Effective judicial protection of human rights after lisbon: Should national courts be empowered to review EU secondary law?

European Law Review

Volumn 35, Issue 3, 2010, Pages 326-348

  Leczykiewicz, Dorota ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 79851481979     PISSN: 03075400     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (273)

1. See for example, J. Engstrom, "Recent and Potential Future Developments in Judicial Protection in the European Area of Freedom, Security and Justice" (2009) 9 E.R.A. Forum 487.
2. Articles 263 and 267 TFEU. See A. Hinarejos, "The Lisbon Treaty versus Standing Still: a View from the Third Pillar" (2009)5 European ConstitutionalLaw Review 99;
3. B. Nascimbene, "European Judicial Cooperation in Criminal Matters: What Protection for Individuals under the Lisbon Treaty?" (2009)10 E.R.A. Forum 397. However, the ECJ's jurisdiction as regards pre-existing third-pillar acts remains subject to the pre-Treaty of Lisbon provisions for a five-year transitional period.
4. Under the pre-Treaty of Lisbon on European Union, the ECJ's jurisdiction in the third pillar was much circumscribed.
5. TEU did not envisage direct actions or an action for damages.
6. As for preliminary rulings more generally, depending on the Member State in question, a national court could be prevented from referring the question of validity the ECJ in the following possible scenarios: (I) where the third-pillar act was a common position;
7. See arts 35 TEU and 68(2) EC.
8. See also A. Arnull, "Taming the Beast? The Treaty of Amsterdam and the Court of Justice" in D. O'Keeffe and P. Twomey, Legal Issues of the Amsterdam Treaty (Oxford: Hart Publishing, 1999), p.109;
9. S. Peers, "Salvation outside the Church: Judicial Protection in the Third Pillar after the Pupino and Segi Judgments" (2007)44 C.M.L. Rev. 883, 885-888. The Treaty of Lisbon dispenses of limitations (1), (2), (3) and (4) but retains restrictions (5) and (6).
10. See art.276 TFEU and art.24 TEU.
11. Article 263(4) TFEU: "Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures." The Pre-Lisbon EU Treaty did not envisage a direct review procedure.
12. The question of validity of a third-pillar measure could only be posed in the context of the preliminary ruling procedure. Second pillar acts were in principle not reviewable at all. See fn.3, above.
13. Article 6(2) TEU, as amended by the Treaty of Lisbon.
14. A. Arnull, "From Charter to Constitution and beyond: Fundamental Rights in the New European Union" (2003) P.L. 774, 785-790.
15. Article 24(1) TEU and art.275 TFEU. By way of exception, the Treaty of Lisbon allows the ECJ to monitor that implementation of the common foreign and security policy shall not affect the exercise of other competences by the EU (art.40 TEU) and to review the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council.
16. M.-G. Garbagnati Ketvel, "The jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy" (2006) 55 I.C.L.Q. 77, 106.
17. This mechanism was recently used for example in Kadi v Council (C-402/05 P & C-4 15/05 P) [2008] E,C.R. 1-6351; [2008] 3 C.M.L.R. 41.
18. Article 275 TFEU. Under the pre-Lisbon Treaties, restrictive measures against individuals adopted under the second pillar as such were not subjected to the ECJ's review (art.46 TEU).
19. Article 6(1) TUE (as amended at Lisbon).
20. On art.47 of the Charter of Fundamental Rights, see below.
21. See for example, J. Coppel and A. O'Neill, "The European Court of Justice: Taking Rights Seriously?" (1992) 12 Legal Studies 228;
22. J.H.H. Weiler and N.J.S. Lockhart, "Taking Rights Seriously' Seriously: the European Court and Its Fundamental Rights Jurisprudence-Part 1" (1995)32 C.M.L. Rev. 51 and "Part II" (1995)32 C.M.L. Rev. 579;
23. S. Douglas-Scott, Constitutional Lmv of the European Union (Longman Harlow, 2002), pp.431-478.
24. Parti Ecologiste Les Verts v Parliament (294/83) [1986] E.C.R. 1339;
25. [1987] 2 C.M.L.R. 343 at [23]: "It must first be emphasized in this regard that the European Economic Community is a community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty"; Kadi (C-402/05 P & C-4 15/05 P) [2008] E.C.R. 1-635 1 at [316]: "the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system."
26. L.F.M. Besselink, "Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union" (1998) 35 C.M.L. Rev. 629, 633-636;
27. S. Douglas-Scott, Constitutional Law of the European Union (Longman Harlow, 2002), pp.452-454.
28. J Nold Kohlen- und Baustoffgrosshandlung v Commission (4/73) [1974] E.C.R. 491;
29. [1974] 2 C.M.L.R. 338 at [14];
30. Wachaufv Germany (5/88) [1989] E.C.R. 2609;
31. [1991] 1 C.M.L.R. 328 at [18];
32. Karisson (C-292/97) [2000] E.C.R. 1-2737 at [45].
33. Kadi at [342]-[344] and [363].
34. ADBHU (240/83) [1985] E.C.R. 520 at [9];
35. Eugen Schmidberger Internationale Transporte Planzuge v Austria (C- 112/00) [2003] E.C.R. 1-5659;
36. [2003]2 C.M.L.R. 34; at [80]-[8 1].
