial independence. Section III outlines the degree of constitutional consensus and diversity among the EU Member States regarding judicial tenure and irremovability, appointments and organisation. Subsequently, it analyses the existing CJEU case law in this light. It relies on case law of the ECtHR and comparative data from legal literature and the EU Justice Scoreboard regarding the mechanisms of the EU Member States for the structural independence of the judiciary (the judicial appointment systems, the disciplinary regime etc).13 Section IV presents conclusions.

10 Such as the concept of ‘effective legal protection’ from Art 19(1) TEU or an ‘independent and impartial tribunal’ from Art 47 EUCFR. 11 Dawson (n 5) 211; M Bonelli, ‘Infringement actions 2.0: How to protect EU values before the Court of Justice’ (2022) 18 European Constitutional Law Review 30. 12 It has been argued that in the past the EU institutions used to promote such clear-cut solutions regarding judicial councils with mixed results; See M Bobek and D Kosař, ‘Global solutions, local damages: a critical study in judicial councils in Central and Eastern Europe’ (2014) 15 German Law Journal 1257. 13 The data were collected through a questionnaire drawn up by the Commission in association with the European Network of the Councils for the Judiciary and the Network for the Presidents of the Supreme Judicial Courts, filled in by independent national judicial councils or court administrations. The completed questionnaires were also consulted (available at https://www.encj.eu/articles/100; the updated questionnaires obtained through the access to documents request JUST C1/GG/lnt/5669115, on file with the author). The questions related to the organisation of the judiciary through the constitutional and infra-constitutional provisions alike. As assumed by the ECtHR, the practice of European States, including the content of their legislation, reflect their common values, which is why the ECtHR refers to the laws of Member States to interpret open-ended ECHR provisions; See also D Peat, Comparative Reasoning in International Courts and Tribunals (Cambridge University Press, 2019) 143.

64 Michał Krajewski

II. The Mandate of the Court of Justice A. Constitutional Sources: Article 19 TEU and Article 47 of the EU Charter Recently, the CJEU has engaged with the standards of judicial independence under Article 47 of the EU Charter of Fundamental Rights (the subjective right to an effective remedy and a fair trial before an independent and impartial tribunal previously established by law) and Article 19 TEU (the objective principle of effective legal protection by the Member States in matters covered by EU law).14 The CJEU links these provisions to Article 2 TEU, but it remains uncertain whether this provision implies any additional normative standards. Previously, it also assessed the independence of various court-like bodies responsible for the authoritative application of EU law at the national level to identify appropriate interlocutors within the Article 267 TFEU preliminary reference procedure. However, several advocates general have recently pointed out and encouraged a more flexible approach to the admissibility condition of ‘judicial independence’ under Article 267 TFEU.15 An important argument in the context of the undermining of judicial independence in several EU Member States was not to cut off judges whose independence is under attack from the judicial dialogue with the CJEU, even if it meant accepting preliminary references from judges whose appointment might be irregular.16 It is now established that Article 47 of the EU Charter and Article 19 TEU express the same normative standards. The case law developed under Article 47 of the Charter is relevant while interpreting the standards of Article 19 TEU and vice versa. Most of the existing case law of the CJEU concentrates on the concept of the ‘independence’ of the tribunal. Another concept enshrined in this provision, namely that of a tribunal ‘established by law’, may serve, among other things,17 to assess domestic law breaches in judicial appointment processes. Judges must be appointed following the applicable domestic law so as not to raise doubts about their independence. However, a supranational court applying the criterion in question may need to base its assessment on a prior authoritative statement of a domestic breach of law by a domestic court.18 14 The CJEU sees Art 19 TEU as giving a concrete expression to the ‘value’ of the rule of law from Art 2 TEU; Most recently, see Case C-791/19 Commission v Poland EU:C:2021:596. 15 Case C-58/13 Torresi EU:C:2014:265, Opinion of AG Wahl; Joined Cases C-585/18, C-624/18 and C-625/18 AK EU:C:2019:551, Opinion of AG Tanchev, para 111; Case C-132/12 Getin Noble Bank EU:C:2021:557, Opinion of AG Bobek, paras 69–74, relating to the criterion of ‘established by law’ with consequences for that of ‘independence’; Case C-274/14 Banco de Santander EU:C:2020:17, the CJEU clarified that the notions of a ‘court of tribunal’ under Art 267 TFEU and ‘tribunal’ under Art 47 EUCFR are in principle equivalent. 16 Extensively on this argument, see C Reyns, ‘Saving Judicial Independence: A Threat to the Preliminary Ruling Mechanism?’ (2021) 17 European Constitutional Law Review 26; See also T Niedernhuber, ‘How Much Independence is Necessary to Issue a European Arrest Warrant?’ (2020) 10 European Criminal Law Review 5. 17 It also applies to the legal basis of the very existence of the tribunal and the rules governing the composition of the bench; See the Judgment of the European Court of Human Rights of 1 December 2020 in Case No 26374/18 Ástráðsson v Iceland, paras 223–228. 18 The ECtHR considers that the breach of domestic law must be ‘manifest’ and must undermine the purpose of the ‘established by law’ criterion, ie the protection of judicial authorities against undue influences; In Case 26374/18, Ástráðsson v Iceland relating to the status of a new Icelandic appellate judges, the ECtHR could rely on the judgments of the Icelandic Supreme Court; See also the Judgment of the European

The EU Right to an Independent Judge 65 In principle, a supranational court itself has no competence to settle domestic law issues.19 In the Polish cases before the CJEU relating to judicial appointments to the Supreme Court after 2018, an authoritative domestic statement of constitutional violations was not yet available.20 Hence, the CJEU was called on to apply the criterion of ‘independence’ in these cases.21 However, an authoritative assessment was later provided by the Polish Supreme Court as a result of implementing the preliminary rulings of the CJEU. Recently, this assessment led the ECtHR to finding a violation of the ‘established by law’ criterion by the new chambers of the Supreme Court.22 Although expressing the same substantive requirements, Articles 47 of the Charter and 19 TEU have a different scope of application. The former applies, along with another EU legal provision, most often before national courts in individual cases.23 The latter expresses a general duty of the Member States and may be invoked by the Commission in infringement proceedings relating to deficiencies in national judicial systems.24 Also, national judges successfully invoked Article 19 TEU before domestic courts, bringing about preliminary references about interference in judicial remuneration. The crucial factor was that the applicant-judges had jurisdiction over potential EU-law cases.25 Likewise, the CJEU let unsuccessful candidates to high judicial offices invoke Article 19 TEU and demand the judicial review of a potentially unlawful appointment procedure.26 Most recently, the CJEU expanded the application of Article 19 TEU in other preliminary rulings addressing systemic deficiencies of the national judicial systems.27 Nonetheless, to limit the influx of cases, AG Bobek recently suggested relying within the preliminary reference procedure on the ‘standard’ solution offered by the essentially more precise Article 47 of the Charter coupled with other specific provisions of EU law. Article 19 TEU would be saved for exceptional cases. In this AG’s view, national judges might otherwise be encouraged to pose a seemingly endless list of questions, unrelated to the main cases, regarding the desired level of judicial self-governance, remuneration, Court of Human Rights of 7 May 2021 in Case No 4907/18 Xero Flor v Poland, the ECtHR noted a series of judgments by the Polish Constitutional Tribunal relating to the unconstitutionality of some appointments to that Tribunal. 19 The ECtHR may depart from a domestic court assessment if the breach is ‘flagrant’; see the Judgment of the European Court of Human Rights of 12 January 2016 in Case No 57774/13 Miracle Europe v Hungary, paras 50 and 65–66. 20 Quite to the contrary, the unlawfully composed Constitutional Tribunal declared the new system of judicial appointments compliant with the Constitution. See the Judgment of the Polish Constitutional Tribunal of 25 March 2019 in Case K 12/18. 21 On the contrary, the EU Courts autonomously applied the ‘established by law’ criterion to assess their own members’ status; See Joined Cases C-542/18 RX-II and C-543/18 RX-II Simpson v Council EU:C:2020:232. 22 See Judgment of the European Court of Human Rights of 22 July 2021 in Case No 43447/19 Reczkowicz; See also the Judgment of the European Court of Human Rights of 8 November 2011 in Case No 49868/19 and 57511/19 Dolińska-Ficek and Ozimek v Poland. 23 Art 51(1) EUCFR. 24 Case C-192/18 Commission v Poland EU:C:2019:529, Opinion of AG Tanchev, para 115. 25 Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117; Case C-49/18 Vindel v Ministerio de Justicia EU:C:2019:106. 26 Case C-824/18 AB and Others EU:C:2021:153. 27 Joined Cases C-748/19 to C-754/19 Prokuratura Rejonowa w Mińsku Mazowieckim EU:C:2021:931, paras 59–64; Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19 Asociaţia ‘Forumul Judecătorilor din România’ EU:C:2021:393, paras 188ff (against AG Bobek’s o pinion); See also Case C-192/18 Commission v Poland EU:C:2019:529, Opinion of AG Tanchev, para 115, also suggested reserving Art 19(1) TEU for cases of systemic deficiencies.

66 Michał Krajewski case allocation and the like. In theory, all these issues could interfere with judicial independence.28 The wide applicability of Article 19 TEU does not change the admissibility criteria of preliminary references under Article 267 TFEU. National courts may still ask about Article 19 TEU only if the main proceedings involve the application of EU law provisions and if the answer sought from the CJEU could impact the resolution of the case (the substantive outcome or the judicial procedure to be followed29). In Miasto Łowicz, national judges asked about the lawfulness of disciplinary action to which they could be subjected for the substance of their judicial decisions. However, the main cases did not involve any EU provisions. Neither could the judges explain what the answer of the CJEU could change in the resolution of the case.30 In another case involving EU provisions on the rights of the accused in criminal proceedings, a Hungarian judge questioned the manner of appointing court presidents and rules for judicial remuneration, but the CJEU held that the answer would not have an impact on the resolution of the main case either.31 On the contrary, in Prokuratura Rejonowa w Mińsku Mazowieckim, a case involving the application of EU provisions harmonising criminal proceedings, a judge chairing the court panel questioned the status of another panel member. The latter was temporarily delegated to that court by the Minister of Justice. More generally, the chair challenged the discretionary and unlimited competence of the Minister of Justice to temporarily delegate judges to understaffed courts and withdraw such delegations at any time. In the absence of adequate safeguards, the independence of such judges could be impaired. AG Bobek found this question admissible as the answer of the CJEU could lead to the chair’s specific actions. The chair could avail themselves of specific legal mechanisms to modify the composition of the panel.32 The CJEU was less explicit on this point, but it found the reference admissible based on the presumption of relevance generally applied to the preliminary references.33

B. Legal Avenues and Different Problems The legal avenue undoubtedly affects how the CJEU engages with judicial independence. In the infringement procedure, the CJEU is to make definite pronouncements on the breaches of EU law by the Member States. In the preliminary reference procedure, the CJEU assists national courts in interpreting and drawing adequate conclusions from EU law. The Commission enjoys full discretion with regard to bringing infringement

28 Joined Cases C-83/19, C-127/19, C-195/19, C-291/19 and C-355/19 Asociaţia ‘Forumul Judecătorilor din România’ v Inspecţia Judiciară EU:C:2020:746, Opinion of AG Bobek, paras 222–223. 29 Case C-283/09 Weryński EU:C:2011:85. 30 Case C-558/18 and C-563/18 Miasto Łowicz EU:C:2020:234, paras 48–49. 31 Case C-564/19 IS EU:C:2021:949, paras 139–147. 32 Joined Cases C-748/19, C-754/19 Prokuratura Rejonowa w Mińsku Mazowieckim, Opinion of AG Bobek, ECLI:EU:C:2021:403, para 88; A similar question on the secondment of judges to ministries of justice (back and forth) is raised by a German court in Case C-276/20 B (pending). 33 Prokuratura Rejonowa w Mińsku Mazowieckim (n 27), paras 49–52.

The EU Right to an Independent Judge 67 actions before the CJEU. In fact, it has been criticised for the too infrequent use of the infringement procedure faced with the undermining of judicial independence in a few Member States.34 The preliminary reference procedure may constitute a substitute legal avenue for the CJEU to address EU law violations. However, the bolder moves of the CJEU in infringement cases contrast with the ‘meek’35 or ‘timid’36 approach in the preliminary reference procedure. In the infringement cases concerning a mandatory lowering of the retirement age of Polish judges, the CJEU autonomously scrutinised the contested measures for their lack of objective justification and for granting fully discretionary powers with regard to the judicial status to the executive. Likewise, in the infringement case concerning the new disciplinary regime for judges in Poland, it pointed out the insufficient appearance of independence by the Disciplinary Chamber of the Supreme Court, the absence of legal safeguards for the first-instance disciplinary courts, and the discretionary powers of disciplinary officers supervised by the executive.37 As will be argued further below, there is a broad consensus in Europe regarding the mechanisms for protecting judges against external influence through tenure, irremovability and strong fair trial safeguards in case of disciplinary action, which may also be the reason why the Commission decided to bring these specific cases before the CJEU. On the contrary, in several preliminary reference cases submitted by courts from a few jurisdictions, the CJEU opted for a more restrained approach. These cases concerned, among other things, the reformed systems for judicial appointments enlarging the scope for political influences38 and the setting-up of a designated prosecution unit for investigating offences committed by judges.39 In these cases, the CJEU instructed the referring courts to carry out a context-sensitive and holistic analysis of relevant legal and factual considerations affecting the rational perception of the relevant mechanisms as interfering with judicial independence. The ultimate conclusions from this analysis were to be drawn by the domestic courts.40 The CJEU justified this move with the formal distinction between the interpretation and application of EU law, which is considered by many to be as untenable as it is blurred in the practice of the CJEU.41 As argued by Tridimas, the CJEU in fact enjoys considerable leeway in determining the level of specificity of preliminary rulings. The CJEU may

34 Scheppele, Kochenov and Grabowska-Moroz (n 4). 35 M Leloup, ‘An Uncertain First Step in the Field of Judicial Self-government’ (2020) 16 European Constitutional Law Review 145. 36 S Platon, ‘Preliminary references and rule of law: Another case of mixed signals from the Court of Justice regarding the independence of national courts: Miasto Łowicz’ (2020) 57 Common Market Law Review 1843, 1865–1866. 37 Commission v Poland (n 14). 38 Joined Cases C-585/18, C-624/18 and C-625/18 AK EU:C:2019:982, paras 117ff; A.B. (n 26); In Case C-896/19 Repubblika EU:C:2021:311, the referring court questioned the residual scope of political discretion in judicial appointments even though this scope had been reduced. 39 Asociaţia ‘Forumul Judecătorilor din România’ (n 27). 40 See also AK v Sąd Najwyższy (n 38), paras 117ff. 41 K Lenaerts, ‘Form and Substance of the Preliminary Ruling Procedure’ in D Curtin and T Heukels (eds), Institutional Dynamics of European Integration Essays in Honour of Henry G Schermers (Kluwer, 1994); M Broberg and N Fenger, ‘Preliminary References’ in R Schütze and T Tridimas (eds), Oxford Principles of European Union Law (Oxford University Press, 2018) 981, 1007.

68 Michał Krajewski give an answer so specific that it provides the referring court with a ready-made solution (outcome cases). Alternatively, it may only provide interpretive guidelines as to how to resolve the case (guidance cases). Finally, it may deliver a very general interpretation of the EU provisions at issue, leaving the national court with discretion as to the interpretation and application of these provisions (deference cases).42 Therefore, the nature of the preliminary reference procedure cannot fully explain the CJEU’s caution in this procedure and its opting for guidance rather than outcome cases. An additional explanation may lie in the absence of a solid consensus across the EU regarding the manner of judicial appointments or institutions that should pursue disciplinary action against judges. In particular, the CJEU has reached for a contextual and argumentative ‘appearance of independence’ test, which requires thorough knowledge and understanding of the local legal standards, perceptions and factual circumstances to persuasively assess and justify why a specific element of the judicial system does not objectively appear as conducive to judicial independence in the eyes of rational citizens. Such a test should ideally be performed by an interpreter from within the local system, such as the supreme court, only relying on the guidance of the CJEU to boost the persuasiveness and legitimacy of the final assessment. The division of tasks between the CJEU and national courts allows the former to create a bridge between the scant EU normative sources on judicial independence and national legal standards and conceptions.43 At the same time, domestic judicial pronouncements resulting from the appearance of independence test might have supported the reasoning of the CJEU in the subsequent infringement cases.44

C. Comparative Reasoning and Risky Transplants The EU constitutional framework, especially Articles 6(3) TEU and 53 of the Charter, requires the CJEU to pay due regard to national constitutional laws while interpreting fundamental rights and general principles. Hence, the degree of legal and constitutional consensus across the EU may steer the concretisation by the CJEU of judicial independence standards. The CJEU has always declared drawing inspiration from the ‘evaluative comparison’ of national laws to fill gaps in the EU legal order.45 In general, references to comparative law allow international courts to identify shared meanings and values or objective interpretive benchmarks, thereby countering charges of subjectivism or arbitrariness in interpreting open-ended legal provisions.46 Comparative reasoning may 42 T Tridimas, ‘Constitutional review of member state action: The Virtues and Vices of an Incomplete Jurisdiction’ (2011) 9 International Journal of Constitutional Law 737. 43 M Krajewski and M Ziółkowski, ‘EU judicial independence decentralized: A.K.’ (2020) 57 Common Market Law Review 1107. 44 Commission v Poland (n 14), paras 104–110; This reasoning essentially repeats the tentative analysis of the CJEU presented in AK as confirmed by the Polish Supreme Court in the Judgment of 5 December 2019 in Case III PO 7/18 (n 38). However, the CJEU did not directly cite the Polish Supreme Court. It had done so in the order for interim measures in Case C-791/19 R Commission v Poland ECLI:EU:C:2020:277, paras 75–76. 45 K Lenaerts and K Gutman, ‘The Comparative Law Method and the Court of Justice of the European Union. Interlocking Legal Orders Revisited’ in M Adenas and D Fairgrieve (eds), Courts and Comparative Law (Oxford University Press, 2015) 141–176, 150–151. 46 Peat (n 13) 177ff.

The EU Right to an Independent Judge 69 help interpret such indeterminate notions as ‘effective legal protection’ or ‘impartial and independent tribunal’. As argued by the current CJEU President writing extra-judicially, the overarching aim underpinning the comparative reasoning of the CJEU is to find a solution that ‘best suits’ the objectives of the Union and which is ‘acceptable’ for the national legal orders. The more convergence there is, the more the CJEU tends to follow the dominant approach. Faced with divergences, it will be cautious in formulating a common solution.47 The comparative law method thus conceived leaves the CJEU judges considerable discretion. It is not ‘scientific’ or geared towards finding the average, most representative or fitting solution, but rather a workable and acceptable one.48 It also allows taking account of dynamic legal and social developments in interpreting indeterminate concepts of EU law.49 Similarly for the ECtHR, consensus often constitutes a primary factor in determining the meaning of open-ended ECHR provisions and the scope of national discretion.50 The difficulty is that the CJEU does not disclose its comparative constitutional inspirations in order not to expose itself to criticism,51 especially considering the methodological challenges related to uncovering the socio-political context of specific legal arrangements and their detailed functioning.52 Therefore, the comparative and empirical research warrants caution in the formulation of common legal standards relating to judicial independence. The judiciaries are related to broader social and political structures. Their operation is determined both by its formal institutional rules and informal features such as the network of social and political influences.53 Crucially, the organisation of the judiciary is relative to the specific conception of its social role, which is determined by a complex matrix of past historical experiences, ideas as to the role of the government and social values.54 Seemingly straightforward transplants of institutional solutions from foreign legal orders or the implants of those promoted by European bodies may not bring about the desired outcomes. Transplants of judicial councils, which currently form the European mainstream, might in some countries of Central and Eastern Europe have inadvertently reinforced the position of court presidents at the expense of the independence of individual rank-and-file judges,55 insulated the judiciary from accountability or, in any case, failed to solve systemic problems with corruption and nepotism.56 Judicial self-governance supported by European institutions might have led to the creation of

47 Lenaerts and Gutman (n 45) 152–153. 48 M Bobek, Comparative Reasoning in European Supreme Courts (Oxford University Press, 2013) 245. 49 K Lenaerts and J A Gutiérrez-Fons, Les méthodes d’interprétation de la Cour de justice de l’Union européenne (Bruylant, 2020) 103. 50 Peat (n 13) 144–145. 51 ibid, 233. 52 ibid, 240. However, the ECtHR has recently become more transparent about its comparative reasoning; See also Peat (n 13) 155. 53 J Bell, Judiciaries within Europe (Cambridge University Press, 2006) 350. 54 ibid, 352. 55 D Kosař, Perils of Judicial Self-Government in Transitional Societies (Cambridge University Press, 2016) 390–405. 56 C Parau, ‘The Drive for Judicial Supremacy’ and Zdenek Kühn, ‘Judicial Administration Reforms’ in Central-Eastern Europe: Lessons to be Learned’ in A Seibert-Fohr (ed), Judicial Independence in Transition (Springer, 2012).

70 Michał Krajewski new channels of politicisation of the judiciary.57 A survey of the European Network of Councils of the Judiciary carried out in 2014–2015 revealed negative views among the judges in some countries on their judicial councils and the influence of the councils on individual judicial independence.58 Also in Western Europe, judicial councils may be taken over by powerful political actors or from within the judiciary and turn out to be unable to tackle systemic problems.59 Empirical studies tend to reject the simplistic view that importing or transplanting certain types of judicial councils is likely to have a decisive impact on the quality of the judiciary.60 Formal legislation usually considered conducive to judicial independence has not necessarily led to a higher level of trust in judicial independence in many European countries.61 In discussing judicial independence, it is worth distinguishing judicial independence as a set of legal mechanisms and as a virtue of office-holders.62 Independence as a virtue would be a normative concept expressed, for instance, in different codes of judicial ethics and norms requiring judges to avoid contact with politicians, engage in political activities or seek instructions. However, the virtue in itself may be conceived of differently to some extent in different countries: as an inherent and personal virtue (in common law countries) or as related to expert knowledge and training (in continental countries), including even prior experience in other branches of government (eg in Sweden), whereas the latter may, to the contrary, raise suspicions in other countries (like, at present, in Poland).63 Independence as a set of mechanisms would relate to formal legal or constitutional arrangements – which also vary across the EU – to secure the virtue and to the judicial appointment, tenure, immunity, financial stability or lack of political accountability. The virtue and a strong culture of judicial independence may be present even without formal mechanisms separating the executive and the judiciary. The approach that the CJEU opted for does not imply that it is always possible to indicate universally accurate mechanisms, optimal for the preservation of the judicial independence virtue regardless of local conditions. The CJEU has traditionally conceived of judicial independence as containing an external aspect (freedom from influence) and an internal one (impartiality towards the parties).64 Faced with more convoluted controversies regarding the design of judicial appointment systems, judges’ 57 D Kosař, ‘Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self-Governance in Europe’ (2018) 19 German Law Journal 1567. 58 European Network of the Councils for the Judiciary, Independence and Accountability of the Judiciary and of the Prosecution – Performance Indicators 2015 – ENCJ Report 2014–2015, 51, available at https://encj.eu/ images/stories/pdf/GA/Hague/encj_report_independence_accountability_2014_2015_adopted_ga.pdf. 59 A Perez, ‘Judicial Self-Government and Judicial Independence: the Political Capture of the General Council of the Judiciary in Spain’ (2018) 19 German Law Journal 1770; P Castillo-Ortiz, ‘Councils of the Judiciary and Judges’ Perceptions of Respect to Their Independence in Europe’ (2017) 9 Hague Journal of the Rule of Law 315. 60 N Garoupa and T Ginsburg, ‘Guarding the Guardians: Judicial Councils and Judicial Independence’ (2008) 57 American Journal of Comparative Law 103. 61 J Gutmann and S Voigt, ‘Judicial Independence in the EU – A Puzzle’ (2017) 49 ILE Working Paper Series 83. 62 With regard to accountability, D Kosar, ‘The least accountable branch’ (2013) 11 International Journal of Constitutional Law 234. 63 M Zamboni, ‘The Positioning of the Supreme Courts in Sweden – A Democratic Oddity?’ (2019) 15 European Constitutional Law Review 668, 689. 64 Case C-403/16 El Hassani EU:C:2017:960, para 40; See also Joined Cases C-924/19 PPU and C-925/19 PPU FMS et al EU:C:2020:367, paras 132ff.

The EU Right to an Independent Judge 71 disciplinary liability and judicial governance, the CJEU needed to further concretise these requirements, referring to the ECtHR case law.65 However, the degree of concretisation has varied depending on the case’s subject matter.

III. Different Aspects of Judicial Independence A. Decision-Making Independence and Judicial Tenure A legally protected judicial tenure and irremovability is the most common way to secure judicial decision-making against external pressure. In particular, according to the ECtHR, disciplinary proceedings against judges must meet all the standards of a fair trial before an independent court. If a non-judicial body issues the first-instance disciplinary decision, the latter must be amenable to comprehensive judicial review.66 According to the comparative data presented by the Commission in the EU Justice Scoreboard, there seems to be considerable consensus across the EU regarding the legal protection of judicial tenure through reserving to judicial councils or courts the decision to dismiss judges on disciplinary grounds, as well as through providing for judicial review. However, political bodies may also be involved in these processes to some degree, whereas the judicial review may not always be sufficiently comprehensive.67 According to the data collected in 2016 (and updated afterwards) in 19 EU Member States, judges could be dismissed only by a judicial council or a court, the dismissal being moreover amenable to a judicial appeal. In some states, political authorities could only propose the dismissal. On the contrary, in eight states judges could be formally dismissed by the legislative or executive authorities. However, it is possible that as a general trend, these decisions may be conditional, in law or in practice, on the outcome of a prior disciplinary procedure before an independent judicial authority.68 Admittedly, disciplinary offences are often phrased in general terms, such as, for example, gross or repeated neglect of official duties.69 But independent judicial authorities usually seem to have a monopoly on imposing other disciplinary sanctions on judges.70

65 Art 53 EUCFR requires the CJEU to comply with the ECHR standards. 66 Judgments of the European Court of Human Rights of 6 November 2018 in Case No 55391/13, 57728/13 and 74041/13 Ramos Nunes de Carvalho e Sa v Portugal, paras 121–128, 196 and 201–214; See also Judgment of the European Court of Humans Rights of 9 March 2021 in Case No 76521/12 Eminağaoğlu v Turkey, para 97. The ECtHR considers also international and soft-law standards on judicial independence indicating that disciplinary authorities should be composed predominantly by judges to ensure their independence; See also Judgment of the European Court of Human Rights of 23 June 2016 in Case No 20261/12 Baka v Hungary, paras 72–87. 67 Commission, ‘The EU Justice Scoreboard 2017’ COM (2017) 167 final at 47–48; Judgments of the European Court of Human Rights of 6 November 2018 in Case No 55391/13, 57728/13 and 74041/13 Ramos Nunes de Carvalho e Sa v Portugal, the ECtHR found the judicial review of disciplinary sanctions imposed on judges in Portugal by a judicial council – including political appointees – to be insufficiently comprehensive. 68 As follows from the completed questionnaires (n 13). There are still cases in which the parliaments can dismiss a judge through an impeachment procedure (for instance, in Ireland, Malta and Lithuania). 69 Judgment of the European Court of Human Rights of 9 January 2013 in Case No 21722/11 Volkov v Ukraine, para 82. 70 Commission, ‘EU Justice Scoreboard 2020’ COM (2020) 306 final at 59–60.

72 Michał Krajewski The CJEU case law remains in line with the trend of restraining political interferences with judicial tenure, status and decision-making, such as through the lowering of the retirement age, the discretionary extensions of judicial mandates and the decisions on disciplinary action against judges inspired by the executive. According to the CJEU, the way to protect judicial tenure is through establishing legislative rules for the length of service and dismissal of judges. In particular, the CJEU requires rules against removal from office until retirement age, expiry of the judicial mandate or grounds for disciplinary dismissals, subject to the principle of proportionality. The broader objective is to ‘dispel any reasonable doubt in the minds of individuals as to the imperviousness of the court to external factors and its neutrality with respect to the interests before it’. When it comes to disciplinary liability, crucially, the CJEU requires ‘the involvement of an independent body in accordance with a procedure which fully safeguards … the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions’.71 Accordingly, an interference in the rules regarding the length of judicial service requires an objective justification. In an infringement case concerning a sudden and immediate lowering of Polish Supreme Court judges’ retirement age, the CJEU did not find a legitimate reason for this lowering and considered the defence of the Polish Government internally inconsistent. The retirement age was supposed to be lowered to align it with the general retirement age, but, for all other workers retirement was intended as a right rather than as a duty.72 Moreover, the President of Poland obtained a fully discretionary competence to prolong individual judges’ mandates without any legal criteria guiding this decision and ruling out judicial review.73 The CJEU also emphasises that ‘the rules governing the disciplinary regime … must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions’.74 In a recent infringement case, the CJEU confirmed that the new Polish disciplinary regime did not comply with this and the above-mentioned requirements. The judges could be subject to disciplinary action for committing errors of law, whereas the legislation did not sufficiently circumscribe the notions of these errors to include only instances of gross negligence or bad faith.75 In earlier proceedings before the CJEU and the Polish Supreme Court (which will be discussed in the following subsection), crucially, it had already been established that the Disciplinary Chamber of the Supreme Court provided insufficient appearance of independence from the political authorities.76 At the same

71 Case C-619/18 Commission v Poland EU:C:2019:531, paras 74–77; As regards ‘judicial authorities’ authorised to issue the European Arrest Warrants, they may not receive instructions in individual cases from the executive, Joined Cases C-508/18 and C-82/19 PPU OG and PI EU:C:2019:456, para 76. 72 ibid, paras 80–89. 73 ibid, para 114. 74 ibid, para 77. 75 Case C-791/19 Commission v Poland EU:C:2021:596, paras 134ff; The CJEU specified that judges cannot be subject to disciplinary actions for decisions to launch the preliminary reference procedure, even if the reference turns out to be inadmissible or even for causing, for this reason, delays in the main proceedings. Any such rules could cause a ‘freezing effect’ and discourage judges from making references, see Joined Cases C-558/18 and C-563/18 Miasto Łowicz EU:C:2020:234, paras 58–59; Case C-8/19 PPU RH EU:C:2019:110. 76 See Judgment of the European Court of Human Rights of 22 July 2021 in Case No 43447/19 Reczkowicz.

The EU Right to an Independent Judge 73 time, this chamber was empowered to waive judicial immunities and impose disciplinary sanctions in the first or second instance.77 This chamber’s president was also authorised to assign cases to lower disciplinary courts on a discretionary basis, which breached the requirement of the jurisdiction of the disciplinary tribunal being ‘established by law’.78 Moreover, the CJEU noted that disciplinary officers appointed and instructed by the political executive were conducting disciplinary proceedings in an arbitrary way, and there were no legal guarantees against protracted proceedings.79 The CJEU requires the judicial status to be stable. In a recent preliminary reference case from Poland, it examined national provisions pursuant to which the Minister for Justice was authorised to second a judge to a higher court for a fixed or indefinite period based on non-transparent criteria. The Minister could also terminate this secondment at any time without providing a statement of reasons or even a prior notice.80 Such a termination could have effects similar to a disciplinary sanction.81 Having listed these and other factors, the CJEU formally provided only ‘guidance’ for the appearance of independence test to be performed by the referring court. However, the operative part of the ruling was framed in unconditional terms, which clearly suggests what the final assessment of the national system of judicial secondments should be according to the CJEU. In an earlier preliminary reference case from Romania, the CJEU went a step further by extending the requirements stemming from the ‘appearance of independence’ to the investigatory stages of disciplinary action against judges. According to the EU Justice Scoreboard of the Commission, in the vast majority of EU Member States the investigation against judges is conducted by judicial or other independent authorities, and the executive authorities can only carry out preliminary inquiries. However, the details of the institutional arrangements in this regard vary significantly.82 The Romanian courts questioned new legislation allowing the government to fill temporarily the management position at the special body responsible for conducting disciplinary investigations against judges by disregarding the ordinary appointment procedure, as well as the creation of a special section of the Public Prosecutor’s Office with exclusive competences to investigate judicial offences and a high degree of autonomy to do so. The CJEU has noted that even a threat of investigation can indirectly affect the independence of a judge.83 Therefore, it authorised the referring courts to make a discretionary assessment, under the ‘appearance of independence’ test,84 as to whether the introduction of new arrangements had been based on objective reasons relating to the proper administration of justice and whether it cannot lead to reasonable doubt as to the possibility of undue political pressure on the judges, especially through the new and powerful investigatory structure.85

77 Commission

v Poland (n 71), paras 80ff. paras 164ff. 79 ibid, paras 187ff. 80 Prokuratura Rejonowa w Mińsku Mazowieckim (n 27), paras 70–78. 81 ibid, para 83. 82 Commission (n 70) 60–61. 83 Asociaţia ‘Forumul Judecătorilor din România’ (n 27), para 197. 84 ibid, paras 197, 212 and 216. 85 ibid, paras 197ff and 213ff. 78 ibid,

74 Michał Krajewski

B. Personal Independence and Judicial Appointments While the legal protection of judicial tenure aims at safeguarding the judges’ decisionmaking independence against external pressure, the design of the judicial appointment system may contribute to the selection of candidates with adequate expertise and a related personal virtue of independence. However, there is less consensus on how this personal independence may be adequately guaranteed. The detailed mechanisms for judicial appointments vary in the EU Member States. Usually, the candidates are proposed by judicial councils, following specific training and competitions, and formally appointed by the executive branch. However, the degree of political discretion in the judicial appointment process may be considerable. In particular, the specific composition and the way to appoint judges as members of the councils vary, although the general trend is the election of judicial members to the councils by their peers. Judges and court presidents often make up the majority of the council.86 As concerns first and second-instance judicial posts, the general trend is that judicial councils or independent bodies establish the pool of candidates. However, political authorities in many states enjoy the discretion to reject proposed candidates (in 15 states)87 without a duty to state reasons (in 10 states) and ruling out judicial review (in 11 states).88 As concerns appointments to apex courts, the discretion of political authorities may be greater.89 Notably, ECtHR case law is geared towards protecting external judicial independence while already in office rather than through a specific judicial appointment procedure.90 Nonetheless, domestic law breaches in the judicial appointment process may translate into a violation of the fundamental right to a tribunal ‘established by law’.91 A particular case is Germany, the biggest EU Member State in terms of population, where rank-and-file judges are appointed by the Länder in varying procedures by the justice ministers in collaboration with judicial selection committees, whereas federal judges are elected by Parliament (by a qualified majority) and formally appointed by the Federal President. ‘As a result of these appointment procedures, a heavy executive and legislative influence must be considered a structural characteristic of judicial appointments in Germany. This influence is deeply rooted in the German constitutional order due to the crimes the judges committed during the Nazi period and the ensuing distrust towards judicial co-optation.’92 There is a formal legal duty to choose candidates based on merits, but judicial review in this regard remains limited.93 86 Commission (n 70) 62–63. 87 In only three states could it choose any other candidate. 88 Commission (n 67) 44–46. 89 Commission, EU Justice Scoreboard 2021 COM (2021) 398 final; See also Case C-896/19 Repubblika, Opinion of AG Hogan (n 9), para 57. 90 Judgment of the European Court of Human Rights of 9 February 2021 in Case No 15227/19 Xhoxhaj v Albania, para 295; See also Case C-896/19 Repubblika, Opinion of AG Hogan (n 9), para 78. 91 Judgment of the European Court of Human Rights of 1 December 2020 in Case No 26374/18 Ástráðsson v Iceland. 92 A Sanders and L von Danwitz, ‘Selecting Judges in Poland and Germany: Challenges to the Rule of law in Europe and Propositions for a new Approach to Judicial Legitimacy’ (2018) 19 German Law Journal 769, 797–798. 93 ibid, 801–802.

The EU Right to an Independent Judge 75 Despite the considerable consensus regarding the composition of judicial councils and their role in judicial appointments, there are also arguments for caution in pleading for ‘depoliticising’ judicial selections. It has been noted that the examination of candidates cannot entirely rely on objective criteria and that the selection is inherently political. ‘Depoliticisation’ shifts politics to a more restrained and less transparent arena such as a judicial council. It may thus privilege the politics of influential actors within the legal profession or the judiciary.94 In one of the landmark cases regarding the Polish council of the judiciary, whose judicial members are now elected by Parliament, AG Tanchev reached for various nonbinding recommendations from transnational bodies to decipher minimal universal features of appropriate judicial councils and judicial appointment mechanisms. He opined that judicial councils, if they are set up in a state, should be composed of at least a majority of judges elected by their peers representing the judiciary at all levels to prevent manipulation or undue pressure. The involvement of legislative and executive authorities in the selection process should be discouraged. To guarantee the continuity of functions, the mandates of the members of judicial councils should not be replaced at the same time or renewed following parliamentary elections.95 However, the CJEU did not follow this lead. Instead of dictating clear institutional standards, it has opted for the context-sensitive ‘appearance of independence’ test, according to which it is necessary to verify whether the substantive conditions and procedural rules governing the judicial appointments can give rise to reasonable doubts as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once they have been appointed as judges.96 The CJEU’s caution in this regard may be interpreted in light of the abovementioned criticism of judicial councils, or the wish not to entrench rules that would require institutional changes in Member States in which the system of judicial appointments does not generate problems or is strongly rooted in constitutional traditions. Accordingly, the CJEU accepts a variety of judicial appointment models, just like the ECtHR, although it held that a Member State cannot amend its legislation in such a way as to bring about a reduction in the level of protection of judicial independence and other rule-of-law principles.97 In this context, the CJEU accepted the reformed Maltese system of judicial appointments, circumscribing the Prime Minister’s discretion by introducing an independent judicial appointment committee. Although the Maltese Prime Minister could still choose a candidate not put forward by the committee, they still had to observe the rules on qualifications for judicial office and justify the choice before Parliament. The CJEU considered such a minimal mechanism for circumscribing the Prime Minister’s discretion sufficient, and in fact, it pointed out that Malta was admitted to the EU having a system with even weaker safeguards against 94 G Gee, ‘The Persistent Politics of Judicial Selection: A Comparative Analysis’ in A Seibert-Fohr, Judicial Independence in Transition (Springer, 2012) 145. 95 Joined Cases C-585/18, C-624/18 and C-625/18 AK EU:C:2019:982, Opinion of AG Tanchev, paras 124–129. 96 Repubblika (n 38), para 57; In a recent case, the appearance of independence test was linked to the analysis of the regularity of judicial appointment process under the ‘established by law’ criterion, see Case C-487/19 W.Ż. EU:C:2021:798, paras 121, 124, 128–130. 97 Repubblika (n 38), paras 63–64.

76 Michał Krajewski political arbitrariness in judicial appointments.98 Notably, in this case the formal distinction between the interpretation and application of EU law did not hinder the CJEU from giving a definite answer on the appearance of independence of the Maltese judicial appointments system, unlike in the cases referred by the Polish Supreme Court and the Supreme Administrative Court. The difference in the treatment of the Polish and Maltese cases suggests that the level of detail and conclusiveness in the ruling of the CJEU follows from the subject matter of legal issues rather than only the type of procedure. The appearance of independence test requires a holistic and in-depth analysis, and crucially, the indication of specific factors encouraging doubts about judicial independence in a specific context. For instance, AG Bobek did not consider problematic the election of the members of the Romanian Constitutional Court by political authorities – which characterises constitutional courts in many European countries – on condition that other legal safeguards secure independence against external influences.99 Likewise, the CJEU did not follow the suggestion of a German court to question the independence of German courts where judges are appointed and promoted by political bodies, given the absence of any specific evidence of undue influence.100 The CJEU availed itself of the ‘appearance of independence’ doctrine to solve seminal cases relating to the new Disciplinary Chamber and other recent appointees to the Polish Supreme Court and the National Council of Judiciary (the main judicial appointment body whose members, from 2018, are mostly elected by the parliamentary majority). The CJEU provided extensive lists of legal and factual circumstances that might appear to reasonable citizens as undermining the virtue of judicial independence and their trust towards the judiciary. These circumstances included the fact that the Disciplinary Chamber had been set up as an entirely new structure, whose members had been picked exclusively from the candidates from outside the existing Supreme Court. It had been attributed with an unprecedented level of organisational autonomy and exclusive jurisdiction in the highly delicate field of judicial discipline and status. Furthermore, the previous Council, the judicial members of which had been elected by judges themselves, had been prematurely dismissed. The decisions of the new Council were no longer subject to judicial review before one of the pre-existing chambers of the Supreme Court,101 and the political branches sought to exclude judicial review before the Supreme Administrative Court as well.102 Nonetheless, the CJEU left drawing definitive conclusions from these considerations to the referring panel of the Supreme Court. Apart from clinging to the fuzzy and formalist distinction between the interpretation and application of EU law, the CJEU might have sought to delegate the task of assessing the controversial institutions to a national body possessed of an adequate epistemic capacity to identify and thoroughly consider national provisions, including constitutional controversies, as well as relevant

98 ibid, paras 59–61. 99 Joined Cases C-357/19 and C-547/19 Direcţia Naţională Anticorupţie EU:C:2021:170, Opinion of AG Bobek, paras 215–219. 100 Case C-272/19 VQ v Land Hessen EU:C:2020:535, paras 57–60. 101 AK (n 38), paras 133–153. 102 AB (n 26).

The EU Right to an Independent Judge 77 factual circumstances, local historical experiences and traditions shaping how the national community conceives of the virtue of judicial independence.103 Importantly, the CJEU’s responses contained also an element of deference in that the list of factors to be considered by the national courts was not exhaustive.104 The referring panel105 and, subsequently, an extraordinary mixed-chamber formation of the Supreme Court106 implemented the said CJEU ruling and definitively ruled out the Disciplinary Chamber offering effective judicial protection. As already mentioned, this analysis was later reiterated by the CJEU in the infringement case.107 However, although conducive to institutional pluralism and even supporting the reasoning of the CJEU in infringement cases, the decentralised review of the ‘appearance of independence’ approach encountered serious practical obstacles at the implementation stage. It presupposes smooth cooperation with national judges and the compliance of political authorities. The cooperation and compliance cannot be taken for granted. The Romanian Constitutional Court recently performed a review of the special prosecution unit, invoking the instructions of the CJEU, and held that this unit complies with EU law requirements against all the serious doubts as to its influence on judicial independence. It also held that this assessment binds the other national courts.108 At the same time, the Polish Constitutional Tribunal, largely considered to be dependent on external political influence and unlawfully composed,109 held that the Polish Supreme Court, while implementing the CJEU guidance, had usurped legislative competence by ‘determining’ the organisation of the judiciary.110 Perhaps as a matter of path dependency, the CJEU is still clinging in its reasoning in cases relating to irregular judicial appointments to the rhetoric of ‘guidance cases’,111 even if the accumulation of factors putting in doubt judicial independence,112 including prior national and CJEU rulings,113 suggests only one plausible outcome.114

C. Organisational Independence and Judicial Governance Emerging CJEU case law on judicial independence has also attracted several questions from other courts regarding different issues of judicial governance, understood as the 103 Krajewski and Ziółkowsi (n 44). 104 AK (n 38), para 153; Case C-824/18 AB (n 38), para 165. 105 Polish Supreme Court, Case III PO 7/18 (judgment of 5.12.2019). 106 Polish Supreme Court, Case BSA I 4110 1/20 (resolution of 23.1.2020). 107 Commission v Poland (n 14). 108 Romanian Constitutional Court, Case 390/2021 (decision of 8.6.2021). 109 Judgment of the European Court of Human Rights of 7 May 2021 in Case no 4907/18 Xero Flor v Poland. 110 Polish Constitutional Tribunal, Case U 2/20 (judgment of 20.4.2020); On the different applications of the test by one of the Polish Supreme Court’s new chambers see, M Ziółkowski, ‘Two Faces of the Polish Supreme Court After “Reforms” of the Judiciary System in Poland: The Question of Judicial Independence and Appointments’ (2020) 5 European Papers 347; More recently, the Constitutional Tribunal also found Art 19 TEU to be partially unconstitutional, see Polish Constitutional Tribunal, Case K 3/21 (judgment of 8.10.2021). 111 See W.Ż. (n 96), paras 132–137. In this case, the national court had to consider, however, the interpretation and unconstitutionality of national provisions relating to judicial appointments. 112 ibid, paras 138–151. 113 ibid, paras 140–143. 114 ibid, paras 150–154.

78 Michał Krajewski set of institutions, rules and practices that organise, facilitate and regulate the exercise of judicial functions.115 These questions range from judicial remuneration through case allocation to the day-to-day administrative supervision of courts. Manipulating by means of case allocation, judicial salaries, working conditions, auxiliary staff, resources or confidential documents may be a convenient tool for political authorities to exert illicit pressure on judges. Bobek and Kosař point to at least five approaches to judicial governance in Europe: the Ministry of Justice model, the judicial council model, the courts service model, hybrid models, and the socialist model (no longer present).116 Judicial councils have usually been created in post-authoritarian countries of Romanistic tradition or subject to Europeanising pressures.117 The Ministry of Justice model exists now in a tiny minority of Germanistic law countries. In particular, in Germany ‘there is a significant political and administrative control exercised over the policy and organisation of the courts service and the judiciary’.118 The question is how long this model can survive considering the pressure of EU law on improving judicial independence through judicial self-governance.119 The cases that commenced the saga of the judicial independence of the CJEU concerned interference with judicial remunerations. The CJEU held that judicial independence requires remuneration commensurate with the duties performed by judges, which should be legally fixed in such a way as to prevent the possibility of undue influence. Changes in judicial salaries should be objectively justified and follow the principle of proportionality. In these cases, the CJEU did not contest the salary-reduction measures at issue.120 In one of the subsequent cases, a German administrative judge contested the Land rules regarding the supervision of courts. According to these rules, the organisation of the courts was managed by the Ministry of Justice, including the support staff, means of communication and IT facilities so that the administrative authority had the possibility of obtaining access to all the data of the courts or tribunals.121 The judges also noted that the appointment, appraisal and promotion of judges, and even the appointment of temporary judges from among public officials, were matters for the Minister of Justice.122 The CJEU held that the evaluation of the status of the referring court must be confined solely to the context of the main dispute.123 It then found no information in the request calling into question the independence of the referring court in this particular case or proving the existence of undue influences.124

115 P Castillo-Ortiz, ‘The politics of implementation of the judicial council model in Europe’ (2019) 11 European Political Science Review 503. 116 Bobek and Kosař (n 12). 117 Castillo-Ortiz (n 115) 503. 118 Bell (n 53) 112. 119 Castillo-Ortiz (n 115) 516. 120 Associação Sindical dos Juízes Portugueses (n 25); Vindel (n 25); Similar questions regarding Italian giudici di pace were posed in Case C-236/20 PG v Ministero della Giustizia, pending. 121 VQ v Land Hessen (n 100), paras 28 and 35. 122 ibid, paras 32–33. 123 ibid, para 47. 124 ibid, para 50.

The EU Right to an Independent Judge 79 Arguably, the CJEU expressed a reluctance to assess variegated domestic laws on the judicial organisation in the abstract unless a specifically substantiated controversy arises in this regard.125 However, another German court recently repeated the same doubts126 and invoked the standards of complete organisational independence demanded by the CJEU towards data-protection authorities.127 The question is whether the normative standards of judicial independence are somehow different to those relating to data-protection authorities, considering, for instance, that judges should benefit from far-reaching safeguards of individual decision-making independence. In contrast, data-protection authorities act as institutional structures. Also, can the reality of the executive supervision of the staff and resources of data-protection authorities, questioned by the CJEU, be distinguished from the administrative supervision of courts? This question may require specific legal and empirical information.

IV. Conclusion Even though the EU legal order was built through the cooperation of independent courts, it has always respected and did not need to interfere with the variety of institutional and procedural mechanisms for judicial organisations. At present, for many scholars, emerging CJEU case law regarding judicial independence is an indispensable tool for rescuing both superior and rank-and-file domestic judges facing different types of threats from political actors. They largely consider the engagement of the CJEU with domestic judicial independence justified in light of relevant EU primary law provisions on the matter, fundamental rights and international standards. However, there is also a concern about the long-term consequences of a possible CJEU-led harmonisation of domestic judicial organisation with the ensuing risk of interference with constitutional traditions. This chapter analysed the attempts of the CJEU to accommodate the reinforced legal protection of judicial independence and the plurality of domestic constitutional mechanisms. The CJEU has been following the trend of reinforcing the protection of decision-making judicial independence through irremovability and insulation from political pressure. At the same time, it has respected the plurality of judicial appointment arrangements, while confining itself to verify the rational cogency and proportionality of measures interfering with judicial independence as well as equipping national judges with the context-sensitive ‘appearance of independence’ test appropriate for decentralised application. Nonetheless, in practice the test yields uncertain results due to the opposition of the constitutional courts or the unwillingness of rank-and-file judges to employ it. 125 In another case, an Austrian administrative judge contested the way in which the main case was allocated within the court by its president. However, the judge has not indicated EU law provisions to be applied in the main case; See Case C-256/19 SAD Maler und Anstreicher OG EU:C:2020:523. In a Hungarian case, the question about the appointment of court presidents was found inadmissible. Case C‑564/19, IS, paras 139–147. 126 Case C-276/20 B, pending. 127 Case C-614/10 Commission v Austria EU:C:2012:631, paras 58–61; Case C-518/07 Commission v Germany EU:C:2010:125, paras 36 and 43; See also on legal safeguards for a certain degree of organisational independence of investigatory bodies required by EU law, Case C-530/16 Commission v Poland EU:C:2018:430, paras 99–103.

80 Michał Krajewski As the case law relating to judicial independence develops incrementally, the CJEU might reconsider its strategy and shift towards determining the definitive outcome of the cases to help national courts facing unprecedented political pressure and expecting authoritative decisions from the CJEU. In some cases, such as the one regarding the uncertain status of delegated judges,128 the factors casting doubts on the appearance of independence of such judges might not strongly depend on local perceptions or legal traditions, so they might be definitively ruled out by the CJEU. In other cases, the CJEU might determine the case’s outcomes by relying on the legal assessment provided by the referring courts in the orders of reference, considering the political pushback against the national courts’ judgments contesting changes to the judicial system.

128 Prokuratura

Rejonowa w Mińsku Mazowieckim (n 27).

5 Article 47 of the Charter, Effective Judicial Protection and the (Procedural) Autonomy of the Member States MATTEO BONELLI*

The chapter reflects on how Article 47 contributes to shape the question of the limits to the procedural autonomy of the Member States. It argues that the Court’s interpretation of Article 47 in recent judgments, building on a long-term trend of centralization of the EU system of judicial protection, contributes to limit national procedural autonomy. And it does so to such an extent that it would be best to speak of limits to national autonomy tout court, rather than concentrating only on procedural autonomy: today, elements of the remedial or institutional autonomy of the Member States are also affected and limited by Article 47. This is shown in the chapter by exploring three lines of the CJEU’s case law: first, the constitutionally-oriented interpretation of secondary legislation, which limits the stricto sensu procedural autonomy of the Member States; secondly, the creation of new judicial remedies on the basis of Article 47, which limits national remedial autonomy; and third, the development of the Court’s judicial independence case law on the basis of Article 47 of the Charter and Article 19 TEU, which contributes to reducing the institutional autonomy of the Member States. The chapter argues that these developments are nonetheless well justified and analytically and systematically sound. In the conclusion, the chapter reflects then on how the concept of national (procedural) autonomy has been affected by the recent case law and whether it may still remain relevant.

I. Introduction Like the other contributions to this first part of the volume, this chapter reflects on the impact of Article 47 of the Charter on the constitutional structure of the European Union. In particular, it addresses one of the ‘horizontal’ questions that my co-editors

* Matteo Bonelli is Assistant Professor of EU law at the Faculty of Law of Maastricht University. I thank my co-editors and Elise Muir for their helpful comments and suggestions. The usual disclaimer applies.

82 Matteo Bonelli and I highlighted in our introduction, namely how Article 47 contributes to shape the traditional question of the limits to the procedural autonomy1 of the Member States.2 It does so by focusing, in particular, on the recent interpretation of Article 47 offered by the Court of Justice. It will be argued, most importantly, that Article 47, building on a long-term trend of centralisation or harmonisation of the EU system of judicial protection,3 further contributes to limiting national procedural autonomy. It does so to such an extent that ‘limiting national procedural autonomy’ perhaps does not fully capture the breadth of the constraints imposed by EU law. It would perhaps be better to speak of limits to national autonomy tout court, in the sense that today elements of the remedial4 and institutional autonomy5 of the Member States are also affected and limited by Article 47. As will be further explained below, this is not intended to be a criticism of the approach of the CJEU or an accusation of judicial activism on behalf of the Court. Most of the described developments are analytically and systematically sound, and could be considered, largely, as logical consequences of the codification of the principle of effective judicial protection in the Treaty and in the Charter with the Treaty of Lisbon. This chapter identifies and discusses three key lines of decisions of the Court of Justice that contribute to this ‘centralising’ tendency that brings about a reduction of national (procedural) autonomy. The clearest and most significant example of the process here described is the set of CJEU cases on judicial independence, which this chapter will however analyse only fairly briefly, as it is the subject of another contribution to this volume.6 This piece deals more in detail with two other main ways in which the Court’s interpretation of Article 47 bites into national autonomy, leading to more far-reaching results than seen in pre-Lisbon and pre-Charter case law.7 The chapter analyses, firstly, the results produced by the CJEU’s reading of EU procedural norms ‘in the light of ’ or ‘in conjunction with’ Article 47, and, secondly, looks at the creation by the Court of new judicial remedies on the basis of Article 47, as well as at the consequences deriving from the combination of primacy and direct effect8 of Article 47. Systematising the recent

1 On this concept, see s II of this chapter. 2 For a recent ‘constitutional’ analysis of national procedural autonomy and its limits, see D Halberstam, ‘Understanding National Remedies and the Principle of National Procedural Autonomy: A Constitutional Approach’, (2021) 22 Cambridge Yearbook of European Legal Studies 128. 3 This process occurs both at the judicial level, as seen in this chapter, and at the legislative level, through the adoption of EU secondary procedural law. On the growing proceduralisation of EU law, see M Eliantonio and E Muir, ‘Concluding Thoughts: Legitimacy Rationale and Extent of the Incidental Proceduralisation of EU Law’, (2015) 8 Review of European Administrative Law 175. 4 See s IV of this chapter. 5 The concept of institutional autonomy was recently used in this very context by AG Bobek: see Joined Cases C-83/19, C-127/19 and C-195/19 Asociaţia ‘Forumul Judecătorilor din România’ EU:C:2020:746, Opinion of AG Bobek, para 113. 6 See, eg M Krajewski, ‘The EU Right to an Independent Judge: How Much Constitutional Consensus Across the EU?’, in this volume. 7 For an earlier analysis of whether and how the Charter and Art 47 had modified the approach of the CJEU to effective judicial protection, see S Prechal, ‘The Court of Justice and Effective Judicial Protection: What Has the Charter Changed?’ in C Paulussen et al. (eds), Fundamental Rights in International and European Law (TMC Asser Press, 2016). 8 The CJEU first acknowledged the (horizontal) direct effect of Art 47 in Case C-414/16 Egenberger EU:C:2018:257.

Article 47 and the (Procedural) Autonomy of the Member States 83 case law of the Court in these three lines of cases9 allows us to capture the breadth of the ongoing evolution and understand its impact. Before looking at the case law of the Court, however, the chapter opens with some background on effective judicial protection, Article 47 of the Charter and procedural autonomy, which sets the scene for the analysis that follows and to explore whether, to what extent, and how the more recent case law on Article 47 contributes to the long-term centralising trends mentioned earlier, and what new elements it may bring. Sections III, IV and V look then at the three lines of case law mentioned earlier: the ‘constitutionally-oriented’ interpretation of secondary legislation, further limiting procedural autonomy (Section III); the creation of new judicial remedies and the farreaching ‘remedial’ consequences linked to the primacy and direct effect of Article 47 (Section IV); the growing case law on judicial independence, limiting the institutional autonomy of the Member States (section V). The last section of the chapter summarises the findings and reflects on how the concept of (procedural) autonomy has been affected by the developments described, and whether it remains relevant today.

II. Effective Judicial Protection, Article 47 and Procedural Autonomy The principle of effective judicial protection has been a cornerstone of the EU legal order for decades. Since the first mention of the concept by the CJEU in Johnston,10 effective judicial protection has worked alongside the Rewe11 principles of equivalence and effectiveness as limits to the so-called procedural autonomy of the Member States, although the relationship between the principle of effective judicial protection and the other two principles has never been fully clarified.12 In the first few decades, effective judicial protection worked as an unwritten general principle, developed and constructed on the basis of Articles 6 and 13 ECHR.13 The Treaty of Lisbon then finally codified the principle in Article 19 TEU and Article 47 of the Charter and gave it primary law status. Notably, the text of Article 47 is not a mere translation of Articles 6 and 13 ECHR, but goes beyond the corresponding ECHR articles.14

9 Admittedly, the ‘borders’ between the three lines may be quite thin, and a case may be considered as falling within more than one of those lines. The goal of the chapter is not so much to offer a closed typology of the case law of the Court, but to indicate the main trends in its case law. 10 Case C-222/84 Johnston EU:C:1986:206. 11 Case C-33/76 Rewe EU:C:1976:188. 12 See, eg S Prechal and R Widdershoven, ‘Redefining the Relationship between “Rewe-effectiveness” and Effective Judicial Protection’ (2011) 4 Review of European Administrative Law 31; J Krommendijk, ‘Is there light on the horizon? The distinction between “Rewe effectiveness” and the principle of effective judicial protection in Art 47 of the Charter after Orizzonte’ (2016) 53 Common Market Law Review 1395; and K Gutman, ‘Article 47: The Right to an Effective Remedy and to a Fair Trial’, in M Bobek and J Adams-Prassl (eds), The EU Charter of Fundamental Rights in the Member States (Hart Publishing, 2020). 13 See also Johnston (n 10). 14 See also D Shelton, ‘Article 47’, in S Peers et al (eds), The EU Charter of Fundamental Rights: a Commentary (Hart Publishing, 2014); Case C-69/10 Samba Diouf EU:C:2011:102, Opinion of AG Cruz Vilallón, para 39.

84 Matteo Bonelli The Lisbon codification has not only served to crystallise the existing rules, but has also paved the way for further developments. In an earlier contribution,15 I pointed out how the inclusion of Article 19 TEU and the entry into force of the Charter and its Article 47, combined with the growing and extensive reliance on the two provisions by the CJEU (and the national courts),16 have transformed the principle of effective judicial protection from an essentially procedural principle – in the sense that it primarily imposed obligations related to the procedures for the adjudication of Union rights – into a more substantive and structural norm of the European judiciary. Others have reached similar conclusions: for example, as argued by Prechal, the post-Lisbon case law of the Court of Justice ‘seems to put in the limelight the constitutional dimension of the principle of effective judicial protection’,17 emphasising the relationship between effective judicial protection and the value of the rule of law affirmed in Article 2 TEU. As for the concept of procedural autonomy, it is an academic creation, only later adopted by the Court of Justice.18 It meant to summarise and express the position reached by the CJEU in the landmark Rewe judgment, where the Court affirmed that ‘[it] is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of community law’.19 Procedural autonomy was never meant to be absolute, however. It found its traditional limits, on the one hand, in the principles of equivalence and effectiveness, with effective judicial protection, from Johnston onwards, also entering into the picture, depending on the perspective, to bring further additional limits to procedural autonomy,20 or at most restating what in particular the principle of effectiveness already implied;21 and on the other hand, in the existence of EU secondary procedural law. As Rewe itself made clear, it is in fact only ‘in the absence of Community rules on [the] subject’ that Member States are free to determine procedures for the adjudication of EU rights. Yet, whether the expression ‘procedural autonomy’, even if now adopted by the Court and many of its Advocates General, truly reflects reality, as well as the actual 15 M Bonelli, ‘Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature’ (2019) 12 Review of European Administrative Law 35. 16 As data from the Fundamental Rights Agency show, Art 47 is the Charter provision most often mentioned by national courts in preliminary references to the CJEU: Fundamental Rights Agency, ‘Opinion – Challenges and opportunities for the implementation of the Charter of Fundamental Rights’ (FRA, 30 September 2018) https://fra.europa.eu/en/opinion/2018/charter-training; For a critical analysis of a possible over-reliance on Art 47 by national and European courts, E Frantziou, ‘The Binding Charter Ten Years on: More than a ‘Mere Entreaty’?’ (2019) 38 Yearbook of European Law 73. 17 S Prechal, ‘Effective Judicial Protection: some Recent Developments – Moving to the Essence’ (2020) 13 Review of European Administrative Law 176. 18 See, eg Case C-234/17 XC and others EU:C:2018:853, para 21. 19 A similar idea was also expressed earlier in Case C-13/68 Salgoil v Italy EU:C:1968:54. 20 Expressing this view, see A Arnull, ‘The principle of effective judicial protection in EU law: an unruly horse?’ (2011) 36 European Law Review 51; Krommendijk (n 12); Prechal and Widdershoven (n 12). 21 In particular, see M Accetto and S Zlepting, ‘The Principle of Effectiveness: Rethinking its Role in Community Law’, (2005) 11 European Public Law 375; D Leczykiewicz, ‘“Effective Judicial protection” of human rights after Lisbon: should national courts be empowered to review EU secondary law?’ (2010) 35 European Law Review 326; M Bobek, ‘Why there is no principle of procedural autonomy of the Member States’ in B De Witte and H Micklitz (eds), The European Court of Justice and the Autonomy of the Member States (Intersentia, 2011).

Article 47 and the (Procedural) Autonomy of the Member States 85 position of the CJEU, has proved to be controversial. Famously, and in line with an earlier article by Court of Justice’s Judge Kakouris,22 Michal Bobek argued that thinking in terms of procedural autonomy is a ‘misunderstanding’ and gives ‘a false impression’, as the case law of the Court of Justice leaves no truly autonomous space for the Member States.23 Indeed, while the legislative intervention of the EU on national procedures is limited by the principle of conferral, the case law of the CJEU can reach beyond those limits as well and any national procedural matter may fall under the purview of the CJEU if it relates to the enforcement of EU law rights. In that sense, there are no authentically autonomous areas of national procedural law, if autonomy is taken to mean areas where EU law and the CJEU case law do not and cannot interfere. Autonomy might therefore be a ‘misnomer’.24 As I will argue in the concluding section of this chapter, a narrower reading of procedural autonomy, especially as a result of the more recent case law of the CJEU, seems to be the accurate one. But the concept of procedural autonomy remains useful if used in a softer sense. It should not be viewed as a legally binding principle, but as expressing the basic fact that the default rule – in the absence of EU harmonised provisions – is that Member States are free to determine procedural rules. At the same time, when doing so, they should respect the obligations imposed by EU law: equivalence, effectiveness, and effective judicial protection, with the last obligation, expressed in Article 19 TEU and 47 of the Charter, taking centre stage in more recent times. This is, after all, what the Court already implied in the key paragraphs of Rewe and then Comet:25 the autonomy of the Member States was never complete or absolute, but always limited by the existence of EU secondary procedural law and/or by the judge-made requirements of equivalence and effectiveness, and then later also of effective judicial protection. In other words, there is no hard form of autonomy that might resemble something like an exclusive competence of the Member States.26 The basic idea originally expressed in Rewe was and still is relevant, and was aptly summarised by Bobek himself in another contribution, which identified three key principles: (a) if there are EU procedural rules, those take precedence over national rules; (b) if there are no EU procedural rules, it is the ‘national procedural responsibility’ to enforce EU law, by applying and following the general national rules and procedures, but (c) ensuring respect for the requirements of equivalence, effectiveness and, I would add, effective judicial protection.27 Article 47 of the Charter acts in this framework. The existence of limits to the procedural autonomy of the Member States has been evident for decades now and, to 22 CN Kakouris, ‘Do the Member States possess judicial procedural “autonomy”?’ (1997) 34 Common Market Law Review 1389. 23 Bobek (n 21); see also W van Gerven, ‘Of rights, remedies and procedures’ (2000) 37 Common Market Law Review 501; R Barents, ‘EU procedural law and effective judicial protection’ (2014) 51 Common Market Law Review 1437. 24 See also Halberstam (n 2). 25 Case C-45/76 Comet EU:C:1976:191, para 13. 26 On the concept of exclusive competences of the Member States, see B De Witte, ‘Exclusive Member State Competences – Is There Such a Thing?’ in S Garben and I Govaere (eds), The Division of Competences between the EU and the Member States (Hart Publishing, 2017). 27 M Bobek, ‘The effects of EU law in the national legal systems’ in C Barnard and S Peers (eds) European Union Law 3rd edition (Oxford University Press, 2021) 168.

86 Matteo Bonelli be clear from the outset, the impact of Article 47 on the procedural autonomy question has not been revolutionary. Instead I would argue that it is has amplified and intensified a centralising or harmonising trend that was already present in CJEU case law: a trend, to summarise, of a continuing reduction of the ‘autonomy’ of the Member States in the procedural field, and of stricter demands placed on the Member States by EU law. Furthermore, and this may be a more fundamental step, together with Article 19 TEU, Article 47 of the Charter has expanded the reach of EU law beyond questions of procedural and remedial autonomy to the institutional (or structural) autonomy of the Member States, on areas of judicial organisation where equivalence, effectiveness, and even the pre-Lisbon principle of effective judicial protection could not reach, or at the very least had not reached yet. The next sections set out these developments.

III. Procedural Autonomy: The Interplay between Article 47 and EU Secondary Legislation The first line of cases to be analysed concerns the interplay between Article 47, EU procedural norms, and national laws transposing and implementing those EU provisions. From one perspective, Article 47 of the Charter (EU primary law) constitutes a benchmark for the validity of EU procedural norms (EU secondary law), as Article 51 of the Charter makes clear. A famous example was the second question referred by the Spanish Constitutional Court in the Melloni case.28 In this chapter, though, I am interested in another type of interrelationship between these sets of norms. In fact, Article 47 is often invoked in conjunction with other EU procedural norms to indirectly determine the validity of provisions of national law or of judicial practices transposing or implementing the relevant piece of EU legislation. Or rather, EU procedural norms are read ‘in the light of ’ or ‘in conjunction with’ Article 47, and, as I will argue in a moment, this link between secondary and primary norms produces significant consequences: Article 47, depending on the case in question, may guide the interpretation of EU procedural norms, clarify or strengthen29 them, but may also have a key ‘gap-filling’ function,30 and broadly contributes to ensuring the EU minimum standard of effective judicial protection within the scope of EU law. The first remarkable element of this use of Article 47 is that, in contrast to what happens to the principles of equivalence and effectiveness, which operate almost exclusively in the absence of EU procedural norms,31 the provision (as a manifestation of the principle of effective judicial protection) does not lose relevance even after the adoption of EU procedural law. In such situations, we perhaps should not talk of procedural autonomy stricto sensu, as it is evident that Member States are not truly autonomous

28 Case C-399/11 Melloni EU:C:2013:107. 29 See also R Widdershoven, ‘National Procedural Autonomy and General EU Law Limits’ (2019) 12 Review of European Administrative Law 5, 18. 30 See Prechal (n 17) 177. 31 As noted by Widdershoven (n 29) 15, however, the principle of effectiveness in limited circumstances may still operate also after the adoption of EU procedural norms.

Article 47 and the (Procedural) Autonomy of the Member States 87 when they transpose EU law into their legal orders, but it is true that EU procedural law, first and foremost when it takes the form of minimum harmonisation directives, often still leaves significant discretion and margins for action to national authorities. Yet, when the Court of Justice reads secondary law in the light of Article 47, the margin of discretion of the Member States may be further diminished. This ‘constitutionallyoriented’ interpretation of EU secondary procedural law can thus be seen as a form of reduction of procedural autonomy (in a loose sense) of the Member States. A typical example of this situation was the Samba Diouf case.32 In that decision, the Court of Justice was asked to rule on two questions: first, whether Article 39 of Directive 2005/8533 (the first ‘Common procedures’ Directive, a minimum harmonisation instrument on the granting and withdrawal of refugee status) should be interpreted as requiring judicial review against a decision to use accelerated proceedings on applications for international protection; second, and in case of a negative answer to that question, whether the principle of effective judicial protection could nonetheless produce that result. The Court of Justice concluded, most crucially, that while the Directive itself did not provide for a specific remedy against a decision to examine an application for asylum under an accelerated procedure,34 the principle of effective judicial protection, as also expressed in Article 47 of the Charter,35 requires that the reasons for the application of that procedure must be subject to judicial review in the action brought against the decision on the merits. While in Samba Diouf, Article 47 was not actually central to the analysis, as the Court of Justice preferred to use the language of the principle of effective judicial protection, and the referring court did not even mention the Charter provision,36 in more recent cases both the Court of Justice and national courts have relied more directly and explicitly on Article 47 in similar contexts. This phenomenon is particularly relevant in the area of EU migration and asylum law, where we find several examples of cases in which national provisions are read ‘in conjunction’ with Article 47.37 In those cases, Article 47 becomes an additional benchmark for indirectly assessing the validity of national provisions transposing and implementing EU procedural law. Moussa Sacko,38 El Hassani,39 Gnandi,40 Alheto,41 Tompa,42 and R.N.N.S43 are only some of the

32 Case C-69/10 Samba Diouf EU:C:2011:524; See also the commentary by P van Cleynenbreugel, ‘Case note on Case C-69/10, Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration’ (2012) 49 Common Market Law Review 327. 33 Council Dir 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13. 34 Samba Diouf (n 32) para 45. 35 ibid, para 49. 36 In its reference, the referring court (the Tribunal Administratif of Luxembourg) referred to Arts 6 and 13 ECHR. 37 In general, on the CJEU’s approach to Art 47 in the field of EU asylum and migration law, see M Reneman, ‘No turning back? The empowerment of national asylum and migration courts under Article 47 of the Charter’, in this volume. 38 Case C-348/16 Moussa Sacko EU:C:2017:591. 39 Case C-403/16 El Hassani EU:C:2017:960. 40 Case C-181/16 Gnandi EU:C:2018:465. 41 Case C-585/16 Alheto EU:C:2018:584. 42 Case C-564/18 Tompa EU:C:2020:218. 43 Joined Cases C-225/19 and C-226/19 RNNS and KA EU:C:2020:951.

88 Matteo Bonelli relevant examples, but the paragraphs that follow concentrate on two other high-profile cases, both concerning different aspects of the Hungarian asylum system and its recent controversial reforms: Torubarov44 and FMS.45 In Torubarov, the national court – a Hungarian administrative court competent on matters of international protection – asked the Court of Justice whether Article 46(3) of Directive 2013/3246 (the revised ‘Common Procedures’ Directive), read in conjunction with Article 47 of the Charter, granted national courts adjudicating an appeal against a decision rejecting an asylum application the power to vary (and not simply annul and send back to the competent administrative body) an administrative decision on international protection, substituting its own decision for that of the competent administrative body. The question was raised because the referring court had already annulled twice the judgment of the administrative body to reject the application of Mr Torubarov, but the competent body refused to comply with the findings of the administrative court and grant him asylum. The first point to be determined by the Court of Justice was whether an obligation to provide for alteration of administrative decision, rather than simply cassation, could be read into Article 46(3) of the Directive, eventually combined with Article 47 of the Charter. The CJEU had to acknowledge that Article 46(3) only introduces an obligation to ensure an effective remedy against a decision taken on the application for international protection, which ‘provides for a full and ex nunc examination of both facts and points of law’, but does not explicitly govern what should happen after the annulment of a decision. The choice between alteration or cassation was not harmonised by the European legislature,47 and thus the choice on what effects a decision striking down the administrative decision on international protection should have remained within the discretion of the Member States. Yet, the CJEU recalled, also by reference to the Sacko case mentioned earlier, that Member States, in implementing the Directive, are required to comply with Article 47 of the Charter.48 Therefore, the remedy provided in order to comply with Article 46 of the Directive must also be consistent with Article 47 of the Charter.49 The Court accepted that the purpose of the Directive is not to create a system of uniform procedural rules to be applied after the annulment of the original decision rejecting an application for international protection, but concluded that it followed from the obligation to ensure the effectiveness of Article 46(3) and from the obligation to ensure an effective remedy under Article 47 of the Charter that Member States must structure their national system ‘in such a way that, following annulment of the initial decision and in the event of the file being referred back’ to the competent body, ‘a new decision is adopted within a short period of time and that it complies with the assessment contained in the judgment annulling the initial decision’.50 44 Case C-556/17 Torubarov EU:C:2019:626. 45 Joined Cases C-924/19 PPU and C-925/19 PPU FMS and others EU:C:2020:367. The two cases will also be discussed in s IV. 46 Dir 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L180/1. 47 See Torubarov (n 44) para 54; See also Alheto (n 41) paras 145–46. 48 Torubarov (n 44) para 55. 49 ibid. 50 ibid, para 59.

Article 47 and the (Procedural) Autonomy of the Member States 89 The consequences of that finding (and in particular the ‘remedy’ found by the CJEU for addressing the incompatibility of Hungarian law with the Directive and the Charter), which I argue are best seen as an autonomous second step in the Court ruling, will be discussed in the next section, but what I wish to highlight here is how Article 47 of the Charter is used by the Court of Justice to support the effectiveness and expand the impact of the EU procedural norm in question (Article 46(3) of the Directive). Article 47 here fills a gap left by the EU secondary procedural norms,51 which did not regulate the choice between alteration and cassation and did not address the question of what should happen if an administrative authority (constantly) disobeys the rulings of the competent court in the field of applications for international protection. Thus, where harmonised procedural rules are unclear or silent, but questions regarding fundamental rights emerge, Article 47 can ‘[strengthen] the judicial protection prescribed by secondary legislation or by international treaties with the same purpose’.52 In doing so, it further limits the discretion of the Member States to adapt their procedural system in conformity with EU requirements. The same result was also achieved in a recent decision on the European Arrest Warrant (EAW) system, where the Court explicitly used the language of procedural autonomy: while in implementing the EAW Framework Decision,53 ‘the Member States retain, in accordance with their procedural autonomy, the option of adopting rules which may differ from one Member State to another’, they ‘must ensure that those rules do not frustrate the requirements arising from that framework decision, in particular as regards the judicial protection, guaranteed by Article 47 of the Charter, which underpins it’.54 To offer a final example, in the 2020 decision on the Hungarian ‘transit zones’,55 the Court of Justice, in two points, read provisions of the Return Directive56 and of the Reception Conditions Directive57 in the light of Article 47 of the Charter. Most importantly for the discussion developed in this section, while answering the first question referred by the Hungarian court, it concluded that while Member States are free to determine that a return decision may be challenged before a non-judicial body, ‘when exercising such an option’ (an expression of procedural autonomy, we might say) Member States ‘must nevertheless comply with Article 47 of the Charter’, which requires in particular that the decision of a non-judicial body, at some point in the procedure, 51 On the ‘gap-filling’ function of Art 47, see again Prechal (n 17). 52 Widdershoven (n 29); The reference to international treaties relates in particular to the Aarhus Convention and the cases Case C-243/15 Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín EU:C:2016:838 (the ‘Brown Bear II’ case) and Case C-664/15 Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation EU:C:2017:987. 53 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Statements made by certain Member States on the adoption of the Framework Decision [2002] OJ L190/1. On Art 47 and the EAW system, see more in detail the critical analysis of A Martufi, ‘Article 47 of the Charter and the European Arrest Warrant: Chronicle of a Death Foretold?’ in this volume. 54 See Case C-648/20 PPU PI EU:C:2021:187. 55 See FMS (n 45). 56 Dir 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally resident third-country nationals [2008] OJ L348/98. 57 Dir 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96.

90 Matteo Bonelli must be subject to full review before a judicial body.58 National legislation that does not provide for such a possibility does not comply with Article 13(1) of the Return Directive and Article 47 of the Charter.59 The result produced by this constitutionally-oriented interpretation of EU secondary legislation is that, while legislative harmonisation – for various reasons – often leaves considerable discretion to national authorities,60 Article 47 may still limit that discretion. Member States remain competent to organise domestic procedures in the framework set by the (minimum) legislative standards, but what they do when acting within that discretion must still comply with fundamental rights, including most importantly Article 47 of the Charter. Procedural autonomy is thus reduced first and obviously, as a result of the adoption of procedural legislation, and then afterwards as well when the Court expands the reach or fills the gap of those norms by reading them in conjunction with or in the light of Article 47 of the Charter.

IV. ‘Remedial’ Autonomy: The Empowering Function of Article 47 This section deals with a second dimension of the impact of Article 47 on national autonomy. Here the key concern is with remedies rather than procedures, following the distinction proposed by van Gerven.61 The core of the matter is the very existence of an (effective) judicial remedy, and not the conditions governing the exercise of the action, as was the case in the previous section.62 The section thus investigates whether Article 47 may lead to creating, in certain circumstances, judicial remedies and/or empowering national courts to declare their competence to adjudicate on a question of EU law, even where national law does not grant them that power or otherwise limits their jurisdiction. Rather than procedural autonomy, I suggest referring to these instances as limits to the ‘remedial autonomy’ of the Member States, a term already used in the literature.63 A clarification is however needed before the analysis of the case law of the Court. The fact that Article 47, as an expression of the principle of effective judicial protection, may lead to the creation of new judicial remedies is not an entirely new story. After all, while the Court of Justice has often repeated that EU law does not require the creation of new procedures for the enforcement of Union rights,64 its case law has produced precisely

58 ibid, para 128. 59 ibid, para 129. 60 This is certainly the case in asylum field; see M Reneman (n 37); See also L Tsourdi, ‘Of Legislative Waves and Case law: Effective Judicial Protection, Right to an Effective Remedy and Proceduralisation in the EU Asylum Policy’ (2019) 12 Review of European Administrative Law 143. 61 van Gerven (n 23). 62 A constitutionally-oriented interpretation of secondary law presupposes that a remedy already exists, ie, it was created at the latest with the adoption of the secondary law provisions in question; here instead Art 47 may demand the creation of a new remedy. 63 See, eg Prechal and Widdershoven (n 12); M Claes, The National Courts’ Mandate in the European Constitution (Hart Publishing, 2006). 64 Case C-158/80 Rewe (‘Butter-buying cruises’) EU:C:1981:163.

