The court of justice and effective judicial protection: What has the charter changed?

Abstract

Since the coming into force of the Charter as primary law of the EU, Article 47 CFR is ‘the reference standard’ when the Court deals with issues of effective judicial protection. However, the general principle of effective judicial protection existed already for some 25 years, developed in the case law of the Union courts. While the interpretation and application of Article 47 build upon this case law, a number of changes can be pointed out. What was formerly under the loose umbrella of effective judicial protection and related principles is now split over three different articles of the Charter. On the one hand, these provisions are partly overlapping; on the other hand, their configuration also leads to a lacuna. This gap is bridged by the unwritten general principles such as the rights of defence. When compared to the pre-Charter era, Article 52(1) CFR structures the review of limitations of fundamental rights in a more compelling fashion. Specifically for Article 47 CFR, which has to be interpreted in harmony with Article 6 ECHR, the implicit limitations of Article 6 ECHR constitute a potential trap of ‘double limitation’. Article 47 may be relied upon by individuals alleging a violation of rights and freedoms conferred upon them by EU law. However, the principle of effective judicial protection is broader in application, providing protection against acts that adversely affect an individual’s interests. In so far as the interpretation of Article 47 would not reach the same scope and level of protection as the general principle of effective judicial protection, this principle should continue to apply.