37. J. Coppel and A. O'Neill, "The European Court of Justice: Taking Rights Seriously?" (1992)12 Legal Studies 228, 242-243;
38. P. Oliver and W.-H. Roth, "The Internal Market and the Four Freedoms" (2004)41 C.M.L. Rev. 407, 408-410.
39. P Eeckhout, "The EU Charter of Fundamental Rights and the Federal Question" (2002) 39 C.M.L. Rev. 945, 959-962 and 969. The protection of this right is self-standing, because "the scope of the Treaty" in art. 12 EC has been interpreted very broadly, partially thanks to EU citizenship.
40. See in particular Martinez Sala (C-85/96) [1998] E.C.R. 1-2691 at [63];
41. Grzelczyk v Centre Public d 'Aide Sociale d 'Otlignies Louvain Ia Neuve (C-I 84/99) [2001] E.C.R. 1-6193;
42. [2002] 1 C.M.L.R. 19 at [32]-[35];
43. Gareia Avello v Belgium (C-148/02) [2003] E.C.R. 1-11613;
44. [2004] 1 C.M.L.R. 1 at [23]-[24];
45. R. (on the application of Bidar) v Ealing LBC (C-209/03) [2005] E.C.R. 1-2119;
46. [2005] 2 C.M.L.R. 3 at [39] and [42].
47. Moreover, the right to non-discrimination on the ground of nationality has horizontal application and other provisions of the Treaty receive horizontal application when they are conceptualised as special instances of the art. 12 EC prohibition: Angonese v Cassa di Risparmio di Boizano SpA (C-28 1/98) [2000] E.C.R. 1-4139;
48. [2000] 2 C.M.L.R. 1120 at [34] and [35].
49. S. Prechal and S. De Vries, "Seamless web of judicial protection in the internal market?" (2009)34 E.L. Rev. 5, 16.
50. G. More, "The Principle of Equal Treatment: From Market Unifier to Fundamental Right?" in P. Craig and G. de Burca (eds), The Evolution of EU Law (1999), p.517.
51. The principle of non-discrimination on the ground of nationality is triggered when the individual has exercised its right to free movement (Grzelczyk (C-184/99) [2001] E.C.R. 1-6193 at [33]). "Purely internal situations" are excluded from the scope of application of art. 12 EC (now 18 TFEU), even though in this context individuals are treated less favourably by its own state precisely because they are this state's nationals and, not being nationals of another Member State, do not benefit from the protection offered by Union law (reverse discrimination).
52. See C. Ritter, "Purely Internal Situations, Reverse Discrimination, Guimont, Dzodzi and Article 234" (2006) 31 E.L. Rev. 690;
53. M. Poiares Maduro, "The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination" in C. Kilpatrick, T. Novitz and P. Skidmore (eds), The Future of Remedies in Europe (Oxford: Hart, 2000), p.117;
54. A. Tryfonidou, "The Outer Limits of Article 28 EC: Purely Internal Situations and the Development of the Court's Approach through the Years" in C. Barnard and O. Odudu (eds), The Outer Limits of European Union Law (Oxford: Hart, 2009), p.197.
55. A. von Bogdandy, "The European Union as a Human Rights Organization? Human Rights and the Core of the European Union" (2000) 37 C.M.L. Rev. 1307.
56. Internationale Handelsgesellschafl mbH v Einfrhr- und Vorratsstelle fur Getreide und Futtermittel (11/70) [1970] E.C.R. 1125;
57. [1972] C.M.L.R. 255 at [4]. Recently, Kadi (C-402/05 P & C-415/05 P) [2008] E.C.R. 1-6351 at [283].
58. For the distinction between "formal" and "social legitimacy", or between "legal validity" and " legitimacy", see J.H.H. Weiler, "Epilogue" in A.-M. Slaughter, A. Stone Sweet and J.H.H. Weiler (eds), The European Court and National Courts-Doctrine and Jurisprudence (Oxford: Hart, 1998), pp.365,373
59. And J.H.H. Weiler, The Constitution of Europe (Cambridge University Press, 1999), pp.77-86.
60. J. Habermas, "Citizenship and National Identity: Some Reflections on the Future of Europe" (1992) Praxis International 1, 7;
61. N. Walker, "European Constitutionalism and European Integration" (1996) P.L. 266, 274;
62. A. Williams, EU Human Rights Policies (Oxford University Press, 2004), p.129.
63. That human rights are treated as the foundation of EU Citizenship and as a means of achieving institutional authentication is further confirmed by the views which accompanied the effort to make the Charter of Fundamental Rights formally binding first by the Constitution for Europe, and then by the Treaty of Lisbon.