Article 47 and the (Procedural) Autonomy of the Member States 91 that consequence numerous times. Factortame65 and Unibet66 are often mentioned as examples, with the principle of effective judicial protection playing a fundamental role in the conclusions of the Court especially in the latter case. In any event, the decisions of the Court in Berlioz67 and État luxembourgeois v B,68 both concerning Directive 2011/16 on administrative cooperation in the field of taxation,69 have evidently confirmed that in some situations Article 47 may indeed require the creation of new judicial remedies. In Berlioz,70 the Court concluded, on the basis of Article 47, that a person receiving a pecuniary penalty for failure to comply with an administrative decision requiring that person to provide information in the context of an exchange of information between tax authorities, must have the right to challenge that information order before the national court hearing an action against the pecuniary administrative penalty.71 A new remedy, ie, the possibility of challenging an act that could not be challenged before, is therefore created for the individual subject to the information order. The findings of Berlioz were then confirmed and expanded in État luxembourgeois v B, in which the Court found that there must be a possibility to challenge the information order itself, even outside the context of fines for non-compliance.72 I want however to highlight a second line of cases that are also concerned with the remedial autonomy of the Member States, though in a different sense. In these cases, Article 47 has an ‘empowering’ function as regards the national courts: thanks to the combination of the direct effect of Article 47 and the primacy of EU law,73 national courts may acquire the competence to, first, disapply national provisions limiting or excluding their jurisdiction on matters of EU law, and, secondly, to invest themselves with that jurisdiction. The concept of the ‘essence’ of Article 47 – which would be infringed in the absence of a judicial remedy – is also often mentioned in that context to further corroborate those findings.74 The next paragraphs illustrate a few examples, first returning to the Torubarov and FMS decisions discussed earlier, and then moving to a ruling adopted in the context of the Polish ‘rule of law crisis’, A.K.. To start from the two Hungarian cases, as illustrated above, thanks to its constitutionally-oriented interpretation of EU procedural

65 Case C-213/89 Factortame EU:C:1990:257. 66 See Case C-432/05 Unibet EU:C:2007:163. 67 Case C-682/15 Berlioz EU:C:2017:373. 68 Case C-245/19 État luxembourgeois v B and Others EU:C:2020:795. 69 Council Dir 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC [2011] OJ L64/1. 70 For a more detailed analysis, see P Mazzotti and M Eliantonio, ‘Transnational Judicial Review in Horizontal Composite Procedures: Berlioz, Donnellan, and the Constitutional Law of the Union’ (2020) 5 European Papers 41; see also K Pantazatou, ‘The Evolution of the Right to an Effective Remedy and to a Fair Trial in Direct and Indirect Taxation: Are we There yet?’ in this volume. 71 See Berlioz (n 67) paras 56, 59. 72 See État luxembourgeois v B (n 68) para 66. 73 On the connection between Art 47 and the primacy of EU law: see E Muir, ‘The Added Value of the EU Charter of Fundamental Rights: at the Intersection of Legal Systems’ (2020) Jean Monnet Working Paper 15/20. 74 On the essence of Art 47, see K Gutman, ‘The Essence of the Fundamental Right to an Effective Remedy and to a Fair Trial in the Case-Law of the Court of Justice of the European Union: The Best Is Yet to Come?’ (2019) 20 German Law Journal 884.

92 Matteo Bonelli norms, the Court of Justice de facto filled gaps left by those secondary norms. The result of the findings of the CJEU, in both cases, was the emergence of a clear contrast between Hungarian and EU law. What remedy75 did the Court put in place for that conflict? In Torubarov, the national system did not offer to the national court the power to directly alter the incorrect decisions of the national administrative authority, nor did it create any other possibility to force the latter authority to take any specific action on the merits of the case. It was not possible, in other words, to enforce the decision of the national court upon the administration. Following the Opinion of Advocate General Bobek, the Court concluded that the result of the direct effect of Article 47 and the primacy of EU law is that the referring court should disapply the relevant provisions of national law that prohibit that court to substitute its own decision on the application for international protection to that of the administrative body. Thus, in order to guarantee respect for Article 47, the national court ‘is required to vary a decision of the administrative or quasi-judicial body … that does not comply with its previous judgment and to substitute its own decision on the application’.76 The result is that on the basis of EU law, and crucially, of Article 47 of the Charter, the national court gained power vis-à-vis the national administrative body77 that would normally be competent to determine applications for international protection under national law,78 and acquired jurisdiction to decide on the merits. A similar remedy and conclusion were offered in FMS. Again, following a combined reading of EU secondary procedural guarantees (in the Return Directive) and Article 47, the Court of Justice provisionally concluded that national legislation that provides that the addressees of a return decision cannot challenge that decision ‘before at least one judicial body’ does not comply with EU law.79 Once again, the Court did not stop there, though. It examined whether, in the circumstances of the case, EU law authorised the referring court to accept jurisdiction on the annulment of the return decisions. The Court reiterated that on the basis of the principle of primacy, national courts should disapply provisions conflicting with directly effective provisions,80 and they should ‘declare that they have jurisdiction to determine the action brought by the person concerned in order to defend the rights guaranteed to him by EU law if the domestic procedural rules do not provide for such an in action in such a case’.81 The same findings on primacy and direct effect, and their concrete consequences, are repeated in answering the final question asked by the referring court, related to detention allegedly in contrast with EU law. If necessary, ie, if national law does not provide for judicial

75 Describing the issue in terms of ‘remedy’, see Case C-556/17 Torubarov EU:C:2019:339, Opinion of AG Bobek, para 111 and following. 76 Torubarov (n 44) para 74. 77 L Prete, ‘Widening the enforcers’ legal arsenal against non-compliant Member States’ (2020) 12 Revue des affaires européennes 157, 167, argued in this respect that the national court acquired ‘some kind of superpowers’. 78 Note however that the Hungarian administrative court had that power before a more recent reform, which had modified the powers of the courts from alteration to cassation. 79 See FMS (n 45) para 130. 80 The Court made here references to Egenberger and Torubarov in relation to Art 47, see FMS (n 45) para 141. 81 ibid, para 144.

Article 47 and the (Procedural) Autonomy of the Member States 93 review of an administrative decision ordering the detention of an asylum seeker, the national court should consider itself competent to declare it has jurisdiction on reviewing the lawfulness of detention, disapplying national provisions which prohibit it from doing so, on the basis of Article 47 of the Charter.82 Another landmark case in which the Court developed a similar reasoning based on the primacy and direct effect of Article 47 of the Charter was one of the many decisions taken by the CJEU in the context of the Polish rule of law crisis: A.K. and others.83 The key question put before the Court of Justice in A.K. was the independence of the newly created Disciplinary Chamber within the Polish Supreme Court. In one of the controversial reforms of the Polish judicial system, the Polish legislature had created this new chamber within the Supreme Court, stripping the Labour and Social Insurance Chamber (the referring court in A.K.) inter alia of the possibility to hear appeals from judges on decisions rejecting a request to continue their mandates after they reached the age of retirement. The Labour Chamber asked the Court of Justice first whether the Disciplinary Chamber could be considered an independent court and, if not, what consequences should be drawn from that finding. In particular the national court asked whether it could disapply the provisions of national law which precluded its jurisdiction and decide itself on the case in question. The Court of Justice did not explicitly answer the first question: it limited itself to setting out what standards the Labour and Social Chamber should apply in order to determine the independence of the Disciplinary Chamber. The Court of Justice was however clear on what the consequences of a finding of a lack of independence would be. Referring to Torubarov, the CJEU found that the national court should then disapply the provision that assigns jurisdiction to hear cases ‘to a court which does not meet the requirements of independence or impartiality under EU law, in particular, those of Article 47 of the Charter’ and claim jurisdiction itself, ‘so that that case may be determined by a court which meets those requirements’.84 The line of the cases here described highlights the positive,85 empowering nature of Article 47. If the first manifestations of the principle of effective judicial protection in the EU legal order could be defined only as a shield and not as a sword, in the sense that effective judicial protection only prevented the application of national law provision conflicting with that principle, but did not dictate any new rule,86 today effective judicial

82 ibid, para 291; see also para 299 on interim relief. 83 See Case C-585/18 A.K. and others EU:C:2019:982; In general, on the decision, M Krajewski and M Ziólkowski, ‘EU judicial independence decentralized: A.K.’ (2020) 57 Common Market Law Review 1107; M Leloup, ‘An Uncertain First Step in the Field of Judicial Self-government’ (2020) 16 European Constitutional Law Review 145. 84 A.K. (n 83) para 166. 85 On the positive nature of the principle of effective judicial protection, vis-à-vis the more ‘negative’ formulation of effectiveness (which, it can be recalled, requires that national procedural rules should not make claims ‘virtually impossible or excessively difficult’) see Prechal and Widdershoven (n 12) 40, 41; See also G Gentile, ‘The scrutiny of the European Court of Justice over national procedural rules under Article 47 Charter: between EU constitutional essentialism and the enhancement of justice in the Member States’, in C Mak and B Kas (eds), Civil Courts and the European Polity: The Constitutional Role of Private Law Adjudication in Europe (Hart Publishing, forthcoming). 86 See R Caranta, ‘Judicial protection against Member States: A new jus commune takes shape’ (1995) 32 Common Market Law Review 714.

94 Matteo Bonelli protection as provided by Article 47 acts more and more often as a sword as well. In other words, the Court of Justice does not stop at disapplication, but sets out what must be done by the national court. Now, it must be said that almost all the cases described here could be read in a narrow sense linked to their specific context: broad systemic questions of judicial independence (A.K.) or systemic problems with the asylum system of a Member State (Torubarov, FMS). Furthermore, in two of these cases (Torubarov and A.K.), what made it easier for the CJEU to reach its conclusions is that the referring courts, in a not-so-distant past, already had the competence to decide on the merits, and they were later deprived of their jurisdiction: disapplying national law ultimately means a return to the previous situation. Yet the principle affirmed is potentially far-reaching, as argued also by Prechal, since ‘what the national court is not allowed to do under national law, it is obliged to do as a matter of EU law in order to safeguard effective judicial protection’.87 While the results may at first sight be fairly obvious consequences of the primacy and direct effect of Article 47, on closer inspection they might lead to important disruptions in national jurisdictional systems. There is in fact an element of uneasiness, if not of fiction, in saying that a fundamental right, in virtue of its direct effect, becomes applicable instead of a norm limiting or excluding the jurisdiction of a court. It is a peculiar result, as these are evidently two different kinds of norms, but again this shows the empowering function that Article 47 has acquired in the jurisprudence of the Court. And ultimately, there is much to be appreciated in the approach of the CJEU, which in all the cases considered in this section moved to fill a real gap in judicial protection and ensure effective remedies. Regardless of the more or less critical eye that might be directed towards the approach of the Court, in conclusion it is worth underlining two elements: firstly, this line of case law on Article 47 evidently extends beyond the previous Rewe test, as it goes much further in empowering national courts; secondly, the remedial autonomy of the Member States, as described in the opening of this section, is further diminished as a result.

V. Institutional and Structural Autonomy: Judicial Independence There is then a third line of cases (also) based on Article 47 of the Charter that can be seen as going significantly beyond the pre-Lisbon scenario and leading to a reduction of the autonomy of the Member States: the ‘judicial independence’ case law of the Court. Speaking of procedural autonomy in this respect would be to some extent far-fetched. The case law of the Court evidently does not deal with procedural aspects of the enforcement of EU law, but with structural and institutional elements. In order to better distinguish the three developments, this chapter proposes to use

87 Prechal (n 17) 181; For the possible impact of a decision like A.K. on the separation of powers, see Leloup (n 83).

Article 47 and the (Procedural) Autonomy of the Member States 95 the expression institutional autonomy.88 The theme is discussed more in detail in Krajewski’s chapter in this volume, so this section seeks to add few considerations mostly related to the specific role of Article 47 of the Charter – vis-à-vis Article 19 TEU – in the judicial independence’s context.89 Indeed, while the latter provision90 has been instrumental in opening this new line of cases, starting from the much-discussed ASJP decision91 and then in the first Commission v Poland (Supreme Court) infringement action and other follow-up cases,92 Article 47 has still played key functions. Firstly and most importantly, the Court of Justice has built the substantive content of Article 19 TEU and the obligations and standards of judicial independence on the basis of Article 47 of the Charter. While the case law of the Court cannot be seen, at least for the time being,93 as extending the scope of application of the Charter, the content of the two provisions seems to overlap perfectly, insofar as it concerns questions of judicial independence.94 Advocate General Tanchev had suggested otherwise in one of the earlier opinions in one of the Polish cases,95 arguing that Article 19 was only concerned with truly ‘structural’ issues,96 while Article 47 was first and foremost an individual fundamental right, but the case law of the Court does not make that distinction, as Tanchev himself admits in later opinion.97 There is therefore what has been defined as a ‘constitutional passarelle’ between the two provisions.98 Thus, the case law of the Court is mostly based on Article 19 TEU, as this provision has a broader scope of application than the Charter, but the substantive content of Article 19 is actually determined with reference to Article 47 of the Charter.99 Furthermore, if, in the context of a preliminary ruling or an infringement action, the case falls within the scope of EU law because there is another norm of EU law applicable (a ‘triggering norm’),100 then Article 47 becomes fully applicable. This was, for example, the case in A.K., discussed above.101

88 The expression is also used in the Joined Cases C-83/19, C-127/19 and C-195/19 Asociaţia ‘Forumul Judecătorilor din România’ EU:C:2021:746, Opinion of AG Bobek, paras. 113 and 227-232; See also Joined Cases C-357/19 and C-547/19 Euro Box Promotion and Others EU:C:2021:170, Opinion of AG Bobek, para 208. 89 On the relationship between Art 19 and Art 47, see also S Prechal, ‘Article 19 TEU and National Courts: A New Role for the Principle of Effective Judicial Protection’, in this volume. 90 For further reflections on the role of Art 19, see Bonelli (n 15). 91 Case C-64/16 ASJP EU:C:2018:117. 92 Case C-619/18 Commission v Poland (Supreme Court) EU:C:2019:531. 93 Arguing however that Art 19 may become an open door for the application of the Charter beyond the limits of Art 51, A Torres Pérez, ‘From Portugal to Poland: The Court of Justice of the European Union as watchdog of judicial independence’ (2020) 27 Maastricht Journal of European and Comparative Law 105. 94 In agreement, Krajewski (n 6). 95 See Case C-192/18 Commission v Poland (Independence of Ordinary Courts) EU:C:2019:529, Opinion of AG Tanchev, para 115. 96 Expressing a similar view, see also Asociaţia ‘Forumul Judecătorilor din România’, Opinion of AG Bobek (n 88), para 223, in which the AG argued that Art 19 should remain an ‘exceptional tool for exceptional cases’. 97 See Case C-824/18 A.B. and others EU:C:2020:1053, Opinion of AG Tanchev, para 90. 98 ibid, para 85; See also Case C-896/19 Repubblika EU:C:2020:1055, Opinion of AG Hogan, para 45. 99 See again Prechal (n 89). 100 D Sarmiento, ‘Who’s afraid of the Charter? The Court of Justice, National Courts and the new Framework of Fundamental Rights Protection in Europe’ (2013) 50 Common Market Law Review 1267. 101 A.K. (n 83) para 81.

96 Matteo Bonelli The type of questions that have been tackled by the Court of Justice in the Polish cases, but also in other references coming from, most notably, Malta102 and Romania,103 are quite far removed from the ordinary issues tackled under the Rewe test of equivalence and effectiveness. They concern key institutional elements of national judiciaries, including the irremovability of judges, disciplinary proceedings, the composition and functioning of national judicial councils, or even procedures for the appointment of judges.104 Even if the EU lacks legislative competence in those areas,105 which remain firmly within the competence of the Member States, Articles 47 of the Charter and 19 TEU still impose relevant obligations that Member States need to comply with. The steps taken by the Court in the field of judicial independence diminish the autonomy of the Member States in those institutional areas. Yet, this should not be understood as a criticism of the approach of the Court. The CJEU has actually shown adequate self-restraint until today,106 but it continues to face difficult questions on how broad its mandate over national judiciaries really is, considering also that some national courts seem really keen to invest Luxembourg with far-reaching, disruptive questions when engaged in institutional battles with other domestic actors.107

VI. What Has Article 47 Changed? Concluding Thoughts After more than a decade of practice and key CJEU decisions, it seems possible to conclude that the codification of the principle of effective judicial protection in Article 47 of the Charter and 19 TEU did not simply crystallise the pre-Lisbon situation, but paved the way to further developments that have, broadly speaking, limited the autonomy of the Member States. Whether or not the same results could be achieved on the basis of the principle of effective judicial protection, or the two Rewe principles, may be debatable: while it is true, on the one hand, that even before Berlioz and Luxembourg v B the Court had demanded the creation of new judicial remedies, on the other, the far-reaching case law on judicial independence, but also the consequences linked to the direct effect and primacy of EU law, arguably necessitated more solid and legitimate legal bases such as those created by the Lisbon Treaty. In any event, even if the Rewe principles of effectiveness and equivalence, as well the general principle of effective judicial protection, do retain their relevance, it is now clear that Article 19 TEU and 47 of the Charter can be considered the key pillars of the new edifice of judicial protection and judicial

102 Case C-896/19 Repubblika EU:C:2021:311. 103 Joined Cases C-83/19, C-127/19 and C-195/19 Asociaţia ‘Forumul Judecătorilor din România’ v Inspecţia Judiciară EU:C:2021:393. 104 See again Repubblika (n 102); On judicial appointments – but within the CJEU – and Art 47 see also Joined Cases C-542/18 RX-II and C-543/18 RX-II Review Simpson EU:C:2020:232. 105 As clearly expressed in Commission v Poland (Supreme Court) (n 93), para 52. 106 See again Krajewski (n 6). 107 Joined Cases C-357/19 and C-547/19 Euro Box Promotion and Others EU:C:2021:1034 and Case C-497/20 Randstad EU:C:2021:1037 are good examples of that situation, though the latter does not concern judicial independence questions; See also O Scarcello, ‘The Randstad Case: Melki Reloaded? The Fundamental Right to Effective Judicial Protection as Battleground for Judicial Supremacy in European Law’ (2021) 4 Nordic Journal of European Law 53.

Article 47 and the (Procedural) Autonomy of the Member States 97 enforcement of EU law rights. As Arnull put it, ‘the venerable principles of national procedural autonomy, equivalence and effectiveness seem to have been absorbed into a more complex matrix of rules and principles which represent a considerable intrusion into fields formerly considered the prerogative of the Member States’.108 This chapter concentrated in particular on whether and how the interpretation of Article 47 by the Court has created further limits to the procedural autonomy of the Member States. In agreement with other recent contributions,109 it argued that national autonomy has indeed been further limited, not only because Article 47 brings with it a stricter and more demanding test regarding effectiveness;110 but also, and perhaps first and foremost, because it has pushed the scrutiny of the EU more intensely into aspects related to the remedial autonomy and even the structural and institutional autonomy of the Member States. The entry into force of the Lisbon Treaty has thus opened a ‘distinct new phase’ when it comes to the relationship between effective judicial protection and national (procedural) autonomy.111 At the same time, and as argued earlier, the introduction of Article 47, and the way the Court interprets it, have not been a total revolution and radical departure from the past. Already before Lisbon, the principle of effective judicial protection was seen, at least by some, as adding further bite to the Rewe principles. And crucially, it had already served to bring individuals and their fundamental rights, as well as the rule of law as a substantive value – and not the effectiveness of EU law per se, or effet utile to distinguish it from the Rewe effectiveness – to the centre of the judicial construct.112 There is therefore a continuous harmonising113 or centralising114 trend, to which Article 47 has certainly contributed, and the argument is rather that the more recent and ambitious case law of the Court of Justice, as described in this chapter, has further amplified and intensified that trend. What should we make of the idea of procedural autonomy after the developments here described? It is increasingly clear that it is far from being a domaine réservé, an exclusive competence of the Member States.115 To be clear, on a closer reading of Rewe, that was never the position of the Court. Rather, procedural autonomy should be (and should have always been) intended in a softer sense: only to the extent that there are no EU harmonising provisions, and providing that the national rules respect Article 47 of 108 A Arnull, ‘Article 47 CFR and national procedural autonomy’ (2020) 45 European Law Review 681, 690; See also Prechal (n 7) 156, arguing that since the declaration of the Charter as primary law, Art 47 is ‘the reference standard’ when the Court provides effective judicial protection. 109 See again Arnull (n 108); M Eliantonio and E Muir, ‘The Principle of Effectiveness: under Strain?’ (2019) 12 Review of European Administrative Law 255; X Groussot and A Zemskova, ‘The Rise of Procedural Rule of Law in the European Union – Historical and Normative Foundations’, in AB Engelbrekt et al, 30 Years After the Fall of the Berlin Wall: Rule of Law in the European Union (Hart Publishing, 2021). 110 The topic was not developed in this contribution, but see Prechal (n 7) and Widdershoven (n 29). 111 Arnull (n 108) 682. 112 See Prechal and Widdershoven (n 12). 113 V Roeben, ‘Judicial Protection as the Meta-norm in the EU Judicial Architecture’ (2019) 12 Hague Journal of the Rule of Law 29; See earlier M Safjan and D Düsterhaus, ‘A Union of Effective Judicial Protection: Addressing a Multi-level Challenge through the Lens of Article 47 CFREU’ (2014) 33 Yearbook of European Law 3. 114 A Mickonytė, ‘Effects of the Rule-of-Law Crisis in the EU: Towards Centralization of the EU System of Judicial Protection’ (2019) 79 Heidelberg Journal of International Law 815. 115 See already Kakouris (n 22).

98 Matteo Bonelli the Charter, as well as the principles of equivalence and effectiveness, then a Member State can be said to enjoy a ‘light’ form of autonomy. The formula developed by the Court of Justice in A.K. and FMS, which may be said to restate the Rewe test, but from the point of view of Article 47 of the Charter, describes the situation effectively: ‘when there are no EU rules governing the matter, although it is for the domestic legal system of every Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States are, however, to ensure compliance in every case with the right to effective judicial protection of those rights as enshrined in Article 47 of the Charter’.116 In conclusion, procedural autonomy, as well as remedial and institutional autonomy, in the sense indicated in this chapter, remains a valuable idea, but should not be seen as a legally binding legal principle,117 and not even as the starting point of the discussion in an increasingly more Europeanised and harmonised space, with stronger obligations imposed at the EU level.

116 See FMS (n 45) para. 142; See also A.K. (n 83) para 115 using a very similar formulation. 117 Widdershoven (n 29) 13 similarly noted that procedural autonomy is not an EU legal principle, but merely ‘a point of departure’, though perhaps it cannot be even classified as such anymore.

6 ‘A Spectre is Haunting Kirchberg’ – The Spectre of Article 47: The CJEU Case Law on the Finality of Judicial Decisions and on the Ex Officio Application of EU Law MARIOLINA ELIANTONIO*

The rules on finality of judicial decisions and those on the power or duty for courts to raise ex officio points of law which have not been invoked by the parties aim to strike what each legal system perceives as a fair balance between opposing interests, those of legality on the one hand, and of legal certainty and procedural fairness, on the other. These rules have been subject to the scrutiny of the Court of Justice both before and after the entry into force of the Charter. This chapter examines the case law on these issues and considers how the principle of effective judicial protection, and the right to an effective remedy enshrined in Article 47 of the Charter, have been used by the CJEU. The analysis shows that the case law has been based on the duty of sincere cooperation, as well as the principles of equivalence and effectiveness, with Article 47 and the principle of effective judicial protection remaining almost entirely in the background. This chapter explores the possible reasons for the absence of Article 47 in the case law of the Court and reflects on whether Article 47 would have provided an added value for litigants.

I. Introduction The rules on the finality of judicial decisions – which are present in national legal systems1 as well as the EU legal order2 – serve to strike a balance between two competing imperatives: that of legality, which would hold unlawful decisions to be ideally * Professor of European and Comparative Administrative Law and Procedure, Maastricht University. 1 See further, CW Backes and M Eliantonio, Casebook Judicial Review of Administrative Action (Hart Publishing, 2019) ch 7, s 7.6; See also A Turmo, ‘National res judicata in the European Union: Revisiting the tension between the temptation of effectiveness and the acknowledgement of domestic procedural law’ (2021) 58 Common Market Law Review 361. 2 On this and the relevant case law, K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, 2015) 854.

100 Mariolina Eliantonio revocable by an authority or reviewable by a court indefinitely, and that of legal certainty, which requires that legal relationships between citizens and administration be definitively settled at a certain point. The question of where to strike the balance between legality and legal certainty assumes a whole new dimension in the context of the EU legal order, since rules limiting the re-opening of a final administrative decision or a judicial decision which has acquired the status of res judicata, prevent the correct application of EU law and might even be considered a threat to the primacy of EU law. Similarly, rules on the power or duty for courts to raise ex officio points of law which have not been invoked by the parties exist in both the national and EU legal orders.3 These aim to balance, on the one hand, the need to uphold ‘objective legality’, protecting collective interests (when, eg, rules of public policy are at stake), or upholding the imperative to deliver a sound judgment irrespective of the capacities and actions of individual litigants or their legal counsels, considerations which would all speak in favour of broad ex officio powers for courts. In the context of the EU legal system, the need for courts to apply EU law ex officio may also be regarded as being linked to the need to ensure the effective application of EU law. On the other hand, considerations of procedural fairness (linked to the need to ensure the ‘party disposition’ principle in a dispute) as well as procedural economy would seem to limit the ex officio powers of judges. Already since the Rewe ruling,4 the CJEU has been seized on several occasions by national courts with questions concerning rules on the finality of administrative and judicial decisions as well as rules on the obligation to raise ex officio rules of EU law which the parties have not relied on. As will be shown in this chapter, one common denominator of these cases is that, in the view of the Court, none of the imperatives protected by the rules is absolute: a fair balance between, on the one hand, the need to preserve legal certainty and procedural fairness and efficiency, and, on the other, to ensure that the primacy and correct application of EU law needs to be stricken by national rules and national courts. The chapter will review the case law on these issues and consider how the principle of effective judicial protection, and the right to an effective remedy enshrined in Article 47 of the Charter, have been used by the CJEU.5 The analysis will be carried

3 See further, CW Backes and M Eliantonio (n 1) ch 5, s 5.6; See also A Östlund, Effectiveness versus Procedural Protection – Tensions triggered by the EU law mandate of ex officio review (Nomos, 2019). 4 Case C-33/76 Rewe-Zentralfinanz eG et Rewe-Zentral AG v Landwirtschaftskammer für das Saarland EU:C:1976:188. 5 It should be noted that this chapter will not cover the case law on the rules concerning the need to re-open final administrative decisions. While these rules are conceptually similar to those concerning the finality of rulings and the duty to re-open rulings which have become res judicata, and they do raise similar concerns to the latter in terms of balancing legality with legal certainty, they are less relevant for the purposes of the present analysis which is concerned with effective judicial protection and the right to an effective judicial remedy. For a thorough analysis of the case law (from the 2004 Kühne & Heitz to the 2012 Byankov rulings), see the overview in J Jans, S Prechal and R Widdershoven (eds), Europeanisation of Public Law (Europa Law Publishing, 2015) 389; Suffice here to note that, in all of the relevant rulings, no mention is made of either the principle of effective judicial protection or of Art 47 EUCFR. This is certainly due to the ‘age’ of the case law, most of which (and certainly this is the case for Kühne & Heitz, the foundational ruling) was handed down before the Charter became binding. Furthermore, considering that the rules at stake are rules

Finality of Judicial Decisions and the Ex Officio Application of EU Law 101 out diachronically to reveal potential paths or inconsistencies in the evolution of the case law. It will be shown that the case law has been grounded on the duty of sincere cooperation, as well as the principles of equivalence and effectiveness, with Article 47 and the principle of effective judicial protection being nothing more than a ‘spectre’. Finally the chapter will reflect on whether Article 47 would have provided an added value for litigants and provide recommendations on changes to be sought in the case law of the CJEU.

II. Re-Opening Final Judicial Decisions: Procedural Autonomy Limited by Equivalence and Effectiveness A. The Principle of National Procedural Autonomy as the Default Position The Court of Justice was confronted for the first time with rules on res judicata in Kapferer.6 This case involved a dispute between a consumer domiciled in Austria and a trader domiciled in Germany. The consumer had appealed to an Austrian court which declared that it had jurisdiction on the basis of the applicable EU law provisions,7 a circumstance which was contested by the German trader. The Austrian court had declared itself competent, but this decision had not been challenged by the German trader who had also won the case on the merits. The consumer appealed this ruling. While the decision on jurisdiction had become final, the Court of Appeal wondered if it could reconsider it because it seemed to violate EU law. In this case, the Court of Justice first recalled the importance, both for the Community legal order and national legal systems, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question.8

It then continued by stating that EU law does not require national courts to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of EU law, but domestic rules on the issue must comply with the principles of equivalence and of effectiveness.9

applicable before administrative authorities rather than rules of court procedure it seems rather straightforward that Art 47 did not play any role (and – it can be argued – does not have the potential to play a role) as it is meant to guarantee an effective remedy ‘before a tribunal’. 6 Case C-234/04 Kapferer EU:C:2006:178. 7 Council Reg (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1, Art 15. 8 See also A Tizzano and B Gencarelli, ‘Union Law and final decisions of national courts in the recent case law of the Court of Justice’ in A Arnull, C Barnard, M Dougan and E Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Hart Publishing, 2011) 267–80, 268. 9 See Kapferer (n 6) paras 21–22.

102 Mariolina Eliantonio As a consequence, the Court in this case did not create a European remedy. This point of departure was kept in all subsequent case law.10 For example, in Hochtief, the Court departed from the principle of national procedural autonomy and reiterated its default point on the basis of which, if a power to re-open a final judicial decision exists in national law, it must be exercised with respect to an EU claim. If this power does not exist, EU law does not require the creation of such a remedy. The Court left it to the national court to determine whether Hungarian procedural rules include the possibility of reversing a judgment which has acquired the force of res judicata, for the purpose of rendering the situation arising from that judgment compatible with an earlier judicial decision which has become final where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision. If that were the case […] that possibility should, in accordance with the principles of equivalence and effectiveness, in the same circumstances, prevail in order to render the situation compatible with an earlier judgment of the Court.11

This is also the case if the national court before which the initial litigation took place had not, or inaccurately, applied EU law as established in the response of the ECJ to a preliminary reference. Similarly, in Telecom Italia, the Court stated that a national court is not required to bypass the principle of res judicata in order to ensure that a certain interpretation of EU law given in a preliminary ruling be respected in a subsequent litigation.12 This is because national courts have, in any case, an obligation to interpret national law, in as far as possible, in line with EU law.

B. Limitations Imposed by the Principle of Equivalence As mentioned above, according to the CJEU, an obligation to reopen a final judicial decision might result from the principle of equivalence, in particular where national law offers the opportunity to bypass the res judicata nature of the decision under certain circumstances. A clear enunciation of the applicability of principle of equivalence to these situations can be found in the Impresa Pizzarotti ruling. Here the Court stated that if the applicable domestic rules of procedure provide the possibility, under certain conditions, for a national court to go back on a decision having the authority of res judicata in order to render the situation compatible with national law, that possibility must prevail if those conditions are met, in accordance with the principles of equivalence and effectiveness, so that the situation at issue in the main proceedings is brought back into line with the EU legislation on public works contracts.13

10 Case C-213/13 Impresa Pizzarotti EU:C:2014:2067, para 59, quoting the earlier case law on this point. 11 Case C-620/17 Hochtief EU:C:2019:630, para 63. 12 Case C-34/19 Telecom Italia EU:C:2020:148. 13 ibid, para 62; For another application of the principle of equivalence, see also Case C-40/08 Asturcom EU:C:2009:615.

Finality of Judicial Decisions and the Ex Officio Application of EU Law 103 In this case, Italian law provided for an opportunity to limit the res judicata of an incorrect judicial decision under certain circumstances in purely domestic cases. Therefore, the national court was considered – on the ground of the principle of equivalence – obliged to use this possibility under the same circumstances if the judicial decision is contrary to EU law. However, as in earlier case law concerning equivalence,14 the Court was seized on questions of how to assess the principle of equivalence for the purposes of considering two actions to be ‘equivalent’. In Tarsia, the Court gave indications on how to assess if there is a similar action for the purposes of establishing a possible violation of the principle of equivalence. In particular, the Court held that [I]t follows that the principle of equivalence does not preclude a situation where there is no possibility for a national court to revise a final decision of a court or tribunal made in the course of civil proceedings when that decision is found to be incompatible with an interpretation of EU law upheld by the Court after the date on which that decision became final, even though such a possibility does exist as regards final decisions of a court or tribunal incompatible with EU law made in the course of administrative proceedings.15

Hence, according to the Court, there is no ‘inter-jurisdictional’ equivalence for the purposes of rules on res judicata. If the re-opening of a final judicial decision is possible under certain conditions in administrative proceedings, the principle of equivalence does not require re-opening in civil proceedings.16 A further explanation on how to assess if there is a similar action was provided in XC. Here the Court explained that a national court is not required to extend to infringements of EU law, in particular to infringements of the fundamental rights guaranteed in Art. 50 [of the Charter of Fundamental Rights] and Art. 54 [of the Convention implementing the Schengen Agreement], a remedy under national law permitting, only in the event of infringements of the ECHR or one of the protocols thereto, the rehearing of criminal proceedings closed by a national decision having the force of res judicata.17

Hence, there is also no ‘inter-right’ equivalence for the purposes of rules on res judicata. If re-opening a final judicial decision is possible under certain conditions for infringements of the ECHR, the principle of equivalence does not require re-opening in respect of violations of EU law.18

14 See eg Case C-261/95 Palmisani EU:C:1997:351; Case C-147/01 Weber’s Wine World EU:C:2003:533; Case C-78/98 Preston EU:C:2000:247; Case C-63/08 Pontin SA EU:C:2009:666. 15 Case C-69/14 Târșia EU:C:2015:662, para 35. 16 Further on this, see K Sowery, ‘Equivalent treatment of Union rights under national procedural law: Târsia’ (2016) 53 Common Market Law Review 1705, 1722. 17 Case C-234/17 XC EU:C:2018:853, para 59. 18 For critical remarks on this, Z Varga, ‘Retrial and principles of effectiveness and equivalence in case of violation of the ECHR and of the Charter: XC’ (2019) 56 Common Market Law Review 1673, 1690, 1694 where the author concludes that ‘neither the choice of the actions to be compared, nor the comparison of these actions are completely coherent with earlier case law’.

104 Mariolina Eliantonio Finally, in Călin, the Court reiterated that the appropriate first benchmark to assess national rules on res judicata is the principle of equivalence, but left it to the national court to determine whether it had been violated.19 In this case, Romanian law provided for a procedure for requesting the revision of final judicial decisions which prove to be contrary to EU law, subject to a limitation period of one month, which ran from the date of notification of the judgment in respect of which revision is sought. As the Court of Justice concluded that it was not clear if there was an appropriate comparator to this mechanism for purely national claims, it left the assessment of the principle of equivalence to the national level.

C. Limitations Imposed by the Principle of Effectiveness The fact that the principle of res judicata and national procedural autonomy in general prevail does not imply that every procedural national rule will be considered acceptable, even if the test of equivalence is met. Certain national systems might be too restrictive to comply with the principle of effectiveness. Fallimento Olimpiclub gives indications on how the principle of effectiveness is to be assessed. According to the Court, ‘account must be taken, where appropriate, of the principles which form the basis of the national judicial system concerned, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of proceedings’.20 In this case, national law prevented a judicial decision that had acquired the force of res judicata from being called into question also ‘in the context of judicial scrutiny of another decision taken by the relevant tax authority in respect of the same taxpayer or taxable person, but relating to a different tax year’.21 In the assessment of the Court, if the principle of res judicata were to be applied in that manner, the effect would be that, if ever the judicial decision that had become final were based on an interpretation of the Community rules concerning abusive practice in the field of VAT which was at odds with Community law, those rules would continue to be misapplied for each new tax year, without it being possible to rectify the interpretation.22

In the view of the Court ‘such extensive obstacles to the effective application of the Community rules on VAT cannot reasonably be regarded as justified in the interests of legal certainty and must therefore be considered to be contrary to the principle of effectiveness’.23

19 Case

C-676/17 Călin EU:C:2019:700. C-2/08 Fallimento Olimpiclub Srl EU:C:2009:506. para 29. 22 ibid, para 30. 23 ibid, para 31. 20 Case 21 ibid,

Finality of Judicial Decisions and the Ex Officio Application of EU Law 105 The 2020 Cabinet de avocat UR case provided the CJEU with an opportunity to confirm this approach.24 The referring court indicated that the rules on res judicata would prevent it from taking into account the correct interpretation of EU legislation on VAT, so that the interpretation of EU law provided in the res judicata ruling would have to continue to apply for later fiscal years. As in Fallimento Olimpiclub the Court concluded against that such ‘extensive obstacles’ to the application of the EU rules on VAT were contrary to the principle of effectiveness.25 In Tarsia, the same test as Fallimento Olimpiclub was applied by the Court, but the conclusion was that the principle of effectiveness was not violated.26 However, the Court recalled that State liability is an avenue in cases where a national court of last instance violated EU law, on the basis of the Köbler remedy.27 This reminder has become standard in the recent case law on the matter.28 In Finanmadrid, instead, the principle of effectiveness was considered as violated.29 The case concerned a rule of Spanish civil procedure which prevented the national court ruling on the enforcement of an order for payment from assessing, on its own motion, whether a term was unfair. This limitation arose from the authority of res judicata granted to the decisions of court registrars who were competent to hear applications for such orders, but not to assess the fairness of contract terms. The result of the application of the rule, in the view of the Court, was that it could be excessively difficult, or impossible, to ensure that consumers obtain the protection conferred upon them by EU law. As in Fallimento Olimpiclub, the rules on res judicata applicable in this case were quite restrictive. The system in fact provided that a res judicata ruling could be adopted without adversarial proceedings, which could quite seriously impinge on a consumer’s rights. The Călin ruling mentioned above is another case in which the rules were considered too restrictive to comply with the principle of effectiveness. In this case, the Romanian system provided that an action for revision of a ruling which was res judicata had a time limit of one month. With respect to the time limit in itself, the Court held that ‘the length of the time limit for bringing the action for revision at issue in the main proceedings does not appear, in itself, liable to make it in practice impossible or excessively difficult to submit a request for revision of a final judgment’.30 However, the one-month time limit for bringing an action for revision started running from the publication of the ruling in the Romanian Official Journal. Although the ruling which had become res judicata was delivered on 12 December 2016, it was not published in the Official Journal until 23 May 2017. The national court applied the limitation period provided for in the initial ruling in order to find that the action for

24 Case C-424/19 Cabinet de avocat UR EU:C:2020:581. 25 ibid, para 33. 26 See Târșia (n 15). 27 For critical remarks on this point, see Sowery (n 16) 1720. 28 See, eg XC (n 17) para 58; See also Hochtief (n 11) para 64; See Călin (n 19) para 56; See also Telecom Italia (n 12) paras 67–69. 29 Case C-49/14 Finanmadrid EU:C:2016:98. 30 See (n 19) para 49.

106 Mariolina Eliantonio revision brought by the applicant was time-barred, even though that ruling had not yet been published by the time the time limit had expired. In this case, the court considered that the principle of effectiveness was violated. The reason seems to be grounded in the fact that, in the specific circumstances of the case, the application of the time limit in question gravely violated the notion of legal certainty and the rule of law, as the person concerned was not officially aware of the ruling because it had not been published according to the appropriate modalities. A further intrusion into the rules on res judicata on the grounds of the principle of effectiveness is provided in the Vueling ruling.31 In this case, the Criminal Chamber of the French Cour de Cassation found that Vueling had committed fraud in obtaining E-101 certificates from the Spanish authorities for its flight and cabin crew members operating out of Paris airport. In subsequent litigation, a French lower civil law court and the Social Chamber of the Cour de Cassation both had doubts concerning the compatibility of the judgment of the Criminal Chamber with EU law. However, in principle they were both bound by the res judicata nature of the ruling of the Criminal Chamber. The Court of Justice confirmed that the Criminal Chamber had indeed adopted a ruling in violation of EU law and went to on to determine whether the French rules on res judicata, preventing the court seized of the subsequent litigation from departing from the ruling adopted by the Criminal Chamber, were in violation of the principle of effectiveness. The Court concluded that French rules prevented the civil courts from calling into question the findings of fact and legal classifications made by the criminal courts in breach of EU law, and that this incorrect application of EU law would persist through all later litigation concerning the same facts. According to the ECJ, this effect of res judicata goes beyond what could ‘reasonably be justified by the principle of legal certainty’.32

D. The Lucchini Case and its Follow-Up The decisions of national courts relating to state aid disputes have been – at least in the beginning – subject to a separate regime due to the competence of the Commission in this area. Indeed only the Commission can rule on the compatibility of state aid with the Treaty, which is why Member States are required to notify the Commission of new aid. The role of national courts is therefore confined to the question of whether a national measure constitutes state aid which must be notified to the Commission. The Court of Justice was confronted with a situation in which the national court had, by a

31 Joined Cases C-370/17 and C-37/18 Vueling EU:C:2020:260. 32 ibid, para 96; It should be noted that while there is some similarity between the situations at stake in Fallimento Olimpiclub and Vueling, in that the determination of certain facts and their legal interpretation would be binding in future litigation, there are also quite clear – and possibly more crucial – differences; Further on this, see Turmo (n 1) 377–78, who argued that, in Vueling, the incursion into national procedural autonomy in the name of effectiveness seems even more intense than in Fallimento Olimpiclub.

Finality of Judicial Decisions and the Ex Officio Application of EU Law 107 decision having the force of res judicata, disregarded the Union rules relating to state aid. The authority of res judicata thus constituted an obstacle to the recovery of aid paid in violation of EU law. In the Lucchini judgment of 2007, the Court ruled very clearly that a national provision concerning the authority of res judicata could not stand in the way of recovery of the aid.33 To justify this solution, the Court of Justice relied on the doctrine of the primacy of EU law.34 The solution chosen by the Court of Justice in this case seems to be motivated by a number of factors. First of all, the Court was confronted with a final national judgment on a question over which the Commission had sole competence. Secondly, the Commission had already delivered its decision on the compatibility of the aid with EU law. The subsequent national decision ordering the disbursal of aid therefore disregarded EU law entirely. As has been argued, what seems to have prompted the Court of Justice to go beyond the need to respect the doctrine of res judicata is ‘the number of manifest errors or the condemnable passivity, to say the least, of the Italian authorities, national administrations and civil jurisdictions; and even, above all, the “ingenuity” of the claimant who was the beneficiary of the illegal aid’.35 Subsequently, the Court of Justice had the opportunity to specify more explicitly that it is because of the exclusive competence of the Commission in matters of state aid control that the authority of res judicata should be set aside.36 Especially when the question of the extension of the Lucchini case law to hypotheses other than the reimbursement of state aid was raised, the Court considered that ‘that judgment concerned a highly specific situation, in which the matters at issue were principles governing the division of powers between the Member States and the Community in the area of state aid, the Commission of the European Communities having exclusive competence to assess the compatibility with the common market of a national state aid measure’.37 This was the case in the Fallimento Olimpiclub ruling mentioned above. This case involved VAT fraud. Seized by the tax authorities, the national courts had for certain tax years considered that there was no fraud. For the following years, the administration had again appealed to the courts, which then considered that there was fraud, but the authority of res judicata in the previous cases stood in the way of the conviction of the taxpayers. The financial nature of the case had probably led the national court to draw a parallel with the state aid dispute. Nevertheless, the Court distinguished Lucchini from its common approach, and limited it to the state aid field.38 33 Case C-119/05 Lucchini EU:C:2007:434. 34 The ruling has been considered by several commentators as a very profound incursion into national procedural autonomy; See, eg P Bříza, ‘Lucchini SpA – is There Anything Left of Res Judicata Principle?’ (2008) 27 Civil Justice Quarterly 40; G Raiti, ‘The crisis of civil res judicata in the EC legal system’ (2008) 13 Zeitschrift für Zivilprozess international 23; P Nebbia, ‘Do the rules on State aids have a life of their own? National procedural autonomy and effectiveness in the Lucchini case’ (2008) 33 European Law Review 427. 35 See Tizzano and Gencarelli (n 8) 275; Along the same lines, see Turmo (n 1) 372–73. 36 See, eg Case C-586/18 P Buonotourist Srl v Commission EU:C:2020:152, para 95. 37 See Fallimento Olimpiclub (n 20) para 25. 38 Further on the possibility to reconcile Lucchini with Fallimento Olimpiclub, A Kornezov, ‘Res judicata of national judgments incompatible with EU law: Time for a major rethink?’ (2014) 51 Common Market Law Review 809.

108 Mariolina Eliantonio The Klausner Holz judgment of 2015 confirmed this approach, but the Court of Justice linked the Lucchini line of case law to the principle of effectiveness without spotlighting primacy.39 In this case, a German Land had contracted timber at a particularly favourable price to the applicant company. However, the Land had not delivered all the quantities of timber which it had agreed to and ultimately terminated the contract. The company appealed to the courts asking them to find that the contracts were still in force and won. Subsequently, the company again appealed to the court to obtain compensation for the damage caused by the non-performance of the contract. The Land raised as a defence that these contracts constituted state aid which had not been notified to the European Commission. It was this second case which was the subject of the preliminary question before the Court of Justice. Unlike Lucchini, the question posed in Klausner Holz thus concerned the extent of the authority of res judicata, as the second case concerned the same parties, but did not have the same subject matter or the same cause. Furthermore, the situation differed from Lucchini as doubts over the compatibility of the aid with the internal market had not yet been resolved by the Commission. Therefore, there was no Commission decision being directly disregarded as it had been the case in Lucchini. Nevertheless, the Court of Justice concluded that a national rule which prevents the national court from drawing all the consequences of a breach of the third sentence of Article 108(3) TFEU because of a decision of a national court, which is res judicata, given in a dispute which does not have the same subject-matter and which did not concern the State aid characteristics of the contracts at issue must be regarded as being incompatible with the principle of effectiveness. A significant obstacle to the effective application of EU law and, in particular, a principle as fundamental as that of the control of State aid cannot be justified either by the principle of res judicata or by the principle of legal certainty.40

E. Interim Conclusion The case law of the Court on the rules concerning the reopening of judicial decisions having acquired the force of res judicata remains anchored to the principle of national procedural autonomy, as limited by the principles of equivalence and effectiveness. The point of departure is that EU law does not unconditionally require the re-opening of final judicial decisions, even where there has been a misinterpretation or misapplication of EU law.41 Res judicata and the principle of legal certainty will have to give way to EU legality and the effective application of EU law only where the principle of equivalence or effectiveness so require, an assessment which national courts are called to make on a case-by-case basis and following the guidance of the CJEU arising from earlier case law.

39 Case C-505/14 Klausner Holz EU:C:2015:742. 40 ibid, para 45. 41 Turmo (n 1) 364, speaks in this respect of a ‘measured approach’ on the part of the CJEU, though one which is not always sufficiently clear or explicit, nor always mindful of the potential impact.

Finality of Judicial Decisions and the Ex Officio Application of EU Law 109 The table below shows the principles which have been at the basis of the rulings of the CJEU examined above. Table 1 Case law on the duty to re-open final judicial decisions and corresponding principles grounding the reasoning of the CJEU Rulings

Principles mentioned

Kapferer (2006)

Sincere cooperation; (implicitly) equivalence

Lucchini (2007)

Primacy; (implicitly) sincere cooperation

Fallimento Olimpiclub (2009)

Principle of effectiveness

Asturcom (2009)

Principles of equivalence and effectiveness (solved on basis of equivalence)

Commission v Slovakia (2010)

Sincere cooperation; (implicitly) equivalence

Impresa Pizzarotti (2014)

Principles of equivalence and effectiveness (solved on basis of equivalence)

Târșia (2015)

Principles of equivalence and effectiveness

Klausner Holz (2015)

Principle of effectiveness

Finanmadrid (2016)

Principles of equivalence and effectiveness (solved on basis of effectiveness)

XC (2018)

Principles of equivalence and effectiveness

Hochtief (2019)

Principles of equivalence and effectiveness

Călin (2019)

Principles of equivalence and effectiveness

Telecom Italia (2020)

Principles of equivalence and effectiveness

Cabinet de avocat UR (2020)

Principle of effectiveness

Vueling (2020)

Principle of effectiveness

It can be seen that, in order to justify the importance attached to the authority of res judicata and the possible re-examination of a judicial decision taken in violation of the law of the Union, the Court of Justice did not engage with Article 47 of the Charter, either to justify the questioning of the res judicata (because of the possible violation right to an effective remedy) nor to justify when it is not called into question (so as to ensure legal certainty). It is also important to note that the national courts did not often ground their preliminary questions on Article 47 of the Charter. Only a few of the referring courts have referred to Article 47 of the Charter, but went no further than mentioning it.42 The Court of Justice did not engage in the argument at all, and only in one case did it mention briefly not having received sufficiently clear information from the national court to engage with the argument based on the possible violation of Article 47.43 Furthermore, in XC, the Court does not mention Article 47, but briefly recalls the

42 This 43 See

was the case in the Târșia, Finanmadrid, Călin, and Cabinet de avocat UR rulings. Finanmadrid (n 29) para 57.

110 Mariolina Eliantonio notion of effective judicial protection, which – in the Court’s view – is guaranteed under the current EU constitutional framework.44 What can also be observed is that the question of the re-opening of res judicata rulings of the national courts initially arose before the Court of Justice before the entry into force of the Charter. It is therefore to be imagined that, also after the entry into force of the Charter, the Court stuck to its pre-Lisbon line of reasoning without any new arguments based on Article 47 of the Charter, because it did not see any need or added value in the engagement of the Charter, especially as national courts did not seem to seek this engagement. The ensuing question is however whether the Court should have engaged more with Article 47, and whether this could have delivered different results or a different balance to be struck between legality (and the effective application of EU law) and legal certainty. The question here is whether Article 47 would afford individuals more or broader protection than that they would end up having if a national rule was tested under the principle of effectiveness. Kornezov argues that ‘if national law rules out, as a matter of principle, any possibility whatsoever of granting retrial on the basis of a judgment of the Court which has revealed the incompatibility of a national judgment with EU law, it may run counter to the right to effective judicial protection proclaimed in Article 47 of the Charter’.45 This is certainly the case, but it is highly likely that such procedural rules would not have passed the test of effectiveness either, as they would render ‘impossible in practice’ the exercise of rights granted by EU law. An interesting perspective of the possible added value of Article 47 can be offered in the situation in XC. The referring court only grounded the question on the principle of effectiveness, and the judgment contains only a passing reference to the notion of effective judicial protection, by stating (without further argumentation) that ‘the constitutional framework guarantees everyone the opportunity to obtain the effective protection of rights conferred by the EU legal order before a national decision with the force of res judicata even comes into existence’.46 However, the test of effectiveness was relatively easily dismissed by the Court through the observation that the parties ‘were fully able to plead an infringement of [the relevant EU law] provisions and that [the competent] courts considered those complaints’. If the threshold of effectiveness (for the purposes of testing whether national rules on res judicata do not render the exercise of EU rights overly burdensome) is met through the mere existence of national courts hearing claims under EU law, it can surely be maintained that the right to an effective remedy requires somewhat more from national rules. If the opposite were true, the test would in essence be rendered nugatory as there is no doubt that in all Member States courts have the competence to hear claims under EU law. This does not however mean that an ‘effective’ judicial protection of EU rights is thereby ensured, or at least that it is automatically ensured so that no re-opening of final judicial decision might ever be necessary. Therefore, if the 44 See XC (n 17) para 46; see also Varga (n 18) 1684, who defines this as a ‘bold statement’. 45 See Kornezov (n 38) 837, who also considers those thresholds too vague and advocates an EU-wide system of re-opening similar to that set up by the Court with respect to state liability. 46 See XC (n 17) para 46.

Finality of Judicial Decisions and the Ex Officio Application of EU Law 111 test of effectiveness is interpreted as narrowly as in XC, it is certainly conceivable that Article 47 could offer litigants an enhanced level of protection beyond what the Rewe effectiveness test can offer.

III. Raising Points of EU Law Ex Officio A. The ‘Rule’: Peterbroeck and van Schiijndel The question of the power or duty for national courts to raise ex officio points of EU law first came to the attention of the CJEU in Verholen.47 While in this case the CJEU acknowledged the existence of a right for national courts to consider Community law points of their own motion, the thornier question, which was answered in Peterbroeck48 and van Schijndel,49 is whether national courts are under a general legal duty to examine the existence of an EU law rule of their own motion.50 In both cases, the CJEU first ruled that ‘where, by virtue of domestic law, courts or tribunals must raise of their own motion points of law based upon binding domestic rules which have not been raised by the parties, such an obligation also exists where binding Community rules are concerned’.51 It grounded this obligation on the Rewe principle of equivalence. Then it went further and considered whether national courts are also under an obligation to apply EU law of their own motion where national law simply allows for such application. The Court answered in the affirmative on the basis of the principle of sincere cooperation, a consideration later repeated in Kraaijeveld as well.52 Finally, the Court considered the situation in which national courts are prevented from raising ex officio points which have not been raised by the parties. With respect to this scenario, the Court departed from the principle of national procedural autonomy, as limited by equivalence and effectiveness. The ECJ then proceeded to elaborate on how the question of the excessive difficulty or impossibility of exercising EU rights would need to be addressed under the test of effectiveness. In particular, in the view of the Court, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of

47 Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and others v Sociale Verzekeringsbank Amsterdam EU:C:1991:314; This has also been reiterated more recently in a case concerning public procurement in Case C-927/19 Klaipėdos regiono atliekų tvarkymo centras EU:C:2021:700. 48 Case C-312/93 Peterbroeck EU:C:1995:437. 49 Joined Cases C-430/93 and C-431/93 van Schijndel EU:C:1995:441. 50 See further Jans, Prechal and Widdershoven (n 5) 413; See Östlund (n 3) 169 with further discussion on the seemingly contradictory outcomes of these two cases, which were decided on the same day. 51 See Van Schijndel (n 49) para 13. 52 Case C-72/95 Kraaijeveld EU:C:1996:404, para 58.

112 Mariolina Eliantonio the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration.53

The Court thus did not establish an unconditional duty for national courts to go beyond the ambit of the dispute as set by the parties, but national courts are obliged – on a case-by-case basis – to consider whether their own national procedural rules limiting their ex officio powers comply with the principle of effectiveness under the guise of the ‘procedural rule of reason’ and assess whether they consequently have to raise points of EU law ex officio.54 Without quoting either Van Schijndel or applying the ‘procedural rule of reason’ in those terms, the 2018 Sporting Odds case brought the limitations to ex officio powers of national courts again in the spotlight and it did so with a clear link to Article 47 of the Charter.55 In this case, a British company had offered online betting in Hungary without the necessary concession. After an investigation, the Hungarian tax authorities proceeded to impose a fine. At stake was, in the view of the referring court, Hungarian legislation which did not provide a possibility for national courts to review ex officio the proportionality of measures restricting the freedom to provide services, which might be regarded as too restrictive to comply with Article 47. The Court did in substance replicate what it had held over a decade ago in van Schijndel and did not create a general duty for national courts to raise ex officio points of EU law, as this would entail – in the view of the Court – that national courts would have ‘to substitute themselves for [administrative] authorities in setting out’ the grounds on which they base their measures. Possibly because the question from the referring court was framed exclusively around Article 47 of the Charter, the ruling is, however, a missed opportunity to clarify the relationship between Article 47, on the one hand, and the Rewe principle of effectiveness on the other.

B. The Exceptions: EU Law as a Matter of Public Policy The point of departure is that EU law does not generally require national courts to use ex officio powers to consider points of EU law which have not been raised by the parties. The next question is whether EU law can be considered a matter of public policy, which would in and of itself trigger the use of ex officio powers conferred on courts by national law. In the van der Weerd case, the CJEU confirmed that a national court is not required, on the basis of the principle of equivalence to raise of its own motion points of law based on binding Union rules which have not been raised by the parties if it is not authorised to do so under national law in respect of similar rules of national law.56 In the same case

53 See Van Schijndel (n 48) para 19. 54 This term was coined in S Prechal, ‘Community Law in National Courts: The Lesson from Van Schijndel’ (1998) 35 Common Market Law Review 681. 55 Case C-3/17 Sporting Odds EU:C:2018:130. 56 Joined Cases C-222/05 and C-225/05 van der Weerd EU:C:2007:318.

Finality of Judicial Decisions and the Ex Officio Application of EU Law 113 the Court also confirmed that EU law does not per se have a ‘public policy status’ and should not – just because a rule qualifies as EU law – be applied by national courts of their own motion under the public policy ex officio powers of a national court.57 This approach was confirmed more recently in the 2016 Benallal case,58 where the Court stated that where, in accordance with the applicable national law, a plea alleging infringement of national law raised for the first time before the national court hearing an appeal on a point of law is admissible only if that plea is based on public policy, a plea alleging infringement of the right to be heard, as guaranteed by EU law, raised for the first time before that same court, must be held to be admissible if that right, as guaranteed by national law, satisfies the conditions required by national law for it to be classified as a plea based on public policy, this being a matter for the referring court to determine.59

However, there are certain provisions of EU law for which the Court has made an exception. They relate to the field of consumer protection. The seminal case in this line of case law is Océano.60 In this case, the ECJ ruled that the protection provided for consumers by the Unfair Contract Terms Directive61 entails that a national court must be able to determine of its own motion whether a term of a contract before it is unfair, and that, therefore, the court in question must have the power to raise points of EU law of its own motion if that is necessary to protect a consumer. Interestingly, in this case, no specific legal tool was used by the Court to reach this conclusion, and the ruling only refers to the need to ensure ‘effective protection’ to consumers as required by the Directive. On this basis, the Court held that the power of national courts to determine, of their own motion, that the jurisdiction clause in a consumer contract amounted to an unfair term, was necessary to protect consumers against unfair terms in consumer contracts. As it has been considered, ‘rather than analysing national rules on ex officio application wholly from the standpoint of national procedural autonomy and testing their compliance with the principles of equivalence and effectiveness, the Court appears to frame this particular line of case law primarily in the context of the full effectiveness of Union law’.62 The same reasoning was followed in a long line of case law concerning the same policy area where national rules on ex officio powers were not tested against the ‘procedural rule of reason’, but simply declared in breach of EU law because they stood in the way of the system of protection set out by the measures of EU secondary law in the field

57 Further on this case, J Engström, ‘National Courts’ Obligation to Apply Community Law Ex Officio – The Court Showing new Respect for Party Autonomy and National Procedural Autonomy?’ (2008) 1 Review of European Administrative Law 67; RH Lauwaars, ‘The Application of Community Law by National Courts ex Officio’ (2008) 31 Fordham International Law Journal 1161. 58 Case C-161/15 Benallal v Belgian State EU:C:2016:175. 59 ibid, para 35. 60 Joined Cases C-240/98 to C-244/98 Océano EU:C:2000:346. 61 Council Dir 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L95/29. 62 Lenaerts (n 2); H Schebesta, ‘Does the National Court Know European Law? A Note on Ex Officio Application after Asturcom’ (2010) 18 European Review of Private Law 847, who holds along the same lines that ‘almost all cases were decided on the basis of an exclusively teleological rationale […], which effectiveness acted as a standard instead of the balancing/contextualized approach’.

114 Mariolina Eliantonio of consumer protection.63 The van der Weerd case too, which denied to EU law – in general – a public policy status such as to trigger ex officio powers of national courts, confirmed that consumer policy is ‘beyond’ the test of effectiveness, and is rooted in the special system of protection set up by the relevant EU secondary law rules.64 More recently, however, greater emphasis seems to be placed by the Court on the principle of effectiveness even within litigation on consumer protection policy. For example, in the Faber case, the Court has held that it is on the basis of the principle of effectiveness that a national court must ‘determine whether the purchaser may be classified as a consumer, even if the purchaser has not expressly claimed to have that status, as soon as that court has at its disposal the matters of law and of fact that are necessary for that purpose or may have them at its disposal simply by making a request for clarification’.65 Finally, a line of case law in the field of consumer protection which seems to have emerged in 2018 timidly starts to link the duty of national courts to raise ex officio points of EU law to the requirements of effective judicial protection and Article 47 of the Charter. However, this does not seem to be done in a coherent or particularly clear fashion, especially with respect to the – albeit somewhat blurred – distinction between the principle of effectiveness and the right to an effective remedy. So, for example, in Profi Credit Polska the Court argued that national rules had to be tested against the principle of equivalence and the right to an effective remedy, leaving the principle of effectiveness out of the picture entirely.66 In Kancelaria Medius SA the Court held instead that national procedural rules had to be tested against the principles of equivalence and effectiveness, as well as against the requirements of Article 47. However, the Court went on to assess the relevant rule against the threshold of whether the rule at stake made ‘the application of EU law impossible or excessively difficult’ thereby conflating the requirements of effective judicial protection with those of effectiveness.67 The second line of exceptions relates to competition law. In Eco Swiss, the Court ruled on the possibility for a national civil court, reviewing an arbitration award, to annul the award because it infringed EU competition law rules, although an argument to this effect had not been raised in the arbitration proceedings.68 Under Dutch law, a civil court could raise a point of law on its own motion and consequently annul an

63 See Case C-473/00 Cofidis EU:C:2002:705; Case C-168/05 Mostaza Claro EU:C:2006:675; C-429/05 Rampion and Godard, EU:C:2007:575; C-243/08 Pannon EU:C:2009:350; Case C-137/08 Pénzügyi Lízing EU:C:2010:659; Case C-76/10 Pohotovosť EU:C:2010:685; See also Engstrröm (n 57) 67–89. 64 See van der Weerd (n 56) para 40. 65 Case C-497/13 Faber EU:C:2015:357, para 46; See along the same lines Case C-618/10 Banco Español de Crédito EU:C:2012:349; Case C-397/11 Jőrös EU:C:2013:340; Case C-472/11 Banif Plus Bank Zrt EU:C:2013:88 (where Art 47 EUCFR is mentioned in passing); Case C-377/14 Radlinger EU:C:2016:283; Case C-147/16 Karel de Grote EU:C:2018:320. 66 Case C-176/17 Profi Credit Polska EU:C:2018:711. 67 Case C-495/19 Kancelaria Medius EU:C:2020:431, para 34. 68 Case C-126/97 Eco Swiss NV EU:C:1999:269.

Finality of Judicial Decisions and the Ex Officio Application of EU Law 115 arbitration award only on limited grounds, amongst which was the fact that the award was contrary to public policy. The referring court, however, pointed out that under national law the non-application of EU competition law was not regarded as a public policy argument. It considered that the competition law regime was an overriding interest of fundamental importance for the completion of the tasks of the EU and therefore the relevant rule at stake (currently Article 101 TFEU) had to be considered as a matter of public policy.69 While this latter point was not completely made clear by the Court in Eco Swiss, it was later stated in unequivocal terms in Manfredi, where the Court held that ‘Articles 81 EC and 82 EC are a matter of public policy which must be automatically applied by national courts’.70 In these cases too, no mention was made of the principle of effectiveness or the procedural rule of reason, and the argument of the Court is fully based on the role and importance of EU competition rules.

C. Ex Officio Application of EU Law to the Detriment of the Applicant The picture is completed by the Heemskerk case where a Dutch court asked whether EU law could be raised ex officio by national courts to the detriment of an individual, despite the prohibition – applicable in Dutch law – of reformatio in peius. Referring to the ‘the rights of the defence, legal certainty and protection of legitimate expectations’ and weighing them against the effective application of EU law, the Court answered in the negative.71 While this seemed a settled question for good, the Court was prompted to take a fresh look at the question, and to do so in connection with Article 47 of the Charter, in Online Games.72 In this case, Austrian tax authorities had seized equipment and imposed fines on two companies registered in other EU Member States, whose gaming machines in Austria ran contrary to the national monopoly on games of chance. According to Austrian law, it was possible for courts hearing the case to examine of their own motion the facts which may constitute administrative offences, and this, according to the referring court, could affect the impartiality of the court, the role of which could be confused with that of the body responsible for the prosecution. While in Heemskerk the ex officio powers of national courts – to the detriment of individuals (and the rights conferred upon them by EU law) – had been connected to the prohibition of reformatio in peius, in Online Games the perceived risk was a possible

69 For a further discussion of the outcome and consequences of this case, especially with regard to the public policy argument, see AP Komninos, ‘Case C-126/97, Eco Swiss China Time Ltd. v. Benetton International NV, Judgment of 1 June 1999, Full Court’ (2000) 37 Common Market Law Review 459; S Prechal and N Shelkoplyas, ‘National Procedures, Public Policy and EC Law. From Van Schijndel to Eco Swiss and Beyond’ (2004) 12 European Review of Private Law 589. 70 Joined Cases C-295/04, C-296/04, C-297/04 and C-298/04 Manfredi EU:C:2006:461, para 36. 71 Case C-455/06 Heemskerk EU:C:2008:650. 72 Case C-685/15 Online Games EU:C:2017:452.

116 Mariolina Eliantonio violation of Article 47 of the Charter, read in the light of Article 6 of the ECHR, from the perspective of the independence and impartiality of the adjudicating body. Rather unsurprisingly, the Court concluded that, on the basis of the elements submitted in respect of the relevant Austrian legislation, there is no reason to consider that such a procedural system is such as to give rise to doubts as to the impartiality of the national court, in so far as that court is required to investigate the case before it, not in order to support the prosecution, but to establish the truth. Moreover, that system is based, in essence, on the idea that the court is not only the arbiter of a dispute between the parties but represents the general interest of society. It is in the pursuit of that interest that the national court will also have to examine the justification for legislation which restricts a fundamental freedom of the Union within the meaning of the Court’s case-law.73

Hence, no violation of Article 47 of the Charter could be detected.

D. Interim Conclusion From an analysis of the judgments mentioned above, it seems that, on the one hand, as made clear by the ECJ in Verholen, national courts are allowed to raise ex officio points of EU law not put forward by the parties. On the other, with regard to the duty of national courts to examine the conformity of national law with EU law of their own motion, three different situations may arise. Firstly, a national court may be under an obligation to raise points of national law of its own motion: where this is the case, then, on the basis of the principle of equivalence, it is also under an obligation to apply EU law of its own motion. Secondly, a national court may have discretion as to whether to raise points of national law of its own motion: in such circumstances, the national court must apply EU law of its own motion pursuant to the principle of sincere cooperation. Finally, it may be that a national court is not able to raise points of national law of its own motion: in such cases, in order to test national procedural rules, the principle of effectiveness is the guiding factor, and the intrinsic nature, the aim and the purpose of the rule, and its application to the set of circumstances of the concrete case all have to be analysed. Furthermore, the determination of whether a national rule preventing a national court from raising points of EU law of its own motion should or should not be considered in violation of EU law, has to take into account the aim and the importance of the EU law provision in question. In competition and consumer protection policy, the CJEU has gone beyond the test of effectiveness, by setting an unconditional duty for national courts to raise EU law ex officio. The table below shows the principles which have been at the basis of the rulings of the CJEU examined above.

73 ibid,

para 64.

Finality of Judicial Decisions and the Ex Officio Application of EU Law 117 Table 2 Case law on the duty to raise ex officio points of EU law and corresponding principles grounding the reasoning of the CJEU Ruling

Principles mentioned

Peterbroeck (1995)

Sincere cooperation; principles of equivalence and effectiveness

van Schijndel (1995)

Sincere cooperation; principles of equivalence and effectiveness

Kraaijeveld (1996)

Sincere cooperation

Eco Swiss (1999)

Role of provision of EU law at stake

Océano (2000)

Full effectiveness of EU law

Cofidis (2002)

Full effectiveness of EU law

Mostaza Claro (2006)

Full effectiveness of EU law

Manfredi (2006)

Role of provision of EU law at stake

Rampion (2007)

Full effectiveness of EU law

van der Weerd (2007)

Principles of equivalence and effectiveness (solved on basis of equivalence)

Heemskerk (2008)

Full effectiveness of EU law

Pannon (2009)

Full effectiveness of EU law

Pénzügyi Lízing (2010)

Full effectiveness of EU law

Pohotovosť (2010)

Full effectiveness of EU law

Banco Español de Crédito (2012)

Principle of effectiveness

Jőrös (2013)

Principle of effectiveness

Banif Plus Bank Zrt (2013)

Principle of effectiveness (Article 47 Charter mentioned)

Faber (2015)

Principle of effectiveness

Benallal (2016)

Principles of equivalence and effectiveness (solved on basis of equivalence)

Radlinger (2016)

Principle of effectiveness

Online Games (2017)

Article 47 Charter

Sporting Odds (2018)

Article 47 Charter

Karel de Grote (2018)

Principle of effectiveness

Profit Credit Polska (2018)

Principle of equivalence; Article 47 Charter

Kancelaria Medius (2020)

Principles of equivalence and effectiveness; Article 47 Charter

As it can be observed, as for rules on res judicata, also in this case the foundational case law was handed down before the Charter, which explains the lack of engagement with it. Sporting Odd was instead entirely framed around Article 47, and the Court did not venture back to its earlier case law in its reply to the referring Court. The question which arises in this respect is whether engagement with Article 47 has raised the level of protection for individuals in this context. The question should be answered

118 Mariolina Eliantonio here in the negative. On the contrary, the way in which the referring court framed the questions made it easy for the CJEU to answer that Article 47 does not require an unconditional duty to raise points of EU law ex officio. Article 47 did not therefore serve to further nuance or move away from the procedural rule of reason set up through the Rewe effectiveness test to raise the level of protection for applicants, but merely set a very minimum threshold which admittedly does not add anything in terms of guidance for national courts as to how to assess their own national rules for compliance with EU law. The same conclusion can be reached with respect to scenario in Online Games where the Court could have had the opportunity to engage with the potential of Article 47 to be used as a ‘shield’ when EU law is invoked against an applicant. However, as the question was framed around the issue of the impartiality of national courts when using ex officio powers, the Court did not get the chance to establish clear criteria as to how national courts are to balance legality and effective application of EU law with procedural fairness through the use of Article 47. Finally, with respect to the consumer protection line of case law, it should be highlighted that Article 6 of the Unfair Terms Directive and similar provisions of other consumer protection pieces of legislation indirectly largely cover the issue of ex officio application of EU law to the benefit of the consumer. From this perspective it made sense that, at least in the early case law, the Court simply referred to the need to ensure the full effectiveness of EU law: as the field was harmonised, and the rules provided extensive protection to individuals deriving rights from EU law, nothing else (including the principle of effectiveness) beyond the relevant EU legislation was necessary to ensure that adequate protection be provided before national courts. More recently, the Rewe effectiveness formula seems to have permeated the case law of the CJEU more intensely. Nevertheless, this argument has invariably been ‘inserted’ within the broader picture of the harmonisation of secondary rules which form the basis of the system of protection ensured by EU law to consumers. Furthermore, mentions of Article 47 have not been overly helpful in understanding the added value of these references. For both instances (Rewe effectiveness and Article 47), it is doubtful whether they have actually changed anything in the end result or the reasoning of the court. At the same time, it should be stressed that, precisely because of the extent of harmonisation reached in this field, it is equally doubtful whether it is possible to extend these conclusions to any field outside that of consumer protection.74

IV. Conclusions This chapter has analysed the case law of the CJEU on national procedural rules concerning the duty to re-open final judicial decisions, as well as the duty to raise ex officio points of EU law which the parties have not relied on. Both sets of rules are

74 See Östlund (n 3) 213; See also Case C-49/14 Finanmadrid EU:C:2016:98, Opinion of AG Szpunar, paras 90–97, where he argued that EU secondary law rules provide in the field of consumer protection a higher level of protection than that afforded by Art 47.

Finality of Judicial Decisions and the Ex Officio Application of EU Law 119 meant to strike a balance between competing imperatives in national legal systems. What the examination of the case law of the CJEU has shown is that the Court does not – in general –favour one value over the other, but aims to find a fair compromise, even at the expense of the primacy and effective application of EU law. What can also be observed is that this balance has been struck largely through the principles of equivalence and effectiveness, with Article 47 of the Charter remaining mostly in the background. The boundaries between the principle of effectiveness, on the one hand, and the principle of effective judicial protection and the right to an effective remedy under Article 47, on the other, have more generally been blurred in the case law of the CJEU and been the subject to much academic debate.75 Nevertheless, the doctrine is quite clear in that the tests under the two principles are different, and Article 47 might require more than what is expected of national procedural rules under the principle of effectiveness.76 There is also increasing clarity in that more and more procedural areas, which used to be tested under the principles of equivalence and effectiveness, are nowadays tested primarily under Article 47.77 This increased prominence of Article 47 that is shown in other chapters of this book does not emerge with respect to the case law on the rules examined in this chapter. As discussed above, with respect to rules concerning the duty to raise points of EU law ex officio, being prompted by national courts, case law seems to have moved to a somewhat increased attention towards Article 47. Engagement with Article 47 did not, however, raise protection for applicants nor qualify or modify the van Schijndel formula in any way. At the same time, it can be argued that the case law did not need particular adjustments, since ‘overly’ restrictive ex officio rules would appear on the radar of the procedural rule of reason (as they did in Peterbroeck) and consequently fall foul of EU law without the need to engage Article 47. Ex officio rules in the field of consumer protection also do not seem to profit from a possible substantive engagement with Article 47, as secondary EU law already provides such a high level of protection that Article 47 would not deliver any additional protection to applicants. A different conclusion is reached with respect to the rules on the possibility of raising ex officio points of EU law against the applicant. In this respect, it can be argued that, where national procedural rules would allow for such scenarios, the potential for Article 47 is still underexplored, since current case law does not provide any guidance at all on the role of Article 47 to resist the application of EU law before national courts.

75 S Prechal and R Widdershoven, ‘Redefining the Relationship between “Rewe-effectiveness” and Effective Judicial Protection’ (2011) 4 Review of European Administrative Law 31; J Krommendijk, ‘Is there light on the horizon? The distinction between “Rewe effectiveness” and the principle of effective judicial protection in Article 47 of the Charter after Orizzonte’ (2016) 53 Common Market Law Review 1395; M Eliantonio and E Muir, ‘The principle of effectiveness: under strain?’ (2019) 12 Review of European Administrative Law 255. 76 See R Widdershoven, ‘National Procedural Autonomy and General EU Law Limits’ (2019) 12 Review of European Administrative Law 5, who argues that, unlike the principle of effectiveness, ‘the test on effective judicial protection may have positive effects, forcing the Member States and their courts to provide for access and remedies not existing in national law’. 77 Widdershoven (n 76) 23, who refers to rules on time limits.

120 Mariolina Eliantonio Finally, with respect to rules on res judicata, national courts have not been helpful in prompting the Court to engage with Article 47, which has remained very much in the background of even the more recent case law. While most national rules in this area might just as well be tested under the principle of effectiveness or Article 47 with the same results, there may be some potential for an added value in the use of Article 47 as a threshold to assess when re-opening of judicial decisions is needed under EU law, especially if the Court sticks to a restrictive interpretation of the principle of effectiveness.

part 2 Article 47 of the Charter in Selected Policy Areas

122

7 The Role of Article 47 of the EU Charter of Fundamental Rights in the Field of Non-Discrimination: Onwards and Upwards KATHLEEN GUTMAN*

This chapter examines, in the light of salient case law of the Court of Justice, the emergence and development of Article 47 of the Charter in the field of non-discrimination. It is structured in three main parts. The first part traces the origins of the relationship between Article 47 of the Charter and non-discrimination. The second part explores the influence of Article 47 of the Charter in connection with some of the main directives on non-discrimination. The third part delves into some opportunities for further development of Article 47 of the Charter in this field as regards procedural obstacles at the national level and tasks of the national courts and other competent bodies. Through this analysis, it is argued that Article 47 of the Charter plays a significant role in the field of non-discrimination by helping drive procedural standards for ensuring effective judicial protection onwards and upwards, that is, towards a better condition and a higher level, in the Union legal order.

I. Introduction At first glance, it could be expected that the principle of effective judicial protection as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘Charter’) in the field of non-discrimination would attract detailed study, especially on account of the special relationship between access to justice and non-discrimination1 and the fact that justice and equality seem to go hand-in-hand. Indeed, the right to a remedy * Kathleen Gutman is a Référendaire in the Chambers of Advocate General Tamara Ćapeta at the Court of Justice of the European Union. All opinions expressed herein are strictly personal. 1 See, in that regard, EU Fundamental Rights Agency, Handbook on European non-discrimination law (Luxembourg, Publications Office of the European Union, 2018), s. 4.5.

124 Kathleen Gutman has been said to be embedded in the very affirmation of the right to non-discrimination.2 Moreover, as is generally acknowledged, the principle of effective judicial protection originated in the case law of the Court of Justice of the European Union (‘Court of Justice’ or ‘Court’)3 in the field of non-discrimination, and there has been much ‘proceduralisation’ of that field.4 Nevertheless, upon closer inspection, it appears that the role of Article 47 of the Charter in this context is rarely explored in depth and thus is considerably underdeveloped in the scholarly literature.5 Taking account of recent jurisprudential developments, together with relevant changes brought by the Lisbon Treaty including the elevation of the Charter to binding, primary EU law status,6 this surely presents an opportune time for engagement with this subject. The objective of this contribution is therefore to examine, in the light of salient case law of the Court of Justice, the emergence and development of Article 47 of the Charter in the field of non-discrimination. To this end, it is organised into three main parts. The first part traces the origins of the relationship between Article 47 of the Charter and non-discrimination. The second part explores the influence of Article 47 of the Charter in connection with some of the main directives on non-discrimination. The third part delves into some opportunities for further development of Article 47 of the Charter in the field of non-discrimination as regards procedural obstacles at the national level and tasks of the national courts and other competent bodies. Needless to say, all matters bearing on this subject cannot be discussed in depth. This contribution offers an overview of some of the main points to be gleaned from the Court’s case law in this field and certain key issues going forward, in line with the overarching aim of the present volume.

