Part I - Remedies before the CJEU

1 The Power of Procedure Fundamental Rights in the Action for Annulment before EU Courts

Giulia Gentile

1.1 Introduction

As an order construed on compliance with fundamental rights, the EU has a specific interest in upholding fundamental rights: on the one hand, respect of fundamental rights enhances the EU’s moral aspirations and legitimacy in the face of Member States’ claim to supremacy over fundamental rights protection; on the other hand, compliance with fundamental rights by the EU sets the standards for Member States that are deviating from those guarantees.¹ The action for annulment before the EU Courts has a central role to play in this context. All EU acts should respect EU fundamental rights as higher law of the EU.² Through the action for annulment, applicants may challenge EU law on grounds of breaches of fundamental rights and achieve one of the following outcomes. First, an EU act may be found to be compatible with EU fundamental rights. Alternatively, EU acts may be declared as incompatible with EU fundamental rights and thus annulled.

Compliance with fundamental rights can be assessed with reference to issues of substance or procedure: for instance, the content of an EU act may breach an EU fundamental right (substantive compliance); similarly, respect of fundamental rights should occur with reference to the procedures used to adopt EU acts (procedural compliance).³ Accordingly, different fundamental rights of a more substantive (e.g., privacy, freedom of expression) or procedural (right to an effective remedy, good administration, etc.) nature may be invoked to contest EU law.⁴ In conjunction with the annulment, EU courts signal to EU institutions the obligations they must follow to respect fundamental rights, concerning both the procedure for the adoption of EU acts as well as their content.⁵ Therefore, the annulment review has both a cathartic and a regulatory function. It is cathartic insofar as it can expunge from the EU legal order EU acts that are unlawful because they are non-compliant with EU fundamental rights. It is also regulatory insofar as it determines the obligations of EU institutions that are to be respected to honour compliance with fundamental rights.

This chapter investigates the approach of the EU judicature to the protection of fundamental rights through the action for annulment. After providing an overview of the EU model of judicial review (Section 1.2) and the rules governing the action for annulment (Section 1.3), the chapter delves into the case law and sheds light on the limits surrounding the protection of fundamental rights in the context of the action for annulment. Due to the division of competences between the General Court and the Court of Justice to review EU acts, the chapter explores the case law of these two courts separately, in Sections 1.4 and 1.5, respectively. The analysis showcases the influence of EU procedural fundamental rights in shaping the procedural duties of EU institutions.

This finding highlights the power of procedure in the EU constitutional architecture. By moulding the procedural obligations of EU institutions in the adoption of EU measures, the EU courts have enhanced the rule of law pedigree of the EU and ensured the respect of individual fundamental entitlements in the adoption of EU measures. The centrality of procedural fundamental rights issues in the judicial review of EU law is a direct reflection and consequence of the plethora of procedures that constellate the EU governance. Applicants have used the action for annulment to contest the procedures used by EU institutions to adopt EU measures and, more rarely, their substance. A shift in such a procedure-focused paradigm may occur if a more substantive contestation of EU law, based on fundamental rights pleas that do not focus on procedure, emerges.

1.2 The EU Judicial Review Model: An Overview

Across Europe and beyond, courts have become guardians of the law. They have been entrusted with the duty to scrutinise measures adopted by regulators and legislators and to ensure compliance with the Kelsenian pyramid of legal sources. The core values dominating this model are those of coherence and hierarchy. Coherence of legal orders derives from the compatibility of all secondary measures (or praemissa minor) with higher law (praemissa maior). Describing this phenomenon, Lustig and Weiler wrote, ‘It is hard to find a constitution drafted in the last century that has not adopted some variant of this model [i.e. judicial review].’⁶ They observed that a judicial review–centric model ‘was conquering the democratic world … becoming part of democratic ontology – what it is to be a democracy’. Judicial review has been defined as an ‘unqualified public good’ based on a ‘double faith’: first, the faith in a ‘higher law’ composed of norms protecting individual rights and liberties against tyrannies – including tyrannies of democratic majorities – and binding legislatures; second, the faith in courts as the most efficient guarantee for the effectiveness and enforcement of such higher law.⁷

Among the ‘higher law’ sources, fundamental rights have progressively acquired an increasing importance.⁸ Fundamental rights protection is one of the elements of the constitutionalism born out of the conflicts affecting the world in the last century. Fundamental rights express the essential values of a society.⁹ Not all societies will necessarily protect the same fundamental rights and thus values, meaning that varying protections accordingly emerge. Hence, scrutinising public bodies’ actions and measures in light of fundamental rights contributes towards ensuring that those entities comply with the essential choices on which the social contract is built.¹⁰ No less important is an additional function of fundamental rights–based judicial review: it contributes towards fighting abuses of power by public authorities. This latter function translates into the imposition of negative and positive duties on public bodies, a list of ‘dos and don’ts’ that are compatible with the enjoyment of essential legal entitlements. The idea that fundamental rights impose limits on the action of public authorities is a crucial manifestation of the rule of law.¹¹ As rightly remarked by Lustig and Weiler, ‘judicial review became a hallmark of the very notion of the rule of law…’.¹²

This judicial review model based on the centrality of courts, fundamental rights, and the protection of the rule of law also applies to the EU. First, courts are of the essence in the EU legal order: they have a specific constitutional role linked to the effective application of EU law. Under the combined reading of Article 19 TEU and Articles 263 and 267 TFEU,¹³ the Treaties set out a system of ‘complete remedies’ according to the EU courts that entrust national and EU courts with effective application of EU law. As explained in Opinion 1/17,

In order to ensure that those specific characteristics and the autonomy of the legal order thus created are preserved, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law … it is for the national courts and tribunals and the Court to ensure the full application of that law in all the Member States and to ensure effective judicial protection, the Court having exclusive jurisdiction to give the definitive interpretation of that law.¹⁴

The jewels in the crown of the EU remedies system are the preliminary reference procedure,¹⁵ which allows the Court of Justice of the EU (CJEU) a form of indirect review of national law against EU law, and the action for annulment, which empowers EU institutions and bodies, Member States, and individuals to challenge the legality of EU law before the CJEU,¹⁶ including its compliance with EU fundamental rights.

Second, while the founding Treaties did not contain any specific protection for fundamental rights, the centrality of these rights in the EU legal architecture currently stems from several provisions. For instance, Article 2 TEU recognises that the respect of fundamental rights is one of the founding values of the EU, while Article 6 TEU acknowledges the binding nature of the Charter of Fundamental Rights of the European Union (the Charter)¹⁷ and attributes the status of general principles of EU law to the rights guaranteed by the European Convention of Human Rights (ECHR). Additionally, Article 51 of the Charter indicates that the EU institutions, bodies, offices, and agencies of the Union are subject to compliance with the Charter, with due regard for the principle of subsidiarity. But the impact of EU fundamental rights goes as far as shaping even traditionally inter-governmental areas of law, such as EU foreign policy. As an example, the declaration on Articles 75 and 215 TFEU establishes that ‘the respect for fundamental rights and freedoms implies, in particular, that proper attention is given to the protection and observance of the due process rights of the individuals or entities’ concerned by EU foreign policy measures.

Third, the connection between judicial review and the rule of law in the EU legal order can be traced from the seminal Les Verts judgment.¹⁸ In that case, the CJEU held 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 Treaties’. It follows that the judicial scrutiny over EU measures in light of EU fundamental rights via the action for annulment is a manifestation of the EU understanding of the rule of law.

1.3 The Action for Annulment in EU Law

1.3.1 Pleas

The action for annulment is governed by several rules. Five are grounds for judicial review before the EU judicature: lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, and misuse of powers.¹⁹ These grounds reflect a Kelsenian model of hierarchy of norms, where EU secondary measures can be scrutinised against higher norms, including EU fundamental rights. They also indicate that the invalidity of EU law in light of EU fundamental rights can emerge in the context of the adoption or the application of EU measures. Hence, fundamental rights–based judicial review in the EU has a clear potential to significantly influence the conduct of EU institutions.

1.3.2 Standing

Applicants are divided into three categories: privileged, semi-privileged, and non-privileged.²⁰ The privileged applicants – being the Member States, the European Parliament, the Council, and the Commission – are allowed to bring an action for annulment without proving any interest on their side (they can do it simply in the interests of legality).²¹ Other institutions such as the Court of Auditors, the European Central Bank, and the European Committee of the Regions have limited power to bring an action for annulment, ‘for the purpose of protecting their prerogatives’.²² One may wonder whether EU institutions or Member States should be able to challenge EU law in light of EU fundamental rights. Member States and EU institutions may in principle invoke fundamental rights protection in the absence of indications to the negative in the Treaties. However, criticisms have been raised.²³ Finally, natural and legal persons – the most likely applicants to allege violations of fundamental rights – are non-privileged applicants subject to rather stringent admissibility conditions. In particular, they can challenge (a) acts addressed to them, (b) acts not addressed to them but of direct and individual concern, and (c) regulatory acts of direct concern to them that do not entail implementing measures. In addition, Article 275 TFEU specifies that the addressees of restrictive measures adopted by the Council on the basis of Title V, Chapter 2 TEU can challenge those measures through the action for annulment.

The classification of applicants and the relevant standing rules reflect the peculiar function of the action for annulment in the EU legal order. The broader leeway given to the EU institutions and Member States to challenge EU law is linked to the role of these entities to represent the public interest. It is for this reason that individuals have more stringent standing requirements; in turn, these settings allow the general interest enshrined in EU legislation to prevail over individual claims. Such standing rules have implications on the ability to challenge EU law in light of EU fundamental rights. Fundamental rights are conceptualised by many authors first and foremost as individual entitlements,²⁴ building on the idea that individuals have some fundamental protection against abuses. Hence, while it may be possible that public bodies seek to protect fundamental rights because they are connected to a collective interest or general policy, individuals remain the most likely parties to complain about fundamental rights violations. While the EU has not expressly espoused this theory, the Charter of Fundamental Rights indicates that Charter rights are individual rights.²⁵ It follows that the restrictive standing rules for natural and legal persons inevitably limit the ability of those applicants to pursue fundamental rights claims against EU institutions.

In particular, as correctly observed by Krajewski,²⁶ the standing system before EU courts favours the ability of economic operators, who are often the addressees of individual decisions adopted by the EU institutions, to challenge EU measures. By contrast, NGOs or individuals who may be interested in protecting fundamental rights that are not directly connected to economic interests de facto have a harder time proving their standing requirements under Article 263 TFEU.²⁷ It follows that the litigation brought before the EU courts through the action for annulment may consider fundamental rights issues but mainly those that are invoked by economic operators. As will be illustrated in Section 1.4, most of the EU fundamental rights pleas are indeed raised in the context of challenges against EU sanctions.²⁸ The mismatch between standing rules and the strengthened role of individuals – not just economic actors – in the EU law governance appears as the reflection of the path dependency between the original structure of the Treaties, the focus on economic freedoms, and the more limited EU competences. Under the founding Treaties, the enhanced role of the Member States to contest Community measures reflected the more circumscribed areas in which Community law operated. Yet with the advancement of EU legislation and the broader impact that EU measures have on individuals’ interests, the question is whether reform of standing rules is necessary to reflect this transformation in the EU governance.

There is also another constraint to the protection of EU fundamental rights through the action for annulment. Only EU acts provided with legal effects ‘vis-à-vis third parties’ can be reviewed by EU courts. The EU judicature has recently interpreted this concept in a rather stringent way, meaning that only acts that are legally binding according to the intentions of their authors can be challenged.²⁹ This latest jurisprudence seems to restrict the ability to challenge EU law.³⁰ In previous cases, the EU courts had indeed repeatedly established that any provisions adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as ‘challengeable acts’ for the purposes of Article 263 TFEU.³¹

It is clear that the action for annulment could be a crucial instrument to review the lawfulness of EU action in light of EU fundamental rights. However, it is also evident that many of the procedural rules governing this action constrain the ability to review EU law in light of EU fundamental rights. These settings raise questions about the ability of EU Courts to effectively patrol the protection of fundamental rights in EU governance. In order to assess how fundamental rights are applied in the context of this action, several parameters need to be considered. First, there is a dialectic relationship between the General Court and the Court of Justice. While at first instance the former has competence to review pleas based on facts and law, on appeal the latter can only review pleas of law and cannot engage in complex factual assessments.³² As a result, the General Court is in charge of interpreting most of the cases against EU institutions involving pleas based on breaches of fundamental rights, the Court of Justice hearing only a narrower fraction of appealed cases.

Second, the fundamental rights pleas raised by the parties before the EU judicature shape the ways in which EU courts use EU fundamental rights in the action for annulment. Whether applicants tend to raise complaints about the procedures followed by the EU institutions, or instead the substance of EU acts, moulds the nature of the EU jurisprudence and the role of fundamental rights in the judicial review of EU law.

Third, there is another parameter worth mentioning: due to its competence to review both facts and law, the General Court can more easily identify violations of EU fundamental rights. That court can verify the factual background to cases and can therefore assess, for instance, whether the procedures followed by EU institutions to adopt EU measures are compliant with fundamental rights. By contrast, as mentioned, the Court of Justice’s competence is limited to pleas of law, and it therefore may need to develop more sophisticated legal tests to assess compliance with fundamental rights. How the two courts establish violations and apply the relevant judicial tests determines the power of fundamental rights review in the EU. An exploration of the jurisprudence of these two courts is therefore necessary to assess how EU fundamental rights are protected through the action for annulment.

1.4 The General Court

This section analyses the case law of the General Court. It first provides some numerical evidence on the actions for annulment involving fundamental rights, such as their admissibility and the extent of annulment of EU acts before the General Court (Section 1.4.1). The analysis then progresses with a study of the case law and demonstrates the centrality of procedural fundamental rights in the actions for annulment before the General Court.

1.4.1 Some Numerical Evidence

According to Curia, between 1 December 2009 and 31 December 2022, the total number of actions for annulment brought before the General Court amounted to 7,586.³³ Of those actions, 1,307³⁴ led to the annulment of EU acts, while 1,100 cases were dismissed on inadmissibility grounds.³⁵ The number of annulment actions brought in the same period that involved fundamental rights pleas was around 830 cases,³⁶ while those that included mentions of a general principle of EU law totalled 582;³⁷ 130 actions for annulment that included mentions of ‘fundamental rights’ were dismissed.³⁸ In the same period, the General Court granted the annulment of EU law in 312 cases involving fundamental rights arguments, either raised by the parties or by the General Court.³⁹ Therefore, the percentage of cases involving fundamental rights and entailing an annulment (partial or total) equates to 4.1% of the total number of cases initiated in the relevant period and 64% of the total number of annulment decisions. It may be comfortably stated that the quantitative influence of EU fundamental rights in the jurisprudence of the General Court is relatively limited compared to the total number of annulment cases initiated before the General Court. Yet most of the annulment decisions appear to include pleas based on fundamental rights.

Interestingly, effective judicial protection is one of the central fundamental rights in the EU case law. A rough estimate indicates that about 30% of the cases leading to annulment of EU measures before the General Court included a plea based on effective judicial protection. The dominance of this general principle of EU law and its relevant Charter provisions reflects the constitutional ethos of the EU, according to which access to courts to enforce EU law is one of the pillars of the EU version of the rule of law.

Other fundamental rights that have received special attention in the jurisprudence of the General Court are the right to good administration, the right to property,⁴⁰ the right of defence,⁴¹ the presumption of innocence,⁴² the proportionality of penalties,⁴³ and the ne bis in idem.⁴⁴ In several cases, the General Court has raised fundamental rights pleas of its own motion.⁴⁵ The rights to privacy, data protection, equal treatment, access to documents, and non-discrimination have appeared in a handful of cases.

Overall, the most invoked and cited fundamental rights are those relating to procedural issues. This distribution of fundamental rights–based pleas influences the General Court’s case law and the type of positive and negative obligations it imposes on EU institutions: procedure triumphs in the action for annulment. This finding leads to two observations. First, justice in EU litigation is shaped via procedural arguments; second, private applicants do not tend to contest EU measures on their substance but rather on issues of procedure. The focus on procedural matters is a symptom of a justice culture concentrating on procedural fairness, which demands opportunities for participation from the parties involved in procedures.⁴⁶

The influence of procedural fundamental rights in reviewing EU measures emerges even more clearly from a qualitative perspective. Indeed, the General Court’s case law suggests that the influence of fundamental rights in the action for annulment can be incisive and bear significant consequences for the EU institutions.

1.4.2 The Influence of Procedural Rights in the General Court’s Jurisprudence

The weight of procedure emerges powerfully from the General Court’s case law in a number of areas. First and foremost, EU procedural fundamental rights shape the very duties of EU courts. For instance, the EU courts are themselves required to comply with the principle of effective judicial protection, meaning that the action for annulment should offer an effective remedy to scrutinise the action of the EU.⁴⁷ This protection, however, does not entail that the limitation to standing deriving from the presence of a legal interest in bringing proceedings against an EU act should be disapplied. On the contrary, the General Court clarified that the standing rules are instrumental in ensuring access to court and the proper administration of justice.⁴⁸

Another area in which the right to effective judicial protection is extensively invoked and applied is the review of EU sanctions. Restrictive measures or ‘sanctions’ are an essential tool of the EU’s Common Foreign and Security Policy. They are used by the EU as part of an integrated and comprehensive policy approach, involving political dialogue, complementary efforts, and the use of other instruments at its disposal. Addressees of these measures are entitled to challenge them through the action for annulment via the combined reading of Articles 275 and 263 TFEU.

The approach to the judicial review of sanctions was drastically transformed with the Kadi judgment issued by the Court of Justice, further discussed below. In that decision, the Court of Justice established two principles:⁴⁹ first, that the EU legal order is bound to respect EU fundamental rights in its external policies, even when implementing UN resolutions imposing sanctions;⁵⁰ second, the EU judicature should carry out a full judicial review of the ways in which the EU institutions, and especially the Council, draw up lists including the addressees of sanctions.⁵¹ These principles have profoundly shaped the praxis of the General Court in its review of EU sanctions. Since that judgment, the General Court has consistently held that it must ensure effective judicial review concerning these measures.⁵²

The judicial review of EU sanctions especially focuses on the procedure followed to adopt these measures. In this context, the General Court evaluates the statement of reasons and the evidence provided by the Council. In the Aisha Muammer⁵³ case, the General Court clarified that the question of the appropriateness of the statement of reasons is different from whether the evidence used by the Council is correct.⁵⁴ The appropriateness of the statement of reasons is measured against several requirements. First, the statement cannot be a general stereotypical formulation.⁵⁵ Second, it must be appropriate to the act at issue and the context in which it was adopted. It must be appraised by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given, and the interest that the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations.⁵⁶ Third, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context that was known to that person and which enables them to understand the scope of the measure.⁵⁷ Hence, whether the addressee of EU sanctions had the genuine opportunity to learn the reasons underpinning the adoption of those measures is crucial in the assessment of the lawfulness of the statement of reasons.

Separate from the assessment of the appropriateness of the statement of reasons is the judicial review of the factual basis on which the sanctions were imposed. The EU standard of effective judicial protection entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated.⁵⁸ The scrutiny of the evidence used allows the General Court to exercise an extensive review of the material used by the Council to impose sanctions. In so doing, the General Court is able to ensure procedural fairness and ultimately avoids the creation of a hyper-securitised approach to the sanction regime that disregards fundamental rights entitlements.

Compliance with fundamental rights in the area of EU sanctions goes as far as demanding that the Council verify that third countries in support of which sanctions are imposed have complied with fundamental rights, and especially guarantees of effective judicial protection. In Klymenko v Council,⁵⁹ the General Court held that the Council cannot conclude that the adoption or maintenance of sanctions against individuals rests on a sufficiently solid factual basis before having itself verified whether the rights of defence and the right to effective judicial protection were observed at the time of the adoption of the decision by the third state in question on which it intends to rely.⁶⁰ Namely, mere reliance on documents provided by the third state that illustrate compliance with fundamental rights is not sufficient to discharge the duty to verify compliance with effective judicial protection by the third country. This means that even when the information on the basis of which sanctions are imposed is provided by a member of the Council of Europe, EU institutions have to conduct an ad hoc verification of compliance with EU fundamental rights by that state. Moreover, through its statement of reasons, the Council must clearly identify the grounds on which it considers that the third country has complied with the fundamental right in question.⁶¹ It follows that effective judicial protection requires the Council to engage in a thorough analysis of the evidence submitted to it as a legal basis for the adoption of sanctions to be included in the statement of reasons to the addressees.