64. The Charter itself is regarded as a means of furthering EU constitutionalism and of inspiring a closer identification of citizens with the Union.
65. G. de Bürca and B. Aschenbrenner, "European Constitutionalism and the Charter" in S. Peers and A. Ward (eds), The European Union Charter of Fundamental Rights (Oxford: Hart, 2004), p.19;
66. M. Poiares Maduro, "The Double Constitutional Life of the Charter of Fundamental Rights in the European Union" in T. Harvey and J. Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights (Oxford: Hart, 2003), pp.278-281.
67. S. Douglas-Scott, "In Search of Union Citizenship" (1998) 18 Y.E.L. 29,49
68. And S. O'Leary, "The Relationship between Community Citizenship and Fundamental Rights" (1995) 32 C.M.L. Rev. 519, 542.
69. Douglas-Scott, Constitutional Law of the European Union (Harlow: Longman, 2002), p.453;
70. J.H.H. Weller, "Human Rights, Constitutionalism and Integration: Iconography and Fetishism" (2001)3 International Law FORUM 227, 229.
71. See the last sentence of the Charter's preamble and its art.52(5). "General principles of fundamental rights" remain a distinct category because of the wording of art.6(3) TEU: "Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law." (Emphasis added.)
72. For the discussion of the continuing importance of "general principles of fundamental rights" see M. Dougan, "The Treaty of Lisbon 2007: Winning Minds, not Hearts" (2008)45 C.M.L. Rev. 617, 662-665.
73. See art.53 of the Charter of Fundamental Rights. It could be argued that all substantive provisions of the Charter have been already incorporated into Union law as its "general principles" as a result of the Court's numerous references to the Charter. If this is the case "general principles" will constitute an alternative route of protecting the entitlements recognised in the Charter.
74. See Kücükdeveci v Swedex GmbH & Co KG (C-S 55/07) [2010] I.R.L.R. 346 at [21 ]-[22].
75. According to Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/2, p.35, "principles" are different from "rights" in that they "do not⋯ give rise to direct claims for positive action by the Union's institutions or Member States authorities". "Explanations" list as examples of "principles" arts 25, 26 and 37 of the Charter and maintain that arts 23, 33 and 34 give rise to both "rights" and "principles".
76. This formulation is a bit unfortunate because it suggests that only acts adopted in order to implement "principles" will be reviewable against them, while undoubtedly Charter "principles" should serve as grounds of review for all Union acts.
77. "Gesetzlich" and "par Ia Ioi" in the German and French versions of the Charter.
78. See D. Triantafyllou, "The European Charter of Fundamental Rights and the "Rule of Law": Restricting Fundamental Rights by Reference" (2002) 39 C.M.L. Rev. 53, 59-61.
79. Given the disparities between different language versions, it is unclear whether art.52(l) of the Charter should be interpreted as referring exclusively to "legislative acts" as defined by art.289(3) TFEU.
80. J.B. Liisberg, "Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law?" (2001) 38 C.M.L. Rev. 1171, 1198, maintains that it is unlikely that art.53 of the Charter will be used as a balancing tool between different (human) rights. According to him, art.53 is only concerned with how Charter provisions guaranteeing rights which are also protected by other parts of Union law are to be interpreted to avoid inconsistencies. On how the Charter may affect the nature of the balancing process when the ECJ assesses whether a national restriction on trade is justified
81. See S. Weatherill, "The Internal Market" in S. Peers and A. Ward (eds), The European Union Charter of Fundamental Rights (Oxford: Hart, 2004), p.183.
82. Before the Charter became binding, the ECJ had referred to it only as an additional supporting argument: Parliament v Council (C-540/03) [2006] E.C.R. 1-5769;
83. [2006] 3 C.M.L.R. 28 at [41];
84. Unibet (London) Ltd v Just itiekanslern (C-432/05) [2007] E.C.R. 1-2271;
85. [2007] 2 C.M.L.R. 30 at [37];
86. Advocaten voorde Wereld VZWvLeden van de Ministerraad(C-303/05) [2007] E.C.R. 1-3633;
87. [2007] 3 C.M.L.R. 1 [46];
88. International Transport Workers 'Federation v Viking Line ABP (C-438/05) [2007] E.C.R. 1-10779;
89. [2008] 1 C.M.L.R. 51 at [43] and [44];
90. Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet (C-34 1/05) [2007] E.C.R. 1-11767;
91. [2008] 2 C.M.L.R. 9 at [90] and [911;
92. Kadi (C-402/05 P & C-415/05 P) [2008] E.C.R. 1-6351 at [355];
93. Mono Car Styling SA v Odemis (C-l2/08) [2009] 3 C.M.L.R. 47 at [46].
94. Explanations Relating to the Charter of Fundamental Rights" (p.32) seem not to recognise the fundamental difference between the narrower formulation of the scope of application of EU fundamental rights in Wachauf(5/88) [1989] E.C.R. 2609 at [19] ("requirements ⋯ binding on the Member States when they implement Community rules") and the much broader formulation in Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis (DEP) (C-260/89) [1991] E.C.R. 1-2925;
95. [1994] 4 C.M.L.R. 540 at [42] ("where [national] rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures").