II. Origins of the Relationship between Article 47 of the Charter and Non-Discrimination At the outset, it should be noted that Article 47 of the Charter and non-discrimination are both complex, multi-faceted topics. Broadly speaking, the field of non-discrimination denotes, as far as the EU level is concerned, the body of EU law concerned with the establishment of equal treatment and the prevention of discrimination against particular groups of persons, and it comprises a wide array of sources of primary and

2 See I Ionescu and R Iordache, ‘Discrimination and its Sanctions – Symbolic vs. Effective Remedies in European Anti-discrimination Law’ (2014) 19 European Anti-Discrimination Law Review 11. 3 The institution of the Court of Justice of the European Union currently comprises, in accordance with Art 19(1) TEU, the Court of Justice and the General Court. While the potential relevance of the General Court’s case law should not be discounted, focus is often put on the Court of Justice due to its preliminary ruling jurisdiction on the basis of which many judgments in this context have been given. 4 See further ss II and III. 5 See, in that regard, C Kilpatrick and B De Witte, ‘Introducing the Role of Collective Actors and Preliminary References in the Enforcement of EU Fundamental Rights Law’ in E Muir et al (eds), How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum, EUI Working Paper Law 2017/17, 1, 2; but see, eg J Adams-Prassl, ‘Article 47 CFR and the effective enforcement of EU labour law: Teeth for paper tigers?’ (2020) 11 European Labour Law Journal 391. 6 See Art 6(1), first subpara TEU.

Article 47 in the Field of Non-Discrimination 125 secondary EU law.7 For its part, Article 47 of the Charter guarantees the right to an effective remedy and to a fair trial. It is situated within the EU system of fundamental rights protection and, due to its ‘procedural’ nature, also intersects with various matters falling within the overarching framework of the EU system of judicial protection, encompassing the Union’s system of judicial review and the relationship between EU law and the Member States’ procedural and remedial regimes.8 As already mentioned in the Introduction, it is widely recognised that the principle of effective judicial protection as enshrined in Article 47 of the Charter originated in the Court’s case law in the field of non-discrimination.9 Most of the attention generally centres on the judgments in von Colson and Kamann10 and Johnston,11 which gave expression to that principle for the first time in the context of sex discrimination. While those cases may be well-known to many readers, it is worth recalling them in brief since they are linked to the broad conception of effective judicial protection starting early on in the Court’s case law. The judgment in von Colson and Kamann12 arose from a preliminary ruling on the interpretation of Directive 76/207 combating sex discrimination in employment.13 One of the issues concerned whether the Member States must provide for specific sanctions in respect of the breach of the principle of equal treatment regarding access to employment. In that regard, the Court noted that Article 6 of Directive 76/207— which required the Member States to establish the necessary measures to enable all persons who considered themselves wronged by discrimination ‘to pursue their claims by judicial process’—left them free to choose between the different solutions suitable for achieving the objective pursued by that directive. The Court held that, while that directive did not require a specific form of sanction for unlawful discrimination, the sanction must guarantee ‘real and effective judicial protection’ and must have a real deterrent effect on the employer. It followed that where a Member State chose to penalise the breach of the prohibition of discrimination by the award of compensation, such compensation must be adequate in relation to the damage sustained in order to ensure that it is effective and has a deterrent effect, which was not the case in those proceedings.

7 See, eg M Bell, ‘The Principle of Equal Treatment: Widening and Deepening’ in P Craig and G de Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford University Press, 2011) 611; E Ellis and P Watson, EU Anti-Discrimination Law, 2nd edn (Oxford University Press, 2012) 12–22. 8 See generally, eg P Aalto et al, ‘Right to an Effective Remedy and to a Fair Trial’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014) 1197; F Krenc, ‘Article 47: droit à un recours effectif et à accéder à un tribunal impartial’ in F Picod et al (eds), La Charte des droits fondamentaux de l’Union européenne. Commentaire article par article, 2ème édition (Bruylant, 2020) 1133. 9 See, eg A Arnull, ‘Article 47 CFR and national procedural autonomy’ (2020) 45 European Law Review 681, 683; M Bonelli, ‘Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature’ (2019) 12 Review of European Administrative Law 35, 37; S Prechal, ‘EU General Equality Law: a source of inspiration for other EU law areas?’ (2008) 1 European Gender Equality Law Review 8, 11–12. 10 Case C-14/83 von Colson and Kamann EU:C:1984:153. 11 Case C-222/84 Johnston EU:C:1986:206. 12 See von Colson (n 10), paras 16-18, 23; see also Case C-79/83 Harz EU:C:1984:155, paras 16–18, 23. 13 Council Dir 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/40.

126 Kathleen Gutman Thereafter, in Johnston,14 the Court went one step further. This case, too, concerned the interpretation of Article 6 of Directive 76/207. Under the section of the judgment entitled ‘The right to an effective remedy’, the Court proclaimed that the requirement of judicial control stipulated by that provision reflects a general principle of EU law underlying the constitutional traditions common to the Member States and which is enshrined in Articles 6 and 13 of the European Convention on Human Rights. According to the Court, by virtue of Article 6 of Directive 76/207 interpreted in the light of that general principle, all persons have the right to obtain an effective remedy in a competent court against measures which they consider to be contrary to the principle of equal treatment laid down in that directive, and it is for the Member States to ensure effective judicial control of compliance with the applicable provisions of EU law and of national legislation intended to give effect to the rights for which that directive provides. Consequently, the Court ruled that the principle of effective judicial control in Article 6 of Directive 76/207 precluded national measures, such as those at issue, allowing a certificate issued by a national authority, stating that the conditions for derogating from equal treatment are satisfied, to be treated as conclusive evidence and thereby excluding the exercise of any power of review by the courts. As indicated by the Explanation on Article 47 of the Charter,15 the Court’s recognition, starting in Johnston, of the principle of effective judicial protection has since been reaffirmed in Article 47 of the Charter16 and extended to other areas of EU law beyond the field of non-discrimination, such as free movement (Heylens and Others)17 and agricultural policy (Oleificio Borelli v Commission).18,19 Yet, viewed from a broader perspective, the Court’s early case law in the field of non-discrimination has also arguably ‘filled out’ other aspects related to the principle of effective judicial protection as enshrined in Article 47 of the Charter in addition to the right to an effective remedy before a court. For instance, in Coote,20 the Court took the principle of effective judicial protection into the realm of protection against retaliation. According to the Court, the principle of effective judicial control set out in Article 6 of Directive 76/207 would be deprived of its effectiveness if it did not cover measures which an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. This was on the grounds that fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process. The Court also considered that, having regard to the objective of that directive and the ‘fundamental nature of the right to effective judicial protection’, it could not be inferred from Article 7 thereof that the EU legislature’s intention was to limit the protection of 14 See Johnston (n 11), paras 17–21. 15 See Explanations Relating to the Charter of Fundamental Rights [2007] OJ L303/17, Explanation on Article 47, p. 29. 16 See, eg Case C-824/18 A.B. and Others EU:C:2021:153, para 87. 17 See Case C-222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v Georges Heylens and Others EU:C:1987:442, paras 14–15. 18 See Case C-97/91 Oleificio Borelli SpA v Commission of the European Communities EU:C:1992:491, para 14. 19 See, inter alia, Case C-432/05 Unibet EU:C:2007:163, para 37; Case C-362/14 Schrems EU:C:2015:650, para 95. 20 See Case C-185/97 Belinda Jane Coote v Granada Hospitality Ltd EU:C:1998:424, paras 20–22, 24, 27–28.

Article 47 in the Field of Non-Discrimination 127 workers against retaliatory measures solely to cases of dismissal. Therefore, the Court held that the Member States were required to introduce the necessary measures to ensure judicial protection for workers whose employer, after the employment relationship ended, refused to provide references as a reaction to legal proceedings brought to enforce compliance with equal treatment pursuant to that directive. In Handels-og Kontorfunktionærernes Forbund i Danmark,21 the Court linked effective judicial protection to the burden of proof. This case concerned the interpretation of Directive 75/117 on equal pay for men and women.22 In particular, the Court pointed out that, in a situation where a system of individual pay supplements completely lacking in transparency is at issue, female employees can establish differences only so far as average pay is concerned and thus would be deprived of any effective means of enforcing the principle of equal pay before the national courts if the effect of adducing such evidence was not to impose upon the employer the burden of proving that the practice in the matter of wages was not in fact discriminatory. On that basis, the Court concluded that the directive must be interpreted as implying adjustments to national rules on the burden of proof as necessary for the effective implementation of the principle of equality. Furthermore, following the path set in von Colson and Kamann,23 the judgment in Marshall24 strengthened effective judicial protection in matters of redress. In the context of a preliminary ruling involving the interpretation of Article 6 of Directive 76/207, the Court reiterated that the objective pursued by that directive could not be obtained in the absence of measures which must guarantee ‘real and effective judicial protection’ and have a real deterrent effect. According to the Court, those requirements entailed that the particular circumstances of each breach of the principle of equal treatment should be taken into account and, in the event of discriminatory dismissal contrary to the directive, a situation of equality could not be restored without either reinstating the victim of discrimination or, in the alternative, granting financial compensation for the damage sustained. Thus, the Court held that, where financial compensation is the measure adopted, it must be adequate, in that it must enable the damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules. The Court’s judgments in the foregoing cases thereby established, indeed cemented, the principle of effective judicial protection as today guaranteed by Article 47 of the Charter in the field of non-discrimination. Those judgments outlined the broad contours of that principle, in the sense of encompassing the right to an effective remedy before a court, along with other matters relating to retaliation, evidence and redress which are equally instrumental for ensuring that individuals have adequate legal remedies for the protection of the rights they derive from EU law in the field of non-discrimination. 21 See Case C-109/88 Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss EU:C:1989:383, paras 13–16; see also, eg Case C-127/92 Enderby EU:C:1993:859; Case C-400/93 Royal Copenhagen EU:C:1995:155. 22 Council Dir 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [1975] OJ L45/19. 23 See also, eg Case C-248/83 Commission v Germany EU:C:1985:214; Case C-177/88 Dekker EU:C:1990:383. 24 See Case C-271/91 Marshall v Southampton and South-West Hampshire Area Health Authority EU:C:1993:335, paras 22–26.

128 Kathleen Gutman By the same token, those judgments highlighted the critical role played by the Court of Justice in fleshing out effective judicial protection on the basis of early legislation and which then filtered back into the main directives in the field of non-discrimination to which the discussion now turns.

III. Article 47 of the Charter and the Main Directives in the Field of Non-Discrimination As noted in the Introduction, the field of non-discrimination, among others,25 is known for its ‘proceduralisation’,26 which denotes the fact that the EU legislation in this field contains an elaborate set of procedural rules for the benefit of individuals wronged by unlawful discrimination. As far as this field is concerned, the focus so far appears to be put on five key elements deriving from the main EU directives on non-discrimination,27 some of which represent a codification of the Court’s early case law mentioned above.28 Those elements generally concern: first, effective access to the courts; second, protection against retaliation; third, the burden of proof; fourth, the standing and other procedural matters related to the roles played by equality bodies and other entities in combating discrimination; and fifth, the forms of redress, namely, the relevant sanctions, penalties and compensation. The Court’s case law concerning some of the main directives in the field of non-discrimination illuminates the importance of these elements for ensuring effective judicial protection for individuals under EU law and the influence of Article 47 of the Charter in this context.

A. Effective Access to the Courts As regards effective access to the courts, the directives on non-discrimination contain provisions within the rubric of ‘defence of rights’, which typically require the Member

25 See, in that regard, symposia (2015) 8 Review of European Administrative Law 7. 26 See, eg U Belavusau and K Henrard, ‘A Bird’s Eye View on EU Anti-Discrimination Law: The Impact of the 2000 Equality Directives’ (2019) 20 German Law Journal 614, 628–30; E Muir, EU Equality Law: The First Fundamental Rights Policy of the EU (Oxford University Press, 2018) 144–200. 27 These directives include, in particular, the following: (1) Council Dir 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22; (2) Council Dir 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16; (3) Council Dir 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/37; (4) Dir 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23; (5) Dir 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in a self-employed capacity and repealing Council Dir 86/613/EEC [2010] OJ L180/1; see further, eg Commission, ‘Report on the application of Directives 2000/43 and 2000/78’ COM (2021) 139 final, s 2.2. 28 See, in that regard, Case C-30/19 Braathens Regional Aviation EU:C:2020:374, Opinion of AG Saugmandsgaard, point 50. See also, eg Dir 2006/54/EC, Recitals 30 and 33.

Article 47 in the Field of Non-Discrimination 129 States to ensure that judicial ‘and/or’ administrative proceedings for the enforcement of the rights based on the relevant directive are available to all persons who have suffered wrongful discrimination.29 Notwithstanding such disjunctive wording, it should be considered that those provisions indicate that, in the light of the principle of effective judicial protection laid down in Article 47 of the Charter, the right to an effective remedy before a court must be guaranteed.30 Various aspects relating to effective access to the courts have come to the fore in recent judgments of the Court of Justice. A notable example is Egenberger,31 involving the interpretation of Directive 2000/78 in the context of discrimination on grounds of religion. One of the issues concerned, inter alia, whether Article 4(2) of that directive meant that a church or other organisation whose ethos or belief is based on religion or belief may itself determine authoritatively the occupational activities for which religion constitutes a genuine, legitimate and justified occupational requirement. The Court replied in the negative to that question, holding that an independent authority—and ultimately a national court—must ensure effective judicial review by examining whether the difference in treatment at issue complied with the criteria laid down in Article 4(2) of Directive 2000/78. The Court emphasised that Article 9 of that directive, read in the light of recital 29 thereof, requires the Member States to provide procedures, including judicial procedures, for enforcement of the obligations thereunder and that Article 47 of the Charter establishes the right of individuals to effective judicial protection of their rights under EU law. The Court added that the fact that Article 4(2) of Directive 2000/78 refers to national legislation and practices could not be interpreted as authorising the Member States to withdraw compliance with the criteria set out in that provision from the scope of effective judicial review. In addition, Leitner32 involved the interpretation of Directive 2000/78 and Article 47 of the Charter in connection with a national regime for the remuneration and advancement of civil servants which had been adopted in order to put an end to discrimination on grounds of age. After finding that such a regime maintained such discrimination and was therefore incompatible with EU law, the Court turned to the issue of effective remedies. It pointed out that the right to an effective remedy in Article 47 of the Charter was reaffirmed in Article 9 of Directive 2000/78, which provides that Member States must ensure that all persons who consider themselves wronged by discrimination are able to assert their rights, and thus compliance with the principle of equality requires, so far as concerns persons who have been subject to discrimination on grounds of age, that effective judicial protection of their right to equal treatment be guaranteed. In the case at hand, the Court found that the judicial review which national courts may carry out with respect to the transition amount, which determines the reclassification of the civil servants concerned, was very narrow. In those circumstances, if a civil 29 See Council Dir 2000/43/EC, Art 7(1) and Recital 19; Council Dir 2000/78/EC, Art 9(1) and Recital 29; Council Dir 2004/113/EC, Art 8(1) and Recital 21; see also Dir 2006/54/EC, Art 17(1) and Recitals 28 and 29; Dir 2010/41/EU, Art 9(1) and Recital 21. 30 See, eg Ellis and Watson (n 7) 305 footnote 143. This already appears to be implied in the Court’s case law; see, eg Case C-415/10 Meister EU:C:2012:217, para 38; see also Case C-30/19 Braathens Regional Aviation EU:C:2021:269, para 33. 31 See Case C-414/16 Egenberger EU:C:2018:257, paras 48–55, 59; see also Case C-68/17 IR EU:C:2018:696. 32 See Case C-396/17 Martin Leitner v Landespolizeidirektion Tirol EU:C:2019:375, paras 58–66.

130 Kathleen Gutman servant disadvantaged by the previous system could not challenge the discriminatory effects of the transition amount, he or she would not be able to enforce all the rights derived from the principle of equal treatment guaranteed by Directive 2000/78, in breach of Article 47 of the Charter. The Court concluded that Article 47 of the Charter and Article 9 of Directive 2000/78 precluded national legislation which reduces the scope of the judicial review that national courts are entitled to conduct by excluding questions concerning the basis of the transition amount calculated according to the rules of the previous system.

B. Protection against Retaliation As regards protection against retaliation, several directives on non-discrimination contain provisions on victimisation, which generally require the Member States to adopt the necessary measures to protect individuals from adverse treatment as a reaction to complaints or legal proceedings aimed at enforcing compliance with equal treatment.33 In particular, Hakelbracht and Others34 concerned the relevant provision contained in Article 24 of Directive 2006/54 on equal treatment of men and women in matters of employment in a situation involving national legislation which restricted the protection against retaliation to persons whose witness statement satisfied certain formal requirements. The Court noted that it followed from that provision, read in the light of recital 32 of that directive, that the categories of employees entitled to protection against retaliation must be interpreted broadly. It further emphasised that the effective implementation of the principle of equal treatment pursued by the directive requires, according to Article 17 thereof, that judicial procedures must be available to all persons who consider themselves wronged by the failure to apply the principle of equal treatment to them and that that provision is a specific expression of the principle of effective judicial protection reaffirmed in Article 47 of the Charter. Thus, relying on its previous ruling in Coote, the Court held that the protection required by the directive against sex discrimination would not be assured if it did not cover the measures which an employer might take against employees having, formally or informally, defended the protected person or testified in that person’s favour.

C. Burden of Proof Several directives on non-discrimination contain provisions that establish a shift of the burden of proof to the respondent once the complainant has established a prima

33 See Council Dir 2000/43/EC, Art 9 and Recital 20; Council Dir 2000/78/EC, Art 11 and Recital 30; Council Dir 2004/113/EC, Art 10 and Recital 23; Dir 2006/54/EC, Art 24 and Recital 32. 34 See Case C-404/18 Jamina Hakelbracht and Others v WTG Retail BVBA EU:C:2019:523, paras 20–23, 27–29, 31–34.

Article 47 in the Field of Non-Discrimination 131 facie case of unlawful discrimination.35 Such provisions may be considered to promote effective judicial protection for individuals under those directives, as indicated by the Court’s case law. For example, CHEZ Razpredelenie Bulgaria36 concerned the interpretation of Directive 2000/43 on racial equality in the context of alleged discrimination against the Roma community. While the burden of proof was not a focal point of the case,37 the Court indicated that, under Article 8(1) of that directive, when persons who consider themselves wronged because the principle of equal treatment has not been applied establish before a court or other competent authority facts from which it may be presumed that there has been direct or indirect discrimination, it is then for the respondent to prove that there has been no breach of that principle. In that regard, the Court emphasised that, in the context of establishing such facts, it must be ensured that a refusal of disclosure by the respondent is not liable to compromise the achievement of the objectives pursued by Directive 2000/43. Furthermore, according to the Court, if the referring court were to conclude that there is a presumption of discrimination, the effective application of the principle of equal treatment requires that the burden of proof then falls on the respondent who must prove that there has been no breach of that principle. Of note, issues concerning the burden of proof under Article 8(1) of Directive 2000/43 previously arose in Belov,38 involving similar circumstances of alleged discrimination against the Roma community. While the Court held that the reference was inadmissible and thus did not have the opportunity to address those issues, Advocate General Kokott’s Opinion39 provided a detailed assessment of that provision and those in other non-discrimination directives. In particular, the Advocate General pointed out that, without such a reversal of the burden of proof, the normal rules would apply, with the result that anyone who believed that they were a victim of discrimination would be required to adduce and prove all the necessary facts which support their claim and thus it was specifically to avoid such difficulties and to improve the situation of the potential victim of discrimination that the rules on the reversal of the burden of proof were introduced. She also considered that, through such rules, the EU legislature made a choice that maintained a fair balance between the interests of the victim of discrimination and those of the other party to the proceedings and, moreover, those rules do not completely remove the burden of proof from the presumed victim, but merely modify it.

35 See Council Dir 2000/43/EC, Art 8 and Recitals 21 and 22; Council Dir 2000/78/EC, Art 10 and Recitals 31 and 32; Council Dir 2004/113/EC, Art 9 and Recital 22; Dir 2006/54/EC, Art 19 and Recital 30; see further, eg K Henrard, ‘The Effective Protection against Racial Discrimination and the Burden of Proof: Making up the Balance of the Court of Justice’s Guidance’ in U Belavusau and K Henrard (eds), EU Anti-Discrimination Law Beyond Gender (Hart Publishing, 2019) 95; J Ringelheim, ‘The burden of proof in anti-discrimination proceedings. A focus on Belgium, France and Ireland’ (2019) 2 European Equality Law Review 49. 36 See Case C-83/14 CHEZ Razpredelenie Bulgaria EU:C:2015:480, paras 77–78, 85; see further, eg C McCrudden, ‘The New Architecture of EU Equality Law after CHEZ: Did the Court of Justice reconceptualise direct and indirect discrimination?’ (2016) 10 European Equality Law Review 1. 37 See CHEZ Razpredelenie Bulgaria (n 36), para 37. 38 See Case C-394/11 Belov EU:C:2013:48, para 36 (questions 5 and 6). 39 See Case C-394/11 Belov EU:C:2012:585, Opinion of AG Kokott, points 86-94.

132 Kathleen Gutman In Oteros Ramos,40 the Court was faced with a preliminary reference concerning the rules on the burden of proof laid down in Article 19(1) of Directive 2006/54 in a situation in which a female worker challenged the employer’s assessment of her work as not posing a risk for the breastfeeding of her child under Article 4(1) of Directive 92/85.41 The Court ruled that it is for the respondent to prove that that assessment was conducted in accordance with Article 4 of Directive 92/85, bearing in mind that documents such as a certificate from an employer without any explanations capable of substantiating the assertions indicated therein cannot alone establish an irrebuttable presumption that that was the case. Otherwise, in the Court’s view, that provision and the rules of evidence provided for in Article 19 of Directive 2006/54 would be deprived of all practical effect. Moreover, Meister42 addressed related aspects regarding the applicant’s access to information to establish a prima facie case of discrimination for the purposes of applying the rules on the burden of proof set out in Directives 2000/43, 2000/78 and 2006/54. The Court acknowledged that those rules do not entitle a worker, who claims that he meets the requirements listed in a job advertisement and whose application was rejected, to have access to information indicating whether the employer engaged another applicant at the end of the recruitment process. Nevertheless, it must be ensured that a refusal of disclosure by the employer is not liable to compromise the objectives of those directives. Accordingly, the Court held that the referring court must take account of all the circumstances of the main proceedings in order to determine whether there is sufficient evidence for a finding that the facts from which it may be presumed that there has been such discrimination have been established.

D. Standing of Equality Bodies and Other Entities Increasing attention has been put on the standing of equality bodies and other entities before the courts, along with other procedural aspects related to their roles in combating unlawful discrimination under EU law.43 The directives on non-discrimination contain provisions, within the context of ‘defence of rights’, obliging the Member States to ensure that associations, organisations or other legal entities which have, in accordance with the

40 See Case C-531/15 Otero Ramos EU:C:2017:789, paras 66–76; see also Case C-41/17 González Castro EU:C:2018:736, paras 58–83. 41 Council Dir 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding [1992] OJ L348/1. 42 See Case C-415/10 Meister EU:C:2012:217, paras 36–47; for a critical analysis, see L Farkas, ‘Getting it Right the Wrong Way? The Consequences of a Summary Judgment: The Meister Case’ (2012) 2 European AntiDiscrimination Law Review 23. 43 See, eg T Kádár, ‘The Legal Standing of Equality Bodies’ (2019) 2 European Equality Law Review 1; E Lantschner, ‘Strategic litigation: equality bodies’ strategic use of powers to enforce discrimination law’ (2020) 2 European Equality Law Review 1; see also Commission, ‘Commission Staff Working Document, Equality bodies and the implementation of the Commission Recommendation on standards for equality bodies’ SWD (2021) 63 final.

Article 47 in the Field of Non-Discrimination 133 criteria laid down in national law, a legitimate interest in ensuring that the provisions of the relevant directive are complied with, may engage, on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of the obligations arising thereunder.44 Several directives also require the Member States to establish bodies for the promotion of equal treatment, which are often referred to as equality bodies, whose tasks include, in particular, providing independent assistance to persons in pursuing their complaints regarding discrimination.45 Such provisions may therefore be considered to be an expression of the principle of effective judicial protection guaranteed by Article 47 of the Charter, in so far as they help ensure the enforcement of individuals’ EU law rights in the field of non-discrimination.46 This is borne out by Associazione Avvocatura per i diritti LGBTI,47 involving the interpretation of Directive 2000/78 in respect of discrimination on grounds of sexual orientation. One of the issues concerned whether Directive 2000/78 precludes national legislation under which an association, whose objective is the judicial protection of persons having a certain sexual orientation and the promotion of the culture and respect of the rights of that category of persons, automatically on account of that objective and irrespective of whether it is a for-profit association, has standing to bring legal proceedings for the enforcement of the obligations under that directive and, where appropriate, to obtain damages, in circumstances that are capable of constituting discrimination against that category of persons and it is not possible to identify an injured party. In its judgment, the Court answered that question with a resounding ‘no’. Drawing on previous case law,48 it underscored that Article 9(2) of Directive 2000/78 in no way precludes the Member States from establishing the right of associations to bring legal or administrative proceedings to enforce the obligations resulting from that directive without acting in the name of a specific complainant. According to the Court, it is for the Member States to decide under which conditions an association may bring legal proceedings for a finding of discrimination prohibited by Directive 2000/78 and for a sanction to be imposed, such sanctions being required under Article 17 thereof to be effective, proportionate and dissuasive, regardless of whether there is any identifiable injured party.

44 See Council Dir 2000/43/EC, Art 7(2); Council Dir 2000/78/EC, Art 9(2); Council Dir 2004/113/EC, Art 8(3); Dir 2006/54/EC, Art 17(2) and Recital 31, Dir 2010/41/EU, Art. 9(2). 45 See Council Dir 2000/43/EC, Art 13 and Recital 24; Council Dir 2004/113/EC, Art 12 and Recital 25; Dir 2006/54/EC, Art 20; Dir 2010/41/EU, Art 11 and Recital 22. 46 See, in that regard, Braathens Regional Aviation (n 30) para 34. 47 See Case C-507/18 NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford EU:C:2020:289, paras 63–65; see further V Passalacqua, ‘Homophobic Statements and Hypothetical Discrimination: Expanding the Scope of Directive 2000/78/EC: ECJ 23 April 2020, Case C-507/18, Associazione Avvocatura per i diritti LGBTI’ (2020) 16 European Constitutional Law Review 513; A Tryfonidou, ‘Case C-507/18 NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford: homophobic speech and EU anti-discrimination law’ (2020) 27 Maastricht Journal of European and Comparative Law 513. 48 See Case C-81/12 Asociaţia Accept EU:C:2013:27, paras 36–39 (concerning Council Dir 2000/78/EC); see also Case C-54/07 Feryn EU:C:2008:397, paras 21–28 (concerning Council Dir 2000/43/EC).

134 Kathleen Gutman

E. Forms of Redress The forms of redress, relating to the relevant sanctions, penalties and compensation in cases of unlawful discrimination, are addressed in the directives on non-discrimination commonly through the standard formula that the sanctions or penalties, which may include the payment of compensation, must be effective, proportionate and dissuasive.49 Additionally, certain directives contain provisions which require the Member States to introduce the necessary measures to ensure ‘real and effective compensation or reparation’ for the damage sustained by persons injured as a result of unlawful discrimination and which specify that such compensation or reparation must be dissuasive and proportionate to the damage suffered and cannot be limited by the fixing of a prior upper limit.50 On the whole, considerable discretion is left to the Member States,51 and much depends on the rules of the particular national legal system.52 Nonetheless, as illustrated by the Court’s case law, such rules must ensure effective judicial protection for individuals. For instance, in Asociaţia Accept,53 one of the questions concerned whether Article 17 of Directive 2000/78 precludes national rules which make it possible only to impose a simple warning where there is a finding of discrimination on grounds of sexual orientation. In its judgment, the Court underlined that the rules on sanctions set out in that provision must ensure, in parallel with Article 9 thereof, ‘real and effective legal protection’ and that the severity of the sanctions must be commensurate to the seriousness of the breaches for which they are imposed, in particular by ensuring a genuinely dissuasive effect. On that basis, the Court held that a purely symbolic sanction is not compatible with Directive 2000/78 and therefore such national rules were precluded by that directive. Recently, in Braathens Regional Aviation,54 the Court solidified the link between Article 47 of the Charter and redress in the field of non-discrimination. The case concerned the compatibility with Directive 2000/43 of a national procedural mechanism under which a defendant may bring a dispute to an end by admitting a claim for compensation for discrimination without acknowledging the existence of the alleged discrimination and without the applicant being able to obtain a finding of that discrimination from the competent court. In its judgment, after referring to previous case law including Asociaţia Accept, the Court held that such national legislation infringes the requirements laid down in Articles 7 and 15 of Directive 2000/43, read in

49 See Council Dir 2000/43/EC, Art 15 and Recital 26; Council Dir 2000/78/EC, Art 17 and Recital 35; Council Dir 2004/113/EC, Art 14 and Recital 27; Dir 2006/54/EC, Art 25 and Recital 35. 50 See Dir 2006/54/EC, Art 18 and Recital 33; Dir 2010/41/EU, Art 10. 51 See also, eg Case C-407/14 Arjona Camacho EU:C:2015:831, paras 25–45 (holding punitive damages not required for sanctioning breaches under Dir 2006/54/EC). 52 See further, eg Ionescu and Iordache (n 2); J Tomšej, ‘Sanction systems in the light of EU Directives 2000/43/EC and 2000/78/EC: a comparative study of Slovakia, Czechia and Poland’ (2020) 2 European Equality Law Review 45; K Wladasch, The Sanctions Regime in Discrimination Cases and its Effects (European network of equality bodies, 2015). 53 See Asociaţia Accept (n 48) paras 60–73. 54 See Braathens Regional Aviation (n 30) paras 29–59.

Article 47 in the Field of Non-Discrimination 135 the light of Article 47 of the Charter. In particular, the Court found that the purpose of the procedures referred to in Article 7 of that directive is to make it possible to assert the rights derived from the principle of equal treatment of any person who considers himself or herself to be the victim of discrimination on grounds of racial or ethnic origin and to ensure that those rights are respected. Thus, where the defendant does not recognise the discrimination alleged, that person must be able to obtain a ruling from a court as to whether the rights which such proceedings are intended to enforce have been infringed, and the payment of money alone does not ensure effective judicial protection. The Court further emphasised that the national legislation was contrary to the compensatory and dissuasive functions of sanctions laid down by the Member States in accordance with Article 15 of Directive 2000/43. Notably, in his accompanying Opinion,55 Advocate General Saugmandsgaard Øe reached a similar conclusion that the national legislation infringed Articles 7, 8 and 15 of Directive 2000/43, read in the light of Article 47 of the Charter. The Advocate General stressed, inter alia, that such legislation does not provide a person who considers himself or herself wronged access to the courts in order to obtain a finding of discrimination, which touches on the essence of the right to effective judicial protection referred to in Article 7 of Directive 2000/43 and Article 47 of the Charter and hence does not satisfy the test laid down in Article 52(1) thereof. In his view, it also prevents the effective application of Article 8 of Directive 2000/43, which is intended to strengthen judicial protection by shifting the burden of proof, since the person wronged is not even able to establish the facts from which it may be presumed that there has been discrimination, since the action ends at the admission stage. Taken together, the Court’s judgments mentioned above may be considered to reinforce the principle of effective judicial protection as enshrined in Article 47 of the Charter in the field of non-discrimination. Indeed, Article 47 of the Charter seems to permeate those judgments, even where that provision is not mentioned explicitly. As further indicated by those judgments, the potential relevance of Article 47 of the Charter depends to a large extent on the particular circumstances of the case and thus it may have less of a role to play where, for example, the case centres on the specifics of the relevant directive, as compared to situations directly bearing on the principle of effective judicial protection as guaranteed by that provision. It might even be considered that the essence of the principle of effective judicial protection, and later of Article 47 of the Charter,56 has been shaped by the principle of non-discrimination due to their symbiosis since the early case law, as seen with respect to matters concerning effective remedies, retaliation, evidence and redress. Those judgments therefore arguably demonstrate the influence of Article 47 of the Charter in raising the level of procedural standards in the field of non-discrimination and thus helping individuals to obtain real and effective access to justice in the Member States.

55 See Case C-30/19 Braathens Regional Aviation EU:C:2020:374, Opinion of AG Saugmandsgaard Øe, points 75–129, in particular points 110–16, 128. 56 See further, eg K Gutman, ‘The Essence of the Fundamental Right to an Effective Remedy and to a Fair Trial in the Case-Law of the Court of Justice of the European Union: The Best Is Yet to Come?’ (2019) 20 German Law Journal 884; S Prechal, ‘Effective Judicial Protection: some recent developments – moving to the essence’ (2020) 13 Review of European Administrative Law 175.

136 Kathleen Gutman

IV. Opportunities for Further Development of Article 47 of the Charter in the Field of Non-Discrimination A. Procedural Obstacles at the National Level The Court’s case law invites reflection about opportunities for Article 47 of the Charter to play a greater role in tackling various kinds of procedural obstacles associated with bringing discrimination claims at the national level and thus improving effective judicial protection for individuals seeking to enforce their rights in the field of nondiscrimination, even taking over to some degree from the principles of equivalence and effectiveness,57 in connection with the assessment of the compatibility of national rules with EU law.58 For example, as regards the issue of time-limits for bringing claims in the field of non-discrimination, the Court’s case law is replete with instances of the assessment of the relevant national procedural rule in accordance with the requirements of the principles of equivalence and effectiveness.59 This is aptly illustrated by Specht and Others,60 concerning, inter alia, whether Directive 2000/78 precluded national rules under which the applicant’s right to equal treatment was conditional upon that right having been asserted vis-à-vis the employer within relatively narrow time-limits. In contrast to the approach taken by Advocate General Bot who analysed the matter from the perspective of the applicant’s right to an effective remedy in Article 47 of the Charter and the principles of equivalence and effectiveness,61 the Court stayed within the confines of equivalence and effectiveness, concluding that EU law did not preclude such national rules where they did not conflict with those principles. In the light of recent jurisprudential developments, it might be wondered whether there is potential for Article 47 of the Charter to take the lead in that regard. It should be pointed out that, in case law concerning other areas of EU law besides the field of nondiscrimination, the Court has examined the question of time-limits,62 along with other 57 This refers to the Court’s case law that, in the absence of Union legislation, it is for the legal system of the Member States to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and do not make impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness); see, eg Case C-86/19 Vueling Airlines EU:C:2020:538, para 39. 58 See further, inter alia, J Krommendijk, ‘Is there Light on the Horizon? The Distinction between “Reweeffectiveness” and the Principle of Effective Judicial Protection in Article 47 of the Charter After Orizzonte’ (2016) 53 Common Market Law Review 1395; R Widdershoven, ‘National Procedural Autonomy and General EU Law Limits’ (2019) 12 Review of European Administrative Law 5; see also contributions in the present volume. 59 See, eg Case C-246/09 Bulicke EU:C:2010:418, paras 22–42; Case C-417/13 Starjakob EU:C:2015:38, paras 59–69. 60 See Joined Cases C-501/12, C-506/12, C-540/12 and C-541/12 Specht and Others EU:C:2014:2005, paras 110–15. 61 See Joined Cases C-501/12 to C-506/12, C-540/12 and C-541/12 Specht and Others EU:C:2013:779, Opinion of AG Bot, points 109–121. 62 See, eg Case C-664/15 Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation EU:C:2017:987, para 90.

Article 47 in the Field of Non-Discrimination 137 apparent procedural obstacles to bringing cases involving EU law before national courts, such as evidence63 and court costs,64 through the prism of Article 47 of the Charter as constituting a pre-condition for the right to an effective remedy and thus a limitation on that provision which must satisfy the requirements of Article 52(1) thereof. Again, much depends on the circumstances of the particular case and the fact that Article 47 of the Charter comes into play does not necessarily lead to an outcome in which the national rules are found to be inconsistent with EU law. Nonetheless, Article 47 of the Charter may arguably have added value in terms of strengthening judicial protection for individuals in so far as the assessment carried out by the Court may be more restrictive,65 or at the very least more searching, than that concerning the principles of equivalence and effectiveness. In this way, there could be spillover effects of this case law in the field of non-discrimination, which may serve to enhance the role of Article 47 of the Charter in relation to the Court’s scrutiny of national rules in this context.

B. Tasks of National Courts and Other Competent Bodies The Court’s case law relating to the tasks of the national courts and other competent bodies in adjudicating discrimination claims in the Member States may also present opportunities for advancing Article 47 of the Charter in the field of non-discrimination. This is evident in the line of case law concerning the horizontal enforcement of directives on non-discrimination,66 as shown by the judgment in Egenberger67 discussed above. In that judgment, the Court also addressed the national court’s obligation to disapply a provision of national law which it is not possible to interpret in conformity with Article 4(2) of Directive 2000/78. The Court underlined that, in those circumstances, the national court is required to ensure within its jurisdiction the judicial protection for individuals flowing from Articles 21 and 47 of the Charter and to guarantee the full effectiveness of those articles by disapplying, if need be, any contrary provision of national law. According to the Court, like Article 21 of the Charter on non-discrimination, Article 47 thereof is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on in disputes between them in the fields covered by EU law. Consequently, the Court declared that Article 47 of the Charter has horizontal direct effect and thus may apply in disputes between private parties as well as those involving public authorities. 63 See, eg Case C-61/14 Orizzonte Salute EU:C:2015:655, paras 48–49; Case C-73/16 Puškár EU:C:2017:725, paras 61–62. 64 See, eg Joined Cases C-439/14 and C-488/14 Star Storage and Others EU:C:2016:688, paras 46–49; Case C-205/15 Toma EU:C:2016:499, paras 36, 39. 65 See, in that regard, Case C-89/17 Banger EU:C:2018:225, Opinion of AG Bobek, points 99–103; Case C-30/19 Braathens Regional Aviation EU:C:2020:374, Opinion of AG General Saugmandsgaard Øe, points 66–71. 66 See further, eg A Colombi Ciacchi, ‘The direct horizontal effect of EU fundamental rights’ (2019) 15 European Constitutional Law Review 294; E Frantziou, ‘The Horizontal Effect of the Charter: Towards an Understanding of Horizontality as a Structural Constitutional Principle’ (2020) 22 Cambridge Yearbook of European Legal Studies 208. 67 See Egenberger (n 31), paras 70–82; see also, eg Braathens Regional Aviation (n 30), para 57.

138 Kathleen Gutman In Minister for Justice and Equality and Commissioner of the Garda Síochána,68 the Court addressed the obligations of other competent bodies responsible for adjudicating discrimination claims, holding that EU law precludes national legislation under which a body established to ensure the enforcement of EU law in the field of non-discrimination lacks jurisdiction to disapply national law that is contrary to EU law. The Court considered that, if the body which has been conferred the power to ensure enforcement of the principle of non-discrimination in respect of employment and occupation under Directive 2000/78 has before it a dispute involving observance of that principle, the principle of primacy of EU law requires it to provide, within the framework of that power, the legal protection which individuals derive from EU law and to ensure that EU law is fully effective, disapplying, if need be, any provision of national law contrary thereto. Otherwise, according to the Court, the EU rules in the area of equality in employment and occupation would be rendered less effective. More recently, in Cresco Investigation,69 the Court ruled on the obligation of national courts to provide sufficient remedies in addition to the disapplication of incompatible national law. For the Court, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category. On that basis, the Court held that a national court must set aside any discriminatory provision of national law without having to request or await its prior removal by the legislature and that it must apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category, noting that that obligation persists regardless of whether or not the national court has been granted competence to do so, but that such an approach only applies if there is a valid point of reference. Even if some of the Court’s judgments discussed above do not refer to Article 47 of the Charter, altogether they may be read as drawing attention to some possible uses of Article 47 of the Charter for raising the standards of effective judicial protection.

V. Conclusion To conclude, three main points may be gleaned from the foregoing discussion. First, from the beginning, the Court’s case law in the field of non-discrimination has delineated the broad contours of the principle of effective judicial protection as enshrined in Article 47 of the Charter, thus comprising the right to an effective remedy before a court along with other aspects which are crucial for ensuring that individuals have adequate legal remedies for the protection of the rights they derive from EU law in this field. Second, the Court’s case law concerning some of the main directives in

68 See Case C-378/17 The Minister for Justice and Equality and The Commissioner of the Garda Síochána v Workplace Relations Commission EU:C:2018:979, paras 45–52. 69 See Case C-193/17 Cresco Investigation GmbH v Markus Achatzi EU:C:2019:43, paras 75–81; see also Case C-396/17 Leitner EU:C:2019:375, paras 67–79.

Article 47 in the Field of Non-Discrimination 139 the field of non-discrimination illustrates the influence of Article 47 of the Charter in strengthening effective judicial protection for individuals, as evidenced by judgments concerning effective access to justice, protection against retaliation, the burden of proof, the standing of equality bodies and other entities, and forms of redress. Third, the Court’s case law highlights some opportunities for further development of Article 47 of the Charter in the field of non-discrimination as regards procedural obstacles at the national level and tasks of the national courts and other competent bodies in this context. Consequently, certain recent developments in the Court’s case law indicate that Article 47 of the Charter plays a significant role in the field of non-discrimination by helping drive procedural standards for ensuring effective judicial protection onwards and upwards, that is, towards a better condition and a higher level, in the Union legal order. At the same time, there are several issues that remain ripe for investigation. These include, in particular, further engagement with the jurisprudence of the European Court of Human Rights on matters relating to access to justice in the field of non-discrimination,70 along with consideration of the case law of the national courts concerning the application of Article 47 of the Charter in that regard.71 With the construction of a ‘Union of Equality’72 at the forefront of institutional activities at the EU level and certain legislative initiatives presently on the horizon that aim to strengthen enforcement mechanisms in the field of non-discrimination,73 it will be exciting to see how the case law of the Court of Justice evolves in this field in the years to come.

70 See, in that regard, A Coomber, ‘Strategically litigating equality – reflections on a changing jurisprudence’ (2012) 15 European Anti-Discrimination Law Review 11; see also citations (n 43). 71 See, in that regard, E Muir, ‘Anti-discrimination law as a laboratory for EU governance of fundamental rights at the domestic level: collective actors as bridging devices’, EUI Working Paper Law 2017/17 (n 5) 123–24. 72 See Commission, ‘Commission Communication on the European Pillar of Social Rights Action Plan’ COM (2021) 102 final, 19–21. 73 See Commission, ‘Commission Proposal for a Directive of the European Parliament and of the Council to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms’ COM (2021) 93 final.

140

8 No Turning Back? The Empowerment of National Asylum and Migration Courts under Article 47 of the Charter MARCELLE RENEMAN*

In the field of migration and asylum national courts have the difficult task of interpreting and applying (often complex) EU legislation, while operating in a highly politicised arena. Their role is affected by national procedural rules, restricting the scope and intensity of their judicial review or even limiting their jurisdiction in the interest of efficiency. National courts have therefore turned to the Court of Justice to challenge such restrictions in the light of the right to an effective remedy guaranteed by Article 47 of the Charter. This chapter shows that the CJEU has ensured that national courts have jurisdiction to review decisions based on EU law, despite weak remedy provisions or incorrect legal qualifications by Member States. Moreover, it has used Article 47 of the Charter to support national courts under pressure by filling in gaps in EU legislation defining the scope and intensity of judicial review. At the same time, the CJEU has stressed the importance of the expediency of procedures. Moreover, it has shaped its case law according to the applicable EU legislation. Therefore, there is a risk that changes in EU legislation will restrict the national courts’ powers. It is argued that the CJEU should use Article 47 of the Charter to ensure that national courts can continue to counterbalance the strong politicisation in the field of migration and asylum.

I. Introduction Since 1999, the European Union has developed comprehensive legislation on migration and asylum.1 Nowadays, EU legislation covers almost all aspects of migration of thirdcountry nationals, from their entrance to the territory of the EU to their detention and

* Marcelle Reneman is Assistant Professor of Migration Law at the Amsterdam Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam. 1 Tampere European Council, ‘Presidency Conclusions’ (European Parliament, 15 and 16 October 1999) available at https://www.europarl.europa.eu/summits/tam_en.htm#c.

142 Marcelle Reneman return if their stay is (or has become) illegal.2 In particular in the field of asylum, there have been several legislative waves, which envisaged increasing the level of harmonisation within the Member States.3 The Procedures Directive of 20134 contains extensive rules about the administrative phase of the asylum procedure and (to a lesser extent) the right to an effective remedy. At the same time, negotiations on the proposal of this directive were difficult, because Member States wished ‘to see their own national administrative traditions reflected in the relevant legislation’.5 As a result, the procedural safeguards contained in the Procedures Directive are complex and often leave extensive discretion to Member States. With regard to other types of migration, such as visa and family reunification, EU legislation led to limited procedural harmonisation, containing only the right to a reasoned decision and a remedy provision.6 The national courts of the Member States have to interpret and apply these complex and sometimes vague EU provisions in their national legal systems. They have asked the CJEU to interpret EU legislation in the light of the right to an effective remedy guaranteed by Article 47 of the Charter. However, they have also turned to the CJEU in order to challenge restrictions on their powers under national law in the light of this fundamental right. Such restrictions may be imposed by the administrative law system they operate in or by political choices of the legislature. The courts referred preliminary questions about jurisdiction, the scope of judicial review and the tools and time available to them for adjudicating. In this context, it is important to note that national courts are players in a highly politicised arena. Member States have to deal with high numbers of applications for visa and residence permits. Moreover, since 2015 when the EU was confronted with a large influx of asylum seekers, there has been a sense of crisis at both EU and national level. Member States have resorted to faster and more efficient asylum procedures, to cope with these high numbers of asylum applications and to deter more asylum seekers from coming.7 These measures have also affected the role of the national courts. In its case law concerning Article 47 of the Charter in the area of migration and asylum, the CJEU has built on its standing case law in other areas of EU law. This has introduced stability and (relative) neutrality in the case law of the CJEU in the area of migration and asylum: the relevant standards had already been derived from the EU right to an effective remedy and are not dependent on the context of the specific EU legislation concerned. However, this chapter will also demonstrate that in some types of cases the CJEU has not clarified whether procedural standards derive from secondary 2 K Groenendijk, ‘Introduction: Migration and Law in Europe’ in E Guild and P Minderhoud (eds), The First Decade in EU Migration and Asylum Law (Brill Publishers, 2011) 1–22. 3 E Tsourdi, ‘Of Legislative Waves and Case Law: Effective Judicial Protection, Right to an Effective Remedy and Proceduralisation in the EU Asylum Policy’ (2019) 12 Review of European Administrative Law 143. 4 Dir 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L180/60. 5 Tsourdi (n 3) 146. 6 See Reg (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) [2009] OJ L243/1, Art. 32; Council Dir 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12, Arts 5(4) and 18. 7 See, eg M Baldwin-Edwards, BK Blitz and H Crawley, ‘The politics of evidence-based policy in Europe’s ‘migration crisis’ (2019) 45 Journal of Ethnic and Migration Studies 2139; European Parliament, DirectorateGeneral for Internal Policies, ‘The Implementation of the Common European Asylum System’ (2016).

Empowerment of National Migration Courts 143 EU legislation or (also) from Article 47 of the Charter. This leaves the possibility that standards will be lowered if EU legislation is amended. This chapter focuses on two specific issues under Article 47 of the Charter: the jurisdiction of national courts and the scope and intensity of judicial review. Section II discusses situations in which the CJEU has empowered national courts on the basis of Article 47 of the Charter by requiring the introduction or extension of a judicial remedy.8 Moreover, it addresses limitations of the right to a remedy under this provision. Section III examines the requirements regarding the scope and intensity of judicial review in detention, asylum, Dublin and short-term visa cases. It shows that these requirements vary in particular according to the applicable provisions of secondary EU legislation.

II. Ensuring the Jurisdiction of National Courts The CJEU has upheld the right to an effective remedy before a court or tribunal, irrespective of the type of migration case at issue. This is not as obvious as it may seem. In short-term visa cases, the right to lodge an appeal against the refusal of a visa application was only introduced in the Visa Code in 2009.9 Many Member States opposed such a right referring to ‘the risk of their domestic courts being swamped if that right were available’,10 as the Schengen States receive millions of visa applications per year.11 It is therefore not surprising that the Visa Code contains a weak remedy provision.12 It states that applicants who have been refused a visa shall have the right to appeal and that such appeals shall be conducted in accordance with the national law of that Member State. ‘The nature and specific conditions of the remedies available to visa applicants’13 thus fall within the procedural autonomy of the Member States. Member States have used this discretion in order to limit the right to an effective remedy, for example by only providing an administrative review. The CJEU acknowledged in El Hassani that ‘in examining a visa application the national authorities have a broad discretion as regards the conditions for applying the grounds of refusal laid down by the Visa Code and the evaluation of the relevant facts’. However, it also considered that ‘such discretion has no influence on the fact that the authorities directly apply a provision of EU law’.14 Thus, Article 47 of the Charter is

8 See also M Bonelli, ‘Article 47 of the Charter, Effective Judicial Protection and the (Procedural) Autonomy of the Member States’ in this volume. 9 Reg 810/2009. 10 Council Document No 14628/08 ‘Draft Regulation of the European Parliament and of the Council establishing a Community Code on Visas of 23 October 2008’ (2008) 3. 11 Visa statistics are available on European Commission, ‘Migration and Home Affairs: Visa Policy’ (European Commission) available at https://ec.europa.eu/home-affairs/policies/schengen-borders-and-visa/ visa-policy_en. 12 Reg 810/2009, Art 32(3). 13 Case C-403/16 El Hassani EU:C:2017:960, paras 24–25; See also Case C-680/17 Vethanayagam EU:C:2019:627, para 81. 14 El Hassani (n 13) para 36.

144 Marcelle Reneman applicable if a Member State adopts a decision refusing to issue a visa.15 The CJEU held that it follows from this provision that Member States are required ‘to guarantee, at a certain stage of the proceedings, the possibility to bring the case concerning a final decision refusing a visa before a court’.16 The El Hassani case concerned Polish legislation, according to which some third-country nationals only had a right to an administrative remedy, namely a request for a review by the same authority that had refused the visa.17 The CJEU found that such system was contrary to Article 32(3) of the Visa Code, read in the light of Article 47 of the Charter.18 Another situation in which EU legislation does not provide for a clear right to a remedy is the refusal by a Member State to accept a request from another Member State to take responsibility for the examination of an asylum claim under the Dublin III Regulation.19 Article 27 of the Dublin III Regulation only provides for an explicit right to an effective remedy against a decision to transfer an asylum seeker to another Member State.20 The scope of this remedy has been extensively discussed in CJEU case law. However, Article 27 of the Dublin Regulation says nothing about the right to appeal a decision not to transfer an asylum seeker. Some asylum seekers wish to be transferred to another Member State, in order to be reunited with their family members who reside there. According to the highest administrative court in the Netherlands these asylum seekers do not have the right to appeal against the refusal of a take charge request.21 However, a first instance court doubted whether this limitation of its jurisdiction is in conformity with EU law. In January 2021, this court asked the CJEU whether Article 27 Dublin III Regulation, read in the light of Article 47 of the Charter, requires an effective remedy against the decision of a Member State to refuse a request to take responsibility for the examination of an asylum application.22 Thus, the CJEU again has the opportunity to clarify the jurisdiction of the national courts in the light of Article 47 of the Charter.23

15 See Joined Cases C-133/19, C-136/19 and C-137/19 BMM and others EU:C:2020:577, para 57, concerning Dir 2003/86/EC, Art 18. 16 El Hassani (n 13) para 41; On the term ‘court or tribunal’, see Case C-175/11 HID and BA EU:C:2013:45, para 83; See also Case C-680/17 Vethanayagam EU:C:2019:627, paras 47–56. 17 A remedy before an administrative court was only available to family members of a national of a Member State of the EU or the European Free Trade Association, a state party to the EEA Agreement or the Swiss Confederation. 18 See Joined Cases C-924/19 PPU and C-925/19 PPU FMS and others EU:C:2020:367, paras 109–132 concerning the decision to amend a return decision. 19 Reg (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L18/1. 20 Lawclinic, ‘An Individual Legal Remedy against the Refusal of a Take Charge Request under the Dublin III Regulation’ (Migration Law Clinic) available at https://migrationlawclinic.org/2020/09/09/anindividual-legal-remedy-against-the-refusal-of-a-take-charge-request-under-the-dublin-iii-regulation/; See also M Den Heijer, ‘Remedies in the Dublin Regulation: Ghezelbash and Karim’ (2017) 54 Common Market Law Review 859, 870. 21 Dutch Council of State, 21 December 2018, NL:RVS:2018:4298. 22 District Court Haarlem, 12 January 2021, NL:RBDHA:2021:157. 23 Case C-19/21 I S v Staatssecretaris van Justitie en Veiligheid, pending.

Empowerment of National Migration Courts 145 National courts are not only side-lined by national legislators or national case law as a result of weak or unclear remedy provisions in EU legislation, but also as a consequence of the (incorrect) legal qualification of the facts by Member States. A poignant example is the lack of remedies for third-country nationals who are subjected to de facto detention (deprivation of liberty, which has no basis in national law) in the Member States. EU legislation provides strong judicial protection to asylum seekers, who are deprived of their liberty on the basis of the Reception Conditions Directive,24 and to third-country nationals illegally resident on the territory, who are detained on the basis of the Return Directive.25 In accordance with Article 5(4) of the European Convention of Human Rights (henceforth: ECHR), both directives provide for the right to a ‘speedy judicial review’ if the detention has been ordered by an administrative authority.26 However, in practice many third-country nationals do not have said judicial review available to them, because the authorities of the Member States do not qualify their stay in a closed area, such as a transit zone or hotspot at the external borders of the EU, as detention.27 They consider this stay to be a mere restriction of the freedom of movement, which does not call for speedy judicial review under EU law or international law. The legal qualification of a stay in a closed area may raise complex issues of fact and law,28 which are not addressed by EU legislation. As a result, Member States are granted room to apply practices of de facto detention.29 In 2020, the CJEU dealt with a situation of de facto detention of asylum seekers in the transit zone at the border between Hungary and Serbia. It concluded, unlike the ECtHR in an earlier judgment,30 that the stay of third-country nationals in these transit zones constitutes a deprivation of liberty.31 Moreover, it considered that national legislation which does not guarantee any judicial review of the lawfulness of an administrative decision ordering the detention of an asylum seeker or an illegally resident third-country national not only constitutes an infringement of Articles 9(3) Reception Conditions Directive and 15(2) Return Directive but also undermines the essential content of the right to effective judicial protection, guaranteed in Article 47 of the Charter, in that it absolutely prevents a court from ruling on respect for the rights and freedoms guaranteed by EU law to the third-country national placed in detention.32 Therefore,

24 Dir 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96. 25 Dir 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally resident third-country nationals [2008] OJ L348/98. 26 Dir 2013/33/EU, Art 9(3); Dir 2008/115/EC, Art 15(2). 27 European Parliament, ‘Asylum procedures at the border, European Implementations Assessment’ (2020) Parliamentary Research Service 42, 44, 81–84. 28 The European Court of Human Rights has identified a number of factors for this purpose; See, eg the Judgment of the European Court of Human Rights of 21 November 2019 in Case No 47287/1 Ilias and Ahmed v Hungary, para 217. 29 European Parliament, ‘Asylum procedures at the border, European Implementations Assessment’ (2020) Parliamentary Research Service 46, 76–80, 204–205. 30 Ilias and Ahmed v Hungary (n 28). 31 FMS and others (n 18) para 231; See also Case C-808/18 Commission v Hungary EU:C:2020:1029. 32 FMS and others (n 18) para 290.

146 Marcelle Reneman the national court should declare that it has jurisdiction to examine the lawfulness of a detention measure, ‘disapplying, where necessary, any national provision which prohibits it from proceeding that way.’33 The CJEU thus ensured that decisions on visa applications or detention measures can be subjected to judicial review. However, it also held that the interest in the expediency of procedures prevents the possibility of every decision based on EU legislation being appealed.34 No separate judicial remedy needs to be offered against partial or preparatory decisions, such as the decision to process an asylum application in an accelerated procedure35 or the decision not to use the discretionary clause to examine an asylum application for which it is not responsible under the criteria of the Dublin III Regulation. These decisions can be challenged in the context of an appeal against the final decision (the rejection of the asylum claim or the Dublin decision).36 Moreover, the CJEU allows Member States to derogate from the right to an effective remedy, if judicial review cannot lead to stronger rights for the applicant. This applies for example if an applicant has been refused refugee status, but granted subsidiary protection status37 while the rights and benefits offered by both statuses are ‘genuinely identical’.38 The CJEU concluded that such a situation does not occur if the validity of the refugee permit and subsidiary protection permit differs.39 None of the EU legal instruments concerning the right of residence of third country nationals provides for a right to higher appeal against a first-instance court decision.40 The CJEU has held that such a right also cannot be derived from the scheme or purpose of the Procedures Directive or the Return Directive41 or from Article 47 of the Charter.42 Here, the CJEU referred to ECtHR case law under Article 13 ECHR, which also does not compel states to set up a second level of appeal. At the same time, ‘EU law does not preclude a Member State from making provision for a second level of jurisdiction for appeals against decisions refusing an application for international protection and return decisions’.43 If a Member State introduces a second level of jurisdiction, the applicable national procedural rules are still implementing the EU right to an effective remedy. As a result, these national procedural rules need to comply with the principles of equivalence and effectiveness.44 National procedural autonomy is thus limited by these principles.

33 ibid, para 291. 34 Case C-69/10 Samba Diouf EU:C:2011:524, para 44; Case C-661/17 MA and others EU:C:2019:53, para 76. 35 Samba Diouf (n 34) paras 43–44. 36 MA and others (n 34) para 86. 37 Dir 2013/32/EU, Art 46(2). 38 Case C-662/17 E.G EU:C:2018:847, paras 50 and 64. 39 ibid, para 54. 40 See Case C-180/17 X and Y EU:C:2018:775, paras 23–24; See also Case C-556/17 Torubarov EU:C:2019:339, Opinion AG Bobek, para 60. 41 X and Y (n 40) para 24. 42 ibid, para 30; See also Samba Diouf (n 34) para 69. 43 X and Y (n 40) para 26. 44 ibid, paras 34 and 35.

Empowerment of National Migration Courts 147

III. The Scope and Intensity of Judicial Review: Defining the Role of the National Courts This section will address the role of national courts in EU migration law and in particular the scope and intensity of their judicial review. In other words, how widely does the control of the court range45 and will they ‘take a hard look’ at the decisions by the administrative authorities or only a limited one?46 The intensity of judicial review may vary from a mere reasonableness test to a full judicial review resulting in the court substituting its own view for that of the decision-maker. Craig contends that the intensity of judicial review is determined by the deference given to the initial decision-makers by the courts. In particular where it concerns (complex) issues of fact or issues where the legislator has granted discretion to the decision-maker, the reviewing court will generally not be inclined to substitute its own decision for that of the initial decision-maker.47 This may be different where the court is interpreting the law. There, no deference may be accorded as to the legal meaning that the term should bear.48 In the field of migration law, many national courts have been struggling with questions regarding the scope and intensity of their review. Sometimes, they have asked the CJEU for clarification about their role in the context of specific EU legislation. However, the national courts have often also turned to the CJEU because they felt restrained by national law. They had to deal with an administrative law system restricting the scope of their judicial review to the grounds of appeal,49 time-pressure50 or administrative authorities systematically ignoring their judgments.51 Preliminary questions by national courts concerning these issues have resulted in rather extensive case law on the scope and intensity of judicial review under Article 47 of the Charter, in particular in the field of asylum. This section will discuss the role of national courts in the fields of migration detention, asylum, transfer in the context of the Dublin Regulation and visas. It will demonstrate that the required role of the national court depends in particular on the applicable secondary EU legislation, which reflects the nature of the (fundamental) right at issue.52 We will start with the area in which national courts have most powers under EU law (detention) and end with the fields in which the scope of judicial review has been most contested by the Member States (Dublin and visas). 45 Case C-194/19 HA, pending. 46 S Prechal and R Widdershoven, ‘Principle of effective judicial protection’ in M Scholten and A Brenninkmeijer (eds), Controlling EU agencies: The rule of law in a multi-jurisdictional legal order (Edward Elgar, 2020) 85. 47 P Craig, ‘Judicial review and judicial deference’ in M Scholten and A Brenninkmeijer (eds), Controlling EU agencies: The rule of law in a multi-jurisdictional legal order (Edward Elgar, 2020) 100; See also Prechal and Widdershoven (n 46) 85. 48 See Craig (n 47) para 99. 49 See Case C-194/19 HA, pending; See also Joined Cases C-704/20 PPU and C-39/21 PPU, pending. 50 See Case C-348/16 Moussa Sacko EU:C:2017:591; Case C-564/18 LH EU:C:2020:218. 51 See also AM Reneman, ‘Asylum and Article 47 of the Charter: Scope and Intensity of Judicial Review’ in A Crescenzi, R Forastiero and G Palmisano (eds), Asylum and the EU Charter of Fundamental Rights (Editoriale Scientifica, 2018) 59–77. 52 Craig (n 47) para 114; Prechal and Widdershoven (n 46) 85; K Geertsema, ‘Terughoudendheid in soorten en maten anno 2019’ (2019) 10 Asiel & Migrantenrecht 297.

148 Marcelle Reneman

A. The Detention Judge: A Habeas Corpus Examination The Return Directive sets out common standards and procedures for returning illegally resident third-country nationals to their country of origin. In this light, it provides Member States with the power to detain third-country nationals in order to enforce their return. Detention cases concern the right to personal liberty of thirdcountry nationals. Historically, the principle of habeas corpus includes a right to a full judicial review of detention measures.53 Article 15 of the Return Directive therefore guarantees the right to speedy judicial review of the decision to impose the detention measure and a review by a judicial authority with reasonable periods of time in case of prolonged detention.54 Very little deference is given to the authorities which ordered the detention measure. The conditions for detention provide some leeway to the national authorities, for example when deciding whether there is a risk of absconding.55 However, the Directive does not leave any discretion if the detention is found to be unlawful: then the third-country national shall be released immediately.56 The CJEU has made clear that it expects the national courts to take an active role in detention cases. It considered that the review of a detention measure requires and ‘in-depth examination of the matters of fact specific to each individual case’.57 The judicial authority: must be able to take into account both the facts stated and the evidence adduced by the administrative authority and any observations that may be submitted by the third-country national. Furthermore, that authority must be able to consider any other element that is relevant for its decision should it so deem necessary. Accordingly, the powers of the judicial authority in the context of an examination can under no circumstances be confined just to the matters adduced by the administrative authority concerned.58

If the judicial authority finds the detention to be unlawful, it needs to substitute its own decision for that of the authority which ordered the detention ‘and to take a decision on whether to order an alternative measure or the release of the third-country national concerned’.59 According to the CJEU, any other interpretation would render Article 15 of the Return Directive ineffective and would deprive the examination by a judicial authority of all substance, ‘thereby jeopardising the achievement of the objectives pursued by the directive’.60 The CJEU did not refer to Article 47 of the Charter in this context. The CJEU has been requested to rule on the question whether national procedural law may restrict the scope of review to the grounds of appeal submitted by the applicant, preventing the detention judge reviewing the lawfulness of the detention measure

53 GN Cornelisse, ‘Van de Magna Carta tot Mahdi: Reikwijdte en intensiteit van de rechterlijke toetsing van vreemdelingendetentie’ (2015) 5 Asiel & Migrantenrecht 201. 54 Dir 2008/115/EC, Art 15(3). 55 Dir 2008/115/EC, Art 15(1)(a). 56 Dir 2008/115/EC, Art 15(2) and (4); See also FMS and others (n 18) para 292. 57 Case C-146/14 PPU Mahdi EU:C:2014:1320, para 62. 58 ibid. 59 ibid; See also FMS and others (n 18). 60 See Mahdi (n 57) para 63.

Empowerment of National Migration Courts 149 ex officio.61 Under Dutch administrative law, as interpreted by the highest administrative court in the Netherlands, detention judges cannot quash a detention measure if the applicant has not raised the correct arguments during the appeal. Some first instance courts in the Netherlands find that this is contrary to Article 15 Return Directive interpreted in the light of Article 47 of the Charter. The CJEU is basically asked to abolish the restrictions on the scope of review imposed by the highest administrative court.62

B. The Asylum Judge: A Full and Ex Nunc Examination During the asylum procedure, the determining authority (an administrative or quasijudicial body)63 examines whether an asylum seeker qualifies as a refugee or is in need of subsidiary protection on the basis of the criteria laid down in the Qualification Directive.64 Member States may not expel refugees or persons in need of subsidiary protection to their country of origin.65 Moreover, they are required to grant them an asylum status, subject to the exclusion grounds mentioned in the Qualification Directive. Member States have no discretion in that respect.66 Asylum applications are examined by a determining authority ‘with specific resources and specialised staff in this area’.67 According to the CJEU, the administrative phase is vital for the asylum procedure established by the Procedures Directive.68 This also follows from Chapter II of this Directive, which provides important guarantees for asylum seekers during this stage, including the right to a personal interview on their asylum application.69 The CJEU has considered that asylum seekers should cooperate with the determining authority during the administrative phase and may not circumvent this phase by providing their complete asylum account only during the appeal phase.70 Therefore, the determining authority should have the possibility to examine grounds for asylum and evidence, which dated from before the initial asylum decision or even the asylum application, but which the asylum seeker first submitted during the appeal before the national court.71

61 Joined Cases C-704/20 PPU and C-39/21 PPU Staatssecretaris van Justitie en Veiligheid (Examen d’office de la rétention), still pending at the time of writing. 62 Saliently, the preliminary questions of the highest national court were followed by preliminary questions by a lower court, which did not agree with the phrasing of the questions; See Dutch Council of State, 23 December 2020, NL:RVS:2020:3034 and District Court’s-Hertogenbosch, 26 January 2021, NL:RBDHA:2021:466. 63 Dir 2013/32/EU, Art 2(f). 64 Dir 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/1. 65 Dir 2011/95/EU, Art 19; Art 21 EUCFR. 66 Dir 2011/95/EU, Arts 13 and 18; See Case C-556/17 Torubarov EU:C:2019:626 para 50. 67 Case C-517/17 Addis EU:C:2020:579, para 61; Case C-585/16 Alheto EU:C:2018:584, para 116; See Torubarov (n 66) para 64. 68 ibid. 69 Dir 2013/32/EU, Art 14. 70 CJEU Case C-652/16 Ahmedbekova EU:C:2018:801, paras 94–97; See Alheto (n 67) para 116. 71 See Ahmedbekova (n 70) para 100.

150 Marcelle Reneman In 2011, the CJEU first addressed the intensity of judicial review by considering that the judicial review of asylum decisions shall be ‘thorough’.72 After this judgment, Article 46(3) of the (recast) Procedures Directive introduced the requirement of a ‘full and ex nunc examination of both facts and points of law’, including, where applicable, ‘an examination of the international protection needs of the applicant […] at least in appeals procedures before a court or tribunal of first instance’.73 The requirement of a ‘full and ex nunc’ examination can be traced back to ECtHR standing case law under Article 3 ECHR.74 Recently, national courts have asked the CJEU for clarification of this provision. The CJEU has made clear that it does not expect national courts to give deference to this authority and envisages an active national court, which carries out a far-reaching judicial scrutiny in asylum cases.75 The CJEU seems to require national courts under Article 46(3) of the Procedures Directive to carry out their own assessment of the asylum seeker’s protection needs,76 without being bound by the limits of the initial asylum decision. In Torubarov the CJEU held that the EU legislator intended to confer on the national court ‘the power to give a binding ruling […] as to whether the applicant concerned satisfies the conditions laid down in [the Qualification Directive] to be granted international protection’.77 Moreover, the CJEU held that Article 46(3) of the Procedures Directive requires Member States to ‘order their national law in such a way [.] that the application for international protection may be considered in an exhaustive manner’ without it being necessary to refer the case back to the determining authority.78 According to the CJEU, this is in accordance with the aim of the Procedures Directive to process asylum applications as rapidly as possible. The term ‘full’ examination ‘confirms that the national court is required to examine both the evidence, which the determining authority took into account or could have taken into account and that which has arisen following the adoption of the decision by that authority’.79 The national court shall thus assess evidence which has not been examined by the determining authority. Moreover, in Alheto the CJEU considered that the national court may examine grounds for rejection of the asylum application, which had not been addressed by the determining authority.80 However, the CJEU does not seem to require national courts to do this.81 The expression ‘ex nunc’ examination ‘points to the court or tribunal’s obligation to make an assessment that takes into account, should the need arise, new evidence which has come to light after the adoption of the decision being challenged’.82 72 Samba Diouf (n 34) para 56. 73 Dir 2013/32/EU, Art 46(3). 74 Judgment of the European Court of Human Rights of 11 January 2007 in Case No 1948/04 Salah Sheekh v the Netherlands, para 136. 75 Prechal and Widdershoven (n 46) 86. 76 See Geertsema (n 52) 295, 297. 77 See Torubarov (n 66) para 65. 78 ibid, para 53. 79 ibid, para 52. 80 See Alheto (n 67) paras 120, 127. 81 See also Judgment of the European Court of Human Rights of 4 September 2018 in Case No 1820/01 Fatih, where no ex officio examination of the correct application of the Dublin criteria were required. 82 See Torubarov (n 66) para 52.

Empowerment of National Migration Courts 151 In Ahmedbekova, the CJEU explained how national courts should deal with evidence and grounds for asylum, which have not been submitted to the determining authority in the administrative phase, even though they already existed before the initial asylum decision or even the asylum application. In such situations, the national court shall in principle take this new evidence or this new ground for asylum into account, if it is able to assess it in the context of the appeal. The court should determine this on the basis of two factors: whether the evidence or asylum grounds have been submitted in a timely manner in the light of the national rules of procedure, and whether they have been presented in a sufficiently specific manner.83 If the court is able to assess the evidence or asylum grounds, it should request the determining authority to examine them within a certain time limit, which ensures the expediency of the asylum procedure. The result of the examination should be provided to the court and the applicant, before the court has interviewed the applicant and considered the case.84 In its case law, the CJEU bases its requirements regarding the scope and intensity of judicial review mainly on Article 46(3) of the Procedures Directive and not on Article 47 of the Charter. Only in Alheto the CJEU refers to Article 47 in the context of the requirement of a full and ex nunc examination.85 This could raise the question whether an amendment of Article 46 of the Procedures Directive may limit the required scope of judicial review. As we will see in the next section, this also applies with regard to judicial review in Dublin cases. The CJEU has made clear in its case law that Article 47 of the Charter requires national law to grant the court the tools and practical opportunity to conduct a full and ex nunc examination.86 The court should be able to hear the applicant. Article 46 of the Procedures Directive does not provide the right to a hearing before the national court in the context of the asylum appeal. The CJEU has stressed the importance of this right in the light of Article 47 of the Charter. According to the CJEU, the right to a hearing is ‘an essential procedural requirement, which cannot be dispensed with on grounds of speed’.87 National law shall allow courts to decide in each individual case whether it is in a position to carry out a full and ex nunc examination solely on the basis of the information in the case file, including the report of the personal interview with the applicant in the procedure at first instance.88 The national court is required to hear the applicant in the context of the appeal where it decides to examine a new ground for rejection of the asylum application, which has not been covered by the personal interview in the administrative phase.89 The national court must also ‘interview’ the applicant where it assesses there is significant new evidence or a new asylum ground.90 The court hearing may even compensate the lack of a personal interview by the determining authority, provided

83 See Ahmedbekova (n 70) para 99; Similar questions referred in Case C-587/17 Kingdom of Belgium v European Commission EU:C:2019:75 were withdrawn after Ahmedbekova. 84 ibid, para 100. 85 See Alheto (n 67) para 130. 86 Case C-406/18 PG EU:C:2020:216, para 28. 87 Case C-348/16 Moussa Sacko EU:C:2017:591, para 45. 88 ibid, para 44; The CJEU acknowledges that a hearing is in principle not necessary in manifestly unfounded asylum cases (see para 46). 89 See Alheto (n 67) para 127; See Addis (n 67) para 62. 90 See Ahmedbekova (n 70) para 100.

152 Marcelle Reneman that the court conducts the hearing in accordance with the conditions and guarantees laid down in Articles 14 and 15 of the Procedures Directive. This includes specific competences of the interviewer, confidentiality and the services of an interpreter.91 If the court is not able to interview the applicant in such manner, it ‘must annul the decision refusing the application and remit the case to the determining authority’.92 The CJEU also considered in the context of the principle of effectiveness that sufficient time shall be offered to the court, enabling it to conduct a full and ex nunc examination. It held that a mandatory period laid down under national law, within which a court hearing the appeal against the rejection of an asylum application shall adjudicate, may not prevent the court providing for a hearing and complying with the procedural guarantees laid down in the Procedures Directive. Moreover, the court must have the opportunity to order measures of inquiry, such as a medical examination of the applicant.93 National courts should disapply mandatory time limits to decide on an appeal against an asylum decision, if they cannot ensure the effectiveness of the substantive rules and procedural guarantees enjoyed by the applicant.94 The CJEU stressed that this does not relieve the national court of its obligation to act expeditiously.95 It found a mandatory time limit of eight days for adjudication in the appeal against decisions to declare an asylum application inadmissible too short in the light of Article 47 of the Charter. Nevertheless, it could not rule out that eight days might be sufficient in manifestly inadmissible cases.96 Under Article 46 of the Procedures Directive and Article 47 of the Charter, Member States are free to decide whether to grant courts the power to substitute their decision for that of the determining authority or only to annul the decision and refer the case back for a fresh assessment.97 The CJEU held that the EU legislature did not intend to introduce any common rule on this issue.98 However, if the national court refers a case back to the determining authority, a new decision shall be adopted within a short period of time.99 Moreover, the determining authority shall comply with the assessment contained in the judgment annulling the initial decision.100 As AG Bobek explained, the determining authority may make its own assessment within ‘the legal space that has still been left ‘open’ by the judge and take into account new facts, but it must use this space in good faith’.101 A few Member States have been confronted with a systematic failure by the determining authorities to comply with the courts’ judgments, resulting in an ‘endless game of procedural ping-pong’.102 In the case of Torubarov, the CJEU agreed with the referring 91 See Addis (n 67) paras 65–68, 71. 92 ibid, para 73. 93 See PG (n 86) paras 30–32. 94 ibid, para 34; Case C-564/18 LH EU:C:2020:218, paras 75, 77. 95 See PG (n 86) para 36; See LH (n 94) para 76. 96 See LH (n 94) para 73; The CJEU found a time limit of 60 days generally acceptable, see PG (n 86) para 37. 97 See Torubarov Opinion AG Bobek (n 40), paras 42 and 37. 98 See Torubarov (n 66) para 76; See Alheto (n 67) para 146. 99 Case C-246/17 Diallo EU:C:2018:499 regarding Dir. 2004/38/EC. 100 See Alheto (n 67) para 148. 101 See Torubarov (n 66) paras 104–05. 102 See Torubarov Opinion AG Bobek (n 40), para 103; Slovakian courts were facing similar problems, see Case C-113/17 (repealed after Alheto).

Empowerment of National Migration Courts 153 Hungarian court that in such a situation, applicants are deprived of their right to an effective remedy as guaranteed by Article 47 of the Charter. Therefore, this provision requires the national court to ‘vary the decision at issue [.] and substitute its own decision as to international protection’, if the determining authority has not complied with the national court’s earlier judgment in the same case.103 The Hungarian court must disapply the national law that prohibits it from granting an asylum status itself.104

C. Dublin Cases: From a Limited to a Full Judicial Review (and Back)? The Dublin Regulation provides criteria for establishing which Member State is responsible for the examination of an asylum claim. It aims to prevent asylum seekers applying for asylum in several Member States. If an asylum seeker applies for asylum in a Member State, this Member State will examine whether another Member State is responsible for the examination of the asylum application, for example because the asylum seeker has family members living in that state or because they have lodged an asylum application, or entered the European Union there. If another Member State is responsible, the asylum application will not be examined. Instead, a decision will be taken to transfer the asylum seeker to the responsible Member State. Asylum seekers have the right to appeal such a transfer decision.105 They may contest this decision on grounds such as a risk of inhuman or degrading treatment (due to a lack of adequate reception or poor detention conditions106) or systemic flaws in the asylum procedure in the responsible Member State. Moreover, they could rely on the right to family life or the rights of the child, for example if they seek to remain or to be reunited with their family members. However, asylum seekers have also appealed transfer decisions, on merely technical grounds, such as the fact that the Member State exceeded the time limits.107 National courts have asked the CJEU in a series of preliminary cases, whether they are competent to review transfer decisions on the basis of the above-mentioned grounds. In 2013, the CJEU ruled that the remedy provision in Article 19 of the Dublin II Regulation108 only allowed asylum seekers to plead a violation of Article 4 of the Charter resulting from systemic deficiencies in the asylum procedure and the reception conditions in the responsible Member State before the national court.109 In this context, the CJEU referred amongst others to the principle of mutual trust, the fact that the Dublin system primarily aimed to organise relations between Member

103 See Torubarov (n 66) para 77. 104 ibid, para 78. 105 Council Reg (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1, Art 19; Regulation 604/2013, Art 27. 106 Case C-411/10 N.S. EU:C:2011:865. 107 See also Den Heijer (n 20) 867–68. 108 Reg No 343/2003. 109 Case C-394/12 Abdullahi EU:C:2013:813, para 62.