The General Court has also detailed the obligations stemming from the principle of effective judicial protection for EU and national institutions in other fields of law. As an example, effective judicial protection imposes specific duties on EU institutions in the field of competition. These obligations go as far as requiring the EU Commission to examine whether the national authorities involved in competition proceedings may be in breach of the rule of law due to a lack of independence. In Sped-Pro S.A.,⁶² the General Court held that the Commission is required to verify compliance with the right to an effective remedy by Polish national authorities in the context of competition investigations in light of the Minister for Justice and Equality case.⁶³ The General Court’s reasoning was as follows. Since the relationship between national and EU authorities in the competition field is governed by the principles of sincere and loyal cooperation and mutual trust, similarly to the EU and national authorities operating in the field of the EU Area of Freedom, Security and Justice, it follows that in the competition law field as well there is a presumption of compliance with EU law and especially fundamental rights by national institutions, except in extraordinary circumstances.⁶⁴ When a case falls within the competence of national authorities, the Commission should assess whether the interests of the complainants can be effectively safeguarded by national authorities⁶⁵ in compliance with the principle of effective judicial protection and therefore the rule of law.⁶⁶ This assessment is to be carried out especially in jurisdictions where the EU judicature has identified a breach of the rule of law.

Another procedural fundamental right extensively considered in the General Court’s case law is the right to good administration enshrined in Article 41 of the Charter. This provision gives rise to several sub-rights, such as the right to be heard,⁶⁷ the right of access to personal files,⁶⁸ the obligation to give reasons,⁶⁹ and the right to damages for losses caused by EU institutions,⁷⁰ among others. The General Court has moulded these sub-rights to enhance fairness in the EU administration’s operations. The ADDE v Parliament⁷¹ case offers a valuable illustration of this point. The General Court established that the principle of impartiality deriving from Article 41 of the Charter requires members of the Bureau of the European Parliament, a body responsible for matters relating to the European Parliament’s budget, administration, and organisation, to ensure an appearance of impartiality.⁷² Hence, the expression of comments on social media against a specific party would undermine the impartiality guarantees of the Bureau and breaches Article 41 of the Charter. Similarly, in the context of the procedures for the marketing of new pharmaceutical products, the experts hired by the Commission should be impartial and not display any conflict of interest. As held in Pharma Mar v Commission,⁷³ the requirement of impartiality to which the EU institutions, bodies, offices, and agencies are subject also extends to experts consulted in that regard.⁷⁴ In order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. A legitimate doubt which cannot be dispelled is sufficient in that respect.⁷⁵ In that case, the General Court further established that the right to be heard in advance of any decision adversely affecting the interests of a party must be ensured even where the applicable rules do not expressly provide for such a formality.⁷⁶ The right to be heard is thus a general obligation to be ensured in all fields of EU law where EU institutions adopt decisions having adverse implications on the addressees, regardless of the presence of EU secondary rules detailing the relevant procedures.

Beyond rights of a procedural nature, the General Court has on occasion heard cases alleging the breach of more substantive rights, such as the principle of equal treatment. A notable case on this principle is Italian Republic v European Commission.⁷⁷ In that case, the principle was interpreted to require the European Commission to ensure equal treatment of candidates from a linguistic standpoint in selection procedures. This means that limitations of the choice of the second language used in competitions are discriminatory.⁷⁸

All in all, the General Court has offered a remarkable contribution to the interpretation of fundamental rights in the EU while enhancing procedural fairness in the EU. The significant role of the General Court in the interpretation and application of EU fundamental rights is further strengthened by comparison with the jurisprudence of the Court of Justice.

1.5 The Court of Justice

This section analyses the case law of the Court of Justice. It first provides some numerical evidence on the actions for annulment involving fundamental rights, such as their admissibility and the extent of annulment of EU acts before the Court of Justice, as well as the fundamental rights used to challenge any EU measures and first instance decisions (Section 1.5.1). The analysis then progresses with a study of the case law and summarises the approach to fundamental rights protection adopted by the Court of Justice on appeal.⁷⁹

1.5.1 Some Numerical Evidence

Moving on to the Court of Justice, in the same period of reference (1 December 2009 and 31 December 2022) the Court delivered 1,761 decisions⁸⁰ in the form of judgments or orders on appeal against General Court’s decisions in actions for annulment. Of those, around 230 orders and judgments include references to ‘fundamental rights’⁸¹ or ‘general principle’.⁸² Only 17 appeals were successful, either totally or partially;⁸³ 13 appeals involving fundamental rights pleas were successful, corresponding to 0.6% of all appeals against an order or a judgment issued in an action for annulment and 76% of the total number of successful appeal decisions issued by the Court of Justice. Three cases including pleas based on fundamental rights were dismissed on admissibility grounds.⁸⁴ Hence, the Court of Justice has, in most cases, tended to side with the interpretations of EU fundamental rights provided by the General Court. Such an alignment further means that it is virtually impossible to win an appeal before the Court of Justice. Overall, the quantitative presence of fundamental rights in the Court of justice’s jurisprudence on appeal appears even less substantive than in the General Court’s case law. Yet the Court of Justice has made powerful use of fundamental rights in specific circumstances. What is more, recent rule of law saga cases signal a potential new direction towards more substantive pleas (and therefore contestation) of EU law.

1.5.2 Circumscribed, Yet Not Inconsequential: Procedural Fundamental Rights Reviews before the Court of Justice

As already mentioned, Kadi⁸⁵ is an example of the transformative power of procedural fundamental rights in the context of the judicial review of EU measures. In that case, the Court of Justice established that it is the duty of the EU judicature, in accordance with the powers conferred by the Treaties, to ensure the full review of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the European Union legal order. The scope of the judicial review before the EU judicature also covers EU measures designed to give effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.⁸⁶ In particular, effective judicial review allows the EU courts to exercise oversight of the action of EU institutions in the adoption of sanctions and thus to accordingly identify duties for those bodies to ensure compliance with fundamental rights. It follows from Kadi that compliance with EU fundamental rights is a requirement of the EU constitutional arrangement and binds the action of EU institutions even in the field of foreign policy.⁸⁷ The protection of fundamental rights in the EU via judicial review is linked to the autonomy of EU law.⁸⁸

Since the seminal Kadi saga, the Court of Justice has further detailed the procedural obligations deriving from the EU fundamental rights in the adoption of EU sanctions. On the one hand, the Court of Justice has delineated the scope of the judicial review to be carried out by EU courts; on the other hand, it has also identified the duties imposed on other EU institutions when adopting EU sanctions. For example, in the appeal in French Republic v People’s Mojahedin Organization of Iran (PMOI),⁸⁹ the question was whether the General Court had committed an error in law by holding that the Council had not established that the contested decision had to be adopted urgently. Such evidence would have exempted the Council from the obligation to notify the addressee of the measure, PMOI, of the new evidence adduced against it. Consequently, the exercise of the right to be heard was also excluded. Therefore, the case concerned both the way in which the General Court had conducted its review at first instance, as well as the evidentiary requirements imposed on the Council to support the exemption from a novel notification to the addressee of a sanction.

The Court of Justice recalled that the requirement to notify the addressee of the sanction before the imposition of the measure derives from the right of defence as protected under Article 41 of the Charter.⁹⁰ It then distinguished two scenarios: the adoption of an initial decision to include an individual in a sanction list and the decision to maintain an individual on such a list. In the case of an initial decision to freeze funds, the Council is not obliged to inform the person or entity concerned beforehand of the grounds on which that institution intends to rely to include that person or entity’s name in the sanction list. The Council can notify the person or entity concerned of the grounds and afford the right to be heard at the same time as, or immediately after, the decision is adopted.⁹¹ The absence of a duty to notify before the adoption of a sanction list is an exception to the fundamental right of defence that is justified by the need to ensure that the freezing measures are effective. However, this situation is to be distinguished from the adoption of a decision maintaining an individual in a sanction list. In this latter case, the surprise effect is no longer necessary to preserve the effectiveness of the sanction regime. Therefore, the adoption of such a measure must, in principle, be preceded by notification of the incriminating evidence to allow the person or entity concerned an opportunity of being heard. These principles were applied at first instance by the General Court, which found that the Council had violated the right of defence of the addressee of the measure extending the inclusion in the sanction list. The Court of Justice thus confirmed the assessment carried out by the General Court and concluded that the latter had not committed an error in law in stating that the Council had not proved the urgency of the situation as a justification not to notify the new material and evidence to the addressee of the sanction.

But the relevance of effective judicial protection in the EU judicial review of EU law encounters a limit when confronted with the wording of Article 263 TFEU, which refers only to acts adopted by EU bodies in a broad sense. The latest decision on the tensions between the reviewability of EU acts and the individual right to effective judicial protection is the Sharpston case.⁹² Following the withdrawal of the UK from the EU, former Advocate General Sharpston saw her role terminated. She later challenged decision (EU) 2020/1251 of the Representatives of the Governments of the Member States of 2 September 2020 appointing Advocate General Rantos to replace her at the Court. One of the arguments submitted by Ms Sharpston was that the impossibility of challenging the measure at stake deprived her of the right to effective judicial protection enshrined in Article 47 of the Charter. Having lost at first instance before the General Court, she appealed before the Court of Justice, which agreed with the General Court and confirmed the inadmissibility of the action because the decision to nominate a new Advocate General was not an EU act but rather an act of the Member States. For the purposes of our analysis, we can therefore observe that the Court of Justice, like the General Court, is reluctant to broaden the scope of Article 263 TFEU under the aegis of effective judicial protection.

Due to the Court of Justice’s competence in reviewing pleas of law, the impression emerging from its jurisprudence is that breaches of fundamental rights are subject to more legally structured tests compared to the review carried by the General Court. In this context, Article 52 of the Charter is of relevance. This provision articulates a multi-layered assessment to evaluate the lawfulness of limitations to fundamental rights in the EU. Limitations are lawful under a fourfold requirement: first, restrictions to fundamental rights should be provided for by law; second, they should respect the essence of Charter rights; third, they should respect proportionality; fourth, they should be necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. But the application of this provision in the action for annulment is still under development. For instance, the relationship between the protection of the essence and principle of proportionality is unclear and not rigidly drawn in the EU case law, although a trend seems to emerge whereby the two assessments appear separate, as per the wording of Article 52 of the Charter. Proportionality still has a dominant place due to case law path-dependencies and the influence of the Strasbourg case law.⁹³

An example in point is Stichting Al-Aqsa.⁹⁴ In that case, the applicant appealed against the General Court’s judgment confirming the lawfulness of restrictive measures. One of the pleas raised concerned an alleged violation of the fundamental right to property due to the asset freeze entailed by the restrictive measure. After the Court of Justice recalled that the right to property under European Union law does not enjoy absolute protection, it also stated that the exercise of that right may be restricted, provided that those restrictions correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance (or essence)⁹⁵ of the right so guaranteed. In its assessment, the court followed a proportionality assessment. First, it evaluated the presence of an objective of general interest⁹⁶ and, subsequently, its legitimacy.⁹⁷ It next assessed the necessity of the asset freeze and then the proportionality of the maintenance of the appellant on the list at issue. Concerning this latter issue, the court held that this measure was proportionate due to the presence of a periodic review.⁹⁸ Proportionality can therefore take over the evaluation of the protection of the essence, which loses its autonomy as a legal test.

Moreover, cases such as Schindler Holding Ltd⁹⁹ further showcase that, in parallel to EU standards of protection, the ECHR is still exercising significant influence, even after the entry into force of the Charter. In that judgment, the Court of Justice recalled that, while the rights protected by the Convention constitute general principles of EU law, and Article 52(3) of the Charter requires rights contained in the Charter that correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the Convention does not bind the EU until its accession. The fundamental right issue raised in the case concerned whether the imposition of criminal penalties in the context of competition proceedings by the European Commission was incompatible with Article 6 ECHR. Recalling the Menarini judgment,¹⁰⁰ the Court of Justice held that ‘entrusting the prosecution and punishment of breaches of the competition rules to administrative authorities is not inconsistent with the ECHR in so far as the person concerned has an opportunity to challenge any decision made against him before a tribunal that offers the guarantees provided for in Article 6 of the ECHR’.¹⁰¹ Hence, the Court of Justice seeks alignment with the Strasbourg court as far as possible while retaining the autonomous interpretation of EU fundamental rights.

Remarkably, the rule of law saga has, to a certain extent, allowed for a more substantive contestation of EU measures. Article 2 TEU creates a web of fundamental principles that constitute the backbone of the EU legal order. They are the principle of non-discrimination, pluralism, and the rule of law, among others. They are all directly or indirectly linked to fundamental rights. In Hungary v European Parliament and Council of the EU¹⁰² and Poland v European Parliament and Council of the EU,¹⁰³ Hungary and Poland challenged the Rule of Law Conditionality Framework, which connects the disbursement of the EU budget in favour of Member States to the respect of the rule of law. In addition to pleas concerning the division of competences, the Member States challenged the notion of rule of law used by the EU institution in the Conditionality Framework.¹⁰⁴ In particular, it was argued that the contested regulation breaches the principles of legal certainty and legislative clarity on the ground that the concepts in that regulation, on the basis of which a Member State may be found to have breached the principles of the rule of law, have no uniform definition in the Member States. Therefore, the case required the Court of Justice to articulate the EU notion of the rule of law and not merely to assess whether the procedures followed by EU institutions to adopt the Rule of Law Conditionality Framework complied with procedural rights. The Court observed that the Commission had relied on a variety of reports and that the framework included an evidence-based approach. Additionally, the States affected by the framework can initiate dialogue and cooperation with the Commission. All these factors meant that the notion of rule of law used in the framework did not breach the principle of legal certainty.

All in all, the Court of Justice has exercised a central role in ensuring that EU measures comply with EU fundamental rights, by complementing the jurisprudence of the General Court. Also before the Court of Justice procedure triumphs. Whether more substantive contestation of EU law in light of EU fundamental rights emerges remains to be seen. A step in that direction are the cases initiated by Hungary and Poland concerning the Rule of Law Conditionality Framework.

1.6 Procedure over Substance (Thus Far): Concluding Remarks

The chapter has undertaken a journey through the jurisprudence of EU courts delivered in the context of actions for annulment. First, it has highlighted the strengths and the weaknesses of the action for annulment to protect fundamental rights. Limitations to the ability to ensure the full potential of fundamental rights judicial review in the EU are the stringent standing requirements for individuals and narrow notion of reviewable acts. Second, the chapter has observed that procedural fundamental rights dominate the EU case law. This is because parties have invoked procedural fundamental rights to challenge EU law but also due to the inclination of the EU judicature to rely on those fundamental rights. The centrality of procedure gives rise to observations concerning the areas of contestation of EU measures: parties mainly criticise the procedures followed by EU institutions in adopting EU measures and whether the latter afford any form of procedural guarantees. Hence, what applicants seem to be interested in is the ability to engage in participatory dynamics that can shape the adoption of EU law. A step towards more substantive contestation of EU measures appears in the recent Hungary v European Parliament and Council of the EU and Poland v European Parliament and Council of the EU cases. In these cases, the substantive contestation stems from different visions of the meaning and implications of the rule of law in the EU. Substantive contestation of EU measures is welcome and reflects the maturity of the EU legal order, where pluralism of fundamental rights inevitably creates debates as to what EU fundamental rights mean.

2 The Action for Damages as a Fundamental Rights Remedy

Melanie Fink , Clara Rauchegger , and Joyce De Coninck

2.1 Introduction

The EU has traditionally distinguished itself from international law by according the individual a central role within its legal system.¹ It is considered one of the idiosyncrasies of the EU that individuals can directly rely on provisions of EU law before domestic and EU courts and are protected through an extensive and, in many ways, progressive catalogue of fundamental rights – the Charter of Fundamental Rights of the EU (CFR, ‘the Charter’).² The protection offered through this catalogue of fundamental rights is reinforced by the right to an effective remedy guaranteed by Article 47 of the Charter. Yet, despite these legal safeguards, strong mechanisms to ensure effective protection of such rights vis-à-vis the EU remain elusive to individuals.

There are, in essence, three direct avenues for individuals to access the Court of Justice of the EU (CJEU, ‘the Court’): the action for annulment (see Chapter 1), the action for failure to act, and the action for damages. Legal scholarship has focused on the downsides and promises of the action for annulment as the primary avenue to ensure remedies for fundamental rights violations in the EU legal order.³ The action for damages has received much less attention.⁴ In part, this is because it has often been perceived as a vehicle to recover economic loss and has thus been used predominantly by companies and other economic operators. Yet, the action for damages might prove essential to ensure full compliance with the right to an effective remedy within the EU legal order, especially considering the shortcomings of the other direct avenues to the CJEU.

This chapter explores the potential of the action for damages to offer a remedy for fundamental rights violations committed by the EU. While the action for damages is easily accessible to individuals, the conditions under which compensation is granted are strict. This chapter assesses how these conditions are, could be, and should be applied by the CJEU in the fundamental rights context.

First, the chapter explores the main functions of liability law in the context of fundamental rights protection (Section 2.2). Next, the chapter provides a quantitative perspective on the CJEU’s case law involving fundamental rights in action for damages proceedings (Section 2.3). This is followed by a critical analysis of the particular challenges posed by the CJEU’s strict interpretation of the condition of unlawfulness – a requirement for liability to arise – when applied to breaches of fundamental rights (Section 2.4). Finally, the chapter zooms in on the obstacles to establishing joint liability between the EU and its Member States for joint fundamental rights violations (Section 2.5). The chapter concludes by reflecting on the possibilities for better utilising the potential of the action for damages for fundamental rights protection in the EU, while remaining within the limits of the current constitutional framework set out in the Treaties (Section 2.6).

2.2 Damages Liability as a Remedy for Fundamental Rights Violations

This section examines the general functions of liability law⁵ to explore its potential as a remedy for fundamental rights violations. It draws on domestic private law and public international law with the aim of gaining a better understanding of the role that damages liability can play as a vehicle for fundamental rights protection in the EU law context. The section is structured around the three core aims of liability law: compensating harm (Section 2.2.1), preventing undesired behaviour (Section 2.2.2), and vindicating rights (Section 2.2.3).

2.2.1 Compensating Harm Caused by Fundamental Rights Violations

The main function of liability law is to provide compensation for harm.⁶ Harm arising from fundamental rights violations can be of a pecuniary (monetary, economic, financial) or non-pecuniary nature. Violations of the right to property are the most straightforward example of a fundamental rights violation leading to an economic loss. Other examples of pecuniary harm caused by fundamental rights violations include costs of medical treatment or loss of income because of a violation of the right to physical integrity. However, it is characteristic of fundamental rights violations that in many cases the non-pecuniary harm they cause is more significant than any immediate financial consequences. Non-pecuniary harm may consist of, for instance, physical or psychological pain, loss of dignity, embarrassment, or fear.