96. Because the Court is surely required to ensure the observance of the Charter the broad interpretation of the concept of "implementing" is more likely. However, it is also probable that the ECJ will develop two independent regimes of fundamental rights protection in the case of Member States' actions, so as to exclude the use of the Charter by the Member States seeking to justif' their derogations from Treaty provisions.
97. Schmidberger v Austria (C-112/00) [2003] E.C.R. 1-5659;
98. Omega Spielhallen-und Auiomatenaufstellungs GmbH v Bundesstadt Bonn (C-36/02) [2004] E.C.R. 1-9609;
99. [2005] 1 C.M.L.R. 5.
100. Unión de Pequenos Agricultores v Council (C-50/00 P) [2002] E.C.R. 1-6677;
101. [2002] 3 C.M.L.R. 1 at [39];
102. Commission v Jégo-Quéré et Cie SA (C-263102 P) [2004] E.C.R. 1-3425;
103. [2004] 2 C.M.L.R. 12 at [29];
104. Unibet (C-432105) [2007] E.C.R. 1-2271 at [37];
105. Impact v Minister for Agriculture and Food (C-268/06) [2008] E.C.R. 1-2483;
106. [2008] 2 C.M.L.R. 47 at [43];
107. Mono Car Styling SA (C-12108) [2009] 3 C.M.L.R. 47 at [46].
108. Productores de Música de Espana (Promusicae) v Telefonica de Espana SAU (C-275/06) [2008] E.C.R. 1-271;
109. [2008] 2 C.M.L.R. 17 at [62].
110. Effective judicial protection may be in itself treated as a right which requires effective judicial protection.
111. See Coote v Granada Hospitality (C-185/97) [1998] E.C.R. 1-5199;
112. [1998] 3 C.M.L.R. 958 at [1 9]-[27].
113. Impact (C-268/06) [2008] E.C.R. 1-2483 at [47]-[48].
114. Most recently, Mono Car Styling SA (C-I 2/08) [2009] 3 C.M.L.R. 47 at [49]: "Thus, whilst it is, in principle, for national law to determine an individual's standing and legal interest in bringing proceedings, Community law nevertheless requires, in addition to the principles of equivalence and effectiveness, that the national legislation does not undermine the right to effective judicial protection." (Emphasis added.)
115. See also Verholen v Sociale Verzekeringsbank (C-89/90) [1991] E.C.R. 1-3757;
116. [1994] I C.M.L.R. 157 at [24];
117. Safalero Sri v Prefetto di Genova (C-13/01) [2003] E.C.R. 1-8679 at [50];
118. Unibet (C-432/05) [2007] E.C.R. 1-227 1 at [42].
119. Francovich vltaly (C-6/90 & C-9/90) [1991] E.C.R. 1-5357;
120. [1993] 2 C.M.L.R. 66 at [32]-[33].
121. CourageLtdv Crehan (C-453/99) [2001] E.C.R. 1-6297;
122. [2001] 5 C.M.L.R. 28 at[25].
123. A.G. Jacobs' Opinion in UniOn de Pequenos Agricultores (C-50/00 P) at [49];
124. Union de Pequenos Agricultores (C-50/00 P) (C-50/00 P) [2002] E.C.R. 1-6677 at [41].
125. The ECJ's response is that the principle of effective judicial protection may not lead to undermining the explicit wording of the Treaty. Rothley v Parliament (C- 167/02 P) [2004] E.C.R. 1-3149;
126. [2004] 2 C.M.L.R. 11 at[47].
127. Union de Pequenos Agricultores (C-50/00 P) [2002] E.C.R. 1-6677 at [39];
128. Jégo-Quéré (C-263/02 P) [2004] E.C.R. 1-3425 at [29]
129. But see the phrase used in Impact (C-268/06) [2008] E.C.R. 1-2483 at [42], "judicial protection of an individual's rights under Community law".
130. Kadi(C-402/05 P & C-415/05 P) [2008] E.C.R. 1-6351 at [355]-[370].
131. The Court begins by pointing out that the right to property, one of the general principles of fundamental rights, is not absolute and it may be restricted "provided that those restrictions in fact coffespond to objectives of public interest pursued by the Community and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right so guaranteed" (at [355]).
132. It then proceeds to examine whether the applicant suffered "disproportionate and intolerable interference impairing the very substance of the fundamental right to respect for the property" (at [357]).
