LLB Law and European Studies graduate from the University of Portsmouth
In its practice exceeding more than fifty years, the Court of Justice of the European Union (CJEU) has developed several seminal legal principles with an aim to ensure a uniform and consistent application of the EU Treaties.[i] Guaranteeing smooth interpretation and application of EU law is not only an aspiration, but also the CJEU’s duty established under Article 19 of the Treaty on European Union (TEU).[ii] This article seeks to provide a general overview of the principle of effective judicial protection. It aims to outline the role of the EU and national bodies which can advise on EU citizens’ rights in cases of misapplication of Union law. Further, the article will appraise how the seminal principles developed by the CJEU enabled individuals to obtain remedies in their national courts.
Effective judicial protection can be interpreted in a three-stage process. The first stage concentrates on the question if the EU citizens are aware of their rights. The second stage is defined with the concept of access to justice. The final stage is focused on the effective co-operation between the national courts of the Member States and the CJEU and enforcement of the decisions of the national courts.
I. Awareness of the protection of EU citizens’ rights
Protecting the rights of EU citizens and ensuring that the objectives of the concept of European citizenship are observed is a necessity. Although the 1957 EEC Treaty[iii] was silent on the protection of fundamental rights and European citizenship, from the 1970s onwards many initiatives have been put forward in order to establish a “Europe for Citizens”.[iv]
In the current Treaty framework, European citizenship and its objectives are defined in Art.20 TFEU[v] which identifies and accentuates the advantages of being an EU citizen. European citizenship provides us with many benefits: the rights to move, work and reside within the Union; right to study in another Member State; the right to vote in the European Parliament elections in the country where you reside and the right to receive protection from another EU Member State in the country you are visiting if your country of origin is not represented.[vi]
In 1975, Belgian Prime Minister Tindemans clearly enunciated that ‘[n]o one wants to see a technocratic Europe. European Union must be experienced by the citizen in his daily life.’[vii] Thus, if the EU seeks to fulfil its aspiration to create ‘an ever closer Union among the peoples of Europe’, it needs to place the citizen at the heart of its decision making.
The 2010 Eurobarometer survey[viii] revealed that the majority of the EU citizens were unaware of their rights granted by the EU.[ix] The purpose of the European Citizenship Report 2010[x] was to identify the obstacles to EU citizens’ rights and suggest practical solutions in order to overcome the problems that EU citizens might encounter. The outcome of the consultations was the launch of a website called ‘Your Europe’. The web page provides practical information about Union citizens’ rights and about national rules and procedures from which the Union citizens can benefit. Another proposal in line with the European Year of Citizens 2013 includes the organisation and promotion of events on EU citizenship and citizens-related policies which will potentially increase the civic involvement and thus strengthen citizens’ awareness of their EU citizenship status.
II. Access to justice: the role of EU and national bodies
Once EU citizens are aware of their rights, the second fundamental point which needs to be considered is which institutions or bodies can advise EU citizens on their rights? As the 2012 Eurobarometer survey[xi] revealed, the EU citizens need more information about where to turn in cases of violation of their EU rights.
On 6 December 2012, the Fundamental Rights conference was held in Brussels. The topic of the conference was access to justice and the speakers stressed that it is a fundamental matter as it not only ensures the democratic governance within the EU, but also ‘gives practical effect to the foundation stone of the rule of law on which the Union is built’.[xii]
Commissioner Reding in her speech in this conference[xiii] acknowledged that 21% of the EU citizens will turn to their national courts in cases of violation of their Charter rights and 20% will bring their case before the Ombudsman. What is surprising is that EU citizens are still unaware of the role of EU bodies such as SOLVIT or Europe Direct. This suggests that citizens require additional information about the role of EU bodies that can provide legal advice and aid. This can be achieved through co-operation with national media. The roles of national media are not only to inform us about the debates in our nation states, but also to educate us. The launch of a successful partnership with national media of the Member States could have huge benefits. The most valuable contribution would be that the EU could reduce the mistrust between itself and the EU citizens. Once citizens have an objective opinion about the benefits of EU membership then there will be also a decrease in the eurosceptic attitudes in the Member States.
III. National courts of the Member States and the CJEU and effective enforcement of the national courts’ decisions
As noted earlier, the national courts seems to be the first place where the EU citizens will turn if they encounter misapplication of Union law. Thus, in theory if effective judicial protection exists in the EU, it can also be described as a result of an effective relationship between the CJEU and the national courts of the Member States. This relationship should be based on sincere co-operation and mutual respect as demonstrated by Art.4(3) TEU.[xiv] Maintaining effective relationship between the national courts and the CJEU is vital as in procedural terms individuals do not have the right to appeal to the CJEU. It is the national courts or tribunals of the Member States which have the discretion under Art.267 TFEU[xv] to decide whether or not to refer questions to the CJEU.
For example, the wording of paragraph 2 of Art.267 TFEU states that national courts, which are not the last instance in certain case, ‘may’ refer the question related to interpretation of EU law to the CJEU. This demonstrates that it is solely for the national courts to decide whether or not refer questions to the CJEU. This position is reaffirmed if the Court’s reasoning in CILFIT is taken into account where the Court stated that ‘in all circumstances national courts and tribunals (…) remain entirely at liberty to bring a matter before the Court of Justice if they consider it appropriate to do so’.[xvi] The national courts are enabled to use their discretionary powers not to refer to the CJEU if such question of law was irrelevant or was previously interpreted or when the doctrine of acte clair applies.
