Why the EU Charter Matters

This blog post argues that the most interesting aspect of the Charter of Fundamental Rights at the moment is its impact on remedies in national law. Almost 15 years since its entry into force, it is not unusual to meet domestic lawyers and judges who will voice doubts as to whether the Charter really matters in practice. Yet, through the right to an effective remedy under Article 47, the Charter opens up  domestic law for new (or modified) remedies, thus placing national procedural autonomy under strain.

The relevance of the Charter

Many might argue that most (if not all) Member State legal orders protect fundamental rights at a constitutional level and have also incorporated various international human rights treaties into their legal systems. Hence, given that the Charter appears to be a mere amalgam of existing domestic and international fundamental rights protections, where is its added value?

This impression would be wrong, however. Not only because the Charter contains a number of substantive rights not found in every domestic legal order (e.g. the right to the protection of personal data or the social and economic rights – so far as they are not mere principles – found in Title IV), but crucially because of the remedies associated with the Charter. Most notably the right to an effective remedy found in Article 47 (1) CFR. This provision – as it applies in domestic law – is the focus of this post.

Let us briefly recall the basics: According to Article 51 (1) of the Charter of Fundamental Rights (CFR), the Charter applies to the EU Member States only when they are implementing Union law. We have known since Åkerberg Fransson that this means that the Member States are bound to comply with the Charter whenever they are acting within the scope of EU law. In the words of the EU’s Court of Justice (CJEU): “The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter”. In other words, whenever a Member State is either applying EU law or deviating from an EU law obligation, that measure must be Charter-compliant.

The path well-trodden: substantive Charter rights

When it comes to the Charter and remedies, it is worth distinguishing between two broad groups of cases. The first concerns Member State conduct within the scope of the Charter that violates one of the substantive rights of the Charter. E.g., a Member State must not remove an asylum seeker to another Member State, where the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment in violation of Article 4 CFR in that other Member State (see e.g. the case of N.S. and M.E.). In such a case, the Charter comes with the bells and whistles of EU law: it has direct effect and it has primacy over any conflicting national law (including the constitution), meaning that the latter must not be applied and that the Charter must be applied instead. This is a clear advantage of the Charter in remedial terms. Depending on the precise status in national law of domestically sourced fundamental rights (including international treaties given domestic effect in the Member State concerned), and the limits of judicial review, this advantage can be relevant in practice (or not).

What follows is basic EU law and is being recalled only for sake of completeness. In a Member State that does not permit its courts to judicially review parliamentary legislation, the primacy of EU law means that they must nonetheless disapply parliamentary legislation if it conflicts with the Charter (ever since Costa v ENEL). In Member States which limit such judicial review of legislation to the constitutional court (e.g. Italy or Germany), the primacy of the Charter means that all national courts may (and must) disapply such legislation in case of a conflict with the Charter (without being required to first ask the constitutional court as to that legislation’s constitutionality – Simmenthal). And where the offending provision is contained in the constitution itself, the Charter still prevails (Internationale Handelsgesellschaft).

The one to watch: the right to an effective remedy under the Charter

The focus of this blog post is on the second group of cases, which concerns the right to an effective remedy enshrined in Article 47 (1) CFR. Like all Charter rights, Article 47 CFR applies to the Member States when they are implementing Union law. What makes Article 47 CFR so interesting is that it applies in all cases in which a Member State applies EU law. In that sense it differs from the substantive fundamental rights contained in the Charter, which typically require a more classical fundamental rights angle to the case, e.g.: an EU measure requiring the stunning of certain animals prior to slaughter may interfere with the freedom of religion (Article 10 CFR) of Jews and Muslims (Centraal Israëlitisch Consistorie van België and Others); or a Member State measure removing an EU citizen from the state may interfere with their right to family life (Article 7 CFR); and so on.

By contrast, the right to an effective remedy applies regardless of whether there is a violation of a substantive fundamental right. In other words, Article 47 CFR applies in all domestic proceedings that deal with EU law, so that one could modify the CJEU’s above-quoted quip and say that the applicability of EU law entails the applicability of Article 47 (1) CFR. Article 47 (1) is potentially far-reaching in that it may require national courts to make available otherwise unavailable remedies. It therefore has the potential of restricting national procedural autonomy to a much greater extent than other Charter rights.