133. However, the ECJ does not examine this issue. Instead it observes that: "the applicable procedures must also afford the person concerned a reasonable opportunity of putting his case to the competent authorities" (at [368]) and comes to the conclusion that: "The contested regulation, in so far as it concerns Mr Kadi, was adopted without furnishing any guarantee enabling him to put his case to the competent authorities, in a situation in which the restriction of his property rights must be regarded as significant, having regard to the general application and actual continuation of the freezing measures affecting him." (At [369].) It follows that the measure's incompatibility with Union law is based on the violation of the principle of due process rather than the measure's substantive interference with the right to property and the principle of its effective protection.
134. Until Mangold v Helm (C-144/04) [2005] E.C.R. 1-9981;
135. [2006] 1 C.M.L.R. 43 the answer would probably be negative, although Coote v Granada Hospitality (C- 185/97) [1998] E.C.R. 1-5199 may seem an exception.
136. There, the right to equal treatment between men and women was held to require effective judicial protection, which in turn was required to be "effective".
137. However, in Coote the requirement of effective judicial protection was codified by a provision of the Directive and, therefore, the effective judicial protection of the right to equal treatment was treated as one of the Directive's objectives, the attainment of which Member States had to ensure (at [191 and [28]).
138. The same was the case in Johnston v Chief Constable of the Royal Ulster Constabulary (222/84) [1986] E.C.R. 1651;
139. [1986] 3 C.M.L.R. 240 at [17]. The recent judgment in Mangoldat [77]-[78], suggests that "general principles" are covered by the concept of "effective judicial protection". Even if this is the case, it is still not clear whether the reach of effective judicial protection of "general principles" is restricted to, or goes beyond, the obligation of national courts to set aside domestic provisions which conflict with the general principle.
140. Article 275 TFEU.
141. Segi v Council (C-355105 P) [2007] E.C.R. 1-1657;
142. [2007] 2 C.M.L.R. 23.
143. Common Position 2001/93 l/CFSP on the application of specific measures to combat terrorism [2001] OJ L344/93.
144. Segi v Council (T-388/02), Order of the CFI of June 7, 2004 at [40]-[4l].
145. Segi v Council (T-388/02), Order of the CFI of June 7, 2004 at [47].
146. Segi (C-355/05 P) [2007] E.C.R. 1-1657 at 1541.
147. For more extensive discussion of this issue see A. Hinarejos, "Judicial Control of CFSP in the Constitution: A Cherry Worth Picking?" (2006) 25 Y.E.L. 363, 383-386.
148. According to art.256 TFEU direct actions are to be brought before the General Court at the first instance.
149. Segi(C-355/05 P) [2007] E.C.R. 1-1657 at [52] and [54].
150. Davies describes this reasoning as "circular logic". B. Davies, "Segi and the Future of Judicial Rights Protection in the Third Pillar of the EU" (2008) 14 E.P.L. 311, 314-315. The ECJ does not explain what constitutes a "legal" effect. Thus, is is not clear whether an interference with a human right would qualify as a legal effect.
151. Opinion in Kingdom of Spain v Eurojust (C- 160/03) December 16, 2004.
152. Opinion in Kingdom of Spain v Eurojus: (C- 160/03) December 16, 2004 at [21].
153. See also A.G. Maduro's Opinion in kadi (C-402/05 P) January 16, 2008 at [53]-[54] where a mere possibility that the sanctions taken against the appellant might be disproportionate or misdirected is given as a justification why the Community institutions cannot dispense with proper judicial review proceedings.
154. Opinion in Kingdom of Spain v Eurojust (C- 160/03) December 16, 2004 at [24].
155. Kingdom of Spain v Eurojust (C-160/03) [2005] E.C.R. 1-2077 at [41]-[44].
156. Unión de Pequenos Agricultores (C-50/00 P) [2002] E.C.R. 1-6677.
157. Les Veils (294/83) [1986] E.C.R. 1339.
158. GeCe v Council (C-62188) [1990] E.C.R. 1-1527;
159. [1991] 2 C.M.L.R. 649.
160. Opinion of A.G. Mengozzi in Gestoras Pro Amnistia (C-354/04 P) and Segi (C-355/04 P) at [177].
161. See art.263 TFEU.
162. More extensively on this issue, see A. Hinarejos, "Judicial Control of CFSP in the Constitution: A Cherry Worth Picking?" (2006) 25 Y.E.L. 363, 383-388.
163. Segi (C-355105 P) [2007] E.C.R. 1-1657 at [56].
164. Firma Foto-Frost v Hauptzollamt Lübeck-Ost (314/85) [1987] E.C.R. 4199;
165. [1988] 3 C.M.L.R. 57.
166. Foto-Frost (3 14/85) [1987] E.C.R. 4199 at [201.
167. Foio-Frost (3 14/85) [1987] E.C.R. 4199 at [12].
168. Foto-Frost (3 14/85) [1987] E.C.R. 4199 at [14].
169. Foto-Frost (314/85) [1987] E.C.R. 4199 at [15].
170. Fob-Frost (314/85) [1987] E.C.R. 4199 at [15]
171. Referring to International Chemical Corp SpA v Amministrazione delle Finanze dello Stato (66/80) [1981] E.C.R. 1191;
172. [1983] 2 C.M.LR. 593.