154 Marcelle Reneman States, the harmonisation of rules applicable to asylum applications and the interest of both the Member States and asylum seekers in rapid procedures.110 The CJEU did not explain how this limited scope of review related to Article 47 of the Charter, even though the applicant had relied on this provision. The approach of the CJEU changed completely after the adoption of the Dublin III Regulation, which according to the CJEU differed ‘in essential respects’ from Dublin II regarding the rights enjoyed by an asylum seeker.111 The EU legislature had introduced asylum seekers’ rights to be informed and the rights to a personal interview, guaranteeing the involvement of asylum seekers in the Dublin process.112 Moreover, the CJEU referred to recital 19 of the Dublin III Regulation, which states that, in accordance with Article 47 of the Charter, an effective remedy against a transfer decision should cover the examination of the application of that regulation and the examination of the legal and factual situation in the Member State to which the asylum seeker is to be transferred. In addition, Article 27 of the Regulation guarantees the right to an appeal or review in fact and in law before a court or tribunal against a transfer decision. The CJEU concluded from this that asylum seekers have the right to a review of the correct application of the criteria for determining responsibility.113 In later cases the CJEU further extended the right to an effective remedy to cases in which the time limits laid down in the Dublin Regulation had not been complied with.114 It considered that the interest in expedient Dublin procedures and the fact that the rules applicable to asylum applications have been harmonised cannot limit the scope of the remedy provided for in Article 27 of the Dublin III Regulation.115 The CJEU has also held that Article 27 of the Dublin Regulation read in the light of Article 47 of the Charter precludes ‘national legislation which provides that the court or tribunal seised of an action for annulment of a transfer decision may not […] take account of circumstances subsequent to the adoption of that decision which are decisive for the correct application of that regulation’.116 These new circumstances shall be taken into account by the court examining the appeal against the transfer decision or in a separate remedy entailing an ex nunc examination of the situation of the person concerned. This remedy must have binding results and may not be conditional on the applicant’s detention or imminent transfer.117 Even though the national court and the applicants referred to Article 47 of the Charter in several Dublin cases, it did not clearly explain its relevance in the context of Article 27 of the Dublin III Regulation.118 As a result, it remains unclear whether the scope of judicial review only depends on EU legislation or (also) on Article 47 of the

110 ibid, paras 56–59. 111 ibid, para 34. 112 ibid, paras 46–49. 113 ibid, paras. 40, 44, 54. 114 See Case C-201/16 Shiri EU:C:2017:805; Case C-670/16 Mengesteab EU:C:2017:587; Case C-360/16 Hasan EU:C:2018:35. 115 Case C-63/15 Ghezelbash EU:C:2016:409, paras 57–58. 116 Case C-194/19 H.A. EU:C:2021:270, para 49; See also Shiri (n 114), para 44; Hasan (n 114). 117 HA EU:C:2021:270, para 49. 118 The CJEU did refer to Recital 19 Preamble, which in its turn refers to Art 47 EUCFR.

Empowerment of National Migration Courts 155 Charter.119 In several judgments, the CJEU derived the right to appeal Dublin decisions on the basis of the exceeding of time limits and the right to ex nunc judicial review, from Article 27 of the Dublin Regulation read in the light of/in accordance with Article 47 of the Charter. However, this does not clarify whether Article 47 of the Charter in itself requires an ex nunc judicial review of all Dublin criteria. Thym notes that we should be careful ‘not to read too much into’ the reference to Article 47 of the Charter. He states that it ‘will be a formidable challenge to define the meaning of Article 47 of the Charter in a case in which no violation of another human right is at stake and in which the legislature had explicitly limited the scope of judicial review’.120 Such a limitation of the scope of judicial review is far from theoretical. Proposals for new EU legislation limit the right to an effective remedy in Dublin cases to ‘an assessment of whether applicants’ fundamental rights to respect of family life, the rights of the child, or the prohibition of inhuman and degrading treatment risk to be infringed upon’.121 It will then be up to the CJEU to rule whether such legislation complies with Article 47 of the Charter. In the light of its recent case law, it is difficult to imagine that the CJEU would return to a situation in which the application of some Dublin criteria escapes judicial review by the national courts.

D. Visa Cases: A Lighter Form of Judicial Review Finally, we will take a look at judicial review in short-term visa cases. We have seen in section II, that Article 47 of the Charter requires an effective remedy before a court or tribunal against the decision to refuse a visa. In visa cases EU legislation leaves Member States broad discretion and a link with fundamental rights is often not easy to establish. The CJEU confirmed that ‘judicial review of that discretion is limited […] to ascertaining whether the contested decision is based on a sufficiently solid factual basis and verifying that it is not vitiated by a manifest error’.122 This implies a marginal judicial review. Nevertheless, the CJEU held that Article 47 of the Charter implies that the judicial review against a decision refusing a visa cannot be limited to a formal examination of the grounds for refusal of the visa. As the Court concluded, ‘that review must also cover the legality of that decision, taking into account all of the elements in the file, both factual and legal, on which the competent national authority based that decision’.123 Thus, the scope of judicial review of visa cases cannot be limited.

119 Den Heijer (n 20) 866; See also Case C-155/15 Karim EU:C:2016:410; Mengesteab (n 114); Case C-490/16 AS EU:C:2017:585; Joined Cases C-582/17 and C-583/17 H and R EU:C:2019:280. 120 D Thym, ‘Judicial maintenance of the sputtering Dublin system on asylum jurisdiction: Jafari, A.S., Mengesteab and Shiri’ (2018) 55 Common Market Law Review 549, 565–66. 121 Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund] COM (2020) 610 final, 36 and 66. 122 Joined Cases C-225/19 and C-226/19 RNNS and KA EU:C:2020:951, para 49; See also Case C-554/15 Fahimian EU:T:2018:220, para 46. 123 See RNNS and KA (n 122) para 48.

156 Marcelle Reneman In visa cases, judicial review may be complicated by the involvement of more than one Member State in a visa decision.124 A Member State shall reject a visa if another Member State, which is consulted on the basis of Article 22 of the Visa Code, objects to the issuing of a visa. The CJEU has ruled that, in such a situation, the court of the Member State refusing the visa must ‘verify that the procedure of prior consultation […] has been applied correctly, in particular by checking whether the applicant was correctly identified as the subject of the objection at issue, and that the procedural guarantees, such as the obligation to state reasons […] have been respected’.125 This entails that the visa decision must indicate the identity of the Member State(s) that objected to the issuing of a visa and ‘the specific ground for refusal based on that objection accompanied, where appropriate, by the essence of the reasons for that objection’.126 Furthermore, the Member State refusing the visa must indicate the authority which the applicant may contact in order to ascertain the remedies available to that end in that other Member State. However, according to the CJEU, the substantive legality of an objection must be appealed before the courts of the objecting Member State. The judicial review of a visa refusal is thus shared between two Member States (the Member State that objected against the issuing of a visa and the Member State that refused the visa application). The fact that the applicant needs to lodge legal remedies in two different Member States may undermine the accessibility and effectiveness of those remedies, for example because of language barriers, a lack of knowledge of the legal system of the objecting Member State and difficulties accessing legal assistance.127

IV. Conclusion In a highly politicised area of law such as EU migration and asylum law, the right to an effective remedy laid down in Article 47 of the Charter has proved indispensable in providing effective judicial protection to third-country nationals. It has ensured that national courts have jurisdiction to review decisions made on the basis of EU law, despite weak remedy provisions or the incorrect legal qualification of facts (detention or restriction of freedom of movement) by Member States.128 Moreover, the CJEU applied Article 47 of the Charter in order to support national courts under pressure. It has given national courts the power to grant asylum permits if administrative authorities fail to comply with their judgments129 and precluded national procedural rules, which limit their powers or practical possibilities to exercise judicial review in the manner that they deem necessary. The CJEU has used Article 47 of the Charter to fill in gaps in EU legislation where it concerns the right to be heard, the duty to state reasons, time limits for adjudicating and ex nunc judicial review.130 The CJEU has shown, as former AG 124 See also, with regard to visa representation, Case C-680/17 Vethanayagam EU:C:2019:278; Migration Law Clinic (n 20). 125 See RNNS and KA (n 122) para 51. 126 ibid, para 46; See also Case C-300/11 ZZ EU:C:2013:363, para 65. 127 Migration Law Clinic (n 20) 18–19. 128 El Hassani (n 13); FMS and others (n 18). 129 See Torubarov (n 66). 130 See Moussa Sacko (n 87); see LH (n 94); see PG (n 86).

Empowerment of National Migration Courts 157 Sharpston put it, that ‘doing justice in a way that guarantees effective protection requires rules that permit judicial flexibility in an appropriate case, rather than rules that cram the judge into a procedural straightjacket’.131 At the same time, the CJEU has stressed the importance of the expediency of Dublin and asylum procedures. In this light, it has blocked access to a judicial remedy against preparatory decisions and allowed Member States, under strict circumstances, to deny persons, who have been granted subsidiary protection, the right to lodge an appeal against the refusal of refugee status. Moreover, it requires an exhaustive consideration of asylum claims by national courts and quick processing if the court has quashed the asylum decision and referred the case back to the determining authority. Saliently, the CJEU has also referred to the interest of expediency in order to justify both limitations to the scope of judicial review in Dublin cases under the Dublin II Regulation132 and a broader scope of judicial review in such cases under the Dublin III Regulation.133 CJEU case law concerning the required scope and intensity of judicial review in migration and asylum cases is shaped by the applicable EU legislation, which reflects the nature of the fundamental rights at stake for the applicant. In detention and asylum cases, the CJEU requires national courts to be active and to extend their review beyond the decision made by the administrative authority. This sits uncomfortably with the administrative law systems of some Member States, which require the court to review the administrative decision on the basis of the grounds of appeal submitted by the applicant.134 In Dublin cases, the CJEU has considerably extended the scope of judicial review from only a review of the risk of ill-treatment to the correct application of all Dublin criteria, including the correct application of time limits. Finally, in visa cases, judicial review extends to issues of fact and law, but is less intense due to the wide discretion left to the Member States by the Visa Code and the lack of a direct link to fundamental rights. In particular in Dublin and asylum cases, the CJEU has not been clear whether the scope of judicial review is defined by the applicable provisions of EU legislation or (also) by Article 47 of the Charter. With new EU legislation on Dublin and asylum coming up,135 there is a risk that the provisions concerning the (scope of) judicial review will become more restrictive. Judicial control is almost the only counterbalance against the strong politicisation of the field of asylum.136 Therefore, the CJEU should step in and use Article 47 of the Charter to prevent Member States from being given free rein, as a result of the exclusion of parts of their asylum decision-making from judicial review. 131 See E Sharpston, ‘Shadow Opinion of Advocate General Eleanor Sharpston QC – Case C-194/19 HA, on appeal rights of asylum seekers in the Dublin system’, EULawAnalysis (2021), available at http://eulawanalysis.blogspot.com/2021/02/case-c19419-h.html, see para 118. 132 See Abdullahi (n 109) para 59. 133 Case C-163/17 Jawo EU:C:2019:218, para 69. 134 See for the Netherlands, Reneman (n 51); See for the Czech Republic, A Králová, ‘Legal remedies in asylum and immigration law: The balance between effectiveness and procedural autonomy?’ (2018) 16 Central European Public Law Review 67, 73–74. 135 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum, COM (2020) 609 final. 136 G Cornelisse and M Reneman, ‘Border Procedures in the Commission’s New Pact on Migration and Asylum: A Case of Politics Outplaying Rationality?’ (2021) 26 European Law Journal 181.

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9 Article 47 of the Charter and the European Arrest Warrant: Chronicle of a Death Foretold? ADRIANO MARTUFI*

This chapter explores the main directions of the case law of the Court of Justice on Article 47 of the Charter and the European Arrest Warrant (EAW). Most notably, the chapter addresses two key questions: first, it investigates the role played by Article 47 in the interpretation of EU secondary law asking whether this provision has added on the level of judicial protection originally provided for by the Framework Decision on the EAW; secondly, it picks up on the questions raised by the editors in their introduction and assesses the limits to national procedural autonomy stemming from the interpretation of Article 47 by the Court. The analysis of the case law of the Court shows that, while Article 47 has played a role in earlier case law on the EAW, it was then marginalised and does not feature explicitly within the reasoning of recent landmark cases defining an autonomous concept of ‘judicial authority’. Accordingly, the erosion of procedural autonomy resulting from the interpretation of Article 47 in this area has been relatively limited. Arguably, the view taken by the Court reflects the need to accommodate specific policy priorities pertaining to the nature of the EAW system. It is submitted that such priorities have contributed to shape the approach of the Court to effective judicial protection in this field and explain some remaining inconsistencies and loopholes within its case law.

I. Introduction The principle of effective judicial protection, now enshrined in Article 47 of the Charter of Fundamental Rights of the EU (hereinafter, the Charter) encompasses the right to an effective remedy and the right to a fair trial. The principle sets forth an obligation to provide remedies of a judicial nature to protect the rights guaranteed by EU law. In recent years, this ‘constitutional’ provision has gradually revealed a part of its * Adriano Martufi is Assistant Professor of Criminal Law at the Leiden Law School.

160 Adriano Martufi potential thanks to a growing body of case law and the Court of Justice of the European Union (CJEU) taking a bolder stance vis-à-vis national procedural autonomy.1 One of the most significant patterns within this case law has emerged from the interpretation of key provisions of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (FD-EAW).2 This instrument, replacing traditional extradition procedures, sets out a major legal framework allowing the surrender of accused and convicted individuals between different Member States of the EU. FD-EAW is also the first ‘third pillar’ instrument to implement the principle of mutual recognition,3 famously, the ‘cornerstone’4 of judicial cooperation in criminal matters. The practice of EU surrender proceedings in the last 20 years is often described as a success,5 though criticisms regarding a less-than-optimal protection of fundamental rights in that context have punctuated its recent history. One of the major sticking points concerns the possibility to refuse cooperation in the event of a fumus of fundamental rights violation upon surrender in the issuing State. FD-EAW has notoriously failed to include among its grounds for refusal the traditional clause of ordre public, allowing an executing authority to reject the surrender of a defendant or convicted individual when extradition proceedings may lead to an infringement of fundamental rights.6 Importantly, the EU constitutional framework in which the EAW operates has witnessed drastic transformations upon the entry into force of the Treaty of Lisbon, entailing inter alia the ‘codification’ of the principle of mutual recognition (Article 67(3), Article 82(1) TFEU) and the attribution of binding legal force to the Charter.7 Notably, the ‘constitutionalisation’ of the Charter has given further substance to the broad provision of Article 1(3) FD-EAW which, by referring to Article 6 TEU, states that the Framework Decision must not modify the obligation to respect fundamental rights and legal principles. These transformations, in the post-Lisbon era, have prompted a growing number of preliminary rulings aimed at clarifying the status of fundamental rights in surrender proceedings. In some of its recent decisions, the CJEU has dealt with the interpretation of Article 47 and/or with the principle of effective judicial protection in relation to the EAW system. While restating the principle that surrender to the issuing state shall not 1 S Prechal, ‘Effective Judicial Protection: Some Recent Developments – Moving to the Essence’ (2020) 13 Review of European Administrative Law 176. 2 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Statements made by certain Member States on the adoption of the Framework Decision [2002] OJ L190/1. 3 Case C-303/05 Advocaten voor de Wereld EU:C:2006:552, Opinion of AG Ruiz-Jarabo Colomer, para 41, the Commission famously defined the EAW as the ‘first and the most symbolic measure applying the principle of mutual recognition’; See Commission, ‘Report from the Commission based on Art. 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’ COM (2005) 63 final. 4 See European Council, ‘Presidency Conclusions’, Tampere, 15 and 16 October 1999. 5 I Perignon and C Daucé, ‘The European Arrest Warrant: a growing success story’ (2007) 8 ERA Forum 203. 6 H Satzger, ‘Mutual Recognition in Times of Crisis – Mutual Recognition in Crisis? An Analysis of the New Jurisprudence on the European Arrest Warrant’ (2018) 8 European Criminal Law Review 317. 7 V Mitsilegas, ‘The Symbiotic Relationship Between Mutual Trust and Fundamental Rights in Europe’s Area of Criminal Justice’ (2015) 9 New Journal of European Criminal Law 457.

Art 47 and the European Arrest Warrant 161 be in breach of the fundamental right to an independent tribunal (and, therefore, of the essence of the fundamental right to a fair trial),8 the Court has progressively developed an autonomous notion of ‘judicial authority’ which expands on the requirements of judicial independence as defined under Article 6 ECHR and the case law of European Court of Human Rights (ECtHR).9 This chapter explores the main directions of the case law of the Court of Justice by dealing specifically with two aspects, both of which illustrate the role of Article 47 in this area: first, we deal with the notion of ‘judicial authority’ as defined by the CJEU in its recent case law; secondly, we analyse the right to an effective judicial remedy in the context of EAW proceedings. In doing so, the chapter addresses two key questions: on the one hand, it investigates the role played by Article 47 of the Charter in the interpretation of EU secondary law, asking whether this provision has added to the level of judicial protection originally provided for by FD-EAW; on the other hand, it picks up on the questions raised by the editors in their introduction and assesses the limits to national procedural autonomy stemming from the interpretation of the Court of Article 47 of the Charter. A methodological premise is required: although Article 47 is not always referenced in the body of case law analysed in this chapter, its role as a key constitutional benchmark has been by no means less influential. It is submitted that the incorporation of a right to an effective remedy in the Charter informs the understanding of EU secondary law in the case law of the CJEU. This influential role explains the development in the interpretation of FD-EAW, one that leans towards a more rights-oriented and individual-centred approach. At the same time, the erosion of procedural autonomy resulting from Article 47 has been limited. Arguably, this reflects the need to accommodate specific policy priorities pertaining to the nature of the EAW system. It is submitted that such priorities have contributed to shape the approach of the Court to effective judicial protection in this field and explain some remaining inconsistencies and loopholes within its case law.

II. The Role of ‘Judicial Authorities’ and the Right to an Effective Remedy: Hesitancy and Deference in the Early Case Law of the Court As is well known, the EAW system replaces the process of extradition and its mixed judicial/political decision-making by placing the power to issue and execute a surrender request in the hands of the judiciary. The newly acquired centrality of the judicial authorities restricts the discretion of government officials in both the requesting and 8 See Case C-216/18 PPU LM EU:C:2018:586, para 48; Joined Cases C-354/20 PPU and C-412/20 PPU L & P EU:C:2020:1033 para 58; See also Joined Cases C-562/21 PPU and C-563/21 PPU X and Y v Openbaar Ministerie EU:C:2022:100, Opinion by AG Rantos. 9 Far from being of relevance to the EAW alone, the findings of the case law of the Court have implications for other mutual recognition instruments; See the recent Case C-852/19 Gavanozov II EU:C:2021:902 as regards the interpretation of Art 14 of the European Investigation Order Directive where the Court concluded that this Directive interpreted in light of Art 47 EUCFR requires domestic law to provide for remedies against the issuing of an European Investigation Order (EIO). In addition, the issuing of any EIO would be invalid in the absence of effective remedies.

162 Adriano Martufi the executing state and is meant to shield criminal justice cooperation from political interference. Unsurprisingly, FD-EAW confers the power to issue or execute an EAW to judicial authorities (see Articles 6(1) and (2) FD-EAW, respectively). Yet the question of how to define the notion of ‘judicial authority’ has remained largely unanswered in the early case law of the CJEU. Rather, the Court has confined itself to a re-statement of the guarantees laid down by EU secondary law. In the case of Jeremy F, the Luxembourg judges famously recalled that the ‘entire surrender procedure between Member States provided for by the Framework Decision is therefore, in accordance with that decision, carried out under judicial supervision’.10 Arguably, the Court might have chosen to build on Article 47 of the Charter and the right to a fair trial, in such a way as to detail the requirements applicable to the issuing and executing authorities. However, in Jeremy F, the CJEU falls short of explaining what the requirement of ‘judicial supervision’ entails and if this implies the involvement of a ‘tribunal’ within the meaning of Article 47. Early rulings on FD-EAW incorporate references to Article 47 of the Charter with regard to a person’s right to be heard before surrender. In Radu11 the CJEU deals with the question of whether executing judicial authorities may refuse to execute an EAW on the ground that the issuing judicial authorities did not hear the requested person before forwarding the certificate. In answering this question, the Court follows a ‘teleological’ interpretation of FD-EAW,12 mentioning inter alia the goal to ‘facilitate and accelerate judicial cooperation’13 and the need for surrender mechanisms to work effectively. More importantly, the Court rejects a proposed interpretation of FD-EAW in the light of Articles 47 and 48 Charter and Article 6 ECHR that would have entailed the right for the requested person to be heard by the issuing judicial authority before surrender.14 The provision of a right to be heard, though not prohibited, is left to the discretion of Member States and shall not, in any event, frustrate the objectives of the instrument at stake. The Court engages more explicitly with Article 47 and the right to an effective remedy in Jeremy F,15 when discussing the need to provide for a ‘second level of jurisdiction’ (a right of appeal) against decisions relating to European arrest warrants in the executing state. While on the one hand, the Court makes clear that the FD does not prevent Member States from establishing such an appeal, on the other hand, it recalls that, under EU law, decisions relating to EAWs ‘are attended by all the guarantees appropriate for decisions of such a kind’.16 The Court however adds that Article 47 does not require that Member States establish ‘a second level of jurisdiction’ against a decision. The argument behind this is that since the entire surrender procedure takes place ‘under

10 Case C-168/13 PPU Jeremy F EU:C:2013:358, para 46. 11 Case C-396/11 Radu EU:C:2013:39. 12 I Wieczoreck, ‘The Impact of the Radu case on National Jurisdictions’ in V Mitsilegas, A di Martino and L Mancano (eds), The Court of Justice and European Criminal Law: Leading Cases in Contextual Analysis (Hart Publishing, 2019). 13 Radu (n 11), para 34. 14 See for a departure from this ruling the recent judgment in Joined Cases C-428/21 PPU and C-429/21 PPU HM and TZ EU:C:2021:876. 15 Jeremy F (n 10). 16 ibid, para 39.

Art 47 and the European Arrest Warrant 163 judicial supervision’, the right to an effective remedy is incorporated within the ‘judicial decision’ of issuing (or applying) a warrant. As is apparent, in Jeremy F and Radu the CJEU relies on Article 47 merely to certify the level of judicial protection arising from the Framework Decision. It does not resort to a dynamic interpretation of EU secondary law and proves to be rather deferential vis-à-vis national discretion. The Court refers quite explicitly to the principles of effectiveness and equivalence (first developed in Rewe)17 as a guide for national discretion in the choice of judicial remedies.18 In addition, a certain margin of appreciation in the choice of the available remedies must be left to Member States in accordance with the principle of ‘mutual confidence’, as it must be presumed that national legal systems are ‘capable of providing equivalent and effective protection of the fundamental rights recognised at European Union level.’19 Be that as it may, from the outset the CJEU has insisted that a person’s right to an effective remedy on the basis of Article 47(1) is protected by the existence of ‘judicial supervision’ within the surrender procedure. After all, the Court recalls, the involvement of judicial authorities forms the essence of the EAW system. As a result, the question of what makes an issuing (or executing) authority ‘judicial’ is connected to the issue of protecting a person’s right to an effective remedy. Hence, the two aspects cannot be entirely decoupled. Nonetheless, for the sake of clarity it might be useful to analyse them separately in this chapter. In the next section and in section IV, we therefore turn to the judicial saga involving the definition of ‘judicial authority’ under FD-EAW.

III. The Development of an Autonomous Concept of ‘Judicial Authority’ and the Growing Limits to Procedural Autonomy: A Negative Obligation? In its more recent case law, the Court has shown a greater readiness to deal with the requirement of judicial protection laid down by the Framework Decision. Key developments in this respect are the cases of Poltorak,20 Özçelik21 and Kovalkovas22 where the Court has for the first time developed some signs of an autonomous concept of ‘judicial authority’ under FD-EAW.23 Though such cases lack an explicit reference to Article 47, they are relevant because they contribute to a shift toward a more rights-oriented approach to judicial cooperation and are reflective of the post-Lisbon constitutional framework of which the Charter is a prominent feature. What is more,

17 Case C-33/76 Rewe v Landwirtschaftskammer für das Saarland EU:C:1976:188. 18 ibid, para 50. 19 ibid, para 50. 20 Case C-452/16 PPU Poltorak EU:C:2016:858. 21 Case C-453/16 PPU Özçelik EU:C:2016:860. 22 Case C-477/16 PPU Kovalkovas EU:C:2016:86. 23 T Harkin, ‘The Case Law of the Court of Justice of the European Union on “Judicial Authority” and Issuing European Arrest Warrants’ (2021) 12 New Journal of European Criminal Law 508; AH Ochnio, ‘Why Is a Redefinition of the Autonomous Concept of an “Issuing Judicial Authority” in European Arrest Warrant Proceedings Needed?’ (2020) 3 European Papers 1305.

164 Adriano Martufi the findings in the judgments may be analysed through the lens of procedural autonomy as they erode the national legislative discretion via the imposition of negative obligations. The requests issued by the referring court in the three cases paved the way for greater interference into the national margin of appreciation. In its rulings, in particular, the Court has placed constraints on the choice of the authority enabled to issue an EAW pursuant to Article 6(1) FD-EAW. Though this provision seems to refer to the law of the Member States ‘in accordance with the principle of the procedural autonomy of the Member State’, the term ‘issuing judicial authority’ contained in Article 6(1) FD-EAW cannot be left to the discretion of Member States and requires an autonomous and uniform interpretation throughout the Union.24 After all, as AG Sánchez-Bordona observes in his opinions, the definition of such a term transcends the specific provision at issue and speaks to the very essence of the procedure designed by the EU legislature which is ‘judicial’ in nature.25 Against this background, the Court in Poltorak and Kovalkovas concludes that by taking into account the wording of the relevant provision, ‘its context’ and ‘the objective’ of the FD, the term ‘issuing judicial authority’ shall be understood as comprising exclusively ‘authorities that administer justice’ in accordance with, and by virtue of, the principle of the separation of power ‘which characterises the operation of the rule of law’.26 It follows from this characterisation of the term in question that administrative or police authorities (such as those at issue in Poltorak) or ministries and other government organs (like in Kovalkovas) cannot be regarded as falling within the meaning of Article 6(1) FD-EAW. Hence, in a significant blow to procedural autonomy, the CJEU recognises that EU secondary law constrains national discretion, forcing the setting aside of existing procedural rules such as those conferring the status of issuing authority to non-judicial actors. Remarkably, the case of Özçelik allowed the CJEU to operationalise the notion of ‘judicial authority’ in relation to the specific instance of a national arrest warrant issued by the police and later confirmed by the public prosecutor. In this context, in order to avoid inconsistencies between different provisions in the FD, the Court connects its definition of ‘judicial authority’ to the notion of ‘judicial decision’ under Article 8(1)(c) FD-EAW. Accordingly, the ruling concludes that, where the public prosecutor’s office constitutes an authority responsible for administering criminal justice,27 the decision of such an authority (to validate a warrant issued by the police) ‘must be regarded as a judicial decision, within the meaning of Article 8(1)(c) of the Framework Decision’.28 This rather laconic conclusion opens the door to further questions, which revolve around the identification of the requirements a prosecutor must meet to qualify as an authority ‘participating in the administration of justice’. 24 See Poltorak (n 20) para 32; See Kovalkovas (n 22) para 33. 25 See Poltorak (n 20) para 65. 26 According to Case C-452/16 PPU Poltorak EU:C:2016:782, Opinion of AG Sánchez-Bordona, para 39, ‘the adjective “judicial” brings to the noun it accompanies the connotation that that authority has to belong to the administration of justice, as opposed, in accordance with the traditional separation of powers, to the legislative and executive powers’. 27 Case C-486/14 Kossowski EU:C:2016:483, para 39. 28 See Özçelik (n 21) para 34.

Art 47 and the European Arrest Warrant 165 A further issue in this respect was whether (and under which conditions) a public prosecutor’s office subordinate to the ‘executive power’, would still qualify as a ‘judicial authority’. In Özçelik, the ruling of the Court does not engage with this aspect nor with the broader question of what makes a prosecutor ‘independent’. After all, the national authorities in the case at hand had provided solid assurances about the independence of the public prosecutor from the executive. In addition, the question of what criteria define the prosecutor as a ‘judicial authority’ had not been raised by the referring court.29 Despite the relevant consequences in terms of procedural autonomy, the role played by Article 47 of the Charter in the argumentation of the Court is not immediately apparent. The Luxembourg judges proved reluctant to handle such a provision in this context. As Article 47(1) enshrines the right to an effective remedy before a ‘tribunal’, one could be forgiven for thinking that such a right could have been relied on more heavily when defining the term ‘judicial authority’. In this respect, the terminology chosen in the rulings (‘authorities participating in the administration of justice’) remains problematically broad. At the same time, though, the way of construing EU secondary law becomes more nuanced, with the CJEU finally embracing a dynamic interpretation of FD-EAW. The highly formalistic approach prevailing in the early case law gives way to a bolder stance and the emergence of autonomous concepts. In summary, while not explicitly mentioned by the Court, Article 47 and its right to an effective remedy appear to loom large in this first group of cases. Follow-up judgments will consolidate this trend by linking effective judicial protection with the idea of ‘independence’, thus addressing one of the key tenets of the principle of effective judicial protection under Article 47.

IV. What Role for Public Prosecutors? Judicial Independence, Procedural Autonomy and the Disappearance of Article 47 As explained in the previous section, in Poltorak and Kovalkovas the CJEU established a negative obligation since Member States are bound to set aside provisions enabling a non-judicial authority to issue an EAW. This seems to be in keeping with the idea that surrender proceedings should be carried out under judicial supervision. What kind of judicial protection this would require, however, remained unclear at the time. The most pressing question in this respect concerned the role of public prosecutors. After all, the constitutional status of the public prosecutor’s office in several Member States is still a matter of scholarly debate. In some jurisdictions, prosecutors are quintessentially hybrid figures: while their functions pertain almost without exceptions to the ‘administration

29 See Harkin (n 23) 511; A Rosanò, ‘If You Are a Judicial Authority and You Know It, Raise Your Hands’ (2017) 7 European Criminal Law Review 98; See however Case C-453/16 PPU Özçelik EU:C:2016:783, Opinion of AG Sánchez-Bordona, para 62, which finds that a prosecutor may qualify as judicial authority only, it appears, for the purpose of issuing a national arrest warrant.

166 Adriano Martufi of justice’, some of their institutional features bring them closer to the executive.30 In particular, prosecutors may have some characteristics of subordination to the government.31 Their inclusion within the ‘judiciary’ is thus far from straightforward in some Member States. Some of these dilemmas have been tackled in the landmark cases OG & PI32 and 33 PF (and further elucidated by a long series of follow-up judgments). Here, the Court goes a long way to show that prosecutors may still qualify as issuing judicial authorities even in the case of a degree of subordination to the executive. For this purpose, such bodies must meet two sets of criteria. First, an issuing authority other than a court or tribunal must be ‘participating in the administration of justice’. Secondly, a judicial authority within the meaning of Article 6(1) of FD-EAW must meet a threshold of judicial independence. It is the latter requirement that requires closer scrutiny here. The concept of independence, as well as the more defined notion of ‘judicial independence’, are notoriously multi-faceted. To summarise, the independence of the judiciary may be both external (independence from the executive or other organs within the judiciary), or internal (independence from the parties to the criminal proceedings, often a synonym of impartiality). In order to clarify which prosecutors may validly issue an EAW, the Court places an emphasis on external independence and, more specifically, on independence from the government. This very narrow understanding (while leaving the door open to any form of ‘internal’ interference or to that exerted via ‘general instructions’)34 reflects the EU commitment to minimise the influence of the executive on judicial cooperation, an imperative which lies at the heart of EU secondary law in this area (see above). In the view of the Court, an issuing judicial authority must exercise its tasks objectively without being exposed to ‘external directions or instructions, in particular from the executive, such that it is beyond doubt that the decision to issue a European arrest warrant lies with that authority and not, ultimately, with the executive’.35 The definition of ‘independence’ in this case law follows the blueprint of the ‘separation of powers’36 and reflects the renewed concern of the Court for the rule of law and democracy. Yet the deafening silence about the role of Article 47 in OG & PI and PF is hard to understand. One cannot disregard that the second paragraph of this

30 See G Gilliéron, Public Prosecutors in the United States and Europe. A Comparative Analysis with Special Focus on Switzerland, France, and Germany (Springer Publishing, 2014); T Marguery, Unity and diversity of the Public Prosecution Services in Europe: A study of the Czech, Dutch, French and Polish systems (PhD Dissertation, Rijksuniversiteit Groningen, 2008). 31 J Hogdson, ‘The Democratic Accountability of Prosecutors in England and Wales and France: Independence, Discretion and Managerialism’ in M Langer and A Sklansky (eds), Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017) 77, in France, ‘the unelected judiciary remains subordinate to political power within this “statist” tradition, reflected in the hierarchical accountability to the Minister of Justice and in the constitutional status of the judiciary as authority rather than power’. 32 Joined Cases C-508/18 and C-82/19 PPU OG & PI EU:C:2019:456. 33 Case C-509/18 PF EU:C:2019:457. 34 M Böse, ‘The European Arrest Aarrant and the Independence of Public Prosecutors: OG & PI, PF, JR & YC’ (2020) 57 Common Market Law Review 1269. 35 See OG & PI (n 32) para 73. 36 See Case C-452/16 PPU Poltorak EU:C:2016:782, Opinion of AG Sánchez-Bordona, para 39.

Art 47 and the European Arrest Warrant 167 provision stipulates that ‘everyone has a right to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’. The CJEU is not only glossing over the requirement of internal independence, at odds with Article 6 ECHR as interpreted by the Strasbourg Court; the rulings also appear to overlook that under Article 47(2) the person concerned has a right to a fair and public hearing before a ‘tribunal’. How can this be reconciled with the centrality of prosecutors in the surrender procedure? Admittedly, as Article 47(2) mirrors Article 6 ECHR, it might be easily objected that fair trial rights in criminal proceedings cannot apply to procedures of extradition or surrender as these are not meant to determine a criminal charge.37 The lack of explicit references to the right to an effective remedy under Article 47(1) is however much less comprehensible. This is even more surprising in that the Court made clear, in previous cases, that the involvement of judicial authorities (‘judicial supervision’) is the main guarantee for such right to be protected within the surrender process.38 A partial explanation for this omission can be found in the opinion delivered by AG Sánchez-Bordona where he puts forward his own understanding of ‘judicial authority’. Clearly, the AG differs from the CJEU in his understanding of the term ‘issuing judicial authority’. In the opinion the ‘effective judicial protection guaranteed by Article 47 of the Charter of Fundamental Rights’ is, ‘in essence, the protection provided by a judge’.39 Thus, to be in compliance with Article 47, the judicial scrutiny required by FD-EAW may only be carried out by a court or tribunal. Interestingly, the AG does not distinguish between the different rights mentioned in Article 47. He only refers to the overarching principles of ‘due process’ and ‘effective judicial protection’ stemming from this article. It might be argued that, for the Court, drawing explicitly on Article 47 would have meant excluding public prosecutors from the list of authorities able to issue an EAW. Indeed, such an interpretation could have brought the surrender mechanism to a halt as prosecutors play(ed) a crucial role in issuing EAWs in several Member States.40 Hence, the concern for the practical drawbacks resulting from an interpretation of FD-EAW in light of Article 47 might explain the reluctance of the Court to invoke this provision within the rulings analysed in this section. Before moving on to a critical analysis of the notion of ‘judicial independence’ in the case law of the Court on the EAW, it is necessary to consider the effects of the rulings in OG & PI and PF on domestic law as they contribute to a pervasive erosion of national procedural autonomy with far-reaching repercussions. While fleshing out

37 See Judgment of the European Court of Human Rights of 7 October 2008 in Case No 41138/05 Monedero Angora v. Spain, para 2. 38 See Joined Cases C-508/18 and C-82/19 PPU OG & PI EU:C:2019:337, Opinion of AG Sánchez-Bordona, para 65. 39 ibid, para 66. 40 GR Grimaldi, ‘Independence of Public Prosecutors’ Offices Recent Case Law of the CJEU on the European Arrest Warrant and its Impact on the EU Criminal Justice System’ (2020) 4 European Criminal Law Review 333; See, for an overview of the authorities involved in the issuance or execution of EAWs in the different Member States, the responses to the questionnaire developed by Eurojust and the EJN, Updated Questionnaire and Compilation on the Requirements for Issuing and Executing Judicial Authorities in EAW Proceedings pursuant to the CJEU’s Case-Law (2021) DOC 2021/00004.

168 Adriano Martufi the autonomous concept of ‘issuing judicial authority’,41 the rulings of the CJEU pose a supplementary constraint on the executing authority. Before accepting a request to surrender a suspect or convicted individual, the authority in question has a positive obligation to verify that the issuing body meets the requirements of independence. It may do so by engaging in a dialogue with the issuing authority and requesting further information to complement the initial surrender request on the basis of Article 15(2) FD-EAW.42 Evidently, the burden of proof is on the issuing authority which must persuade its peers in the executing country. The Court, in particular, has clarified that this authority must be able to provide assurances about its level of independence.43 However, the executing authority shall not satisfy itself with a mere statement of principle. The independence of an issuing prosecutor must be apparent from the relevant statutory rules and the institutional framework governing its functions. Notably, such assurances must guarantee that a decision to issue an EAW is being taken solely by the relevant ‘judicial authority’ without any external interference. If the issuing authority is deemed unable to meet the threshold of independence set out in the case law of the Court, the EAW may be declared invalid.44 The relative vagueness of the criteria developed by the CJEU (and the difficulty in ascertaining the level of independence of prosecutors in a different Member State) have prompted the national courts to defer more questions to the Court for clarification. This has led to further litigation before the CJEU, stimulating a series of preliminary references and follow-up judgments. The elements defining the notion of judicial authority have been further clarified. In JR & YC,45 the Court specified that general instructions (eg, criminal policy guidelines) may not have the effect of invalidating the issuing of an EAW. Only instructions given to prosecutors in the individual case would result in a prosecutor losing their status of ‘judicial authority’. What must be guaranteed is the ability of a prosecutor’s office to make an independent decision as to the lawfulness and proportionality of an EAW. This particular aspect is central to the reasoning of the Court and explains why the ruling in JR & YC concedes that prosecutors may be subject to ‘general instructions’. In spite of these partial concessions, the case law on the role of prosecutors in EAW proceedings has prompted several Member States to revise their legislation implementing FD-EAW with a view to transferring issuing powers to the courts.46 At the same time, the case law in OG & PI and PF has set in motion a rethinking of the organisation of justice in several Member States as governments and lawmakers

41 V Mitsilegas, ‘Autonomous Concepts, Diversity Management and Mutual Trust in Europe’s Area of Criminal Justice’ (2020) 57 Common Market Law Review 45. 42 See on the dialogical model of co-operation between national authorities as a means to earn trust, V Mitsilegas, ‘Mutual recognition and criminal law’ in I Sanchez (eds), Fundamental Rights in the EU Area of Freedom, Security and Justice (Cambridge University Press, 2021) 703. 43 See OG & PI (n 32) para 74. 44 As to the notion of invalidity (as ‘legal non-existence’) of the EAW issued in the absence of a prior judicial decision, see L Mancano, ‘You’ll Never Walk Alone: A Systemic Assessment of The European Arrest Warrant and Judicial Independence’ (2021) 58 Common Market Law Review 683. 45 Joined Cases C-566/19 PPU and C-626/19 PPU JR & YC EU:C:2019:1077, para 54. 46 See K Ambos, ‘The German Public Prosecutor as (no) Judicial Authority within the Meaning of the European Arrest Warrant: A Case Note on the Judgment of the CJEU in OG (C-508/18) and PI (C 82/19 PPU)’ (2019) 4 New Journal of European Criminal Law 399; See Böse (n 34) 1269.

Art 47 and the European Arrest Warrant 169 grapple with the need to reform judicial organisation in order to bar the executive from issuing instructions to prosecutors.47

V. The Approach of the Court to ‘Judicial Independence’ and the EAW: Inconsistencies and Double Standards The emphasis on ‘independence’ as a defining feature of the notion of ‘judicial authority’ deserves further attention. According to a long-standing interpretation of EU primary law, independence is an inherent feature of all ‘judicial bodies’. The CJEU has always listed ‘independence’ (and impartiality) among the criteria to assess the quality of a ‘court or tribunal’ for the purpose of Article 267 TFEU.48 More recently, in the landmark case of Wilson, the Court has held that the very concept of independence is ‘inherent in the task of adjudication’.49 Most crucially, ‘judicial independence’ belongs to the essence of the right to a fair trial enshrined in Article 47(2) of the Charter.50 However, as mentioned earlier, in its case law on public prosecutors and the EAW the Court has avoided references to this provision of the Charter. A possible explanation for the refusal to engage with Article 47 could be that the Luxembourg judges have tried to avert an all-too-stringent requirement of ‘independence’, which would have barred prosecutors from issuing surrender requests. At the same time, the rulings analysed in the previous sections show that the CJEU has emphasised exclusively the independence from the executive. In the case of JR & YC the Court made clear that while the requirement of independence means that ‘powers of public prosecutors cannot be subject to instructions from outside the judiciary’, it does not prohibit internal instructions which may be given to public prosecutors by their superiors on the basis of the hierarchical relationship underpinning the functioning of the public prosecutor’s office.51 The question therefore arises as to whether, in interpreting FD-EAW, the Court has alluded to a form of independence the scope of which is not limited to ‘the judiciary’, but might encompass other institutions involved in the administration of justice. According to this latter understanding, the Court would have referred to a narrow concept of

47 See, for the Netherlands, JW Ouwekerk et al, De Rol en Positie van het Openbaar Ministerie als Justitiële Autoriteit in Europees Strafrecht (Wetenschappelijk Onderzoek- en Documentatiecentrum, 2021). 48 L Pech, ‘The Right to An Independent and Impartial Tribunal Previously Established by Law Under Article 47 of The EU Charter of Fundamental Rights’ in S Peers et al (eds), The EU Charter of Fundamental Rights. A Commentary (Hart Publishing, 2014). 49 See Case C-506/04 Wilson EU:C:2006:587, para 49; Case C-685/15 Online Games and Others EU:C:2017:452, para 60; Case C-403/16 El Hassani EU:C:2017:960, para 40. 50 See LM (n 8) paras 63 and 78; For a critique of the theory underpinning this ruling, see M Wendel, ‘Mutual Trust, Essence and Federalism: Between Consolidating and Fragmenting the Area of Freedom, Security and Justice after LM’ (2019) 15 European Constitutional Law Review 25. 51 See JR & YC (n 45) para 56; Pursuant to Art 36 of the French Code of Criminal Procedure, the leading public prosecutor at the helm of a public prosecutor’s office may issue written instructions directing a subordinate prosecutor to commence criminal proceedings or make written submissions to the competent court.

170 Adriano Martufi ‘independence’ which may well be met by prosecutors under the sole condition that they do not receive specific instructions from the executive. As emphasised above, this was not the approach taken by AG Sánchez-Bordona whose opinions in OG & PI and PF regarded the power to issue EAWs as an exclusive prerogative of courts. The argument underpinning such opinions espouses a broad notion of ‘judicial independence’ and draws on Article 47 and on the related principle of ‘effective judicial protection’. In the AG’s view such protection, in matters involving a deprivation of liberty, can only be provided by a judge.52 In support of a narrow conception of independence, some authors have claimed that ‘complete internal independence and impartiality cannot be realistically expected’ from prosecutors. Therefore, the single requirement that prosecutors and judges would have in common is their ‘external independence’, or independence from the executive.53 The views developed in this section take issue with a narrow conception of independence and advocate a broader understanding of ‘judicial independence’ as a precondition for issuing or carrying out an EAW. A first argument in favour of a broader notion of ‘independence’, which would have the effect of stripping prosecutors of their powers to issue an EAW without the involvement of a court, has been made earlier. As recalled by the Court in Jeremy F, the right to an effective remedy as per Article 47 would be guaranteed only to the extent that surrender proceedings take place under ‘judicial supervision’. The existence of such judicial oversight is, however, incorporated within a decision made by a judge. While conceding that prosecutors may qualify as issuing authorities, the Court has not completely ruled out the need to involve a judge or a court in the procedure. In OG & PI, the CJEU has added the ambiguous requirement that issuing decisions made by prosecutors must be capable of being the subject ‘of court proceedings which meet in full the requirements inherent in effective judicial protection’.54 This additional requirement is discussed in more detail in the final section of this chapter. A second argument relates to the different interpretation of the term ‘independence’ in other cases involving FD-EAW. The ruling in LM is a case in point. In this judgment the Court of Justice took the view that a real risk of breach of the right to a fair trial, if confirmed in the individual case and on account of systemic deficiencies relating to the independence of courts, might lead to surrender proceedings being brought to an end.55 This conclusion relies on Article 47 of the Charter and alludes to the ‘independence’ of courts as the ‘essence of the right to a fair trial’.56 To corroborate its reasoning, the judgment insists on the underlying connection between ‘effective judicial protection’ and judicial independence.57 This line of argument is not entirely new and draws on the findings developed in the seminal judgment in ASJP.58 The overarching values set out

52 Opinion by AG Sánchez-Bordona in OG & PI (n 32) para 66. 53 See Mancano (n 44) 713. 54 See OG & PI (n 32) para 75. 55 See, in this respect, LM (n 8) para 78. 56 See, for a critique levelled at this argument, Wendel (n 50) 25. 57 M Krajewski, ‘Associação Sindical dos Juízes Portugueses: The Court of Justice and Athena’s Dilemma’ (2018) 2 European Papers 395. 58 Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117.

Art 47 and the European Arrest Warrant 171 in Article 2 TEU, including the rule of law, require the existence of an effective judicial review designed to ensure compliance with EU law. In that respect, a precondition for effective judicial protection is the independence of bodies which qualify as ‘courts and tribunals’ within the meaning of EU law.59 The importance of the ruling in ASJP can hardly be understated as it draws on Article 19(1) TEU in such a way as to affirm the requirement of ‘judicial independence’ for all courts and tribunals at the domestic level, regardless of whether or not they are implementing EU law.60 This bold interpretation of primary law lies at the core of the recent case law on judicial independence and the rule of law backsliding,61 while infiltrating recent judgments on mutual trust and the EAW, such as LM and the follow-up case in L&P.62 In the case of LM, the requirement of judicial independence refers primarily to the system of courts at the domestic level, in particular those which ‘conduct the criminal procedure for the purpose of prosecution, or of enforcement of a custodial sentence or detention order, and the substantive criminal proceedings’.63 To this end, the Court goes on to require that, before enforcing an EAW, the executing authority must ascertain whether ‘the criminal courts of the other Member States […] meet the requirements of effective judicial protection, which include, in particular, the independence and impartiality of those courts’. At the same time, the ruling refers to issuing and executing authorities under FD-EAW, which are therefore bound by the same requirements of independence and impartiality. Most notably, the Court adds, ‘the decision on executing a European arrest warrant, but also the decision on issuing such a warrant, must be taken by a judicial authority that meets the requirements inherent in effective judicial protection – including the guarantee of independence – so that the entire surrender procedure between Member States provided for by the framework decision is carried out under judicial supervision’ (emphasis added).64 Finally, if ‘judicial independence’ is a prerequisite for individuals to exercise their right to effective judicial protection under EU law, and given that independence and impartiality must apply without distinction to all judicial authorities issuing or applying an EAW, we can only infer that in LM the Court had in mind a broad conception of ‘independence’. Hence, the attempt made in OG & PI to decouple ‘effective judicial protection’ from Article 47 (and Article 19 TEU) may only be seen as a departure from this ruling and prior case law on judicial independence. Regrettably, this deviation has not been supported by sufficiently robust argumentation to distinguish the differences between the two cases, though it might be argued that in the present instance the chosen interpretation reflects a concern for the effectiveness of the legal instrument at stake. In a similar vein, the Luxembourg judges may have been wary of the implications of 59 See LM (n 8) para 78. 60 L Pech and S Platon, ‘Judicial Independence Under Threat: The Court of Justice to the Rescue’ (2018) 55 Common Market Law Review 1827. 61 For a complete overview, see M Krajewski, ‘The EU Right to an Independent Judge: How Much Constitutional Consensus Across the EU?’, in this volume. 62 L&P (n 8) para 58; See also Joined Cases C-562/21 PPU and C-563/21 PPU X and Y v Openbaar Ministerie EU:C:2022:100, Opinion by AG Rantos. 63 See LM (n 8) para 78. 64 It is however telling that the CJEU in LM refers to its interpretation of Art 6(1) of the EAW Framework Decision in Kovalkovas (n 22); see Harkin (n 23) 526.

172 Adriano Martufi their ruling for national procedural autonomy. As explained above, a broader notion of ‘independence’ and a narrower understanding of the term ‘judicial authority’ would have tampered with the discretion of Member States as they confer on prosecutors the power to issue or execute EAWs. Arguably, in order not to interfere with national procedural autonomy the Court has avoided explicit references to key constitutional provisions such as Article 47 of the Charter.

VI. The Right to an Effective Judicial Remedy and the EAW: Article 47 and Habeas Corpus Proceedings Turning now to the right to an effective judicial remedy recognised under Article 47(1) of the Charter, the Court has insisted that with respect to the EAW such a right is inherent in the provisions of EU secondary law.65 A first remark is order: under EU law the right to an effective remedy is not (and shall not be) confined to Article 47 or, for that matter, Article 13 ECHR. Indeed, persons affected by a coercive measure may invoke specific procedural safeguards protecting their right to liberty, the so-called habeas corpus guarantees. Namely, individuals deprived of liberty shall be entitled to take proceedings before a court in order to challenge the lawfulness of detention and, if necessary, obtain release. These safeguards flow from Article 5(4) ECHR and are relevant for EU law on the basis of a combined interpretation of Article 6 and Article 52(3) of the Charter. Although the relationship between habeas corpus and the broader right to an effective remedy remains problematically under-researched, the ECtHR has been consistent in stating that habeas corpus guarantees under Article 5(4) ECHR must be regarded as lex specialis in relation to the more general requirements of Article 13 ECHR.66 As for the EAW, in its early case law the CJEU has dealt with the right to an effective remedy in a way that may be referred to as a ‘doctrine of incorporation’. In Jeremy F, the Court has made clear that the entire surrender procedure between Member States is ‘carried out under judicial supervision’, meaning that both the issuing and the executing decisions are taken by a judicial authority. Such a claim signifies that the right of the person in question to have access to court, which flows from the principle of effective judicial protection and Article 47(1), is upheld by the very fact of having such decisions made by a judge. In doing so, the Court embraces a peculiar interpretation of the right to an effective judicial remedy pursuant to Article 47(1). Under a traditional understanding of this right (which originates from the principle of effectiveness developed by the CJEU in Factortame),67 Article 47 requires that ‘everyone whose rights and freedoms

65 Jeremy F (n 10), para 46. 66 See Judgment of the European Court of Human Rights of 15 November 1996 in Case No 22414/93 Chahal v the United Kingdom; See S Trechsel, Human Rights in Criminal Proceedings (Oxford University Press, 2005) 463, who refers to the right to liberty as a ‘preferential freedom’ equipped with further layers of protection as opposed to other fundamental rights. In particular, the right to habeas corpus proceedings is lex specialis in that it provides access to a judicial authority and it requires that the decision be given ‘speedily and effectively’, if necessary by obtaining immediate release should the lawfulness of detention not be upheld. 67 Case C-213/89 The Queen v Secretary of State for Transport, ex parte Factortame EU:C:1990:257.

Art 47 and the European Arrest Warrant 173 are guaranteed by the Law of the Union’, be given the possibility to obtain a ‘remedy to set aside national measures which are in conflict therewith’.68 In accordance with Article 52(3) of the Charter, taking into account the interpretation given to Article 13 ECHR, the essence of an ‘effective remedy’ lies in the ability of such a remedy to provide adequate redress of the rights affected,69 thus ‘remedying to the impugned situation’.70 As mentioned above, according to Article 5(4) ECHR individuals affected by a coercive measure enjoy a special protection against violations of their right to liberty. Article 5(4) ECHR, in particular, requires a judicial review of the lawfulness of detention. Interestingly, however, this special guarantee does not entail that a detention order, such as the EAW, when issued by judge, must be subject to ‘a second level of jurisdiction’. More precisely, the need for a judicial review of detention set forth in Article 5(4) ECHR is fulfilled when a deprivation of liberty is carried out in accordance with an order issued by a judge or ‘other officer authorised by law to exercise judicial power’. Alternatively, when arrest or detention are carried out by the police, the suspect has a right to be brought promptly before a judge or other judicial officer for their detention to be confirmed or dismissed. In other words, the requirement of habeas corpus is satisfied when initial detention is ordered ab initio or confirmed ‘promptly’ by a court on the basis of Article 5(3) ECHR. In these instances, judicial oversight is incorporated in the initial decision, though a detainee maintains their right to apply for a revision of continued detention with the passing of time.71 The CJEU in Jeremy F refers explicitly to the case law on Article 5(4) ECHR to support the view that Article 47 of the Charter does not require national law to provide for a right to appeal against decisions relating to an EAW. More generally, it may be argued that according to this view, the right to an effective remedy of Article 47(1) shall not be taken as implying a duty for Member States to have legal avenues that ‘set aside’ an arrest warrant. To the extent that such a decision originates from a judicial authority that is, either a judge or a court, no further level of judicial review is required. If such an approach did not call on Member States to tweak with their domestic appeal systems to introduce new remedies, it relied on an implicit premise: a judicial authority issuing or executing an EAW could only be a ‘tribunal’ within the meaning of Article 47(1). Our claim in this section is that the Court has departed from its ‘doctrine of incorporation’ by explicitly allowing prosecutors to play a key decision-making role in the surrender mechanism. As indicated above, this explains the choice of overlooking Article 47(1) (or for that matter article 19(1) TEU) in the most recent cases on the 68 W van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37 Common Market Law Review 509; See Factortame (n 67) paras 18–21. 69 See the Judgment of the European Court of Human Rights of 26 October 2000 in Case No 41138/05 Kudla v Poland, para 158: ‘a means of complaint is “effective” ‘in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred’. 70 Judgment of the European Court of Human Rights of 23 November 1991 in Case No 12742/87 Pine Valley Developments Ltd and Others v Ireland. 71 D Chatzivassiliou, ‘The Guarantees of Judicial Control with Respect to Deprivation of Liberty under Article 5 of the European Convention of Human Rights: An Overview of the Strasbourg Case-Law’ (2004) 5 ERA Forum 501. However, Art 5(4) does not compel the contracting states to set up a second level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release, see the Judgment of the European Court of Human Rights of 4 March 2008 in Case No 63154/00 Marturana v Italy, para 110.

174 Adriano Martufi autonomous concept of ‘judicial authority’ under FD-EAW. And yet allowing prosecutors to be exclusive players in the adoption of an EAW would pose a problem from the point of view of habeas corpus proceedings and the special guarantees of Article 5(4) ECHR. Under the Convention, a deprivation of liberty is lawful if handed down by a ‘judge or other officer authorised by law to exercise judicial power’. Yet according to established case law, this category does not include the public prosecutor’s office. Rather, prosecutors may be allowed to take a temporary measure with provisional validity, one that must be confirmed ‘promptly’ by a court under Article 5(3) ECHR.72 One of the key questions underlying the recent cases in OG&PI and PF (and the long list of follow-up judgments ensuing from these rulings)73 was therefore how to ensure the right to an effective remedy while allowing the prosecutor the power to issue (or apply) an EAW. It has to be recalled that the Court eschews any reference to Article 47 in this line of case law. Importantly, however, the argumentation contains references to Article 6 of the Charter, which could have been a gateway to explicitly incorporate some special habeas corpus guarantees through Article 52(3) of the Charter in lieu of the general right of Article 47(1). Such guarantees would imply that any decision impinging on the right to liberty must be taken or endorsed by a judge or a court. As mentioned, however, the ultimate goal of the judgments in OG&PI and PF is to provide a legal umbrella for the national practice of conferring issuing powers to prosecutors in EAW proceedings. Therefore, the reasoning of the Court around Article 6 of the Charter seems to be careful of not compressing too heavily the role of prosecutors. This is reflected in a rather obscure solution developed in paragraph 75 of the judgment in OG&PI and later clarified in JR & YC. First the Court adds that, though an EAW may be issued by a prosecutor, it must be capable of being the subject ‘of court proceedings which meet in full the requirements inherent in effective judicial protection’.74 This requirement has been initially interpreted as the need to provide for appeal proceedings before a court when an issuing decision is taken solely by a prosecutor.75 Such an interpretation is contradicted by a further statement in the rulings of the Court, which invokes directly Article 6 of the Charter. In the view of the Court, the issuing of an EAW as a measure impinging on the right to liberty must rely on ‘a decision meeting the requirements inherent in effective judicial protection’ adopted ‘at least, at one of the two levels of that protection’ (emphasis added).76 The two levels mentioned by the ruling refer to the (at least theoretically) distinct decisions involving the issuing of an EAW, on the one hand, and the adoption of the national warrant on which that EAW is based, on the other.77 The ambiguity of this statement has led the CJEU to claim in JR & YC that, if domestic law provides for a judicial review on the national warrant underpinning the EAW, the requirement of having ‘court proceedings’ in place would be met.78 As a result, in such 72 See Chatzivassiliou (n 71) 501. 73 For an exhaustive overview, see Grimaldi (n 40) 331. 74 See OG & PI (n 32) para 75. 75 See Böse (n 34) 1278; T Niedernhuber, ‘How Much Independence is Necessary to Issue a European Arrest Warrant?’ (2019) 10 European Criminal Law Review 6. 76 See OG & PI (n 32) para 68; See PF (n 33) para 46. 77 Case C-241/15 Bob-Dogi EU:C:2016:385, para 66. 78 See JR & YC (n 45) para 68.

Art 47 and the European Arrest Warrant 175 cases, the issuing of an EAW may be taken by a public prosecutor, without the decision being subject to a specific remedy. The interpretation arising from these cases is worrisome in many respects. For one thing, it fails to engage with Article 47 of the Charter; the right to an effective remedy before a ‘tribunal’ is hardly fulfilled if the power to issue a measure impinging on the right to liberty such as the EAW lies entirely in the hands of prosecutors. Secondly, it is lamentable that no conclusions are drawn from habeas corpus guarantees and Article 5(4) ECHR, since the right to a judicial review ends up being denied in the event of a deprivation of liberty upon the issuing of an EAW: the obvious differences between pre-trial detention and detention pending extradition have no relevance here79 as the ECtHR has extended the safeguards of Article 5(4) ECHR to surrender proceedings. Thirdly, in light of the above, the reference to Article 6 of the Charter seems purely cosmetic as the Court shows no appetite to shed light on the relationship between habeas corpus review and the right to effective remedy under the Charter. In summary: the right to have an effective remedy in place may no longer be regarded as implicit in the issuing decision taken by a judge on the EAW itself. As explained, recent case law allows prosecutors to make such decisions when they exhibit a certain degree of (external) independence. Rather, the Court seems to suggest that a sufficient set-up to uphold this right would merely require the involvement of a court at the time of issuing the national warrant underpinning the EAW. Clearly enough, no obligation exists for Member States to establish ad hoc remedies against the issuing or the carrying out of a surrender under FD-EAW.

VII. Conclusion In this chapter we investigated the role played by Article 47 of the Charter in the interpretation of FD-EAW. This analysis has shown that while in an early phase of the case law of the Court, Article 47 was relied upon to uphold the principle that EAW proceedings are carried out entirely under judicial oversight (as implicit from EU secondary law) in a subsequent phase this provision remained in the background when the CJEU had to clarify the meaning of such terms as ‘judicial authority’ and ‘independence’. Nonetheless, the Luxembourg judges have not refrained from a more dynamic interpretation of the Framework Decision, going so far as to develop an autonomous concept of judicial authority with a related set of negative and positive obligations for Member States and national authorities involved in the surrender mechanism. It may be argued that Article 47, while not directly referred to, has acted as a propellant for an interpretation that drives a wedge into national procedural autonomy.

79 See Böse (n 34) 1272; See Mancano (n 44) 713: ‘The public prosecutor’s office is not bound by the obligations of independence and impartiality that Art. 6 imposes on a “tribunal” unless they are acting as judicial officers in charge of review under Art. 5(3) ECHR – which is different from issuing a EAW’. This is disputable, however, as guarantees of judicial protection stemming from Art 5(4) ECHR apply to all forms of deprivation of liberty.

176 Adriano Martufi The analysis of the case law brought further questions to the fore. The concept of ‘independence’ espoused by the Court seems problematically narrow, as it fails to grasp the ‘internal’ dimension of such a principle and appears overly deferential vis-à-vis the choice of the national legislature to invest prosecutors with decision-making powers in the surrender procedure. At the same time, the concession that prosecutors may still issue or execute EAWs, if relatively independent from the executive, appears at odds with the stance taken in LM. Departing implicitly from the wider notion of ‘independence’ expressed in this judgment, the CJEU has carefully avoided any reference to both Article 47 of the Charter and Article 19(1) TEU. This goes some way to showing that the impact on national procedural autonomy has been nuanced, with the Court worried about making a contentious decision and barring prosecutors from surrender proceedings. Finally, the current case law on prosecutors and the EAW leaves much to be desired as regards the right to an effective remedy. In the earlier case law, the right to a remedy and the involvement of a judge could be regarded as two sides of the same coin, in accordance with Article 47(1). Later cases show a greater reluctance to link the right to a remedy with the latter provision, while referring to Article 6 of the Charter. As the right to liberty enjoys special protection under the ECHR, the Court added the requirement that, when a surrender request is issued by a prosecutor, such a measure has to be capable of being the subject of judicial review in court. These court proceedings have to meet the ‘requirements of effective judicial protection’. Unfortunately, this solid finding has subsequently been watered down by the CJEU. At present, whenever a national arrest warrant is subject to such a judicial review, the subsequent decision on an EAW may be issued by a prosecutor in the absence of judicial review.

10 Article 47 of the Charter of Fundamental Rights in the Common Foreign and Security Policy: Does it Afford an Adequate Protection of the Right to Effective Judicial Protection to Private Parties? SARA POLI*

This chapter examines how the Court of Justice has made the action of the Union in the context of the Common Foreign and Security Policy subject to the rule of law by relying on Article 47 of the Charter. It is shown that in most cases in which the Court of Justice relies on Article 47 there is a hesitation to consider it as a stand-alone basis for its interpretation. Four strands of the case law related to the mentioned policy area are identified. In the name of this principle/right, the Court has widely interpreted the Court’s competence under Articles 275(2) and 268 TFEU (in conjunction with Article 340(2) TFEU), as well as the legal standing requirements of legal persons (including third countries), seeking the annulment of CFSP Decisions instituting sanctions and the substantive obligations to which the Council is subject when listing natural or legal persons in its restrictive measures. In addition, the CJEU has imposed on the Council the obligation to check that the right to an effective judicial protection and the right to the defence are respected in third countries that carry out judicial proceedings against former state organs who are listed in EU restrictive measures. In several cases, introduced by the addressees of these measures, the listing decisions were annulled by the Court for failure by the Council to discharge its obligation. The chapter shows that the case law of the Court is overall convincing; however, the ruling in the Venezuela case is criticised since by considering a third country a ‘legal person’ for the purpose of Article 263(4) the CJEU stretched too far the scope ratione personae of the right to an effective judicial protection.

I. Introduction In the last six years the right to an effective judicial protection as guaranteed by Article 47 of the EU Charter of Fundamental Rights (‘EUCFR’) has been extensively applied by the * Sara Poli is full professor of European Union law at the University of Pisa.

178 Sara Poli Court of Justice (or ‘CJEU’) in the field of the Common Foreign and Security Policy (‘CFSP’);1 this has happened mostly in the context of annulment actions, and more rarely in preliminary ruling procedures. The vast majority of CFSP acts challenged before the General Court and the Court of Justice in the light of the right enshrined in Article 47 of the Charter are restrictive measures (or ‘sanctions’) of individual nature.2 These acts are aimed either at countering security threats such as terrorism, or at reacting to breaches of international law and/or to advance the protection of values such as democracy, the rule of law and the universality and indivisibility of human rights in the world. However, in a few cases sui generis decisions made by bodies, set up by CFSP acts, were also the object of direct and indirect actions.3 It should not come as a surprise that there is conspicuous case law on the right to effective judicial protection in this area. Indeed, even if the competence of the Court to rule on the provisions of title V Chapter 2 of the TEU is generally excluded under Article 24(1) second paragraph TEU, there are two exceptions: judicial control over CFSP acts is possible to ensure respect of Article 40 TEU and to review the legality of CFSP Decisions instituting restrictive measures against natural or legal persons, enacted under Articles 29 TEU and 215 TFEU.4 The objective of this contribution is to examine how the CJEU has made the action of the Union in the context of the CFSP subject to the rule of law by relying on Article 47 of the EUCFR. It is possible to identify four strands of the case law related to the provisions of Title V Chapter 2 of the TEU and the acts derived therefrom in which the EU judiciary relied on the right to effective judicial protection. The first, which is discussed in section II, concerns the scope of the Court’s competence under Articles 275(2) and 268 TFEU (in conjunction with Article 340(2) TFEU) over CFSP acts. A second strand of cases, presented in section III, deals with access to justice and is related to legal standing requirements to seek the annulment of CFSP Decisions instituting sanctions: the Court relies on the right to effective judicial protection to interpret the conditions5 to challenge the above-mentioned acts under Article 263(4) TFEU, which is referred to in Article 275(2) TFEU. In examining the case law, the limits of the mentioned right will also be explored. The third group of cases, which is accounted for in section IV,

1 Due to constraint of space, it is not possible to a give a full account of the literature on the topic of the right to effective judicial protection in the context of the Common Foreign and Security Policy. For recent monographs, in which numerous bibliographic references can be found, see E Nanopoulos, The Juridification of Individual Sanctions and the Politics of EU Law (Hart Publishing, 2020); G Butler, Constitutional Law of the EU’s Common Foreign and Security Policy (Hart Publishing, 2019); S Poli, Le misure restrittive autonome dell’Unione europea (Editoriale Scientifica, 2019), C Beaucillon, Les mesures restrictives de l’Union européenne (Bruylant, 2014); C Portela, European Union Sanctions and Foreign Policy (Routledge, 2011). 2 These are restrictive measures (‘sanctions’) addressed to natural or legal persons or other non-state entities within the meaning of Art 215(2) TFEU. These instruments of the CFSP may be adopted to implement a resolution of the UN Security Council (‘UNSC’) or as an autonomous expression of the CFSP. 3 See s II for examples of sui generis decisions in the context of CFSP. 4 Art 24(1) TEU; Art 275(2) TFEU. 5 Under Art 275(2) TFEU, natural and legal persons are entitled to challenge the legality of CFSP Decisions instituting restrictive measures under the conditions laid down by Art 230(4) TFEU that is to say that the impugned acts are of direct and individual concern to the applicants.

Art 47 in the Common Foreign and Security Policy 179 briefly touches upon the substantive obligations to which the Council is subject in the name of the right to effective judicial protection in adopting restrictive measures. The fourth strand of the case law, commented on in section V, concerns annulment actions against a specific category of restrictive measures, aimed at supporting the consolidation of the rule of law in Ukraine and democracy in Tunisia and Egypt.6 In several cases, introduced by the addressees of these measures, the listing decisions were annulled by the Court for failure by the Council to discharge its obligation to ensure that the EU acts were adopted in compliance with the right of defence and the right to an effective judicial protection. In the concluding remarks, an assessment is made of whether by relying on Article 47 EUCFR the Court offers to non-state addressees of restrictive measures effective judicial protection against possible abuses or mistakes made by the Council in the exercise of its powers in the context of the CFSP.

II. Article 47 of the Charter as an Instrument to Broadly Interpret the Competence of the Court of Justice with Respect to Acts Adopted in the Framework of the CFSP The cases presented in this section illustrate how, in the name of the right to effective judicial protection, the Court asserted its jurisdiction over sui generis CFSP acts and extended the remedies available to non-state entities who are the addressees of restrictive measures, under Article 275(2) TFEU. Since 2016, the Court of Justice has had various occasions to rule on the so called ‘carve-out’7 provisions of the Treaty, setting out the immunity from jurisdiction in the area of the CFSP and the ‘claw-back’ provisions, defining the exceptions to the general rule. The Court has gradually eroded the principle of immunity from jurisdiction relying on the right to effective judicial protection. In Elitaliana,8 a ruling of 2015, the CJEU stressed that its lack of competence in the sphere of the CFSP was an exception to its general competence under Article 19 TEU and as such it should be interpreted narrowly. Shortly after, in H, an action against a sui generis CFSP Decision, introduced under both Articles 263, 268 and Article 340 (2) of the TFEU, was considered as admissible, ‘taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights’.9 The impugned act was a decision taken in the context of the CFSP by the Chief of Personnel of the European Union Police Mission in Bosnia and Herzegovina (EUPM), whereby a member of staff of a CFSP mission was redeployed.

6 Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia [2011] OJ L28/62; Council Decision 2011/172/ CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt [2011] OJ L76/63; Council Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine [2014] OJ L66/26. 7 Art 24(1) TEU; Art 275 TFEU. 8 Case C-439/13 P Elitaliana EU:C:2015:753. 9 Case C-455/14 P H EU:C:2016:569, para 58.

180 Sara Poli The Court linked the effective judicial review designed to ensure compliance with provisions of EU law to the rule of law.10 The principle of reviewability of acts taken vis-a-vis the staff and the organs of an EU agency operating in the area of the CFSP has been reiterated in the KF ruling.11 This time the applicant was the Head of the administration division of the European Satellite Centre (SatCen), whose core functions are to support the decision making and actions of the Union in the Common Security and Defence Policy.12 KF questioned the legality of a number of decisions taken by the Director of the mentioned centre and by the Appeal Board, leading to her dismissal. She also sought compensation for the damages resulting from the contested EU acts. The GC held that the latter come within the scope of the Court’s jurisdiction to rule in annulment proceedings and to an hear an action for damages against the EU. The impugned acts were considered as reviewable measures, under Article 263 TFEU, despite the fact that SatCen was not funded through the EU budget.13 In addition, the fact that there was an Appeal Board that could review the decision to dismiss the applicant did not bar the latter from challenging the contested measures before the GC. This interpretation is based on ‘the right to an effective legal remedy enshrined in Article 47 of the Charter’.14 The GC upheld the action on the substance and awarded 10,000 euros for the non-material harm suffered by the applicant. On appeal, the Court of Justice confirmed the GC ruling.15 One of the crucial points raised by the CJEU to assert its jurisdiction is that the SatCen Staff Regulations excluded expressly any judicial review, by the national courts or by the EU judicature. The point was made that: [I]f the Court and the General Court declined to exercise the jurisdiction conferred on them by Articles 263 and 268 TFEU, the result would be, […], that such decisions would be exempt from any judicial review, either by the EU courts or the national courts, without that decision to decline jurisdiction being justified by a concern to respect the allocation of jurisdiction between the EU courts and the national courts required by the FEU Treaty.16

The Court thus considered that, in such circumstances, it fell on itself to ensure ‘the existence of effective judicial review.’17 Two additional judgments are relevant to define the impact of the right to effective judicial protection in the CFSP: these are the preliminary ruling in the Rosneft case18 10 ibid, para 41. Before the Lisbon Treaty the link between respect of the general principle of effective judicial protection and the rule of law was made for the first time by the CJEU in Case C-355/04 P Segi EU:C:2007:116, para 51. The CJEU held that the institutions are subject to review of the conformity of their acts with the treaties and the general principles of law, just like the Member States when they implement the law of the Union. The Court refers to the general principles in this context deriving from Art 6 ECHR. 11 Case T-286/15 KF EU:T:2018:718. 12 Council Decision 2014/401/CFSP of 26 June 2014 on the European Union Satellite Centre and repealing Joint Action 2001/555/CFSP on the establishment of a European Union Satellite Centre [2014] OJ L188/73, Arts 2(1) and 3. 13 KF (n 11) para 71. 14 ibid, para 166. 15 Case C-14/19 P SatCen EU:C:2020:492. 16 ibid, para 84. 17 ibid, para 85. 18 Case C-72/15 Rosneft Oil Company EU:C:2017:236. See also the comments made by S Poli, ‘The Common Foreign Security Policy after the Rosneft ruling: Still Imperfect but Gradually Subject to the Rule of Law’ (2017) 54 Common Market Law Review 1799.

Art 47 in the Common Foreign and Security Policy 181 and the action in damages introduced by Bank Refah Kargaran.19 In both rulings the Court of Justice interpreted the Treaty in the light of Article 47 of the EUCFR so as to afford to addressees of restrictive measures (private applicants) remedies not explicitly provided for by Article 275(2) TFEU. One of the legal issues raised by the referring court in the former case was whether a preliminary ruling on the validity of CFSP Decisions freezing the assets of a state-owned company20 was admissible, considering that Article 275(2) TFEU only mentioned the Court’s competence to review the legality of CFSP Decisions under the conditions defined by Article 263(4) TFEU, thus indirectly referring only to the annulment action. The Court gave a closer look at the text of the last sentence of the second subparagraph of Article 24(1) TEU and Article 275(2) of the TFEU and concluded that: Neither the EU Treaty nor the FEU Treaty indicates that an action for annulment brought before the General Court, pursuant to the combined provisions of Articles 256 and 263 TFEU, constitutes the sole means for reviewing the legality of decisions providing for restrictive measures against natural or legal persons, to the exclusion, in particular, of a reference for a preliminary ruling on validity (para 70).

The CJEU argued that the claw-back provisions of the Treaty do not determine the type of procedure under which the Court may review the legality of certain decisions, ‘but rather the type of decisions whose legality may be reviewed by the Court, within any procedure that has as its aim such a review of legality’.21 Next, the emphasis was placed on the essential role played by the preliminary ruling procedure in ensuring effective judicial protection, given that the implementation of a decision providing for restrictive measures against natural or legal persons falls on Member States. The fact that the latter have an obligation to comply with the Union position, enshrined in CFSP decisions, makes access to judicial review of those acts indispensable for natural or legal persons targeted by restrictive measures. Then, the Grand Chamber turned to the founding values of the EU, and in particular to the rule of law, as it did in the H ruling. These are recalled in Article 2 TEU and are referred to, albeit in a more oblique manner, as guiding principles of the Union (when involved in actions on the international stage) in Article 23 TEU defining the common principles of the EU external action. At this juncture, the right of an effective judicial review, as embodied in Article 47 of the EUCFR, was invoked to support the interpretation that the exclusion of the jurisdiction of the Court of Justice in the CFSP should be interpreted restrictively. It was argued that rejecting the possibility that courts and tribunals of Member States may use Article 267 TFEU to question the validity of Council Decisions as envisaged in Article 275(2) TFEU would conflict with the tasks assigned to the Court by Article 19(1) of the TEU and with the principle of effective judicial protection. The CJEU also rejected the argument that it falls to national courts and tribunals alone to ensure effective judicial protection if the Court has no jurisdiction to give

19 Case C-134/19 P Bank Refah Kargaran EU:C:2020:793. 20 As of 8 September 2014, Rosneft was included in the list of Annex III to Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine [2014] OJ L229/13. 21 Bank Refah Kargaran (n 19) para 70.

182 Sara Poli preliminary rulings on the validity of decisions in the field of the CFSP that prescribe the adoption of restrictive measures against natural or legal persons. The necessary coherence of the system of judicial protection requires, in accordance with settled case-law, that when the validity of acts of the European Union institutions is raised before a national court or tribunal, the power to declare such acts invalid should be reserved to the Court under Article 267 TFEU […].22

The argument of the ‘necessary coherence’ is drawn from Foto-Frost.23 The CJEU went on to state that given that the Court has jurisdiction ratione materiae over CFSP Decisions instituting restrictive measures, it would be inconsistent with the ‘system of effective judicial protection’ established by the Treaties to interpret Article 275(2) TFEU as excluding the possibility that the courts and tribunals of Member States may refer questions to the Court on the validity of Council decisions prescribing the adoption of such measures. Finally, the point is made that the European judiciary is better placed than national judges to rule on the validity of EU acts.24 A different interpretation ‘would be liable to jeopardise the very unity of the European Union legal order and to undermine the fundamental requirement of legal certainty’.25 Therefore, judicial protection, as far as CFSP Decisions instituting individual restrictive measures are concerned, is guaranteed by the CJEU and cannot be left to national courts. In the opinion of the author, the ruling in Rosneft should be welcomed since after the Lisbon Treaty and the abolition of the pillar structure there were no reasons not to extend the principles derived from the Foto-Frost ruling to the CFSP; the centralisation of the judicial review over restrictive measures in the hands of the CJEU is convincing. In contrast, other scholars are more critical of the position of the Court.26 The second important case in the context of the case law on sanctions concerns the competence of the Court to examine the non-contractual liability of the Union for damages arising from CFSP Decisions instituting individual restrictive measures. The ruling in Bank Refah Kargaran27 is interesting since the EU judicature stretched Article 275(2) TFEU to cover the action in damages against the Union. The position was taken that the ‘necessary coherence of the system of judicial protection’ provided for by EU law requires that, in order to avoid a lacuna in the judicial protection of the natural or legal persons affected by sanctions, the CJEU must have jurisdiction to rule on the harm allegedly caused by measures provided for in CFSP Decisions, in addition to its

22 ibid, para 78. 23 Case C-314/85 Foto Frost v Hauptzollamt Lübeck-Ost EU:C:1987:452. 24 ‘[…] it is open to the [Court of Justice], within the preliminary ruling procedure, on the one hand, to obtain the observations of Member States and the institutions of the Union whose acts are challenged and, on the other, to request that Member States and the institutions, bodies or agencies of the Union which are not parties to the proceedings provide all the information that the Court considers necessary for the purposes of the case before it’, ibid, para 79. 25 ibid, para 80. 26 According to one scholar, the Court does ‘not reflect accurately either the wording of primary law or the spirit of the system of judicial review that the drafters of the Treaties set out for this policy area’, see P Koutrakos, ‘Judicial review in the EU’s common foreign and security policy’ (2018) 67 International and Comparative Law Quarterly 1. 27 Bank Refah Kargaran (n 19).