In EU liability law, the principle of full compensation suggests that non-pecuniary harm is generally recoverable.⁷ Accordingly, the CJEU awards damages for both pecuniary and non-pecuniary harm arising from fundamental rights violations and it does so even when the victims are legal persons.⁸ The notion of non-pecuniary harm in EU liability law is broad, covering pain or physical suffering, harm to emotional well-being, or psychological suffering, reputational damage or other harm to personality rights as well as harm arising from a state of uncertainty.⁹

Like harm, compensation can be of a pecuniary or non-pecuniary nature. In modern liability regimes at the domestic level, both types of harm, pecuniary and non-pecuniary, tend to be compensated with money, typically ruling out other forms of substantive remedy, such as apologies or physical retaliation (‘an eye for an eye’).¹⁰

Beyond the national private law context, there is room for substantive remedies of a non-pecuniary nature. In public international law, suffering a wrong entitles the injured state to engage in conduct that would otherwise be wrongful.¹¹ In addition, non-pecuniary harm on the part of the state (as opposed to an individual) is generally considered not to be ‘financially assessable’ and is made good through ‘satisfaction’, such as an acknowledgement of the breach, an expression of regret, or a formal apology.¹²

In the international human rights context, the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law specify that ‘full and effective reparation’ includes restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.¹³ Whereas ‘compensation’ is understood narrowly to mean only pecuniary compensation, satisfaction is much broader and includes remedies such as verification and publication of the truth, an official declaration restoring dignity or reputation, a public apology, or sanctioning perpetrators.¹⁴ Likewise, compensation for violations of the International Covenant on Civil and Political Rights can involve measures of satisfaction, such as public apologies, public memorials, or guarantees of non-repetition.¹⁵

Regionally, violations of the European Convention on Human Rights (ECHR) can also be remedied by affording ‘just satisfaction’.¹⁶ This means that remedies other than pecuniary ones can be awarded. Yet pecuniary compensation is the most common remedy for the European Court of Human Rights (ECtHR).¹⁷ A quantitative analysis of the case law shows that the ECtHR has made monetary awards in 94% of all the cases in which it found a violation. In most of the cases in which no monetary award was made, the ECtHR held that a finding of a violation was sufficient to redress the breach. The award of other non-monetary remedies is extremely rare and only awarded in pilot judgments under Article 46 ECHR.¹⁸

In EU liability law, compensation can be of a pecuniary or non-pecuniary nature, including compensation in kind, if necessary in the form of injunctions to do or not to do something (Figure 2.1).¹⁹ In cases concerning non-pecuniary harm, the CJEU frequently finds that the harm is sufficiently compensated without monetary reparation.²⁰ In particular, the CJEU often finds that the annulment or finding of illegality of the unlawful measure is sufficient to remedy non-pecuniary harm.²¹ For instance, in the sanctions case Abdulrahim, the Court of Justice stated that the recognition of unlawfulness of the contested measure could constitute ‘a form of reparation for the non-material harm’.²² In other cases, the particular circumstances justified pecuniary reparation.²³

Figure 2.1 Types of harm and compensation

2.2.2 Condemning and Preventing Undesired Behaviour

Domestic liability law is primarily reactionary and focused on remedying past wrongs, whereas public law is concerned with improving the machinery of government.²⁴ Nevertheless, the impact of liability law goes beyond merely compensating harm. On the one hand, both victims and society more generally may perceive compensation, especially when it goes beyond the actual financial loss, as a form of condemnation or even punishment of the wrongdoer, even when it is – from a legal point of view – still strictly compensatory rather than punitive.²⁵

On the other hand, damages liability may serve to deter wrongful conduct.²⁶ The preventive function of liability regimes is particularly important in the fundamental rights context. Harm arising from a fundamental rights violation can, by its very nature, often not be made good by financial means or indeed remedied at all.²⁷ For this reason, changing state behaviour to prevent future violations is important in international human rights law.²⁸

2.2.3 Vindicating Rights

Beyond providing substantive remedies for fundamental rights violations, liability law is generally considered instrumental for states to comply with their obligations under the right to an effective remedy.²⁹ This is particularly the case for the EU. Under certain circumstances, especially when EU conduct under scrutiny is informal, factual, or preparatory in nature (see Chapters 12–14), the action for damages may be the only judicial mechanism available to individuals to challenge it. The requirement in Article 47 of the Charter that an effective judicial remedy must be available suggests that some form of compensation (pecuniary or non-pecuniary) should be provided under the action for damages, at least where other remedies are not available. Thus, the action for damages is instrumental for the EU to meet its obligations under Article 47 of the Charter.³⁰

In this vein, the right to compensation has been qualified as a fundamental principle of EU law and the ‘necessary extension of the principle of effective judicial protection and access to the courts’.³¹ As held by Advocate General Mengozzi, ‘the right to reparation of persons harmed by an infringement of EU law is a specific variation on the principle of effective judicial protection’, which is now enshrined in Article 47 of the Charter.³²

The importance of the action for damages in remedying breaches of EU law is also recognised in Article 41(3) of the Charter by virtue of which the right to have the Union make good any damage it caused is a fundamental right in itself.³³ While Article 41(3) of the Charter only reproduces Article 340(2) TFEU and does not modify the conditions under which liability arises,³⁴ it may form the basis for the CJEU to develop the conditions for liability in line with the requirements of fundamental rights law.³⁵ Section 2.6 makes suggestions as to what this development could and should entail.

2.3 A Quantitative Glance at Fundamental Rights in CJEU Damages Case Law

Article 340(2) TFEU holds that the EU must make good any damage caused by its institutions or by its servants in the performance of their duties. The procedure that serves to establish whether the conditions for liability are met and award compensation is the action for damages, which the CJEU is exclusively competent to hear.³⁶ Within the CJEU, Article 256(1) TFEU allocates the competence to hear actions for damages at first instance to the General Court, with the Court of Justice hearing actions for damages only in the case of appeals on points of law.³⁷ In what follows, the action for damages will be analysed from a quantitative perspective, focusing on cases in which the Charter was mentioned.

Up to 2014, the action for damages had given rise to 39 successful cases in which the CJEU granted compensation to applicants.³⁸ Between 2015 and 2023, the body of case law grew incrementally, but rather slowly, amounting to a total of 54 cases with a successful outcome during this period,³⁹ of which all but one judgment were delivered by the General Court.⁴⁰ The overall number of cases of damages proceedings during this period, that is, including successful and unsuccessful ones, is 172 for the Court of Justice and 745 for the General Court.⁴¹ It is a common outcome of action for damages proceedings that no damages are awarded since most often claims are either not sufficiently substantiated with evidentiary support, or the conditions for liability, which will be discussed in Section 2.4, are simply not met.⁴²

Out of the fifty-four successful damages cases since 2015, more than 80% included references to the Charter in the grounds of judgment. In these forty-five cases, the Charter rights that were most frequently mentioned were those enshrined in Articles 41 and 47.⁴³ This is not surprising as Article 41 guarantees good administration rights binding on the EU institutions, bodies, offices and agencies, including the right to have the Union make good any damage it has caused (see Section 2.2.3). Article 47 is closely related to Article 41. It guarantees general fair trial rights that are also binding on the Member States. These two rights provide for partly overlapping protection.⁴⁴ This protection is furthermore complemented by Article 48 of the Charter, which has also appeared in several of the successful damages cases and guarantees respect for the rights of the defence for anyone who has been charged.⁴⁵

Another Charter provision that plays a prominent role in damages cases that have yielded a successful outcome, albeit significantly less than Articles 41 and 47, is Article 31, which affords fair and just working conditions.⁴⁶ Further Charter provisions that are referred to in several successful damages cases are, in order of importance in numbers: Article 7 (Respect for private and family life), Article 8 (Protection of personal data), Article 21 (Non-discrimination), Article 16 (Freedom to conduct a business), and Article 17 (Right to property).⁴⁷ These are all fundamental rights that can effectively be claimed and enforced vis-à-vis the EU, by virtue of the EU’s nature as a non-state actor and by virtue of the nature of the rights involved (Figures 2.2 and 2.3).

Figure 2.2 Charter rights in successful damages cases (1)

Figure 2.3 Charter rights in successful damages cases (2)

The large majority of the forty-five cases in which these Charter rights were applied concerned staff of the EU’s civil service.⁴⁸ This explains the prominent role of the right to fair and just working conditions. Most of the remaining cases concerned either public procurement or competition law.⁴⁹ Articles 41 and 47 of the Charter were frequently mentioned in all three categories of case, that is, in staff, public procurement, and competition law cases. Only two of the damages cases with a successful outcome that mentioned the Charter regarded restrictive measures in the framework of the Common Foreign and Security Policy (CFSP).⁵⁰ They concerned the freedom to conduct a business and the right to property.

The Charter rights that were at issue in the aforementioned cases have overwhelmingly been clarified and concretised by the EU legislator in secondary legislation. This means that the abstract fundamental rights commitments found in the Charter had already been transposed into concrete and judiciable obligations for the EU through secondary legislation. Arguably the chances to hold the EU liable are greater where Charter rights have been concretised and articulated by the EU legislator in secondary legislation (see also Section 2.4.2).

Other cases concerned Charter rights that have not been fleshed out by the legislator. In these cases, the CJEU drew on its own previous case law and conducted a (more or less complete) fundamental rights balancing exercise in accordance with Article 52(1) of the Charter to determine whether a restriction to a fundamental right could be justified. In particular, a strand of case law has emerged assessing whether the Article 47 right to adjudication within a reasonable time was violated due to lengthy competition law proceedings before the General Court.⁵¹ Furthermore, the CJEU balanced fundamental rights that were not substantiated through secondary legislation when determining whether CFSP restrictive measures violated the right to property and the freedom to conduct a business.⁵²

However, none of the successful cases concerned interferences via omission, interferences in cases of shared (operational) conduct, or the positive (fundamental rights) obligations stemming from Charter provisions.

2.4 ‘Unlawfulness’ as a Condition for EU Fundamental Rights Liability

Article 340(2) TFEU does not define the conditions for EU liability but instead leaves it to the CJEU to do so. The Court has not developed an approach to the action for damages that is specific and tailored to fundamental rights violations but applies the same conditions as for any other breach of EU law.⁵³

EU liability for fundamental rights violations is therefore subject to three explicit, cumulative conditions.⁵⁴ First, for EU damages liability to arise, there must be unlawful conduct on behalf of the EU. The condition of unlawfulness is qualified in two ways: the infringed rule must be intended to confer rights on individuals and the breach must be sufficiently serious. In addition, EU liability is predicated on the occurrence of damage on the part of the victim as a second condition and an uninterrupted causal relationship between the unlawful conduct and the damage as a third condition.

The particular challenges posed by the qualified condition of unlawfulness in establishing fundamental rights violations warrant further examination. This is why this section focuses on unlawfulness as a condition for EU fundamental rights liability. It first identifies the provisions of the Charter that are intended to confer rights on individuals (Section 2.4.1). It then turns to the sufficiently serious breach requirement, bringing forward three arguments against applying this requirement to fundamental rights violations (Section 2.4.2) and examining the CJEU’s application of the requirement in its case law (Section 2.4.3).

2.4.1 No Conferral of Rights by Charter Principles

For EU liability to arise, there must be unlawful conduct on behalf of the EU in violation of a norm of EU law that is intended to confer rights on individuals. Whether an EU rule is intended to confer rights on individuals is to be determined in relation to whom the provision is addressed to or owed.⁵⁵ EU fundamental rights regulate the relationship between the Member States and the EU, on the one hand, and individuals, on the other hand, and have been developed first and foremost with the protection of the individual in mind.⁵⁶ This suggests that the fundamental rights enshrined in the Charter confer rights on individuals.

However, not all provisions of the Charter articulate rights. The Charter distinguishes between rights and principles and only violations of Charter rights engage the EU’s damages liability. Article 52(5) of the Charter states that principles, as opposed to rights, require implementation by legislative or other acts taken by the EU or the Member States and ‘shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’.⁵⁷ According to Advocate General Cruz Villalón in AMS, where principles have not been given specific expression through legislation, ‘the possibility of directly relying on a “principle” so as to exercise an individual right based upon that principle’ is excluded.⁵⁸ What this means is that principles are not automatically justiciable; their justiciability requires their prior implementation.⁵⁹

Yet Charter principles are not simply ‘truncated rights’ that turn into fully fledged rights through implementation.⁶⁰ Rather, they are structurally different from rights in that they merely entail duties but do not come with a corresponding claim right.⁶¹ They impose a one-sided, non-relational duty on the EU or the Member States and therefore belong to the realm of objective law.⁶² Rights, in contrast, are relational in that they provide subjective entitlements. Consequently, Charter rights fulfil the condition of conferring rights on individuals, whereas Charter principles do not.

Even though Charter principles can mainly be found in the broad domain of economic, social, and cultural rights, the characterisation of a Charter provision as belonging to this domain is not what determines its nature as a principle. To find out whether a Charter provision contains a right or a principle, one has to look at the wording of the provision. There are three types of wording that indicate Charter principles. First, the wording may be devoid of any rights language, as is the case for Articles 36 to 38 of the Charter. Second, the formulation ‘the Union recognises and respects’ seems determinative of a general principle. This formulation is found in Articles 25, 26, 34(1) and (3), and 36 of the Charter, all of which the Charter Explanations identify as principles. Third, Article 35 of the Charter only confers a right ‘under the conditions established by national laws and practices’. Unlike the more general formulation ‘in accordance with national laws and practices’, the formulation of Article 35 indicates a principle.⁶³

Following this approach in distinguishing between Charter rights and principles, all the Charter provisions that the CJEU has referred to in successful damages cases since 2015 contained Charter rights (see Section 2.3).⁶⁴ This further supports the argument that only Charter rights confer rights on individuals and can thus engage the EU’s damages liability.

2.4.2 Three Arguments against Applying the ‘Sufficiently Serious Breach’ Test to Fundamental Rights

A breach of Union law does not lead to liability, ‘however regrettable that unlawfulness may be’, unless it qualifies as ‘sufficiently serious’.⁶⁵ Thus, there is conduct of the EU that is unlawful and leads to damage but is not ‘unlawful enough’ for liability to arise. The decisive criterion is whether the Union body concerned ‘manifestly and gravely disregarded the limits on its discretion’.⁶⁶ A number of factors are hence relevant to establish the seriousness of the breach: the extent of discretion the authority in question enjoys, the obviousness (‘manifestly’) of the breach, and the reprehensibility of committing it (‘gravely’).⁶⁷

If this logic is translated to the fundamental rights context, it means that there are fundamental rights breaches that are unjustified under fundamental rights law yet are not obvious or reprehensible enough for liability to arise. The General Court implied this when it noted that neither the Charter nor the ECHR ‘preclude that the Community’s non-contractual liability be made subject … to the finding of a sufficiently serious breach of the fundamental rights invoked by the applicant’.⁶⁸ However, applying the’sufficiently serious breach’ test to the fundamental rights context may be problematic for three reasons.

The first reason concerns the right to an effective remedy (see Section 2.2.3). Article 47 of the Charter requires the Union to make a complaints mechanism available for any rights violation, regardless of whether it is ‘simple’ or ‘serious’. In circumstances where the action for damages is the only possibility for individuals to seek redress for fundamental rights violations committed by an EU body, the right to an effective remedy may thus require the Court to refrain from applying the sufficiently serious breach requirement altogether. Given the CJEU’s exclusive jurisdiction over EU unlawful conduct, there is otherwise no remedy available for cases concerning ‘simple’ breaches of fundamental rights by the EU.

A notable example where judicial remedies beyond the action for damages are virtually absent is so-called factual conduct (see also Chapter 12) or soft law (see also Chapter 14). Neither of these forms of administrative action are considered by the CJEU to have ‘binding legal effect’ and they therefore largely escape judicial review under Article 263 TFEU. In this context, Rademacher argues for a loosening of the conditions for the EU’s damages liability on the basis of Article 47 of the Charter by refraining from applying the sufficiently serious breach requirements under certain circumstances.⁶⁹ If the sufficiently serious breach requirement is applied, factual conduct and soft law may escape judicial scrutiny altogether since they escape judicial review by the CJEU under alternative procedures.

Second, the overarching rationale for the ‘sufficiently serious breach’ requirement is unsuitable for the fundamental rights context. Making liability contingent on fault or a sufficiently serious breach requirement may be necessary to ensure that public authorities can exercise discretion in the public interest and to prevent them becoming ‘overcautious’.⁷⁰ Indeed, in the CJEU’s case law, the reason for the sufficiently serious breach requirement is tied to avoiding a ‘chilling effect’ on the exercise of discretion.⁷¹ In the words of the Court, it serves the purpose of securing the ‘room for manoeuvre and freedom of assessment’ that public authorities need to fulfil their functions in the general interest whilst ensuring that third parties do not ‘bear the consequences of flagrant and inexcusable misconduct’.⁷²

Leaving aside whether these policy considerations against lowering the liability threshold are supported by empirical evidence,⁷³ they do not fit when fundamental rights are at issue. In the case of fundamental rights, the balance between the interests of the individual and society at large is already struck in the context of the determination of whether a breach of a fundamental right has effectively occurred. It forms not only part of the proportionality analysis for qualified fundamental rights⁷⁴ but is also taken into account in formulating the positive obligations public actors may incur to prevent breaches of fundamental rights.⁷⁵ Accordingly, the requirement of a sufficiently serious breach should not be applied in an action for damages when the rule of EU law that is breached is a fundamental right since this requirement unnecessarily replicates the balancing exercise that is inherent in the fundamental rights analysis.⁷⁶ Besides, if non-pecuniary forms of compensation are more extensively relied on by the CJEU than pecuniary ones, this also contributes to preventing a ‘chilling effect’ for public authorities (see Section 2.2.1).⁷⁷

Third, the factors that the CJEU uses to determine a sufficiently serious breach are unsuitable when the rule of EU law that is violated is a fundamental right. In establishing a sufficiently serious breach, the CJEU considers a number of factors, including the discretion retained by the EU, the complexity of the case, the clarity of the (concrete) binding legal obligations on the EU, and the intentional character of the act or omission.⁷⁸ The clearer the rule that is violated, the more likely that a breach is considered sufficiently serious by the CJEU.

The requirement of clarity in particular poses a significant obstacle to EU liability for fundamental rights violations arising from EU conduct. To be applicable to concrete situations, abstract fundamental rights must generally be ‘translated’ into concrete negative or positive, procedural, or substantive fundamental rights obligations. This process of concretisation of abstract fundamental rights has largely taken place in relation to the Member States. The CJEU itself has predominantly interpreted EU fundamental rights in relation to the Member States as duty-bearers. Furthermore, the rich case law of the ECtHR on the interpretation of the ECHR, which is relevant for the Charter due to its Article 52(3), is currently exclusively concerned with Member State obligations. Similarly, also the case law of domestic (constitutional) courts that, by virtue of Article 52(4) of the Charter, can guide the interpretation of Charter rights that result from the constitutional traditions common to the Member States is also exclusively concerned with Member State obligations.

Some fundamental rights obligations, such as those resulting from the rights to good administration guaranteed by Article 41 of the Charter, can obviously be discharged by the EU’s (administrative) bodies in the same way as they could be by Member State bodies. However, it is unclear whether this is the case for other fundamental rights obligations too. The positive (substantive) obligation under the right to life, for example, requires action by states to prevent industrial and environmental disasters.⁷⁹ The EU simply does not always have the means or competences to meet such types of positive obligation, particularly where such competence is retained by or shared with Member States. As a functionally tailored non-state actor, the EU is thus constrained as to its competences, power, and budget in manners that Member States are not. Consequently, concrete obligations stemming from abstract fundamental rights commitments might differ between the EU and its Member States and there is a need for more conceptual clarity as regards the EU itself as a duty-bearer.⁸⁰

To sum up, three arguments militate against applying the ‘sufficiently serious breach’ test to fundamental rights. First, where no alternative remedies are available to challenge EU action, excluding damages on the basis that the breach of EU law was not sufficiently serious can have the consequence that the breach of EU law escapes judicial review altogether, which is problematic from the perspective of the right to an effective remedy guaranteed by Article 47 of the Charter. Second, it is not necessary to apply this test to fundamental rights cases to ensure a degree of discretion for public authorities since a balancing exercise is already inherent in the fundamental rights analysis. Third, the criterion of clarity of the violated rule is generally at odds with the abstract formulation of fundamental rights and their need to be concretised by courts. More specifically, there is a lack of case law on the EU as a duty-bearer of Charter rights that could provide clarity.

2.4.3 The CJEU’s Approach to the ‘Sufficiently Serious Breach’ Test in Fundamental Rights Cases

While the CJEU has never explicitly pronounced itself on the question whether the ‘sufficiently serious breach’ test applies to fundamental rights,⁸¹ there is case law that suggests that it might not. In some cases, the Court seemed to base this approach on the lack of discretion enjoyed by public authorities when fundamental rights are at issue.⁸²

In other cases, the CJEU, namely the Court of Justice, indicated that it would apply the test but then seemed to consider a breach of a qualified fundamental right as automatically meeting it. In these cases, the Court conducted a fundamental rights balancing exercise to determine whether the Charter right was infringed and stopped the analysis there. Although the Court noted in these cases that a serious breach of EU law was required, it did not actually examine the seriousness of the breach of the Charter right.⁸³ For instance, in Kendrion, Gascogne Sack Deutschland, and Groupe Gascogne v Commission, the Court examined the circumstances of the specific case, such as the complexity of the dispute and the conduct of the parties. Concluding that the right to adjudication within a reasonable time had been breached, it simply held that this constituted a sufficiently serious breach of a rule of law that is intended to confer rights on individuals.⁸⁴ It can be speculated that this approach indicates that any breach of a qualified Charter right – where the Court has already found the limitation to be disproportionate – is sufficiently serious to lead to the EU’s damages liability.