173. Foto-Frost (314/85) [1987] E.C.R. 4199 at [15].
174. Foto-Frost (3 14/85) [1987] E.C.R. 4199 at [16].
175. Foto-Frost (314/85) [1987] E.C.R. 4199 at [17].
176. R. (on the application of International Air Transport Association (IA TA)) v Department of Transport (C-344/04) [2006] E.C.R. 1-403;
177. [2006] 2 C.M.L.R. 20 at [29].
178. Gaston Schul Douane-expediteur B V v Minister van Landbouw, Natuur en Voedselkwaliteit (C-461/03) [2005] E.C.R. 1-10513 at [15]-[25].
179. Foto-Frost (3 14/85) [1987] E.C.R. 4199 at [17].
180. One does not have to invoke the special character of Community law to explain why national courts are precluded from invalidating Community acts. The international law principle of pacta sunt servanda makes Community/Union acts binding on the Member States.
181. Foto-Frost (3 14/85) [1987] E.C.R. 4199 at [14].
182. Costa v Ente Nazionale pert Energia Elettrica (ENEL) (6/64) [1964] E.C.R. 585;
183. [1964] C.M.L.R. 425.
184. Before, the Treaty of Lisbon's entry into force the ECJ had never explicitly confirmed the applicability of the principle of supremacy or that of uniform application to non-Community Union law.
185. However, in case Criminal Proceedings Against Pupino (C- 105/03) [2005] E.C.R. 1-5285;
186. [2005] 2 C.M.L.R. 63 the Court imposed upon national courts the obligation of loyal co-operation in the third pillar and the requirement to interpret national law in the light of third-pillar framework decisions.
187. Hauer v Land Rheinland-Pfalz(44/79) [1979] E.C.R. 3727;
188. [1980] 3 C.M.L.R. 42 at [14], "the question of a possible infringement of fundamental rights by a measure of the Community institutions can only be judged in the light of Community law itself.
189. The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would, by damaging the substantive unity and efficacy of Community law, lead inevitably to the destruction of the unity of the common market and the jeopardizing of the cohesion of the Community." S. Prechal, "Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union" in C. Barnard, The Fundamentals of EU Law Revisited (Oxford University Press, 2007), pp.35, 39.
190. ECJ has never invalidated a Community act merely because its defective content lead to defragmentation of application of Community law in various Member States.
191. Not defragmentation per Se, but only its negative effect on the internal market can be sanctioned by the ECJ by declaring a Community act invalid for failure to comply with art.95 EC requirements (now 114 TFEU), and only if this article forms the legal basis for the contested act.
192. Marshall v Southampton and South West Hampshire AHA (152/84) [1986] E.C.R. 723;
193. [1986]1 C.M.L.R. 688 at [48];
194. Faccini Don v Recreb Sri (C-9 1/92) [1994] E.C.R. 1-3325;
195. [1995] 1 C.M.L.R. 665 at [20].
196. i21 Germany GmbH v Germany (C-392104) [2006] E.C.R. 1-8559;
197. [2007] 1 C.M.L.R. 10 at [63] and [72].
198. Skoma-Lux sro v Celni Rediteistvi Olomouc (C-161106) [2007] E.C.R. 1-10841;
199. [2008] 1 C.M.L.R. 50 at [36].
200. The ECJ seems to distinguish the question of "procedural justice" from that of "substantive justice". The phrase "procedural justice" was for the first time used in Kadi (C-402/05 P & C-4 15/05 P) [2008] E.C.R. 1-6351 at [344], which suggests that the ECJ wanted to distinguish substantive compliance of an act with a higher-ranking rule of EU law, such as human rights, from other (procedural) deficiencies.
201. Les Vents (294/83) [1986] E.C.R. 1339 at [23].
202. The claim that the Community (the Union) is based on the rule of law has an important legitimising function due to the fact that it allows to consider the Community (the Union) as a system possessing a "constitution" and complying with the directive of "good governance".
203. See P. Craig, "Constitutions, Constitutionalism and the European Union" (2001)7 E.L.J. 125.
204. For those who regard a "constitution" as a redundant element as long as "constitutionalism" is there, the rule of law often forms an essential part of this concept.
205. See N. Walker, "European Constitutionalism and European Integration" (1996) P.L. 266;
206. J.H.H. Weiler, "Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision" (1995) 1 E.L.J. 21.
207. See E. Spaventa, "Fundamental Rights and the Interface between the Second and Third Pillar" in A. Dashwood and M. Maresceau (eds), Law and Practice of EU External Relations (Cambridge University Press, 2008), p.129;
208. S. Douglas-Scott, "The Rule of Law in the European Union - Putting the Security into the Area of Freedom, Security and Justice" (2004) 29 E.L. Rev. 219.