Art 47 in the Common Foreign and Security Policy 183 competence to award damages arising from EU Regulations under Article 215 TFEU.28 The Court had stated in Rosneft that Article 47 of the Charter could not confer jurisdiction on the EU judiciary when the Treaty excludes it.29 This could have led the Court to exclude that it had competence to rule under Article 268(2) TFEU. Indeed, the wording of Article 275(2) TFEU does not refer to the extracontractual liability of the Union. Yet, it is true that the latter remedy is complementary to that provided by an annulment action if Article 275(2) TFEU is interpreted in the light of the right to effective judicial protection. As a result of this ruling, the CJEU further consolidates the judicial trend of normalising the CFSP with respect to other non-CFSP policy.30 A final point is worthy of mention: in both the Rosneft and Bank Refah Karagran rulings the Court relied on the right protected under Article 47 EUCFR31 to restrictively interpret the limits of its jurisdiction; the CJEU established links between the above-mentioned right and the rule of law, thus making selected sui generis CFSP acts and those instituting individual restrictive measures subject to the value referred to in Article 2 TEU.

III. The Legal Standing to Challenge Restrictive Measures in the Light of Article 47 of the EUCFR: Are There Any Limits to Its Scope Ratione Personae? As mentioned in Section I, private applicants are allowed under Article 275(2) TFEU to challenge their listing in CFSP Decisions setting out restrictive measures. The way the Court has interpreted the notion of ‘legal persons’ referred to in the mentioned provision is interesting for the purpose of this chapter. Indeed, the judiciary has widely construed ‘access to justice’ by accepting that ‘emanations of states’, in addition to strictly-defined ‘private parties’ could challenge sanctions.32 The rationale of this position is that a different interpretation would be contrary, amongst other provisions, to Article 47 of the EUCFR.33 However, the legal standing requirements are also interpreted as excluding the admissibility of private applicants’ actions against restrictive measures of general application, the so-called ‘sanction regimes’ (ie export restrictions on goods, services or technology imposed on the EU Member States and affecting a general category of

28 See Case T-384/11 Safa Nicu Sepahan Co. EU:T:2014:986. For the first time the GC upheld an action for damages caused by Regulations in the area of sanctions. 29 ibid, para 74. 30 E Bartoloni, ‘Restrictive Measures Under Art. 215 TFEU: Towards a Unitary Legal Regime? Brief Reflections on the Bank Refah Judgment’ (2020) 5 European Papers 1359. 31 However, both in Rosneft and Bank Refah Karagran, the Court states that Art 47 EUCFR is reaffirmation of the principle of effective judicial protection; See Rosneft (n 18), para 73; Bank Refah Kargaran (n 19), para 36. 32 This is in contrast to the ECHR which precludes governmental organisations and similar entities from bringing proceedings before the Court. See Art 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. 33 Case T-578/12 National Iranian Oil Company EU:T:2014:678, para 36.

184 Sara Poli foreign companies/persons/non-state entities).34 Since the Gbagbo ruling the CJEU took the view that Article 275(2) only supports challenges to CFSP Decisions of an individual nature;35 in contrast, sanctions that lay down general prohibitions on EU operators that do not affect individual foreign companies or single non-state entities, but a category of foreign operators in an abstract manner, fall outside the scope of Article 275(2). Indeed, they ‘do not constitute restrictive measures against natural or legal persons within the meaning of the second paragraph of Article 275 TFEU, but rather measures of general application’.36 This interpretation of the Court raises some doubts. Indeed, Article 275(2) TFEU could be read, in the light of the right to effective judicial protection, so as to extend the jurisdiction of the Court to all CFSP Decisions that institute restrictive measures and affect the interests of private parties, and not only to individual listing decisions. A sanction regime, which generally applies to all operators, may individually concern a certain company or a natural person in a manner that distinguishes them from other subjects of a similar nature. In recent case law there are indications that the CJEU is tending to relax the standing requirements. For instance, in Almaz-Antey,37 the GC accepted that a sanction regime was of individual concern for the applicant, a state-owned company, which was named in the annex of the impugned CFSP decision. However, the action was held inadmissible since the company was found not to be directly affected by the impugned measures. In another decision an annulment action submitted by a subsidiary of a Ukrainian bank against a CFSP Decision setting out restrictive measures of general application was considered admissible.38 The impugned measure listed the parent bank in its annexes. Recently, the CJEU had the opportunity to settle a new legal issue that has to do with the scope ratione personae of the right to effective judicial protection. This is whether third countries have locus standi to attack a Regulation setting up economic sanctions in court, under Article 263(4) TFEU. In the Venezuela case39 both AG Hogan40 and the CJEU on appeal41 considered that the notion of ‘legal person’ in Article 263(4) can be interpreted as including third countries. As a result, the latter are entitled to seek the review of a Regulation instituting restrictive measures, under Article 275(2) TFEU, provided that they fulfil the conditions of ‘direct and individual’ concern as interpreted by the case law of the Court in the context of Article 263(4) TFEU. The Court relies on the principle of effective judicial review and the notion of the rule of law to support 34 In Rosneft the Court excluded that it was competent to assess the validity of the provisions of CFSP measures that instituted sanction regimes, prohibiting EU operators to sell goods or technology to Russian companies. Indeed, the CFSP Decisions were not individual in nature. Therefore, they did not qualify as ‘decision providing for restrictive measures against natural or legal persons’, enshrined in the second para of Art 275 TFEU. 35 Joined Cases C-478/11 P and C-482/11 P Laurent Gbagbo EU:C:2013:258, para 57. 36 Rosneft Oil Company (n 18), paras 97–98. 37 Case T-255/15 Almaz-Antey EU:T:2017:25, para 71. 38 Case T-739/14 PSC Prominvestbank, Joint-Stock Commercial Industrial & Investment Bank EU:T:2018:547. 39 Case C-872/19 P Bolivarian Republic of Venezuela EU:C:2021:507. 40 Case C-872/19 P Bolivarian Republic of Venezuela EU:C:2021:37, Opinion of AG Hogan. 41 The issue of the standing rights of third countries was raised before the GC by Venezuela in its annulment action against a number of acts (a Regulation, an implementing Regulation and a CFSP Decision) imposing on EU operators a prohibition to export goods. The annulment action was considered inadmissible since the applicant did not satisfy the condition of being directly affected by the contested act. See Case T-65/18 Venezuela EU:T:2019:649.

Art 47 in the Common Foreign and Security Policy 185 its position.42 In other words the beneficiaries of the effective judicial protection are not limited to private parties but include third countries. The ruling of the Court in the Venezuela case is likely to have important implications given that it will encourage third countries to litigate before the CJEU. In the author’s opinion, the liberal position to standing adopted by the CJEU is problematic and should be criticised for a number of reasons. First, although Article 275(2) TFEU does not explicitly exclude that legal persons such as third countries can bring actions against restrictive measures, it should be underlined that the above-mentioned provision was introduced in the Lisbon Treaty to afford private parties (ie natural persons, companies, banks and designated terrorist organizations) access to justice against CFSP measures, considering that often restrictive measures are of individual nature and affect fundamental rights (ie due process rights and other fundamental rights such as that to property and to conduct business). In the author’s opinion, expanding the categories of potential applicants to third countries would be against the teleological interpretation of Articles 275(2) and Article 263(4) TFEU to which the former provision refers. Secondly, the legal reasoning leading to considering actions by third countries against restrictive measures as admissible, inter alia, on the basis of the right to an effective judicial protection, is not convincing. Although there are precedents of annulment actions introduced by third countries which were considered admissible, under Article 263(4) TFEU,43 the circumstances at the basis of that case law are different from those at stake in the Venezuela case. The third country involved challenged a Regulation that was made necessary by an act adopted in the context of the CFSP. In this area the Court of Justice should confine itself to reviewing the legality of individual listing decisions, rather than that of restrictive measures addressed to third countries. Accepting that the latter have standing to contest sanctions would alter the institutional balance built into the Treaty, since the Court of Justice would circumvent the Treaty provisions limiting judicial review in the area of CFSP. Thirdly, extending locus standi to third countries in this field, in the absence of reciprocity, would deprive the Council of the possibility to effectively conduct international relations and interact with the third country concerned at diplomatic level in the UN context or at bilateral level, as the Council rightly points out.44 Fourthly, third countries do not have the same position as the EU institutions or the Member States which are privileged applicants in the context of art. 263 (1).45 In the event that a third state wishes to contest EU unilateral sanctions that are adopted independently of the UN Security Council, they may use the Dispute Settlement Body (‘DSB’) of the WTO, as it happened in the recent practice.46 The condition is that both 42 Venezuela’s appeal against the GC’s ruling only concerned Regulation 2017/2063. 43 See Case T-257/04 Poland v Commission EU:T:2009:182; Case C-70/04 Switzerland v Commission EU:C:2005:468; Case T-246/19 Cambodia and CRF v Commission EU:T:2020:415. 44 See Venezuela (n 39) para 29. 45 Case C-872/19 P Venezuela v Council, Opinion of AG Hogan (n 40), para 35. 46 See WT/DS512/R, panel report of 5 April 2019, Russia-Measures concerning traffic in transit. It seems that WTO members will more and more rely on the DSB to test the scope of the security exceptions of the WTO agreements. For example, Saudi Arabia invoked on the security exception of TRIPS agreement (Art 73) against Qatar in WT/DS567/R, panel report of 16 June 2020, Saudi Arabia-Measures Concerning the Protection of Intellectual Property Rights.

186 Sara Poli parties accept that a panel may adjudicate the dispute over the legality of sanctions in the light of the security exceptions included in several WTO agreements.47 Finally, it is also criticisable that in order to support Venezuela’s standing to challenge restrictive measures the CJEU invokes the obligations of the EU to ensure respect for the rule of law to claim that in the Union such a duty cannot be made subject ‘to a condition of reciprocity as regards relations between the European Union and third States.’48 Indeed, it is submitted that the position of the Court is in contrast to that adopted in other contexts.49

IV. An Overview of the Substance of Annulment Actions against Individual Restrictive Measures: An Enhanced Protection of Due Process Rights The EU judiciary exercises full judicial control over individual restrictive measures, the legality of which may be questioned before it, amongst other grounds, for breaches of fundamental rights, including the right to effective judicial protection.50 The Court has greatly enhanced the procedural rights of the targets of restrictive measures, both with respect to sanctions of UN-origin, a context in which the absence of due process rights is conspicuous,51 and autonomous EU sanctions. It was clarified that the standard of effective judicial protection must be respected both in the context of counter-terrorism measures and individual sanctions for the situation occurring in third countries.52 Since the Council should respect the mentioned right as well as the right of defence, it is bound to duly motivate the inclusion in the list of a natural and legal persons by providing a summary of the reasons leading to their inclusion in the list, even if the sanction is of UN-origin;53 this will enable the targets of these measures to make their observations

47 In this respect there are risks. For example, in March 2021 the US has refused the panel’s request submitted by Venezuela against the US sanctions since the government in power in Venezuela is not recognised as the legitimate representative of the Venezuelan people. Therefore, the dispute remains unsettled. 48 See Venezuela (n 39) para 52. 49 The lack of reciprocity is one of the reasons invoked to exclude direct effect of WTO law. See Case C-149/96 Portugal/Council EU:C:1999:574, paras 42–46. Although in the context of this ruling the lack of reciprocity is not the main argument leading the Court to deny WTO law having direct effect in the EU legal order, nonetheless such an argument has still been used by the CJEU without worrying about its potential conflict with the principle of the rule of law. 50 Case C-348/12 P Council (Kala Naft) EU:C:2013:776, para 68. 51 In the ruling Kadi II, the Court of Justice defined the obligation of the competent EU authority (the Commission) in the context of the Al-Qaeda counter-terrorism sanctions. These obligations concern respect for the rights of the defence (paras 111 and 112), of carefully and impartially examining the evidence provided by the UN organisms (para 114) as to whether the alleged reasons are well founded and the duty to state reasons identifying the individual, specific and concrete reasons why the competent authorities consider that the individual concerned must be subject to restrictive measure (para 116); See Joined Cases C-584/10 P, C-593/10 P and C 595/10 P Commission and others v Kadi EU:C:2013:518. 52 See Joined Cases T-128/12 and T-182/12 HTTS EU:T:2013:312, paras 43–44. 53 In this case, the Court has clarified that the EU institution has the obligation to examine, carefully and impartially, whether the reasons provided by UN bodies are well founded and to assess, having regard inter alia to the content of comments made by the individual concerned, whether it was necessary to seek the assistance of the Sanctions Committee in order to obtain the disclosure of additional information or evidence. See Case T-248/13 Al Ghabra EU:T:2016:721, para 74.

Art 47 in the Common Foreign and Security Policy 187 known to the EU institutions and prepare their defence in a possible action for annulment of those measures before the EU Courts. The reasons justifying the decision to list54 (or re-list) a natural or a legal person or a group of individuals should also not be too vague. A further interesting aspect of the case law on sanctions is that Article 47 of the EUCFR, rather than the general principle to an effective judicial protection, played an important role in defining the burden of proof that the Council must respect when making a listing decision. Indeed, the Charter is vested with the same legal value as the Treaties and as such it offers a more solid basis than the general principles of EU law for the Court to protect the fundamental rights of non-state entities in interpreting CFSP acts adopted by the Council. The effectiveness of the judicial review, as guaranteed by the above-mentioned provision of the EUCFR, requires that the Courts of the Union ensure that individual restrictive measures be adopted on a sufficiently solid factual basis.55 More precisely, the CJEU will verify the facts alleged in the summary of reasons underpinning the listing decision, ‘with the consequence that judicial review cannot be restricted to an assessment of the cogency, in the abstract, of the reasons relied on, but must concern whether those reasons, or, at the least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated.’56 In addition, the Court imposed on the Council to have a set of indicia that are sufficiently specific, precise, and consistent,57 so as to establish that there is a sufficient link between the person subject to a measure freezing his funds and the regime being combated; the factual evidence at the basis of listing decision must not be drawn from internet-based sources.58 Failure to comply with these principles will lead the Court to annul the contested measures. It should be emphasised that although the trends in the litigation on restrictive measures varies across the years,59 in most cases annulment requests are rejected by the GC or an appeal by the Court of Justice. Indeed, the CJEU upholds the listing decision if there is one valid legal reason to do so60 and in examining whether the restriction to fundamental rights, such as the right to property, is proportionate to the objectives of the Council’s external action the Court has so far invariably provided a positive answer, to the author’s knowledge.61 Yet, private parties have been successful in a number of cases. Listing decisions of the addressees of sanctions were annulled for failure by the Council to motivate 54 See Case T-720/14 Rotemberg EU:T:2016:689. 55 See, eg Case T-553/18 Delcy Eloina Rodríguez Gómez EU:T:2021:458, para 43; Case T-181/13 Sharif University of Technology EU:T:2014:607, para 57. 56 See Case C-280/12 P Council v Fulmen and Mahmoudian EU:C:2013:77, para 64. 57 See Case C-605/13 P Anbouba EU:C:2015:248, para 53. In the Kadi ruling, concerning counter-terrorism measures, the Court of Justice held that the effectiveness of judicial review requires that the listing decision is taken on a sufficiently solid factual basis; See Kadi (n 51) para 119. 58 Case T-400/10 Hamas EU:T:2014:1095, para 110; however, the Court has been ready to accept press articles as evidence of the use of Russian weapons by the Eastern Ukrainian separatists, see Case T-255/15 Almaz-Antey EU:T:2017:25, paras 147–148. 59 For an exam of the litigation between 2013 and 2016, see S Poli, ‘The turning of non-state entities from objects to subjects of EU restrictive measures’ in E Fahey and S Bardutzky (eds), Framing the Subjects and Objects of EU law (Edward Elgar, 2017) 174–79. 60 A Cuyvers, ‘Give me “one good reason”: the unified standard of review for sanctions after Kadi II’ (2014) 51 Common Market Law Review 1759, 1768. 61 See, eg Case C-600/16 P National Iranian Tanker Company EU:C:2018:966.

188 Sara Poli the inclusion62 (or the retention)63 in the blacklist or since the mentioned institution committed an error of assessment.64 Examples of the latter circumstance are the following: an applicant was the object of a restrictive measure for a reason that it did not match the designation criteria65 of the CFSP Decisions instituting the sanction. In other cases, there was not enough evidence to support the listing,66 or the political context was changed and, as a result, the name in the sanction list had to be removed.67 It should be noted that in all circumstances in which the addressee of restrictive measures was removed from the list as a result of the ruling of the Court, the sanction regime at the basis of the listing was autonomous from that of the UN.68 In contrast, the only successful actions introduced by applicants whose name was included in a list drawn up by a UN body were those introduced by Kadi and Abdulrahim.69 A final point is necessary on the implementation by the Council of Court’s rulings which upheld the annulment action. When such a situation occurs, this does not entail that a de-listing decision is adopted by the Council. Indeed, depending on the grounds of illegality of the listing decision, the Council either changed the reasons at the basis of the freezing order70 or expanded the criteria to designate persons in the text of the CFSP Decision so as to be able to re-list the applicant.71 As a result, a place in the black list tends to last for many years.

V. The Obligation of the Council to Verify that the Right to Effective Judicial Protection and the Right of Defence are Respected by Third Countries There is a small group of successful annulment actions which deserves special attention since the CJEU has for the first time imposed on the Council the obligation to verify that the right to effective judicial protection and the right of defence are respected in third countries. In the Liberation Tigers of Tamil Eelam (LTTE) case the Court of

62 Case C-417/11 P Council (Bamba) EU:C:2012:718. 63 Case T-681/14 Aisha Muammer Mohamed El-Qaddaf EU:T:2017:227. 64 See, eg Case T-275/12 Football Club ‘Dynamo-Minsk’ ZAO EU:T:2015:747; Case T-246/15 Ivanyushchenko EU:T:2017:789. 65 See, eg Case T-290/14 Portnov EU:T:2015:806. 66 Joined Cases T-329/12 and T-74/13 Al-Tabbaa EU:T:2014:622; Case T-392/1 Iran Tranfo EU:T:2013:254. 67 See, eg Case T-348/13 Kadhaf Al Dam EU:T:2014:806, and the subsequent removal from the list as a result of the GC’s ruling in implementing Regulation no. 2015/376 [2015] OJ L64/15. 68 The Council removes the names on the list of autonomous sanctions as a result of its own annual review. It rarely explains the reason leading to the removal of the name in the text of the Decision. In case the EU sanction is of UN origin, the removal from the list of a person is made when the UN competent body thus decides. 69 See Kadi (n 51); Case T-127/09 Abdulrahim EU:T:2015:4. 70 See Case C-258/17 P Bank Tejerat EU:C:2018:967, para 80: ‘The principle of effective judicial protection cannot prevent the Council from reinstating a person or entity on the lists of persons and entities whose assets are to be frozen on the basis of reasons other than those on which the initial listing of that person or that entity was based. The purpose of that principle is to ensure that an act adversely affecting an entity may be challenged before the courts, and not to prevent the adoption of a new act adversely affecting that entity, based on different reasons.’. 71 See, eg Case T-653/11 Jaber EU:T:2013:312.

Art 47 in the Common Foreign and Security Policy 189 Justice has confirmed the existence of such an obligation in the context of the restrictive measures designed at countering terrorism.72 The GC imposed on the Council the duty to demonstrate in the statements of reasons of an implementing Regulation listing terrorist organisations,73 and including LTTE, that protection of the rights of defence and of the right to effective judicial protection in the Indian legal order was equivalent to that guaranteed at EU level. The reason for imposing such an obligation is due to the fact the restrictive measures against LTTE were based on the information provided by the competent authority of the mentioned third country. In a Union based on the rule of law, the Council must not only ensure that the above-mentioned rights are respected by the competent authorities of EU Member States but also by third countries since the EU sanctions affect the rights of private parties. In subsequent case law the CJEU has extended the obligation of the Council to verify that the right to the defence and to effective judicial protection were respected in third countries when the Council adopted restrictive measures aimed at supporting democracy or the rule of law in the EU neighbour countries. Sanctions of this kind were enacted by the Union to assist the ruling class in power in Egypt, Tunisia and Ukraine to recuperate embezzled funds by former heads of state (and their close circles). The financial resources of the above-mentioned persons, who were subject to criminal proceedings for misappropriation of funds in their home countries, were frozen by the Council. Yet, considering that those proceedings concerned high-level state organs, there was a risk of politicization. In Tunisia and Egypt the trials against Ben Alì and Mubarak (their families and other persons) started in 2011, while national proceedings were opened against Yanukovich (and his family members) and other high-level civil servants of his government in Ukraine in 2014. In many cases the addressees of those measures challenged their inclusion in the list. Since the trials lasted for many years and in those countries the rule of law is weak, there was indeed the risk that the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal, both protected under Article 47 EUCFR, were breached. If this were so, the EU would be complicit in breaches of human rights with the governments of the third countries concerned. In this context, the Court of Justice has limited the discretion of the Council in assisting them. The above-mentioned political institution has the power to support these countries but, as a result of the requirements imposed by the CJEU in the ruling of 2018 in the Azarov case,74 it has also the obligation to verify that the rights of the applicants that are protected under Article 47 EUCFR were respected during the conduct of national proceedings. Only if it possible to discharge this obligation, will the Council have a sufficiently solid factual basis to maintain the name of an addressee of the mentioned measures in the list.

72 See Joined Cases T-208/11 and T-508/11 Liberation Tigers of Tamil Eelam (LTTE) EU:T:2014:885, para 139 and confirmed by the Court of Justice in the appeal Case C-599/14 P Council v LTTE EU:C:2017:583. 73 Implementing Reg (EU) No 83/2011 [2011] OJ L28/14. 74 Case C-530/17 P Azarov v Council EU:C:2018:1031, paras 39–40. The annulment of Azarov’s listing decision in December 2018 did not lead to his removal from the list until March 2020; See Council Decision (CFSP) 2020/373 of 5 March 2020 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine [2020] OJ L71/10.

190 Sara Poli A number of listing decisions of Ukrainian nationals were annulled by the GC six months after the delivering of the Azarov’s ruling. These are Arbuzov75, Klymenko76 and Yanukovych.77 In addition, the Council changed the text of the instituting Decision of the Ukrainian sanction regime in order to be able to renew the listing of all the addressees of sanctions while satisfying the conditions laid down by the Court. In the Decision identifying the names of the Ukrainian nationals subject to asset freezing the Council explained how the Ukrainian Code of Criminal Procedure complied with the right to effective judicial protection and right of defence.78 Moreover, for each individual on the EU blacklist a justification was provided of the reasons why the above-mentioned rights were respected in the criminal proceedings opened against them. With these changes the Council sought to prove that the criminal proceedings carried out in Ukraine complied with Articles 47 and 48 of the EUCFR. In 2020 a number of Ukrainian applicants again challenged their listing under the new regime. In the rulings in the Pshonka and Klymenko cases,79 the GC had the opportunity to examine whether the Council had actually respected the standards imposed by the Court when deciding to maintain the applicants on the list. After an in-depth examination of the evidence provided by the Council, eventually the Court arrived at the conclusion that the Council had not shown that the essence of the applicant’s procedural rights had been observed in Ukraine. In particular, the information available to the Council at the time of the adoption of the contested acts did not enable it to verify whether the decision of the Ukrainian judicial authorities had been taken in accordance with the applicant’s right to effective judicial protection and their right to have their case heard within a reasonable period. The Court relied on Article 47(2) of the EUCFR,80 but also referred to the case law of the European Court of Human Rights on Article 6 of the ECHR; finally, it annulled the listing decisions in both cases. It is remarkable that, for the Court, the fact that a third state, such as Ukraine, was among the states which have acceded to the ECHR could not render the verification imposed by the Court on the Council superfluous.81 A similar judicial pattern may be observed with respect to the sanction regime on the misappropriation of the Egyptian funds. In March 2019 the Council adjusted the text of the instituting decision of the restrictive measures on misappropriation of funds addressed to Egyptian nationals so as to show that the right to effective judicial protection and the right to the defence were respected.82 In December 2020 the Court of Justice set aside the ruling of the General Court in the Thalet case83 that had 75 Case T-284/18 Sergej Arbuzov v Council of the European Union EU:T:2019:511. 76 Case T-274/18 Klymenko v Council EU:T:2019:509. 77 Case T-244/16 Yanukovych v Council EU:T:2019:502. 78 Council Decision (CFSP) 2019/354 of 4 March 2019 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine [2119] OJ L64/7. 79 Case T-291/19 Viktor Pavlovych Pshonka EU:T:2020:448; See Klymenko (n 76). 80 See Viktor Pavlovych Pshonka (n 79) para 81; See Klymenko (n 76) para 96. 81 See Klymenko (n 76) para 64. 82 Council Decision (CFSP) 2019/468 of 21 March 2019 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt [2019] OJ L80/40. 83 Joined Cases T-274/16 and T-275/16 Saleh Thabet and Others v Council EU:T:2018:826.

Art 47 in the Common Foreign and Security Policy 191 confirmed the legality of the relisting of members of Mubarak’s families. The letters and the memorandum from the Egyptian authorities, in which the latter set out the manner in which the applicants’ fundamental rights had been observed and gave assurances in that regard,84 were not considered enough to discharge the obligation of the Council to verify that those rights were respected. As a result, the Court held that the maintenance of the appellants on the lists did not rest on a sufficiently solid factual basis. Shortly after the release of the Thalet’s judgment, the Council decided to abolish the Egyptian sanction regime, claiming that the objectives of the sanctions had been achieved.85 This may imply that some of the public funds were returned by the persons subject to legal proceedings or that the evidence available to prove that respect of effective judicial protection and the right to the defence were difficult to obtain and the re-listing of these persons would not have stood up in court. There is also a third sanction regime concerned with the misappropriation of public funds by Ben Alì’s regime in Tunisia.86 In this context, an applicant was removed from the list without explanation in 2019.87 It was not until 2020 that the Council updated the instituting decision of the Tunisian sanctions following the model of the other two misappropriation regimes.88 For each of the 48 listed persons the Council stated the reasons why the right to effective judicial protection is respected in the criminal proceedings started in 2011. The GC has upheld the annulment action introduced by Ben Alì against the 2020 CFSP Decision that retained the applicant’s name on the list on the grounds that the Council had committed an error of assessment in assuming that the Tunisian authorities had respected the right to trial within a reasonable time, which is an aspect of the right protected under Article 47 EUCFR.89 Yet, the applicant was re-listed in 202190 and a new challenge is now pending before the GC.91 At the same time, the names of four persons were deleted from the list but we have been left in the dark as to the motivations. This strand of the case law is to be welcomed since it confirms that the discretion of the Council is constrained by the right to an effective judicial protection in the context of the CFSP. The credibility of the external action of the EU, which is based on the respect of fundamental rights and has to comply with the principle of consistency under Article 21 TEU, is therefore boosted. 84 Joined Cases C-72 & 145/19 P, Suzanne SalehThabet and others v. Council, EU:C:2020:992, para 44. 85 Council Decision (CFSP) 2021/449 of 12 March 2021 repealing Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt [2021] OJ L87/46. 86 Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia [2011] OJ L28/62. 87 Council Decision (CFSP) 2019/135 of 28 January 2019 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia [2019] OJ L25/23. 88 Council Decision (CFSP) 2020/117 of 27 January 2020 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia [2020] OJ L22/31. 89 Case C- 151/18 Slim Ben Tijani Ben Haj Hamda Ben Ali EU:T:2020:514, para 148. 90 Council Decision (CFSP) 2021/55 of 22 January 2021 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia [2021] OJ L23/22. 91 Case T-170/21 Ben Alì, pending.

192 Sara Poli

VI. Conclusions In the previous sections it was shown how the Court has widely interpreted the reach of its competence to examine the legality of CFSP acts in the name of the right protected under Article 47 EUCFR: the legality of restrictive measures can be assessed not only in annulment actions, but also in the context of preliminary ruling procedures. In addition, the CJEU also has the competence to hear actions on damages arising from CFSP Decisions instituting individual restrictive measures. The right to effective protection has also played a central role in the interpretation of the legal standing requirements to challenge restrictive measures in the context of Articles 275(2) and 263(4) TFEU. The Court has expanded access to justice and has reinforced the protection of non-state entities whose rights are affected by CFSP acts. The right to effective judicial protection was also relied upon to justify the access of third countries to justice to contest sanctions. In the Venezuela case92 the Court considered that subjects of international law are legal persons and as a result are entitled to seek justice before the Court of Justice. The author is, however, not convinced that this interpretation is in line with the spirit of the Lisbon Treaty. The right to effective judicial protection, as guaranteed by Article 47 EUCFR has limits with respect to the scope ratione personae of the above-mentioned right: it cannot be used to give standing to third countries in the context of Article 263(4) TFEU. It should be acknowledged that the current Treaty rules still leave important gaps in terms of access to justice and human rights protection. Indeed, the Court does not have jurisdiction over CFSP acts other than those specified in Article 275(2) TFEU: restrictive measures93 and CFSP acts that breach Article 40 TEU. This means that should an individual suffer damages as a result of a CFSP mission authorised by the Council, under Article 28 of the TEU, it would not be possible to bring an action under Article 340(2) TFEU before the General Court. This incomplete nature of remedies offered by Article 275 TFEU was criticised in the light of Article 47 EUCFR.94 It was noticed that in these cases the national courts of the Member State that had the responsibility of the military operation causing damages may provide a forum to the victim. Indeed, effective judicial protection, under Article 19 TEU, is guaranteed both by the Court of Justice and national courts.95 In this case, only if it is possible to attribute the illegal conduct to the national military contingent of the Member State of the forum, national courts could be held to provide an effective remedy, under Article 19 TEU. Turning to the case law on the annulment actions in which private parties contested the merit of the listing decisions, it was shown that the due process rights of the 92 Venezuela (n 39). 93 The notion of ‘restrictive measures’ was interpreted narrowly to include only sanctions rather than a broader concept of CFSP measures restricting the rights of private parties. See the interpretation provided by the CJEU in H (n 9), para 36; See also the comments made by S Johansen, ‘Accountability Mechanisms for Human Rights Violations by CSDP Missions: Available and Sufficient?’ (2017) 66 International & Comparative Law Quarterly 181, 200. 94 D Leczykiewicz, ‘“Effective judicial protection” of human rights after Lisbon: should national courts be empowered to review EU secondary law?’ (2010) 35 European Law Review 326. 95 For a positive evaluation of the domestic courts as an essential part of the CFSP system laid down in primary law, see Koutrakos (n 26).

Art 47 in the Common Foreign and Security Policy 193 addressees of restrictive measures are quite broadly construed by the CJEU. In addition, the inclusion of the names of natural and legal persons on blacklists has been annulled in case the Council manifestly exceeded the limits of its discretion by listing persons who did not satisfy the designation criteria of the instituting restrictive measures or in case this institution did not have evidence supporting the inclusion in the list. As a result of this caselaw, the Council is subject to key rule of law obligations, closely linked to Article 47 EUCFR. While obtaining a de-listing decision is still relatively difficult for the addressees of sanctions, this does not mean that the protection offered by Article 47 EUCFR is nugatory. Indeed, the Court relies on the latter provision to offer an extensive access to justice to private parties and to impose far-reaching substantive obligations on the Council, as we have seen in the recent case law concerning restrictive measures on the misappropriation of funds in relation to Ukrainian, Tunisian and Egyptian nationals. After the Azarov ruling of 2018, the threshold that the Council must reach in order to satisfy the requirements of the Court is high. This institution must be sure that the right to an effective judicial protection and the right of defence are respected in the judicial proceedings carried out in these countries against the targeted persons. The effects of this case law on the activity of the Council are that the sanction regimes under discussion were changed in order to have a better chance of standing up in court; yet, eventually, those modifications were not enough and in several cases the listing decisions were annulled by the Court. Indeed, the Council had not discharged its burden of proving that the rights protected under Article 47 EUCFR and under the ECHR were respected in the judicial proceedings carried out in three third countries. All in all, private parties do receive adequate protection from possible abuses of the Council in the adoption of restrictive measures; this is made possible by the existence of Article 47 EUCFR as a source of primary law.96 The Court has interpreted the Treaty provisions of Title V of Chapter 2 of the TEU, including those defining the boundaries of its competence in this area, in the light of the right to effective judicial protection as protected by the above-mentioned provision of the EUCFR. In most cases in which the CJEU relies on Article 47 EUCFR there is a hesitation about considering it as stand-alone basis for its interpretation. This provision of the Charter is considered as an expression of the general principle of effective judicial protection.97 The Court also refers to the case-law of the Strasbourg court on Articles 6 and 13 of the ECHR as it happened in the rulings on the sanction regimes on the misappropriation of funds examined in section V.

96 However, a scholar takes the view that the ECJ should extend the standards applicable to criminal sanctions to asset freezes and criticises the Court since it has not done so. See C Eckes, ‘The Law and Practice of EU sanctions’ in S Blockmans and P Koutrakos (eds), Research Handbook on the EU’s Common Foreign and Security Policy (Edward Elgar, 2018) 228. 97 There is a slight difference between the current approach, which tends to place emphasis on Art. 47 EUCFR and that adopted in the case-law pre-dating the entry into force of the Lisbon Treaty. In at least two cases decided before 2009, the general principle of effective judicial protection was relied upon as the only parameter of interpretation of the provisions of the Treaty (see Case C-229/05 Osman Ochalan (on behalf of PKK) EU:C:2007:32, para 109) or, at most, it was invoked, in conjunction with Art 47 EUCFR (see Kadi (n 51)).

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11 Article 47 of the Charter and Effective Judicial Protection in Environmental Matters: The Need to Grant Civil Society the Right to Defend the Environment LUDWIG KRÄMER*

A distinctive trait of environmental law is that the environment itself has no voice and cannot defend itself in court. Therefore, it is important to allow civil society to represent the environment and have decisions by public authorities or private interests controlled by the courts, which are the arbiters for disputes on diverging interests. The discussion within the EU on the question of standing in environmental matters is largely influenced by the Aarhus Convention, which grants, under certain conditions, individuals and environmental organisations access to justice. The chapter discusses to what extent Article 47 of the Charter added a new element to the discussion on the rights and limits of effective judicial protection to civil society representatives in environmental matters. The chapter concludes that the CJEU’s present interpretation of Article 263 (4) TFEU, which is based on the Plaumann judgment of 1963 would need to be updated, in order to fully take into consideration the requirements of Article 47 of the Charter, of, the Aarhus Convention and of the numerous political, legal, economic, social and ecological changes which have occurred during the last fifty years.

I. Introduction Effective remedies to protect, preserve and improve the quality of the environment are of particular importance. This is due to two specific features which environmental policy and law possess compared to other sectors discussed in this book, such as competition, public procurement, migration policy, non-discrimination, the European arrest warrant and value added tax. * Ludwig Krämer is (retired) Head of Unit at the European Commission, environmental department.

196 Ludwig Krämer First, the problem of effective remedies in the different policy sectors mentioned concerns natural or legal persons who pursue a specific activity and are affected by decisions or measures of public authorities: these are competitors, tenderers, migrants, discriminated persons, suspected criminals and persons who have to pay VAT. These entities are all, in one way or the other, themselves the target of the measures and hence undertake judicial action in order to defend their specific personal rights or interests. The situation is different with regard to environmental policy. Environmental policy seeks to protect the general interest ‘environment’ rather than specific persons and their rights or activities. However, the European environment itself is not endowed with any rights which it could defend in court. Neither are the environment itself or animals, plants or trees able to appear in court to defend their interests and obtain a remedy, when environmental protection provisions are impaired. The recent movement of giving rights to nature, developed in New Zealand, Latin America and Asia, has not yet been the subject of any legislative or judicial development in Europe and certainly not within the European Union.1 Therefore, the discussion on an effective remedy in the environmental sector focuses on an effective remedy of persons, who act not in their own interest, but in another’s, namely that of the environment. This altruistic application to a court differentiates the environmental sector from the other, above-mentioned sectors. It is true, though, that as concerns measures which impair the environment, individual persons may, in addition to a court application to protect the environment, introduce judicial applications in order to defend their own, individual (human) rights, such as the right to life, to health, to property or to a clean environment. Here, the individual court action is not entirely altruistic, which makes it more difficult to differentiate environmental actions from court applications in other sectors. Attempts in Europe to introduce an individual right to a clean environment failed. In the 1970s, the Council of Europe considered the adoption of a protocol to the Convention on Human Rights which was to introduce such a right into the Convention.2 However, these efforts were abandoned, in particular, because the extension of such a right could not be agreed upon. Also the EU Charter did not opt for an individual right to a clean environment, but limited itself to establishing a general policy objective3 following the legal tradition in Germany – the country of origin of the drafting body’s chairman. The second distinctive feature for the environmental sector is the existence of an international agreement on procedural environmental rights. Under the auspices of the United Nations Economic Commission for Europe, an agreement, the so-called Aarhus Convention, was adopted after the fall of the Berlin Wall, which established 1 The notion of ‘rights of nature’ assumes that, as humans have human rights, nature – rivers, mountains, forests etc. – has rights of its own which may be defended in court. See on this O Stone, Should trees have Standing? Law, Morality and the Environment (Oxford University Press, 2010); M Carducci et al, Towards an EU Charter for the Fundamental Rights of Nature (European Economic and Social Committee, 2020); J Bétaille, ‘Rights of nature: why it might not save the whole world’ (2020) 16 Journal for European Environmental & Planning Law 35; J Darpö, ‘Can nature get it right? A study on nature in the European context’ (2021) Study requested by the JURI committee of the European Parliament. 2 See F Albanese, ‘La garantie du droit à l’environnement dans le cadre du Conseil de l’Europe’ in Associacâo Portuguesa para o Direito do Ambiente, International conference guaranteeing the right to the environment (Lisbon, 1988) 87. 3 Art 37 EUCFR.

Art 47 and Effective Judicial Protection in Environmental Matters 197 common procedural rights.4 This agreement was concluded in order to promote common approaches between countries of the former Soviet Union and Western Europe; at present 47 parties have ratified it, amongst which all the EU Member States and the EU itself. It contains provisions on access to information, public participation in decisions and access to justice in environmental matters and requires the contracting parties to adopt ‘adequate and effective remedies’ in order to protect these procedural rights.5 Since its adoption, it has, in particular through its compliance committee, which examines complaints (‘communications’) from the general public, exercised a strong influence on the discussion and the court decisions within the EU regarding effective remedies in environmental matters. Finally, it must be remembered that as for the other fields covered in this book, in environmental matters as well the principle of effective judicial protection, currently guaranteed by Article 47 of the Charter on Fundamental Rights, is applicable and requires the existence of judicial guarantees to protect rights granted by EU law. This principle includes the right of access to courts,6 makes the separation of power operational and enables the full application of the rule of law. This chapter will first present the case law of the Court of Justice of the European Union (CJEU) with regard to environmental remedies prior to and after the conclusion of the Aarhus Convention (I). That examination will be followed by the presentation of Article 47 of the Charter and its impact on the discussion concerning effective judicial protection in environmental matters (II). Section III will describe some criticisms to law and practice by the Aarhus Convention bodies and the reaction of the EU. Some possibilities to solve the diverging views are indicated in section IV, before a short conclusion sums up the contribution (V).

II. The CJEU and Access to Environmental Justice A. Access to the European Courts The system of remedies for violations of EU law was, in its essential elements, already introduced by the EEC Treaty in 1958. Remedies for natural and legal persons were laid down in the present Articles 263(4) and 267 TFEU and not significantly amended since. As regards the first criterion of Article 263(4) that a person had to be individually concerned by a measure in order to have standing, the CJEU held7 that: Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons 4 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) (hereafter: Aarhus Convention). The EU adhered to the Convention by Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/1. 5 Art 9(4) Aarhus Convention. 6 Case C-279/09 DEB EU:C:2010:811. 7 Case C-25/62 Plaumann v Commission EU:C:1963:17.

198 Ludwig Krämer and by virtue of these factors distinguishes them individually just as in the case of the person addressed.

This Plaumann formula was maintained by the CJEU throughout the years and continues to be applied at present.8 With regard to the second criterion of Article 263(4), the ‘direct concern’, the CJEU initially held that a measure of an EEC institution was of direct concern to an applicant, though it was not addressed at them, when it actually and not only potentially affected them, and left no discretion whatsoever to the addressee of the measure to implement it.9 In 1998, the Court held – apparently for the first time – that the legal situation of the applicant had to be affected as well, without giving any explanation for this new requirement.10 Rather, it referred to ten earlier judgments.11 However, none of these ten judgments had discussed, directly or indirectly, the ‘legal situation’ of the applicant, although the requirement that the legal situation of an applicant had to be affected, in order to make them directly concerned, became settled case law.12 The General Court explained in a decision that the legal situation of an applicant was affected, when ‘the rights and obligations of the individual or the exercise of these rights’ were impacted.13 As regards associations or other groupings of individual persons, the CJEU applied its understanding of individual and direct concern in the same way. It declared that an association which was formed for the protection of the collective interests of a category of persons only could bring an action against a measure of an EU institution, if all or at least some of its members were directly and individually concerned;14 such an association did not have rights of standing of its own.15 Exceptionally, the Court accepted that an action by an association could be admitted under the present Article 263(4) TFEU, even when its members were not directly and individually concerned by a measure. This was the case, according to the Court, when: A provision of [EU] law requires, before a decision is adopted, that a procedure be followed, under which a person is entitled to claim rights that might be available to him, including the right to be heard; the particular legal status enjoyed by that person has the effect of distinguishing him for the purpose of [Article 263(4) TFEU].16

8 Case C-244/16P Industrias Químicas del Valles v Commission EU:C:2018:177; Case C-384/16 P European Union Copper Taskforce v Commission EU:C:2018:176; Case C-207/17 Rotho Blaas v Commission EU:C:2018:840. 9 Case C-10/68 Eridania v Commission EU:C:1969:66; Case C-41/70 to C-44/70 NV International Fruit Company v Commission EU:C:1971:53 Case C-113/77 Toyo v Commission EU:C:1979:91; Case C-92/78 Simmenthal v Commission EU:C:1979:53; Case C-246/81 Lord Bethell v Commission EU:C:1982:224; Case C-333/85 Mannesmann v Council EU:C:1987:134; Case C-55/86 Arposol v Council EU:C:1988:8; Case C-208/86 Apesco v Council EU:C:1988:200; Case C-152/88 Sofrimport v Commission EU:C:1992:21. 10 Case C-404/96P Glencore v Commission EU:C:1998:196. 11 ibid, para 41. 12 Case C-663/17P ECP EU:C:2019:923; Case C-352/19P Région de Bruxelles v Commission EU:C:2020:978. 13 Case T-150/05 Sahlstedt v Commission EU:T:2006:172, para 54. 14 European Union Copper Taskforce (n 8) para 87. 15 Case C-60/79 Fédération nationale des producteurs de vins de table v Commission EU:C:1979:189; See also Joined Cases C-19/62 to C-22/62 Fédération nationale de la boucherie en gros a.o. v Commission EU:C:1962:48; Case C-72/74 Union syndicale v Council EU:C:1975:43; Case C-282/85 Comité de développement et de promotion du textile et de l’habillement v Commission EU:C:1986:316. 16 Case C-368/05P PPG v Commission EU:C:2006:771, para 58.

Art 47 and Effective Judicial Protection in Environmental Matters 199 However, such arguments have never been accepted with regard to an environmental organisation. In practice, the CJEU has been rather open to admitting applications under the present Article 263(4) TFEU, at least in economic – competition, State aid and dumping – cases. Thus, it has accepted the admissibility of an application, when the position of the association ‘as negotiator has been affected’ by the measure,17 without further examining the existence of direct and individual concern. For example, it declared the lobbying action of an association of growers of natural gas admissible, because it had ‘taken an active part in the procedure [of adopting the measure in question] by submitting written comments to the Commission and keeping close contact with the responsible officials throughout the procedure’.18 The CJEU has been much stricter with regard to environmental associations. The first case where it had to deal with an application by an environmental association under the present Article 263(4) TFEU, was the Greenpeace case.19 In that case, Greenpeace and a number of natural and legal persons opposed a Commission decision to co-finance the construction of power plants on the Canary Islands, arguing that the environmental impact assessment, which was required under European law, had not been carried out by the Spanish authorities and that the Commission was obliged to only finance those projects which complied with European law. The General Court held the action to be inadmissible. It considered that the different individual applicants were not individually concerned (on the basis of the Plaumann formula), as they were in not in a different position to all the other persons who lived on the Canary Islands. Furthermore, the Court concluded that Greenpeace and the other environmental associations of applicants could not have locus standi, since its members did not have such a right. As regards the rights of the environmental organisations, the General Court referred to several of the CJEU judgments mentioned above,20 and admitted that they concerned ‘mostly economic interests’. However, it stated that ‘the essential criterion in those judgments … remains applicable, whatever the nature, economic or otherwise, of those of the applicants’ interests’ were. The disappointing element of this judgment lies in the fact that the European legislation on environmental impact assessment distinguished carefully between the ordinary public and the public concerned;21 thus, persons who live next to the power plants and

17 PPG v Commission (n 16) para 59; European Union Copper Taskforce (n 8) para 88. 18 Joined Cases C-67/85, C-68/85 and C-70/85 Van der Kooy v Commission EU:C:1988:38; Almost the same wording was used in Case C-313/90 CIRFS v Commission EU:C:1993:11, para 29. CIRFS was an association of synthetic fibre manufacturers; See for further examples L Krämer, ‘Access to environmental justice: the double standards of the ECJ’ (2017) 14 Journal for European Environmental & Planning Law 159, 167. 19 Case T-585/93 Stichting Greenpeace a.o. v Commission EU:T:1995:147; See also Case C-321/95P Stichting Greenpeace Council (Greenpeace International) and Others v Commission EU:C:1998:153. 20 ibid. 21 Council Dir 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40, Art 6 states that: ‘[Member States shall ensure that] – any request for development consent [of a project is] … made available to the public; – the public concerned is given the opportunity to express an opinion before the project is initiated’. This Directive was subsequently replaced by Dir 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment [2011] OJ L26/1.

200 Ludwig Krämer might be affected by emissions, noise, traffic increase etc can well be and even have to be determined in advance and are thus individually concerned by the construction of such a plant. However, the General Court did not even mention the directive in question. The appeal was rejected in six short phrases. The CJEU referred extensively to the decision of the General Court, but added no new element to the question of standing. It did not discuss whether an environmental organisation – for example, Greenpeace is a foundation and thus does not represent ‘members’ – had rights of its own, or whether there might be a difference between associations which group the economic operators of a specific sector, but pursue the same, profit-oriented objectives as the individual members, and an association which acts altruistically in the general interest. In his opinion, Advocate General Cosmas had argued that giving standing to environmental organisations by declaring that they themselves were concerned by a measure, would lead to a situation in which every measure of a Union institution affecting the environment could and would be attacked before the European courts, all the more so as the number of environmental organisations within the EU was ‘particularly high’. The appeal decision of the CJEU did not discuss this question. Empirically, it has been, for quite some time, demonstrated that court actions are not particularly numerous in legal systems in which an actio popularis system or another liberal system of access to courts in environmental law exists.22 In substance, the CJEU maintained this position ever since. Neither the evolution of environmental law and policy over the last 50 years and the changes which were brought to the Treaty on the European Union and its functioning – ‘environment’ was unknown and did not appear in the EEC Treaty of 1958 – nor the evolution of human rights since that time or the adoption of the Aarhus Convention or the EU Charter of Fundamental Rights made it significantly change its position. The consequence of this approach has been that no action of an environmental organisation has ever been declared admissible by the General Court or the CJEU itself. To some extent, this is logical, since, as mentioned above, the protection of the environment is in the general interest which makes it difficult to consider that someone is individually concerned by such a measure. The approach of the Court, however, leaves the question unanswered of how the environment is protected when the EU authorities act in violation of environmental law.

III. The Aarhus Convention and its Criticism of the EU Public Authorities The Aarhus Convention was ratified by the EU in 2005. According to Article 216(2) TFEU it is binding on the EU institutions, including the CJEU. It introduced three elements which are of relevance to the present chapter: it introduced procedural rights

22 See, eg N de Sadeleer, G Roller and M Dross (eds), Access to justice in environmental matters and the role of NGOs (Europa Law Publishing, 2005); Z Mikosa, ‘Implementation of the Aarhus Convention through Actio Popularis’ in J Jendroska and M Bar (eds), Procedural environmental rights: principle X in theory and practice (Intersentia, 2017) 261.

Art 47 and Effective Judicial Protection in Environmental Matters 201 for members of the public,23 required the adoption of ‘adequate and effective remedies’ and installed a Compliance Committee, which has the task of overseeing respect for the Convention. As regards the right of access to environmental information, the Convention provided for access to a court or a similar independent and impartial body, when the request for access to information had not been or had been incorrectly answered.24 On participation in decision-making concerning specific projects,25 the Aarhus Convention provided that members of the public who had either a sufficient interest or who argued the impairment of a right, had access to a review procedure before a court of law or another independent and impartial body to challenge the substantial and procedural legality of the decision-making of any project which fell under Article 6 of the Convention; the interests of non-governmental organisations were ‘deemed sufficient’ for the application of this provision.26 The EU provided for access to national courts when the participation in the procedures for an environmental impact assessment of projects in the permitting decisions for large industrial installations and for some other plans were contested.27 It was silent as regards access to courts when the participation in the elaboration of an environmental impact assessment of national environment-related plans and programmes was at stake.28 With regard to environment-related plans and programmes which were elaborated by the EU itself, a regulation provided for an administrative internal review of decisions by the EU institution or body. The internal review decision could then be challenged in court, provided the conditions of the current Article 263(4) TFEU were complied with.29 The Aarhus Convention finally contained a provision for remedial action in other environmental cases which stated: In addition and without prejudice to the review procedures referred to in paragraph 1 and 2 above [regarding access to information and participation in decision-making], each Party 23 Art 2(4) Aarhus Convention: ‘“The public” means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups’; Art 2(5) Aarhus Convention: ‘“The public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’. 24 Art 9(1) Aarhus Convention. The EU had already, prior to the Aarhus Convention, adopted a directive on access to environmental information, in Council Dir 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment [1990] OJ 2 L158/56, which was subsequently replaced by Dir 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information [2003] OJ L41/26. 25 The Aarhus Convention provided in Art 9(2) for judicial remedy concerning the participation in projects. The participation in the elaboration of plans and programmes, Art 7 of the Convention, was not mentioned in Art 9. 26 Art 9(2) Aarhus Convention. 27 Dir 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment [2003] OJ L56/17. 28 Dir 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30. 29 Reg (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13 (hereafter: Aarhus Regulation).

202 Ludwig Krämer shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

The discussion within the EU soon concentrated on this provision of the Convention. The EU proposed a directive on access to national courts in environmental matters, which obtained the support of the European Parliament,30 but was rejected by the Member States in the Council; in 2014, the Commission withdrew its proposal. No measure was proposed or adopted concerning access to the European courts. The CJEU was soon asked about its position regarding the impact of Article 9(3) on the question of access to the national and European courts. As regards the national courts, it held in a landmark decision of 2011 that Article 9(3) of the Convention did not have direct effect; therefore, individual persons or environmental organisations could not rely on it before national courts.31 However, the Court then stated, without mentioning Article 47 of the Charter, that the provisions of Article 9(3): Though being drafted in broad terms, are intended to ensure effective environmental protection … if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it impossible or excessively difficult to exercise rights conferred by EU law … a national judge has to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention.32

This case law with regard to national law on access to environmental justice became settled case law.33 However, the CJEU did not adopt a similar approach with regard to access to European courts, without explaining the difference in its position. It argued that ‘the EU Treaty has established, by Article 263 and 277, on the one hand, and Article 267 on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts’.34 It followed from this, the CJEU argued, that the requirement of an effective judicial protection could not set aside the conditions for access to the European courts which were laid down in Article 263(4) TFEU.35

A. The Charter of Fundamental Rights The EU Charter of Fundamental Rights was adopted in 2000 and acquired full legal status, when the Lisbon Treaties of 2009 declared that the Union recognised the rights, 30 Commission, ‘Proposal for a directive on access to justice in environmental matters’ COM (2003) 624 final. 31 Case C-240/09 Lesoochranárske zoskupenie EU:C:2011:125. 32 ibid, paras 46, 49 and 50; See also Case C-664/15 Protect EU:C:2017:987; Case C-752/18 Deutsche Umwelthilfe EU:C:2019:1114. 33 See, eg Case C-243/15 Lesoochranárske zoskupenie II EU:C:2017:838; Case C-470/16 North East Pylon Pressure EU:C:2018:185; Case C-197/18 Burgenland EU:C:2019:824. 34 Case C-50/00P Union de Pequeños Agricultores v Council EU:C:2002:462; Case C-583/11P Inuit Kanatami EU:C:2013:625, para 92. 35 Case C-260/05 Sniace v Commission EU:C.2007:700; Case C-150/06 Arizona v Council EU:C:2007:104; Case C-444/08P Azores v Council EU:C:2008:793; Inuit Kanatami (n 34); Joined Cases C-408/15P and 409/15P Ackermann v EP and Council EU:C:2016:893; Case C-399/15P Romania v Commission EU:C:2017:801; Case C-560/17 Izba v Commission EU:C:2020:330.

Art 47 and Effective Judicial Protection in Environmental Matters 203 freedoms and principles set out in the Charter, ‘which shall have the same legal value as the Treaties’.36 It was only in 2013 that the CJEU started referring to Article 47 of the Charter in environmental cases.37 Since 2009, Article 47 of the Charter was mentioned 15 times in environmental cases, though the approach of the Court to the relationship between Article 47 of the Charter and Article 9(3) of the Aarhus Convention was not always consistent: in some environmental cases, only Article 47 was mentioned,38 in other cases, only Article 9 of the Aarhus Convention.39 Again, in other cases, Article 47 of the Charter and Article 9 of the Convention were both referred to,40 and in some cases, the CJEU referred to the requirement of effective judicial protection, without mentioning one or other provision;41 the decisions of the General Court instead never referred to Article 47. The different formulations used by the CJEU did not lead to any difference in the results of the decisions of the Court. Overall, as historically Article 9 of the Aarhus Convention preceded the application of Article 47 of the Charter, private applicants and environmental organisations who brought cases before the courts focused their reasoning on Article 9 and treated Article 47 more as an accessory provision to that Article. This led to the consequence that the Charter right to effective judicial protection was not central to the court decisions, which concentrated on the interpretation of Article 9 of the Convention and less on Article 47. When discussing Article 47 of the Charter, the CJEU continuously repeated its abovementioned opinion that the system set up by Articles 263(4) and 267 TFEU constituted a complete and exhaustive system of access to the European Courts, which could not be called into question by a reference to the fundamental right to effective judicial protection. The CJEU never took up and addressed criticisms42 that had been raised against this approach, in particular that Article 267 did not oblige all national courts to submit a preliminary question; that an applicant had no right to formulate the preliminary questions; that the Court’s interpretation of ‘individual concern’ meant that the more persons were impaired, for example in their human rights, the less they had access to the European courts; that the requirement of the legal situation of an NGO having to be affected in order to recognise direct concern made it excessively difficult for environmental NGOs to argue that they were directly concerned; and that

36 Art 6(1) TEU. 37 The first judgment on environmental law, where Art 47 was mentioned, was Case C-260/11 Edwards EU:C:2013:221. 38 Edwards (n 37); Case C-625/11 PPG v ECHA EU:C:2017:594; Inuit (n 34); Case C-71/14 East Sussex County Council EU:C:2015:656; Ackermann v EP and Council (n 35); Case C-723/17 Craeynest EU:C:2019:533; Case C-113/19 Luxaviation EU:C:2020:228. 39 Case C-570/13 Gruber EU:C:2015:231; North East Pylon Pressure (n 33); See also Lesoochranárske zoskupenie (n 31). 40 Lesoochranárske zoskupenie II (n 33); Protect (n 32); Burgenland (n 33); Deutsche Umwelthilfe (n 32); Case C-826/18 LB a.o EU:C:2021.7; See also M Eliantonio, ‘The relationship between EU Secondary Rules and the Principles of Effectiveness and Effective Judicial Protection in Environmental Matters: Towards a New Dawn for the “Language of Rights"’ (2019) 12 Review of European Administrative Law 95. 41 Case C-279/15P Borde EU:C:2016:297; Case C-280/18 Flausch EU:C:2019:928. 42 J Ebbesson, ‘European Communities’ in J Ebbesson (ed), Access to justice in environmental matters in the EC (Kluwer, 2002) 49; J Jans, ‘Did Baron von Münchhausen ever visit Aarhus?’ in R Macrory (ed), Reflections on 30 years of EU environmental law (Europa Law Publishing, 2006) 475; M Hedemann-Robinson, Enforcement of European Union environmental law (Routledge, 2015) 446; A Epiney, Umweltrecht der EU (Nomos, 2019) 326.

204 Ludwig Krämer in practice the Courts never held an application by an environmental NGO admissible. Rather, the CJEU argued that another interpretation of Article 263(4) TFEU would require an amendment of the TFEU;43 it omitted to discuss that NGOs asked for another interpretation of Article 263(4), not for its amendment, and that the Court itself had already several times in the past changed its interpretation of the present Article 263 TFEU: it had first refused locus standi to the European Parliament, but two years later admitted it;44 it had refused to admit actions for damages under Article 263 and referred the applicant to a national court, which could then raise a question under the present Article 267 TFEU;45 later, it admitted actions for damages under the present Article 340 TFEU; and it held an action for annulment of a regulation inadmissible, since at that time the relevant Article – Article 177(2)EEC – only allowed action against ‘decisions’ and the CJEU considered it ‘inconceivable’ that this term included regulations,46 while later it admitted under certain conditions actions against regulations or directives. The CJEU also repeated its argument that Article 47, even though this provision contained a fundamental right, could not set aside the detailed requirements which had been laid down in Article 263(4) TFEU; otherwise, the provision of Article 263(4) TFEU would become meaningless.47 In no case did the CJEU or the General Court balance the two provisions of primary law – Article 263(4) TFEU and Article 47 of the Charter – against each other, in order to find a solution in the specific pending case. This very conservative approach stands in stark contrast with the creative attitude of the CJEU, when it had to decide, mainly on preliminary questions, whether national law effectively implemented EU environmental law. Its case law in this regard, which started much earlier than the adoption of the Charter of Fundamental Rights, cannot be retraced here in all its details. For example, the CJEU declared that environmental directives which also had the objective to protect human health, could not be transposed into national law by way of administrative circulars, a rather common practice until those judgments; rather, they had to be transposed by legislative acts, so that citizens could know their rights and obligations and rely on the provisions of European laws before the courts.48 The Court also considerably increased the possibility for individual persons to rely on the unconditional and sufficiently precise provisions of a directive (direct effect); even when a provision gave some discretion to the public authorities, its direct effect allowed the control of the courts on whether this discretion had been exceeded.49 And the direct effect also allowed private persons to insist that public authorities elaborated clean-up plans50 or took other administrative measures.51 Moreover, the Court considered the exclusion of small environmental NGOs from

43 Union de Pequenos Agricultores v Council (n 34). 44 Case C-302/87 EP v Council EU:C:1988:461; Case C-70/88 EP v Council EU:C:1990:217. 45 Case C-96/71 Haegemann v Commission EU:C:1972;88. 46 Fédération nationale de la boucherie en gros a.o. v Commission (n 15). 47 See Case C-565/19P Carvalho a.o. v EP and Council EU:C:2021:252. 48 Case C-131/88 Commission v Germany EU:C:1991:87; Case C-361/88 Commission v Germany EU:C:1991:224; Case C-64/90 Commission v France EU:C:1991:360. 49 Case C-72/95 Kraaijeveld EU:C:1996:404. 50 Case C-237/07 Janecek EUC:2008:447. 51 Craeynest (n 38).

Art 47 and Effective Judicial Protection in Environmental Matters 205 introducing court actions against infrastructure projects to be incompatible with the principle of effective judicial protection.52 Of particular importance was the CJEU case law on environment-related plans, programmes and projects, for which an environmental impact assessment had to be made prior to their adoption or authorisation, as EU environmental law gave ‘concerned persons’ a right to participate in that process.53 The CJEU defined the term ‘plan’54 and even classified as ‘plan’ a national law which contained some technical provisions.55 It also declared that for such plans or projects, judicial protection had to be granted even when national law had excluded access to courts: in such a situation, any national court was obliged not to apply the national legislation, which contradicted EU law.56 It also held that the term ‘prohibitively expensive’ in relation to the costs of a judicial procedure had to be interpreted in view of the objective of ensuring effective judicial protection.57 In the Protect ruling, environmental organisations finally were entitled to participate in decisions which could cause a deterioration of water, and eventually look for judicial protection.58 This judgment deserves greater attention. Indeed, EU water law prohibited the deterioration of surface and groundwater, but did not provide for a specific participation of environmental NGOs in decisions which might lead to such a deterioration.59 The CJEU referred to the joint provisions of Article 9(3) and(4) of the Aarhus Convention in conjunction with Article 47 of the Charter and concluded that an effective judicial protection of EU law required that environmental organisations be able to gain access to court, in order to have any decision which might cause water quality to deteriorate to be challenged; this right of effective judicial protection was not dependent on the participation in the administrative decision-making procedure. And should national law provide for other solutions, the national court had to disapply national law. The judgment is remarkable, because not only did it interpret the need for effective judicial protection in the sense that environmental organisations had a right to tackle before national courts environmental water-related decisions, which might impair the environment and are contrary to EU law; it also stressed that such a right to effective judicial protection extends to any decision by a national authority which might be in breach of obligations under EU environmental law. The potential impact of this judgment is thus considerable. Overall, the conclusion appears to be that concerning the implementation measures of EU environmental law of the Member States, the CJEU has been open and progressive. It constantly tried to ensure that wide access to the courts was available, and almost always interpreted the different provisions of EU environmental law in a sense that promoted an effective protection of the environment. It attached particular importance 52 Case C-263/08 Djurgården EU:C:2009:631. Neither the Aarhus Convention nor Art 47 were mentioned. 53 Dir 2011/92/EU; Dir 2001/42/EU. 54 Case C-160/17 Thibaut EU:C:2018:401. 55 Case C-305/18 Verdi ambiente EU:C:2019:384. 56 Joined Cases C-128/09 Boxus EU:C:2011:667. Only Art 9 of the Aarhus Convention was mentioned. 57 Case C-167/17 Klohn EU:C:20118:844. 58 Protect (n 32). 59 Dir 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJ L327/1.

206 Ludwig Krämer to the need to ensure effective judicial protection, long before the adoption of the Aarhus Convention and the Charter of Fundamental Rights. Thus, when national laws implemented Union environmental law, the CJEU ensured that effective judicial protection was guaranteed. In more recent case law, it also seems that Article 47 is pivotal in ensuring wide access to justice in environmental litigation before national courts. However, the CJEU was less open when it had to decide on questions of access to the European courts. Here, it maintained unchanged its case of the 1960s (and its Plaumann formula), despite all the political, legal, social, environmental and economic changes which had taken place since then. Access to the European Courts in environmental matters was and still is excessively difficult for individuals and environmental organisations.

B. The Controversy between the EU and the Aarhus Convention The different approach towards access to national and to EU courts did not go unnoticed. On a complaint by an environmental organisation, the Aarhus Convention Compliance Committee examined the compatibility of the EU provisions on access to the European courts with the Aarhus Convention. In its concluding findings, the Compliance Committee quoted the above-mentioned statement by the CJEU according to which the national courts should ‘to the fullest extent possible’, interpret their law on access to justice in order to give full effect to Article 9(3) of the Convention; the Committee then continued:60 ‘The Committee regrets that, despite its finding with respect to national courts, the CJEU does not consider itself bound in the same sense by this principle’. Furthermore, the Compliance Committee examined the statement of the CJEU, according to which Articles 263 and 267 TFEU had established a complete system of legal remedies. It concluded that, as far as the system of preliminary rulings was concerned, this was not the case61 and referred, in support of this argument, also to declarations by the CJEU itself.62 Overall, the Compliance Committee concluded: ‘The Committee finds that the [EU] fails to comply with Article 9(3) and (4) of the Convention with respect to access to justice by members of the public’. The Committee then made some recommendations on to how to align EU law to the requirements of the Convention. In order to become binding under public international law, the Committee conclusions had to be unanimously approved by the Conference of the Meeting of the Parties 60 Economic and Social Council, ‘Findings and recommendations of the Compliance Committee with regard to communication ACCC/C/2008/32 (part II) concerning compliance by the European Union’ (2017) ECE/MP/PP/C.1/2017/7. 61 ibid, paras 56 and 57: ‘the possibility to request a preliminary ruling … cannot be a basis for generally denying members of the public access to the EU Courts to challenge decisions, acts or omissions by EU institutions and bodies nor does the system of preliminary review amount to an appellate system’. 62 See in this regard Case C-283/81 CILFIT EU:C:1982:335, para 9: ‘it must be pointed out that Article 177 EEC [now Article 267 TFEU] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal’; See also EP v Council (n 44), para 18: ‘the submission of a reference for a preliminary ruling on the validity of such an act [a Council act] or the bringing of an action by Member States or individuals for the annulment of the act are mere contingencies, and the Parliament cannot be sure that they will materialise’.

Art 47 and Effective Judicial Protection in Environmental Matters 207 to the Convention. At the Meeting of the Parties in 2017, a lively debate thus took place, where several non-EU countries severely criticised the EU attitude to oppose the adoption of the Committee’s findings. The EU, however, did not give up its veto, repeating its arguments that Articles 263 and 267 TFEU had created a complete system of judicial protection. In view of this veto, the meeting decided to discuss the matter again at its next meeting in 2021, while the EU committed to look for a solution.63 The Council then formally asked the Commission on the basis of Article 241 TFEU to undertake a study on the issue and come forward with proposals on how to solve the conflict between the Aarhus Convention bodies and the EU.64 The Commission launched such a study and published it.65 On the basis of a Commission proposal, Article 10 of the Aarhus Regulation was amended. The new provisions allow an internal review procedure for a broader range of acts taken in the field of environmental law. The possibilities for individual persons to request an internal review were also broadened.66 Nevertheless, the new provisions still fall short of complying with Article 47 of the Charter. Indeed, the Aarhus Convention allows its contracting parties to provide for either a judicial or an administrative review of acts impairing the environment, requesting, though, that there be effective protection and imposing some other conditions.67 The option to provide for a judicial or an administrative review is in conformity with Article 13 of the European Convention of Human Rights.68 However, the EU Charter of Fundamental Rights, through Article 47, went a decisive step further, by requiring that when an impairment of rights occurs, the remedy be a judicial one.69 An administrative remedy mechanism alone, as foreseen by the compromise solution of the EU, is thus not compatible with Article 47 of the Charter.70 Other aspects of incompatibility with the Aarhus Convention – an internal review body is not independent and impartial, the internal review body has no power to grant injunctive relief, the original decision remains untouched by the internal review decision – will not be further discussed in this chapter.71 63 UN-ECE, ‘Report of the sixth meeting of the Parties’ (2017) ECE/MP.PP/2017/2, paras 55 to 65. 64 Council Decision (EU) 2018/881 of 18 June 2018 requesting the Commission to submit a study on the Union’s options for addressing the findings of the Aarhus Convention Compliance Committee in case ACCC/C/2008/32 and, if appropriate in view of the outcomes of the study, a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1367/2006 [2018] OJ L155/6. 65 Commission, ‘Study on the EU implementation of the Aarhus Convention in the area of access to justice in environmental matters’ (2019) final. 66 Reg (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 amending Reg (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2021] OJ L356/1. 67 Art 9(4) Aarhus Convention: ‘… the procedures … shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive’. 68 Art 13 ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity’. 69 Art 47 EUCFR: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal …’; See also for earlier judgments by the CJEU which had confirmed the right of an effective remedy by access to a court, Case C-222/84 Johnston EU:C:1986:206; EUCFR, ‘Explanatory Notes’ (2007) OJ C303/1. 70 Case C-424/99 Commission v Austria EU:C:2001:642; Case C-452/16 Poltorak EU:C:2016:858. 71 Union de Pequenos Agricultores v Council (n 43).

208 Ludwig Krämer It is thus likely that the conflict between the Aarhus Convention bodies and the CJEU, which was described above, will not be solved. Therefore, the following will try to discuss possible ways to reduce this conflict and the difficulties that might arise in connection to them.

IV. Possible Ways Ahead Access to national courts is regulated by national law. The Member States jealously defend their right to regulate access to justice and do not wish to see any interference from the EU: three attempts by the Commission to introduce, for a specific type of pollution, the possibility of access to justice, were rejected by the Council.72 It is thus not likely that, within a foreseeable time, Member States would be ready to adopt an EU directive or another instrument on this topic. When national law implements EU environmental law, the CJEU has competence to control, through preliminary rulings, whether the national provisions on access to justice are compatible with the fundamental right of effective judicial protection, as laid down in Article 47 of the Charter, and with the requirement of access to justice contained in Article 9 of the Aarhus Convention. The CJEU did so with some success,73 but the actions of the Court depend on the cases which are brought before it by way of preliminary references (Article 267 TFEU). The vast majority of all environmental cases before national courts ends in a court which is not obliged, under Article 267 TFEU, to submit preliminary questions to the CJEU. In general, Member States do not comply with the requirement of Article 9(3) of the Aarhus Convention, according to which members of the public are able to take judicial action against public authorities and private persons who act in breach of environmental law.74 It is a policy and not predominantly a legal decision if and to what extent access to the national courts will be the subject of EU legislation. As the Aarhus Convention Compliance Committee did not discuss this question, it will not either be discussed further in this contribution. As regards access to the European courts, the Aarhus Convention Compliance Committee was of the opinion that EU law presently does not comply with Article 9 of the Aarhus Convention, because the terms of ‘directly and individually concerned’ in Article 263 TFEU are too restrictively interpreted by the CJEU and because Article 267 is not a valid alternative remedy.

72 See Dir 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Dir 96/82/EC [2012] OJ L197/1, Art 23; See also Commission, ‘Commission Proposal’ COM (2010) 781 final; Commission, ‘Commission Proposal on Drinking Water’ COM (2020) 753 final, Art 16, which was rejected by the European Parliament and the Council; Dir (EU) 2020/2184 of the European Parliament and of the Council of 16 December 2020 on the quality of water intended for human consumption (recast) [2020] OJ L435/1. 73 See, eg Janecek (n 50); Lesoochranárske zoskupenie (n 31); Case C-115/09 BUND EU:C:2011:289; Case C-529/15 Folk EU:C:2017:419; Protect (n 32); Burgenland (n 33). 74 See J Darpö, ‘Effective justice? Synthesis report of the study on the implementation of Articles 9(3) and 9(4) of the Aarhus Convention in seventeen of the Member States of the European Union’ in J Jans, R Macrory, and A Molina (eds), National courts and EU environmental law (Europa Law Publishing, 2013) 169.

Art 47 and Effective Judicial Protection in Environmental Matters 209 A relatively simple way of reconciling access to the EU courts in environmental matters with the need to satisfy both the Aarhus Convention and Article 47 of the Charter, would be to allow, in Article 10 of Regulation 1367/2006, an appeal against the measure adopted by the EU institution, and not only an internal review. Such an appeal procedure exists, in EU law, for example against decisions by ECHA, the European Chemicals Agency,75 or against decisions under EU trademark law.76 An appeal procedure would guarantee that the original EU decision could be subject to judicial review by the EU courts. However, the trialogue meetings in 2021, mentioned above, rejected such a solution for environmental law and stuck to the ‘internal review’ procedure. For the rest, there are three possible measures to satisfy the petitum of the Aarhus Convention Compliance Committee, without requesting a change in the interpretation of the CJEU of Article 263(4) TFEU.

A. Applying Article 9(2) of Regulation 1367/2006 As regards access to justice, when participation rights of individuals or NGOs are impaired, the provision of Article 9 of the Aarhus Regulation should be considered. According to this provision, the public77 shall be given opportunities ‘to participate in the preparation, modification, or review of plans or programmes relating to the environment’. Article 9(2) provides that the EU institutions and bodies ‘shall identify the public affected or likely to be affected or having an interest in’ an environment-related plan or programme; such persons shall be given detailed information on the plan or programme (Article 9(3)). Other provisions of Article 9 contain details for participation procedure and its outcome. It was mentioned above that the CJEU admitted an organisation which had been recognised as a negotiator by the EU institutions, as having a right of its own under Article 263(4) TFEU.78 It would thus be normal to consider that environmental organisations and members of the public, who had been identified by a decision under Article 9 (2) of Regulation 1367/2006 as affected or likely to be affected by a plan or programme, were also admitted by the CJEU as having a right to bring an action under Article 263 (4) TFEU. The problem is that the EU institutions and bodies never took any decision under Article 9(2) of Regulation 1367/2006. Instead, they considered ‘consultation’ and

75 Reg (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, [2006] OJ L396/1, Art 91. 76 Reg (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark [2017] OJ L154/1, Art 66. 77 Reg 1367/2006, Art 2(1)(b): ‘the public means one or more natural or legal persons and associations, organisations or groups of such persons’. 78 See, eg PPG v Commission (n 16) para 59: ‘It is settled case-law that the role played by an association in a procedure which has led to the adoption of an act within the meaning of Article 230 EC [now Article 263 TFEU] may establish the admissibility of an action brought by the association, even when its members are not directly and individually concerned by that act, in particular where its position as negotiator has been affected by that act’; An almost identical wording is found in European Union Copper Taskforce (n 8) para 88.

210 Ludwig Krämer ‘participation’ as identical terms and provided for consultation of the public in general, without taking care to identify the public affected, let the public concerned participate when all options were open, commit themselves to take into consideration the opinions submitted and explain the reasons and considerations for their final decision. In this way, they made it impossible for a person or an environmental organisation to invoke Article 9(2) for the purposes of having a court application considered admissible. It is true that the omission by the EU institutions and bodies under Article 9(2) was never challenged by a person or an NGO, and the CJEU was never asked to interpret the right to effective judicial protection in the light of Article 9(2) of Regulation 1367/2006. However, that provision contains a legal obligation for the EU institutions, which is not dependent on any request for action. The EU regularly adopts numerous environment-related plans and programmes. The 2019 European Green Deal79 alone – which is itself an environment-related programme, as it groups a number of activities which are to be realised in order to promote, within a determined timeframe, two common objectives (the fight against climate change and the protection of the environment) – enumerated 12 environmentrelated plans or programmes in its annex. Most of them had been presented already in 2020 by the Commission.80 Looking at such a wealth of environment-related plans and programmes, it must, however, be doubted that environmental organisations will be easily capable of actively participating in the elaboration of all of them. It must not be forgotten that those NGOs work altruistically, have no financially powerful members, sponsors or other supporters, are in continuous need of financial and human resources and often do not have the necessary technical, linguistic and economic means to play a constructive role. However, the taking of measures under Article 9(2) of Regulation 1367/2006 and the active participation of environmental groups, persons and NGOs are also steps to create a European public opinion and approach the objective of Article 1 TEU that decision-making in the EU shall be as open as possible and as closely as possible to the citizen.

B. Improving Participation in GMO-Related Decisions In 2005, the Aarhus Convention was amended; provisions on public participation in the decision-making procedure for genetically modified organisms (GMO) were inserted in a new Article 6 bis. These provisions provided in particular that there should be early and effective public participation and that the public should receive a summary of the

79 Commission, ‘The European Green Deal’ COM (2019) 640 final. 80 Commission, ‘Climate pact’ COM (2020) 788 final; Commission, ‘New EU Strategy on Adaptation to Climate Change’ COM (2020) 301 final; Commission, ‘Strategy for Smart Sector Integration’ COM (2020) 299 final; Commission, ‘Strategy on Offshore Wind’ COM (2020) 741 final; Commission, ‘Circular economy Action Plan’ COM (2020) 98 final; Commission, ‘Strategy for Sustainable and Smart Mobility’ COM (2020) 789 final; Commission, ‘Farm to Fork Strategy’ COM (2020) 381 final; Commission, ‘Biodiversity Strategy’ COM (2020) 380 final; Commission, ‘Chemicals Strategy for Sustainability’ COM (2020) 667 final; Commission, ‘Renewed Sustainable Finance Strategy’ COM (2020) 575 final; Commission, ‘Proposal for an 8th Environmental Action Programme’ COM (2020) 652 final.

Art 47 and Effective Judicial Protection in Environmental Matters 211 application. The authorities should take due account of any comments submitted and publish, once a decision on the application was taken, the reasons and considerations which had led to the decision. The EU approved the amendment without amending its existing legislation. According to EU law, the public receives a summary of any application which is made and may comment on it to the Commission within 30 days, for GMO food or feed, following the European Food Safety Authorities (EFSA) opinion on the application.81 No provision requires the Commission to take account of the opinions of the public and give reasons and considerations for its decision. It would be easy to align EU legislation to Article 6 bis of the Aarhus Convention and formulate the EU provisions in a way that participants in the procedure of authorising the GMO were classified as ‘negotiators’ in the sense of the case law of the CJEU, so that court action against the authorisation under Article 263(4) TFEU became possible.

C. Accepting Environmental NGOs as ‘Negotiators’ The third way in which the EU provisions could be aligned in order to satisfy the Aarhus Convention (Compliance Committee) as well as Article 47 of the Charter would be to draft the provisions on the internal review procedure – Articles 10 and 11 of Regulation 1367/2006 – in a way that those persons who participate in that internal review procedure are, at the same time, classified as being persons who are directly and individually affected by the measure. Such an approach would allow to differentiate between the ‘public’ and the ‘public concerned’ and deal with the apprehension that too many court actions would be initiated by environmental NGOs. The CJEU itself had paved this way, by indicating that it was possible to consider, under certain conditions, an association as ‘negotiator’ in the elaboration of an EU act. The three measures together would allow the improvement of access to the European courts, without requesting a change in the CJEU interpretation of Article 263(4) TFEU, but would probably also satisfy the Compliance Committee of the Aarhus Convention.