Conversely, there is also case law of the General Court that suggests that fundamental rights violations falling below a threshold of ‘seriousness’ do not lead to liability. In Sison, for example, the General Court established that the sanctions imposed on the applicant were incompatible with EU law and thus illegal, but the breach did not qualify as sufficiently serious due to the complexity of the situation, the difficulties in interpreting and applying the relevant rules, and the lack of well-established precedent on the topic.⁸⁵ Next, the General Court turned to the question of whether the illegality of the sanctions breached Sison’s fundamental rights in a manner capable of triggering EU liability, holding that the alleged breach of fundamental rights was ‘inseparable’ from the illegality previously established. For that reason, it concluded that even if a breach of fundamental rights existed, ‘that breach is also not sufficiently serious, in the particular circumstances of the case, to incur the non-contractual liability of the Community’.⁸⁶ Similarly, in other cases, the General Court examined the obviousness and reprehensibility of the fundamental rights breaches alleged, which suggests that the relevant authorities would not have incurred liability for a ‘simple’ violation.⁸⁷

The foregoing demonstrates that the CJEU is not explicit about whether the ‘sufficiently serious breach’ requirement applies to fundamental rights and that it is inconsistent in its approach. This has significant implications for the principles of legal certainty, legitimate expectations, and the effectiveness of EU fundamental rights law. In light of the concerns set out in Section 2.4.2, the Court should clarify that breaches of fundamental rights are not subject to the sufficiently serious breach test.

2.5 Joint Liability between the EU and Its Member States

In the EU’s multi-level administration, the EU and its Member States more often than not are jointly responsible for ensuring that fundamental rights are guaranteed. This joint responsibility can result from shared exercise of public power, for instance in joint decision-making procedures (see also Chapter 13), or from the parallel exercise of public power by the EU and one or more Member States over the same situation, for instance, in the context of operational cooperation. When fundamental rights are violated in the context of EU law, there is thus often a combined failure of several actors at the EU and Member State level.

The assumption may be that these types of failures lead to joint liability.⁸⁸ However, in the EU legal system, joint liability is the exception, rather than the rule. This section outlines the various factors that contribute to this reality, both in relation to the establishment (Section 2.5.1) and the implementation (Section 2.5.2) of joint liability.

2.5.1 Establishing Joint Liability: Attribution and Causation

When more than one actor is involved in causing damage, two concepts are used to determine whether one or all of them are liable: attribution and causation. The two concepts each fulfil different roles in the allocation of liability.

Attribution links the unlawful conduct to the responsible actor, that is, to its ‘true author’. Only the entity considered the ‘author’ of a violation will incur liability for its consequences. For example, when a ‘pushback’ during a Frontex-coordinated joint border control operation violates fundamental rights, it might be difficult to establish the actual ‘author’ (or ‘authors’) of the violation since the actions of the EU and Member State authorities were intertwined.⁸⁹

In contrast, causation is the link between the unlawful conduct and the damage that occurred. For example, when the EU has failed to prevent a fundamental rights violation by a Member State even though it would have been obliged to do so, the question arises whether this inaction was a sufficiently direct cause for the damage that occurred.

The questions of attribution and causation are sequential.⁹⁰ The ‘true author’ of an unlawful act must be identified before it can be assessed whether the unlawful conduct by this author was a sufficiently direct cause for the damage. At the CJEU, attribution and causation are assessed at different stages of liability proceedings. Attribution of conduct to either the EU or a Member State must occur at the admissibility stage of the proceedings, as the CJEU is only competent to rule on the liability of the Union. Attribution of the relevant unlawful conduct to the Union is thus a precondition for the competence of the Court to adjudicate on the substance of the case.⁹¹ In contrast, it is to be determined at the merits stage of the proceedings whether or not unlawful conduct is causally linked to the damage that occurred.

While attribution of conduct is a familiar concept in public international law, this is less so in EU law generally and EU liability law more specifically.⁹² Accordingly, significant gaps exist in research regarding the role and interpretation of this concept in EU (liability) law.⁹³

Furthermore, the CJEU has not developed a coherent approach to attribution in its case law. In some instances, the Court uses the concept in its damages case law, occasionally even listing it as a fourth condition for a successful claim.⁹⁴ However, the CJEU is inconsistent in its terminology. It uses ‘attribution of conduct’ interchangeably with ‘attribution of damage’ or ‘imputation’ and sometimes simply describes a specific course of conduct as being ‘in fact the responsibility of [the Union]’.⁹⁵ More fundamentally, it sometimes conflates the meaning of attribution and causation.⁹⁶

Apart from these terminological inconsistencies, the case law indicates that the CJEU uses multiple and sometimes overlapping tests of attribution, which are applied differently depending on the substantive area of EU law at stake, the implicated parties, and the applicable procedure.⁹⁷ While there is little case law on the issue and the terminological inconsistencies complicate a clear assessment, a rule appears to emerge in EU liability law whereby unlawful conduct is attributed to the authority competent to make legal choices, that is, to the authority enjoying legal decision-making power.⁹⁸ This test seems to be applied relatively strictly, with very little margin to take into account other forms of influence, power, or pressure outside the ambit of the competence to act in a legally binding manner.⁹⁹

As a result of the CJEU’s incoherent approach to attribution, it is unclear how exactly EU liability law deals with situations where more than one actor may have been involved in fundamental rights violations. The ex post determination of attribution (explicit or implicit) without any ex ante clarification as to the applicable threshold is particularly detrimental to applicants, who need to decide on the forum for their claim for compensation (CJEU or national courts), since to date no forum exists that could allocate joint responsibility and the subsequent burden of compensation in tandem.

With respect to causation, the CJEU has repeatedly held that a causal link exists when an infringement of the law was a necessary and sufficiently direct condition for damage to occur.¹⁰⁰ A breach is too remote or indirect if an intervening event ‘breaks’ the chain of causation. This may be the occurrence of exceptional or unforeseeable events, or imprudent conduct by the applicant, but also imprudent conduct by other public (Member State) authorities, if that proves to be the determinant cause of the damage.¹⁰¹ In some cases, the CJEU indicates that ‘exclusive’ causation might be required for liability to arise, thus excluding joint liability at the substantive level.¹⁰² In other cases, however, the Court seemed more open to allowing for several determining causes that may all have contributed in a sufficiently decisive manner to the occurrence of the damage for liability to arise.¹⁰³ This particular question is one of the main points of contention in Kočner v EUROPOL, a case recently decided by the Court of Justice.¹⁰⁴ Whereas the General Court had dismissed the action due to the absence of an ‘exclusive’ causal link between Europol and the alleged damage,¹⁰⁵ the Court of Justice followed Advocate General Rantos’ suggestions and held that Europol and the Member State jointly and severally incur liability for the non-material damage stemming from the violations of the applicant's fundamental rights.¹⁰⁶ While in the case of Europol, the founding regulation specifically envisages that the agency and national authorities can be jointly liable, the decision of the Court of Justice on this matter may have broader consequences for joint liability between the EU and its Member States more generally.

It is safe to conclude that joint conduct and subsequent joint responsibility of the EU and its Member States in safeguarding fundamental rights does not ipso facto translate into joint liability. If not excluded at the admissibility stage through the application of a high and uncertain attribution threshold, a strict causation test will often prevent joint liability at the merits stage of the proceedings.¹⁰⁷ In any event, joint liability – while theoretically possible – remains the exception to the rule.

2.5.2 Implementing Joint Liability: Court Competence and Parallel Proceedings

Even where the EU and a Member State are exceptionally jointly liable, the procedural implementation of this joint liability in the EU’s remedies system presents a significant obstacle. In the case of Kampffmeyer, the Court had in principle recognised the Community’s liability for the Commission’s approval of an unlawful measure taken by Germany.¹⁰⁸ However, since the applicants had brought parallel actions against Germany concerning the same damage, the Court held that in order to ‘avoid the applicants being insufficiently or excessively compensated for the same damage’, it was ‘necessary for the national court to have the opportunity to give judgment on any liability on the part of the Federal Republic of Germany’ before the damage for which the Community should be held liable could be determined.¹⁰⁹ The Court thus stayed the proceedings awaiting the decision of the national court on the matter.¹¹⁰

This approach has been widely criticised.¹¹¹ First, it can make it particularly lengthy and complicated for applicants to obtain compensation when more than one actor is involved, which raises concerns from the perspective of the right to an effective remedy. In Kampffmeyer, for instance, the proceedings remained stayed for almost twenty years before they were removed from the Court’s register.¹¹² Second, it renders EU liability substantively subsidiary to Member State liability. From a fundamental rights perspective especially, this is problematic. Given that many of the EU’s activities require some form of participation by the Member States, this may significantly impact the chances of holding the EU liable for its contribution to fundamental rights violations that have directly been committed by Member State authorities.

In the absence of an adjudicatory mechanism to consider questions of joint fundamental rights responsibility between the EU and its Member States in tandem, the institutional design of the EU significantly complicates joint liability in practice. Hence, not only are there legal obstacles to establishing joint liability in substance, there are equally significant institutional obstacles to establishing joint liability in the procedural set up and practice.

2.6 Conclusion

The action for damages has the potential to provide redress to individuals who have experienced violations of their fundamental rights by an EU entity, thanks to several distinguishing characteristics it possesses. The admissibility threshold is significantly lower than with respect to the action for annulment. Obtaining a verdict on substance requires neither a particular form of EU conduct, such as a legally binding act, nor proof of a specific interest on the part of the applicant to have the EU measure assessed as to its legality.¹¹³ Moreover, at the substantive level, the action for damages is exceptionally flexible.¹¹⁴ Article 340 TFEU merely states that the EU is to make good damage it causes ‘in accordance with the general principles common to the laws of the Member States’, without specifying the precise conditions. This provides room for the CJEU to develop a liability regime suitable for the EU, including in relation to its commitments under fundamental rights law.¹¹⁵

Yet the action for damages is currently not very effective as an avenue for a fundamental rights remedy. As the analysis in this chapter has shown, this is largely due to two factors.

First, the core obstacle encountered by individual victims in lodging a successful action for damages concerns the Court’s insistence on the ‘sufficiently serious breach’ test. This chapter has argued that it is problematic to apply this test to the fundamental rights context for three main reasons. The first reason is that it would be incompatible with the right to an effective remedy if no remedy were available for fundamental rights violations that do not meet this threshold. Given the CJEU’s exclusive jurisdiction over EU bodies and the restrictions pertaining to other direct actions, there is EU conduct that can only be challenged through an action for damages. If such conduct violates fundamental rights in a manner that does not pass the ‘sufficiently serious breach’ threshold, there is no remedy at all for those affected. The second reason is that the balance between individual and societal interests that the ‘sufficiently serious breach’ test serves to strike by preserving a degree of discretion to public authorities is already built into the fundamental rights balancing exercise. The third reason why the ‘sufficiently serious breach’ test should not be applied to fundamental rights is that the criterion of clarity employed by the Court to establish whether the threshold is met proves near impossible to meet when fundamental rights violations by the EU are at issue. To date, there is a significant lack of certainty regarding the scope of concrete fundamental rights obligations as they apply to the EU specifically.

The second major obstacle is that the limits to the establishment and enforcement of joint liability sit uneasily with the fact that due to the EU’s multi-level administration, safeguarding fundamental rights is in many situations a joint responsibility between the EU and its Member States. The existing framework not only carries considerable uncertainty but also subjects applicants to prolonged litigation spanning years or even decades. It also risks making EU liability subsidiary to the liability of its Member States. In other words, despite the theoretical possibility to establish joint responsibility, substantive and institutional obstacles significantly prevent findings of joint responsibility in practice.

The first of these two obstacles, the ‘sufficiently serious breach requirement’, is not pre-determined by the Treaties but has been developed by the CJEU. It could thus in principle be dropped or reinterpreted, altogether or for specific areas, especially if there is evidence that national liability regimes do so too. Liability law is deeply embedded in the attitudes of a society towards the notions of injury, sanction, and conflict resolution.¹¹⁶ As a result, national regimes for compensation of damages resulting from fundamental rights violations vary significantly.¹¹⁷ While a comparative analysis of national fundamental rights liability regimes is beyond the scope of this chapter, research has shown that it is not uncommon among EU Member States to opt for special approaches to liability regarding fundamental rights, for instance, by reinterpreting the requirements of fault, causation, or damage in public liability regimes.¹¹⁸

To close the gap that arises in the EU’s remedies system, especially when fundamental rights are violated through conduct that is not reviewable under Article 263 TFEU (see Chapter 1), the CJEU may rely on Article 47 of the Charter and the approaches adopted in national liability laws to develop a fundamental rights–specific regime for damages liability. This may involve disapplying the ‘sufficiently serious breach’ requirement altogether, establishing a (rebuttable) presumption of seriousness when (certain) fundamental rights are concerned, or applying criteria to establish seriousness that are better suited to the nature of and types of fundamental rights law as they apply to the EU. To accommodate concerns regarding any possible ‘chilling effect’ that more leniency might have, a distinction could be made between claims that involve monetary compensation and those that only seek termination, declarations, apologies, or other forms of non-monetary compensation.¹¹⁹ As Section 2.2.1 has shown, the CJEU already grants non-monetary compensation under appropriate circumstances, so relying on these more extensively would not be a structural departure from existing case law.

Alternatively, a fundamental rights–specific liability regime may also be achieved through secondary legislation.¹²⁰ A recent example of such an approach is the 2022 Commission proposal for an Artificial Intelligence Liability Directive with the aim to adapt non-contractual liability rules to the specific challenges posed by AI.¹²¹ Given that the EU has no general competence to adopt fundamental rights–specific legislation that would apply horizontally, it may be possible to develop such instruments for specific policy areas, particularly where the effective judicial protection gap is particularly obvious, such as in the Area of Freedom, Security and Justice. Notably, the founding regulation of the EU agency Europol envisages joint liability between the agency and national authorities.¹²² In addition, in the realm of EU trade agreements, the absence of a horizontally applicable approach to fundamental rights clauses does not prevent convergence in the language, method, and objectives of fundamental rights clauses in different EU trade agreements. Hence, the absence of an overarching, horizontal competence to develop a fundamental rights liability framework that spans across various domains of substantive EU law in the interest of ensuring (individual) access to an effective remedy does not impede a common, albeit sectoral, approach to fundamental rights liability.

The second factor identified in this chapter that hampers effectiveness of the action for damages as a fundamental rights remedy concerns the limits to the establishment and enforcement of EU liability when the EU cooperates with Member States. This is more complex to resolve. The ideal solution is a combination of clear rules on attribution and causation that govern cooperative scenarios and a common forum to establish and enforce joint liability between the EU and its Member States. Given that the competences of the CJEU are delimited in the Treaties, the common forum is difficult to achieve. However, clear attribution and causation rules that reflect the respective fundamental rights obligations of the EU and its Member States and the interaction between them can, and should, be developed by the CJEU.

3 Evidence as Enabler – or Filter – of Actions Brought by Private Parties Directly before the EU Courts

Ljupcho Grozdanovski

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3.1 Introduction

Rarely has legal scholarship interpreted the Treaty provisions on the so-called direct actions through the lens of evidence.¹ And understandably so, as none of the relevant Treaty provisions – Articles 263, 265, and 340 of the Treaty on the Functioning of the European Union (TFEU)² – mention any specific conditions or modalities pertaining to the evidence required for the instituting of those actions. Yet evidence theory as a vantage point for the analysis of said provisions and corresponding case law may shed new light on the much-debated issue of whether, when applied, they afford a high standard of effective judicial protection to private parties.

Bearing in mind this volume’s focus on fundamental rights, the present chapter will seek to critically analyse the rationale and design of the evidentiary requirements that private litigants must meet when launching direct actions. Our aim will be to determine if those requirements enable or hinder the exercise of the right to a legal remedy, pursuant to Article 47 of the Charter of Fundamental Rights of the European Union (CFR).³ To conduct this analysis, a few preliminary, methodological observations should be made in relation to (the concept and system of) evidence in EU law. Though much can be said in this regard, our analysis will take into account two opposed points of view: the one procedural, the other processual.

From a procedural perspective⁴ (focused on the EU’s normative power to codify evidence or any kind of procedural rules), evidence does not hold a prominent place in the EU procedural law jargon,⁵ any allusion to the Union’s ‘general system’ or law of evidence having historically been viewed as oxymoronic. According to Wróblewski, such a law is a body of (ideally codified) rules and principles that answer four essential questions: How does the law distinguish between facts that require evidence from those that do not? Which evidence is admissible? How is evidence assessed? What is the role of evidence in the performance of (judicial) review?⁶ Under the guidance of Wróblewski’s criteria, a law of evidence would ideally lay down principles that regulate key points of the process of accessing, adducing, and debating evidence. These typically include the distribution of the burdens of proof,⁷ the criteria used to define relevant facts (facti probandi)⁸ and admissibility,⁹ the standards of proof,¹⁰ and the benefit from presumptions.¹¹

An overview of EU positive law reveals no trace of an instrument akin to the US Federal Rules of Evidence.¹² Indeed, the Treaties have never conferred a competence enabling the Union’s legislature to enact a ‘code’ with evidentiary principles that would apply across the areas covered by those Treaties. True, there are examples of secondary law instruments that establish sectoral systems of evidence,¹³ but those remain sporadic and minimally harmonising.¹⁴ The leading principle in the field remains that of the residual priority (and discretion) that Member States have in applying their national rules on evidence in actions brought on the grounds of EU law.¹⁵ In this context, the verdict seems clear: an EU law (or general system) of evidence does not and cannot exist.

This observation can, however, be nuanced from the second (processual) perspective, focused on the exercise, by private parties, of their so-called procedural abilities during the process of adjudication. In justice scholarship, the abilities doctrine emerged as a ‘spin-off’ from the capabilities strand, seminally developed by Nussbaum.¹⁶ Taking a ‘humanist approach’ to the concept of justice, the philosopher suggested a list of ten capabilities,¹⁷ understood as basic entitlements that humans require for a thriving and meaningful life. Translated into procedure, those capabilities took the shape of procedural abilities, understood as entitlements that litigants ought to benefit from in order to make their views known (typically before a court) and effectively participate in the (fair) resolution of their disputes.¹⁸

Mirroring Nussbaum’s capabilities list, Owusu-Bempah suggested a list of – also – ten fundamental procedural abilities: (a) understand the nature of the charge, (b) understand the evidence adduced, (c) understand the trial process and the consequences of being convicted, (d) give instructions to a legal representative, (e) make a decision about whether to plead guilty or not guilty, (f) make a decision about whether to give evidence, (g) make other decisions that might need to be made by the defendant in connection with the trial, (h) follow the proceedings in court on the offence, (i) give evidence, (j) any other ability that appears to the court to be relevant in the particular case.¹⁹

The abilities doctrine proposes a more ‘organic’, associative view of evidence and effective judicial protection. It perceives the administration of justice not only as a matter of machinal law-to-fact application but as a complex, multi-actor/stage process in which both courts and litigants participate in the fair resolution of disputes. In other words, the level of effectiveness of any system designed to afford judicial protection is largely dependent on the level of effectiveness of the parties’ involvement in the process of adjudication. In the jargon of procedural justice scholarship, this involvement is qualified as effective or ‘meaningful participation’, that is, the exercise, in a context of procedural equality (or parity), of the abilities to present and refute arguments in a formalised discourse setting such as that of a trial.²⁰

The association between evidence and effective judicial protection is not only supported by the procedural abilities scholarship but can also be inferred from the case law of the Court of Justice of the European Union (CJEU). In a legal order – like that of the EU – with a complex judiciary and system(s) of legal remedies (ideally) aimed at upholding the interpretative uniformity of EU law, principles of evidence were bound to emerge as the CJEU gradually defined the basic features of private parties’ effective participation in actions brought on the grounds of EU law (either before the national courts or before the Union Courts). From this perspective, the impossibility for a codified Union law of evidence was, in a way, compensated by principles that are functionally rooted in effectiveness and fairness and instrumentally meant to enhance the litigants’ capacity to play an active role in trials. Though it is difficult to suggest a general, clear-cut taxonomy of those principles, the sectoral Union legislation as well as the CJEU’s case law reveal roughly two families: principles that confer entitlements in support of the basic ability to give evidence and principles that regulate the distribution of evidentiary duties.

