Tuesday, 28 June 2016

Effective judicial protection: some reflections on Case C-49/14 (Finanmadrid)

Dear readers,

Earlier this month, Professor Chantal Mak announced that my colleague Laura Burgers and I would join her as authors of this blog. My name is Anna van Duin, and the topic of my PhD research is 'Article 47 of the EU Charter of Fundamental Rights in European Private Law Adjudication'. In the present blog post, I will discuss Article 47 of the Charter in reference to the EU Court of Justice's judgment in Case C-49/14: Finanmadrid.

Effective judicial protection: what is expected from national judges?
Article 47 of the Charter safeguards the right to effective judicial protection against the violation of rights falling within the scope of EU law. In essence, Article 47 expresses the premise ubi ius ibi remedium: rights cannot be enforced without effective remedies and adequate procedures (for further reading, see Professor Mak's 2012 paper 'Rights and Remedies'). For national judges, it is important to know what is expected from them in terms of the level of protection they should offer: does their national procedural framework meet 'European' standards? However, in practice it is difficult to assess whether national law lives up to EU law requirements, not in the last place because it is unclear which test should be applied and when: the principle of effectiveness, or (also) the principle of effective judicial protection as enshrined in Article 47 of the Charter? And what does that mean in a concrete case? 

The difficulty becomes clear in the Finanmadrid case, which concerned a preliminary reference of a Spanish court - one out of many - regarding Directive 93/13 on Unfair Contract Terms. In short, ex officio examination by a judge of the (possible) unfairness of contract terms was not mandatory under Spanish procedural law. In uncontested 'payment order proceedings' (proceso monetorio), such an examination would only take place if the court registrar (secretario judicial) deemed it appropriate, or if the debtor opposed the requested payment order. Thus, the 'burden' was primarily on the debtor, i.e. the consumer. Judicial examination could not take place at the enforcement stage either, because the payment order had become binding by then. This was clearly against the requirements developed by the CJEU in its case law on Directive 93/13, e.g. Banco Español de Crédito. According to Advocate-General Szpunar, the fact that there had been no ex officio examination of unfair contract terms at any stage of the proceedings rendered Spanish procedural law contrary to the principle of effectiveness, which entails that the exercise of EU rights must not be rendered "practically impossible or excessively difficult". Although an examination of unfair contract terms at the enforcement stage may not be desirable, the effectiveness of Directive 93/13 prevails over the binding force of the payment order. The CJEU shared the Advocate-General's conclusion. 

The Finanmadrid case demonstrates that the mere existence of a particular remedy or procedure - the consumer could have filed an opposition - is not always sufficient to provide effective judicial protection. In Finanmadrid, the contract terms at issue were presumed to be unfair, but the referring court was prevented from examining them. It could be said that, apart from the specific requirements of Directive 93/13, the right to an effective remedy before a court of law (cf. Article 47 of the Charter) is at stake here. What does Article 47 mean for national judges who find themselves confronted with a legislative gap or shortfall in the protection of rights derived from EU law, like the Spanish court in Finanmadrid

A missed opportunity
This is a pressing issue for national civil courts in private law cases, as is illustrated by the high number of preliminary references from Spain referring to Article 47 of the Charter (e.g., C-307/17 and C-308/15, C-503/15, C-380/15, C-7/16, C-92/16 and C-120/16). In the Finanmadrid case, the referring court had also asked whether Spanish procedural law was contrary to the Charter, in particular the right to effective judicial protection and the right to be heard. Apparently, Article 47 of the Charter and the principle of effectiveness do not entirely coincide. This raises the question why judges would refer to Article 47: is it simply ‘window-dressing’ (i.e. rhetorical), is it used as an additional supporting argument, does it operate as an ultimum remedium in lack of another adequate response, or are there other explanations? 

The relation between Article 47 on the one hand and the principle of effectiveness on the other has not been clarified yet. In previous judgments (e.g. Sánchez Morcillo), the CJEU has held that the right to an effective judicial remedy is a mandatory requirement, which is also applicable in the context of Directive 93/13. In Finanmadrid, Advocate-General Szpunar concedes that Article 47 of the Charter applies to every claim brought before a (national) court by individuals seeking protection of their EU rights. What is more, he brings forward that an "effective remedy" encompasses the rights of the defence, including the right to be heard. Indeed, an effective judicial remedy presupposes access to justice, and access to justice implies a fair trial. Rights, remedies and procedures are so closely connected that they cannot be distinguished or separated easily.

Against this background, it is unclear why neither the Advocate-General nor the CJEU addresses the link between Article 47 and the principle of effectiveness. It could, for example, be argued that Article 47 puts more emphasis on individual rights protection (cf. Articles 6 and 13 of the European Convention on Human Rights) than on the effective enforcement of EU law in general. In addition, while the principle of effectiveness entails a 'negative' test, Article 47 seems to be phrased positively: it guarantees both an effective (substantive) remedy and 'due process' (procedural) rights. Unfortunately, the CJEU's judgment does not give any clarification or guidance as regards the role and scope of Article 47 of the Charter. On the day the judgment came out (18 February 2016), I published a short blog in which I called this 'a missed opportunity'. 

Stay tuned!
Together with Professor Mak, I attended a transnational training workshop for judges, organised by the Centre for Judicial Cooperation at the European University Institute in May 2016; click here for more information about the ACTIONES project. The focus of this workshop was on consumer protection and judicial interaction techniques in the application of the Charter; one of the topics was the role of Article 47 of the Charter. Next year, we will organise a national workshop for Dutch judges about the application of the Charter in European private law matters. In February 2017, the University of Parma hosts a workshop focused on Effective Judicial Protection; a call for judges will be published on the website of the ACTIONES project. 

In my PhD research, I will further investigate how and why Article 47 of the Charter is mentioned, interpreted and applied in European private law adjudication, more particularly cases concerning Directive 93/13. What factors trigger a reference to Article 47? What role is there for Article 47 in the judicial assessment and development of (national) remedies and procedures? Relevant news and findings will be published on this blog. Therefore, stay tuned!

For any questions, comments or suggestions, please do not hesitate to contact us. 

Thursday, 2 June 2016

A new Chapter

As of today, two new authors will join me in writing this blog: Anna van Duin and Laura Burgers, who are both working on PhD research within the Judges in Utopia project.

Anna van Duin’s research concerns the role of Article 47 of the EU Charter of Fundamental Rights - the right to effective judicial protection - in European private law adjudication, more particularly cases the Unfair Contract Terms Directive. She focuses on the process of linking national remedies to (infringements of) EU rights against the background of Article 47: how and why is Article 47 mentioned, interpreted and applied in legal disputes between private parties before national civil courts? And what does it mean for the assessment and development of remedial and procedural rules?

Laura Burgers’ research looks into the democratic legitimacy of judicial law-making in European private law. Using a normative framework of political theory on deliberative democracy (Habermas), her research project explores the boundaries of legitimate judicial law-making in European private law, with a case-study on judicial decisions in the area of environmental liability.

Our intention is to post 1 or 2 updates per month, giving a brief analysis of relevant developments in case law, literature, and academic and societal debates on the role of national and European courts in private law.