V. Conclusion Effective judicial protection in the environmental sector became a problem for the CJEU before Article 47 of the Charter was fully operational, as the Aarhus Convention too, approved by the EU in 2005, requested such an effective judicial protection. Nevertheless, Article 47 undoubtedly gave a boost to national and European courts to attach greater importance to this requirement in environmental cases. The CJEU is very attentive to the question of whether national enforcement of EU environmental law provides for effective remedies, and is rather favourable to a broad

81 Dir 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Dir 90/220/EEC [2001] OJ L106/1, Art 6(7).

212 Ludwig Krämer interpretation of this requirement in favour of the environment, also – in the most recent case law – by relying on Article 47 of the Charter. The CJEU is more restrictive as regards access to the European courts, since it sticks, regarding the admissibility provisions of the present Article 263(4) TFEU, to its 1963 interpretation of said provisions, despite all the economic, political, legal, ecological and social changes which have in the meantime taken place. The Aarhus Convention Compliance Committee argued in 2017 that EU environmental law and practice was not in compliance with the provisions on access to justice of the Convention; the EU contested this. The divergence of views will be further discussed in years to come. The present contribution argues that the efforts of the Commission to eliminate the divergence by amending Regulation 1367/2006 are not sufficient, and makes some proposals as to how to reconcile the Aarhus Convention and the case law of the CJEU. The separation of powers makes it impossible to impose on the EU Court of Justice another interpretation of Article 263(4) TFEU. However, its past interpretation of this provision, together with an interpretation of Article 47 of the Charter and legislative efforts of the EU institutions, makes it possible to find solutions which reconcile EU law with the Aarhus Convention and ensure an adequate and effective judicial protection in environmental matters – provided that all sides have the political will to reach such a solution.

12 Article 47 of the EU Charter of Fundamental Rights in the Field of Public Procurement: Time to Take the Charter Seriously? ROBERTO CARANTA*

Back in 1989, EU secondary law introduced remedies for breaches of public procurement rules. The first public procurement remedies directive was supplemented in 1992, strengthened in 2006 and finally fine-tuned to the 2014 (substantive) public procurement and concessions directives. This has led to a case law much focused on the text and words of the Remedies directives. More recently, national courts have tried enlisting Article 47 of the Charter in a series of preliminary references aimed at reinforcing the remedies available to those interested in being awarded a public contract. Those attempts have met with a lukewarm reception from the Court of Justice of the EU. While a few years ago the Commission opined that the remedies directives do not deserve far-reaching reforms, in a more recent Communication it indicated the intention to propose a Recommendation on review systems. The present chapter lists and analyses the gaps and shortcomings in the procurement remedies directives which include the grounds on which procurement decisions may be challenged and the heads of damages that may be recovered.The chapter will further indicate how Article 47 may – and should – be used to strengthen the legal protection of competitors and further advance the relevance of EU public procurement rules as a model for EU rights protection. Finally, the chapter examines the question as to whether legal protection in public procurement cases should be extended beyond those interested in being awarded public contracts to include civil society organisations interested in the integrity and efficiency of the market and whether Article 47 may vouchsafe that extension.

* Roberto Caranta is Professor of Admininstrative Law at the University of Turin.

214 Roberto Caranta Directive 89/665 and subsequent reforms to it have been based on an awareness that Community legislation would become worthless without review mechanisms which, as well as being harmonised, are effective and ensure compliance with the applicable rules. Those mechanisms have the purpose not only of protecting tenderers’ rights, but also of improving the entire system of public procurement, whose economic importance for the internal market cannot be overemphasised. Advocate General Campos Sánchez-Bordona1

I. Introduction Remedies for breaches of procurement rules were the object of an early codification in (then) EEC law already in 1989.2 Enforceable rights given to economic operators – the Mobilisierung des Einzelnen – were a necessary tool to open up national public contracts markets to EU-wide competition.3 For its own peculiar reasons, the then EEC ended up following the French approach to public procurement regulation as a set of rules enforceable in front of the (administrative) courts.4 The rather basic remedial rules enacted in 19895 soon had their scope of application widened in 1992.6 In 2007 they were supplemented by additional remedies which were regulated in their finer details.7 Still, as will be shown below, the new provisions came short of strengthening the ‘older’ remedies leaving what are arguably big gaps in the judicial protection remedies in public contracts. The existence of remedies spelt out in EU secondary law a number of decades ago has led to a line of case law that is much focused on the text and words of the Remedies Directives themselves. In public procurement cases, Article 47 is relevant mostly as it enshrines the right to an effective remedy. As such, Article 47(1) should act as both an aid in interpreting the Remedies Directives and to fill the gaps in the system of judicial protection designed by them. The further rules in Article 47(2) and (3) have limited impact on this area of economic litigation. Those provisions address issues that have already been taken care of in older case law which is simply based on secondary law. That was enough for the Court of Justice to strike out provisions limiting – in a few Member States – access to justice or making it conditional on the prior exhaustion of 1 Case C-171/15 Connexxion Taxi Services EU:C:2016:506, Opinion of AG Sánchez-Bordona, para 66. 2 See also A Sánchez Graells, ‘If Ain’t Broke, Don’t Fix it: EU Requirements of Administrative Oversight and Judicial Protection for Public Contracts’ in L Folliot-Lalliot and S Torricelli (eds), Contrôles et Contentieux des Contrats Publics: Oversight and Challenges of Public Contracts (Bruylant, 2018). 3 See especially F Wollenschläger, ‘Deutschland’ in U Neergaard, C Jackson and GS Ølykke (eds), Public Procurement Law: Limitations, Opportunities and Paradoxes. The XXVI FIDE Congress in Copenhagen (Congress Publications, 2014) 390; see the aims of the EU rules clearly outlined by A Tokar, ’Institutional Report – The context’ in U Neergaard, C Jackson and GS Ølykke (eds), Public Procurement Law: Limitations, Opportunities and Paradoxes. The XXVI FIDE Congress in Copenhagen (Congress Publications, 2014) 208. 4 See A Merle-Beral and I Tantardini, ‘France’ in Neergaard, Jackson and Ølykke (n 3). 5 Council Dir 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [1989] OJ L395/33. 6 Dir 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Dir 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts [2007] OJ L335/31. 7 ibid.

Art 47 in the Field of Public Procurement 215 administrative remedies.8 In any case, in most Member States procurement litigation falls under the jurisdiction of experienced administrative courts and/or of ad hoc independent review boards. Still, national courts have tried enlisting Article 47 of the EU Charter of Fundamental Rights in a series of preliminary references aimed at reinforcing the remedies available through a principles-based approach. Those attempts however met a lukewarm reception from the Court of Justice, which has preferred to stick to the text of the directives and has insisted strongly on the (residual) procedural autonomy of the Member States. Article 47 has instead played a (limited) role in litigation on the procurements by EU institutions and bodies to which the Remedies Directives are not applicable.9 This chapter illustrates how the system of judicial protection of those interested in being awarded procurement contracts has some egregious shortcomings which could – but have not – been compensated for by relying on Article 47. To do so, it will first outline the remedies foreseen in EU secondary law (section II) and highlight their main shortcomings (section III). It will then analyse case law, specifically focusing on Article 47(4). How Article 47 of the EU Charter of Fundamental Rights may – and should – be used to strengthen legal protection of competitors and further advance the relevance of EU public procurement rules as a model for EU rights protection will be discussed in the conclusions (section V).

II. The Codification of Procurement Remedies The recitals in Directive 89/665/EEC indicated that ‘existing arrangements at both national and Community levels for ensuring their application are not always adequate to ensure compliance with the relevant Community provisions particularly at a stage when infringements can be corrected’. Remedies were thus needed: ‘effective and rapid remedies must be available in the case of infringements of Community law in the field of public procurement or national rules implementing that law’. The provisions in the older Remedies Directives were – and are – quite basic. Article 1 of Directive 89/665/EC lays down the principle that it must be possible to review decisions taken by the contracting authorities ‘effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the [directive] on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law’. Article 1(3) provides for a rather generous standing to challenge procurement decisions. Specifically as regards the available remedies, Article 2 lists three traditional administrative law remedies: interim measures, annulment and damages. Article 2(1)(a) provides that the domestic review bodies must be given the power to take ‘interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned’.10 8 See especially Case C-81/98 Alcatel Austria and Others EU:C:1999:534; See also R Caranta, ‘The interplay between EU legislation and effectiveness, effective judicial protection and the right to an effective remedy in EU public procurement law’ (2019) 12 Review of European Administrative Law 63, 72. 9 Case C-35/15 P(R) Vanbreda EU:C:2015:275, para 26. 10 See also Case C-771/19 NAMA and Others EU:C:2021:232, concerning the corresponding provisions in Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [1992] OJ L76/14.

216 Roberto Caranta According to Article 2(1)(b), the competent review body must be empowered to set aside any unlawful decision, including because it is tainted by discrimination. The second sentence of Article 2(6) allows the Member States to provide that, after the conclusion of a procurement contract, the powers of the competent review body are ‘limited to awarding damages to any person harmed by an infringement except where a decision must be set aside prior to the award of damages’. Finally, a remedy in damages is foreseen by Article 2(1)(c), but annulment may be made a condition preceding damages actions under domestic law. Under the first phrase of Article 2(6) the Member States were further tasked with determining the effects of the exercise of the review powers on an already concluded contract. Directive 92/13/EEC was enacted soon afterwards, introducing remedies in the utilities sectors very much in line with those foreseen in the older directive.11 The older Remedies Directives reproduced the characteristic remedies of civil law jurisdictions like France and those other countries that followed the French model. This model is centred on the idea that competitors should be provided with a right of action and effective remedies to help with the enforcement of public contract rules.12 The older Remedies Directives were both later amended by Directive 2007/66/EC. Directive 2007/66/EC kept mostly unaltered the older remedies, adding new and coordinated tools to fight against the rush to conclude the contract to short-circuit the EU system of legal protection. More in detail, a standstill period between contract award and contract signature was introduced. An automatic suspension was provided in the case of an economic operator bringing a challenge during the standstill period. Minimum deadline periods were defined to allow economic operators to seek redress. Furthermore, the sanction of ineffectiveness was foreseen for the most egregious breaches of EU public procurement law, such as direct awards or violation of the standstill. Finally, Articles 46 and 47 of Directive 2014/23/EU amended both Directive 89/665/EEC and Directive 92/13/EEC (as already amended by Directive 2007/66/EC), by changing the references to the 2004 directives into references to the 2014 ones. The applicability of the remedies directives to (most) service concessions has also been specified.

III. Gaps and Shortcomings in the Procurement Remedies Directives While the present public procurement remedies system is undoubtedly one of the most advanced within EU secondary law measures of a procedural nature, arguably the directives are rather shallow concerning two of the most central remedies in most judicial review systems, namely annulment and damages. Following the French model, judicial review of administrative action, including procurement, is (a) limited to a review of legality and (b) focused on formalised decisions. Both aspects were clearly crystalised already in Article 1(1) of Directive 89/665/EEC. 11 See eg Case C-391/15 Marina del Mediterráneo and Others EU:C:2017:268, Opinion of AG Bobek, para 24. 12 R Caranta, ‘General Report’, in Neergaard, Jackson and Ølykke (n 3) 80.

Art 47 in the Field of Public Procurement 217 In public procurement the notion of ‘reviewable decision’ does not raise concerns from an effective judicial protection point of view. Legality review is instead much more problematic. Legality is linked to the rule of law, which is listed on Article 2 TEU among the common values of the EU. The gist of the idea of legality is also reasonably straightforward. ‘All legal systems require the administration to be able to point to some ground of lawful authority on which it can base its action’.13 For instance, Article 263(1) TFEU expressly indicates that ‘The Court of Justice of the European Union shall review the legality of legislative acts […]’. The same principle of effective judicial protection is linked to the rule of law.14 Legality is the technical tool through which the rule of law is upheld. As usual the devil is in the details and reveals himself and his misdeeds in the practice of judicial review. Here the problem lies in the indeterminacy of the concept of legality. This is most evident in the fact that, while most jurisdictions limit the courts’ review of administrative decisions to question of legality, they then variously describe the boundary referring to mostly indeterminate concepts such as rationality, opportunity, merits, policy and similar.15 Inevitably, choices concerning what is the proper scope of legality review varies greatly from country to country and often within the same country. It is not unusual for the standard to vary according to the subject matter or because, for instance, fundamental rights are at stake. This is especially, but not only, the case concerning the review of discretion or complex factual assessments. Indeed, the modern ‘service’ State requires lawmakers to leave enough room for the administration to take decisions fitted to the circumstances of each case.16 Faced with this inescapable leeway, the different jurisdictions could be plotted along a scale ranging from, on the one side, the most hands-off deference paid to the ‘discretion’ of the decision-maker to, on the other, very thorough and almost de novo review systems.17 But, as will soon become apparent, discretion is not the only area where divergence appears. The standard of legality review preferred in any jurisdiction has a direct impact on the availability of the annulment remedy. It also has an impact on the remedy in damages, even if the latter raises additional issues.

A. Annulment In no more than a handful of cases has the Court of Justice tackled the question of which breaches of EU law could lead to the annulment of the procurement decision.

13 P Craig, ‘Legality: Six Views of the Cathedral’ in P Cane et al, The Oxford Handbook of Comparative Administrative Law (Oxford University Press, 2020) 884. 14 R Widdershoven, ‘National Procedural Autonomy and General EU Law Limits’ (2019) 12 Review of European Administrative Law 5, 17; M Bonelli, ‘Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature’ (2019) 12 Review of European Administrative Law 35. 15 See Craig (n 13). 16 This is so evident we tend to forget it, but it was very clear to the writers in the first half of the 20th century; See FM Marx, ‘Comparative Administrative Law: A Note on Review of Discretion’ (1939) 87 University of Pennsylvania Law Review 954, 973. 17 R Caranta, ‘On Discretion’ in S Prechal and B van Roermund (eds), The Coherence of EU Law. The Search for Unity in Divergent Concepts (Oxford University Press, 2008) 185.

218 Roberto Caranta Hi is an old case concerning the review of a decision to withdraw a call for tenders.18 The referring court asked whether review might be limited to a mere examination of whether that decision was arbitrary. The Court of Justice held that ‘the scope of the judicial review to be exercised in the context of the review procedures referred to therein cannot be interpreted restrictively’,19 so that it cannot be limited to a ‘mere examination’ of whether the challenged decision was arbitrary.20 Hi was followed by Croce Amica.21 In this case the procedure was cancelled after three out of four tenderers had been excluded and the best – and only one left – tender had already been chosen. In the meantime, a criminal case had been launched against the senior management of the winning tenderer, who were accused of providing false declarations in that award procedure. The referring court asked whether, as a matter of EU law, the review could have covered ‘the reliability and the suitability of the tender, and thus going above and beyond the limited cases of clear absurdity, irrationality, failure to state adequate reasons or error as to the facts’. The question was couched rather ambiguously – to put it mildly – basically asking whether a domestic review system allowing intense – but not de novo – scrutiny of the procurement decision was compatible with EU law. While the Italian original was using ‘pienamente’ which, under Italian administrative law, simply denotes non-peripheral judicial review, a most unfortunate French translation had the question referring to the possibility ‘de substituer sa propre appréciation à l’évaluation du pouvoir adjudicateur concernant l’opportunité de procéder au retrait de l’appel d’offres’.22 An equally unfortunate rephrasing of the question by the Court of Justice made the question read as follows: ‘whether, under EU law, the competent national court may conduct a review of a decision of a contracting authority in the exercise of its unlimited jurisdiction, that is, a review enabling it to take account of the reliability and suitability of the tenderers’ bids and to substitute its own assessment for the contracting authority’s evaluation as to the expediency of withdrawing the invitation to tender’.23 On that mistaken basis, the Court of Justice was totally reasonable in (a) following Hi in holding that ‘review of legality cannot be confined to an examination of whether the decisions of contracting authorities are arbitrary’,24 and (b) in concluding that ‘the national legislature may grant the competent national courts and tribunals more extensive powers for the purpose of reviewing whether a measure was expedient’.25 On the face of it, Croce Amica did not really advance the case law on the proper standard of review. What we know is that, after Hi, a very marginal review is not acceptable.26 A potentially relevant case on the standard of judicial review is Rudigier, which was decided without hearing the opinion of the Advocate General.27 The substantive law 18 Case C-92/00 HI EU:C:2002:379. 19 ibid, para 61. 20 ibid, para 63. 21 Case C-440/13 Croce Amica One Italia EU:C:2014:2435. 22 Most probably the misunderstanding started with the French version, which used ‘contrôle de pleine juridiction’. 23 Croce Amica One Italia (n 21), para 38 (‘il giudice nazionale competente possa esercitare sui provvedimenti adottati da un’amministrazione aggiudicatrice un controllo esteso al merito’). The ‘merito’ or merits is a no-go area for Italian administrative courts in procurement and in most cases; in the English version too the rephrased question refers to ‘unlimited review’. 24 ibid, para 43. 25 ibid, para 45. 26 HI was discussed outside procurement cases in C-723/17 Craeynest and Others EU:C:2019:533, para 46. 27 Case C-518/17 Rudigier EU:C:2018:757.

Art 47 in the Field of Public Procurement 219 question was whether an open procedure for the supply of bus passenger transport services had to be preceded by the publication of a prior information notice (PIN) referred to in Article 7(2) of Regulation No 1370/2007. If this was so, then the referring court was uncertain whether failure to comply with Article 7(2) would entail the unlawfulness of a call for tenders in circumstances in which the contracting authority has otherwise complied with all the requirements of the directive. The referring court observed that under Austrian law the decision of the contracting authority must be annulled only if the unlawfulness has substantial influence on the outcome of the procurement procedure. It also thought that national legislation was consistent with EU law, insofar as it did not make it impossible to exercise a right derived from EU law nor did it infringe the principle of equivalence, and this even more so because, on the facts of that case, the applicant had been aware anyway for a long time of the forthcoming call for tenders. The referring court was trying to find out whether a procedural breach could be condoned. This goes very much to the heart of the rules and practices concerning the judicial review of administrative action.28 The review being confined to legality, procedures and forms become paramount.29 Most substantive procurement rules at both EU and national levels are actually procedural in nature, in that they give contracting authorities directions on how to buy rather than on what to buy. The ‘substantive’ procurement directives do not simply concern remedies, but procedures as well, more specifically administrative procedures. The starting point for the Court of Justice in Rudigier was that ‘EU legislation on the award of public contracts does not lay down a general rule that the unlawfulness of an act or omission at a given stage of the procedure renders unlawful all subsequent acts in that procedure and justifies their annulment. Only in specific well-defined situations does that legislation provide for such a consequence’.30 This would be proven by the fact that the Remedies Directives provide a closed list of hypotheses in which ‘contracts must be considered ineffective if they are vitiated by the cases of unlawfulness listed in those provisions’31 and a failure to publish a PIN is not among those hypotheses.32 While the latter is true, for the rest, the Court is confusing ineffectiveness with unlawfulness. As already recalled, the former remedy was introduced by Directive 2007/66/EC to be used against the most egregious breaches of EU public procurement law such as direct awards. As such, it was intended as an exceptional remedy. Annulment is an old remedy foreseen in Directives 89/665/EEC and 92/13/EEC as a general remedy for all breaches au par with interim relief and damages. Having blundered in its approach, the Court went from bad to worse by holding that the mirage lacuna had to be filled by the Member States complying with the principles of equivalence and effectiveness.33 eVigilo focused on the question of who – the applicant or the contracting authority – shoulders the burden to prove that a decision was or was not illegal.34 eVigilo challenged 28 See especially Case C-72/12 Gemeinde Altrip and Others EU:C:2013:712. 29 See, eg the analysis by M Eliantonio, ‘The relationship between EU secondary rules and the principles of effectiveness and effective judicial protection in environmental matters: towards a new dawn for the ‘language of rights’ ?’ (2019) 12 Review of European Administrative Law 95. 30 Gemeinde Altrip and Others (n 28), para 57. 31 ibid, para 58. 32 ibid, para 59. 33 ibid, para 61; See for further discussion Caranta (n 8) 86. 34 Case C-538/13 eVigilo EU:C:2015:166.

220 Roberto Caranta an award decision and claimed that the specialists referred to as part of the project team in the tender submitted by the successful tenderers were colleagues, at the Technical University of Kaunas, of three of the six experts the contracting authority had commissioned to both draw up the tender documents and to evaluate the tenders. The Court of Justice squarely placed the burden to investigate the existence of such a conflict of interest on the contracting authority, thus significantly lessening the burden of proof of the applicant who is simply asked to present some ‘objective evidence calling into question the impartiality’ of the experts relied upon by the contracting authority.35 It is indeed for the contracting authorities ‘to determine whether any conflicts of interests exist and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. It would be incompatible with that active role for the applicant to bear the burden of proving, in the context of the appeal proceedings, that the experts appointed by the contracting authority were in fact biased. Such an outcome would also be contrary to the principle of effectiveness and the requirement of an effective remedy laid down in the third subparagraph of Article 1(1) of Directive 89/665, in light, in particular, of the fact that a tenderer is not, in general, in a position to have access to information and evidence allowing him to prove such bias’.36 This approach is very much in line with continental administrative law traditions giving considerable inquisitorial powers to the courts charged with reviewing the legality of administrative action. These powers are consistent with the place the courts – usually, administrative courts – occupy as a last-instance venue for redress following an articulated administrative procedure and possibly administrative appeals throughout which an official file has been put together, reflecting the knowledge and the appreciation of the relevant fact by the decision-maker.37 Still even eVigilo does not go anywhere near the issue of what standard of review has to be employed by national courts in assessing whether or not EU public procurement law has been infringed. Coming somewhere near to the heart of the question of the appropriate standard of review, the Court of Justice had to consider how to balance the disclosure of documents necessary to challenge procurement decisions against commercial secrecy. While in Varec38 the Court was at least aware of the need, in Secolux39 the General Court clearly sided with secrecy, making judicial protection near to impossible.40 While the Remedies Directives were not applicable in the last case mentioned, clearly the same directives do not provide any – or at least sufficient – guidance concerning this crucial aspect and the linked issues of the extension of the duty to give reasons.41 If any help might have come from Article 47 of the EU Charter of Fundamental Rights, it was not sought.42 35 ibid, para 44. 36 eVigilo (n 34), para 43. 37 As Marx (n 16) 127 indicated, recalling his experience in representing his department in front of the administrative courts, those judges ‘knew their business’. 38 Case C-450/06 Varec SA v État belge EU:C:2008:91 39 Case T-363/14 Secolux v Commission EU:T:2016:521. 40 KM Halonen et al (eds), Transparency in EU Procurement (Edward Elgar Publishing, 2019). 41 See, eg deducing a duty to give reasons from Art 2(9) of Dir 89/665/EEC in connection with Art 55 of Dir 2014/24/EU. See also Sánchez-Graells (n 2) 511. 42 The issue is resurfacing in Case C-927/19 Lietuvos Aukščiausiasis Teismas (Lithuania) EU:C:2021:700 Art 47 was not invoked either by the referring court nor by the AG.

Art 47 in the Field of Public Procurement 221 Finally, a missed opportunity to set the appropriate standard for judicial review in procurement cases presented itself in Connexxion Taxi Services.43 This case concerned the non-application of a tender exclusion clause linked to the fact that the tenderer or any of its managers had been guilty of grave professional misconduct. The contracting authority had found the application of the clause to the best tenderer to be disproportionate. The referring court wondered whether an exclusion clause in the notice might impede a successive proportionality assessment and if not whether EU law was complied with when the national courts ‘merely carry out a (“marginal”) review as to whether the contracting authority could reasonably have come to the decision not to exclude a tenderer notwithstanding the fact that that tenderer has been guilty of grave professional misconduct’.44 Clearly the question went to the core of the issue of the appropriate standard for judicial review. However, the Court of Justice did not go into that question. It held that proportionality should be applied in finding whether any professional misconduct was grave or not,45 but because of the principle of equal treatment, in the presence of a clear and unambiguous exclusion clause, once misconduct is established exclusion must follow.46 Looking back to the cases analysed in this sub-section, we are overcome by a sense of despair: few cases, a number of them wrongly decided. The only clear indication, given by the Court of Justice almost 20 years ago, being that marginal review, limited to a ‘mere examination’ of whether the challenged decision was arbitrary, is inconsistent with EU law. The limited number of cases concerning essential aspects of the judicial review system itself calls for some explanation. It is as though the national courts in all the Member States were content that the grounds for annulment as provided in their jurisdictions fully satisfy the requirements of effective judicial protection as descending from both the corresponding general principle of EU law and from Article 47 of EU Charter. For instance, Italian administrative courts consistently hold that the decisions of contracting authorities on whether a given tender is or is not abnormally low may be reviewed only if ‘macroscopically illegal’,47 that is based on grave and blatant factual mistakes or errors in the assessment.48 This is because, according the same courts, the contracting authority enjoys wide ‘technical’ discretion in taking decisions on abnormally low tenders.49 This approach is keeping with a rather self-restrained standard of review generally used by Italian administrative courts with reference to any fairly complex factual assessment committed to the administration by the applicable rules. But in France too the review of decisions concerning abnormally low offers is limited to gross mistakes (erreur manifeste d’appréciation).50 43 Case C-171/15 Connexxion Taxi Services EU:C:2016:948. 44 ibid, para 26. 45 ibid, para 31. 46 ibid, para 39; See also C-171/15 Connexxion Taxi Services EU:C:2016:506, Opinion of AG Campos Sánchez Bordona. 47 See, eg Council of State Sect. V, 26/08/2020, n. 5215. 48 See, eg Council of State Sect. IV, 07/08/2020, n. 4973; Council of State Sect, III, 20/05/2020, n. 3207; Council of State Sect. V, 12/03/2020, n. 1772. 49 See, eg Council of State Sect. IV, 07/08/2020, n. 4973. 50 See, eg CE 1er mars 2012, n° 354159, Département de la Corse du Sud, BJCP 2012, n°82, p. 177, concl. Dacosta; CE 4 mai 2016, n° 396590, ADILE de Vendée AJDA 2016; See also F Lichère, ‘Examen des offres en marché public’ in L Richer (ed), Encyclopédie du droit de la commande publique (EFE éditions, 2020) 20.

222 Roberto Caranta While the convergence is by itself interesting from a comparative law point of view, it is clear that both the Italian and the French courts apply to public procurement cases the very restrained review standards developed within their respective jurisdictions, without any further thoughts being given to whether these standards are in line with the requirements of EU law, including those that might derive from Article 47 of the EU Charter of Fundamental Rights. At the same time, as discussed below, in public procurement matters, the same Court of Justice does not give much weight to Article 47 even when the referring courts have relied on it. The Court of Justice of the European Union is instead basing its reasoning on the principles of effet utile and effective judicial protection and – more and more so lately – on the notion of national procedural autonomy.51

B. Damages A more or less restrained approach to the legality review has a direct impact on damages. Illegality – ‘breach’ – being one of the preconditions for liability, a hands-off review will directly translate in an unsuccessful damages claim. The scant provisions in the Remedies Directives have an impact on the availability – or the lack thereof – of remedies in damages under other aspects. More specifically, those directives are silent on whether in public procurement cases the ‘breach’ has to be qualified as ‘grave’ or ‘manifest and serious’ as indicated in the well-known Brasserie du Pêcheur case. The two judgments of the EFTA Court in Fosen-Linjen52 laid bare the uncertainties surrounding the law of procurement damages in the EU.53 The case law was muddled even before Fosen-Linjen. A first case originated from an infringement procedure brought against Portugal.54 The national legislature made damages conditional upon proof of the fault of the public authority, including the contracting authorities. The judgment, which is not available in English, is the most terse. Without referring to the case law on manifest and serious breach, it simply declared that conditioning the liability on the proof of fault did not amount to ‘adequate’ judicial protection.55 In 2010, two cases were decided based on conflicting approaches only a few months apart. In Strabag,56 while conceding that the implementation of Article 2(1)(c) of Directive 89/665/EEC comes, in principle, under the procedural autonomy of the Member States, the Court of Justice noted that Directive 89/665/EEC allows for circumstances in which the contract is concluded and possibly implemented before the legality or otherwise of the award procedure has been definitively assessed, so that annulment 51 See more extensively Caranta (n 8). 52 Case E-16/16 Fosen-Linjen AS v AtB AS OJ C186; See also Case E-7/18 Næringslivets Hovedorganisasjon (NHO) v AtB AS OJ C107. 53 See, eg, R Caranta et al, ‘Special Issue on the Legal Remedies and Implications from the Fosen-Linjen Case’ (2019) 14 European Procurement and Public Private Partnership Law Review 214. 54 Case C-275/03 Commission v Portugal EU:C:2004:632; See also Case C-70/06 Commission v Portugal EU:C:2008:3. 55 Commission v Portugal (n 54), para 31. 56 Case C-314/09 Strabag EU:C:2010:567.

Art 47 in the Field of Public Procurement 223 is no longer possible or does not satisfy the claimant.57 In these circumstances damages can constitute ‘a procedural alternative which is compatible with the principle of effectiveness underlying the objective pursued by that directive of ensuring effective review procedures […] only where the possibility of damages being awarded in the event of infringement of the public procurement rules is no more dependent than the other legal remedies provided for in Article 2(1) of Directive 89/665 on a finding that the contracting authority is at fault’.58 Against this background, it makes little difference that, by contrast with the Portuguese case, Austrian legislation required the contracting authority to rebut the presumption that it was at fault, while also limiting the grounds on which it could rely for that purpose.59 Still the tenderer harmed by an unlawful decision of a contracting authority may be deprived of the right to damages. This might indeed have been the case for Strabag, given that the mistake of the municipality had originally been upheld in the courts.60 Spijker was the second 2010 case. The Court judged that Article 2(1)(c) gives ‘concrete expression to the principle of State liability for loss and damage caused to individuals as a result of breaches of EU law’. On this assumption, ‘individuals harmed have a right to reparation where three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals’.61 Basically, while acknowledging that the Remedies Directives provide very limited indications as to the requirements for successful damages actions, the Court of Justice was unable to agree with itself on which conditions might then be deduced from the general principles of EU law. In Fosen-Linjen the question raised in front of the EFTA Court was whether a manifest and serious breach was required to establish liability. The Court held that Directive 89/665/EEC must ‘be interpreted in the light of fundamental rights, in particular the right to an effective judicial remedy’.62 Referring to (old) Article 2(6), the Court stressed that damages are a procedural alternative to other remedies, and therefore should not be subject to additional conditions.63 Strabag was referred to and, together with the Portuguese case, provided the basis to hold that requiring a manifest and serious breach such as fault would in any case limit the liability.64 The Supreme Court of Norway, to which the case was next brought, was unsure whether the first EFTA Court judgment had also covered the criteria for liability for the ‘positive contract interest’ and seized the EFTA Court again. In particular, the referring court considered that ambiguity remained in relation to the understanding of the EFTA Court of the level of harmonisation under Article 2(1) of Directive 89/ 665/EEC. Focusing on loss of profit, this time the EFTA Court recalled that Article 2 57 ibid, para 37. 58 ibid, para 39. 59 ibid, para 40. 60 ibid, para 41. 61 ibid, para 87; Francovich and Brasserie du Pêcheur are duly referred to along with Case C-445/06 Danske Slagterier EU:C:2009:178, paras 19 and 20. 62 Fosen-Linjen AS v AtB AS (n 52), para 72. 63 ibid, para 75. 64 ibid, para 77.

224 Roberto Caranta must be considered ‘an instrument of minimum harmonisation’.65 The discretion left to the Member States, however, finds a limit in the principles of equivalence and effectiveness.66 On this basis, and reasoning on the lines of Brasserie du Pêcheur, the EFTA Court finally held that ‘a sufficiently serious breach as a minimum standard is considered sufficient for the purposes of safeguarding the rights of individuals’.67 Once more, as with annulment, we are faced with a very limited number of preliminary references dealing with what are essential questions for liability actions. The reason is most probably the same: solipsism. National courts are satisfied with using their domestic, more or less restrictive, doctrines to decide on damages for breaches of public procurement.68 What is worse is that at least a few pointed questions were raised concerning damages. But the answers from both the Court of Justice and the EFTA Court were, to put it mildly, elusive if not puzzling.

IV. Article 47 and Procurement Remedies Like all secondary EU law, the Remedies Directives must be interpreted in the light of Article 47 of the EU Charter.69 The standards deriving from Article 47 could constitute the base from which some flesh could be added to the skeletal provision in the old Procurement Remedies Directives. To test this hypothesis, it seems expedient to look into the public procurement case law in which Article 47 was called into action. To this end, the fact that EU secondary law remedial rules have been in place for decades must always be kept in mind. This means that Article 47 is seldom considered alone in the field of public procurement. More often than not, it concurs with other provisions or it is used to reinforce conclusions reached based on other provisions.70 Most of the time, Article 47 does not really change the result of the effective judicial protection equation. The (first) Hochtief case provides a good instance for this.71 According to the Court of Justice, ‘EU law, and in particular Article 1(1) and (3) of Directive 89/665, read in the light of Article 47 of the Charter, must be interpreted as meaning that, in the context of an action for damages, it does not preclude a national procedural rule, such as that at issue in the main proceedings, which restricts the judicial review of arbitral decisions issued by an arbitration committee responsible at first instance for the review of decisions taken by contracting authorities in public procurement procedures to examine only the pleas raised before that committee’.72 Another good instance comes from the case law on court fees to bring procurement and concession cases. In Orizzonte Salute the referring court asked the Court 65 Case E-7/18 Næringslivets Hovedorganisasjon (NHO) v AtB AS OJ C107, para 109. 66 ibid, para 114. 67 ibid, para 120. 68 See the contributions collected by G Della Cananea and R Caranta (eds), Tort Liability of Public Authorities in European Laws (Oxford University Press, 2020). 69 Case C-61/14 Orizzonte Salute EU:C:2015:655, para 49; See also Sánchez-Graells (n 2) 503. 70 Orizzonte Salute (n 69), para 63. 71 Case C-300/17 Hochtief EU:C:2018:635. 72 ibid, para 58.

Art 47 in the Field of Public Procurement 225 whether recent Italian provisions which had considerably raised court fees specifically for procurement cases were in line with the principles derived from the Remedies Directives.73 The Court of Justice stated that the principle of effectiveness ‘implies a requirement of judicial protection, guaranteed by Article 47 of the Charter, that is binding on the national court’.74 Therefore, ‘Article 1 of Directive 89/665 must be interpreted in the light of the fundamental rights set out in the Charter, in particular the right to an effective remedy before a court or tribunal, laid down in Article 47 thereof ’.75 The application of this compact of EU rules did not however help the applicant.76 According to the Court, court fees, which do not exceed 2% of the value of the contract concerned, ‘are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU public procurement law’.77 Not even the fact that the standard court fee had also to be paid for cross-claims and supplementary pleas introducing new claims in the course of the same proceeding was considered by itself contrary to ‘Article 1 of Directive 89/665, read in the light of Article 47 of the Charter, or to the principles of equivalence and effectiveness’.78 Article 47 also made a fleeting appearance in a handful of cases arising from the Hungarian public review system empowering the President of the Public Procurement Authority to challenge illegal contract modifications. In Hungeod and Others, two contractors challenged the fines having followed those actions claiming that the breaches were already time-barred under the legislation applicable before the new law that provided such a power and doubled the deadlines to impose sanctions.79 In T-System Magyaroszág the contractor claimed that procurement rules only bound contracting authorities, so that a private contractor could not be fined for their breach.80 The referring courts wondered if the domestic legislation and practices allowing for fines to be imposed with retroactive effects and to be placed on the contractor were in line inter alia with Article 47 of the Charter and with the Remedies Directives. The Court of Justice was fast in dismissing the relevance of Article 47 in both cases. Advocate General Bobek considered that ‘the referring court wonders whether the initiation of a review 7 or 8 years after the commission of the alleged infringements is compatible with the requirement to conduct legal proceedings within a reasonable time’. However, according to the Advocate General, ‘on the facts of the cases at hand, the right to an effective remedy before a tribunal in the sense of Article 47 does not appear to be at issue. The real issue appears to be respect for limitation periods by an administrative authority’. It is submitted that the short shrift given to Article 47 is unconvincing. Whether the arbitration panel might indeed be an administrative body rather than a judicial or quasi-judicial institution should have been demonstrated, but unfortunately

73 Orizzonte Salute (n 69); A similar case is Case C-495/14 Tita and Others EU:C:2016:230, which was disposed with a simple order of the CoJ. 74 Orizzonte Salute (n 69), para 48; See also Case C-169/14 Sánchez Morcillo and Abril García EU:C:2014:2099, para 35. 75 Orizzonte Salute (n 69), para 49; The Court refers to Case C-212/13 Ryneš EU:C:2014:2428, para 29. 76 See, eg A Sánchez-Graells and C De Koninck, Shaping EU Public Procurement Law (Kluwer, 2018) 42. 77 Orizzonte Salute (n 69), para 58. 78 ibid, para 72. 79 Joined Cases C-496/18 and C-497/18 HUNGEOD and Others EU:C:2020:240. 80 Case C-263/19 T-System Magyaroszág EU:C:2020:373.

226 Roberto Caranta was not. The Court of Justice, having recalled that, when designing the details of the domestic review systems, ‘the Member States must not compromise the effectiveness of the rights conferred on individuals by EU law, in particular, the right to an effective remedy and to a fair hearing enshrined in Article 47 of the Charter’,81 was content to state that ‘there is nothing in the documents before the Court to suggest that the procedure initiated by an authority of its own motion for the review of infringements of public procurement rules undermines the right to an effective remedy or the right to a fair hearing’.82 In T-System Magyaroszág too, the reference to Article 47 was obliterated, and the Court of Justice concluded that in itself imposing a fine on a tenderer for the contract could not have ‘the effect of compromising the effectiveness of the right to an effective remedy or to a fair hearing’.83 All in all, Article 47 does not play the role of the game changer in public procurement remedies afforded before national courts.84 Effet utile, the general principle of effective judicial protection as understood in the procurement-specific precedents and, more often than not in the last decade, recourse to the procedural autonomy of the Member States are instead the tools of choice to dispose of preliminary references.85 More generally, it has been argued that the Court of Justice has opted for a ‘peculiar collective understanding’ of the right of access to justice under Article 47 of the Charter focusing more on ‘issues of general design of the system’ than on the effective protection of the economic operators’ rights.86 In doing so, the Court thus walks backwards from more than 20 years ago, effective judicial protection is absorbed in effet utile.87 Article 47 has at times been used in the review of procurement decisions of EU institutions and bodies. The most relevant case is Vanbreda, concerning the procurement of insurance services related to a number of buildings hosting EU institutions and agencies.88 The incumbent, having been ranked second, challenged the procurement decision, demanding its annulment and damages. The award procedure was stayed and the Commission appealed the order of the Presidents of the General Court and then of the Court of Justice. The latter Court recalled that, according to the case law up to that point, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable.89 Recalling that the right to an effective remedy corresponds to a general principle of EU law enshrined in Article 47 of the Charter and being given a specific expression in Directive 89/665/EEC – itself applicable per se only to the procurement of the Member States – the Court held it necessary to somewhat

81 HUNGEOD and Others (n 79) para 64. 82 ibid, para 65. 83 ibid, para 44. 84 See also Case C-439/14 Star Storage EU:C:2016:688. Art 47 takes centre stage here, but the outcome does not enhance judicial protection; See also Case C-19/13 Fastweb (II) EU:C:2014:2194, the Court of Justice excluded any conflict between the rules on voluntary ex ante transparency. 85 For detailed analysis of the case law see Caranta (n 8); See also Case C-171/15 Connexxion Taxi Services EU:C:2016:506, Opinion of AG Campos Sánchez Bordona, para 65. 86 See also Sánchez-Graells and De Koninck (n 75) 42. 87 See U Šadl, ‘The Role of Effet Utile in Preserving the Continuity and Authority of European Union law: Evidence from the Citation web of the Pre-accession case law of the Court of Justice of the EU’ (2015) 8 European Journal of Legal Studies 18, 28. 88 Vanbreda (n 9). 89 ibid, para 24.

Art 47 in the Field of Public Procurement 227 reconsider its case law on the grounds for interim relief.90 Indeed, the general principle of EU law resulting from the right to an effective judicial remedy requires an easing of the urgency requirement in procurement matters, with the effect that serious but not irreparable harm is sufficient where the prima facie case established is particularly serious; this however, only if the application for interim measures was lodged during the standstill period before the contract is concluded.91 Precisely because interim relief is anyway difficult to obtain in procurement cases, the General Court has held that where there is a significant risk that the contract at issue has already been implemented in full before the judgment is handed over, ‘the very lack of acknowledgment by the EU judicature of the loss of such an opportunity and the need to grant compensation in that regard is contrary to the principle of effective judicial protection enshrined in Article 47 of the Charter. In such a situation, the retroactive annulment of an award decision does not provide the unsuccessful tenderer with any advantage, with the result that it is apparent that the loss of opportunity is irremediable’.92

V. Conclusions: Guidance is Badly Needed The preceding analysis has demonstrated that, after more than 30 years since the proceduralisation of procurement remedies started, some essential aspect of the core remedies – annulment and damages – are still uncertain, arguably limiting the effectiveness of the judicial protection of economic operators (Section III). More specifically, the standard itself to be used to review legality is not defined.93 By themselves, the scant provisions in Article 47 of the Charter do not provide an answer to the gaps in the judicial protection system without bold interpretation. Given its ‘constitutional’ status, Article 47 very much resembles Articles 6 and 13 of the ECHR.94 Article 47 of the Charter does not go into the details of what ‘effective’ remedies are.95 Actually it does not even provide a hint as to what a ‘remedy’ is. From this point of view, Article 47 does not add much, if anything, to Article 19(1) TEU and to the pre-existing principle of effective judicial protection.96

90 ibid, para 26. 91 ibid, para 57. That was not the case at hand, so that the dictum is obiter; See also Case C-576/17 P(R) Wall Street Systems UK Ltd EU:C:2018:208; Case T-38/21 R Inivos Ltd EU:T:2021:287. 92 Case T-299/11 European Dynamics Luxembourg EU:T:2015:757, para 145; See also Case T-556/11 European Dynamics Luxembourg SA EU:T:2016:248, para 271. 93 See also for the analysis of the implementation in different Member States S Torricelli, ‘Uniformité et particularisme dans les transpositions nationales du droit européen des procédures de recours’ in Folliot-Lalliot and Torricelli (n 2) 473. 94 See, eg Widdershoven (n 14) 22. 95 A good introduction to the complexity of this question and of its answers may be found in ‘Guide on Art. 13 of the European Convention on Human Rights – Right to an effective remedy’ (European Court of Human Rights, 2020) available at www.echr.coe.int. 96 See, eg A Ward, ‘Remedies under the EU Charter of Fundamental Rights’ in S Douglas-Scott and N Hatzis (eds), Research Handbook on EU Law and Human Rights (Edward Elgar Publishing, 2017) 174; Sánchez-Graells (n 2) 512; See also Widdershoven (n 14) 16 arguing that Art 19(1) TFEU has a wider scope than Art 47 EUCFR.

228 Roberto Caranta Analysing the Court of Justice case law in a number of areas, Rob Widdershoven has come to the conclusion that, ‘In recent years, the ECJ increasingly examines national judicial scrutiny in the light of Article 47. This provision is far more demanding, leaving the national courts hardly any discretion in this regard. Article 47, however, does not require one single standard of scrutiny in all cases, as the precise level of intensity depends on the applicable EU rules in question. In the context of some EU rules, Article 47 demands a rather strict judicial scrutiny, in the context of others, judicial scrutiny has to be restraint’.97 This shows that in other areas of EU law the Court of Justice is ready to use Article 47 and/or the principle of effective judicial protection to impose a review standard. The problem is which standard? Rob Widdershoven qualifies the Court of Justice’s attitude as a case-by-case approach, which ‘obviously raises the question how the Court’s case law will develop in future’.98 An arguably appropriate standard of legality review has been defined by the EU courts in the application of Article 263 TFEU. In a nutshell, the degree of review depends on the width of the discretion enjoyed by the decision-maker. Still, in its second Kadi case, the Court of Justice clearly indicated that The effectiveness of the judicial review guaranteed by Article 47 of the Charter also requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision […], the Courts of the European Union are to ensure that that decision, which affects that person individually […], is taken on a sufficiently solid factual basis […]. That entails a verification of the factual allegations in the summary of reasons underpinning that decision […], with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated.99

The discretion of contracting authorities in verifying the qualification of tenderers and choosing the best tender is normally limited, if not very limited, by a quite detailed legal framework and even more by the choices made by the same contracting authority in drafting the procurement documents, such as the call for tenders.100 In procurement there is no clash between freedom and overriding public interests such as security. There is no broad discretion as is the case in areas which involve ‘political, economic and social choices’.101 Judicial review should correspondingly be probing. Arguably, it should not be less incisive than the one indicated by Kadi.102 The very limited – if any – discretion should also be a pointer to the limited relevance of the ‘manifest and serious breach’ requirement in liability actions.103 97 Widdershoven (n 14) 24. 98 ibid, 26. 99 Case C-584/10 P, C-593/10 P and C-595/10 P Commission and Others v Kadi EU:C:2013:518, para 119. 100 See, eg, concerning the inclusion of a non-mandatory exclusion clause, Connexxion Taxi Services (n 43), para 35; See also the contribution collected by S Bogojevic, X Groussot and J Hettne (eds), Discretion in EU Procurement Law (Hart Publishing, 2019). 101 See, eg Case C-101/12 Schaible EU:C:2013:661, para 47. 102 Arguably, even non-substitutive legality review might fail to meet the test of effectiveness when fundamental rights are concerned, but this is not normally the case in procurement: see, defending hands off review Sánchez-Graells (n 2) 509, but the assessment might change if exclusions were considered sanctions. 103 Case C-5/94 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) EU:C:1996:205; See Caranta (n 8).

Art 47 in the Field of Public Procurement 229 Based on the case law analysed above (section IV), however, a decisive intervention by the Court of Justice based on Article 47 of the Charter does not seem to be on the cards, and this even if a national court were ready to refer an appropriate reference question which, as indicated above (section III), is not very probable. If Orizzonte Salute and Star Storage are anything to go by, reference to Article 47 of the Charter is today actually – and paradoxically – strengthening the procedural autonomy of the Member States.104 It should obviously be the other way round. If anything, the ‘constitutionalisation’ of effective judicial protection should make it ‘hierarchically superior’ to national procedural autonomy.105 More generally, ‘secondary legislation ought to comply with both the fundamental right to an effective remedy enshrined in Article 47 of the Charter and the general principle of effective judicial protection’.106 This leaves us with legislative reform. In 2017 the Commission published a report on the effectiveness of the Remedies Directives.107 It opined that the Remedies Directives do not need far-reaching reforms. In its recent Communication on Long term action plan for better implementation and enforcement of single market rules, the Commission however indicated the intention to propose a Recommendation on review systems.108 It is not yet clear if this will entail anything more far-reaching than what was already contemplated in the 2017 report. The report already indicated that the Commission was minded to disseminate ‘guidance on some outstanding aspects of the Remedies Directives in order to increase the understanding of some provisions and to guarantee their effectiveness’.109 The areas identified for possible intervention did not envisage the aspects considered as central in this chapter. Moreover, according to the enforcement communication, the Commission will also continue promoting cooperation and exchange of practices through the Network of First Instance Review Bodies on Public Procurement.110 The Commission could hardly be accused of being excessively ambitious. Still, it is a fact that, even after Brexit, the domestic review systems of the Member States diverge quite dramatically concerning the proper standard of review. The same is true of the requirements for liability.111 On the other hand, the most relevant cases of illegality in public procurement are not infinite, and a number of recurrent situations could be easily identified. Think of the example of the review of decisions concerning possibly abnormal law tenders recalled above (section III). Such situations would lend themselves to be analysed and compared following the CoCEAL methodology, looking for differences but also opportunities to bridge them.112 Arguably the Network of First Instance Review 104 The opposite is happening outside public procurement, see the analysis by Widdershoven (n 14) 27. 105 A Arnull, ‘The Principle of Effective Judicial Protection in EU law: An Unruly Horse?’ (2011) 36 European Law Review 51, 68. 106 M Eliantonio and E Muir, ‘The Principle of Effectiveness: Under Strain?’ (2019) 12 Review of European Administrative Law 255, 261. 107 Commission, ‘On the effectiveness of Directive 89/665/EEC and Directive 92/13/EEC, as modified by directive 2007/66/EC, concerning Review procedures in the area of public procurement’ COM (2017) 28 final. 108 Commission, ‘Long term action plan for better implementation and enforcement of single market rule’ COM (2020) 94 final. 109 Commission (n 107). 110 ibid. 111 See the contributions collected by Della Cananea and Caranta (n 68). 112 G Della Cananea and M Bussani, ‘The ‘Common Core’ of administrative laws in Europe: A framework for analysis’ (2019) 26 Maastricht Journal of European and Comparative Law 217.

230 Roberto Caranta Bodies might very well be involved, potentially leading to some measure of bottom-up convergence.113 One aspect which might still deserve legislative reform or creative case law concerns the standing of civil society organisations in procurement cases. As already recalled (section II), the Remedies Directives are generous concerning the standing of economic operators. Still, depending on the situation in each Member State, economic operators might not have any incentive to challenge adverse decisions.114 This might be especially the case concerning unlawful modifications to contracts. Competitors monitor award procedures, much less so contract implementation. Civil society organisations interested in the integrity and efficiency of the procurement market might be enlisted to this end,115 especially in the light of the new focus on integrity following the 2014 procurement reform.116 An expansive reading of Article 47 of the Charter could be used to anticipate reform. Inefficiency and outright corruption impact access to services of general economic interest, a ‘right’ protected under Article 36 of the Charter. Arguably, an evolution of the procurement case law on the same lines that have been observed concerning the access of NGOs to justice in environmental matters117 might find a peg on Article 36.118 If only the bold spirits in the Court of Justice prevail over the timid souls.

113 See R Caranta, ‘Learning from our Neighbours: Public Law Homogenization from Bottom Up’ (1997) 4 Maastricht Journal of European Comparative Law 220. 114 See Sánchez-Graells (n 2) 498. 115 C Cravero, ‘Rethinking the Role of Civil Society in Public Procurement’ (2019) 14 European Procurement & Public Private Partnership Law Review 30. 116 See A Sánchez-Graells, ‘Prevention and Deterrence of Bid Rigging: A Look from the New EU Directive on Public Procurement’, in G Racca and C Yukins (eds), Integrity and Efficiency in Sustainable Public Contracts (Bruylant, 2014) 171. 117 See also the analysis by Eliantonio (n 29). 118 See Bonelli (n 14) 42, detecting a more generally ‘expansive reading’ of the principle of effective judicial protection.

13 Article 47 of the EU Charter of Fundamental Rights in EU Competition Enforcement: A Quantitative and Qualitative Assessment ANDRIANI KALINTIRI*

The application of the EU competition rules has been entrusted with the European Commission, which enjoys extensive investigative and decision-making powers, while undertakings which have violated Articles 101 and 102 TFEU may be faced with heavy financial sanctions. Because of the combination of these two features, EU competition enforcement has been often challenged as unfair and has provided fertile ground for the development of procedural due process rights and guarantees in the EU. The aim of this chapter is to map and illuminate the way in which Article 47 of the Charter has been applied in the field of competition policy since the Treaty of Lisbon. To this end, the chapter first provides an overview in numbers of Article 47 in the competition judgments of the EU Courts with a view to painting a more precise picture of its use. Then it presents its various manifestations in competition cases and demonstrates that the scope of Article 47 is broad and flexible, albeit not limitless. Taking a step back, the chapter then considers the operation of Article 47 vis-à-vis other Charter provisions and Article 6 ECHR and reflects on its role in EU competition enforcement. As explained, Article 47 has strengthened the fairness of EU competition procedures and decision-making and has enhanced the legitimacy of EU competition enforcement. At the same time, it has curbed the Commission’s discretion and thus, to some extent, its ability to act in case of a perceived problem.

I. Introduction Competition rules played a central role in the establishment of the European Union (EU). Articles 101 and 102 of the Treaty on the Functioning of the EU (TFEU) proscribe anticompetitive arrangements and abuses of a dominant position,1 while Article 107 TFEU * Andriani Kalintiri is Lecturer in Competition Law at King’s College London. I am grateful to Giulia Gentile, Mariolina Eliantonio and Matteo Bonelli for their helpful comments. All errors remain my own. 1 References to antitrust in this chapter are references to Arts 101 and 102 TFEU.

232 Andriani Kalintiri prohibits state aid that distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods. These Treaty provisions are complemented by the EU Merger Regulation which establishes a system of ex ante control for concentrations with a Union dimension with a view to blocking those which would significantly impede effective competition in the common market.2 At EU level, the enforcement of these rules has been entrusted to the European Commission (Commission), whose decisions may be challenged before the EU Courts.3 Given the extensive investigative and decision-making powers of the Commission and the potential consequences for the undertakings involved, competition enforcement has provided fertile ground for the development of procedural due process rights and guarantees in the EU.4 The authority may request information, carry out inspections, take statements and conclude that there has been an antitrust violation or that a merger must be prohibited or that state aid must be declared illegal, while it may also impose financial penalties for breaches of the antitrust rules and failure to comply with its investigative measures. On many occasions though, the decisions of the Commission have been challenged before the EU Courts, among others, on the ground that some aspect of the conduct of the authority or of the procedure was unfair. For a long time, the European Convention of Human Rights (ECHR) – in particular, Article 6 on the right to a fair trial – and the case law of the European Court of Human Rights (ECtHR) – provided the primary source of inspiration for the EU Courts to formulate appropriate standards of procedural due process protection in competition proceedings. The adoption, however, of the Charter of Fundamental Rights (EUCFR) in 2000 and its elevation to a legally binding instrument with the entry into force of the Treaty of Lisbon nearly a decade later changed the scene, insofar as it provided an EU equivalent to Article 6 ECHR, mainly in the form of Article 47 EUCFR. Embodying the principle of effective judicial protection, the latter stipulates the right to an effective remedy and the right to a fair trial, and over the last ten years it has become firmly embedded in the competition case law of the EU Courts. However, its exact scope remains somewhat vague around the edges. As the Court of Justice noted in Otis, ‘[t]he principle of effective judicial protection laid down in Article 47 of the Charter comprises various elements; in particular, the rights of the defence, the principle of equality of arms, the right of access to a tribunal and the right to be advised, defended and represented’.5 The aim of this chapter is to map and illuminate the way in which Article 47 EUCFR has been applied in the field of competition policy since the Treaty of Lisbon. To this end, section II provides an overview in numbers of Article 47 EUCFR references in the competition judgments of the EU Courts with a view to painting a more precise picture of its use. Section III examines the various manifestations of Article 47 EUCFR in competition cases in order to expose its material scope. Section IV highlights the operation of Article 47 EUCFR in EU competition cases also vis-à-vis other EUCFR provisions and Article 6 ECHR. Section V then reflects on the role of the principle of effective judicial protection in EU competition enforcement, while section VI concludes. As explained, 2 Council Reg (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [2004] OJ L24/1. 3 Art 263 TFEU. References to the EU Courts are references to the Court of Justice and the General Court. 4 See A Andreangeli, EU Competition Enforcement and Human Rights (Edward Elgar Publishing, 2008); P Nihoul and T Skoczny (eds), Procedural Fairness in Competition Proceedings (Edward Elgar Publishing, 2015). 5 Case C-199/11 Otis and Others EU:C:2012:684, para 48.

Art 47 in EU Competition Enforcement 233 Article 47 EUCFR has strengthened the fairness of EU competition procedures and decision-making and has enhanced the legitimacy of EU competition enforcement. At the same time, it has curbed the Commission’s discretion and thus, to some extent, its ability to act in case of a perceived problem.

II. Article 47 EUCFR in Competition Judgments in Numbers In order to map how Article 47 EUCFR has been applied in the field of competition policy after the Treaty of Lisbon, all competition-related judgments of the EU Courts containing a reference to this provision were compiled in a database. The relevant judgments were identified using the search form on CURIA.6 The chosen criteria were ‘competition’ in ‘subject matter’, ‘judgments’ in ‘documents’ and ‘Treaty/Charter of Fundamental Rights of the EU (2007)/Article 47 EUCFR’ in ‘references to case law or legislation’. A deliberate choice was made not to further specify the subject matter – namely, antitrust, mergers or state aid7 – or the type of procedure so as to capture all existing manifestations of Article 47 EUCFR. The final dataset comprises 131 judgments by the General Court and the Court of Justice in the field of competition containing a reference to Article 47 EUCFR. The overwhelming majority of these judgments pertained to Articles 101 and 102 TFEU. As Figure 1 illustrates, about 91% of the references to Article 47 EUCFR were found in judgments concerning antitrust, nearly 4% in judgments concerning merger control, and about 5% were linked to state aid cases.8 Moreover, apart from two preliminary rulings, all remaining Article 47 EUCFR references were detected in judgments delivered in the context of an action for annulment (about 54%) or an appeal (about 45%) (Figure 2).9 Figures 3 and 4 are perhaps more interesting, insofar as they indicate the proportion of competition judgments delivered by the Court of Justice and the General Court respectively containing an Article 47 EUCFR reference compared to those without one since the entry into force of the Treaty of Lisbon. Out of all the competition judgments of the Court of Justice in the relevant period, almost 13% contained a reference to Article 47 EUCFR, but this number increases significantly if we isolate the antitrust cases, where the percentage rises to almost 30%, the equivalent number for mergers and state aid being 14% and 2%.10 Likewise, out of all competition judgments delivered by the General Court in the relevant period, about 10% contained a reference to Article 47 EUCFR, but this number rises to about 18% for antitrust and 20% for mergers, while it drops to around 1% for state aid.11 6 Every effort was made to ensure that the dataset is comprehensive, but occasionally the search form on CURIA does not deliver absolutely accurate results. The dataset includes all judgments with a reference to Art 47 EUCFR in the grounds or the operative part up until 31 December 2020. 7 The exact options on CURIA are ‘agreements, decisions and concerted practices’; ‘concentrations between undertakings’; ‘dominant position’; and ‘State aid’. 8 119, 5 and 7 judgments respectively. 9 71 and 58 judgments respectively. 10 60 judgments out of 471, 55 judgments out of 189, 1 judgment out of 7 and 4 judgments out of 216 respectively. 11 71 judgments out of 682, 64 judgments out of 359, 4 judgments out of 20 and 3 judgments out of 268 respectively.

234 Andriani Kalintiri Figure 1 Percentage of Specific Competition Field in Judgments with an Article 47 EUCFR Reference 5.34%

3.82%

90.84%

Antitrust

Mergers

State aid

Figure 2 Type of Proceedings in Competition Judgments with an Article 47 EUCFR Reference 1.57%

44.27 54.2%

Actions for annulment

Appeals

References for a preliminary ruling

Art 47 in EU Competition Enforcement 235 Figure 3 Percentage of Court of Justice Competition Judgments with and without an Article 47 EUCFR Reference 100 90

1.85% 12.65%

14.29% 29.1%

80 70 60 50 40

98.15%

87.35%

85.71% 70.9%

30 20 10 0

All

Antitrust No Reference to Article 47 CFR

Mergers

State aid

Reference to Article 47 CFR

Figure 4 Percentage of General Court Competition Judgments with and without an Article 47 EUCFR Reference 100 90

10.41%

1.12% 17.83%

20%

80 70 60 50 40

89.59%

98.88% 82.17%

80%

Antitrust

Mergers

30 20 10 0

All

No reference to Article 47 CFR

Reference to Article 47 CFR

State aid

236 Andriani Kalintiri Particularly interesting are also the type of issues that have been linked to Article 47 EUCFR. Indeed, the latter encompasses a broad range of specific protections. Because these are occasionally invoked simultaneously and/or in conjunction, any attempt at categorisation will be imperfect. Nevertheless, a careful review of the judgments in the dataset suggests that Article 47 EUCFR was mainly referenced in connection with: the right to an effective remedy; the right to a hearing by an independent and impartial tribunal (including judicial review issues); the right to a hearing within a reasonable time; the duty to state reasons; the presumption of innocence; the rights of defence; and the equality of arms principle, whereas a handful of judgments concerned other matters.12 As Figure 5 shows, these issues arose in about 16%, 38%, 20%, 18%, 8% and 14% of the recorded judgments respectively, whereas in around 3% of the judgments Article 47 EUCFR was cited in connection with something else.13 Figure 5 The Manifestations of Article 47 EUCFR in Competition Proceedings 45 38.17%

40 35 30 25 20 15

19.85% 16.03%

17.56%

14.5% 7.63%

10

3.05%

5 0

Right to an effective remedy

Right to a hearing by an independent and impartial tribunal

Right to a hearing within a reasonable time

Duty to state reasons

Presumption of innocence

Rights of defence and equality of arms

Other

12 See Otis (n 5), on whether Art 47 EUCFR precludes the Commission from bringing an action for damages in respect of loss sustained by the Union as a result of an antitrust infringement established by the authority – a question answered in the negative; Case C-170/13 Huawei Technologies EU:C:2015:477, on the circumstances where seeking an injunction for infringement of a standard-essential patent may amount to an abuse of a dominant position, noting the need to strike a balance between maintaining free competition and the requirement to safeguard the proprietor’s intellectual property rights and their right to effective judicial protection; Case C-514/14 P Éditions Odile Jacob v Commission EU:C:2016:55, paras 18 and 31, the appellant unsuccessfully argued that the General Court had erred in law and had breached Art 47 EUCFR, insofar as it upheld a Commission decision which infringed the principle of res judicata; Case C-654/17 P Bayerische Motoren Werke v Commission and Freistaat Sachsen EU:C:2019:634, the Commission unsuccessfully requested that the General Court’s ‘decision’ by which it accepted a third party’s intervention be set aside on the ground that it violated its rights under Art 47 EUCFR, insofar as the intervention could entail the broadening of the scope of the dispute. 13 21, 50, 26, 23, 10, 19 and 4 judgments, respectively. Certain judgments considered more than one manifestation of Art 47 EUCFR.

Art 47 in EU Competition Enforcement 237

III. The Manifestations of Article 47 EUCFR in Competition Judgments With the above overview in mind, this section examines the manifestations of Article 47 EUCFR in competition judgments with a view to shedding more light on its protective scope. As the analysis shows, this is broad and flexible, albeit not unlimited.

A. The Right to an Effective Remedy First of all, the EU Courts have emphasised that the possibility to bring an action for annulment against a Commission decision based on Article 263 TFEU constitutes an effective remedy within the meaning of Article 47 EUCFR. Areva and Others clarified that the right to an effective remedy is not breached by the fact that the Commission may hold more undertakings jointly and severally liable for a cartel fine, since each addressee can ‘submit [the decision] to judicial review’.14 Likewise, Agria Polska confirmed that a complainant is not deprived of their right to an effective remedy, insofar as they are able to bring an action for annulment against the Commission decision rejecting their complaint due to lack of sufficient Union interest.15 In this case, the national competition authority had declined to investigate the matter because the limitation period had expired, and private enforcement was allegedly not an alternative.16 The Court of Justice, however, stressed that it is for Member States to provide individuals with effective remedies in the fields covered by EU law and not for the Commission to compensate for any shortcomings by opening an antitrust investigation.17 A similar approach was followed in Deutsche Bahn, where the undertaking argued that the Commission should be required to obtain a warrant from national courts prior to an inspection and that its decision to carry it out should be subject to a ‘comprehensive judicial review (…) within a reasonable time after the inspection had begun’.18 Rejecting the argument, the General Court again noted that undertakings may challenge the inspection decision under Article 263 TFEU and that in the event of an annulment, the Commission will be prevented from using the gathered information to establish an antitrust violation – a conclusion upheld on appeal.19 Moreover, the right to an effective remedy is not prejudiced by the fact that applicants must satisfy certain admissibility requirements.20 As explained in RF, rejecting an action for annulment as inadmissible due to the applicant’s failure to meet the applicable time limits does not infringe their right to an effective remedy, insofar as such rules 14 Joined Cases T-117/07 and T-121/07 Areva and Others v Commission EU:T:2011:69, paras 191, 194, 223–230. 15 Case T-480/15 Agria Polska and Others v Commission EU:T:2017:339, paras 92–101. 16 ibid, paras 88–90. 17 Case C-373/17 P Agria Polska and Others v Commission EU:C:2018:756, paras 95–98. 18 Joined Cases T-289/11, T-290/11 and T-521/11 Deutsche Bahn and Others v Commission EU:T:2013:404, paras 103–05. 19 Case C-583/13 P Deutsche Bahn and Others v Commission EU:C:2015:404, paras 38–49. 20 This is to be assessed on a case-by-case basis; see Case T-894/16 Air France v Commission EU:T:2019:508, paras 79–80.

238 Andriani Kalintiri serve ‘the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice’.21 Likewise, in 1&1 Telecom and Multiconnect the rejection of an action for annulment on grounds of lack of standing did not violate the applicant’s right to an effective remedy either, since natural or legal persons ‘are able to plead [their] invalidity (…) before the national courts and ask them (…) to make a reference to the Court of Justice (…)’ based on Article 267 TFEU.22 In the same vein, in Alcogroup and Alcodis the Court of Justice dismissed the plea that the General Court had infringed the appellants’ right to an effective remedy by rejecting their action as inadmissible on the basis that, even if accepted, the alleged violations of their rights of defence could not affect the legality of the Commission’s inspection decision and that the challenged letter in question did not produce legal effects.23 That said, the rules governing the admissibility of appeals cannot be such as to restrict the very substance of the right to an effective remedy. This issue arose in Servier, where the General Court examined whether the applicant’s right to an effective remedy had been violated by the fact that the Commission was subject to no time or length constraints in drafting its decision, which took six years, was more than 800 pages long and was sent during the summer break, while applicants must draft their application for an action for annulment within two months and in 50 pages.24 While the allegation was dismissed as unfounded, the Court thoroughly considered its merits, noting, among others, that the applicants had submitted a response of more than 600 pages to the Commission’s statement of objections and they had been granted all available extensions, ultimately submitting an 186-page application and 10,158 pages of annexes.25 Last but not least, the EU Courts have emphasised that, according to Article 52(1) EUCFR, ‘any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law’ and thus, in the absence of a specific legal basis, restrictions on the exercise of a natural or legal person’s right to initiate proceedings under Article 263 TFEU are contrary to Article 47 EUCFR. In this light, in Knauf Gips the General Court was held to have erred in law by taking the view that the addressees of a statement of objections must challenge its various aspects during the administrative procedure, so as not to be barred from doing so at the stage of the judicial proceedings.26 Moreover, in Éditions Odile Jacob, the General Court dismissed the intervener’s request that the applicant’s plea be dismissed as inadmissible on the ground that it was inconsistent with what they had argued in a different case, noting that this is not prohibited.27 Similarly, in Niki Luftfahrt, when the Commission complained that the application was inadmissible, among others, because it contained information which was not available in the public version of its decision, the Court dismissed the plea emphasising the applicant’s right to ‘rely without limit on all the grounds’ of Article 263 TFEU and that any 21 Case C-660/17 P RF v Commission EU:C:2019:509, paras 55–60. 22 Case T-43/16 1&1 Telecom v Commission EU:T:2018:660, paras 49–50; Case T-884/16 Multiconnect v Commission EU:T:2018:665, paras 40–47, 48–61. 23 Case T-274/15 Alcogroup and Alcodis v Commission EU:T:2018:179, paras 46, 57–59, 61–65, 68–69, 82–88; see also Case C-403/18 P Alcogroup and Alcodis v Commission EU:C:2019:870, paras 75–79. 24 Case T-691/14 Servier and Others v Commission EU:T:2018:922, para 168. 25 ibid, paras 170–78. 26 Case C-407/08 P Knauf Gips v Commission EU:C:2010:389, paras 87–92. 27 Case T-471/11 Éditions Odile Jacob v Commission EU:T:2014:739, paras 49–50.

Art 47 in EU Competition Enforcement 239 limitation of this right would constitute an impermissible restriction of the right to an effective remedy.28

B. The Right to a Hearing by an Independent and Impartial Tribunal In the last 15 years or so undertakings have frequently complained that the administrative model of competition enforcement, as envisaged by Regulation 1/2003, violates the right to a hearing by an independent and impartial tribunal. The popularity of such complaints might be linked to the increase in the amount of fines imposed by the Commission after 2005, especially in cartel cases,29 which prompted claims that such penalties are ‘criminal charges’ in the meaning of the Engel criteria of the ECtHR.30 Broadly speaking, alleged violations of the right to be heard by an independent and impartial tribunal have focused on two issues: the characteristics of the Commission31 and the intensity and scope of the judicial review exercised by the EU Courts.32 Indeed, undertakings have complained that the Commission is not a tribunal and thus cannot impose penalties of a criminal nature and it is not independent and impartial either, since it combines the functions of the prosecutor, the investigator and the decision-maker: it chooses which cases to pursue, it investigates potential violations, it decides whether the competition rules have been infringed and may impose severe penalties in case of a breach.33 Nevertheless, such claims have been unsuccessful. The Courts’ position was consolidated in Schindler Holding. In its judgment, the Court of Justice recalled Menarini,34 where the ECtHR clarified that Article 6 ECHR does not preclude administrative systems of competition enforcement, where penalties are 28 Case T-511/09 Niki Luftfahrt v Commission EU:T:2015:284, paras 67–69. 29 For cartels, see the statistics at https://ec.europa.eu/competition/cartels/statistics/statistics.pdf. 30 Judgment of the European Court of Human Rights of 23 November 1976 in Case No 5100/71 Engel and Others v The Netherlands, para 82. The ECtHR identified three conditions for classifying a sanction as a ‘criminal charge’ in the meaning of Art 6(1) ECHR: the classification of the charge in national law; the nature of the offence; and the degree of severity of the penalty that the person concerned risks incurring. 31 See Case C-439/11 P Ziegler v Commission EU:C:2013:513, paras 156–57, the appellant claimed that the Commission lacked objective impartiality, since they had been themselves a victim of the infringement. See also Case T-372/10 Bolloré v Commission EU:T:2012:325, paras 54–79, the applicant alleged that they had not been heard by ‘judges, as none of the members of the College of the Commission attended its hearing’ and that the authority had breached the requirement of subjective impartiality by its conduct. 32 See W Wils, ‘The Combination of the Investigative and Prosecutorial Function and the Adjudicative Function in EC Antitrust Enforcement: A Legal and Economic Analysis’ (2004) 27 World Competition 201; I Forrester, ‘Due Process in EC Competition Cases: A Distinguished Institution with Flawed Procedures’ (2009) 34 European Law Review 81; I Forrester, ‘A Bush in Need of Pruning: The Luxuriant Growth of Light Judicial Review’ in C Ehlermann and M Marquis (eds), European Competition Law Annual 2009: The Evaluation of Evidence and its Judicial Review in Competition Cases (Hart Publishing, 2010); R Nazzini, ‘Administrative Enforcement, Judicial Review and Fundamental Rights in EU Competition Law: A Comparative Contextual-Functionalist Perspective’ (2012) 49 Common Market Law Review 971. 33 Case C-264/11 P Kaimer and Others v Commission EU:C:2012:498, para 52; Case T-286/09 Intel v Commission EU:T:2014:547, para 1607; Case T-486/11 Orange Polska v Commission EU:T:2015:1002, para 82. See also Bolloré (n 31), para 62; Case C-501/11 P Schindler Holding v Commission EU:C:2013:522, para 26; Case T-56/09 Saint-Gobain Glass France and Others v Commission EU:T:2014:160, paras 59–60. 34 Judgment of the European Court of Human Rights of 27 September 2011 in Case No 43509/08 Menarini Diagnostics SRL v Italy, paras 40–42.

240 Andriani Kalintiri imposed by an administrative authority which does not satisfy the requirements of an independent and impartial tribunal, so long as its decisions can be reviewed by a judicial body with full jurisdiction, ie the power to quash the administrative decision in all respects on questions of fact and law.35 With this in mind, the Court of Justice stressed that the system provided for in Articles 263 TFEU and 261 TFEU is aligned with the requirement for ‘full jurisdiction’: not only can the EU Courts scrutinise the legality of Commission decisions and carry out an in-depth review of the law and the facts, but they also have unlimited jurisdiction with respect to financial penalties and can cancel, reduce or increase any fine imposed.36 As such, it is not incompatible with Article 47 EUCFR, a conclusion reaffirmed in later judgments.37 This conclusion builds on KME38 and Chalkor,39 which clarified the intensity and the scope of judicial control. Traditionally, EU judges have afforded the Commission a margin of appreciation regarding policy issues and complex economic assessments, confining their control to ‘manifest errors of assessment’. However, in these cases the applicants argued that, given the ‘de facto “criminalisation”’ of EU competition law, the doctrine of judicial deference should be abolished and that ‘their right to a full, effective and fair judicial review of the decision at issue by an impartial and independent tribunal’ had been violated, insofar as the General Court failed ‘to examine their arguments closely and thoroughly and deferred, to an excessive and unreasonable extent, to the Commission’s discretion’.40 The Court of Justice, however, disagreed. Whilst acknowledging the authority’s margin of appreciation with respect to economic matters, it underlined that the Commission’s assessments are not immune to scrutiny. Rather, the EU Courts must establish ‘whether the evidence relied on is factually accurate, reliable and consistent’, ‘whether [it] contains all the information which must be taken into account in order to assess a complex situation’ and ‘whether it is capable of substantiating the conclusions drawn from it’.41 Furthermore, in reviewing the legality of the Commission’s decisions, ‘the Courts cannot use the Commission’s margin of discretion (…) as a basis for dispensing with the conduct of an in-depth review of the law and of the facts’.42 At the same time, the review of legality is carried out ‘upon the basis of the evidence adduced by the applicant in support of the pleas in law put forward’.43 This principle also underpins the exercise by the EU Courts of unlimited jurisdiction. While this empowers the Courts to modify a fine, it ‘does not amount to a review of the Courts’ own motion’ and, apart from matters of public policy that may be raised ex officio, ‘it is for the applicant to raise pleas in law against [the] decision and to adduce evidence in support of those pleas’.44 35 Schindler Holding (n 33) paras 34–35. 36 ibid, paras 36–38. 37 See, eg Schindler Holding (n 33); Case C-67/13 P Cartes Bancaires v Commission EU:C:2014:2204, paras 41–46. 38 Case C-272/09 P KME Germany and Others v Commission EU:C:2011:810; Case C-389/10 P KME Germany and Others v Commission EU:C:2011:816. 39 Case C-386/10 P Chalkor v Commission EU:C:2011:815. 40 KME EU:C:2011:810 (n 38) paras 83–88; KME EU:C:2011:816 (n 38) paras 108–09; Chalkor (n 39) paras 34–38. 41 KME EU:C:2011:810 (n 38) para 94; KME EU:C:2011:816 (n 38) para 121; Chalkor (n 39) para 54. 42 KME EU:C:2011:810 (n 38) para 102; KME EU:C:2011:816 (n 38) para 129; Chalkor (n 39) para 62. 43 ibid. 44 KME EU:C:2011:810 (n 38) para 104; KME EU:C:2011:816 (n 38) para 131; Chalkor (n 39) para 64.

Art 47 in EU Competition Enforcement 241 These principles have been reaffirmed in later cases. While the Court of Justice has often heard claims that the way in which the General Court exercised its judicial review – in particular, its unlimited jurisdiction – fell short of what was promised in KME and Chalkor (for instance, because it was too deferential to the Commission or failed properly to assess the evidence), such arguments have usually been dismissed.45 Galp Energia and Infineon Technologies are two noteworthy exceptions. In Galp Energia the appellants successfully argued that the General Court exceeded its unlimited jurisdiction and ruled ultra petita, insofar as it held them liable for parts of the infringement that the Commission had failed to establish.46 By contrast, in Infineon Technologies, the General Court failed to comply with its judicial control duties, insofar as it refrained from reviewing the proportionality of the fine, despite the applicants’ request, without providing any reason.47 That said, the EU Courts have underlined that judicial proceedings are inter partes. It is not a violation of Article 47 EUCFR that undertakings must produce evidence in support of their claims nor is the rejection of generic requests for a fine reduction when unsupported by specific arguments and evidence.48 On the other hand, as explained in Hansen & Rosenthal, Article 47 EUCFR does not entail a requirement for an ex officio new and comprehensive investigation of the file.49 Last but not least, British Airways confirmed that Article 47 EUCFR does not require the EU Courts to review aspects of a decision that have not been challenged, even where they have concluded that the latter is vitiated by an error that they have raised of their own motion.50

C. The Right to a Hearing Within a Reasonable Time The right to be heard within a reasonable time constitutes another facet of Article 47 EUCFR. Such pleas have been relatively frequent in competition cases and have raised questions about two issues: first, what constitutes ‘unreasonable time’, and secondly, what is the appropriate remedy in case of a violation. Before considering both issues, it is worth noting that the Treaty of Lisbon has had an impact on the choice of legal basis for this protection. For example, in Imperial Chemical Industries the General Court noted that in the context of the administrative proceedings, this right is given expression in Article 41 EUCFR, rather than Article 47 EUCFR.51 This position was further consolidated in later cases and, nowadays, allegations concerning the duration of the administrative procedure are generally based on Article 41 EUCFR, while allegations 45 See, eg Case C-295/12 P Telefónica and Telefónica de España v Commission EU:C:2014:2062, paras 36–60; Case C-454/16 P Global Steel Wire v Commission EU:C:2017:818, paras 41–61; Case C-457/16 P Global Steel Wire v Commission EU:C:2017:819, paras 34–42, 78 and 161. 46 Case C-603/13 P Galp Energia España and Others v Commission EU:C:2016:38, paras 61–68, 77–79. 47 Case C-99/17 P Infineon Technologies v Commission EU:C:2018:773, paras 180–81, 195–207. 48 See, eg Case C-609/13 P Duravit and Others v Commission EU:C:2017:46, paras 52–53, 56–62; Case T-208/13 Portugal Telecom v Commission EU:T:2016:368, para 277. 49 Case C-90/15 P Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission EU:C:2017:123, paras 14–15, 24–29. 50 Case C-122/16 P British Airways v Commission EU:C:2017:861, paras 75–78, 80–90, 103–05. 51 Case T-214/06 Imperial Chemical Industries v Commission EU:T:2012:275, para. 278, 282–285; Cf Case T-92/13 Philips v Commission EU:T:2015:605, paras 254–56.