The main purpose of evidentiary entitlements is to enable litigants to gain access to relevant facts, acquire knowledge of the arguments and evidence presented by their adversaries, and have the possibility to rebut those arguments by adducing additional evidence. It is important to stress that the benefit from those entitlements should be such that any asymmetry in the parties’ access to relevant information should be avoided. This rationale of fairness expressed in the fundamental condition of equality under which litigants should access and give evidence, allows us to explain why many of the procedural entitlements pertaining to evidence have emerged as expressions of the fair trial safeguards, in particular the right to access courts, the right to effective defence, the equality of arms principle,²¹ and the principle of contradictory debate. The abilities that have thus been recognised by the CJEU include, namely, the right to unhindered access to facts²² in view of exercising the right to be heard,²³ the right to respond to allegations by adducing the evidence allowing effective defence,²⁴ the right to impartial appraisal of evidence (consubstantial to the principle of impartiality of judges),²⁵ and, in criminal procedures, the right to benefit from the presumption of innocence.²⁶

Regarding the distribution of evidentiary duties, the term ‘distribution’ should be understood as the placement, on the parties, of specific obligations to present or respond to evidentiary arguments, to adduce certain types of evidence, or to attain certain standards of proof and of persuasion. In the absence of positive law to say otherwise, the EU is a so-called free proof system,²⁷ that is, a system with no pre-established rules on who proves what, with which items of evidence, and to what extent. In this context, the basic distributary principle that regulates the allocation of burdens is actori incumbit probatio by virtue of which the initial burden to give evidence and to move forward falls on the claimant.²⁸

However, allocating burdens is not everything, since their ‘weight’ (or feasibility) is determined by a series of additional requirements that regulate the probative value and admissibility of specific items of evidence, as well as the standards of proof (e.g., preponderance of evidence or ‘beyond reasonable doubt’), which must be met for a contradictory debate to unfold based on concrete, evidence-based arguments as opposed to ‘mere’ assertions. In view of enhancing the ability of litigants to effectively present ‘their versions’ of the disputed facts,²⁹ the CJEU has established a series of requirements that define – albeit through broad brushstrokes – the ‘weight’ of the burdens of proof carried in actions brought on the grounds of EU law. The specificity of these principles is that they appear more as rational requirements rather than detailed, checklist-type prescriptions on points like relevance, admissibility, probative value, and standards of proof. The Court and its Advocates General (AG) considered, for example, that indicia cannot be taken as conclusive evidence unless they are ‘corroborated’ by additional evidence:³⁰ that, specifically in competition law, parallel behaviour is ‘strong evidence’ of a concerted practice;³¹ that any disturbance of the functioning of the Internal Market should be supported by objective³² and cogent³³ evidence; that infringements (Article 258 TFEU) cannot be supported by presumptions of non-conformity with EU law provisions;³⁴ that requests for interim measures should not be supported by ‘weak’ indirect evidence (hearsay).³⁵

This brief overview is, by no means, a detailed analysis but a canvassing of some of the key features of the ‘general system of evidence’ of the EU meant to set the stage for the remainder of this chapter. The key takeaway is the following: private parties’ ability to give evidence ought to support their effective participation in a trial and in doing so allow them to claim the benefit from the judicial protection EU law promises to provide. In other words, evidence should be an enabler of effective judicial protection, regardless of whether judicial redress is sought before national courts or directly before the Union Courts. However – as will be argued – the evidentiary requirements that litigants must meet in direct actions do not seem to follow this justice-enabling trend.

In this context, the present chapter will first discuss the interrelationship between the right to a remedy and the effective ability to give evidence (Section 3.2). Against the backdrop of this discussion, it will, second, explore the various ways in which evidence can hinder the judicial protection provided by the Treaty provisions on direct actions. In this regard, we will conduct two analyses. Our first analysis will concern the direct actions where evidentiary requirements obstruct the access to a legal remedy. This is the case in annulment and failure to act proceedings, the admissibility of which depends on the adducing of specific (and often unrealistic) evidence by private parties (Section 3.3). Our second analysis will concern the direct actions where evidence requirements limit private parties’ effective (or meaningful) participation and seeking of judicial redress. This is the case in actions for damages, which do not have clearly distinguished admissibility/substance stages (like, say, annulment proceedings) but are characterised by evidentiary requirements that are such that private litigants often experience difficulty in arguing their cause and having the judicial redress they hope to have when seeking compensation for harm causally connected to the conduct of a Union institution (Section 3.4).

3.2 The Interrelationship between ‘Effective’ Judicial Protection and the ‘Effective’ Ability to Give Evidence

Notwithstanding the references to effectiveness in the Treaties and the CJEU’s case law, a clear definition of this concept is lacking. In a generic sense, it can be understood as a standard³⁶ applied in the assessment of the capacity of national or Union measures to ensure the proper legislative, administrative, or judicial implementation of EU law. To further clarify the meaning of this standard and how it relates to ‘effective’ judicial protection, as well as to the ability to give evidence, we will address two questions. First, on the issue of scope: In a given procedure, does effectiveness apply only to the modalities that enable the access to a remedy, or does it also extend to the modalities according to which evidence is given and assessed? Second, on the issue of uniformity: Does the principle of effective judicial protection generate the same requirements of effectiveness for the systems of procedures of the Member States and that of the Union?

To answer these questions, a few preliminary observations should be made. A cursory overview of the CJEU’s case law does not reveal rigid criteria that could be used to ‘measure’ the effectiveness of a national or Union measure implementing an EU law provision. It does seem, however, that effectiveness is an outcome-oriented notion: a measure is ‘effective’ so long as it does not compromise the attaining of the objectives the Treaties assign to the Union. Prodifarma (dealing with an issue of collective dominance) can be mentioned as an example of a case where the Member States’ compliance with Article 102 TFEU (prohibition of abuse of dominance)³⁷ was interpreted as also implying their compliance with the Union’s general objectives, in particular effective competition in the Internal Market. This approach of viewing specific Treaty provisions (such as Article 102 TFEU) as particularising general Union objectives (listed in Article 3 TEU)³⁸ is, in a way, the Union Courts’ ‘signature reasoning’ when it comes to ensuring the full effet utile (and by that, full effectiveness) of Union law.³⁹

Scholarship has labelled this outcome-oriented notion of effectiveness as substantive, essentially translating to ‘the capacity of chosen legislative patterns in obtaining results that are as close as possible to realizing the ideal expressed by the political actors, considering the context of operation’.⁴⁰ In the context of EU law, the ultima ratio of substantively effective EU law provisions is, of course, the full guarantee of entitlements (rights and duties) that private parties derive from those provisions. The reasoning behind this effectiveness–rights correlation is fairly straightforward: only when an EU law provision is ‘effective’ can the benefit from the rights it confers to individuals be ‘effective’ as well. It can even be argued that there is an ‘in the law we trust’ presumption by virtue of which Union law provisions invariably provide the most adequate possible safeguards to individuals. This is, arguably, why EU law provisions benefit from ‘strong’ (i.e., not easily rebuttable) presumptions of legality and validity:⁴¹ because of those provisions’ potential to be rights-giving, all subjects of Union law (including private parties) ‘must acknowledge the full effectiveness of legislative acts of the institutions so long as neither the Court of Justice nor the [General Court] has found them to be illegal’.⁴²

To concretely uphold substantive effectiveness, procedural means were, of course, needed, in order to allow individuals to practically (and effectively) claim the benefit from their rights. In Van Gend & Loos, the Court stressed that ‘the vigilance of individuals concerned to protect their rights amounts to an effective supervision … of the Member States’.⁴³ The judicial protection afforded under Union law is usually considered as ‘effective’ if private parties have access to legal remedies that allow them to launch actions on the grounds of Union law provisions. Indeed, the access to a remedy has been historically considered as the procedural guarantee associated with the principle of effective judicial protection – a canon seminally given in Rewe⁴⁴ and Johnston.⁴⁵

But from the perspective of procedural abilities – this chapter’s theoretical vantage point – the Court’s long-standing case law on the principle of effective judicial protection leaves open the first question this section seeks to answer: Does the standard of effectiveness in ‘effective judicial protection’ apply only to the access to remedies or does it also extend to the parties’ ability to adduce evidence?

The standard view⁴⁶ has indeed been narrow: judicial protection has been thought to be ‘effective’ when (usually national) systems of procedures made remedies available for actions brought on the grounds of EU law. Seldom has effective judicial protection been connected, in any important way, to the private parties’ abilities to give evidence. This is, namely, due to a dissociation between the right (to a remedy) and the entitlements and/or requirements to give evidence for the purpose of exercising that right. Take Factortame,⁴⁷ for instance. The CJEU stressed that UK law ought to make available interim measures for actions based on EU law because ‘the full effectiveness of Community law would be … impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law’.⁴⁸ However, the ‘full effectiveness’ referred to in this case did not extend to requirements on evidence that the claimants were held to meet, the assumption being that the ‘evidentiary technicalities’ would, in any case, be defined by national law.

Of course, there have been cases where rules on evidence were sanctioned by the CJEU for having failed the ‘effectiveness test’. However, these are cases where said rules did not directly obstruct private parties’ access to a remedy but restricted the benefit from rights other than the right to a remedy. Famously in San Giorgio, the Court rejected an Italian rule that made the repayment of charges levied contrary to Union law conditional on documentary evidence that those charges had been passed on to consumers.⁴⁹ The Court considered that ‘any requirement of proof which has the effect of making it virtually impossible or excessively difficult to secure the repayment of charges levied contrary to Community law would be incompatible with Community law’.⁵⁰ Similarly, in Otero Ramos, the Court sanctioned an irrebuttable presumption of veracity of an employer’s declaration on the working conditions of female workers, since that presumption deprived ‘of all practical effect’ the principle of equality between men and women.⁵¹

Based on these trends, two observations can be made. First – in a negative sense – cases like San Giorgio and Otero Ramos suggest that effectiveness limits the Member States’ procedural autonomy in the field of evidence when national rules of evidence adversely affect the benefit from a subjective right conferred by a Union law provision. Second – in a positive sense – the implication from this case law is that a system of evidence ought to support (or enable) the benefit and exercise of any such right, including the right to access a remedy.

The abilities doctrine as a theoretical framework for this chapter supports this view: a rule of evidence that sets out, say, practically unfeasible admissibility conditions would – unsurprisingly – make a private party’s access to a remedy difficult. The structure of Article 47 CFR also supports the association between the right to a remedy and the ability to give evidence as it seems to rely on a holistic view of the concept of ‘procedure’: the latter is not only limited to remedies stricto sensu but also includes procedural entitlements that allow litigants to access and participate in the proceedings those remedies give way to. As per Article 47(2) CFR, these entitlements are expressed in the fair trial safeguards, that is, fair and public hearing, reasonable time, independent and impartial tribunal, and the assistance of a legal counsel. As argued earlier,⁵² most of the Union’s ‘general’ entitlements (or procedural rights) in the field of evidence have been derived by the CJEU from the right to a fair trial. The merging of the right to a legal remedy (Article 47(1) CFR) with the fair trial safeguards (Article 47(2) CFR) in a single constitutional provision gives an important hint for the remainder of this chapter: it does matter if, in addition to having the legally recognised ability to access a remedy, private parties also have the necessary procedural abilities to practically access and exercise that remedy.

Though this holistic reading of the principle of effective judicial protection is unorthodox, it has been endorsed by a part of scholarship. Wildemeersch, for instance, suggested that effective judicial protection as a principle should be understood lato sensu, that is, not only as defining a standard of effectiveness for the right to access remedies and courts but also as defining all the components of systems of remedies,⁵³ including the procedures designed for the adducing of evidence. Alternatively, he interpreted the right to a legal remedy stricto sensu as referring ‘only’ to the right to access courts.⁵⁴ Recent case law also supports this ‘holistic view’. In the Steffensen⁵⁵ case, for example, the issue addressed by the Court was whether the Foodstuff Directive⁵⁶ entitled a manufacturer to request a second opinion after an initial investigation procedure had taken place, during which samples had been collected from that manufacturer’s retailers and found non-conforming with the German legislation. The claimant argued that the German fact-finding procedure was improper since it did not allow them to express their views or present their own evidence, thus infringing their right to a fair hearing. From the perspective of the CJEU’s ‘standard’ case law on effectiveness, the Court’s ruling was unsurprising: it stated that the Directive might (not ‘should’) provide the basis for a second evidence-gathering procedure, if the national court found that the German rules on evidence were incompatible with the principles of equivalence and effectiveness.⁵⁷ However, from the perspective of the procedural entitlements associated with effective judicial protection, the Court’s reasoning is noteworthy because it seems to suggest that the availability of legal remedies is not the only such guarantee that stems from this principle. The latter also includes entitlements pertaining to evidence gathering and assessment, considering the importance – stressed by the Court itself – that private parties be given ‘adequate opportunity to participate in the proceedings before the court’,⁵⁸ these proceedings being ‘considered as a whole, including the way in which evidence was taken’.⁵⁹

Assuming – as we do – that the principle of effective judicial protection implies a holistic reading of the term ‘procedure’, the second question, raised in this section, remains yet to be answered. Indeed, the cases mentioned all deal with the effectiveness of national systems of procedures and remedies. This begs the question of whether the effectiveness requirements the Court has defined in connection to those systems do, or should also, apply to the system of remedies in the Treaties. In other words, is there a uniform standard of effectiveness that both the Member States’ and the Union’s systems of procedures should aspire to achieve?

With the entry into force of the Lisbon Treaty, Article 47 CFR – a primary law provision – was interpreted by the CJEU as ‘a reaffirmation of the principle of effective judicial protection’.⁶⁰ Given the constitutional nature of this article, it is reasonable to assume that the standard of effectiveness it implies concerns the Member States’ and Union’s systems of procedure alike. This would suggest that, much like the requirements under national systems of remedies, the requirements framing private parties’ access to the direct actions should not make that access ‘virtually impossible or excessively difficult’. Article 47 CFR thus supports an argument in favour of uniformity.

In pre-Lisbon times, savant minds would presumably not view this argument as convincing, given that the contours of the principle under consideration have been canvassed in the Court’s case law primarily dealing with the Member States’ systems of legal remedies. Post-Lisbon, a subtle trend toward uniformity was detected by Wildemeersch,⁶¹ who observed the Court’s increasing tendency to rely on Article 47 CFR in lieu of the ‘usual’ effectiveness/equivalency test when seeking to determine if national systems of remedies succeeded in meeting the effectiveness requirement.⁶² It is tempting to interpret this trend as a sign of standardisation (or standard-shifting) of the level of effectiveness associated with the judicial protection afforded by both national and the Union’s systems of remedies. But this trend does not yet seem to be consolidated. In Randstad Italia,⁶³ for example – in essence, dealing with the availability of remedies enabling the Italian judiciary Supreme Court to review the decisions of the administrative Supreme Court – Advocate General (AG) Hogan⁶⁴ examined Italy’s procedural autonomy under Article 47 ECFR, but the CJEU referred (back) to its tried-and-true effectiveness/equivalency test.⁶⁵

The debate on the uniformity of the standard of effectiveness (stemming from the principle of judicial protection) is multi-faceted, complex, and beyond the scope of this chapter. May it suffice positing the following: rather than a proper (binding) constitutional requirement, this type of uniformity appears to be an aspirational ideal for the Members States’ and Union’s systems of remedies (and by extension, of evidence). It is reasonable to assume that the procedural abilities that private parties should have in national systems of procedure ought to be equivalent to those that are guaranteed in the context of direct actions. However, as our further discussion will show, though the national and Union’s systems of remedies converge in their finality (i.e., affording judicial protection to individuals) they strongly diverge in the procedural means through which they seek to attain that finality. The result of this divergence is a selective, rather than uniform, application of the standard of effectiveness associated with the principle of effective judicial protection.

3.3 The Requirements on Evidence Restricting the Effective Access to a Remedy in the Context of the Legality Review

3.3.1 The Heavy Burden of Proving Standing in Annulment and Failure to Act Proceedings

If Article 263(4) TFEU was read as defining a system of evidence, the key point it would define – albeit broadly – would be that of relevance,⁶⁶ laying down the basic criteria of the factum probandum, that is, the fact(s) for which evidence is sought for the action to be declared admissible. The admissibility probandum in annulment actions launched by private parties against Union acts not addressed to them consists of two relevant facts: direct and individual concern. As is well known, the CJEU clarified the features of those facts in the Plaumann case,⁶⁷ dealing with a German clementine importer who challenged the legality of a Commission decision addressed to Germany, allowing for the maintenance of import duties on clementines from non-Member States. The applicant considered that they met the direct/individual concern requirements because the total number of importers of clementines was small and easily ascertainable. In this case, the Court famously discussed only individual concern as, having found it lacking, it considered that there was no need to address the direct concern criterion. However, the latter was discussed by AG Roemer, who strongly criticised the applicants’ views of directness ‘as no more than a measure of the strength of the interest’, frustrating the raison d’être of Article 263 TFEU, which – the AG argued – ‘must be understood in a particular way from the system of the Treaty and the structure of the Community order … [and its] organisation of legal protection’.

It is interesting to note that AG Roemer’s reasoning on direct concern was developed against the backdrop of the Union’s ‘federal structure … a situation in which the [Union] institutions are raised above national courts with powers which in part have direct effects in the sphere of the Member States but in part are limited and in realizing specific aims require cooperation of Member States’.⁶⁸ The reference in the AG’s Opinion to the ‘ontological grounds’ of Article 173 of the Treaty Establishing the European Economic Community (TEEC, currently Article 263 TFEU) is telling since directness within the meaning of this article echoes the direct effect doctrine, established in Van Gend & Loos⁶⁹ a few months prior to the Plaumann ruling. Although direct concern and direct effect are separate concepts, they serve the same normative purpose, that is, the judicial protection of private parties before national courts, under the direct effect doctrine, and before the Union Courts, under the direct concern requirement. Because of this, they share a common evidentiary requirement: for either to be established, litigants are held to show the absence of mediation between themselves and the applicable EU law provisions. This ‘absence of mediation’ (or immediacy)⁷⁰ translates to proof of absence of discretion – namely from the Member States – in the implementation of EU law provisions.⁷¹

In this context, and considering that in Plaumann the implementation of the contested decision required that Germany take the necessary measures (and therefore exercise discretion), the direct concern leg of the probandum was ultimately not considered as established.⁷² With this reading of Article 173 TEEC the canon was set: in its subsequent case law,⁷³ the CJEU would systematically seek to determine if a Union provision had, without any type of institutional or normative mediation, directly affected or altered the legal situation of the applicant. This ‘test’ of direct concern was applied talis qualis in failure to act proceedings. For example, the omission by the Commission to amend an approved national programme on vocational training was found not to directly affect the legal position of a private party applicant, considering the extent of national discretion in the implementation of that programme.⁷⁴ Similarly, given the level of discretion of the European Commission in the context of infringement proceedings, its refusal to respond favourably to an invitation to launch such proceedings could not provide sufficient grounds for the author of the invitation to establish direct concern.⁷⁵

It was, however, on the proof of individual concern that the Plaumann case gave the apex evidentiary requirement in (and presumably the strongest procedural ‘filter’ of) annulment actions launched by private parties. In this regard, AG Roemer stressed – again, sharply – that the limited number of clementine importers ‘cannot be decisive’⁷⁶ since individual concern does not arise from the individuality of particular persons but ‘from membership of the abstractly defined group of all those who wished to import clementines during the period in question’.⁷⁷ The Court took an even stricter stance, asserting that a person is individually concerned by a decision not addressed to that person if it affects them ‘by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed’.⁷⁸

This interpretation provided the normative understanding of individual concern as being an extremely high level of individuation, the applicant’s ‘particular features’ or ‘circumstances’ having become facti probans (facts that prove the probandum) necessary to establish that they are, in actuality, the addressees of a Union act formally not addressed to them. In this context, merely showcasing some distinguishing personal features (like a limited number of addressees) is not enough. A cursory overview of the CJEU’s case law shows that the desired level of individuation is proven to the satisfaction of the Court when two criteria are met. First, the applicants must establish factual individuation: they must prove that in fact (i.e., by virtue of specific characteristics) the circle of addressees of a contested act is identified, identifiable, and closed. Second, this factual individuation is paired with – what can be qualified as – normative individuation: the applicant should be singled out by virtue of the legal effects produced by the contested act, not by the characteristics of the market concerned.⁷⁹ Needless to say, establishing these two versants of individuation has proven to be challenging.

What is more, those requirements were transposed to failure to act proceedings, though, in the latter, applicants face the added challenge of supporting, with evidence, an ex hypothesi argument. Namely, under Article 265 TFEU, they carry the (heavy) burden of proving that, had an act been adopted, it would have been of individual concern. For instance, the existence of a sufficient relationship of competition between an applicant and a recipient of State aid, which the former had invited the Commission to investigate, was viewed by the General Court as a circumstance warranting sufficient individuation.⁸⁰ In contrast, in Edinger,⁸¹ the refusal by the Commission to request the withdrawal of bilateral measures taken by the EU Member States vis-à-vis Austria during its Haider episode did not, in any way, individualise the applicant.⁸²

A common characteristic in the cited cases is the level of austerity on the part of the EU Courts in assessing the applicants’ arguments of direct and individual concern: establishing the admissibility probandum under Article 263(4) TFEU and, by extension, Article 265 TFEU seems to be the exception rather than the rule. The question which then arises is whether, under those provisions, private parties are not required to adduce a so-called probatio diabolica: evidence that is formally admitted but practically difficult or impossible to adduce. For a legal order priding itself on its ‘complete system of procedures’ and its strong commitment to a high standard of judicial protection afforded to private parties, this is surprising. The surprise is even greater when one considers some of the CJEU’s cases where the Court did not hesitate to sanction national rules on evidence that placed unrealistic burdens on private parties, thus restricting their ability to effectively benefit from the rights they derived from Union law. The abovementioned San Giorgio⁸³ and Otero Ramos⁸⁴ come to mind in this regard.

