Judicial Protection in EU Primary Law (Art. 47 of the EU Charter)
Second, Article 47 of the EU Charter puts much more emphasis on the effectiveness of judicial protection as it establishes the right to an effective remedy and not merely the right to a fair trial. This includes the possibility of being advised, defended and represented. Similarly, legal aid must be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.
The effective judicial protection of individuals’ rights under EU law is a general principle which stems from the constitutional traditions common to the Member States, as enshrined in Articles 6 and 13 ECHR and reaffirmed by Article 47 of the EU Charter. Respect for the rule of law is one of the common values enshrined in Article 2 TEU. The second subparagraph of Article 19(1) TEU, which requires Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law, is a concrete manifestation of that value. Article 47 of the EU Charter must be taken into consideration when interpreting the second subparagraph of Article 19(1) TEU (see Case W.Z., C-487/19; or Getin Noble Bank, C-132/20).
It is for the Member States to establish a system of legal remedies and procedures to ensure effective judicial protection in the fields covered by EU law. Member States have the task of designating the courts or institutions they empower to review the validity of national provisions, of prescribing legal remedies and procedures to contest the validity of those provisions and, where an action is well founded, of striking them down and determining the effects of those orders (see Case Minister for Justice and Equality and Commissioner of An Garda Síochána, C-378/17).
While Member States must ensure effective judicial protection in the fields covered by EU law, in the absence of EU rules on the matter, EU law does not require Member States to adopt a specific system of remedies or procedural rules governing actions to safeguard rights that individuals derive from EU law, provided that the remedies and procedures available for that purpose comply with the principles of equivalence and effectiveness. In C-583/11 (Inuit Tapiriit Kanatami and Others v Parliament and Council), the CJEU emphasised that neither the TFEU nor Article 19 TEU require the creation of remedies other than those already laid down by national law in order to ensure the observance of EU law before national courts. The position is otherwise only if the structure of a national legal system does not provide for any remedy that makes it possible, even indirectly, to ensure respect for the rights that individuals derive from EU law. In such cases, national courts must assert jurisdiction to determine an action brought by a person concerned for the purpose of defending rights that EU law guarantees to them.
Detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must therefore be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness). These requirements are also based on the principle of sincere cooperation enshrined in Article 4(3) TEU (see A. K. and Others, C-585/18, C-624/18 and C-625/18).
The requirement that courts be independent, which follows from the second subparagraph of Article 19(1) TEU, has two aspects to it. The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests regarding the subject matter of those proceedings. The latter aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (see RS, C-430/21).
The right to effective judicial protection pursuant to Article 47 of the EU Charter does not exist in a vacuum and must be linked to a right that EU law confers or to a freedom that it guarantees. Any person may rely on Article 47 of the EU Charter to challenge before a national court an act a Member State has adopted in its implementation of EU law that adversely affects that individual. It is in that context that Member States enjoy a significant degree of discretion to determine what constitutes an impairment of a right or freedom, the conditions for the admissibility of actions and the bodies before which such actions may be brought.
In C-73/10 P (Internationale Fruchtimport Gesellschaft Weichert v Commission), for example, the CJEU held that the right to a court is not absolute and is subject to, for instance, rules establishing time limits within which an action must be commenced. Those rules must, however, not restrict a litigant’s access in such a way, or to such an extent as to impair the very essence of the right that he or she seeks to assert. Such rules must pursue a legitimate aim and the relationship between the means they employ and the aim they pursue must be reasonable and proportionate.