Chapter 2 - Analytical Framework: Normative Content, Scopeand Functions Ascribed to Article 47

Summary

This chapter places the emergence of Article 47 of the Charter in the context of the UCTD. It introduces the main legal characteristics and constraints of Article 47, which inform its functions in unfair terms cases. It also outlines the views and expectations voiced in the literature as to these functions. The questions and issues raised in this chapter will be revisited and further explored in the following chapters.

The first part of this chapter sets out the normative content of Article 47, i.e. its core components (section 2.1). It also dives into its scope of application and direct effect (section 2.2). The second part considers the functions ascribed in legal doctrine to Article 47, which must be understood against the background of the CJEU's case law concerning national remedies and procedures under the UCTD (section 2.3). These functions range from a function largely parallel to the notion of effectiveness, to a positive standard of effective judicial protection with a separate identity (sections 2.4 and 2.5). The different views are distilled into five main categories (section 2.6), which will be referenced throughout this book.

NORMATIVE CONTENT OF ARTICLE 47: A MULTI-FACETED PROVISION

RIGHTS, REMEDIES AND PROCEDURES

Article 47 of the Charter guarantees, first and foremost, the fundamental right to an effective (judicial) remedy. The term ‘remedy’ has many meanings: a medicine that alleviates, eliminates or prevents disease; a cure; a right ‘born of a wrong’ or ‘injustice’; a cause of action; or an enforceable court order or judgment.

The CJEU does not use the term ‘remedy’ univocally. In general, it could be said that rights create substantive legal positions for individuals and remedies are intended to enforce rights, or to redress infringements of rights. As Zuckerman has put it:

‘In a society governed by the rule of law, we all have an interest in rights being respected and wrongs being remedied. For in the absence of redress for wrong there is no value to rights and no reason to behave according to the law’.

In this respect, a distinction can be made between primary remedies, intended to enforce a right, and secondary remedies, which constitute new claims (secondary rights) in response to the infringement of a (primary) right.