The CJEU’s selective reading of private parties’ evidentiary abilities afforded under national and Union systems of remedies is open to criticism. This reading is of course alarming, especially in cases where a claimant might argue that a Union act is illegal because it infringes on a fundamental right other than the right to a remedy. In Jégo-Quéré,⁸⁵ for instance, dealing with the annulment of a regulation defining the size of fishing boats and the types of fishing nets used for the fishing of juvenile hake, the applicant was – arguably – the only fishing company to have vessels and nets covered by the contested act. It had nevertheless failed to establish the specific ways in which that act individualised it from any economic operator actually or potentially in the same situation.⁸⁶ Bearing in mind the CJEU’s case law on the effectiveness of national procedural rules, it is reasonable to assume that if said act was a national regulation, the Court would have no doubt found that it restricted, say, the applicant’s right to conduct business, as guaranteed by Union law.

Of course, the CJEU’s rigour in assessing the proof of individual concern has not always amounted to declarations of inadmissibility. In Codorníu,⁸⁷ for example, dealing with a regulation allowing only French and Luxembourg producers of sparkling wine to use the Grand Crémant label – the Court considered that the applicant, a Spanish producer of sparkling wine, had succeeded in establishing the existence of a situation that ‘from the point of view of the contested provision differentiates [them] from all other traders’.⁸⁸ It remains, however, that, more often than not, private parties fail to pass the admissibility test of Article 263(4) TFEU because the burden they carry is simply too heavy. In reaction to this, pleas have been made to relax those evidentiary requirements and increase the effectiveness characterising private parties’ access to a legality review. Alas, the protection of the right to a legal remedy, but also other fundamental rights, have often been the leitmotivs of these – often disregarded – pleas.

3.3.2 Pleas to Lighten the Burden to Prove Standing in Annulment and Failure to Act Proceedings

Chronologically, there have been two types of plea for the lightening of the admissibility burden in the context of the legality review. The plea based on the right to access a remedy came first and is procedural in nature (that is, pertains to the normative design of the system of evidence in annulment and failure to act proceedings). The criticism here was that the Court’s austere application of the Plaumann criteria raised an almost insurmountable barrier obstructing private parties’ direct access to the Union Courts.

The more recent, second plea is based on those parties’ procedural abilities and is processual in nature (that is, pertains to the modalities according to which litigants give evidence in the context of the legality review). The criticism here is that the conduct of the Union institutions in making evidence unavailable to litigants restricts their ability to prove standing under Article 263 (and by extension, 265) TFEU.

Regarding the ‘procedural’ right to a remedy strand, the emblematic example is, of course, the UPA Opinion⁸⁹ in which AG Jacobs famously suggested a redefinition of the individual concern probandum: in lieu of proving the (excessively high) degree of individuation discussed earlier, the AG suggested that the applicant establish a ‘substantial adverse effect on [their] interests’ that the challenged measure has or is liable to have.⁹⁰ This Opinion was not followed by the CJEU who, in its ruling,⁹¹ considered that the failure to meet the Plaumann criteria did not restrict the otherwise ample opportunity for litigants to seek judicial protection via other procedural routes.⁹² But the Court missed the point of AG Jacobs’ Opinion, which did not suggest altogether eliminating the individual concern probandum but to – merely – ‘lighten’ the burden it entails, in view of facilitating private applicants’ effective access to a remedy.⁹³ True, Article 267(3) TFEU provides an alternative to Article 263 TFEU through the involvement of the Member States’ courts, but the coexistence of two remedies conducive to the same type of review does not justify the fact that one of them is virtually impracticable.

A step toward the ‘lightening’ of the direct/individual concern burden was thought to be made with the entry into force of the Lisbon Treaty. Article 263(4) TFEU eliminated the proof of individual concern in actions seeking the annulment of regulatory acts not requiring implementing measures. However, a reading of Article 263 TFEU from the perspective of evidence might suggest that it, in fact, created two burdens, corresponding to two distinct types of normative acts. For general legislative acts, claimants continue to carry the ‘standard’ Plaumann burden of proving direct and individual concern. For actions concerning self-executing regulatory acts, the duty to prove individual concern was indeed eliminated, though it is not certain that this translated into a considerable lightening of the overall burden to prove standing. Regulatory acts being a new category introduced with, but not defined in, the Lisbon Treaty, the launching of annulment proceedings against those would require proof that (i) an act is, indeed, regulatory (as opposed to legislative);⁹⁴ (ii) it does not require implementation measures; and (iii) it is of direct concern to the claimant. The possibility for litigants to avoid proving individual concern was understandably attractive, though in practice Article 263(4) TFEU was ultimately not the ‘effectiveness booster’ it was expected to be with the entry into force of the Lisbon Treaty. A cursory overview of the CJEU’s case law reveals that the Court has seldom qualified an act as both regulatory and self-executing, often finding that the acts applicants argued were regulatory relied on implementing measures.⁹⁵

Regarding the processual abilities strand, the recent Nord Stream 2 case is a noteworthy example.⁹⁶ A Swiss gas company challenged a 2019 directive amending provisions of the 2009 so-called Gas Directive.⁹⁷ The applicant brought an annulment action against the 2019 act before the General Court,⁹⁸ which was dismissed for lack of proof of direct concern. The appeal before the Court of Justice included two grounds: first, the appellant argued direct concern although the directive had not yet been transposed, implying that it had not deployed its legal effects likely to ‘directly’ affect the applicant’s situation. This of course raised the issue of the interpretation of the direct concern probandum when the contested act is a directive, by definition requiring the Member States’ intervention to be transposed into national law.

The first ground of appeal raised a very clear issue in connection with the right to a remedy, the main question being whether annulment proceedings are, in practice, impossible to launch when they concern a directive (i.e., a general act) which – to further complicate matters – has not yet been transposed into national law. The obstruction to the right to a remedy in such a case is obvious: given the general nature of directives and the need for implementation measures, it is reasonable to assume (in light of the CJEU’s case law) that, try as they might, private parties would never be able to establish direct concern.

The second ground of appeal raised an interesting evidentiary issue. Curiously, during the procedure before the General Court and based on Article 130(2) of the CJEU’s Rules of procedure,⁹⁹ the Council withdrew three documents for which the appellant requested disclosure of their unredacted version. This raised the issue of the equality of arms principle – a fair trial safeguard – in the sense that the Council’s withdrawal of items of evidence affected the appellant’s knowledge of facts necessary to express their views throughout the procedure (i.e., admissibility and substance).

On the first point, AG Bobek virulently opposed the systematic inadmissibility of annulment proceedings brought against not-yet-transposed directives. He stressed that this can ‘hardly be reconciled with the right to an effective remedy which Article 47 [ECFR] ensures to everyone … and with the freedom to conduct a business and the right to property, recognized in respectively 16 and 17 of the Charter’.¹⁰⁰ The CJEU followed the AG’s Opinion, stating that for directives, the fact that transposition measures have not yet been adopted ‘is not, in itself, relevant since they do not call into question the direct nature of the connection between that directive and its effects [on individuals]’.¹⁰¹ The possibility to establish direct concern in such cases was laudably admitted in the name of effective judicial protection.

On the second point, the request to disclose evidence was examined through the prism of a right to access documents issued by the Union institutions, governed by Regulation 1049/2001.¹⁰² Although the EU legal order is governed by the principle of freedom of proof, with no general rules on the admissibility of evidence,¹⁰³ AG Bobek cautioned against considering said regulation as a ‘go-to’ instrument when issues on the access to and admissibility of evidence in annulment proceedings arise. Instead, he suggested that those issues be addressed from the perspective of (here again) the right to effective judicial protection: ‘[T]he rules on evidence seek to ensure the proper administration of justice, enabling the [CJEU] to carry out its mission under Article 19 TEU. The overarching aim is to guarantee to everyone the right to an effective remedy enshrined in Article 47 of the Charter.’¹⁰⁴ Against this backdrop, the Court would need to assess how the admissibility or non-admissibility of certain types of evidence is likely to affect the economy of procedure, the fairness of the proceedings, and the respect for the rights of the defence.¹⁰⁵ Again, the CJEU’s ruling converged with the AG’s Opinion. The fundamental principles of evidence in EU law should be interpreted so as to allow the assessment of the ‘reasonable opportunity’ of the applicant to present their case ‘including his or her evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent’.¹⁰⁶

In the context of the CJEU’s standard case law on the direct and individual concern probandum, Nord Stream 2 brings some hope. It seems to be in line with the broad understanding of effective judicial protection we suggested earlier in this chapter:¹⁰⁷ the effectiveness of the judicial redress offered to private litigants under Article 263 and Article 265 TFEU should go beyond the ‘mere’ issue of access to a legal remedy, extending to the (evidentiary) modalities according to which those remedies can, or should be accessed. This is an important point to stress because Nord Stream 2 is one of the rare cases where the admissibility and substance of an action for annulment against a general Union act was assessed in connection with the applicant’s ability to give evidence. This increased awareness of the importance of evidence might – dare we hope – trigger a more procedural abilities–oriented interpretation of Articles 263 and 265 TFEU.

Such a shift would be welcomed because it would allow applicants to argue that any restriction on their ability to give evidence might also restrict their right to a remedy, as well as other rights enshrined in the Charter. The interconnectedness between procedural abilities to give evidence and fundamental rights has been typically associated with the CJEU’s economic sanctions case law. In Kadi, for instance,¹⁰⁸ the contested measure instituted a freezing of funds that infringed the applicant’s right to property. To establish that infringement, they of course required that evidence be disclosed (by the Council) on the reasons underlying that sanction. Similarly, in Nord Stream 2, the proof of the violation of the right to conduct business depended on the applicant’s ability to both demonstrate standing and have access to the documents the Council had decided to withdraw. The analogy between Nord Stream 2 and the Kadi case law is apparent: in both cases, it was the access to evidence that dictated, to a large extent, the success of the arguments pertaining to the violation of fundamental rights as the core issue of the debate on the substance of the proceedings. However, the specificity of Nord Stream 2 is – again – that this access was recognised in relation to a general Union measure, as opposed to the individual acts instituting economic sanctions, by definition destined for specific groups of addressees.

It is too early to tell if Nord Stream 2 will become a trend-setting case on the interrelationship between evidence and standing/substance in annulment actions brought against general Union acts. While we wait for new developments in the Court’s case law, the Plaumann austerity does not seem to have been relaxed. The reason for this is – what can be seen as – the Court’s (over)protective attitude toward secondary Union law, the rationale that emerges being that legality should be the norm, illegality the (rare) exception. If we were to place procedural entitlements (access to evidence, feasibility of evidence, equality of arms, contradictory debate) and the presumed legality of EU law on a balance, the scales would clearly tip in favour of the latter, which begs the question of whether direct actions are a notable exception to the standard of effectiveness that Article 47 CFR seems to uphold (in paragraphs 1 and 2). The answer seems to be ‘yes’ and our discussion of the system of evidence under Article 340 TFEU (non-contractual liability) gives additional confirmation of this.

3.4 The Requirements on Evidence Restricting the Litigants’ Effective Participation (and Ability to Seek Judicial Redress) in Actions for Damages

Like the actions conducive to a legality review, the evidence in non-contractual liability proceedings seeks to establish unlawfulness in the conduct of a Union institution having resulted in the suffering of harm by a private party. However, unlike the Treaty provisions on illegal acts or omissions – which provide minimal information on the admissibility conditions (and corresponding burdens) applicants must satisfy – Article 340 TFEU¹⁰⁹ makes no mention of private parties nor of evidence but merely states that ‘the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’. Presumably, this Article would require some proof of causation,¹¹⁰ but its wording alone does not allow us to clearly map out the relevant facts that litigants ought to establish in order to have standing when seeking compensation for a harm caused by a Union institution or civil servant.

Charged with the task of conceiving the overall design of the system of evidence in non-contractual liability actions, the CJEU drew a parallel with the system of evidence applied in the field of State liability. Referring to the conditions set out in Francovich¹¹¹ and consolidated in Brasserie du Pêcheur,¹¹² in Bergaderm,¹¹³ the Court stressed the importance of – what can be qualified as – structural¹¹⁴ uniformity of both the Union’s and the Member States’ liability regimes, by reiterating – as already stated in Brasserie¹¹⁵ – that the conditions for non-contractual liability of both cannot differ.¹¹⁶ In light of this, the system of evidence¹¹⁷ applied in State liability provided the template for the system of evidence of the EU’s non-contractual liability. However, the burdens and relevant facts for each leg of the facts to be proven (unlawful conduct, harm, causation) were yet to be defined.

Regarding the proof of sufficiently serious breach, applicants are required to establish a violation of a norm by a Union entity (institution, agency, civil servant, etc.) that can qualify as a rule of law intended to confer rights on individuals.¹¹⁸ The practical issue of what exactly that evidence entailed was raised early on. An initial clarification was given in Kampffmeyer,¹¹⁹ where the CJEU stressed that the claimants needed to establish a ‘wrongful act or omission capable of giving rise to liability on the part of the [Union]’.¹²⁰ The concept of ‘wrongful act’ was to be understood as an ‘unlawful act’, not to be found ‘in a mistaken evaluation of the facts but in [a] general conduct which is shown clearly by the improper use made of [an EU law provision]’.¹²¹ In its subsequent case law, the Court further clarified the relevant facts that could establish an ‘improper use of an EU law provision’. In Bergaderm,¹²² it seminally considered that the ‘decisive test’¹²³ for determining whether a breach of Union law was sufficiently serious required evidence that a Union institution had manifestly and gravely disregarded the limits on its discretion.¹²⁴ Where a Member State or a Union institution has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach.¹²⁵

By defining the features of the breach of Union law that was the original cause of a harm, the CJEU brought some clarity on the otherwise laconic wording of Article 340 TFEU. However, grey areas persisted in terms of the litigants’ practical ability to adduce the evidence according to the Court’s requirements. For example, the Court did not list the criteria that would allow litigants to distinguish cases where the Union enjoyed broad discretion from cases where this discretion was minimal or non-existent. It is in the case law following Bergaderm that we can discern certain criteria used by the Court in its appraisal of the manifest and grave disregard of the limits of an institution’s discretion. The key criterion in this regard was the level of discretion warranted by the rule of law infringed,¹²⁶ along with the complexity of the situation to be regulated, the difficulties in the application or interpretation of the legislation, the clarity and precision of the rule infringed, and whether the error of law made was inexcusable or intentional.¹²⁷

The merit of these clarifications notwithstanding, it remains the case that in practice we detect a tendency by the Court to interpret the evidentiary requirements as filters rather than ‘enablers’ of actions for compensation brought by private parties. A key reason for this is the Court’s limited review of the extent of the institutions’ discretion. In general, the Union Courts have seldom considered there to be a ‘manifest and grave disregard’ of the limits of institutional discretion in liability claims, when those claims pertained to normative choices made for the purpose of implementing common policies.¹²⁸ The standard formula in such cases is that the EU legislature ‘enjoy broad discretion in those cases in which it has to evaluate a complex economic situation’, which is not limited solely to the nature and scope of the measures to be taken but also ‘to the finding of basic facts’.¹²⁹ The implication from this limited judicial review is that, as a matter of principle, the institutions are – again – presumed to act within the limits of their powers, any disregard of those limits being perceived as a rare exception. However, the impact of this presumption on the claimants’ procedural abilities under Article 340 TFEU is that they were and continue to carry a burden that is quite heavy, the proof of ‘unlawful’ exercise of normative discretion needing to be such that it strongly (and exceptionally) justifies the rebuttal of said presumption.

Similar observations can be made regarding the evidence of the harm suffered. In this regard, applicants are required to show that they were ‘particularly harmed or harmed in a different way and much more seriously than all other economic operators’.¹³⁰ In other words, the harm should not be the result of risks that go beyond the normal hazards – whatever ‘normal’ is – in a given sector (say, international trade).¹³¹ It goes without saying that proving the abnormality of a harm suffered is a difficult task, especially when a claimant seeks compensation for an imminent harm, which ought to be established with sufficient certainty.¹³²

But even for harm that has already materialised, proving its special or abnormal nature is far from reasonably feasible. The T-Port case¹³³ provides a telling example of this. Following a Regulation on the organisation of the banana market in the EU, a German importer sought compensation for the damage suffered by reason of their obligation to buy export licences in order to commercialise bananas from third countries in Germany. The General Court¹³⁴ declared the action inadmissible due to the lack of the ‘indispensable evidence’¹³⁵ by which the applicant would prove the amount they actually paid in exporting bananas from certain third countries. As evidence of harm, the claimant had provided an auditor’s certified statements, which the General Court viewed as inconclusive.¹³⁶ Moreover, the applicant ought to have taken greater care to communicate information on various points because ‘the Commission expressly drew the applicant’s attention to the fact that such information was essential if the existence and extent of the damage alleged were to be established’.¹³⁷ In the appeal brought before the CJEU, the Court’s judgment was in line with that of the General Court, as far as evidence was concerned. The Court, indeed, stressed that by basing the action on the fact that costs were incurred, the applicant ‘had not adduced sufficient proof of having actually sustained loss’.¹³⁸ Considering that the existence and extent of the alleged damage was not established, and given the lack of sufficient evidence to show any direct causal link between the unlawful conduct and the harm suffered, the action was dismissed.

Similarly, in Dole Fresh Fruit International,¹³⁹ an importer of fresh fruit brought an action for damages by reason of the adoption of a Council Decision and Regulation. The defendants argued that the applicant ‘has not adduced sufficient evidence of the existence and extent of the alleged loss or the existence of the causal link between the unlawful conduct [and] that loss’.¹⁴⁰ However – and interestingly – the General Court defined those standards through the aptitude of the claimant’s evidence to enable the exercise of the right to effective defence.¹⁴¹ The Court required ‘for the basic legal and factual particulars relied on to be indicated, at least in summary form, coherently and intelligibly in the application itself’.¹⁴² To this end, the applicant must ‘set out the evidence from which the [unlawful conduct] can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered and the nature and extent of that damage’.¹⁴³ In this case, the General Court considered that the applicant did provide a sufficient description of the nature and the extent of the alleged harm, the conduct that caused it, and the causal link between the two. But the action was ultimately dismissed because the applicant had – unsurprisingly – failed to establish the manifest and grave disregard of the limits of the discretion that the defendant institutions enjoyed.¹⁴⁴

The practical difficulties in adducing the abovementioned evidence did not push the Court to reconsider the evidentiary requirements pertaining to the serious breach probandum. One might argue that claimants ought to have a right to compensation whenever they suffer a harm caused by an institution’s conduct, be it legal or illegal. This issue was raised in FIAMM.¹⁴⁵ The applicants in this case suffered harm due to a lengthy dispute, within the WTO, between the United States and the EU, on the commercialisation of bananas. They stated that the infringed rule of law was not a Union provision but one of international law, in particular the pacta sunt servanda principle, arguing that, by violating this principle, the EU institutions had failed to comply with their obligations under the WTO agreement. Since the Union Courts do not have jurisdiction to assess the lawfulness of the institutions’ conduct under WTO rules, and considering that the claimant had failed to prove the unlawfulness of said conduct under EU law, the action was prima facie inadmissible.