209. Segi (C-355/04 P) [2007] E.C.R. 1-1657.
210. Opinion in Gestoras Pro Amnistia (C-354/04 P) and Segi (C-355/04 P) of October 26, 2006.
211. Opinion of A.G. Mengozzi in Gestoras Pro Amnislia (C-354/04 P) and Segi (C-355/04 P) of October 26, 2006 at [98]-[99].
212. Opinion of A.G. Mengozzi in Gestoras Pro Amnistia (C-354/04 P) and Segi(C-355/04 P) of October 26, 2006 at [105].
213. Union de Pequenos Agricullores (C-S 0/00 P) [2002] E.C.R. 1-6677.
214. UniOn de Pequenos Agricultores (C-50/00 P) [2002] E.C.R. 1-6677 at [63]
215. Union de Pequenos Agricultores (C-50/00 P) [2002] E.C.R. 1-6677 at [62].
216. This seems to be the intuition of Monica Claes.
217. See M. Claes, The National Courts' Mandate in the European Constitution (Oxford: Hart Publishing, 2006), p.559.
218. Internationale Handelsgesellschaft (11/70) [1970] E.C.R. 1125 at [3].
219. Internationale Handelsgesellschafl (11/70) [1970] E.C.R. 1125 at [3] (emphasis added).
220. Member States' refusal to give effect to a Union act is not in conflict with the principle of pacta sunt servanda:
221. P. Eeckhout, "The European Court of Justice and the 'Area of Freedom, Security and Justice': Challenges and Problems" in D. O'Keeffe, Judicial Review in European Union Law (The Hague: Kluwer, 2000), pp.153, 160. Neither does it violate the Union's "principle of sincere cooperation" (art.4(3) TEU after Lisbon) if the exception to the principle of effectiveness is commended by EU law.
222. Omega Spielhallen-und Automatenaufstellungs GmbH (C-36102) [2004] E.C.R. 1-9609.
223. N. Nic Shuibhne, "Margins of Appreciation: National Values, Fundamental Rights and EC Free Movement Law" (2009) 34 E.L. Rev. 230 argues that the concept of "margin of appreciation" enables "internal state value spaces". According to the author the expression of EU fundamental rights, on the one hand, and national values, on the other, should be confined territorially. The difficulty then lies in the proper delineation of EU and national territories, which presumably should be understood not only in a physical sense.
224. K. Lenaerts, "The Rule of Law and the Coherence of the Judicial System of the European Union" (2007)44 C.M.L. Rev. 1625, 1626.
225. The binding character of ECJ case law beyond the ambit of a particular case is of course questioned.
226. Still, various mechanisms exist which ensure that national courts follow ECJ case law.
227. Following CIL FIT Sri v Ministero delia Sanita (283/81) [1982] E.C.R. 3415;
228. [1983] 1 C.M.L.R. 472 at [13]-[15], the obligation to refer the question under art.234 EC (now 267 TFEU) is revoked if there is already an earlier ruling of the ECJ which answers it.
229. According to International Chemical Corp SpA v Amministrazione deile Finanze deilo Stato (66/80) [1981] E.C.R. 1191;
230. [1983] 2 C.M.L.R. 593 at [13], "although ajudgment of the court ⋯ declaring an act of an institution ⋯ to be void is directly addressed only to the national court which brought the matter before the court, it is sufficient reason for any other national court to regard that act as void for the purposes ofajudgment which it has to give".
231. Finally, Member States' breach of Community law becomes "serious" for the purpose of their liability in damages if the case law of the ECJ is clear that a national act of a particular content constitutes an infringement: Brasserie du Pêcheur SA v Germany (C-46/93 & C-48/93) [1996] E.C.R. 1-1029;
232. [1996] 1 C.M.L.R. 889 at [57].
233. See A. Amull, The European Union and its Court of Justice, 2nd edn (Oxford University Press, 2006), pp.626-627.
234. Before the Charter of Fundamental Rights was made binding the ECJ clearly did not consider itself "bound" by international human rights law. The Court has been using the ECHR and other international instruments as a source of inspiration but stressed its independence in the constructing the EU system of protection.
235. See S. Douglas-Scott, "A Tale of Two Courts: Luxemburg, Strasbourg and the Growing European Human Rights Acquis" (2006)43 C.M.L. Rev. 629, 648 and 651.
236. See for example, N. Nic Shuibhne, "The European Union and Fundamental Rights: Well in Spirit but Considerably Rumpled in Body?" in N. Walker, P. Beaumont and C. Lyons (eds), Convergence and Divergence in European Public Law (Oxford: Hart, 2002), p.1 83, regards as the most dangerous the "unpredictability that results as a consequence of the ECJ's interpretative approach, which raises serious concerns in the domain of legal certainty and legitimate expectations".
237. See also A. von Bogdandy, "The European Union as a Human Rights Organization? Human Rights and the Core of the European Union" (2000) 37 C.M.L. Rev. 1307, 1330-1333.