242 Andriani Kalintiri concerning the duration of the judicial proceedings are considered under Article 47 EUCFR.52 Regarding the criteria for assessing the reasonableness of the duration of the judicial proceedings, this is ‘to be appraised in the light of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties’.53 However, this list is non-exhaustive and a duration which is ‘prima facie too long’ may be justified on the facts.54 For example, in Imperial Chemical Industries the General Court considered that the duration of about four years and five months between the end of the written procedure and the opening of the oral procedure could be explained ‘by the circumstances and complexity of the case’, which involved, among others, 14 companies, various anticompetitive arrangements, several measures of organisation and proceedings in two different languages.55 By contrast, in Gascogne Sack Deutschland, Groupe Gascogne and Kendrion, a duration of five years and nine months in total with a period of three years and ten months between the end of the written procedure and the opening of the oral procedure was deemed unreasonable, since it could not be explained ‘by the circumstances of the case’.56 While the assessment is case-specific, long periods of inactivity in the course of the judicial proceedings may lead to a finding of violation. Considering now the remedy for a violation of this right, it is necessary to distinguish two scenarios depending on whether the breach has had an effect on the outcome of the procedure. If yes, the applicant may be entitled to have the judgment set aside57 – by analogy with the relief for equivalent violations linked to the administrative procedure, ie the possible annulment of the Commission decision.58 However, (in the dataset analysed) such requests have been unsuccessful on the ground that the applicants failed to show that their ability to defend themselves had been adversely affected and the outcome of the procedure would otherwise have been different.59 On the other hand, where the excessive duration of the proceedings had no effect on the outcome of the dispute, setting aside the judgment under appeal ‘would not remedy the infringement’.60 In this situation, the appropriate remedy was unclear for some time. In Baustahlgewebe the Court of Justice had held that ‘for reasons of economy of procedure and in order to ensure an immediate and effective remedy’, relief for the excessive duration of proceedings may take the form of a fine reduction in the exercise of the Court’s unlimited jurisdiction,61 an approach followed in Imperial Chemical Industries.62 In Der Grüne Punkt though, the Court of Justice had taken the view that the appropriate remedy for the failure on part of the General Court to adjudicate within a reasonable time was an 52 See, eg Case T-436/10 Hit Groep v Commission EU:T:2015:514, paras 238–39, 285–90. 53 Case C-40/12 P Gascogne Sack Deutschland v Commission EU:C:2013:768, para 91. 54 ibid, para 92. 55 Imperial Chemical Industries (n 51) paras 310–19. 56 Gascogne Sack Deutschland (n 53) paras 97–102; Case C-50/12 P Kendrion v Commission EU:C:2013:771, 102–06; Case C-58/12 P Groupe Gascogne v Commission EU:C:2013:770, 91–96. 57 Gascogne Sack Deutschland (n 53) paras 80–82. 58 See, eg Bolloré (n 31) para 105. 59 ibid, paras 100–85; Gascogne Sack Deutschland (n 53) 83; Telefónica and Telefónica de España (n 45) 64–65. 60 Gascogne Sack Deutschland (n 53) para 82. 61 Case C-185/95 P Baustahlgewebe v Commission EU:C:1998:608, paras 47–48. 62 Imperial Chemical Industries (n 51) paras 287–91.

Art 47 in EU Competition Enforcement 243 action for damages based on the non-contractual liability of the Union.63 The matter was revisited and conclusively resolved in favour of the latter option in Gascogne Sack Deutschland. The Court of Justice acknowledged the inconsistency in its case law and ruled that ‘a claim for damages brought against the European Union pursuant to Article 268 TFEU and the second paragraph of Article 340 TFEU constitutes an effective remedy of general application for asserting and penalising such a breach’.64 Despite applicants’ continued requests for a fine reduction as relief for the failure of the General Court to adjudicate within a reasonable time, such requests have been denied.65 Notwithstanding procedural efficiency considerations, actions for damages for noncontractual liability of the EU in cases of excessive delay in the proceedings present an orthodox solution to the remedy problem, and such actions have indeed been brought on occasion. A number of times, undertakings have been granted compensation for non-material damage from the prolonged state of uncertainty they found themselves in as a result of the excessive duration of the proceedings.66 However, establishing a causal link between the violation and the claimed material harm has proved difficult and related damages awarded at first instance have been overturned on appeal.67

D. The Duty to State Reasons According to settled case law, the obligation to state reasons is an essential procedural requirement and an autonomous ground for annulment under Article 263 TFEU that the EU Courts may consider of their own motion. Interestingly, in several competition cases this duty has been linked to the principle of effective judicial protection. This connection has been highlighted in a series of actions for annulment of the Commission’s airfreight cartel decision. The authority fined several airlines for fixing certain surcharges on multiple routes over various periods. In the grounds of its decision the Commission had classified the arrangements as a ‘single and continuous infringement’, a concept that enables it to hold undertakings accountable for the whole of the violation, as long as they were aware of the ‘overall plan’ and intended to contribute to it, even if they had not participated in every aspect. However, in the operative part of the decision, the authority seemed to have identified four separate infringements or one single and continuous infringement, liability for which was divided among various carriers operating between certain geographic areas. Given this contradiction and ambiguity, the applicants claimed that the decision was vitiated by a failure to state reasons. Reiterating settled case law, the General Court agreed and annulled the Commission’s decision, emphasising that Article 47 EUCFR ‘requires that the operative part (…) must 63 Case C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission EU:C:2009:456, para 195. 64 Gascogne Sack Deutschland (n 53) paras 86–90. 65 Case C-519/15 P Trafilerie Meridionali v Commission EU:C:2016:682, para 65; Case C-85/15 P Feralpi v Commission EU:C:2017:709, paras 54–55. 66 Case C-150/17 P European Union v Kendrion EU:C:2018:1014, paras 121–35; Joined Cases C-138/17 P and C-146/17 P European Union v Gascogne Sack Deutschland and Gascogne EU:C:2018:1013, paras 54–63. 67 Kendrion (n 66) para 62; Gascogne (n 66) para 32; Joined Cases C-174/17 P and C-222/17 P European Union v ASPLA and Armando Álvarez EU:C:2018:1015, para 33; Case C-447/17 P European Union v Guardian Europe EU:C:2019:672, para 42.

244 Andriani Kalintiri be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest [the] imputation of liability and the imposition of (…) penalties’, especially in view of the criminal character of antitrust decisions.68 The duty to state reasons is not confined to findings of an infringement but extends to fining decisions. In Ziegler, the appellant complained that the General Court infringed Article 47 EUCFR by exempting the Commission from its obligation to provide reasons for its calculation of the fine.69 This case involved a cartel and the authority had considered the infringement to be ‘very serious’ and had set the basic amount of the fine at 17% of the value of the affected sales, which was at the lower end of the 15–25% range provided for in the Fining Guidelines.70 However, the Court of Justice dismissed the complaint as unfounded.71 In Printeos, on the other hand, the General Court agreed with the applicants that, in the context of a cartel settlement procedure, the Commission had failed to adequately explain its departure from its Fining Guidelines and the reasons behind the adjustment of the basic amount of the fines imposed on the undertakings concerned and the application of different reduction rates. As the Court emphasised, Article 47 EUCFR requires that the duty to state reasons applies to fining decisions adopted at the conclusion of a settlement procedure, too, since in the absence of adequate reasoning, the applicants would not be ‘in a position effectively to dispute the merits of the Commission’s approach (…) and the Court would not have been able fully to exercise its powers of judicial review (…)’.72 Last but not least, it is worth noting Commission v Parker Hannifin, where the Court of Justice held that, in carrying out its judicial review in the light of Article 47 EUCFR, the General Court failed to explain how it calculated the reduced fine, thus preventing the parties from understanding why it had been set at that level and the Court from reviewing the lawfulness of the reduction.73

68 Case T-28/11 Koninklijke Luchtvaart Maatschappij v Commission EU:T:2015:995, paras 36–40; Case T-36/11 Japan Airlines v Commission EU:T:2015:992, paras 30–34; Case T-38/11 Cathay Pacific Airways v Commission EU:T:2015:985, paras 35–39; Case T-39/11 Cargolux Airlines v Commission EU:T:2015:991, paras 30–34; Case T-40/11 Latam Airlines Group and Lan Cargo v Commission EU:T:2015:986, paras 40–44; Case T-43/11 Singapore Airlines and Singapore Airlines Cargo v Commission EU:T:2015:989, paras 36–40; Case T-46/11 Deutsche Lufthansa and Others v Commission EU:T:2015:987, paras 32–36; Case T-48/11 BA v Commission EU:T:2015:988, paras 32–36; Case T-56/11 SAS Cargo Group and Others v Commission EU:T:2015:990, paras 37–41; Case T-62/11 Air France-KLM v Commission EU:T:2015:996, paras 38–42; Case T-63/11 Air France v Commission EU:T:2015:993, paras 35–39; Case T-67/11 Martinair Holland v Commission EU:T:2015:984, paras 27–31; Case T-9/11 Air Canada v Commission EU:T:2015:994, paras 31–35. By contrast, in Cases T-762/15 Sony and Sony Electronics v Commission EU:T:2019:515, paras 251–58, T-763/15 Sony Optiarc and Sony Optiarc America v Commission EU:T:2019:517, paras 220–232; and Case T-8/16 Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission EU:T:2019:522, paras 68–86, similar claims were dismissed. 69 Ziegler (n 31). 70 Guidelines on the method of setting fines imposed pursuant to Art 23(2)(a) of Regulation No 1/2003 [2006] OJ C210/2. 71 Ziegler (n 31) paras 129–30. 72 Case T-95/15 Printeos and Others v Commission EU:T:2016:722, paras 43–55, and in particular paras 47 and 55. 73 Case C-434/13 P Commission v Parker Hannifin Manufacturing and Parker-Hannifin EU:C:2014:2456, paras 74–77, 84–86.

Art 47 in EU Competition Enforcement 245

E. The Presumption of Innocence, the Rights of Defence and the Equality of Arms Principle Beyond the above manifestations, in competition-related judgments, Article 47 EUCFR has also often been referenced in connection with the presumption of innocence, the rights of defence and the equality of arms principle, all of which have been long established in the case law of the EU Courts.74 Because such claims are often interlinked, they are presented together. While the principle of equality of arms is not explicitly provided for in the EUCFR, the presumption of innocence and the rights of defence are enshrined in Article 48 EUCFR – rather than Article 47 EUCFR. Nevertheless, in several judgments in the dataset, the identified legal basis has been the latter, either autonomously or in conjunction with Articles 41 and/or 48 EUCFR. References to Article 47 EUCFR in connection with the presumption of innocence feature mostly in the context of the general principles that govern the assessment of the evidence as part of the General Court’s review of the facts. Indeed, the criminal nature of antitrust fines prompted calls for the adoption of a criminal standard of proof for competition infringements.75 Although the EU Courts have been mindful of the need to preserve the effectiveness of enforcement, they have emphasised that judicial control entails assessing whether the evidence relied on by the Commission is sufficient to establish the existence of an infringement and that ‘where there is doubt, the benefit of that doubt must be given to the parties to whom the decision is addressed, and consequently the court cannot conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains doubts on that point’, since ‘it is necessary to take account of the principle of the presumption of innocence’, which is reaffirmed, among others, by Article 47 EUCFR.76 In this regard, it is worth noting that the presumption of innocence has been invoked to challenge the so-called presumption of parental liability as ‘de facto’ irrebuttable and thus unfair,77 but the EU Courts have dismissed such claims.78 Article 47 EUCFR is oft-cited in relation to the rights of defence and the principle of equality of arms, too. In Orange Polska the General Court reaffirmed that the Treaty of Lisbon ‘has not substantially changed the right to a fair trial’, which is now enshrined in Article 47 EUCFR, and this applies ‘to the right to be heard, and more broadly, to the rights of the defence as a whole (…) to the extent that those rights help to ensure that a fair trial is held’.79 In particular, Article 47 EUCFR has been referenced, among others, in connection with the right to access the file,80 the right to be heard,81 74 Case C-199/92 P Hüls v Commission EU:C:1999:358, paras 149–150; Case C-235/92 P Montecatini v Commission EU:C:1999:362, paras 175–76; Joined Cases C-204/00P, C-205/00P, C-211/00P, C-213/00P, C-217/00P and C-219/00 P Aalborg Portland and Others v Commission EU:C:2004:6, paras 62–67. 75 See A Kalintiri, Evidence Standards in EU Competition Enforcement (Hart Publishing, 2019) ch 4. 76 See, eg Case T-132/07 Fuji Electric v Commission EU:T:2011:344, para 89; Intel (n 33) paras 62–64; Case T-380/10 Wabco Europe and Others v Commission EU:T:2013:449, paras 44–46. 77 A parent company which wholly owns a subsidiary is presumed to have exercised decisive influence over its conduct, see Case C-97/08 P Akzo Nobel and Others v Commission EU:C:2009:536, para 60. 78 See, eg Case C-508/11 P Eni v Commission EU:C:2013:289, paras 68–69. 79 Case T-486/11 Orange Polska v Commission EU:T:2015:1002, para 95. 80 Case C-607/18 P NKT Verwaltung and NKT v Commission EU:C:2020:385, paras 259–71; see also Case T-447/14 NKT Verwaltungs and NKT v Commission EU:T:2018:443, paras 45–68. 81 Duravit (n 48) paras 97, 101–05; Case C-264/16 P Deutsche Bahn and Others v Commission EU:C:2018:60, paras 71–77.

246 Andriani Kalintiri the right not to incriminate oneself82 and the right to legal representation.83 Moreover, the rights of defence have been unsuccessfully invoked by applicants challenging the use as evidence by the Commission of information provided by co-accused undertakings84 and of secret recordings of telephone conversations and related notes.85 Last but not least, undertakings have relied on the rights of defence and/or the principle of equality of arms to request the summoning and/or cross-examination of witnesses before the Commission or the General Court, but such attempts have failed on the ground that Article 47 EUCFR does not entail such an absolute right for defendants.86

IV. A Multifaceted Principle in the Process of Crystallisation The case law of the EU Courts reveals that the principle of effective judicial protection has steadily acquired a clear shape and form in competition cases and is moving towards further crystallisation in terms of its material scope and operation. This is evident not only from the above analysis, but also from the terms of the symbiosis of Article 47 EUCFR with other EUCFR provisions and with Article 6 ECHR. Indeed, the application of the principle of effective judicial protection in the field of competition policy indicates that its protective scope consists of a hard ‘core’, which includes the rights explicitly provided for in the letter of Article 47 EUCFR, but also of a wider perimeter, which covers broader safeguards and guarantees implicitly stemming from it. Moreover, despite the challenges in establishing a violation thereof,87 Article 47 EUCFR remains a well-established basis of legal protection, especially in antitrust appeals before the Court of Justice. In this regard, it is worth noting that, although most references to Article 47 EUCFR in the dataset had been triggered by a plea by the parties involved, claiming a breach thereof either on a standalone or on an incidental basis, in several judgments Article 47 EUCFR had been embedded in the Courts’ reasoning of their own accord, regardless of the existence of a related plea – for instance, as part of the principles governing the assessment of evidence and judicial review. At the same time, Article 47 EUCFR seems to be claiming its own autonomous identity vis-à-vis other EUCFR provisions – in particular, Articles 41 and 48 EUCFR. Indeed, the review of all judgments in the dataset revealed a surprising degree of inconsistency in the choice of legal basis for the same protection. For example, on many occasions, Article 47 EUCFR has been referenced with respect to the presumption of innocence or the rights of defence, even though Article 41 EUCFR or Article 48 EUCFR 82 Case T-297/11 Buzzi Unicem v Commission EU:T:2014:122, paras 54–63; Case T-302/11 HeidelbergCement v Commission EU:T:2014:128, paras 115–20. 83 Case T-357/06 Koninklijke Wegenbouw Stevin v Commission EU:T:2012:488, paras 219–33. 84 Case T-265/12 Schenker v Commission EU:T:2016:111, paras 37–43. 85 Case T-54/14 Goldfish and Others v Commission EU:T:2016:455, paras 40–87. 86 Case T-582/15 Silver Plastics and Johannes Reifenhäuser v Commission EU:T:2019:497, paras 215–19; Case T-364/10 Duravit v Commission EU:T:2013:477, paras 49–54; Case C-95/15 P H & R ChemPharm v Commission EU:C:2017:125, paras 44–45; For a detailed discussion, see Kalintiri (n 75) ch 5. 87 In practice, pleas linked to the right to be heard within a reasonable time and the duty to state reasons appear to enjoy higher rates of success than others.

Art 47 in EU Competition Enforcement 247 would have been more appropriate.88 Other times, Articles 41, 47 and 48 EUCFR were invoked together with respect to the same grievance – mainly in parties’ pleas. Nevertheless, in more recent judgments there exist clear indications of greater differentiation. Specifically, references to Article 47 EUCFR with respect to the presumption of innocence have been replaced with references to Article 48 EUCFR, whereas claims relating to the fairness of the administrative procedure are more and more frequently based on Article 41 EUCFR, instead.89 In any event, the parallel symbiosis of Article 47 EUCFR and of Article 6 ECHR has not inhibited their operation or undermined the significance of either legal basis in EU competition enforcement. For one, the application of Article 47 EUCFR reflects earlier case law on the principle of effective judicial protection and the right to a fair trial, as enshrined in Article 6 ECHR from which the EU Courts have drawn inspiration. Moreover, although the coming into force of the Treaty of Lisbon upgraded the EUCFR into a primary source of EU law, this has not undermined the relevance or the significance of the ECHR and the case law of the ECtHR. Indeed, references to Article 47 EUCFR are commonly accompanied by references to Article 6 ECHR and, occasionally, relevant ECtHR case law, from which the EU Courts have continued drawing inspiration. Beyond a few isolated stern reminders that ‘Article 47 (…) implements in European Union law the protection afforded by Article 6(1) of the ECHR’ and that ‘[i]t is necessary, therefore, to refer only to Article 47 [EUCFR]’,90 in several judgments in the dataset, the two provisions were invoked in conjunction by both the applicants and the EU Courts.

V. The Role of Article 47 EUCFR in Competition Enforcement The principle of effective judicial protection has played a pivotal role in EU competition enforcement. Most obviously, Article 47 EUCFR has strengthened the fairness of competition procedures and decision-making. Beyond this though, it has also had one incidental effect and one important corollary: on the one hand, it has enhanced the legitimacy of EU competition enforcement; on the other, it has curbed the Commission’s discretion and thus, to some extent, its ability to act. Indeed, Article 47 EUCFR has raised the procedural fairness bar in at least two respects: on the one hand, it provides parties with extensive due process rights and guarantees during the administrative proceedings; on the other, it imposes stringent obligations on the Commission and the EU Courts. As regards the administrative proceedings, undertakings enjoy, among others, the right to be heard and to access the Commission’s file and they are provided with many opportunities to engage with

88 See s III.E and G Gentile and S Menzione, ‘Searching the Pieces of the EU Justice Puzzle: Articles 47, 48, 49 and 50 of the EU Charter of Fundamental Rights’, in this volume. 89 See, eg Hansen & Rosenthal (n 49) para 18; Global Steel Wire and Others (n 45) para 135; Case C-71/14 Eturas EU:C:2016:42, para 38; Saint-Gobain (n 33) para 491. 90 Chalkor (n 39) para 51; Otis (n 5) para 47; Ziegler (n 31) para 126; Intel (n 33) para 1609.

248 Andriani Kalintiri the authority.91 At the same time, the Commission has an obligation to enable these rights, ‘to examine carefully and impartially all the relevant aspects of the individual case’92 and to provide reasons for its decisions, based on robust evidence, respecting the presumption of innocence (where applicable). As regards the judicial proceedings, the EU Courts have an obligation to uphold the right to an effective remedy, to thoroughly review Commission decisions, to hear the case within a reasonable time, to safeguard the rights of defence and the presumption of innocence, and to state reasons for their judgments. In substantive terms, there does not seem to exist a significant degree of divergence in the level of protection depending on the actor involved. Any differentiation is context-specific, in that the claims are linked to, and assessed in the light of, the specific features of the institution and the proceedings concerned. While the protective scope of Article 47 EUCFR is broad, some aspects of its concrete operation can be viewed more critically.93 In particular, the precise ambit of the rights of defence is unclear – or disputable. For example, when an undertaking might invoke the right against self-incrimination remains somewhat ambiguous.94 Moreover, in the case of non-disclosed exculpatory documents, the defendant must show that these unknown to them documents would have been useful for their defence for a violation of their right to access the file to be established.95 Furthermore, undertakings are not entitled to call and cross-examine witnesses before the EU Courts, which might be problematic if the evidence in question has formed the sole or decisive basis of the Commission’s decision.96 Overall, however, Article 47 EUCFR mirrors Article 6 ECHR and entails a high level of protection, setting the bar of procedural fairness not only for the Commission, but also for national competition authorities and courts in their application of EU competition law, thus serving as a driver towards greater procedural convergence, too.97 In any event, the principle of effective judicial protection has had a crucial incidental effect: it has enhanced the legitimacy of EU competition enforcement.98 Indeed, Article 47 EUCFR reinforces throughput legitimacy by mandating fair procedures and by setting high evidentiary and reasoning expectations from the Commission and the EU Courts. At the same time, Article 47 EUCFR may strengthen output legitimacy, too, to the extent that evidence-based reasoning leads to better substantive outcomes. 91 M Martyniszyn, ‘Due Process in EU Competition Proceedings’ in D Sokol and A Guzman (eds), Antitrust Procedural Fairness (Oxford University Press, 2019). 92 See, eg Case T-712/16 Deutsche Lufthansa v Commission EU:T:2018:269, para 40. 93 See also G Gentile, ‘Two Strings to One Bow? Article 47 of the EU Charter of Fundamental Rights in the EU Competition Case Law: Between Procedural and Substantive Fairness’ (2020) 4 Market and Competition Law Review 16, 18–22. 94 See, eg M Veenbrink, ‘The Privilege against Self-Incrimination in EU Competition Law: A Deafening Silence?’ (2015) 42 Legal Issues of Economic Integration 119, 142. 95 Case C-109/10 P Solvay v Commission EU:C:2011:686, para 57; Also see W Wils and H Abott, ‘Access to File in Competition Proceedings before the European Commission’ (2019) 42 World Competition 255, 301–02. 96 See Kalintiri (n 75) 111–16. 97 See, eg Eturas (n 89) paras 34–41. 98 The phrase ‘principle of effective judicial protection’ is deliberately used here (instead of Art 47 EUCFR) for the reason that some of the mentioned cases touch on issues which have been linked to Art 47 EUCFR (such as the rights of the defence or the intensity of judicial review), without, however, explicitly citing that provision.

Art 47 in EU Competition Enforcement 249 As Commissioner Vestager noted, ‘(…) we’re aware that our reasoning and our choices have to satisfy the courts. (…). And that’s a good thing – because [the rule of law] helps us reach better decisions’.99 The legitimacy connotations of procedural due process have been recently noted by the EU Courts as well. In Commission v ICAP the Court held that the disclosure of the factors on which the authority intends to base its decision is not only mandated by the rights of defence, but also ‘contributes to the fairness, impartiality and quality of the Commission’s decisions which, ultimately, is the basis of the trust that the public and business place in the legitimacy of the Commission’s action in competition matters’.100 Having said that, Article 47 EUCFR has had a further corollary: it has curbed the Commission’s discretion and ability to act. The shift to a ‘more economic’ approach to competition enforcement and the ensuing emphasis on the effects of a practice, rather than its form, has made finding a violation more difficult, to the extent that it has raised the substantive bar for intervention by the authority. However, this represents only one side of the story. The other side lies in the considerable tightening of the Commission’s margin of appreciation and the increased evidentiary demands placed on the authority on grounds of effective judicial protection.101 Traditionally, institutional competence considerations have justified confining the judicial review of Commission decisions to ‘manifest errors of assessment’ with respect to complex evaluations. Over the years, however, the principle of effective judicial protection has led the EU Courts to reduce the authority’s margin of appreciation.102 A clear signal of this development is the General Court’s judgment in CK Telecoms.103 Although merger cases entail complex economic assessments par excellence, the General Court skipped the customary reference to the Commission’s margin of appreciation. Instead, it stressed that the very reason for its creation was ‘to improve the judicial protection of individual interests’, in particular in proceedings requiring a close examination of complex facts and that its control entails an ‘in-depth review [of all the elements of the Commission’s decision] (…) in law and in fact (…)’.104 Coupled with the ‘more economic’ approach to competition enforcement, the heightened evidentiary demands and judicial control stemming from Article 47 EUCFR have thus imposed constraints on the Commission’s discretion. These constraints are amplified in the context of the digital economy which is characterised by uncertainty, complexity, and novel practices and theories of harm, and this has triggered concerns that the applicable substantive and procedural requirements are to blame for chronic underenforcement. Although the 99 M Vestager, Speech, Competition and the Rule of Law (Copenhagen, European Association of Judges, 2019). 100 Case C-39/18 P Commission v ICAP and Others EU:C:2019:584, para 34. 101 A Kalintiri, ‘What’s in a Name? The Marginal Standard of Review of “Complex Economic Assessments” in EU Competition Enforcement’ (2016) 53 Common Market Law Review 1283, 1316; see also Kalintiri (n 75) ch 3. 102 It is no coincidence that the length, for instance, of Commission’s antitrust decisions has increased remarkably since 2005 – from about 220 paragraphs per decision during 1992–2004 to about 500 paragraphs per decision during 2005–2017; see P Ibáñez Colomo and A Kalintiri, ‘The Evolution of EU Antitrust Policy: 1966–2017’ (2020) 83 Modern Law Review 321, 372. 103 Case T-399/16 CK Telecoms v Commission EU:T:2020:217 (appeal pending: C-376/20 P Commission v CK Telecoms). 104 ibid, para 72.

250 Andriani Kalintiri Commission has not shied away from applying the competition rules against big tech companies and many investigations are currently pending, these cases have generated controversy and have not been heard by the EU Courts yet. The observation that Article 47 EUCFR curbs the Commission’s discretion and thus, to some extent, its ability to act is not intended as a criticism of the EU Courts’ judicial review as being overly strict – even less is it an implied call for a more deferential approach towards the authority’s competition decisions. Indeed, thorough judicial scrutiny of administrative action is a core component of any legal system priding itself on being predicated on the rule of law. Rather, this pragmatic remark is intended to highlight a perennial dilemma at the heart of the discussion: how to strike the right balance between fairness and effectiveness of competition enforcement.105 The trade-off ultimately depends on the specific issue and circumstances. For example, in Orange, the General Court clarified that imposing on the Commission an obligation to reveal at the stage of the preliminary investigation the evidence indicating the existence of an infringement ‘would upset the balance struck by the case law between preserving the effectiveness of the investigation and upholding the rights of defence of the undertaking concerned’.106 On the other hand, in ICAP, it was stressed that ‘the requirements relating to compliance with the principle of presumption of innocence cannot be distorted by considerations linked to the safeguarding of the objectives of rapidity and efficiency of the settlement procedure, no matter how laudable those objectives may be’; rather, the Commission must apply the settlement procedure in accordance with the EUCFR.107 Therefore, Article 47 EUCFR does not always trump effectiveness, although it often tips the scales in favour of fairness.

VI. Conclusion This chapter has mapped and illustrated the operation of Article 47 in the field of competition policy since the Treaty of Lisbon. As demonstrated, Article 47 EUCFR entails the right to an effective remedy; the right to a hearing by an independent and impartial tribunal; the right to a hearing within a reasonable time; the duty to state reasons; the presumption of innocence; the rights of defence; and the equality of arms principle. The examination of each of these protections in the EU Courts’ competition case law showed that the material scope of Article 47 EUCFR is broad and flexible, albeit not limitless, while the horizontal consideration of its evolution underlined its move towards greater autonomy and crystallisation. As explained, not only has the principle of effective judicial protection been instrumental in setting high procedural fairness standards in EU competition enforcement, but it has also enhanced its legitimacy and has curbed the Commission’s discretion and thus, to some extent, its ability to act in response to a perceived problem.

105 W Wils, ‘Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network’ (2020) 43 World Competition 1, 5–34. 106 Case T-402/13 Orange v Commission EU:T:2014:991, para 81. 107 Case T-180/15 Icap v Commission EU:T:2017:795, para 266.

14 The Evolution of the Right to an Effective Remedy and to a Fair Trial in Direct and Indirect Taxation: Are We There Yet? KATERINA PANTAZATOU*

This chapter examines the evolution of the right to an effective remedy and to a fair trial in the field of taxation. It distinguishes between direct and indirect taxation and provides an analysis based on the CJEU case-law from both a thematic and evolutionary perspective. Throughout this analysis the chapter concludes that Article 47 provides for an increased judicial protection for the taxpayer in the VAT area, especially when tax authorities obtain evidence unlawfully, or not in compliance with the taxpayers’ rights to privacy and data protection. In the area of direct taxation, the author comments on a number of recent CJEU judgments to demonstrate the crystallisation of the applicability of the Charter. The chapter, further, argues that while the application of the right to an effective remedy to the information holder constitutes a novel and welcomed development, the CJEU should extend this protection to the taxpayer.

I. Introduction EU tax law comprises two distinct ‘sub-areas’: indirect tax law, notably valued added tax (VAT) and excise duties, and direct tax law, that is, for instance, taxes on income and capital. VAT is an area that is largely harmonised, comprising five Directives and culminating with the Sixth VAT Directive, which is the main piece of legislation in VAT law.1 Direct taxation, instead, was until very recently a nascent area. Due to the unwillingness of the Member States to agree unanimously on the proposed measures, very little EU secondary law was adopted in this area. However, since 2011 and in particular since 2016, EU direct tax law has witnessed an increase in secondary law that could

* Katerina Pantazatou is Associate Professor in Tax Law at the University of Luxembourg. 1 Council Dir 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment [1977] OJ L145/1, amended by Council Dir 1999/85/EC of 22 October 1999 [1999] OJ L277/34.

252 Katerina Pantazatou trigger the applicability of the Charter. This happened, in particular, after the repeal of the Mutual Assistance Directive (Directive 77/799/EEC),2 and the entry into force of the Directive on Administrative Cooperation (‘DAC 1’) that substantially broadened the scope of the previous Directive, by introducing the exchange of taxpayers’ information between Member States, on request, spontaneously and automatically, under certain conditions.3 Since then, DAC 1 has been amended six times, extending both the material and subjective scope of the information to be reported and automatically exchanged between Member States.4 This legal framework allowing for information to be automatically exchanged between Member States may impinge upon taxpayers’ rights, including their right to effective judicial protection and an effective remedy. This chapter will discuss the scope of effective judicial protection in the area of tax law. It will also present the evolution of case-law with regard to Article 47 of the Charter with respect to both VAT and direct tax law. It will conclude by assessing the development of effective judicial protection in taxation in general and by making a number of recommendations as to how this could be improved.

II. The Right to Effective Judicial Protection and to an Effective Remedy in Tax Matters: Setting Up the Framework As provided in Article 52(3) of the Charter, insofar as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the said Convention. Thus, we cannot but compare the rights enshrined in Articles 6 and 13 ECHR to Article 47 of the Charter. Article 47 of the Charter, however, has a broader scope ratione materiae: it applies where ‘[the] rights and freedoms guaranteed by the law of the Union are violated’, whether or not they are set out in the Charter, whereas Article 13 ECHR requires a violation of ‘[the] rights and freedoms as set forth in the Convention’.5 In addition, it should be noted that Article 6(1) ECHR limits the right to a fair trial to those tax penalties that can be considered ‘criminal charges’ under national law.6 No such restriction is to be found in Charter Article 47(2), such as that the Charter should also apply in purely administrative law proceedings, unlike Article 6 ECHR.7

2 Council Dir 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation [1977] OJ L336/15. 3 Council Dir 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC [2011] OJ L64/1. 4 For a consolidated text of Council Dir 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Dir 77/799/EEC, see: https://eur-lex.europa.eu/legal-content/EN/TXT/?ur i=CELEX%3A02011L0016–20200701. 5 Art 13 ECHR (italics added). 6 See Judgment of the European Court of Human Rights of 12 July 2001 in Case No 44759/98 Ferrazzini, para. 29; see also Judgment of the European Court of Human Rights of 23 November 2006 in Case No 73053/01 Jussila v Finland. 7 Note, however, the limitation of Art 51(1) EUCFR on its applicability, which can only be relied on against a Member State when ‘they are implementing Union law’.

Right to an Effective Remedy and a Fair Trial in Taxation 253 This last point provides for a crucial distinction between the Charter and the relevant ECHR provisions (Article 6 and 13 ECHR). This is because the first obstacle to overcome in any right-to-a-fair-trial claim in the context of a tax case is determining whether Article 6 ECHR even applies.8 The ECtHR, in several heavily criticised decisions, has refused to apply Article 6 ECHR because ‘tax matters still form part of the hard core of public-authority prerogatives … [such that the ECtHR] considers that tax disputes fall outside the scope of civil rights and obligations, despite the pecuniary effects which they necessarily produce for the taxpayer’ (italics added).9 If, however, the relevant tax penalties can be considered ‘criminal charges’ under the relevant national law,10 the ECtHR acknowledges that tax matters involving such penalties are covered by the right to a fair trial in Article 6 ECHR.11 Setting out, by way of introduction, the right to an effective remedy as enshrined in Article 47 of the Charter, the ‘right of defence’ – a broader, yet relevant right – cannot be ignored. The right of defence is relevant to, yet distinct from, the right to a fair trial and can be considered as one of the ‘predecessors’ or ‘complements’ of Article 47 of the Charter. As an ‘umbrella right’, it consists mainly of the right of access to relevant documents and the right to be heard. Found in both Article 47 of the Charter and Article 6(2) ECHR, the CJEU has recognised its applicability in all proceedings in which sanctions, especially fines or penalty payments, may be applied;12 it has also acknowledged it as a general principle of EU law.13 Thus, it could reasonably be argued that the right of defence is closely connected to the right to effective judicial protection, embodied in Article 47 of the Charter. This has been confirmed in the Texdata Software case,14 where the Court was asked to decide if an Austrian measure that automatically imposed a minimum 700-euro penalty for failing to disclose certain corporate accounting documents within a statutorily mandated nine-month period was compatible with EU law. The penalty was imposed immediately, without prior notice to the company obliged to make the disclosure and without said company having been given an opportunity to state its views on the alleged breach. However, the law did provide a 14-day period in which the company in question could challenge the penalty. The Court found that this period during which the taxpayer company could challenge the penalty was compatible with the principle of effective judicial protection and the right of defence.15 In addition, the law permitted a suspension 8 For a critical analysis, see P Baker, ‘Should Article 6 ECHR (Civil) Apply to Tax Proceedings?’ (2001) 29 Intertax 205. 9 See Ferrazzini (n 6). 10 Art 6 ECHR can apply to tax surcharges proceedings, if the following elements, known as the ‘Engel criteria’ are present: the law setting out the penalties must cover all citizens in their capacity as taxpayers; the surcharge must not be intended to be compensation for damages, but essentially to be punishment intended to deter (re)offending; the surcharge must be imposed under a general rule with both a deterrent and a punitive purpose; and the surcharge must be substantial; see Judgment of the European Court of Human rights of 23 November 1976 in Case No 5100/71, 5101/71, 5102/71, 5354/72, 5370/72 Engel and Others v the Netherlands, paras 82–83. 11 See Jussila v Finland (n 6). 12 Case C-418/11 Texdata Software EU:C:2013:588, paras 77–79. 13 Case C-298/16 Ispas EU:C:2017:843, para 26; see also Case C-28/05 Dokter & Others EU:C:2006:408, para 74. 14 See Texdata Software (n 12). 15 ibid, para 80.

254 Katerina Pantazatou of the relevant time limits in case of unforeseen or unavoidable events that prevented a timely disclosure.16 As a general principle of EU law and as expression of effective judicial protection, the right of defence was often invoked successfully long before the entry into force of the Charter. Such cases include the Sopropé case17 regarding the taxpayer’s right to be heard before a final assessment by the tax authorities was made, and the ‘flagship’ case for taxpayers’ rights, the Sabou judgment.18 This Grand Chamber case is of particular importance as it set a standard, namely the distinction between the investigative stage of the procedure and the contentious stage, that was followed by the CJEU in its subsequent judgments, also after the entry into force of the Charter.19 The case concerned a Czech football player, Mr Sabou, who had played football in several other Member States. The Czech tax authorities requested information from a number of other Member States on the basis of the predecessor of DAC 1 (the Mutual Assistance Directive) in order to confirm the nature and extent of Mr Sabou’s business as well as the truthfulness of his statements. Mr Sabou brought an action before the Czech Supreme Administrative Court arguing, inter alia, that he had not been invited to participate in the information-gathering procedures launched by the tax administrations of the other Member States. In the preliminary ruling handed down by the Grand Chamber of the CJEU in October 2013, the Court examined Mr Sabou’s case vis-à-vis his right of defence, ‘a general principle of European Union law’, and, in particular, his right to participate in the exchange of information between the competent authorities.20 Mr Sabou argued that the tax authorities collected information about him illegally, that he had not been invited to participate in the information-gathering launched by the tax administrations of other Member States and that it was not clear how the information collected from the football clubs of other Member States was obtained. Importantly, the Charter was not applicable in this case, as it came into force on 1 December 2009, whereas the assistance procedure which led to the additional notice of tax assessment had taken place before that time. The Court found that the directive at issue did not confer specific rights on the taxpayer, and in particular it did not lay down any obligation for the competent authorities of the Member States to consult the taxpayer. Instead, the purpose of the directive was to govern cooperation between the tax authorities of Member States, by imposing certain obligations on them.21 As in Sabou the collection and exchange of information took place during the investigation stage, the Court ruled that Mr Sabou did not have the right to be notified nor to be heard during that stage.22 The decision of the Court in 16 ibid. 17 Case C-349/07 Sopropé EU:C:2008:746; see also Case C-277/11 M EU:C:2012:744, paras 86–87; Case C-383/13 G & R EU:C:2013:533. 18 Case C-276/12 Sabou EU:C:2013:678. 19 ibid para 40, ‘[…]in tax inspection procedures, the investigation stage, during which information is collected and which includes the request for information by one tax authority to another, must be distinguished from the contentious stage, between the tax authorities and the taxpayer, which begins when the taxpayer is sent the proposed adjustment.’ 20 Note that Art 41(2) EUCFR which codifies the right of defence as included in the right to good administration does not constitute the premise of the assessment of the CJEU as the Charter came into force after the disputed tax assessment was issued; see Sabou (n 18), para 25. 21 Sabou (n 18), para 36. 22 ibid, para 44.

Right to an Effective Remedy and a Fair Trial in Taxation 255 Sabou attracted a lot of criticism for leaving the taxpayer unprotected during the ‘investigation phase’,23 allegedly, because at that point in time there is no dispute between the taxpayer and the tax authority.24 Thus, the first encounter of the CJEU with taxpayers’ fundamental rights did not go the extra mile to grant taxpayers those rights in the investigation stage. The judgment was even cited by the ECtHR in the Othymia decision,25 to justify the need for secrecy in the investigation procedure of tax cases. This is why the Berlioz ruling, that will be discussed in the next section, was very much welcomed, since it affirmed the applicability of the Charter and Article 47 in the uncharted territory of taxpayers’ fundamental rights.

III. The Right to an Effective Remedy in the Context of Exchange of Information (Berlioz I and Berlioz II) The first Berlioz ruling (Berlioz I) was the second taxpayers’ rights-related case decided by the CJEU, and the first one since the entry into force of the Charter. It was thus an opportunity for the CJEU to affirm (or reject) the applicability of the Charter (and Article 47 specifically) in the area of the exchange of taxpayers’ information. Although the case was different from Sabou in that in Berlioz the case concerned the information holder (and not the taxpayer as in Sabou), the judgment was considered a leap forward in safeguarding taxpayers’ rights. The follow-up case of Luxembourg vs. B and others (‘Berlioz II’) also concerned questions arising from the implementation of DAC 1 in Luxembourg and sought to extend the findings of Berlioz I to taxpayers (and thus, not only to information holders) and third parties concerned. It thus constituted a perfect opportunity to test the limits of Article 47 in the exchange of taxpayers’ information, both with regard to the subjective and objective scope of the provision.

A. Berlioz I In the first case,26 Berlioz, the tax information holder, brought an action before the competent court in Luxembourg arguing that its inability to subject to full judicial review a tax administration information order issued by the Luxembourg authorities pursuant to an information request by the French authorities violated its right to a fair trial, guaranteed in Article 6(1) of the ECHR and Article 47 of the Charter, if the latter was found to be applicable. At the time, the relevant Luxembourg law provided that the information holder could only bring an action against the penalty decision

23 CFE ECJ Task Force, ‘Opinion Statement ECJ-TF 2/2014 of the CFE on the Decision of the European Court of Justice in Sabou (Case C-276/12) Concerning Taxpayer Rights in Respect of Exchange of Information upon Request’ (2014) European Taxation No 7, 318–321. 24 See also Case C-276/12 Sabou EU:C:2013:678, Opinion of AG Kokott, pointing that the information request merely attempts to verify the taxpayer’s own statement. 25 See Judgment of the European Court of Human Rights of 16 June 2015 in Case No 75292/10 Othymia Investments BV v the Netherlands. 26 See Case C-682/15 Berlioz Investment Fund EU:C:2017:373.

256 Katerina Pantazatou and not directly against the information order. Furthermore, in the action against the penalty decision, the competent court(s) could only review the formal compliance of the information request with the applicable legislative requirements and not its substantive compliance with the relevant standard of whether the information was of ‘foreseeable relevance’ for the decision-making process. Among the questions the referring court asked the CJEU was whether the Charter was applicable and if so, whether Berlioz’s right to an effective remedy as guaranteed in Article 47 of the Charter had been violated, since the national court could not have examined the validity of the information order underpinning the penalty imposed on the information holder. With regard to the applicability of the Charter, the Court ruled that, even if Directive 2011/16 did not make express reference to the imposition of penalties, those penalties had to be considered as involving the implementation of that directive and, consequently, they fell within the scope of EU law.27 In line with the Åkerberg Fransson case,28 whereby the CJEU ruled that the criminal penalty imposed by Sweden on Åkerberg was a measure implementing the EU legislation on VAT despite the lack of any reference to sanctions in the VAT Directive itself,29 the Court decided in Berlioz that the national legislation at issue, imposing the penalty in the event of non-compliance, intended to ensure the application of the directive.30 The first Berlioz judgment thus confirmed the applicability of the Charter to the situations such as those dealt with in the ruling. Having established the applicability of the Charter, the Court held that, in order to ensure compliance with Article 47, an information request had to be subject to full judicial review, namely that the national court had to be able to control whether the threshold of ‘foreseeable relevance’ is met when a national authority issues an information request. The CJEU judgment based its reasoning on Article 47(2) and everyone’s entitlement to a hearing by an independent and impartial tribunal.31 Compliance with that right requires, in the view of the Court, that a decision of an administrative authority that does not itself satisfy the conditions of independence and impartiality be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues (in the case, the control of the legality of the information order).32 This condition was not satisfied in the case in question, as the judicial body that would review the case did not have full jurisdiction to consider all relevant issues, in particular the ability to examine the compliance of the information order with the criterion of ‘foreseeable relevance’.33 Thus, the Court concluded that in order to comply with Article 47 of the Charter, the national court should have the right to review the

27 ibid, para 39. 28 See Case C-617/10 Åkerberg Fransson EU:C:2013:105. 29 See Council Dir 2006/112/EC of 28 November 2006 on the common system of value added tax [2006] OJ L347/1; In Åkerberg Fransson (n 28), the Court held that Art 2, Art 250(1) and Art 273 of the Directive and Art 4(3) TEU ‘envisaged the application of measures necessary for the collection of the tax’. On the basis of that finding, the Court considered that pecuniary penalties and criminal proceedings, such as those provided for in the national legislation at issue, constituted an implementation of EU law that made the Charter applicable. 30 See Berlioz (n 26) para 40. 31 ibid, para 54. 32 ibid, para 55. 33 ibid, paras 55–56.

Right to an Effective Remedy and a Fair Trial in Taxation 257 legality of the information request, which would, however, be limited to verifying that the requested information is not ‘manifestly devoid of any foreseeable relevance’.34

B. Luxembourg v B and Others (‘Berlioz II’) In this landmark Grand Chamber case in the area of taxpayers’ fundamental rights, the applicants include not only the information holder, but also the taxpayer affected and the third parties indirectly affected. All applicants wished to challenge directly the information order itself, prior to the imposition of a penalty.35 The case concerned a request for exchange of information by the Spanish tax authorities to the Luxembourg tax authorities. This request was prompted by a tax investigation Spain opened against the taxpayer, a famous artist, with a view to assessing her worldwide income for the fiscal years in question (2011–2014) and, subsequently, for the duration of her residence in Spain. In this context, the Luxembourg tax authorities issued two information orders, one directed to Limited Liability Company B incorporated under Luxembourg law and owned by the taxpayer, and the other one to the bank where the taxpayer and three other companies she owned had their accounts. Based on the Double Tax Convention (DTC) between Spain and Luxembourg, as well as DAC 1, the Spanish authorities requested several pieces of information from company B and the bank for the fiscal years in question. In both cases, the Luxembourg tax authorities notified the information holders of their obligation to provide the requested information and that no appeal could be brought against this injunction decision.36 The four companies and the taxpayer contested before the competent courts both information orders before a penalty decision for the refusal to provide the information was issued.37 In this context, the Luxembourg administrative court asked the CJEU, inter alia, whether Article 47 of the Charter, read in conjunction with Articles 7 and 8 and Article 52(1) thereof, precluded legislation such as the Luxembourg one, according to which the addressee of the information order, the taxpayer and third parties affected by the information order could not directly appeal against the information order. It is noteworthy that AG Kokott’s opinion and the judgment differed to a large extent in their assessment of Articles 47 in conjunction with Article 52(1) of the Charter. The analysis of the AG and the Court assessed the right to an effective remedy for the following parties; the information holder, the taxpayer and the third parties concerned.

34 ibid, paras 86 and 89. 35 See Joined Cases C-245/19 and C-246/19 État luxembourgeois v. B and Others EU:C:2020:795 (Berlioz II). 36 Based on Art 6(1) of the law of 25 November 2014; It should be noted that the law of 25 November 2014 has been repealed and replaced by the law of 1 March 2019, that provides inter alia that the competent tax authorities need to ensure that the requested information is not devoid of ‘any foreseeable relevance’ and that the information holder may bring an action for annulment before the administrative court against an injunction to provide the relevant information. 37 Note here the difference with Berlioz I (n 26), where Berlioz brought an action against the decision of the tax authorities to impose a fine.

258 Katerina Pantazatou

i. Right to an Effective Remedy for the Addressee of the Information Order Both the AG and the Court agreed that the addressee of the information order should be granted the benefit of the right to an effective remedy guaranteed by Article 47 of the Charter, in the presence of such an information order. Similar to Berlioz, the Court invoked settled case-law according to which ‘the protection of persons, both natural and legal, against arbitrary or disproportionate intervention by the public authorities in the sphere of those persons’ private activities constitutes a general principle of EU law.’38 Consequently, the Court continued, the addressee of the information order (company B) may rely on this protection for the purposes of Article 47(1) of the Charter in order to challenge the information order, according to the Berlioz I judgment.39 That right may be limited, if the conditions of Article 52(1) of the Charter are met, notably that such limitations are prescribed by law, they respect the essence of the rights and freedoms in question, meet the objectives of general interest recognised by the Union and comply with the principle of proportionality. As DAC 1 seems to have no intention to limit the right to an effective remedy, the first condition of Article 52(1) is not satisfied.40 Similarly, when looking at the essence of the right to an effective remedy, the Court noted that the persons invoking the right could not be forced to infringe a rule or legal obligation, that is, to refuse to provide the requested information, and expose themselves to the penalty attached to that infringement, in order to rely on that right. In the present case, this is exactly what company B would have had to do in order to challenge the information order; it would have had to infringe the law and then challenge it by way of an incidental question in the context of the appeal against such a penalty. In the view of the Court, this requirement did not meet the essence of the right to an effective remedy.41

ii. Right to an Effective Remedy for the Taxpayer The second question related to the taxpayer’s right to an effective remedy. For Article 47 of the Charter to apply, the taxpayer’s own rights or freedoms would have to be affected. In the view of the Court, by requesting information concerning bank accounts and financial assets of which the taxpayer is the holder or the beneficial owner, the Luxembourg tax authorities interfered with her right to respect for private life (Article 7 of the Charter) and the right to the protection of personal data concerning her (Article 8 of the Charter).42 Consequently, as the information order interferes with the aforementioned substantive rights of the taxpayer, she should be granted the right to an effective remedy. 38 See Berlioz II (n 35). 39 ibid, para 58 and case law cited. 40 The Court noted in particular the references in the directive to the General Data Protection Regulation (GDPR) and its predecessor whereby it is emphasised that every person must have the right to a judicial remedy when confronted with a breach of their rights when processing such data. 41 See Berlioz II (n 35) paras 66–68. 42 ibid, paras 72–73 and settled case law cited regarding the interference caused by the disclosure to a third party, including a public authority, of information in relation to an identified or identifiable natural person.

Right to an Effective Remedy and a Fair Trial in Taxation 259 The Court then went on to consider whether that right could be limited, in accordance with Article 52(1) of the Charter. As the national legislation at issue makes it apparent, the requirement that the limitation is provided by law is met. As to the requirement that the essence of the right is respected, the Court noted that, while access to a court or a tribunal that can ensure the protection of the rights guaranteed by EU law is required,43 there is no requirement that the right holder have a direct remedy to challenge the measure at issue, so that that any legal (even indirect) remedy would suffice to satisfy the essence of the right enshrined in Article 47.44 Consequently, according to the Court, as the taxpayer is not subject to any legal obligation by the information order and, hence, is not susceptible to a penalty for noncompliance, she was not obliged to place herself in an illegal situation in order to be able to exercise her right to an effective remedy, as opposed to the addressee of the information order.45 However – unlike the information order which is addressed to someone other than the taxpayer – a correction or adjustment decision constitutes an act in respect of which the taxpayer concerned must have a right to an effective remedy.46 Accordingly, when the information order leads the requesting national authority to adopt a correction or an adjustment decision which is based on that information, the taxpayer affected by the investigation has the possibility of challenging the information order indirectly and the conditions under which the relevant evidence was obtained and used, in the context of the appeal which she may lodge against the adjustment decision.47 Therefore, the national legislation at issue ‘must be regarded as not adversely affecting the essence of the right to an effective remedy guaranteed to the taxpayer concerned’.48 On the same question, AG Kokott had a different perspective from the Court. She agreed that even a merely indirect legal remedy could be effective in certain circumstances, notably if the taxpayer could raise a plea alleging deficiencies in the taking of evidence in the procedure before the Spanish tax authorities against a subsequent payment decision directed at her.49 However, in this context, the AG noted that such an indirect remedy would not necessarily effectively prevent the interference of the public authority with the taxpayer’s protection of personal data, as a first interference with the taxpayer’s private life (Articles 7 and 8 of the Charter) had already taken place at an earlier stage, when personal data was requested from another party. Instead, the indirect remedy would only deal with the ‘second’ distinct interference that takes place when the payment obligation is imposed on the taxpayer, if there is such a payment obligation, which may affect the fundamental rights under Article 20 (equality before the law) and Articles 16 and 17 of the Charter (freedom to conduct a business and right to property).50 Consequently, according to the AG, as such an indirect legal remedy is not capable of effectively preventing interference with the protection of personal data, 43 ibid, para 66. 44 ibid, para 79 and case law cited. 45 ibid, para 80. 46 ibid, para 82. 47 ibid, para 83. 48 ibid, para 84. 49 Joined Cases C- 245/19 and C-246/19 État luxembourgeois v B and others EU:C:2020:516 , Opinion of AG Kokott, paras 68–69. 50 ibid, para 71.

260 Katerina Pantazatou which occurred when the data was collected, it cannot be considered as an effective remedy within the meaning of Article 47 of the Charter.51 In assessing the proportionality aspect of the limitation to the right under Article 47, the Court ruled that as the objective of DAC 1,52 and accordingly of the implementing law in place, is to combat international tax fraud and tax evasion, this could necessitate the limitation of certain rights and obligations laid down by Directive 95/46/EC, the objective pursued by the national legislation at issue fell within the objectives of general interest recognised by the Union.53 It also found the limitation proportionate because the directive requires quick and efficient cooperation between the competent national authorities, and a possible direct appeal of the taxpayer against the information order would risk compromising the speed and efficiency of that cooperation, and, therefore, the objectives of DAC 1.54

iii. Right to an Effective Remedy for the Third Parties Concerned The CJEU relied on ECtHR case law to find that third parties may also enjoy protection against arbitrary or disproportionate intervention by the public authorities in the sphere of their private activities. The protection against arbitrary or disproportionate intervention is a general principle of EU law, and when a decision may interfere with it, third parties should be then granted an effective remedy.55 However, the Court decided that, in this case too, the right to an effective remedy could lawfully be limited, in accordance with Article 52(1) of the Charter. The analysis was similar to the one the CJEU made with regard to the taxpayer; the legislation at issue clearly defined the limitation, the essence of the right was respected in that the third parties were under no legal obligation to provide the information and, consequently, they were not at risk of receiving a penalty.56 In any case, as the Court ruled, they could bring an action for damages.57 As discussed above, AG Kokott reached a different conclusion with respect to the right to an effective remedy for the taxpayer. Unlike the Court, she had found that the impossibility for third parties to appeal directly the information order violated their right to an effective remedy. With respect to third parties, AG Kokott proceeded by arguing that while the companies at issue could not benefit from Article 8 of the Charter (except in very specific cases), they could still rely on Article 7 of the Charter.58 In line with her earlier analysis, the AG repeated that orders issued by the requested authority cannot be regarded as preparatory acts, but constitute onerous legal acts themselves. As

51 ibid, para 74. 52 Council Dir 2011/16/EU. 53 See Berlioz II (n 35) paras 86–88. 54 ibid, paras 89–92. 55 ibid, paras 96–97; Note, however, that the Court added that ‘even though the disclosure to a public authority of legal, banking, financial or, more broadly, economic information concerning them can in no way be regarded as going to the heart of those (cc private) activities.’ 56 ibid, paras 98–102. 57 ibid, para 101. 58 Joined Cases C- 245/19 and C-246/19 État luxembourgeois v B and others EU:C:2020:516, Opinion of AG Kokott, paras 88–91.

Right to an Effective Remedy and a Fair Trial in Taxation 261 in the case of the taxpayer, the interference with the rights of companies already came to an end when the data was transmitted to the tax authorities by another private party in accordance with the order.59 The AG also rightly found that this finding is not contrary to the Othymia judgment, whereby the ECtHR merely stated that, in matters of taxation, Article 8 of the ECHR does not require that prior notice of exchanges of tax-related information be given to all persons potentially implicated.60 Since, unlike the information holder and the taxpayer, third parties were completely excluded from any ongoing or subsequent administrative procedures, they did not risk incurring any penalty for not providing information nor would they receive any tax assessment, in the context of which they could indirectly challenge the collection of evidence. Consequently, in a system such as that in the present case, the third parties concerned had absolutely no legal remedy. As to the question whether an indirect legal remedy in the context of subsequent State liability proceedings could constitute an effective remedy within the meaning of Article 47 of the Charter, the AG answered in the negative citing the ECtHR San Marino case.61 This constituted another point of contention between the CJEU and the AG, as according to the Court, and in contrast to the AG’s opinion, the fact that the third parties indirectly affected could bring an action for damages was deemed to constitute an effective legal remedy.

IV. Luxembourg State v L The very recent Luxembourg State v L case62 concerned the interpretation of the foreseeable relevance term, as this is enshrined in DAC 1, in the context of the identification of taxpayers in group information requests. More related to the focus of this chapter, it also examined the information holder’s right of defence. Specifically, it concerned the scope of Article 47 and whether this guaranteed a minimum amount of information be communicated to the rightholder in order to be able to assess the legality of the information request. Specifically, the question to the Court was whether the right to an effective remedy required that the addressee of the information order could be given a grace period (in case a fine was upheld for failure to provide the requisite information) on the basis of (a) the fact that at the time, according to Luxembourg law, he could not challenge the information order itself and that (b) he had not been provided with the necessary information that supported the contention that the information request was foreseeably relevant.63 The case is distinct from Berlioz in that in the present case the rightholder, in casu the information holder, challenges inter alia the (minimum) content of the

59 ibid, paras 92–96. 60 ibid, para 97. 61 ibid, para 102 and case law cited. 62 Case C-437/19 Luxembourg state v L EU:C:2021:953. 63 Council Dir 2011/16/EU, Art 20(2), this information consists of the identity of the person under examination or investigation and the tax purpose for which the information is sought.

262 Katerina Pantazatou information order itself and not the disclosure of the information request by the other Member State, as in Berlioz. In Luxembourg State v L, the Court reiterated that the information holder could rely on Article 47 of the Charter to challenge the information order or the penalty decision, in case of an arbitrary or disproportionate intervention by the public authorities in the sphere of their private activities. As to the rightholder, the CJEU built on the Berlioz judgment, where it had held that their right of defence will not be infringed as long as the rightholder is able to demonstrate in court that ‘all or part of the requested information manifestly has no foreseeable relevance in the light of the investigation being carried out, given the identity of the taxpayer concerned and the tax purpose for which the information is sought.’64 This necessitated, in the view of the Court in Berlioz, that the rightholder has access to the minimum information regarding the information request referred to in Article 20(2) of DAC 1, in the context of the judicial proceedings against the information order and the decision imposing a penalty for failure to comply with that order.65 The Court followed the same logic in the present case, arguing that for the judicial review of Article 47 to be effective, the person concerned should be able to ascertain the reasons upon which the decision taken in relation to them was based, in order to be able to best defend their rights. This necessitates that the information order be (also) duly reasoned, in order to enable the addressee of that order to understand its scope and to enable them to decide whether or not to challenge it by judicial means.66 Furthermore, in line with Luxembourg v B and Others, the Court confirmed that the essence of the right enshrined in Article 47 requires access to a direct legal remedy for the information holder and not merely an incidental review, in the context of the challenge of the penalty decision. The information holder should not, therefore, have to first be subject to the penalty in order to be able to challenge the information order.67 Consequently, the Court held that in light of Article 47 of the Charter, the information holder in the present case and under the present circumstances, must be given a grace period to pay the imposed fine, if the legality of the information order is definitively upheld. It is noteworthy that the Court added, in the present case, a further layer of administrative and procedural economy, a corollary of Article 47 of the Charter, in that the information order addressed to the information holder must be duly reasoned. Without directly affirming that the inclusion of the minimum information referred to in Article 20(2) of DAC 1 must be included in the information order, the Court appears to give the information holder an additional possibility to inquire, early enough, whether the ‘foreseeable relevance’ standard – and, accordingly, the legality of the information request – is met.

64 See

Berlioz (n 26) para 99. Luxembourg state v L (n 62) para 91; see Berlioz (n 26) para 100. 66 See Luxembourg state v L (n 62) paras 92–93. 67 See Luxembourg state v L (n 62) paras 94–95. 65 See

Right to an Effective Remedy and a Fair Trial in Taxation 263

V. The Right to an Effective Remedy and to a Fair Trial in Indirect Taxation (VAT) A. Effective Access to Justice: Legal Fees and the Grant of Legal Aid: Ordre des barreaux francophones et germanophone and Others The case concerned the scope of Article 47 of the Charter, in particular, of the right of everyone to have the possibility of being advised, defended and represented by a lawyer and the right to an effective remedy through the granting of legal aid to individuals who lack sufficient resources. The Barreaux francophones case concerned the Belgian exemption from VAT of services supplied by lawyers, until 31 December 2013.68 Belgium was the only Member State to make use of that derogation in the Sixth VAT Directive. The exemption was abolished as of 1 January 2014 and as lawyers’ fees were from that time subject to VAT, they increased. This led a number of Belgian bar councils, together with several human rights and humanitarian associations and individuals to bring proceedings before the Cour constitutionnelle challenging the abolition of that exemption, on the basis that the resulting increase in the cost of litigation breached various guarantees of the right of access to justice. The Belgian Constitutional Court referred, inter alia, the following question to the CJEU, whether by making services supplied by lawyers subject to VAT, the Sixth VAT Directive complied with Article 47 of the Charter, insofar as that article recognises that everyone is entitled to a fair hearing and has the possibility of being advised, defended and represented and that there is a right to legal aid for those who lack sufficient financial means. And, if the Directive is interpreted as not allowing for any exemption from VAT for services supplied by lawyers for clients who qualify for legal aid under a national legal aid scheme legal, whether the Directive complies with Article 47 of the Charter. The CJEU commenced by noting that for the individuals who are not entitled to legal aid, the right to an effective remedy enshrined in Article 47 of the Charter, does not, in principle, guarantee a right to the exemption from VAT of the supply of services by lawyers.69 In this context, although access to justice and the effectiveness of legal protection depend on a multitude of all sorts of factors, the fact remains that the costs arising from legal proceedings, which include the VAT on the services supplied by lawyers, can also affect the decision of an individual to assert their rights in judicial proceedings and be represented by a lawyer.70 However, according to the case law of the Court relating to several areas other than VAT law and in line with ECtHR case law, the imposition of such costs can be challenged in the light of the right to an effective remedy guaranteed by Article 47 of the Charter only where those costs represent ‘an insurmountable obstacle or where they

68 Case

C-543/14 Ordre des barreaux francophones et germanophone and Others EU:C:2016:605. Barreaux francophones (n 68) para 28. 70 ibid, para 30. 69 See

264 Katerina Pantazatou make it in practice impossible or excessively difficult to exercise the rights conferred by the EU legal order’.71 In assessing whether this is the case here, the CJEU noted that ‘the imposition of VAT at a rate of 21% on the supply of those services does not entail a commensurate increase in lawyers’ fees, since, as taxable persons, lawyers have the right to deduct VAT imposed on purchases of goods or services as part of the services which they supply, pursuant to Article 168(a) of Directive 2006/112. Since the exercise of the right of deduction is likely to reduce their fees, the extent to which lawyers are financially obliged to pass on the cost resulting from the VAT in their fees is uncertain.’72 Thus, in the view of the Court, the imposition of VAT does not necessitate an increase in lawyers’ fees which are freely negotiated.73 Taking into account also that the amount of VAT to be paid in legal proceedings is far from constituting the largest part of the costs of legal proceedings, it cannot qualify as entailing an insurmountable obstacle to the access to justice.74 Therefore, the protection conferred by the right to an effective remedy does not extend to the imposition of VAT on the services supplied by lawyers.75 The Court then went on to consider the principle of equality of arms, a corollary of the very concept of a fair trial, that aims to ensure a balance between the parties to the proceedings and implies that each party must be afforded a reasonable opportunity to present their case, including their evidence, under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent.76 The main question in this context related to whether litigants entitled to legal aid and those who were not – and, thus, incurred an increase in the fees due to the imposition of VAT – enjoyed the protection afforded by this principle. In this context, the Court held that the guarantee conferred by the principle of equality of arms does not extend to the charging of VAT at the rate of 21% on services supplied by lawyers.77 To reach this conclusion, it considered, inter alia, that the principle of equality of arms does not entail the obligation to place the parties on an equal footing in terms of the financial costs incurred in connection with legal proceedings.78

B. Collection and Use of Evidence in Proving VAT Fraud: Dzivev The Dzivev case concerned Mr Dzivev, amongst others, who was accused of directing a criminal organisation that had committed tax fraud. In order to gather evidence to prove his involvement, his telecommunications were intercepted. Under Bulgarian procedural law, the evidence gathered that would lead to Dzivev’s conviction was unlawful and could not be used in criminal proceedings against him.79

71 ibid,

para 31 and case law cited therein. para 33. 73 ibid, paras 34–35. 74 ibid, paras 36–37. 75 ibid, para 38. 76 ibid, para 40. 77 ibid, para 46. 78 ibid, para 42. 79 Case C-310/16 Dzivev and Others EU:C:2019:30. 72 ibid,

Right to an Effective Remedy and a Fair Trial in Taxation 265 In this context, the question referred by the competent Bulgarian court was whether EU law, and especially Article 325(1) TFEU,80 Article 1(1)(b) and Article 2(1) of the PFI Convention and Article 47 of the Charter specifically, precluded the application of provisions of national law that prohibited the use of evidence obtained through interceptions that were ordered by a court which had no jurisdiction and/or which were not properly reasoned, if that evidence alone could establish Mr Dzivev’s involvement in a VAT-related offence. In this context, the Court first observed that EU law, in its present state, does not make provision for rules, which may be applied to the circumstances of the case, relating to the procedure for the taking of evidence and the use of that evidence in VAT-related criminal proceedings. Therefore, that sphere falls, in principle, within the competence of the Member States.81

As the revenue from VAT is directly connected with the EU budget, any deficiencies in the collection of VAT would harm the financial interests of the EU. Despite this, Member States remain free to choose the applicable penalties, which may take the form of administrative penalties, criminal penalties, or a combination of the two. Criminal penalties may nevertheless be essential to combat certain serious cases of VAT evasion in an effective and dissuasive manner, as is required by Article 2(1) of the PFI Convention, read in conjunction with Article 1(1) of that convention.82 Thus, although the penalties and administrative and/or criminal procedures relating to those penalties are established by Member States in order to counter infringements of harmonised VAT rules, they remain within their procedural and institutional autonomy and they can only be limited by the principles of equivalence and effectiveness.83 In this context, the Court had previously held that it is for the national courts to give full effect to the obligations under Article 325(1) TFEU and to disapply national provisions which, in connection with proceedings concerning serious VAT infringements, prevent the application of effective and deterrent penalties to counter fraud affecting the financial interests of the Union.84 This obligation, however, does not waive the obligation of the national courts to observe the fundamental rights guaranteed by the Charter and the general principles of EU law. As the Court reminds us, in criminal law, those rights and those principles must be respected not only during the criminal proceedings, but also during the stage of the preliminary investigation, from the moment when the person concerned becomes an accused.85 The Court did not continue its analysis on the basis of Article 47 of the Charter, but rather on the basis of Articles 7 and 52(1) of the Charter. It thus noted that the interception of telecommunications amounts to an interference with the right to a private life. As, however, the interception of the communications at issue was authorised by a national court lacking competence to do so, the requirement of the limitation to be in 80 Art 325(1) TFEU provides that Member States should establish effective deterrent measures to combat fraud and any other illegal activities affecting the financial interests of the European Union. 81 See Dzivev (n 79) para 24. 82 ibid, para 27 and case law cited therein. 83 ibid, para 30. 84 ibid, para 32. 85 ibid, para 33.

266 Katerina Pantazatou accordance with the law, as enshrined in Article 52 (1), was not met.86 Consequently, the national court had to exclude from the prosecution evidence such as the interception of telecommunications requiring prior judicial authorisation, where that authorisation was given by a court that lacked jurisdiction.

VI. Use of Evidence from Criminal Proceedings without the Knowledge of the Taxpayer A. WebMindLicenses The WebMindLicenses (WML) case87 concerned an agreement between WML (a company established in Hungary) and a company established in Portugal. Following a tax inspection of WML, the Hungarian tax authorities argued that the transfer of WML’s know-how to Lalib was abusive, as it did not correspond to a genuine economic transaction. For that reason, the Hungarian tax authorities made a number of tax adjustments, including adjustments in the payment of VAT. They premised this finding on evidence obtained without the knowledge of WML, in the context of a criminal proceeding that had not yet been concluded, without asking for information from Portugal in determining whether VAT had already been paid. As WML did not agree with the view of the tax authorities, it appealed before the competent national court, which sent a reference for a preliminary ruling to the CJEU, asking, among other things, whether the Charter permitted tax authorities to gather and use evidence obtained without the knowledge of the taxable person in the context of a criminal proceeding. In other words, the referring court asked whether EU law, in particular Articles 7, 8 and 52 of the Charter, should be interpreted as precluding tax authorities from using evidence from still ongoing criminal proceedings, without the taxable person’s knowledge. With regard to the protection afforded by Article 47 of the Charter, the referring court asked whether the effectiveness of Article 47 of the Charter requires that the administrative court hearing the action against the administrative decision of the tax authority may review the legality of the obtaining of evidence collected for the purpose of criminal proceedings, without the knowledge of the person concerned in the context of criminal proceedings, in particular when the taxable person against whom the criminal proceedings have been brought in parallel has not been able to have knowledge of that documentation or contest its legality before a court.88 The Court held that a court reviewing the legality of a decision implementing EU law (that is, in the present case, the adjustment of VAT after the finding of abuse, pursuant to Articles 2, 250(1) and 273 of the VAT Directive and Article 325 TFEU)89 must be able to verify whether the evidence on which that decision is founded has been obtained

86 ibid,

paras 35–37. C-419/14 WebMindLicenses EU:C:2015:832. 88 See Dzivev (n 79) para 28. 89 ibid, para 67. 87 Case

Right to an Effective Remedy and a Fair Trial in Taxation 267 and used in breach of the rights guaranteed by EU law and, especially, by the Charter.90 Thus, the requirement of effective judicial protection will be satisfied if the court hearing the challenged decision of the VAT adjustment can check that the evidence upon which that decision is founded was obtained in that criminal procedure in accordance with the rights guaranteed by EU law, or can at least satisfy itself, on the basis of a review already carried out by a criminal court in an inter partes procedure, that that evidence was obtained in accordance with EU law.91 If the aforementioned is not satisfied, then the evidence obtained in this context must be disregarded and the contested decision which is founded on that evidence must be annulled if, as a result, the decision has no basis.92 On these grounds, the CJEU concluded that it was for the referring court to verify, first, whether the interception of telecommunications and seizure of emails were means of investigation provided for by law and were necessary in the context of the criminal procedure and, secondly, whether the use by the tax authorities of the evidence obtained by those means was also authorised by law and necessary. It was incumbent upon that court, furthermore, to verify whether, in accordance with the general principle of observance of the rights of the defence, the taxable person had the opportunity, in the context of the administrative procedure, to gain access to that evidence and be heard. If the national court found that the taxable person did not have that opportunity or that that evidence was obtained in the context of the criminal procedure, or used in the context of the administrative procedure, in breach of Article 7 of the Charter, it must disregard that evidence and annul that decision if, as a result, the latter has no basis. That evidence must also be disregarded if the national court is not empowered to check that it was obtained in the context of the criminal procedure in accordance with EU law or cannot at least satisfy itself, on the basis of a review already carried out by a criminal court in an inter partes procedure, that it was obtained in accordance with EU law.

i. Joined Cases IN v Belgische Staat and JM v Belgische Staat In the joined cases IN and JM v Belgische Staat,93 the Belgian referring court asked the CJEU whether it could use evidence obtained in violation of the right to respect for private life, as enshrined in Article 7 of the Charter, for the assessment of VAT. The background of the case goes back to 1995, when the Belgian Special Tax Inspectorate started investigating an alleged VAT carousel fraud against two Belgian trading and distribution companies for computers and computer parts, and their managing directors, which was followed by criminal investigations initiated in 1996. In the context of these criminal investigations, Luxembourg transferred evidence to Belgium in breach of a provision in an international agreement. This evidence was used at least for the income tax assessments. One of the questions that arose was whether a Member State acts within the

90 ibid,

para 87. para 88. 92 ibid, para 89. 93 Joined Cases C-469/18 and C-470/18 IN and JM v Belgische Staat EU:C:2019:895. 91 ibid,

268 Katerina Pantazatou scope of application of EU law, as required by Article 51(1) of the Charter, if its tax authorities use, for an income tax assessment, evidence gathered in breach of fundamental rights of the EU. If so, could this evidence be used in the context of an income tax assessment, according to Article 47 of the Charter? As the AG observed, the matter goes beyond the much-discussed Åkerberg Fransson judgment from 2013. In that judgment, the Court ruled that criminal proceedings regarding VAT fraud serve to ‘implement … Union law’ within the meaning of Article 51(1) of the Charter. It is now necessary to examine whether the assessment of income tax serves to implement Union law if evidence that was obtained during a pre-trial investigation initiated due to suspicion of VAT fraud is used.94

Both the Court and the AG agreed that obtaining evidence in the criminal proceedings and using this evidence for the purpose of adjusting personal income tax returns did not constitute an implementation of EU law within the meaning of Article 51(1) of the Charter. Hence, the Charter was not applicable ratione materiae.95 Despite this finding, the AG proceeded to examine whether Article 47 precluded the use of the evidence at issue that was obtained in violation of EU law, in case the CJEU assumed the implementation of Union law in the assessment of income tax. The case is reminiscent of the WebMindLicenses case, where the CJEU ‘merely stated that the national court must review the lawfulness of the manner in which that evidence was gathered.’96 This finding does not answer whether an infringement in the gathering of evidence automatically results in a prohibition on the use of evidence or whether the national court may carry out an evaluation.97 Starting from the fact that procedures for countering infringements in the field of VAT fall within the procedural and institutional autonomy of the Member States and can only be limited by the fundamental rights, the principle of proportionality, equivalence and effectiveness, there is nothing in Article 47 of the Charter to entail an automatic prohibition on the use of evidence. Thus, in accordance with the case law of the ECtHR,98 the CJEU has ruled before that it cannot be excluded as a matter of principle and in the abstract that unlawfully obtained evidence may be admitted, but rather it is for the national courts to assess the evidence they have obtained.99 In light of those findings, the AG suggested that an assessment of the proportionality of the intervention on a case-by-case basis is the best way of

94 Joined Cases C-469/18 and C-470/18 IN and JM v Belgische Staat EU:C:2019:895, Opinion of AG Kokott, para 3 (italics added). 95 The reasoning was premised on the fact that the evidence obtained in criminal proceedings following a complaint by the Belgian tax authorities relating to VAT fraud was used for a personal income tax assessment. Accordingly, the evidence had not been obtained by means of mutual assistance pursuant to the Mutual Assistance Directive which governs only administrative cooperation in the field of taxation, but instead by means of mutual assistance in criminal matters which had not been harmonised yet; see Belgische Staat (n 93) para 18; see also Joined Cases C-469/18 and C-470/18 Belgische Staat Opinion of AG Kokott (n 94), paras 65–66. 96 Joined Cases C-469/18 and C-470/18 Belgische Staat Opinion of AG Kokott (n 94), para 72. 97 ibid. 98 See Judgment of the European Court of Human Rights of 18 March 1997 in Case No 21497/93 Mantovanelli v France, paras 33 and 34; see also Judgment of the European Court of Human Rights of 25 March 1999 in Case No 25444/94 Pélissier and Sassi v France, para 45. 99 Joined Cases C-469/18 and C-470/18 Belgische Staat Opinion of AG Kokott (n 94), para 77 and case law cited therein.

Right to an Effective Remedy and a Fair Trial in Taxation 269 taking the fundamental rights into account, in the sense that in the present case, the evaluation of the national court will have to take account primarily of which provision has been infringed and what the nature of that infringement is. To this end, it will be necessary to consider that a Belgian judge was present at the seizure of evidence by the Luxembourg judge, meaning that there may ‘only’ be an infringement of the Benelux Treaty, which does not automatically constitute an infringement of Article 7 of the Charter. Consequently, in the AG’s view, Article 47 of the Charter does not preclude a national provision pursuant to which a national court must decide whether a piece of evidence that was obtained in violation of EU law during a preliminary investigation into VAT-related offences may be used for the assessment of income tax.

VII. Conclusion Since the Åkerberg Fransson judgment the applicability of the Charter in the area of VAT law, a largely harmonised area, has not been disputed. The relevant case law ever since has dealt, in principle, with the collection and use of evidence in proving VAT-related infringements and crimes. Therefore, it does not come as a surprise that Article 47-related case law is much more developed and ‘taxpayer-friendly’ in this area, in the sense that effective judicial protection of the taxpayer would prevail over proving any given tax infringement. In contrast, in the area of direct taxation and specifically the exchange of tax information between Member States, the case law relating to the Charter and effective judicial protection is still in the making. In relation to this strand of case law, one important step is the affirmation of the applicability of the Charter in the exchange of information between Member States, something that would have been inconceivable in the area of direct taxation in the near past. Despite the positive development of the solidification of the Charter in the area of direct tax law, the Court’s understanding of the essence of the right enshrined in Article 47 of the Charter has been rather disappointing for taxpayers after the Luxembourg v B and Others judgment.100 The reason is that the Court agreed in this case, that the possibility for the taxpayer to only incidentally challenge the information order in the context of the tax adjustment in the requesting state does not adversely affect the essence of the right to an effective remedy guaranteed to the taxpayer concerned. Thus, in this context, the discussion around the essence of the right to effective judicial protection revolves around the ‘effectiveness’ of an indirect legal remedy. While an indirect legal remedy is deemed to be an effective legal remedy for the taxpayer, the information holder must have access to a direct legal remedy in order for the requirements of Article 47 to be satisfied. The distinctive element between the two is that the information holder risks being penalised in case of non-disclosure of information, whereas the taxpayer runs the same risk – only at a later stage – when receiving a tax adjustment on the basis of the information at stake. This difference justifies, in the opinion of the Court, that only the former should be able to access a direct legal remedy against an information order.

100 See

Berlioz II (n 35).