This is an important development ascribable to the entry into force of the Charter. The right to an effective remedy found in Article 47 (1) CFR partially overlaps with but should be differentiated from the principle of effectiveness, which hitherto formed an important limit to national procedural autonomy in EU administrative law (going back to Rewe). According to that case law, in the absence of harmonization, “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 [EU] law” (Rewe). National procedural autonomy is subject to two limits: the principle of equivalence and the principle of effectiveness, both rooted in the duty of loyal cooperation under Article 4 (3) TFEU.

Given their different roots, the right to an effective remedy should not be equated with the principle of effectiveness (on this see e.g. Widdershoven), but seen as a separate limit on national procedural autonomy. This is particularly apparent when it comes to remedies. Where the principle of effectiveness and remedies are concerned, the CJEU traditionally tended to tread with caution.

While there were instances in which the principle of effectiveness was successfully invoked to challenge the non-existence (or non-availability) of a remedy, it was generally considered exceptional: the most famous example was probably Factortame II where the CJEU held that the principle of effectiveness meant that a national court had to order a remedy that ordinarily existed in domestic law (interim relief) and disapply a national rule which excluded the availability of that remedy in certain cases (here: against the Crown (the state).

Contrast this with another famous case: in von Colson and Kamann, the Court held that an existing remedy in domestic law was not sufficiently effective for the Member State to be in compliance with its obligations under an EU directive for it lacked deterrent effect. However, having said this, the Court left it to the Member State’s legislature to determine the appropriate remedy. In other words, this finding did not affect the immediate outcome of the case [for further reading on this consult any good EU Administrative Law textbook, such as Paul Craig’s EU Administrative Law, 3^rd edition].

The case law on Article 47 (1) CFR and remedies suggests that the right to an effective remedy has given the CJEU an additional tool to strengthen the enforcement of EU law in the domestic courts. On the basis of Article 47 (1) CFR, the CJEU has shown a greater willingness than previously to interfere with national procedural rules that obstruct the effective enforcement of EU law. The following four short examples illustrate this.

Four examples of how the right to an effective remedy operates

In Braathens Regional Aviation, the question arose whether the Swedish transposition of the Race Equality Directive complied with Article 47 (1) CFR. In that case an airline passenger had been the victim of race discrimination. The airline agreed to pay compensation to the passenger, however, without recognising that discrimination had occurred. According to Swedish law, all the national court could do in such a case was to award the compensation. It was unable to formally record that the passenger had been subjected to discrimination. The CJEU held that this limitation was incompatible with the Directive read in light of the right to an effective remedy (even though the Directive did not expressly require such recognition to be made). As a consequence, the national court was asked to disapply the national rule of civil procedure, which allows the court to deliver a judgment based on the acquiescence alone without an express recognition of discrimination.

While the CJEU was at pains to reiterate that “EU law does not as a general rule require Member States to create before their national courts remedies to ensure the protection of rights that parties derive from EU law other than those established by national law”, it nonetheless appears to have gone out of its way to ensure that the remedy of a formal recognition of discrimination would be available to the claimant. To achieve this the Court seems to have adopted an understanding of the relevant Swedish civil procedural rules to generally require a recognition that discrimination had occurred – without specifying this any further, presumably on the understanding that ordinarily compensation is awarded after discrimination has been established by the national court following a trial – and that the agreement to pay compensation (which then did not involve a further formal recognition of discrimination) was the exception. This allowed it to order that particular rule of Swedish procedural law should be disapplied.

The CJEU thus technically followed in the footsteps of Factortame but was ostensibly generous in its interpretation of how domestic law in Sweden operates in order to justify its request for a declaration whilst staying on the firm ground of EU law primacy. The CJEU’s ruling also marked a relatively far-reaching incursion into Swedish civil procedure, which is governed by the principle of party autonomy – at least this is what the judges of the Swedish Supreme Court remarked after having received the case back from the CJEU (as pointed out by Wallermann Ghavanini).