However, the General Court went on to determine if the harm suffered could be compensated in the absence of unlawful action, when there is evidence showing a causal link between that harm and the conduct of the Union institutions. The General Court thus stated that the absence of proof of unlawful conduct does not mean that undertakings that are required to bear a ‘disproportionate part of the burden resulting from a restriction of access to export markets can in no circumstance obtain compensation by virtue of the [Union’s] non-contractual liability’.¹⁴⁶ The General Court’s daring attempt to redesign the system of evidence in liability proceedings was justified by the general principles common to the laws of the Member States, which do not systematically require proof of unlawfulness as a determining cause of a given harm.¹⁴⁷

Much like the UPA case¹⁴⁸ in annulment proceedings, FIAMM can be interpreted as a plea for the lightening of the burden of proof in actions for damages, by disregarding the requirement – resulting from the case law, not the wording of Article 340 TFEU – that unlawfulness is a mandatory probandum that applicants must establish. The analogy with UPA is of course not total. In FIAMM, the ‘lightening’ of the onus probandi was not directly motivated by the right to access a remedy. It was, however, indirectly so. Maintaining the condition to establish unlawful conduct, on the part of the EU’s institutions, as the determining cause for a harm would mean that private parties do not have a legal remedy available to seek compensation for harm resulting from prima facie lawful conduct. The General Court’s ruling in FIAMM would have been in line with the right to a remedy since it would have broadened the procedural abilities of litigants in seeking compensation for harm causally related to a Union institution (having acted lawfully or not).

However, in the appeal,¹⁴⁹ the Court marked a return to the Brasserie du Pêcheur/Bergaderm orthodoxy, (re)asserting that the proof of sufficiently serious breach invariably required the establishing of illegal conduct of a Union entity.¹⁵⁰ The Court’s unwavering interpretative orthodoxy of claimants’ evidentiary duties under Article 340 TFEU mirrors its ‘clinging’ to the Plaumann criteria in the context of annulment proceedings: notwithstanding the difficulty in attaining the standard of proof required in liability actions, the CJEU ultimately refused to lighten the burden of proving serious breach, thus confirming – as was the case in the context of the legality review – the ‘filtering out’ rationale underlying the system of evidence under consideration.

3.5 Conclusion

In light of the above, let us conclude by, first, commenting on the effectiveness of the procedural abilities conferred to private parties in the context of direct actions. Our analysis suggests that those abilities were neither designed to facilitate the access to a remedy (the seminal example being that of annulment proceedings), nor to support the parties’ effective participation in the actions they launch before the Union’s Courts (the seminal example being that of actions for compensation). With the abilities doctrine as the backdrop and based on our holistic reading of the term ‘procedure’¹⁵¹ – as including all the stages, components, and actors in a trial – it would follow that the (in)effectiveness of private parties’ ability to meet the evidentiary requirements defined for said actions is, naturally, conducive to the (in)effectiveness of the judicial protection that the EU Courts are assumed to afford under the Treaty provisions examined in this chapter. As mentioned earlier, the CJEU does not seem to practise what it preaches where the principle of effective judicial protection is concerned: on the one hand, said principle had justified the Court’s – not so uncommon – shaping of Member States’ procedural laws and systems of remedies while, on the other hand, the Court seems to be far more tolerant toward the restrictive procedural requirements that it had, itself, raised as gatekeepers for access to the remedies enshrined in the Treaties.

This two-speed effective judicial protection allows us to, second, give some concluding remarks on the uniformity of the principle of effective judicial protection, discussed earlier in this chapter.¹⁵² As we argued,¹⁵³ the wording and structure of Article 47 CFR prima facie support an argument of uniformity. Nothing in this Article gives the impression that it generates two standards of effectiveness, one that would apply to national systems of procedures, the other to the Union’s. On the contrary, the fundamental right enshrined in its first paragraph implies – because it is a fundamental right – that both the Member States and the EU should exercise their procedural autonomy in a way that gives private parties if not equal, at least equivalent opportunity to seek judicial redress before national and Union Courts alike. This does not mean that the legal remedies and systems of evidence on the levels of the Member States and the EU should be harmonised, but they should ideally include conditions under which the access to courts is framed by evidentiary requirements that are, at the very least, feasible. In other words, Article 263(4) TFEU would be a decorative remedy if, in the face of the Plaumann criteria, private applicants were driven to challenge the legality of, say, a directive before a national court (taking the route of Article 267(3) TFEU) because the evidentiary requirements before that court are more realistic than those defined in Plaumann. Practice confirms that effective judicial protection is, indeed, applied selectively, depending on the system of remedies (national or the Union’s) called to provide judicial protection on the grounds of EU law. The ‘big’ question is, of course: Why? To sketch out an answer to this question, we should note the EU’s judiciary machinery seems to run on a number of axiological (i.e., value-based) assumptions.

The first assumption is that private parties are, in any case, never left without a remedy, because they often have several procedural routes available for the claims they wish to make on the grounds of Union law. It is curious to observe that when the CJEU addresses the ethos of the Treaty provisions on direct actions, it does not qualify them as effective so much as it qualifies them as complete. Axiologically, the completeness principle is coherent with the aspiration toward unity and effectiveness of Union law¹⁵⁴ as well as with the latter’s capacity to create rights in favour of private parties. We could even argue that the principles established in Les Verts¹⁵⁵ and Rewe/Johnston carry the imprint of Van Gend & Loos.¹⁵⁶ Inaugurating the direct effect doctrine in this case, the Court famously stressed that the rights that Union law confers upon individuals ‘become part of their legal heritage’¹⁵⁷ and – as mentioned earlier¹⁵⁸ – called upon their vigilance to protect those rights. The effectiveness of that protection required a system of procedures that would providentially leave no lacuna in the procedural pathways that private litigants could follow in seeking judicial redress based on Union law. In other words, the completeness principle translates to a choice of procedures, the assumption being that effective judicial protection would, come what may, be afforded: if judicial redress could not be sought following one procedure (say, annulment proceedings), a claimant would in any case have alternative procedures to seek the same type of redress (say, the preliminary ruling procedure).

The trouble with that assumption is that it is not tenable in relation to the direct actions: the mere fact that individuals have ample choice of procedures is not a convincing justification for the fact that those actions are impracticable, as our analysis of the evidentiary requirements associated with those sought to show. So why is the Court so obstinately refusing to change those requirements?

Bentham may provide some food for thought on this point. For him, procedural law ‘is good’ if it supports substantive law¹⁵⁹ and procedural fairness (or justice)¹⁶⁰ is achieved if a dispute is resolved in conformity with the law. Bentham’s assumption is that the law can – so to speak – ‘do no wrong’, his perception of justice being limited to the concept of legal justice, that is, adjudication that, in a given dispute, upholds the content and the authority of substantive law. In other words, the law itself cannot be presumed to be unfair or unjust.

The rationale underlying the design of the systems of evidence relies on a second axiological assumption similar to that expressed by Bentham. We alluded to this assumption in our discussion on substantive effectiveness:¹⁶¹ the EU’s legislature is (strongly) presumed to comply with the Treaties and, by doing so, it is assumed to enforce legislation that confers subjective rights that the objectives in those Treaties warrant. The effectiveness of the law is therefore the consequence of the effective (and again, providential and primary law-conforming) normative action of the EU institutions. The Union Courts have explicitly confirmed this. For example, in a case dealing with the confidentiality of the European Commission’s documents,¹⁶² the General Court stressed that the ‘provisions of the Treaty may be interpreted only in the manner most favourable to the sound functioning of the [Union] institutions’.¹⁶³ With regard to the specific issue raised in this case (i.e., access to documents), the General Court considered that ‘the possibility of an impairment of the sound functioning of the institutions, detrimental to the attainment of the objectives of [the Treaty], cannot be ruled out a priori in the event of their unconsidered disclosure of certain documents’.¹⁶⁴ The General Court’s ruling is noteworthy and rather ‘Benthamian’: since the Union institutions’ normative action (or conduct) is presumed to be lawful, the result of that action (say, secondary law act) cannot be considered as unlawful. In this context, the procedural restraints discussed in this chapter make sense: if the EU legislature ‘can do no wrong’, it is only logical that the occasions to challenge the lawfulness of that legislature’s conduct be extremely limited. True, private parties who exceptionally succeed in meeting the Court’s evidentiary requirements do, sometimes, succeed in rebutting that presumption. More often than not, however, the latter remains standing for the reasons discussed in the previous sections.

Using evidence to ‘manipulate’ the access to and administration of justice is the oldest procedural trick in the book. In medieval times, defendants in criminal ordalian trials were required to prove their innocence through absurd modes of proof (say, plunging their hands in boiling water and hoping they would remain unharmed). Mind you, proof of innocence was admitted, perfectly legal only, it was a type of proof that virtually no one could succeed in providing. But the EU’s direct actions are modern procedures committed to upholding a workable idea of the rule of law; after all, we now have Article 47 CFR. True as this may be, if the analogy with archaic proceedings and modes of evidence should be seen as irrelevant or untenable, the evidentiary shields raised around the Union’s secondary law provisions should perhaps be placed a bit lower, so that private parties can effectively challenge those provisions and, in doing so, benefit from all the rights that EU law confers on them, including the right to effective judicial protection.

4 Fundamental Rights Complaints in the Preliminary Reference Procedure

Lucía López Zurita

4.1 Introduction

The European Union legal order is, following the jurisprudence of the Court of Justice (the Court), a complete system of judicial protection.¹ In this system, the main direct way of access to the Court for individuals is the action for annulment in Article 263 Treaty on the Functioning of the European Union (TFEU). The Treaty grants locus standi to challenge the legality of EU acts to ‘any natural or legal person against an act addressed to that person or which is of direct and individual concern to him’.² However, the narrow interpretation of these standing criteria leaves many individuals without any direct way to challenge EU acts before the Court.³ The limitation is consequential for individual applicants unable to gain standing, for only the Court has the prerogative to rule on the validity and/or interpretation of EU acts.⁴ This is how the procedure for a preliminary ruling in Article 267 TFEU came to the fore: it filled the gaps of access to the Court left by the interpretation of Article 263 TFEU.⁵

The drafting of Article 267 TFEU is minimalistic. It establishes that national courts and tribunals, in case of doubt about the validity or interpretation of EU law, can refer a question to the Court. Preliminary references can question the validity of EU secondary law or seek the correct interpretation of any EU law provision, including primary law.⁶ References on validity refer to conformity of EU acts with primary law, including the Charter of Fundamental Rights of the European Union (CFR, the Charter) and general principles, while references on the interpretation of EU law are more commonly questions concerning the compatibility of national law with EU law.⁷ Therefore, the preliminary reference procedure offers the possibility to raise, albeit indirectly, breaches by both the Member States and the Union. Advocate General Jacobs in his Opinion on Jégo Quéré referred to the preliminary reference procedure as ‘an alternative method of proceeding to Article [263]’.⁸ The comparison has been amply criticised in the doctrine, and the narrow interpretation of Article 263 TFEU remains contested.⁹

Today, the preliminary reference procedure works for the most part as a decentralised infringement procedure, allowing individuals to challenge the compatibility of national law with EU law.¹⁰ As famously put by Pescatore, the preliminary reference procedure is the ‘infringement procedure of the EU citizen’.¹¹ Unarguably, the procedure has been central to the development of the EU legal order and the integration project.¹² Yet this role of the preliminary reference procedure might not be enough at present. The Union no longer only produces EU law but is increasingly involved in its putting into practice: the range of EU action is ever growing and so are EU organs and bodies, sometimes with very substantial executive functions. Therefore, the Union has more to say, and more ways to directly affect, via its actions, the lives and, by extension, the fundamental rights, of private persons, both natural and legal. This chapter explores whether the preliminary reference procedure also works as a ‘citizens’ infringement’ procedure against the Union and reflects on whether this is a possibility at all.

The chapter is structured as follows. Sections 4.2 and 4.3 present the possibilities and limitations in the use of the preliminary reference procedure for individuals to bring claims based on breaches of their fundamental rights against the Union. Section 4.4 maps all instances in which private natural and legal persons have used the procedure for a preliminary ruling to bring a claim against the Union for breaches of their fundamental rights since the coming into force of the Treaty of Lisbon.¹³ The findings of the mapping are presented in Section 4.5. Section 4.6 identifies how the parties raise this type of claims in the preliminary reference procedure, discusses the accessibility of the procedure for applicants, and assesses the shortcomings of the procedure as a means to redress breaches of fundamental rights by the Union. It argues that these shortcomings have to do with the structure and design of the procedure itself. Section 4.7 concludes.

4.2 Using the Preliminary Reference Procedure against the Union

This section explores how the preliminary reference procedure might be used to challenge breaches of fundamental rights by the Union. It first describes the types of acts that can be challenged and the grounds that might be used against the Union within the framework of Article 267 TFEU to subsequently reflect on the concrete possibilities for individuals to bring this type of claim via the preliminary reference procedure.

4.2.1 Challengeable Acts

The Article includes no rules on standing, and applicants are fully dependent on the national rules for locus standi. The only EU limitation regarding standing in Article 267 TFEU is the TWD rule:¹⁴ where the applicant unequivocally had or would have had standing to challenge the act with a direct action, the indirect challenge via the preliminary reference procedure is barred.¹⁵ The Court has taken a relatively broad view on when standing for bringing an annulment action is unequivocal,¹⁶ but, generally, this leaves out individually targeted acts (e.g., decisions). Therefore, the indirect challenge mostly refers to acts of general application affecting individuals.¹⁷ Typically, the challenge will come through a preliminary reference on the validity of EU provisions, though the Chapter will discuss other possibilities below.

The acts that can be challenged under Article 267 TFEU are much broader than for Article 263 TFEU. The drafters of the Lisbon Treaty rewrote Article 267 TFEU, which now allows referral of questions on the ‘validity and interpretation of acts of the institutions, bodies, offices and agencies’. The terms are intended to cover practically every EU act,¹⁸ and so Article 267 TFEU also allows for the indirect challenge of all sorts of non-binding acts, including recommendations, statements, communications, and notices, regardless of whether they are directly applicable or have binding effect.¹⁹ Theoretically, it could also open the way to challenge any action exercised directly by the Union on the ground. In those cases, however, there might be no written acts or implementing measures at the Member State level, so what concretely to challenge might be problematic.²⁰

4.2.2 Types of Questions

How can private parties concretely challenge acts of the Union via the preliminary reference procedure? The obvious way to challenge EU acts is through references on validity. Preliminary references on validity are judicial review cases, in which the legality of an EU act, usually a piece of secondary legislation, is challenged on grounds of not complying with the provisions of primary law. As stated, with the exception of instances in which the private applicant would have had standing to challenge the EU measure under Article 263 TFEU,²¹ Article 267 TFEU includes no limitations on who can challenge the EU act. This is similarliy the case when the act that is challenged is of no relevance, and the Court has no problem in examining questions of validity after one or more rulings on the interpretation of the EU provision.²²

The Court generally tries to avoid the annulment of EU acts and particularly secondary legislation.²³ The Court prefers reading directives in a manner consistent with primary law and generally exercises restraint as per the political, economic, and social grounds behind the piece of legislation.²⁴ Indeed, the Court states that secondary legislation must be ‘interpreted as to not affect its validity’.²⁵ It is therefore unsurprising that most validity challenges under Article 267 TFEU are generally unsuccessful.

Questions of validity frequently coexist with questions of interpretation in the same order for reference. It is possible for a national court to refer questions on interpretation that hint at a possible breach of primary law, including rights of the Charter, by a piece of secondary legislation, without directly questioning the validity of the provision. These references connect the interpretation of EU secondary legislation to primary law in a manner that questions EU legislation itself, thus coming close to a ‘fake validity’ question.²⁶ This ultimately relates to the relationship between primary and secondary law,²⁷ and the Court has two main ways of replying. It can reformulate the question to specifically acknowledge the validity issue underlying the reference, and thus give a validity ruling,²⁸ or leave the question as one of interpretation. In the latter case, the Court will try to interpret secondary law so as to fit within the limits of primary law. In Sturgeon, for instance, the Court read the regulation on compensation to passengers²⁹ in the light of primary law to find that passengers of delayed flights had the same right to compensation as passengers of cancelled flights.³⁰

4.2.3 Types of Grounds

Article 267 TFEU allows private applicants to raise any infringement of their fundamental rights by the Union. Not only that, but breaches of fundamental rights are ‘a favourite ground’ to challenge the legality of directives and were already before the entry into force of the Charter.³¹ As the duty for the Union to comply with the fundamental rights of the Charter is recognised in Article 51(1) CFR,³² there is no need for applicants to prove any implementation of EU law under Article 51 CFR, for they are directly challenging an act of an institution.³³ Similarly, and at least theoretically, there is no need for questions on the compatibility of the Union act with national law, that is, there is in principle no need for any measures at the national level for the private applicant to be able to challenge the EU act,³⁴ though typically some sort of implementing measures are needed in the national legal orders to be able to bring a claim to a national court.

Moreover, it should be considered that the same claim can be framed in different ways for what concerns fundamental rights. For instance, in Schecke,³⁵ two applicants challenged the regulation obliging the disclosure of data on the recipients of EU funds, including recipients of Common Agricultural Policy funds, on grounds of their fundamental right to the protection of personal data. Nevertheless, they could have challenged it on grounds of a breach of their personal dignity, as their concern related more to the impact on their daily lives.³⁶ Similarly, a much older case like Mulder,³⁷ which deals with the protection of legitimate expectations for milk producers who wished to re-enter the market, clearly involves the freedom to conduct a business or property, even if the case does not use the language of fundamental rights.

4.3 Inherent Limitations in the Procedure

After reflecting on the concrete ways in which acts of the Union might be challenged using the preliminary reference procedure, this section reflects on the limitations inherent to it. These limitations go beyond a mere comparison with the direct action of Article 263 TFEU and look at how the structure, aims, and working of the procedure might constrain the position, capacity, and possibilities of private parties to challenge breaches of their fundamental rights. To be sure, these limitations are common to any kind of challenge under Article 267 TFEU but become particularly relevant when those challenges concern potential breaches by the Union.

This section takes the perspective of private applicants and examines three main groups of limitations. First, the preliminary reference procedure establishes a system of judicial cooperation in which private parties are entirely dependent on national law and the national courts for the indirect challenge of EU acts. This makes any challenge ‘long and uncertain’ for applicants.³⁸ Secondly, the preliminary reference procedure is not a ‘real judicial remedy for the parties’,³⁹ which seriously limits the possibilities of the parties within the procedure.⁴⁰ Thirdly, the procedure was conceived to ensure the uniformity of EU law⁴¹ and plays a central role in EU integration,⁴² which results in a central position of the Court within the procedure.

4.3.1 First Limit: The Central Role of National Courts

The first limitation faced by private parties in the procedure is that they are fully dependent on national law and procedures to bring such claims to the Court. Indeed, unlike Article 263 TFEU, Article 267 TFEU includes no rules on standing because those are national. Even when national law grants standing before the national court, private parties depend fully on national courts to decide that a reference is needed.

According to the Rules of Procedure of the Court,⁴³ national courts are not obliged to send a preliminary reference, but if they decide to do so, it is entirely up to them how to draft the preliminary questions and the rest of the elements in the order for reference.⁴⁴ Furthermore, the national courts can also attach a pre-emptive opinion⁴⁵ or provisional answer,⁴⁶ that is, share their views as to how the question at issue should be resolved (e.g., whether the claim of the private party should be granted or if the secondary provision should be annulled).⁴⁷ However, the Court does not seem to be too interested in the opinions of its national counterparts, and the influence of these pre-emptive opinions seems rather modest.⁴⁸

Finally, the influence of the parties in the drafting of the question differs greatly from one country to another: in some Member States, referring judges limit their intervention to the verification and submission of the questions, while others give the parties no real chance to influence the question.⁴⁹

4.3.2 Second Limit: The Reduced Role of the Parties in the Proceedings

The preliminary reference procedure is a non-contentious,⁵⁰ ‘special’ procedure that aims to ensure the uniformity of EU law throughout the territory of the European Union.⁵¹ To do so, it ‘instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties’.⁵² Technically, there are no parties to the proceedings,⁵³ and the Court has stated that ‘the parties in the main action are merely invited to state their case within the legal limits laid down by the national court’.⁵⁴ In this sense, Sarmiento writes that ‘it could be said, quite radically, that the legal situation of the parties becomes a secondary concern for the ECJ’.⁵⁵

The Rules of Procedure of the Court offer individuals who are a party in the main proceedings the possibility, not obligation, to intervene in defence of their position before the Court.⁵⁶ The parties might submit written observations⁵⁷ and oral pleadings (though these tend to be very brief),⁵⁸ explaining their legal arguments or their version of the facts submitted. According to Article 23 of the Statute and Article 96 of the Rules of Procedure of the Court, the Member States, the European Commission, the institution that adopted the act in dispute, and the parties to the main proceedings (determined by national law) can submit observations to the Court. Therefore, by the time the claim makes its way to Luxembourg, a whole new set of parties is added to the case.