Entrusting the national courts of the Member States with such powers is an indication of a mature relationship between the national courts and CJEU. The potential positive outcome of such relationship means that straightforward cases are decided at national level by the national courts and the CJEU has more time to resolve more problematic cases. [xvii]
However, Article 267 TFEU makes a clear distinction between discretionary and mandatory references. For example, the Lyckeskog [xviii] judgment of the CJEU underlined that if a question concerning the interpretation of Union law arose before a court of last resort, it would be under an obligation to request a preliminary ruling in accordance with Art.267 TFEU, either when analysing admissibility or at a later stage. This position was reiterated in the Köbler[xix] case where the CJEU held that non-compliance by a top national court with its obligations under Art.267(3) might render the state in which it is situated liable in damages to an individual who was in that way deprived of his rights under EU law.
One should note, that the relationship between the CJEU and the national court in proceedings under Art.267 TFEU is co-operative rather than hierarchical in nature. Both courts have distinct but complementary roles to play in finding a solution to the case which is to be solved in accordance with EU law. A reference to the CJEU is not an appeal against the decision of the national court. The CJEU does not rule on the application of the law to the facts or the compatibility of national law with the requirements of EU law. These are matters within the exclusive jurisdiction of the national court.
It is also the national courts of the Member States which will award remedies to individuals. Nevertheless, from the early 1990s onwards the Court has requested adequacy and effectiveness in the award of remedies in the domestic enforcement of Union law. As De Burca notes, national courts are required to undertake a case-by-case review of the national rules and disapply any restrictive national provisions whenever necessary in order to award adequate and effective remedies in the spirit of EU law. [xx] This is primarily because national remedies must secure the effectiveness of EU rights.[xxi]
Effective judicial protection is a fundamental right of EU citizens and, as a result, EU citizens must be aware of their fundamental rights so that they can understand in practice the benefits of their EU citizenship status. Thus it is suggested that the efforts of the EU in the European Year of Citizens 2013 should be primarily focused on educating and informing citizens about their rights and providing information about EU legal advice and aid centres. These are the two fundamental points which will ensure that effective judicial protection finds its place not only in theory, but also in practice.
[i] Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union  OJ C 83/1.
[ii] Consolidated version of the Treaty on European Union  OJ C 83/1.
[iii] Treaty Establishing the European Economic Community, March 25, 1957, 298 U.N.T.S. 11.
[iv] Tindemans, Leo, ‘ European Union. Report by Mr. Leo Tindemans, Prime Minister of Belgium, to the European Council. Bulletin of the European Communities, Supplement 1/76.’ (1975) http://aei.pitt.edu/942/1/political_tindemans_report.pdf accessed 10 January 2013.
[v] Consolidated version of the Treaty on the Functioning of the European Union  OJ C 83/1.
[vi] Consolidated version of the Treaty on the Functioning of the European Union  OJ C 83/1.
[vii] Tindemans, Leo, ‘ European Union. Report by Mr. Leo Tindemans, Prime Minister of Belgium, to the European Council. Bulletin of the European Communities, Supplement 1/76.’ (1975), page 12 http://aei.pitt.edu/942/1/political_tindemans_report.pdf accessed 10 January 2013
[viii] European Commission, ‘Flash Eurobarometer: European Union Citizenship Analytical report’ (2010) http://ec.europa.eu/public_opinion/flash/fl_294_en.pdf accessed 10 January 2013.
[ix] Although the majority (79%) of EU citizens claim familiarity with the term “citizen of the European Union”, only 43% say they know its meaning and less than one-third (32%) of respondents from the 27 EU countries consider themselves well informed about their rights as citizens of the European Union.
[x] European Commission, ‘the European Citizenship Report 2010’ (2010) http://ec.europa.eu/commission_2010-2014/reding/factsheets/pdf/citizenship_report_en.pdf accessed 10 January 2013.
[xi] European Commission, ‘Speech – A European Union grounded in justice and fundamental rights’ (speech, 6 December 2012) http://europa.eu/rapid/press-release_SPEECH-12-918_en.htm?locale=en accessed 16 December 2012.
[xii] European Commission, ‘Speech – A European Union grounded in justice and fundamental rights’ (speech, 6 December 2012) http://europa.eu/rapid/press-release_SPEECH-12-918_en.htm?locale=en accessed 16 December 2012.
[xiv] Consolidated version of the Treaty on European Union  OJ C83/01.
[xv] Consolidated version of the Treaty on the Functioning of the European Union  OJ C83/01;
[xvi]Case 283/81 Srl CILFIT and Lanificio di Gavardo spA v Ministry of Health  ECR 341, para. 15.
[xvii] P Craig and G De Burca, EU Law: Text, Cases and Materials (4th ed., OUP 2008) 478-479; T Tridimas, ‘Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure’ (2003) 40(1) CMLR 9, 12.
[xviii] Case C-99/00 Criminal Proceedings against Lyckeskog  ECR I-1327.
[xix] Case C-224/01 Gerhard Köbler v Republik Österreich  ECR I-10239
[xx] P Craig and G De Burca, EU Law: Text, Cases and Materials (4th ed., OUP 2008) 306.
[xxi] P Craig and G De Burca, EU Law: Text, Cases and Materials (4th ed., OUP 2008) 312.