In a similar way, the Court held in the case of Fuß that Article 47 (1) CFR prevented an interpretation of the Working Time Directive that would allow an employer to transfer an employee to a new job in response to that employee’s request for the employer to comply with the requirements of the Working Time Directive. Domestic law did not contain a remedy against such reprisal measures. Even though the worker in question did not suffer a quantifiable detriment – he was still employed and paid his salary  – this was incompatible with Article 47 (1) CFR since “[f]ear of such a reprisal measure, where no legal remedy is available against it, might deter workers who considered themselves the victims of a measure taken by their employer from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the directive”. The resolution in technical terms again followed the doctrine of primacy in that the CJEU ordered the national court to disapply national rules which enabled the transfer of the worker on the ground that the worker has requested compliance with the Working Time Directive.

In Egenberger, the Court held severe restrictions to judicially review the “religious ethos exception” contained in Article 4 (2) of Directive 2000/78 to be contrary to Articles 21 and 47 (1) CFR. German law decreed that the question whether a church or other religious organisation could refuse to employ a person on the basis that that “person’s religion or belief constitute a genuine, legitimate and justified occupational requirement” could only be reviewed as to whether it was plausible on the basis of the church’s self-perception. Again, the national court was asked to disapply that limiting national provision in order to give effect to Articles 21 and 47 (1) CFR.

In the recent case of KL v X, the CJEU went one step further. The case concerned the (under Polish law entirely lawful) termination of a fixed term employment contract. According to Polish law the employer was under no obligation to give reasons for the termination, whereas such an obligation existed where an employer terminates a contract of indefinite duration. The Court considered this to be contrary to Clause 4 of the Framework Agreement on fixed term work, which is given effect in EU law by Directive 1999/70. The problem, however, was that the employment dispute at issue was with a private employer, so that – according to long-standing case law of the CJEU – the Directive could not be accorded direct effect (most recently confirmed in Thelen Technopark). This differentiates the case from Fuß, where the Court was able to invoke the Working Time Directive interpreted in light of Article 47 (1) CFR directly.

The Court found a way out of this using the famous Mangold-line of case law (to which Egenberger also belongs). In that line of cases the Court managed to circumvent the limitations of the no horizontal direct effect-doctrine by applying an identical provision of primary law instead. E.g., in Mangold, the right to non-discrimination on the basis of age in Directive 2000/78 was also found to exist as a general principle of EU law (now Article 21 CFR), allowing the Court to apply the general principle instead of the Directive. In KL v X, the Court went a step further than in Mangold or Egenberger in that it relied solely on Article 47 CFR (and not on one of the substantive rights in the CFR) to achieve the goal of asking the national court to disapply the offending national legislation.

In a nutshell, the reasoning was the following. When adopting its laws on fixed term contracts, Poland was implementing Union law, so the Charter applies “and must therefore ensure compliance, inter alia, with the right to an effective remedy enshrined in Article 47 of the Charter”. By not forcing the employer to divulge the reasons for a dismissal, the national legislation at issue deprives the employee of important information, which the employee might need to assess “beforehand whether he or she should bring legal proceedings against the decision terminating his or her employment contract”. Thus, the offending national legislation had to be disapplied. The consequences of this decision are potentially far-reaching. First, it confirms that Article 47 CFR applies in all cases in which EU law applies. Moreover, it might mean that Article 47 CFR could be invoked against any national procedural limitation to rights contained in a Directive, even in horizontal cases. Finally, it uncouples the Mangold construction from the need to find a substantive right in the Charter mirroring the right in the Directive. This in turn might help to blur the distinction between rights and principles in the Charter.

Concluding remarks: from effectiveness to an effective remedy

These decisions – which represent a small selection of Article 47 cases – suggest that national procedural autonomy is under greater constraint from Article 47 (1) CFR than it was from the principles of effectiveness and equivalence. While the CJEU makes a clear attempt at staying within traditional doctrinal boundaries, it at the same time appears to be stricter and thus more prescriptive than previously when it comes to deficiencies of national procedural law. The decision in KL v X in particular suggests that the full potential of Article 47 CFR is yet to be deployed. Article 47 (1) CFR therefore remains at the frontline of the development of the Charter and is the Charter provision to watch.

This blog post is partly based on a forthcoming report on the “EU Charter of Fundamental Rights and the Windsor Framework” commissioned by the Northern Ireland Human Rights Commission co-authored with Eleni Frantziou and Anurag Deb. Thanks are due to Eleni Frantziou for her comments on an earlier draft. All errors/inaccuracies are, of course, my own.