238. Omega Spielhallen-und Automatenaufstellungs-GmbH (C-36/02) [2004] E.C.R. 1-9609.
239. Meilicke v Finanzamt Bonn-Innenstadt (C-292104) [2007] E.C.R. 1-1835;
240. [2007] 2 C.M.L.R. 19 at [34]: "the interpretation which, in the exercise of the jurisdiction conferred on it by Article 234 EC, the Court gives to a rule of Community law clarifies and defmes the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied."
241. Kühne & Heitz NVv Produktschap voor Pluimvee en Eieren (C-453/00) [2004] E.C.R. 1-837;
242. [2006] 2 C.M.L.R. 17.
243. i-21 Germany (C-392/04) [2006] E.C.R. 1-8559.
244. i-21 Germany (C-392/04) [2006] E.C.R. 1-8559 at [56]-[7l].
245. Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe (C-l43/88 & 92/89) [1991] E.C.R. 1-415;
246. [1993] 3 C.M.L.R. 1;
247. Atlanta Fruchthandelsgesellschaft mbH v Bundesamt für Ernahrung und Forstwirtschaft (C-465/93) [1995] E.C.R. 1-3761;
248. [1996] 1 C.M.L.R. 575.
249. If assessment is particular the judgment of a national court disapplying an EU act should not have any bearing on other cases involving the same act heard by the courts of this Member State.
250. According to ECHR cases Member States remain responsible for acts of the European Union.
251. See Matthews v United Kingdon (24833/94) (1999)28 E.H.R.R. 361.
252. The European Court of Human Rights decided not to exercise its jurisdiction as long as the protection offered by EU law is " equivalent".
253. See Bosphorus Hava Yollari Turizm ye Ticaret Anonim Sirketi v Ireland (45036/98) (2006) 42 E.H.R.R. 1. The protection which was offered in the second and third pillars before Lisbon could not be regarded as equivalent to the one guaranteed by the ECHR.
254. See E. Spaventa, "Remembrance of Principles Lost: On Fundamental Rights, the Third Pillar and the Scope of Union Law" (2006) 25 Y.E.L. 153. Neither can the after-Lisbon protection in the CFSP be regarded as comparable to the ECHR given the fact that the Strasbourg doctrine of "equivalent protection" seems to require in EU law three complementing elements (direct action for review, damages, preliminary ruling procedure), which in the CFSP are either absent or very circumscribed.
255. T. Tridimas, The General Principles of EU Law, 2nd edn (Oxford University Press, 2006), p.238;
256. A. von Bogdandy, "The European Union as a Human Rights Organization? Human Rights and the Core of the European Union" (2000) 37 C.M.L. Rev. 1307, 1324, fn.84.
257. See for example Vereinigle Familiapress Zeitungsverlags- und Vertriebs GmbH v Bauer Verlag (C-368/95) [1997] E.C.R. 1-3689;
258. [1997]3 C.M.L.R. 1329 at [27]-[29];
259. Konsumentombudsmannen (KO) v De Agostini (Svenska) Forlag AB (C-34/95, C-35/95 & C-36/95) [1997] E.C.R. 1-3843;
260. [1998] 1 C.M.L.R. 32 at [45];
261. Konsumentombudsmannen (KO) v Gourmet International Products AB (C-405/98) [2001] E.C.R. 1-1795;
262. [2001]2 C.M.L.R. 31 at [41];
263. Viking Line(C-438) [2007] E.C.R. 1-10779 at [84]-[85].
264. According to Angela Ward: "The restrictions operating on national judges in the context of validity review contrasts markedly with the shared jurisdiction of the European Court and national tribunals to rule on the compatibility of Member States laws with Community obligations.
265. Provided the requirements of acte clair are satisfied, national judges are free to decide all the relevant issues for themselves, and declare national measured incompatible with Community law." A. Ward, Judicial Review and the Rights of Private Parties in EU Law, 2nd edn (Oxford University Press, 2007), p.353.
266. The principle of effective judicial protection generally does not require that a specific remedy is available to the individual, as long as the effectiveness of the right is not undermined.
267. See Johnston (222/84) [1986] E.C.R. 1651;
268. Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) v Heylens (222/86) [1987] E.C.R. 4097;
269. [1989] 1 C.M.L.R. 901;
270. Verholen v Sociale Verzekeringsbank(C-87/90, C-88/90 & C-89/90) [1991] E.C.R. 1-3757;
271. [1994] 1 C.M.L.R. 157.
272. It is only when there is only one way in which a Community (Union) right may be effectively protected that Community (Union) law requires a particular remedy: Safalero Sri v Prefetto di Genova (C-13/Ol) [2003] E.C.R. 1-8679 at [54J-(55].
273. See also a very good explanation of this position of Community law in A.G. Sharpston's Opinion in Unibet (C-432/05) [2007] E.C.R. 1-227 1 at [35]-[38].