270 Katerina Pantazatou This is reinforced by the reiteration of the Court of its settled case law that there is no EU law-related obligation to ensure the strongest judicial protection possible, in the sense that the right-holder must unconditionally have a direct remedy, the primary object of which is to call into question a given measure.101 Instead, it suffices if individuals have access to a remedy enabling that rightholder to obtain, indirectly, judicial review of a measure without having to be subject to the risk of receiving a penalty in the event of non-compliance with the measure in question. In such cases, the essence of the right to an effective remedy is deemed as fulfilled.102 Similarly, the essence of the Article 47 right will be fulfilled if the rightholder can obtain a mere declaratory ruling (‘to obtain a finding that the rights […] have been infringed’) and/or they can bring an action for damages, as the Court argued in the case of the third parties affected in the Luxembourg v B and Others judgment.103 Such a narrow reading, however, of the essence of the right to effective judicial protection as enshrined in Article 47 is doubtful and may lead to a very limited protection for the taxpayers. As AG Kokott pointed out, an indirect legal remedy may leave the taxpayer unprotected in that they may never be able to challenge the interference with their right to private life and personal data protection. Neither is an indirect legal remedy in the context of subsequent State liability proceedings an effective remedy within the meaning of Article 47 of the Charter. Such a conclusion has been confirmed in the San Marino case, where the ECtHR ruled that ‘a claim for damages against the State in an action before the ordinary courts is clearly distinct from – and should not be confused with – an application for judicial review. Accordingly, it would not have been a remedy capable of achieving the aim sought by the applicant of having the impugned search and seizure, or its consequences, annulled and could therefore not be regarded as an ‘effective review’ for the purposes of Article 8 [ECHR]’.104 The question of the essence of the right to an effective remedy boils down to what such a right should eventually serve. Should it remedy the ‘harm’ in general, in which case an action for damages or a challenge by way of an incidental question would seem appropriate, or should it remedy the specific infringement of each of the rights at issue? In the taxpayer’s case, as AG Kokott pointed out, such an infringement of the taxpayer’s right to private life takes place already when data is requested from the information holder. An indirect legal remedy, ie, the possibility to challenge this infringement in the context of an adjustment decision, does not remedy this ‘first-level’ infringement. Consequently, this ‘first-level’ infringement should be able to be remedied without necessitating the imposition of a penalty, as opposed to what the Court suggests. The violation of the taxpayer’s right takes place even if no penalty is imposed at this stage. In this analysis, in addition to the risk of penalty, a subtle time element is present in the sense that it is possible to adopt two different interpretations of what is required for compliance with Article 47: either that the harm has to be remedied when the right is infringed or that it suffices if the harm is remedied at a later stage, for example as in 101 ibid, para 79. 102 ibid, and case law cited. 103 ibid, para 101. 104 See Judgment of the European Court of Human Rights of 7 July 2015 in Case No 24645/94 MN and Others v San Marino, para 81.

Right to an Effective Remedy and a Fair Trial in Taxation 271 Sabou at the contentious stage, or in Luxembourg vs B and Others in the tax assessment stage. It is here submitted that only the first reading guarantees in the taxpayer’s case that the latter will have an opportunity to challenge the infringement. While, thus, the information holder’s right to effective judicial protection seems to have been established and even more crystallised after the most recent Luxembourg state v L case, the question arises whether and, if so when, the Court will extend this protection to another rightholder in the procedure, the taxpayer.

272

15 Conclusions MATTEO BONELLI, MARIOLINA ELIANTONIO AND GIULIA GENTILE*

I. Introduction Through the various contributions, this volume has analysed and reflected on the distinctive impact of Article 47 of the Charter in the composite European legal order. As mentioned in the introduction to this book, the application of this provision in the Court of Justices case law has been remarkable both quantitatively and qualitatively. Additionally, recent cases decided in Luxembourg have relied on Article 19 TEU to further strengthen the reach of effective judicial protection so as to ‘capture’ national rules regulating the structure and functions of domestic courts.1 In this sense, Article 47 of the Charter is part of a web of provisions having a twofold purpose: first, they mould the protection of rights in the EU via national (and, to a more limited extent, EU) procedural rules; secondly, they delineate the division of labour between EU and national courts in the enforcement of EU law. The contributions in this book have explored two main research questions, namely, the constitutional significance and impact of Article 47 of the Charter and the way in which the requirements stemming from Article 47 are interpreted by the Court of Justice in various policy areas. In this concluding chapter, we draw the threads of the chapters together to answer these questions while outlining the main trends in the Court’s case law.

II. The Constitutional Impact of Article 47 of the Charter in the EU Legal Landscape: Between Continuity and Rupture The Court of Justice’s case law on Article 47 of the Charter has shaped some of the essential tenets and principles of EU law and ultimately the EU constitutional setting. It features both continuity and rupture, as will be explained in the following paragraphs. * Matteo Bonelli is Assistant Professor of European Union law at Maastricht University. Mariolina Eliantonio is Professor of European and Comparative Administrative Law and Procedure at Maastricht University. Giulia Gentile is Fellow in Law at the London School of Economics Law School. 1 See Case C-619/18 Commission v Poland EU:C:2019:615.

274 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile The constitutional impact of Article 47 of the Charter emerges in two respects. First, Article 47 of the Charter is the cardinal provision operationalising the administration of justice in the EU multi-level system. In other words, Article 47 constitutes the legal anchor for the Court of Justice to paint the essential elements of the administration of justice in the EU. In this context, Article 47 has a ‘positive’ role: that of establishing the EU way of administering justice. In their contribution to this volume, Gentile and Menzione demonstrate that Article 47 of the Charter is the ‘right of EU rights’, as it ensures the enjoyment of all other legal entitlements stemming from EU law. The prominence of this provision in the EU legal landscape is evident when exploring the synergies between Article 47 and the other articles included in the ‘Justice Title’ of the Charter. Although protecting different rights, Articles 48, 49 and 50 of the Justice Title all interplay, to varying degrees, with Article 47, which appears to be the primary building block of the fundamental rights concerning the administration of justice in the EU. In this sense, Article 47 offers the legal basis to tease out the core elements of the EU understanding of justice: the rights of defence, the principle of legality and proportionality of penalties and the ne bis in idem are all emanations of the rights to an effective remedy and to a fair trial, although to different extents. The centrality of Article 47 in the administration of justice in the EU reveals itself also in another setting: the preliminary reference procedure. The chapter by Wallermann Ghavanini and Rauchegger reflects on the synergies between Article 47 and the preliminary ruling system, recently acknowledged for the first time by the Court in Consorzio Italian Management.2 The Court has established that Article 47 of the Charter imposes on national courts of last instance a duty to state reasons in case of refusal to submit a question to the Court of Justice. Hence, Article 47 becomes a provision to check the legitimacy and the soundness of the decisions of national courts of last instance not to refer to the Court of Justice. The authors reflect also on whether the Court might follow the example of some national constitutional courts3 and take an even bolder step: establishing under Article 47 of the Charter a right to obtain a preliminary reference. They convincingly argue that such a step would be extremely complex and disruptive and that the most plausible way forward is an expansion and strengthening of the right to a reasoned decision on referral. The second way in which Article 47 of the Charter shapes EU constitutionalism is ‘negative’ in nature: Article 47 constrains the justice design choices of the Member States. It does so by imposing structural and procedural obligations to the Member States regarding in particular their courts. As explored by Prechal in this volume, via the joint reading of Articles 47 of the Charter and 19 TEU, the Court has established that Member States must ensure that their judicial systems respect and guarantee certain structural requirements concerning the functioning and activity of the national courts. In this context the principle of judicial independence is essential, since it demands that

2 Case C-561/19 Consorzio Italian Management EU:C:2021:799. 3 The chapter refers in particular to the approaches of the German, Austrian, Czech and Slovak Constitutional Courts.

Conclusions 275 national courts must be impartial from the parties in the dispute as well as free from any external interferences in their activities. A tension that arises in this context is to what extent the application of the EU principle of effective judicial protection as a structural condition for national courts could (and perhaps should) limit the diversity existing in the Member States with reference to various aspects of judicial independence. Krajewski’s chapter observes that the Court of Justice has struck a fine balance between protecting the EU standards of judicial independence while respecting the plurality of existing judicial organisation arrangements in the Member States. Additionally, EU case law on Article 47 has equipped national judges with the context-sensitive ‘appearance of independence’ test, which facilitates the decentralised application of EU standards, though that approach opens critical questions in terms of the correct enforcement of EU law. Yet, beyond the realm of judicial independence, the evolving case law on Article 47 has overall constrained the so-called national procedural autonomy. As discussed by Bonelli in this volume, Article 47 is used by the Kirchberg judges to restrain the leeway Member States have in autonomously determining their justice systems. For instance, the Court of Justice relies on Article 47 of the Charter to detail the content of EU secondary provisions governing procedures as well as to create new remedies in the fields covered by EU law. Like Prechal and Krajewski, Bonelli too highlights the novelties brought by Article 47 with reference to the principle of judicial independence. All in all, the constitutional impact of the EU case law on Article 47 in the EU legal order builds and expands on that of the general principle of effective judicial protection. Indeed, since the Johnston case,4 the principle of effective judicial protection has allowed the Court of Justice to draw the path for national courts in ensuring the effective enforcement of EU law. However, two new profiles emerge when it comes to Article 47 of the Charter. On the one hand, the Court of Justice uses it in more prescriptive terms compared to the principle of effective judicial protection. The more prescriptive nature of Article 47 is facilitated by the binding nature of the Charter and the links between Article 47 and norms included in the Treaties having foundational value, such as Articles 2 and 19 TEU. On the other hand, Article 47 is officially part of the normative content of the EU rule of law. Although already since Les Verts judgment5 the Court of Justice had highlighted the connections between the rule of law and effective judicial review, with the ASJP6 judgment it has become clear that a violation of the principle of effective judicial protection would also breach the EU rule of law. Although in different ways, the impact of Article 47 of the Charter in the policy areas discussed in this book is also characterised by continuity and rupture. It is to this aspect that our concluding chapter now turns.

4 Case

C-222/84 Johnston EU:C:1986:206. C-294/83 Les Verts v Parliament EU:C:1986:166. 6 Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117. 5 Case

276 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile

III. Article 47 of the Charter in the Policy Areas: A Kaleidoscope of Colours with Increasingly More Visible Shapes A. The Relationship between Article 47 and the Principle of Effective Judicial Protection As mentioned in the introduction, the interactions between Article 47, the general principle of effective judicial protection, and the other key EU law principles of equivalence and effectiveness have been extensively discussed in doctrine. Although this complex web of relations is not yet crystallised in the case law of the Court, it is clear that the Court seeks to build the core of Article 47 on the basis of the principle of effective judicial protection. For example, in Rosneft the Court held that Article 47, ‘constitutes a reaffirmation of the principle of effective judicial protection’.7 The chapters in our volume confirm this picture by showing a great deal of continuity in the current case law of the CJEU. For example, in the field of non-discrimination, Gutman argues that the case law of the Court under Article 47 displays strong links with pre-Lisbon case law. This might also be due to the fact that the principle of effective judicial protection originated in fact in non-discrimination cases.8 The chapter by Gutman also shows that the pre-Lisbon case law had filled in aspects of the principle of effective judicial protection beyond what is strictly required under Article 47.9 As a consequence, these broad contours of the principle of effective judicial protection, drawn up by the Court pre-Lisbon, have been taken over and are now arguably ‘embodied’ in Article 47 to give further flesh to the obligations under this provision.10 Similarly, in the field of migration, the case law of the Court under Article 47 is in line with earlier case law, including decisions stemming from other policy areas, which, in Reneman’s opinion contribute to providing ‘stability and relative neutrality’ to the current case law on migration and asylum. Also in tax law, the principle of effective judicial protection was successfully invoked long before the entry into force of the Charter,11 and current case law, while expansive, does not fundamentally depart from the foundations laid before Lisbon. As is well known, the principle of effective judicial protection historically also has strong links with the right to a fair trial under Article 6 ECHR and the right to an effective remedy under Article 13 ECHR. Already the Johnston ruling explicitly established this link.12 The case law of the Court under Article 47 contributes to the effort of aligning the scope of the notion of effective judicial protection with the right to a fair trial. This is made explicit, for example, by Pantazatou with respect to the case law concerning

7 Case C-72/15 Rosneft EU:C:2017:236. 8 Johnston (n 4). 9 See eg, Case C-185/97 Belinda Jane Coote EU:C:1998:424 in the field of protection against retaliation. 10 Eg, Case C-404/18 Hakelbracht e.a. EU:C:2019:523 where old case law on the principle of effective judicial protection was taken on board to broaden the scope of Article 47. 11 See eg, Case C-349/07 Sopropé EU:C:2008:746. 12 Johnston (n 4). See also the introduction to this volume.

Conclusions 277 the right of defence in tax proceedings and by Kalintiri who, in the field of competition law, observes that the case law on Article 47 reflects the earlier case law on the principle of effective judicial protection and the right to a fair trial enshrined in Article 6 ECHR. Kalintiri also notes that, in general, references to Article 47 are combined with those to Article 6 ECHR and to ECtHR case law. This alignment between pre- and post-Lisbon case law is also apparent in the environmental law field, at least in as far as judicial protection before the EU courts is concerned. However, this alignment is not necessarily to the benefit of applicants. Indeed, with regard to cases concerning standing before the EU court, Krämer shows that the pre-Lisbon case law ‘set the tone’ to interpret the standing requirement under Article 263(4) TFEU, and neither the ratification of the Aarhus Convention nor the entry into force of the Charter served to change the restrictive approach of the CJEU. Yet earlier research has shown that, with respect to national litigation, the picture is different. While compared to the principle of effectiveness, the principle of effective judicial protection has been very much in the background in the case law of the Court, a much more intensive use of Article 47 can be detected in more recent case law.13 The only outlier here seems to be the field of public procurement, regarding which Caranta argued that Article 47 has only a limited role to play. He observed that, even before the Charter, a number of limitations in terms of access to court in procurement litigation had already been removed, Article 47 hence having a limited potential. In this respect, Caranta adds that, as Article 47 is not more specific than the principle of effective judicial protection, its presence does not seem to have the potential to add to what has been already established pre-Article 47. Therefore, when it comes to public procurement, the issue is not so much one of lack of continuity between the understanding of the Court of the principle of effective judicial protection and Article 47, but one of the absence of Article 47 as an additional source of effective judicial protection.

B. The Relationship between Article 47, EU Secondary Rules of a Procedural Nature, Primary Law and International Law As noted in our introduction, another topic explored in the doctrine was the interaction between Article 47 and EU secondary rules of procedural nature. The debate has shown that EU secondary procedural rules are diverse, touching various procedural areas, and limiting the discretion of Member States to various degrees. The chapters in our collection comprise policy areas with various degrees of proceduralisation, ranging from heavily proceduralised fields, such as public procurement, migration and non-discrimination, to fields with fewer (but still present) secondary EU rules of a procedural nature, to non-proceduralised fields, such as tax law. The presence of these rules clearly has an influence on the way in which Article 47 is used by applicants and by the Court, but this influence does not always produce similar results.

13 See M Eliantonio, ‘The relationship between EU secondary rules and the principles of effectiveness and effective judicial protection in environmental matters: towards a new dawn for the “language of rights”?’ (2019) 12 Review of European Administrative Law 95, with reference eg, to Case C-664/15 Protect EU:C:2017:987.

278 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile For example, in procurement, procedural rules have been present since 1989.14 The existence of remedies clearly spelled out in secondary law, according to Caranta, gave rise to a line of case law more focused on the Remedies Directive than on Article 47 or the principle of effective judicial protection. The fields of non-discrimination and migration point instead to quite different results. Here, both Gutman and Reneman observe that the extensive proceduralisation of the fields caused secondary rules to be used in combination with Article 47, most often as an interpretation aid for procedural rules which leave a wide margin of discretion to Member States as to their implementation. Reneman also highlights that case law itself is strongly shaped by the applicable EU legislation, especially with respect to the scope and intensity of review. However, as Gutman observes, there is also evidence of a self-standing use of Article 47: indeed, the Egenberger ruling can be used as an example of Article 47 being regarded by the Court as sufficient to have vertical and horizontal direct effect.15 Gutman furthermore argues that Article 47 ‘permeates’ post-Lisbon rulings even where the Charter provision is not mentioned explicitly. She also observes, in relation to the use of Article 47 vis-à-vis EU secondary rules of a procedural nature, that the relevance of the Charter (and thereby of Article 47) depends on the specifics of the case: if the legal matter is closely linked to the detailed requirements of EU secondary law, Article 47 might not be mentioned, while the latter does play a role where the issue revolves around the ‘effective judicial protection aspect’ of the relevant EU secondary law rule. In the European Arrest Warrant system, according to Martufi, after some initial hesitance,16 Article 47 now firmly underpins the interpretation of secondary law and works as a key constitutional benchmark even when it is not explicitly mentioned in the case law of the Court.17 The very existence of the right to an effective remedy under the Charter guides the Court in interpreting the EAW Framework Decision in a way that leads to a (more) robust protection of fundamental rights. In environmental law, what is crucial is not only the relation of Article 47 with EU secondary rules, but also with the international rules of the Aarhus Convention. With respect to EU secondary rules, earlier research has shown that Article 47 has been used by the Court both in combination with secondary rules and as a self-standing basis in the absence of EU rules on the matter.18 With regard instead to Article 9 of the Aarhus Convention, Krämer underscores that, in the case law of the Court, Article 47 is sometimes used alone without Article 9,19 in other cases Article 9 is used alone without Article 47,20

14 Council Dir 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [1989] OJ L395/33. 15 Case C-414/16 Egenberger EU:C:2018:257. 16 Case C-396/11 Radu EU:C:2013:39 and Case C-168/13 PPU Jeremy F EU:C:2013:358. In those cases, the Court used Article 47 only to ‘confirm’ the level of protection offered by the EAW Framework Directive, almost as if the correct standards of protection should be set by secondary legislation. 17 Case C-452/16 Poltorak EU:C:2016:858, Case C-453/16 PPU Özçelik EU:C:2016:860 and Case C-477/16 PPU Kovalkovas EU:C:2016:86. 18 Eliantonio (n 13). 19 Case C-723/17 Craeynest and Others EU:C:2019:533. 20 Case C-570/13 Gruber EU:C:2015:231.

Conclusions 279 while in other cases both provisions are used.21 According to Krämer, the approach is not consistent, but these different formulations seemingly do not lead to any substantial difference in the result. The tax law field shows a very different picture. As Pantazatou illustrates, in VAT legislation there is strong – substantive – harmonisation, while in direct taxation EU legislation has mostly focused on creating harmonised procedures of exchange of information before national administrative authorities.22 There is thus no proceduralisation, in the sense of EU secondary rules of a procedural nature applicable before national courts. Naturally, therefore, Article 47 was used as a self-standing provision to protect taxpayers’ rights. Often, however, Article 47 was used in combination with other Charter articles of the Justice Title. In other fields, the discussion on proceduralisation and the use of Article 47 in combination with EU secondary rules does not lead to the same results, as the litigation takes place before the EU Courts rather than the national courts. This is partly the case with environmental law, where Article 47 has been used – though unsuccessfully – to challenge the Court of Justice’s interpretation of primary law (ie, Article 263 TFEU). Article 47 also played a role in competition litigation before the EU Courts, with respect to claims arising from the application of Articles 101 and 102 TFEU, and in cases brought under the Common Foreign and Security Policy, where Article 47 has most often been used in the context of challenges to restrictive measures and sometimes in respect of acts of bodies set up by CFSP acts, as Poli’s chapter makes clear.

IV. The Pivotal Role of Article 47 to Further the Acquis Communautaire The overwhelming impression arising from the chapters contained in this collection is that the Court of Justice has used the potential of Article 47 (alone or in combination with EU procedural rules) to boost the protection offered by EU substantive law. In some areas, this has also had the effect of limiting the procedural autonomy of the Member States.23 From this perspective, our findings corroborate earlier research which has shown that the process of ‘proceduralisation’ has served to boost the effective application of substantive rules.24 Article 47, in this sense, ‘boosts the boosters’. This is evident, for example in the case law in the fields of migration and nondiscrimination. With respect to the latter, as Gutman shows, Article 47 has served to strengthen the protection offered by EU secondary rules of a procedural nature, and, thereby, thanks to Article 47, ultimately the level of protection in non-discrimination

21 Case C-752/18 Deutsche Umwelthilfe eV EU:C:2019:1114. 22 Council Dir 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC [2011] OJ L64/1. 23 See in particular the EAW system studied by Martufi, but also in the fields of migration and nondiscrimination. The theme is discussed also in Bonelli’s chapter. 24 See M Eliantonio and E Muir, ‘Concluding Thoughts: Legitimacy, Rationale and Extent of the Incidental Proceduralisation of EU Law’, (2015) 8 Review of European Administrative Law 175.

280 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile cases has been raised. In relation to migration, Reneman shows that Article 47 has been used not only to interpret secondary rules which are complex and sometimes vague, but also to limit the discretion of Member States in their (possibly too restrictive) implementation of secondary rules. Also with respect to tax law, Pantazatou observes that in the field of VAT, the applicability of the Charter has been undisputed since Akerberg Fransson,25 and Article 47 has clearly upped the game in protecting taxpayers’ rights. Since the Edwards ruling,26 Article 47, at least when used with respect to national procedural rules, has also served to strengthen environmental protection both in combination with Article 9 of the Aarhus Convention and sometimes even alone. Finally, in the EAW system, the Court has in recent times developed a ‘dynamic’ interpretation of the EAW Framework Decision27 that allows the strengthening of the protection offered by secondary legislation. However, in all these areas, our authors critically remark that there is some untapped potential for Article 47. In the field of non-discrimination, for example, Gutman concludes that the role of Article 47 could further grow in those procedural areas where the Court has stuck to the tests of equivalence and effectiveness, such as for time limits to bring actions before the court. Similarly, in direct taxation, Pantazatou remarks that the actual applicability of the Charter had to be established in the field of taxpayers’ rights, a move which only took place recently with the Berlioz ruling.28 For this reason, while the applicability of the Charter served to strengthen the rights of information holders in the procedures of exchange of information, there is much that Article 47 could add with respect to the rights of taxpayers or third parties in judicial procedures. Finally, with respect to migration, Reneman observes that it is sometimes not clear whether a certain result achieved by the Court depends on EU secondary rules or on Article 47 or on a combination of the two sets of provisions. She argues that this lack of clarity could have very severe consequences because, if a certain result depends on EU secondary rules, it would then be possible to amend them to reduce the protection granted by EU law to asylum seekers. In the EAW context, Martufi highlights the remarkable absence of considerations on Article 47 or the principle of effective judicial protection in the assessment of the role of public prosecutors in surrender procedures.29 The Court might be concerned that a more robust use and interpretation of the requirements of Article 47 – one that would narrow the functions of public prosecutors or even exclude them from the list of authorities able to issue EAWs – could disrupt the effectiveness of the cooperation scheme. Ultimately, according to Martufi, the approach of the Court seems to be at odds with the second paragraph of Article 47 as well as the ECHR requirements on the right to a fair trial. The most striking example of the untapped potential of Article 47 appears to be the procurement field. Here, as Caranta remarks, Article 47 could have been used possibly as aid in interpreting secondary rules and in filling gaps left by secondary rules. 25 Case C-617/10 Åkerberg Fransson EU:C:2013:105. 26 Case C-260/11 Edwards EU:C:2013:221. 27 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Statements made by certain Member States on the adoption of the Framework Decision [2002] OJ L190/1. 28 Case C-682/15 Berlioz EU:C:2017:373. 29 See eg Joined Cases C-508/18 and C-82/19 PPU OG and PI EU:C:2019:456; Case C-509/18 PF EU:C:2019:457.

Conclusions 281 However, this has not happened so far: national courts have tried to rely on Article 47, but the CJEU has so far stuck to the text of the Directives.30 Caranta concludes that the Court of Justice does not give much weight to Article 47 because of what has been defined as a ‘peculiar collective understanding’ of the right of access to justice under Article 47, which focuses more on the systemic problems than on the specific protection of the economic operator. As a consequence, according to Caranta, the courts ‘walks backwards’ 20 years and absorbs the notion of effective judicial protection into effet utile.31 If anything, Article 47 actually worked against the applicants, and it has strengthened national procedural autonomy.32 Caranta does see a role for Article 47 to create a more level playing field in procedural areas such as standing, liability rules and intensity of review where national rules are still very divergent, but he also observes that it is eventually up to the Court to decide whether it wants to take up this role. When applied before the EU Courts, a somewhat less rosy picture of Article 47 appears. Certainly, when looking at the litigation under the CFSP, Article 47 has played an essential role in expanding the jurisdiction of the CJEU and has been pivotal to the ‘de-pillarisation’ of the EU post-Lisbon, including in somewhat ‘controversial cases’, where the CJEU jurisdiction was far from straightforward.33 It could even be argued (and indeed Poli does so) that at times the Court might even have gone too far with this expansive trend, as the Venezuela case shows.34 In competition law too, as Kalintiri highlights, Article 47 has raised the procedural fairness bar in two ways. First, it has provided claimants with due process rights, and, second, it imposes stringent obligations on both the Commission and the EU Courts. In this manner, that provision has enhanced the legitimacy of competition law enforcement by setting several procedural obligations on the Commission, obligations which are reviewable and reviewed by the EU Courts. This is particularly evident in respect of the case law concerning the duty to give reasons.35 At the same time, however, Article 47 has constrained the Commission’s discretion and ability to act by imposing procedural duties on the Commission. The application of Article 47 in the field of competition offers an example of the complex balancing between fairness and effectiveness of competition enforcement. At the same time, when looking at the case law regarding the use of Article 47 in competition law, we cannot but form the impression that the Court is not quite practicing what it is preaching. Indeed, as Kalintiri shows, many attempts have been made to rely on Article 47 in proceedings at EU level to enhance procedural guarantees, but they have not been successful.

30 As a matter of fact, as mentioned by Caranta, Article 47 in procurement litigation actually played a role only in procurement by EU institutions where the Remedies Directive is not applicable. 31 See for an explanation of the different notions, M Eliantonio and E Muir, ‘The principle of effectiveness: under strain?’ (2019) 12 Review of European Administrative Law 255. 32 See Case C-61/14 Orizzonte Salute EU:C:2015:655 and Case C-439/14 Star Storage EU:C:2016:688. 33 Case C-455/14 P H EU:C:2016:569; Rosneft (n 7); Case C-134/19 P Bank Refah Kargaran EU:C:2020:793. 34 Case C-872/19 P Venezuela v Council EU:C:2021:507. It is to be noted though that in this case the principle of effective judicial protection and not Article 47 has been used by the Court. 35 See Case T-28/11 Koninklijke Luchtvaart Maatschappij v Commission EU:T:2015:995 and the other decisions mentioned in footnote 68 in Kalintiri’s chapter; see also Case T-95/15 Printeos and Others v Commission EU:T:2016:722 and Case C-434/13 P Commission v Parker Hannifin Manufacturing and Parker-Hannifin EU:C:2014:2456.

282 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile The discrepancy between the requirements stemming from Article 47 with regard to national courts and those applicable to the Court of Justice is most evident with respect to environmental litigation. While the Court has used the principle of effective judicial protection and later Article 47 to expand avenues of judicial protection especially for environmental NGOs before national courts, it has not regarded Article 47 as imposing any duty to relax the standing condition in annulment actions under Article 263(4) TFEU. This approach of the CJEU has eventually led to findings of non-compliance with the Aarhus Convention by the Aarhus Convention Compliance Committee. As a consequence, the Aarhus Regulation implementing the Aarhus Convention in the EU legal system (with respect to the EU institutions)36 has been amended. Yet, according to Krämer, even this amended version of the Regulation does not comply with the Convention or with Article 47. For this reason, according to Krämer, a more robust interpretation of Article 47 in the field of environmental law, together with the political will to change the applicable legislation, might repair these shortcomings. Whether there actually is the political will to do so is uncertain.

V. The Broad Range of Procedural Areas Affected by Article 47 The range of procedural areas touched by first the principle of effective judicial protection and later Article 47 of the Charter is very broad, as the contributions in our volume illustrate. The national rules concerning access to court appear to be those which have probably most often been challenged by the requirements of effective judicial protection. This also seems logical if we consider that access to court is the first prerequisite for (effective) judicial protection. Not by accident the Johnston ruling, where the principle of effective judicial protection was first enunciated, indeed concerned a limitation to challenge an administrative measure before the competent court.37 For example, national rules on standing and access to court have been tested against Article 47 in the field of non-discrimination,38 migration,39 environment,40 the EAW41 36 Reg (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/1. 37 Johnston (n 4). 38 See eg, Egenberger (n 15). In this field see also the case law on standing of equality bodies (such as Case C-507/18 Associazione Avvocatura per i diritti LGBTI – Rete Lenford EU:C:2020:289), where Article 47 is not mentioned but Gutman argues that the secondary law provisions ‘embody’ a requirement of effective judicial protection. 39 Case law has concerned rules on access to court vis-à-vis the presence of only an administrative remedy (Case C-403/16 El Hassani EU:C:2017:960); the right of access to court to challenge certain decisions which might not be challengeable (Case C-237/97 AFS Intercultural Programs Finland ry. EU:C:1999:69). However, Article 47 does not require, according to the Court, the need to ensure two levels of jurisdiction (Case C-180/17 X and Y EU:C:2018:775). 40 Case C-115/09 BUND EU:C:2011:289, Case C-263/08 Djurgården EU:C:2009:631. 41 OG and PI (n 29) and later clarified in Joined Cases C-566/19 PPU and C-626/19 PPU JR and YC EU:C:2019:1077, dealing with the problematic question of whether there should be access to a court in cases of EAWs issued by public prosecutors. Martufi considers the approach of the Court to the question ‘worrisome’ as it fails to meaningfully engage with the guarantees of Article 47 and the ECHR.

Conclusions 283 and tax law.42 Also EU rules on access to court have been scrutinised under Article 47, sometimes successfully, such as in the CFSP field,43 and other times unsuccessfully, such as in environmental policy.44 Finally, with respect to access to EU courts, one aspect which is peculiar to the CFSP is that of scope of the Court of Justice’s competence. In this area, Article 47 served to establish the jurisdiction of the CJEU in annulment actions45 as well as in preliminary questions of validity46 and in actions for Union liability.47 Closely linked to access to court are rules on costs of proceedings, for which the case law of the CJEU has played a crucial role in environmental policy.48 An attempt was made also to review national rules on costs of proceedings in public procurement policy in light of Article 47, but unsuccessfully.49 Rules on legal representation and legal aid are also connected to those on access to court, and they have been at stake mostly in tax litigation.50 Beyond rules on access to court, the case law on Article 47 has impacted rules concerning the scope and intensity of review by national courts. This has been the case especially in the field of migration.51 In the field of public procurement, in contrast, attempts to expand the scope of review of national courts based on Article 47 of the Charter have been unsuccessful.52 Several contributions in this collection point furthermore to an increasing role of Article 47 in respect of national rules on evidence and on the burden of proof, for example in migration,53 non-discrimination,54 and tax litigation.55 Finally, Article 47 has significantly influenced rules on remedies. This may be observed in the area of migration law,56 and, with respect to sanctions, also in the field

42 Berlioz Investment Fund (n 28), Joined Cases C-245/19 and C-246/19 État luxembourgeois v B and Others EU:C:2020:795 and Case C-437/19, État luxembourgeois v L EU:C:2021:953. 43 Case T-578/12 National Iranian Oil Company EU:T:2014:678; and Venezuela (n 34), which however is based on the principle of effective judicial protection rather than Article 47. 44 Case C-565/19 P Armando Carvalho and Others v European Parliament and Council of the European Union EU:C:2021:252. 45 H (n 33). 46 Rosneft (n 33). 47 Bank Refah Kargaran (n 33). 48 Edwards (n 26). 49 Orizzonte Salute (n 32). 50 Case C-543/14 Ordre des barreaux francophones et germanophone and Others EU:C:2016:605. 51 See eg, C-146/14 Bashir Mohamed Ali Mahdi EU:C:2014:1320, according to which national courts should be able to investigate thoroughly the dispute at stake; Case C-556/17 Torubarov EU:C:2019:626, which required full examination ex nunc of the facts of the case; Joined Cases C-225/19 and C-226/19 RNNS and KA EU:C:2020:951, which established that a mere ‘formal’ examination is too limited, and a substantive examination of legality is required to comply with Article 47. See also in the environmental field Case C-72/12 Gemeide Altrip and Others EU:C:2013:712, which is however based on the principle of effectiveness. 52 Case C-300/17 Hochtief EU:C:2018:635. See on intensity of review the rulings in Case C-92/00 Hi EU:C:2002:379 and Case C-440/13 Croce Amica One Italia EU:C:2014:2435, where however Article 47 is not mentioned. 53 Case C-406/18 PG EU:C:2020:216, on the basis of which national courts must have certain means of evidence to ensure effective judicial protection. 54 C-394/11 Belov EU:C:2013:48, where Article 47 is not mentioned, but Gutman argues that the secondary law provisions ‘embody’ a requirement of effective judicial protection. 55 With respect, in particular, to the collection and use of evidence to prove tax fraud (Case C-310/16 Dzivev and Others EU:C:2019:30) or without the knowledge of the taxpayer (Case C-419/14 WebMindLicenses EU:C:2015:832). 56 See eg, Bashir Mohamed Ali Mahdi (n 51), on the basis of which courts can substitute their own decision for that of the authority in Returns Directives cases; however, in cases of Procedures Directive this is not

284 Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile of non-discrimination.57 Along those same lines, national rules on interim relief have also been affected by the case law of the CJEU on effectiveness and effective judicial protection.58 The use of Article 47 in litigation before the EU courts led to different results. The chapter dedicated to competition law and the CFSP show that the potential of Article 47 emerged with reference to rules on the right of defence, the principle of equality of arms and the right to be represented.59 At the same time, in both policy areas, Article 47 has been used to strengthen the intensity of judicial review, which has also been linked to the duty to give reasons, but with inconsistent results.60 While the contributions contained in this collection reflect the diversity of rules which have been scrutinised under Article 47, in her contribution Eliantonio presents two ‘notable’ absentees, the rules on res judicata and those on the ex officio powers of national courts. Here the post-Lisbon case law has granted virtually no role for Article 47, although, as discussed by Eliantonio, at least with respect to rules concerning the duty to raise points of EU law ex officio, the case law seems to have moved to a somewhat increased attention towards Article 47. Yet, it is questionable whether in this area Article 47 could deliver any added value with respect to the principle of effectiveness or the relevant secondary procedural rules. By contrast, when it comes to the rules on ex officio application of EU law against the applicant and in respect of rules on res judicata, Eliantonio concludes there may be a potential added value emanating from Article 47 which the CJEU might be called to bring to the fore in the future if prompted by national courts.

VI. Conclusions The contributions contained in this collection demonstrate that Article 47 has become a cornerstone of the European system of multi-level judicial protection. Together with a number of ‘friends’ (Article 19 TEU, Articles 6 and 13 ECHR, as well as the increasing number of EU secondary law provisions of procedural nature), and ‘relatives’ (the principle of effective judicial protection, as well as the twin principles of equivalence and effectiveness), it has been used by the Court of Justice to shape not only national procedural rules, but also systemic features of the national legal orders of the Member States. However, while showing the breadth and potential reach of Article 47, the contributions of this first volume have only shed light on one side of the story, that told from the Kirchberg plateau. The story of the role of Article 47 will only be complete if the

required: see the ruling in Torubarov (n 51). However, the power of substitution might become required under Article 47 if the lack thereof ends up in a game of judicial ping-pong. 57 Case C-30/19 Braathens Regional Aviation EU:C:2021:269. 58 Eg, Case C-416/10 Križan EU:C:2013:8 which is based on the principle of effectiveness. 59 Eg, Case C-199/11 Otis and Others EU:C:2012:684 in competition law; in the area of CFSP Case T-248/13 Al Ghabra EU:T:2016:721 which was however based on the principle of effective judicial protection rather than on Article 47. 60 Case C-280/12 P Council v Fulmen and Mahmoudian EU:C:2013:77 in the field of CFSP; in competition law see Case T-95/15 Printeos and Others v Commission EU:T:2016:722.

Conclusions 285 perspective of the thousands of national courts – the European courts of ‘general jurisdiction’61 – is also accounted for. After all, in the decentralised system of enforcement of EU law, it is first and foremost national courts that are called to apply and protect the rights which individuals derive from EU law, and to consider whether their own national (procedural) rules comply with Article 47 of the Charter. The second volume of this book project turns to the perspective of the national courts.

61 Case

C-333/94 P Tetra Pak International SA v Commission EU:C:1996:436.

286

INDEX Introductory Note References such as ‘178–79’ indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire work is about ‘Article 47 of the Charter’ and ‘effective judicial protection’, the use of these terms (and certain others which occur constantly throughout the book) as entry points has been restricted. Information will be found under the corresponding detailed topics. Aarhus Convention 195–97, 209–12, 277–78, 280, 282; see also environment Compliance Committee 206, 208–9, 212, 282 and EU public authorities 200–8 Aarhus Regulation 207, 209, 282 accelerated procedures 87, 146 access of NGOs to justice 230 access of third countries to justice 192 access to courts 19, 172, 201–2, 205, 208, 277, 282–83 acquis communautaire and Art 47 279–82 acte éclairé 52–53 actions for annulment 178–79, 181, 183–86, 188, 191–92, 233–34, 237–38, 282–83 for damages 180, 204, 224, 243, 260–61, 270 external 181, 187, 191 adjustment decisions 259, 270 administration of justice 27–28, 32, 73, 101, 169, 274 administrative authorities 78, 89, 101, 145, 147–48, 156–57, 225, 240 national 92, 279 administrative cooperation 91, 252 administrative courts 88, 144, 149, 215, 220, 257, 266 Czech Republic 254 Italy 221 Poland 76 administrative decisions 88, 91, 100, 157, 217, 240, 266 administrative discretion 38 administrative penalties 91, 265 administrative procedures 133, 219–20, 238, 241–42, 247, 267

administrative proceedings 39, 103, 129, 133, 241, 247 administrative remedies 14, 144, 207, 215 administrative review 143, 201, 207 administrative supervision 78–79 admissibility 64, 66, 183, 199, 237–38 provisions 212 AFSJ (Area of Freedom, Security and Justice) 31, 39–40 age 20, 93, 129 retirement 62, 67, 72 annulment 88, 92, 187, 224, 226–27, 237, 243 actions for 154, 178–81, 183–88, 191–92, 233–34, 237–38, 243, 282–83 of CFSP Decisions 177–78 procurement decisions 217–22 appeal 143–44, 146–49, 151–54, 157, 209, 233–34, 237–38, 257–60 administrative 220 grounds of 147–48, 157 proceedings 174, 220 right to/of 29, 101, 143–44, 153, 162, 173 appearance of independence test 61, 68, 73, 75–76, 79–80, 275 applicability 18–19, 39, 66, 102, 251–53, 255–56, 269, 280 applicants private 181, 183, 203 privileged 185 application correct 154, 157 decentralised 61, 79, 275 effective 100, 104, 108, 110, 115, 118–19, 131, 135 applications for international protection 87–89, 92, 146, 150

288 Index appointments 61–65, 67–68, 70, 74–76, 78, 96 procedures 65, 73–74 arbitration awards/decisions 114–15, 224 Area of Freedom, Security and Justice, see AFSJ Art 19(1) TEU, see also effective judicial protection brought to life 16–19 and national courts 11–25 Van Gend & Loos to 13–16 Art 47 of Charter, see Introductory Note and detailed entries Arts 47–50 of Charter 27–44 independent but autonomous 32–36 reciprocal influences and missed opportunities 36–38 shining in their own lights 38–40 ASJP 12, 95, 170–71, 275 associations 132–33, 198–200, 211 asylum 87–88, 94, 141–44, 146–47, 149, 151, 153, 157 applications 88, 142, 144, 146, 149–54 cases 150, 157 decisions 149–52, 157 procedures 142, 149, 151, 153, 157 seekers 93, 142, 144–45, 149, 153–54, 280 status 149, 153 Austria 37, 50–51, 53, 60, 101, 115, 219 Constitutional Court 51, 54 legislation 116, 223 authorities 31–33, 107–9, 143–45, 148, 150, 163–68, 243–44, 248–49 administrative 78, 89, 101, 145, 147–48, 156–57, 225, 240 competent 189, 254 contracting 215, 218–25, 228 data-protection 79 determining 149–53, 157 executing 160, 162, 168, 171 executive 71, 73, 75 independent 73, 129 issuing 164, 166, 168, 170 judicial 34, 148, 159, 161–69, 171–75, 190 national 3, 34, 87, 90, 143, 148, 165, 175 national competition 237, 248 political 71–72, 74, 76–78 autonomy 6, 33, 35, 73, 81–98, 250 institutional 81–83, 95, 97–98, 265, 268 national 81–82, 90, 97 organisational 76 procedural, see procedural autonomy remedial 86, 90–94, 97 award 14, 114–15, 125, 216 decisions 220, 227 direct 216, 219 procedures 218, 222, 226

Banco Español de Crédito 117 Banif Plus Bank Zrt 117 Barreaux francophones 263–64 Belgium 263–64, 267, 269 Benallal 113, 117 Berlioz I/II 91, 96, 255–62, 280 blacklists 188, 190, 193 Braathens Regional Aviation 58, 134 burden of proof 127–28, 130–32, 135, 139, 168, 187, 220, 283 case allocation 66, 78 case-by-case approach 228 cassation 88–89, 106 CFSP (Common Foreign and Security Policy) 7, 177–93, 279, 281, 283–84 acts 178–79, 183, 192, 279 annulment of decisions 177–78 competence of Court of Justice and Art 47 179–83 legality of decisions 178, 181 standing to challenge restrictive measures 183–86 substance of annulment actions against individual restrictive measures 186–88 third country respect for right to judicial protection and right of defence 188–91 Charter, see Introductory Note and detailed entries CILFIT 46, 51, 53, 55 civil procedure 24, 42 civil society organisations 213, 230 right to defend environment 195–212 CJEU (Court of Justice of the EU), see Introductory Note and detailed entries Cofidis 117 Commission 106–8, 207–8, 210–13, 229, 232, 237–41, 243–48, 250 decisions 108, 199, 237, 240, 242–43, 248–49 discretion 231, 233, 240, 247, 249–50, 281 Common Foreign and Security Policy, see CFSP companies 108, 115, 184–85, 242, 253, 257–58, 260–61, 266 state-owned 181, 184 comparative reasoning 68–69 compensation 29, 108, 125, 127–28, 134, 180, 243, 253 competence 18–21, 90–91, 94, 106–7, 178–79, 182–83, 192–93, 265 division of competences 20, 24, 51 exclusive 18, 73, 85, 97, 107 general 42, 179

Index 289 competent authorities 189, 254 competent bodies 88, 123–24, 137–39 competent courts 33, 89, 126, 134, 255–57, 282 competition 74, 116, 195, 199, 281 authorities, national 237, 248 cases 231–32, 234, 241, 243, 246 Art 47 judgments in numbers 233–36 manifestations of Art 47 237–46 duty to state reasons 243–44 enforcement 231–50, 281 role of Art 47 247–50 law 6, 39, 114–15, 240, 248, 277, 281, 284 policy 231–33, 246, 250 presumption of innocence, rights of defence and equality of arms 245–47 procedures 231, 233, 247 right to an effective remedy 237–39 right to hearing by an independent and impartial tribunal 239–41 right to hearing within a reasonable time 241–43 rules 115, 231, 239, 250 competitors 196, 213, 215–16, 230 Compliance Committee 197, 201, 206, 211 constitutional courts 45–46, 50–55, 60–62, 76, 79, 86, 274 Austria 51, 54 Belgium 263 Croatia 53 Czech Republic 50, 52–53, 60 Germany 50–53, 60 review refusals 50 Romania 76 Slovakia 50, 52–53, 60 Slovenia 53, 55, 60 Spain 51–52, 55, 86 constitutional guarantees 50, 110 constitutional impact of Art 47 273–75 constitutionally-oriented interpretation 81, 83, 87, 90–91 consumer protection 101, 105, 113–14, 116, 118–19 contracting authorities 215, 218–25, 228 decisions 218, 221 discretion 228 contracts 102, 108, 113, 216, 219, 222, 225–27, 230 consumer 58, 113 public 213–14, 216 control, judicial 14, 126, 157, 178, 186, 240–41, 245, 249 cooperation 77, 79, 160, 229, 254, 260 administrative 91, 252 judicial 31, 160, 162–63, 166

loyal 22 sincere 13, 15, 41, 99, 101, 109, 111, 116–17 costs 205, 263–64, 283 court 137 Council 70, 74, 177, 179, 185–93, 202, 207–8 court fees 224–25 courts, see also judicial protection; judicial review access to 19, 172, 201–2, 205, 208, 277, 282–83 administrative 88, 144, 149, 215, 220, 257, 266 competent 33, 89, 126, 134, 255–57, 282 constitutional, see constitutional courts criminal 106, 171, 267 domestic 64–65, 67, 143, 273 independent 71, 79, 93 last-instance 52–54 migration 143–57 national, see national courts ordinary 57, 60, 270 referring 46, 58–59, 78, 92–94, 112–13, 218–19, 221–25, 266–67 supranational 64–65 supreme, see supreme courts criminal courts 106, 171, 267 criminal law 24, 30–32, 36–37, 39, 42, 265 criminal liability 36 criminal offences 28–29, 31 criminal penalties 256, 265 criminal procedure 171, 190, 265, 267 criminal proceedings 30–31, 40–41, 66, 103, 166–67, 189–91, 264–66, 268 Croatia 53, 60 Czech Constitutional Court 50, 52–53, 60 damages 127, 133–34, 180–82, 192, 215–17, 223–24, 226–27, 243 actions for 180, 204, 224, 243, 260–61, 270 procurement 222–27 unsuccessful claims 222 data, personal 258–59, 270 data-protection authorities 79 DB v Consob 34 decision-makers 147, 217, 220, 228, 239 decision-making independence 71–74, 79 decision-making powers 176, 231–32 decisions adjustment 259, 270 administrative 88, 91, 100, 157, 217, 240, 266 asylum 149–52, 157 de-listing 188, 193 final 39–40, 103, 144, 146, 210 initial 88, 152, 173 inspection 237–38 issuing 170, 174–75

290 Index judicial 66, 72, 100–4, 108–9, 120, 163–64 penalty 255–57, 262 preparatory 146, 157 procurement 213, 215, 217–18, 220, 226 reasoned 49, 60, 142, 274 return 89, 92, 146 transfer 153–54 unlawful 99, 216, 223 defence, rights of 28–30, 35–36, 186, 188–90, 245–46, 248–50, 253–54, 261–62 deference 68, 77, 147–48, 150, 161, 217, 240, 250 delegated judges 66, 80 de-listing decisions 188, 193 Delvigne 37 deprivation of liberty 145, 170, 173–75 detention 92–93, 141, 143, 145, 147–48, 156–57, 173, 175 de facto 145 judges 148–49 lawfulness 93, 172–73 measures 146, 148–49 orders 171, 173 pre-trial 175 determining authorities 149–53, 157 deterrent effect, real 125, 127 Deutsche Umwelthilfe 42–43 direct awards 216, 219 direct effect 13, 20, 22, 82–84, 91–94, 96, 202, 204 horizontal 137, 278 direct taxation 251–52, 269, 279–80 directives on non-discrimination 128, 130, 132, 134, 137 remedies 213–16, 219–20, 222–25, 229–30, 278 VAT 251, 256, 263, 266 disciplinary action 63, 66–68, 72–73 disciplinary liability 71–72 disciplinary officers 67, 73 disciplinary proceedings 71, 73, 96 disciplinary regime for judges 63, 71–72 disciplinary sanctions 71, 73 disclosure 131–32, 220, 249, 253–54, 262 refusal 131–32 discretion 56, 68–69, 74, 87–90, 142–43, 155, 217, 228 administrative 38 Commission 231, 233, 240, 247, 249–50, 281 contracting authorities 228 Member States 162, 164, 172, 277, 280 national 69, 163–64 discrimination 58, 124–25, 128–29, 131–35, 216, 238; see also non-discrimination on grounds of age 129

sex 125, 130 unlawful 125, 128, 131–32, 134 victims 126–27, 131 dismissals 71–72, 127, 180 disproportionate interventions 258, 260, 262 divergence 69, 212, 217, 248 division of competences 20, 24, 51 domestic courts 64–65, 67, 143, 273 domestic review systems 218, 226, 229 Dublin 143–44, 146–47, 151, 153–55, 157 criteria 155, 157 due process rights 185–88, 192, 231–32, 247, 281 duplication of proceedings 40 duration 37, 241–42, 257 excessive 242–43 duty to state reasons 60, 74, 156, 236, 243–44, 250, 274 dynamic interpretation 163, 165, 175, 280 Dzivev 264–65 EAW (European Arrest Warrant) 6, 33–35, 89, 159–76, 278, 282 and habeas corpus 172–75 inconsistencies and double standards 169–72 judicial authority concept and procedural autonomy 163–65 and judicial independence 165–72 and public prosecutors 165–69 role of judicial authorities and right to effective remedy 161–63, 172–76 system 89, 159–61, 163, 278, 280 ECHR (European Convention on Human Rights) 29–30, 32–36, 145–46, 172–76, 231–32, 246–48, 252–53, 276–77 Eco Swiss 114–15, 117 economic operators 200, 214, 216, 226–27, 230, 281 ECtHR (European Court of Human Rights) 49, 51–53, 63, 71, 74–75, 145–46, 253, 260–61; see also Introductory Note effect, direct 13, 20, 22, 82–84, 92–94, 96, 202, 204 effective access to justice 1, 135, 139, 263 and non-discrimination 128–30 effective application 100, 104, 108, 110, 115, 118–19, 131, 135 effective enforcement 28, 43, 59, 275 effective judicial protection, see also Introductory Note; Art 19(1) TEU before national courts 45–60 content and scope of application 19–22 in environmental matters 195–212

Index 291 possible new role 11–25 and procedural autonomy of Member States 81–98 relationship with Art 47 276–77 right to 19, 21, 51–53, 178–80, 183–84, 188–93, 252–53, 269–71 effective judicial review 36–38, 129, 171, 180–81, 184, 275 effective remedies 29, 31–32, 35–38, 135–38, 141–44, 256–61, 263–65, 269–71 and competition enforcement 237–39 and EAW (European Arrest Warrant) 161–63, 172–76 and environment 195–97 and exchanges of information 255–61 and migration 146, 153–56 and non-discrimination 125–27, 129 and procurement 225–27, 229 and taxation 251–53, 255–61 effectiveness 12–13, 83–86, 96–99, 101–2, 104–6, 108–20, 136–37, 223–29 of EU law 38, 43, 97, 117–18 principle 83–84, 98–99, 101–2, 104–6, 108–10, 112–20, 136–37, 223–25 test 110–11, 114, 116, 118 effet utile 97, 222, 226, 281 EFTA Court 222–24 Egypt 179, 189–91 El Hassani 87, 143–44, 156 employees 126, 130 female 127 employers 125–27, 130, 132, 136 employment 20, 125, 127, 130, 138 empowerment of national courts 6, 56–57, 59, 90, 94, 141–57 enforcement 41–43, 58, 90, 129, 133, 138, 211, 216 competition 231–50, 281 effective 28, 43, 59, 275 of EU law 40, 85, 94, 97, 138, 273, 285 horizontal 137 private 237 environment 7, 195–212, 280, 282; see also Aarhus Convention cases 201, 203, 208, 211 CJEU and access to environmental justice 197–200 and effective remedies 195–97 ways ahead 208–12 environmental impact assessments 199, 201, 205 environmental law 195, 200, 202, 204–9, 211–12, 277–79, 282 environmental NGOs 203–5, 211, 282

environmental organisations 195, 199–200, 202–3, 205–6, 209–10 environmental policy 195–96, 283 environment-related plans 201, 205, 209–10 equal treatment 14, 20, 124–27, 129–31, 133, 135–36, 138, 221; see also non-discrimination principle 125–27, 130–31, 135, 221 right to 129, 136 equality 123, 127, 129, 138, 232, 245–46, 259, 264 of arms 20, 30, 232, 236, 245–46, 250, 264, 284 bodies 128, 132–33, 139 racial 131 equivalence 3–4, 83–86, 96–99, 101–4, 108–9, 111–14, 116–17, 136–37 principle 13, 101–4, 108, 111–12, 114, 116–17, 219, 225 test of 96, 104 errors 72, 188, 191, 218, 221, 241 EU legal order 17, 22, 32, 40, 43, 79, 83, 99–100 European Arrest Warrant, see EAW European Convention on Human Rights, see ECHR European Court of Human Rights, see ECtHR European Parliament 37, 202, 204 evidence 31, 126–27, 148–51, 190–91, 240–41, 245–46, 250–51, 264–69 factual 187 new 150–51 use 265–68 ex nunc examination 88, 149–52, 154–56 ex officio application of EU law 6, 49, 99–120, 149, 241, 284 to detriment of applicant 115–16 exceptions 112–15 interim conclusions 116–18 and public policy 112–15 rule 111–12 excessive duration 242–43 exchanges of information 91, 254–61, 269, 279–80 exclusive competence 18, 73, 85, 97, 107 executing authorities 160, 162, 168, 171 executive authorities 71, 73, 75 expediency 141, 146, 151, 157, 218 external independence 166, 170 Faber 114, 117 factual basis, solid 155, 187, 189, 191, 228 factual circumstances 68, 76–77 fair trial 1–3, 29, 31–35, 37, 43, 49–50, 169–70, 276–77 in taxation 253–71

292 Index fairness 28, 31–32, 38–39, 41, 231, 233, 247, 249–50 procedural 99–100, 118, 247–48, 250, 281 Fallimento Olimpiclub 104–5, 107, 109 family members 144, 153, 189 favor rei 30–32, 36 FD-EAW, see EAW fees 263–64 court 224–25 final decisions 39–40, 103, 144, 146, 210 finality of judicial decisions 6, 99–120 fines 37–38, 91, 115, 225, 239, 244–45, 253 FMS 88, 91–92, 94, 98, 156 foreseeable relevance 256–57, 262 Fosen-Linjen 222–23 Foto-Frost 182 France 37, 216, 221 courts 106, 222 fraud, VAT 106–7, 264–68 fundamental rights, see Introductory Note Gambino and Hyka 34 García, Abril 58–59 general application 15, 183–84, 243 General Court 180–81, 189–92, 198–200, 203–4, 233, 237–38, 240–46, 249–50 general principles of EU law 11–12, 14, 221, 223, 226–27, 253–54, 258, 260 general-interest-oriented application 43 genetically modified organisms (GMOs) 210–11 Germany 74, 76, 78–79, 101, 196 Constitutional Court 50–53, 60 GMOs (genetically modified organisms) 210–11 governance 7, 61 judicial 71, 77–79 Greenpeace 199–200 grounds of appeal 147–48, 157 guarantees 23–24, 30–32, 35–36, 39–43, 171–72, 174–75, 231–32, 263–64 constitutional 50, 110 institutional 23, 25 procedural 55, 92, 152, 156, 281 special 173–74 guidance 63, 68, 73, 108, 119, 220, 227, 229 cases 68, 77 interpretative 36 for national courts 118 habeas corpus 42, 148, 172–75 Heemskerk 115, 117 horizontal direct effect 137, 278 horizontal enforcement 137 human rights 29, 41, 44, 178, 189, 192, 200, 203

Hungary 62, 112, 145, 266 courts 89, 153 tax authorities 112, 266 immunity 70, 73, 179 impartial courts/tribunals 1, 11, 19, 24, 236, 239–40, 250, 256 impartiality 62, 70, 115–16, 118, 166, 169–71, 249, 256 IN and JM 267–69 incidental effects 247–48 income tax 268–69; see also taxation assessments 267–68 independence 17–20, 22–23, 64–67, 69–70, 93, 165–66, 168–72, 175–76 appearance of, see appearance of independence decision-making 71–74, 79 external 166, 170 judicial, see judicial independence independent authorities 73, 129 independent courts 71, 79, 93; see also judicial independence independent judges, see judicial independence indirect legal remedies 259, 261, 269–70 indirect taxation 251; see also VAT Barreaux francophones 263–64 collection and use of evidence in proving VAT fraud 264–66 Dzivev 264–65 right to an effective remedy and to a fair trial 263–66 individual listing decisions 184–85 individual persons 196, 198, 202, 204, 207 individual procedural rights 45, 59–60 individual restrictive measures 182–83, 187, 192 substance of annulment actions against 186–88 individual rights 13, 46–48, 53–55, 60, 129 information 132, 189–90, 201, 237–38, 252, 254–57, 259–62, 269 exchanges 91, 254–61, 269, 279–80 holders 251, 255–57, 261–62, 269–71, 280 orders 91, 255–62, 269 requests 255–57, 261–62 infringement procedure 66–67, 222 infringements 16, 48, 66–67, 103, 113, 215–16, 241–45, 268–71 initial decisions 88, 152, 173 innocence, presumption of 28–30, 35, 236, 245–48, 250 inspection decisions 237–38 institutional autonomy 81–83, 95, 97–98, 265, 268 institutional guarantees 23, 25

Index 293 institutional standards 63, 75 insurmountable obstacles 263–64 interim measures 215, 227 interim relief 14, 219, 227, 284 internal review decisions 201, 207 procedures 207, 209, 211 international protection 87–89, 92, 146, 150, 153 applications for 87–89, 92, 146, 150 interpretation 16–19, 102–5, 159–61, 170–75, 180–84, 192–93, 203–4, 212 constitutionally-oriented 81, 83, 87, 90–91 correct 53, 105 dynamic 163, 165, 175, 280 of FD-EAW 161–62, 167, 175 teleological 162, 185 interventions, disproportionate 258, 260, 262 irremovability, of judges 22, 61, 63, 67, 71, 79, 96 issuing authorities 164, 166, 168, 170 issuing decisions 170, 174–75 issuing judicial authorities 34, 162, 164, 166–68 issuing powers 168, 174 Italy, administrative courts 221 ius puniendi 39–40 Johnston 3, 14, 83–84, 125–26, 275–76, 282 Jőrös 117 judges 62–64, 66–68, 70–76, 78–80, 93, 96, 170, 172–76 appointment, see judicial appointments delegated 66, 80 detention 148–49 independent, see judicial independence irremovability 22, 61, 63, 67, 71, 79, 96 national 59, 65–66, 77, 79, 182, 202, 275 rank-and-file 61, 69, 74, 79 judicial appointments 62–65, 67–68, 70, 96 and personal independence 74–77 systems 63, 70, 74 judicial authorities 34, 148, 159, 161–62, 164–69, 171–75, 190 definition 163–65 issuing 34, 162, 164, 166–68 judicial control 14, 126, 157, 178, 186, 240–41, 245, 249 judicial cooperation 31, 160, 162–63, 166 judicial councils 69–71, 74–75, 78 judicial decisions 66, 72, 163–64 finality 6, 99–120 re-opening 101–11 judicial empowerment, see empowerment of national courts

judicial governance 71, 77–79 judicial immunities 73 judicial independence 21, 61–63, 65–70, 75–83, 95–96, 166–67, 170–71, 274–75 decision-making independence and judicial tenure 71–73 and EAW (European Arrest Warrant) 165–72 institutional and structural autonomy 94–96 mandate of Court of Justice 64–71 organisational independence and judicial governance 77–79 personal independence and judicial appointments 74–77 principle 28, 274–75 standards 64, 68, 95, 275 virtue 70, 76–77 judicial organisations 61, 63, 79, 86, 169 judicial power 17, 22, 173–74 judicial protection 12–14, 23–24, 45–46, 52–53, 55–56, 137, 182, 205 effective, see effective judicial protection level of 159, 161, 163 system 16–17, 25, 81–82, 125, 182, 214–15, 227 judicial remedies 47, 54–55, 60, 90–91, 143, 146, 157, 163; see also remedies effective 161, 172, 223, 227 new 81–83, 90–91, 96 judicial remuneration 65–66, 78 judicial review 37–38, 71–72, 74, 76, 173–76, 180–82, 217–18, 228 of administrative action 216, 219 comprehensive 71, 237 effective 36–38, 129, 171, 180–81, 184, 275 fair 240 intensity 147, 150, 284 marginal 155 scope and intensity 141–43, 147–57 systems 216, 221 judicial self-governance 69, 78 judicial supervision 162–63, 165, 167, 170–72 judicial systems 3, 11, 17, 24, 62, 68, 80, 93 judicial tenure 61, 63, 67, 70; see also irremovability and decision-making independence 71–73 legal protection 71, 74 judiciaries 17–19, 25, 57–59, 61–63, 69–70, 75–78, 166, 169 national 22, 25, 45–46, 49, 57, 60, 96 jurisdiction 31, 90–94, 101, 137–38, 141–44, 146, 179–84, 217 unlimited 218, 240–42 justice effective access to 1, 135, 139, 263 natural 38, 42

294 Index notion 29, 39, 41, 43–44 organisation 18, 168 title of Charter 6, 27–32, 39, 41–44, 274, 279 Justice Scoreboard 63, 71, 73 Kadi 188, 228 Kancelaria Medius 114, 117 Karel de Grote 117 Köbler 47–49, 59, 105 Kraaijeveld 111, 117 last instance, national courts of 50–54, 59–60, 105, 274 lawful judge 50–52, 55, 60 lawfulness 66, 145–46, 148, 168, 228, 244, 268 of detention 93, 172–73 legal aid 1, 263–64, 283 legal basis 41, 238, 241, 245–47, 274 legal order, EU 17, 22, 32, 40, 43, 79, 83, 99–100 legal persons 14–15, 177–78, 181–87, 192–93, 196–97, 199, 238 legal protection 12, 138, 213, 215–16, 246, 263 effective 3, 12, 14–15, 64, 69, 134 legal remedies 15, 126–27, 138, 156, 223, 261–62 effective, see effective remedies indirect 259, 261, 269–70 legal standing, see standing legality 28–30, 36, 180–81, 185–86, 216–20, 240, 261–62, 266 objective 100 principle 28–30, 32, 36, 274 procedural 201 review 216–18, 222, 228, 240 substantive 156 legislation 33, 37, 42–43, 118, 141–47, 154–57, 211, 219 national 57–58, 90, 92, 126, 129, 133–35, 138, 259–60 secondary 34–35, 86–87, 89–90, 113–14, 161–63, 165–66, 213–15, 278 legislatures 58, 126, 131, 138, 142, 152, 154–55, 164 liability 47–48, 222–23, 229, 243–44 criminal 36 disciplinary 71–72 non-contractual 182, 243 state 47–48, 105, 261, 270 liberty 145, 172–76 deprivation of 145, 170, 173–75 personal 148 right to 172–76 Lisbon Treaty 3, 82–83, 96–97, 231–33, 241, 245, 247, 250

listing 177, 183, 188, 190 decisions 177, 179, 184–85, 187–88, 190, 192–93 locus standi 184–85, 199, 204 Luxembourg State v L 261–62 Luxembourg v B and Others 96, 257, 262, 269; see also Berlioz I/II main proceedings 18, 46, 66, 102, 105, 132, 224 Manfredi 115, 117 mergers 232–35, 249 Miasto Łowicz 66 migration 87, 141–43, 156–57, 276–77, 279–80, 282–83 courts 6, 141–57 ensuring national court jurisdiction 143–46 scope and intensity of judicial review 147–56 effective remedies 146, 153–56 law 141, 147, 156, 283 misappropriation of funds 189–91, 193 Mostaza Claro 117 mutual recognition 40–41, 160 mutual trust 40–41, 153, 171 national authorities 3, 34, 87, 90, 143, 148, 165, 175 national autonomy 81–82, 90, 97 national constitutional courts, see constitutional courts national constitutional law and preliminary references 50–54 national courts 15–25, 91–94, 100–16, 118–20, 137–39, 201–6, 265–69, 281–85 and Art 19 TEU 11–25 effective judicial protection before 45–60 empowerment 6, 56–57, 59, 90, 94, 141–57 ensuring jurisdiction 143–46 of last instance 50–54, 59–60, 105, 274 lower 55, 60 role in relation to judicial review 147–56 national discretion 69, 163–64 national judicial systems 25, 65, 104 national law 45–47, 92–94, 102–4, 111–13, 137–38, 150–53, 202, 204–6 national legislation 57–58, 90, 92, 126, 129, 133–35, 138, 259–60 national migration courts 143–57 national procedural autonomy, see procedural autonomy national procedural rules 4, 41–42, 112, 114, 116, 118–19, 280, 284

Index 295 national procedures 13, 23–24, 42, 85 national rules 108, 110, 112–14, 127, 134, 136–37, 215, 281–84 national warrants 174–75 natural justice 38, 42 natural persons 184–85 negative obligation 163–65 negotiators 199, 209, 211 Netherlands 144, 149, 253 NGOs 203–5, 209–11, 230, 282 non-contractual liability 182, 243 non-discrimination 6, 123–39, 195, 276–80, 282–84 burden of proof 130–32 directives 128–35, 137 and effective access to the courts 128–30 and effective remedies 125–27, 129 origins of relationship with Art 47 124–28 procedural obstacles at national level 136–37 and protection against retaliation 130 redress 134–35 standing of equality bodies and other entities 132–33 tasks of national courts and other competent bodies 137–38 Norway, Supreme Court 223 obstacles, procedural 123–24, 136–37, 139 Océano 113, 117 Ognyanov 35 OG&PI 174 Online Games 115, 117–18 oral procedure 242 ordinary courts 57, 60, 270 organisation of justice 18, 168 organisational independence 77–79 outcome cases 68 own motion 105, 111–16, 226, 240–41, 243 Özçelik 163–65 Pannon 117 participation procedure 209 party disposition 50, 100 penalties 28–32, 36–40, 134, 239, 253, 256–62, 265, 270 administrative 91, 265 criminal 256, 265 financial 91, 232, 240, 253 proportionality 31–32, 36–38 penalty decisions 255–57, 262 Pénzügyi Lízing 117 personal data 258–59, 270 personal independence 74–77 personal interview 149, 151–52, 154

persons individual 196, 198, 202, 204, 207 legal 14–15, 177–78, 181–87, 192–93, 196–97, 199, 238 natural 184–85 private 202, 204, 208 taxable 104, 264, 266–67 Peterbroeck 111, 117, 119 PIN (prior information notice) 219 Plaumann 195, 198–99, 206 Pohotovosť 117 Poland 61–62, 67, 70, 72–73 disciplinary regime for judges 63, 71–72 Supreme Court 65, 72, 76–77, 93 political authorities 71–72, 74, 76–78 Poltorak 163–65 Portugal 11, 222–23, 266 Supreme Court 48 Portuguese Judges 12, 16–17, 22, 25 power, judicial 17, 22, 173–74 powers 24–25, 92, 99–100, 102, 111–15, 147–48, 161–62, 169–70 decision-making 176, 231–32 issuing 168, 174 separation of 166 preliminary references 45, 47–53, 56, 59–60, 64–67, 180–82, 203–4, 208 EU law perspective 46–50 as individual right 46–54 initiation of proceedings 46 national constitutional law perspective 50–54 procedure 5–6, 16, 45–49, 54–60, 63–68, 178, 181, 192 rights-based approach 54–56 preparatory decisions 146, 157 presumptions 131–32, 223, 236, 245 of innocence 28–30, 35, 236, 245–48, 250 of relevance 66 primacy 22, 82–83, 91–94, 96, 100, 107–9, 119, 138 prior information notice, see PIN private applicants 181, 183, 203 private life 258–59, 265, 267, 270 private parties 57, 137, 177, 183–85, 187, 189, 192–93, 261 private persons 202, 204, 208 procedural areas affected by Art 47 119, 277, 280–84 procedural autonomy 81–98, 101–2, 159–61, 163–65, 172, 175–76, 222, 229 Art 47 and EU secondary legislation 86–90 erosion 159, 161 national 41, 81–98, 101–2, 104, 111, 113, 172, 175–76

296 Index procedural economy 100, 262 procedural fairness 99–100, 118, 247–48, 250, 281 procedural guarantees 55, 92, 152, 156, 281 procedural law 5, 29, 86–87, 264 secondary 33, 84–85, 87 procedural norms, see procedural rules procedural obstacles 123–24, 136–37, 139 procedural rights 29–30, 35, 41–42, 44, 186, 190, 197, 200 fundamental 42, 44 individual 45, 59–60 procedural rules 3–4, 41–43, 82, 85–86, 89, 98, 102, 278–79 national 4, 41–42, 112, 114, 116, 118–19, 280, 284 of reason 112–13, 115, 119 secondary 89, 277, 284 procedural safeguards 142, 172 procedural standards 123, 135, 139, 142 proceduralisation 44, 124, 128, 227, 277–79 procedures accelerated 87, 146 administrative 133, 219–20, 238, 241–42, 247, 267 appointment 65, 73–74 asylum 142, 149, 151, 153, 157 award 218, 222, 226 civil 24, 42 competition 231, 233, 247 criminal 171, 190, 265, 267 infringement 66–67, 222 internal review 207, 209, 211 judicial 66, 129–30, 202, 205, 280 national 13, 23–24, 42, 85 oral 242 preliminary ruling 16, 60, 178, 181, 192 settlement 244, 250 surrender 160, 162–63, 167, 171–72, 176, 280 written 242 Procedures Directive 142, 146, 149–52 proceedings administrative 39, 103, 129, 133, 241, 247 criminal 30–31, 40–41, 66, 103, 166–67, 189–91, 264–66, 268 disciplinary 71, 73, 96 duplication 40 judicial 32, 177, 193, 238, 241–42, 248, 262–63 legal 72, 126–27, 130, 133, 191, 225, 263–64 main 18, 46, 66, 102, 105, 132, 224 surrender 160, 165, 170, 175–76 procurement 7, 195, 213–30, 277–78, 283 cases 213–14, 221–22, 225, 227, 230

damages 222–27 decisions 213, 215, 226 annulment 217–22 gaps and shortcomings in Procurement Remedies Directives 216–24 law 216, 219–20, 224–25 remedies 213, 216–27 codification 215–16 rules 213–15, 219, 223, 225–26 Profit Credit Polska 117 Prokuratura Rejonowa w Mińsku Mazowieckim 66 proof, burden of 127–28, 130–32, 135, 139, 168, 187, 220, 283 proportionality 28–31, 36–38, 41, 72, 78–79, 258, 268, 274 of penalties 31–32, 36–38 prosecutors 164–70, 172–76, 239 public 164–65, 167, 169, 175, 280 protection for applicants 118–19 consumers 101, 105, 113–14, 116, 118–19 effective 110, 113, 157, 163, 192, 202, 205, 207 environmental, see environment international, see international protection subsidiary 146, 149, 157 public authorities 31–32, 42–43, 195–96, 200, 202, 204, 258–60, 262 public contracts 213–14, 216 public policy 100, 240 and ex officio application of EU law 112–15 public procurement, see procurement public prosecutors 164–65, 175, 280 offices 73, 164–65, 169, 174 role in relation to EAW (European Arrest Warrant) 165–69 Qualification Directive 149–50 racial equality 131 Radlinger 117 Radu 33–34, 162–63 Rampion 117 rank-and-file judges 61, 69, 74, 79 Rayonna prokuratura Lom 33 reasonable time, right to hearing within a 241–43 reasonableness 147, 242 reasoned decisions 49, 60, 142, 274 reasons 49, 51–56, 60, 185–91, 210–11, 228, 241–42, 280–82 duty to state 60, 74, 156, 236, 243–44, 250, 274 statements of 51, 60, 73

Index 297 Reception Conditions Directive 89, 145 recognition, mutual 40–41, 160 redress 30–31, 46, 127–28, 139, 173, 216, 220 non-discrimination 134–35 referring courts 46, 58–59, 78, 92–94, 112–13, 218–19, 221–25, 266–67 reformatio in peius 115 refusal of disclosure 131–32 relevance, foreseeable 256–57, 262 relief 56, 242–43 injunctive 207 interim 14, 219, 227, 284 remedial autonomy 86, 90–94, 97 remedies administrative 14, 144, 207, 215 appropriate 241–42 directives 213–15, 225, 229–30, 278 gaps and shortcomings 216–24 effective, see effective remedies indirect 259 legal, see legal remedies national 13, 50 procurement 213, 215–27 remuneration, judicial 65–66, 78 re-opening, see finality of judicial decisions res judicata 31, 39, 100–10, 117, 120, 284 restrictive measures 177–79, 181–90, 192–93, 279 addressees 179, 181, 188, 193 of general application 183–84 individual 182–83, 192 standing to challenge 183–86 retaliation 126–28, 130, 135, 139 retirement age 62, 67, 72 return decisions 89, 92, 146 Return Directive 89–90, 92, 145–46, 148–49 review 53–54, 147–49, 154–55, 180–81, 217–22, 224–26, 228–29, 266–68 administrative 143, 201, 207 decisions 141, 156, 215 internal 201, 207 in-depth 240, 249 judicial, see judicial review legality 216–18, 222, 228, 240 marginal 218, 221 of penalties 38 procedures 201, 218 Rewe 3, 13, 83–85, 94, 96–98, 100, 111–12, 118 rightholders 261–62, 270–71 rights of access to courts 56, 197, 232 of access to justice 226, 263, 281 of action 15, 216

to appeal 29, 101, 143–44, 153, 162, 173 of defence 28–30, 35–36, 186, 188–90, 245–46, 248–50, 253–54, 261–62 to defend environment 195–212 due process 185–86, 192, 231–32, 247, 281 to effective judicial protection, see effective judicial protection and Introductory Note to effective remedy, see effective remedies to equal treatment 129, 136 EU-derived 41, 45, 57 to hearing by an independent and impartial tribunal 239–41 to hearing within a reasonable time 241–43 individual 13, 46–48, 53–55, 60, 129 to liberty 172–76 procedural 29–30, 35, 41–42, 44, 186, 190, 197, 200 Romania 73, 96, 104–5 Constitutional Court 76–77 courts 73 Rosneft 2, 36–37, 180, 182–83, 276 rule of law 17–18, 27–28, 30–31, 43–44, 177–81, 189, 217, 275 rule of reason, procedural 112–13, 115, 119 Sabou 254–55, 271 safeguards 47, 66, 72, 94, 175, 246, 248 procedural 142, 172 Sánchez Morcillo 58–59 sanction regimes 183–84, 188, 190–91, 193 sanctions 31, 34, 125, 133–35, 178, 182–93, 253, 256 addressees 187, 190, 193 decisions instituting 177–78 disciplinary 71, 73 scope ratione personae 177, 183–86, 192 secondary law/legislation 34–35, 86–87, 89–90, 113–14, 161–63, 165–66, 213–15, 278 procedural 33, 84–85, 87 secondary rules 118, 277–80 procedural 89, 277, 284 security 228; see also CFSP exceptions 186 self-governance, judicial 69, 78 separation of powers 166 settled case law 198, 202, 243, 270 settlement, procedure 244, 250 sex discrimination 125, 130 sexual orientation 133–34 short-term visa cases 143, 155 sincere cooperation 13, 15, 41, 99, 101, 109, 111, 116–17 Slovak Constitutional Court 50, 52–53, 60

298 Index Slovenia 51, 53, 55 Constitutional Court 53, 55, 60 Supreme Court 53 Spain 58, 257 Constitutional Court 51–52, 55, 86 Supreme Court 52 Spetsializirana prokuratura 33 Sporting Odds 112, 117 standards institutional 63, 75 judicial independence 64, 68, 95, 275 procedural 123, 135, 139, 142 standing 132–33, 185, 192–93, 195, 197–98, 200, 230, 281–82 to challenge restrictive measures 183–86 for individuals 17, 54 requirements 177–78, 183–84, 192, 277 state aid 106–8, 232–35 state liability 47–48, 105, 261, 270 statements of reason 51, 60, 73 Strabag 222–23 subsidiary protection 146, 149, 157 supervision administrative 78–79 judicial 162–63, 165, 167, 170–72 supreme courts 48, 52–53, 65, 67–68, 72, 76–77, 93, 95 Norway 223 Poland 28, 65, 67, 72, 76–77, 93 Portugal 48 Slovenia 53 Spain 52 Sweden 58 surcharges 243, 253 surrender 34, 160, 162, 167–68, 175 mechanism 162, 167, 173, 175 procedures 160, 162–63, 167, 171–72, 176, 280 proceedings 160, 165, 170, 175–76 requests 161, 168, 176 Sweden 58, 70, 256 Supreme Court 58 synergies 27, 29, 274 systemic problems 69–70, 94, 281 tax adjustments 266, 269 income 268–69 tax authorities 91, 107, 251, 254–55, 261, 266–68 Hungary 112, 266 Luxembourg 257–58 tax law 251–53, 255, 276–77, 280, 283 taxable persons 104, 264, 266–67 taxation 7, 91, 251–71 Berlioz I/II 91, 96, 255–62, 280 direct 251–52, 269, 279–80

effective remedies 251–53, 255–61 framework for effective judicial protection and effective remedy 252–55 IN and JM 267–69 indirect, see indirect taxation Luxembourg State v L 261–62 use of evidence from criminal proceedings without taxpayer knowledge 266–69 WebMindLicenses 35, 266–68 taxpayers 104, 107, 251–55, 257–62, 266, 269–71, 279–80 tenderers 196, 214, 218, 220–21, 223, 226–28 tenders 218–20, 228–29 tenure, judicial 61, 63, 67, 70–72 Texdata 37, 253 TFEU (Treaty on the Functioning of the EU) 46–56, 177–85, 192, 197–204, 206–9, 211–12, 231, 237–38 third countries 177, 184–86, 188–93 third parties 255, 257, 260–61, 270, 280 third-country nationals 141, 144–45, 148, 156 Torubarov 88, 91–94, 150, 152, 156, 284 transfer decisions 153–54 transit zones 89, 145 transition amounts 129–30 transplants 60, 68–69 Treaty on the Functioning of the EU, see TFEU tribunals 46–47, 64, 103, 154–55, 165–67, 171, 181–82, 225; see also courts trust, mutual 40–41, 153, 171 Tunisia 179, 189, 191, 193 Ukraine 179, 189–90 undertakings 231–32, 237, 239, 241, 243–44, 246–48, 250 unlawful decisions 99, 216, 223 unlawful discrimination 125, 128, 131–32, 134 unlimited jurisdiction 218, 240–42 use of evidence 265, 267–68 validity 14–15, 17, 37, 50, 86–87, 146, 181–82, 256 provisional 174 valued added tax, see VAT van der Weerd 112, 114, 117 Van Gend & Loos 13–16 van Schijndel 111–12, 117, 119 VAT (valued added tax) 39, 104–5, 196, 251, 256, 263–69, 280; see also indirect taxation directives 251, 256, 263, 266 fraud 106–7, 264–68 collection and use of evidence 264–66 Venezuela 177, 184–85, 192, 281 victims of discrimination 126–27, 131

Index 299 visa cases 155–57 short-term 143, 155 Visa Code 143–44, 156–57 visas 142–44, 147, 155–56 applications 142–43, 146, 156 von Colson 3, 125, 127 Vueling 106, 109

warrants 34, 163–64, 171, 237; see also EAW national 174–75 WebMindLicenses 35, 266–68 witnesses 30, 34, 246, 248 workers 126–27, 132 written procedure 242 WTO agreements 186

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