Parties to the case are only allowed to submit observations regarding the reply to be given to the question, thus they are in the same position as the different Member States and other institutions that might intervene in the proceedings but without the knowledge and resources available to them.⁵⁹ The purpose of the observations is to clarify the scope of the dispute and the answers to be given to the questions.⁶⁰ There is only one round of written pleadings, and there is no opportunity to reply in writing to the submissions of the other parties.⁶¹ Parties are not supposed to comment on the referred question itself, as this is part of the exclusive prerogative of the national court, nor can they change the content of the question.⁶² The possibility that the parties could influence the Court to consider other arguments seems fairly limited.⁶³

4.3.3 Third Limit: The Procedural Freedom of the Court

The raison d’être of the preliminary reference procedure is ensuring the uniformity of EU law.⁶⁴ This function necessarily coexists with the other goals and roles that the procedure has come to fulfil within the EU legal order, notably providing the Court with a tool to carry out its judicial law-making and guaranteeing the effective judicial protection of individuals, even if in an indirect manner.⁶⁵ In other words, this is not a procedure primarily oriented to provide a remedy to the parties.

The consequence of the peculiar nature and divergent goals of the preliminary reference procedure is the central role of the Court within it. The Court enjoys a degree of control over the proceedings that is remarkable in comparison both to other proceedings before the Court and to other international courts. Such freedom becomes apparent when the broader framework of the procedure is explored. This includes the Rules of Procedure of the Court, which have been reformed following concrete proposals of the Court,⁶⁶ the non-public, internal guidelines of the Court,⁶⁷ and its case law.

Given the configuration of the procedure as a cooperation between courts and the limited role of the parties, the treatment of the concrete questions depends greatly on the Court. This concerns matters including the attribution of the case to a chamber and a judge rapporteur,⁶⁸ the interaction with the parties,⁶⁹ the capacity of the Court to change the scope of the questions,⁷⁰ or the extent to which it conducts a proportionality test or defers to the national courts.⁷¹ An analysis of each procedural factor is beyond the scope of this chapter,⁷² but some examples serve to show the extent of this procedural freedom. For instance, the allocation of cases at the Court to a juge rapporteur is an exclusive prerogative of the President, not subject to any sort of procedural constraint.⁷³ Similarly, none of the procedural instruments regulating the preliminary reference procedure mention reformulation, but the Court has coined the practice and reverts to it frequently. For the type of cases discussed in this chapter, the Court reformulates to turn questions of validity into questions of interpretation or vice versa. The latter is the most frequent scenario, but it is also the case, albeit less frequently, that the referring court sends questions exclusively on interpretation, which the Court reformulates as validity questions.⁷⁴ The Court might also reformulate the question to limit the review of the EU provision at stake or add other grounds to those submitted to review the legality of the EU act.⁷⁵

The influence of the private parties in the procedural treatment of the case is limited. To continue with the examples above, Member States and other institutions might request that a Grand Chamber hear the case, but this possibility does not extend to other parties in the proceedings. As for reformulation, the submissions of the parties might influence the Court to reformulate the questions,⁷⁶ but they cannot force the Court to do so.⁷⁷

4.4 Empirical Material and Research Process

This section explains the research process behind the mapping of the cases in this chapter. The process consists of two main steps: first, a search of all relevant cases and, secondly, the qualitative coding of those cases to gather information regarding the applicants, the framing of the claims, and the treatment of the fundamental rights. All of these are relevant to understand the actual and potential use of the preliminary reference procedure for challenging breaches of fundamental rights by the Union.

First, I collected all preliminary rulings containing the word validity and with a mention of the Charter of Fundamental Rights (in any part of the ruling) in the Curia database from the entry into force of the Treaty of Lisbon (1 December 2009) to the end of 2022.⁷⁸ I repeated the search in the dataset IUROPA to ensure that no ruling was missing.⁷⁹ After manually eliminating false positives,⁸⁰ the dataset contains fifty-four preliminary rulings on validity and validity and interpretation. The dataset includes any case in which validity was mentioned, even if the Court ended up not ruling on the validity of the EU provision.

A limitation of the study must be acknowledged. The analysis relies solely on the judgments of the Court, without considering the orders for reference of the national courts or the actual submissions of the parties, due to the fact that they are not publicly available. Yet those materials are analysed through their summaries in the judgment of the Court, which means that the analysis relies on the information provided by the Court and cannot take account of silences or omissions in the judgments.

The mapping relies on the close scrutiny of the decisions in the dataset to observe a series of factors. Each judgment of the dataset was hand-coded with the variables presented below. For clarity, the variables are separated into three different groups. Alongside the information described below, the mapping also takes into account the size of the chamber hearing the case and the EU institutions, organs, or bodies intervening before the Court, as well as elements related to the procedural treatment at the Court.

4.4.1 Claimants

The chapter is concerned solely with cases with private parties as applicants. The private applicants might be natural persons, private companies, or NGOs. The information is collected from the section on the factual background of the case in the ruling.⁸¹

4.4.2 Framing of the Claim

The goal of this set of variables is to understand how the claim is framed by the applicants and/or the national court. First, I record whether the reference concerns solely the validity of an EU act or provision or also includes questions on interpretation.

Secondly, I record who brought the question of invalidity to the reference. Within the limitations acknowledged above, this might have been brought up by the applicants in the case or afterwards by the national court.

Thirdly, I record if the claim is framed as a breach of fundamental rights or the Charter is used as any other provision, without a specific fundamental rights framing. The difference is subtle, insofar as in both cases there is a link to fundamental rights. It mostly reflects a difference in the degree to which fundamental rights are central to the claim. For the former, the applicants argue that the breach affects one or more of their fundamental rights, whereas for the latter they mention provisions of the Charter but do not specifically argue that what is at stake is a violation of fundamental rights.

Finally, I record whether the referring court included a pre-emptive opinion on how the Court should reply to the question regarding the validity of the EU act or provision and the existence of a breach of fundamental rights and whether the use of fundamental rights can be traced back to the applicants or the referring court.

4.4.3 Fundamental Rights Treatment

The variables in this category focus on how the Court treats the fundamental rights component of the case (if applicable) in the ruling. I first record the extent to which the Court engages with the analysis of the fundamental rights at stake in the case. The Court might disregard completely the fundamental rights aspect of the case, engage minimally, or engage in a detailed or extensive manner.

Secondly, I record any mention of the Charter in the operative part of the ruling. The reason for this is that the operative part, or dispositif, sets the boundaries of the reply to the national court. It is nothing short of a prescription in which the Court establishes the binding interpretation of European Union law and incidentally decides, within the limits of Article 267 TFEU, on the compatibility of the national measure with European Union law.⁸²

Finally, I record the final result in the case: whether the Court annuls the act completely or partially, does not give a ruling on the validity of the provision, or rejects the existence of a breach of fundamental rights.

4.5 Private Applicants and Fundamental Rights in the Preliminary Reference Procedure: A Mapping

The results of the mapping exercise are summarised in Table 4.1.

Table 4.1 Private applicants and fundamental rights in the preliminary reference procedure

VARIABLES	PERCENTAGE (%)
Claimants
Individual applicants	48
Private companies	39
NGOs	6
Framing of the Claim
Framed as validity and interpretation	65
Framed solely as validity	35
Validity raised by referring court	61
Validity raised by applicant	39
Preemptive opinion by referring court	35
Order for reference contains references to FRs	80
Claim framed in FRs terms	70
framed by the applicants	39
framed by the national court	61
Fundamental Rights Treatment
FRs analysis by the CJEU	81
minimal analysis	34
extensive analysis	55
Mention of the Charter in operative part	44
Incompatibility with EU law	20
Invalidity of the EU act	15

The table summarises the findings. The findings are organised following Section 4.4. First, the variables referring to claimants, followed by those concerned with the framing of the claim, and finally the variables concerned with the treatment of the fundamental rights component of the case. The figures in the right-hand column indicate the percentage of the total of cases (n = 54), except where the variable is in italics, where the figure shown is a percentage of the subset of cases in which the main variable is recorded. For instance, for the variable ‘FRs analysis by the CJEU’, the figure of 81% relates to the total number of cases, whereas the ‘minimal analysis’ figure (34%) is the proportion of that 81% of cases.

4.5.1 Claimants

Most of the applicants are individuals, that is, natural persons (48%), followed by private companies (39%), and NGOs (6%).⁸³ The latter usually bring the case to Court on behalf of a group of individuals. For instance, in Centraal Israëlitisch Consistorie, a Jewish association challenged the legality of measures restricting the ritual slaughter of animals on behalf of the Jewish community in Belgium.⁸⁴

The variety in the individual applicants mirrors the diversity of policy areas displayed in Figure 4.1: alongside company owners and farmers,⁸⁵ we find asylum seekers,⁸⁶ or benefits recipients.⁸⁷ As for the claims, unsurprisingly, there is more variety in the claims coming from private applicants: challenges to European arrest warrants,⁸⁸ instances of discrimination because of disability or religion,⁸⁹ the possible invalidity of the asylum system,⁹⁰ etc. In the cases in which the applicant is a private company, the claims mostly concern exports, taxes, and licences. This corresponds neatly to the policy areas described in the figure. The two most common policy areas are approximation of laws and fundamental rights, followed by freedom of establishment and services and the Area of Freedom, Security, and Justice. It is also interesting to note that many cases have ‘agriculture and fisheries’ as a policy area, which has to do with the many cases concerning the Common Agricultural Policy and other EU funds, where EU decisions directly affect the legal position of the parties, including their fundamental rights.

Figure 4.1 Policy areas of the cases in the dataset

This figure displays the policy areas of the cases in the dataset. It relies on the classification of the Court, which assigns one or more relevant policy areas to the case.

4.5.2 Framing of the Claim

As for the framing, most of the references include questions on both validity and interpretation (65% compared with 5% on validity only). Issues of validity are predominantly raised by national courts (61%). Sometimes the applicant did not raise any issue of invalidity.⁹¹ On other occasions, the applicant specifically signalled the national implementation as the origin of the breach in their fundamental rights⁹² or expressly rejected the existence of any issue of validity.⁹³ Applicants less frequently raise the potential invalidity of the provision, and on occasion invalidity is raised as an alternative to considering the national measures compatible with EU legislation.⁹⁴

The second aspect of the framing of the claim, as discussed in Section 4.4, concerns the use of fundamental rights, that is, whether the claim is framed as a breach of fundamental rights or the Charter is used as any other provision, without a specific fundamental rights framing. Table 4.1 shows that nearly all preliminary questions refer expressly to one or more provisions of the Charter (80% of cases), but a significantly lower number of claims are framed in fundamental rights terms (57%). For instance, in Liga van Moskeeën, the applicants do not merely refer to articles of the Charter but explicitly argue that the regulation they contest constitutes an infringement of their freedom of religion.⁹⁵

As with invalidity arguments, national courts more frequently frame the claim as a fundamental rights breach (48% of those cases with a FRs framing) than applicants do. The right to an effective judicial remedy (Article 47 CFR) is the most referred provision in the questions, followed by the various provisions on equality and non-discrimination (Articles 20–23 CFR) and the right to the protection of personal life and data (Articles 7 and 8 CFR).

National courts include a pre-emptive opinion in 35% of cases. With few exceptions, the pre-emptive opinions argue in favour of the invalidity of the EU act and/or the existence of a breach of fundamental rights in the case. Pre-emptive opinions are overwhelmingly not followed.⁹⁶

4.5.3 Fundamental Rights Treatment by the Court

Confirming previous literature in this regard,⁹⁷ the Court only exceptionally annuls the EU act (seven cases, including two of partial invalidity). For the most part, the Court annuls regulations. Moreover, in 18% of cases, the Court did not examine the validity of the EU act,⁹⁸ because it either considered that issue irrelevant or preferred to focus solely on interpretation.

With regard to the procedural treatment by the Court, some findings should be highlighted. First, and consistent with prior research,⁹⁹ stylistic reformulation is frequent in cases dealing with the validity of EU acts: the Court rewrites the questions in most cases.¹⁰⁰ Instances of substantive reformulation serve to consider provisions not mentioned by the national court in its order for reference,¹⁰¹ reformulate questions on validity as questions on interpretation,¹⁰² and limit the extent of the validity review conducted.¹⁰³ Secondly, the Court reviews the proportionality in a little over 40% of cases. Thirdly, deference to the national courts is almost absent from the findings, and it is always part of the grounds. In other words, the Court never defers in the operative part.¹⁰⁴

Finally, Figures 4.2 and 4.3 summarise some relevant information concerning the chambers in which these cases are heard and the EU institutions, organs, and bodies intervening in them. Even if the majority of cases (54%) are heard by medium-sized chambers of five or seven judges, nearly 40% of the cases are heard in the Grand Chamber. As there is no mention in those cases about any Member State’s request to have the case sent to the Grand Chamber,¹⁰⁵ this distribution reflects the Court’s own perception of the relevance of the case.¹⁰⁶

Figure 4.2 Case distribution among chambers

This figure shows how the cases are distributed among chambers, using the data of the Court. Over half of the cases are heard by medium-sized chambers (either five or seven judges). Nearly 40% of the cases were heard at the Grand Chamber, whereas only 2% were sent to the full court. Finally, only 5% of cases were heard by small chambers of three judges.

Figure 4.3 Intervention of EU institutions

This figure shows which EU institutions intervene in the cases in the dataset, which contains fifty-four cases. Unsurprisingly, the Commission intervenes in practically all cases. The Council intervene in over forty cases, whereas the European Parliament did the same in nearly thirty. Finally, other EU bodies and organs intervened in around five cases.

4.6 Private Applicants and Fundamental Rights in the Preliminary Reference Procedure: An Assessment

This section discusses the result of the findings in Section 4.5. As explained in Section 4.3, the focus is on private parties who bring potential breaches of their fundamental rights to the preliminary reference procedure. The section reflects, in the light of the mapping conducted above, on the possibilities, strengths, and shortcomings of the preliminary reference procedure as a means for the protection of fundamental rights that the European Union itself might have breached.

Beginning with the applicants, the findings suggest that the cases analysed concern individuals and legal persons in almost equal measure, with a slightly higher number of natural persons. It is perhaps surprising that only a very small number of cases were brought by NGOs, as it is thinkable that cases concerning the validity or compatibility of EU act are particularly prone to litigation by this type of applicant. Further research is needed to understand to what extent the individual applicants in the case may have been supported by NGOs.

The findings in Section 4.5 further suggest that private applicants, both natural and legal persons, are mostly focused on the national measures or the implementation of the EU provisions or acts at the national level. Comparatively, fewer applicants ‘look behind’ the implementing level and up to the EU act where the breach of their rights might have originated. National courts fill in this lacuna by pointing to the possible incompatibility of the EU act with norms of primary law, including the Charter, oftentimes with extensive pre-emptive opinions arguing the case. This happens in 61% of cases and highlights the central role of national courts within the model established by Article 267 TFEU.

The focus of private applicants on the implementing measures at the national level is entirely linked to the fact that the potential breaches concern measures of general application, most commonly secondary legislation, and particularly directives and regulations. The direct challenge of these measures is made difficult by the strict criteria of standing under Article 263 TFEU, and therefore it is only logical that the challenge comes via Article 267 TFEU.

The reliance on some sort of implementing or national measures would indicate that actions of the Union not accompanied by some sort of action at the Member State level are virtually unchallengeable via the preliminary reference procedure, and applicants would have to rely on direct actions. However, this also means that for most cases implementing measures are needed as they are the only way to gain standing to bring a case before a court under national procedural law. This indeed leaves the applicants entirely dependent on the national procedural rules to be able to eventually challenge the EU act itself.

When applicants succeed in getting a reference sent to the Court, the treatment of fundamental rights suggested by the findings is somehow puzzling. Most claims referred directly to provisions of the Charter, be it in the framing adopted by the applicants or later adopted by the referring court in its order for reference. However, fundamental rights are mostly added to the questions in the form of citations of provisions of the Charter. It is less common for the applicants to build their whole argument around a violation of their fundamental rights. What this means is that fundamental rights become a secondary part of the claim. Interestingly, the claims refer mostly to a handful of rights, which do not necessarily correspond to the areas in which the legislation of the Union, and generally acts of the Union, are expanding at present.¹⁰⁷ This indicates a temporal mismatch between the enactment of legislation at the EU level and its effects at the national level, which further points to the difficulties of challenging EU acts in the absence of any implementing measures.

Does the framing matter? The sample is too small to draw any definitive conclusion, but the findings suggest as much. It seems that where the claim is more clearly framed as a violation of fundamental rights, rather than just citing the Charter in the preliminary questions, the Court is more likely to declare the measure incompatible. Further research is needed to definitely establish whether this is the case and if it happens only in preliminary rulings concerned with the possible incompatibility of an EU act or provision. Furthermore, a framing of the claims in terms of fundamental rights corresponds to an extensive analysis of the fundamental rights component of the case by the Court, which is substantially less frequent where fundamental rights are not a central part of the reference.

Unsurprisingly, the Court is very reticent to annul EU acts and declared the invalidity of an EU provision only in a handful of cases. The Court prefers to focus on interpretation and measures at the national level. Generally, the findings suggest a high deference towards the EU legislator¹⁰⁸ where the compatibility of EU legislation with the Charter is questioned. Interestingly, the findings suggested that deference towards national courts was almost anecdotal, even when most of the cases included questions of both validity and interpretation that might have justified leaving a margin of manoeuvre to the national courts, which the Court is known to increasingly do.¹⁰⁹ The close connection of these cases, even if focused on interpretation, with the survival of EU acts might explain the reluctance of the Court to give any space to the national courts that might jeopardise it.

The preliminary reference procedure is not a remedy oriented to the redress of breaches suffered by private parties but rather a system of cooperation oriented towards the uniformity of the EU legal order. Section 4.3 argued that this substantially affects and (re)defines the position of the private parties in the proceedings. In cases where the compatibility of the EU legislation is at stake, this becomes particularly apparent. Two of the findings are noteworthy in this regard. First, in the vast majority of cases, at least the Commission and another institution submitted observations and participated in the oral hearings. This fact further points to the salience of the case but also highlights the secondary role of the parties once the case arrives before the Court. Indeed, the analysis of the potential breaches of fundamental rights by the Union before the Court necessarily focuses on the judicial review of legislation, and the concerns and specificities of the private parties’ case become secondary. Even if this is certainly always the case in this procedure,¹¹⁰ it is especially blatant when the validity of Union acts is at stake.

Secondly, almost 40% of the cases in the dataset were allocated to the Grand Chamber. This number is significant (by comparison in the whole of 2022, the Grand Chamber heard only forty-nine preliminary references). In the absence of any recorded request by the Member States to have the cases heard at the Grand Chamber, it is possible to conclude that it was a decision of the Court to hear many of these references in a Grand Chamber, which further suggests that the Court is conscious of the high salience of the cases. In other words, the Court does not perceive these cases as routine, even where the claims in most of them are fairly modest and the possible incompatibility of EU legislation with primary law only tangential to the main issue. Yet that possibility seems to be enough for the Court to allocate the cases in a high proportion to the Grand Chamber.

4.7 Conclusion

This chapter explored the possible use of the preliminary reference procedure as a means to challenge Union acts potentially breaching fundamental rights. It focused on the position of private applicants, both legal and natural persons. The chapter described the ways in which Article 267 TFEU allows for this type of challenge and then reflected on the limitations that the procedure poses to the legal position, capacity, and possibilities of the parties to bring forward these claims and obtain redress. It argued that these limitations are inherent to the procedure, and as such common to both preliminary references on interpretation and validity, but become particularly relevant for the latter.

Against this theoretical ground, the chapter mapped all preliminary references on validity and validity and interpretation brought by private applicants and gathered information regarding the applicants themselves, the framing of their claims, and the fundamental rights component of those references. The findings suggested that the preliminary reference procedure is, at least at present, only limitedly used to challenge Union acts for potential breaches of fundamental rights. Importantly, the findings indicate that the focus of the cases is almost always on implementing measures, however tenuous, which brings into question the feasibility of using the procedure to challenge a whole array of cases in which measures at the national level have not yet taken place or might never occur.

At the end of the day, validity references turn into judicial review cases, in which the actual claim of the applicants becomes secondary to the check of compatibility of the EU measure against primary law. This seems inherent to the working of the procedure itself and consistent with its goal of ensuring the uniformity of the EU legal order. The context of extreme procedural freedom in which the Court operates in the preliminary reference procedure exacerbates the secondary role of the parties. However, where the action of the Union is growing, and with it its possibilities of encroaching on the lives of natural and legal persons and their fundamental rights, it is worth reflecting on whether the preliminary reference procedure can really complete the patchy system of judicial protection in the Union in this respect.