Self Preserving Policy or Fundamental Rights Adjudication? – Mapping EU limitations of National Procedural Autonomy in the Name of Effective Judicial Protection

Abstract: This thesis examines the complex legal landscape of situations where the national procedural autonomy of EU Member States is affected by the general principle of EU law known as the principle of effective judicial protection. The meaning of effective judicial protection is unclear in the legal doctrine as well as in the case law from the Court of Justice of the European Union. It is often linked to the principles of equivalence and effectiveness, which also limit the national procedural autonomy of the Member States, as well as to several statutes in the Charter of Fundamental Rights and the European Convention on Human Rights. The discrepancy in the ECJ’s application of the principle of effective judicial protection risks a situation of legal uncertainty, problematic for both individuals seeking to ensure rights derived from EU law in courts, and for Member States seeking to fulfil their obligation to provide effective judicial protection of fundamental rights. Since national courts are entrusted with the task of applying and upholding EU law this legal uncertainty also risks a situation where the principle of effective judicial protection is not applied correctly throughout the EU. Therefore, this thesis maps the current legal landscape in regard of effective judicial protection by examining its development in the case law of the ECJ. The case law developing the principles of equivalence and effectiveness is also analysed, as is the potential codifications of the principle of effective judicial protection in Article 19(1) TEU, Articles 47 and 41 of the Charter and Articles 6(1) and 13 of the ECHR. For the purpose of analysing how the principle of effective judicial protection relates to the principles of equivalence and effectiveness as well as to the abovementioned statutes the thesis then analyses four judgments from the ECJ. Lastly, it examines the purposes of the principle of effective judicial protection, and whether the EU is providing sufficient protection of them. It finds that the principle of effective judicial protection is an independent principle that should not be bundled with the principle of effectiveness since it has a different legal basis, different characteristics and a different purpose. Furthermore, the principle of effective judicial protection is enshrined in Article 47 of the Charter, and likely in Article 41 of the Charter and Article 19(1) TEU. There is also a clear link between the principle of effective judicial protection and Articles 6(1) and 13 ECHR, both through established case law and through the EU treaties. The thesis finds that the purpose behind the principle of effective judicial protection is the obligation of EU Member States to secure the protection of individual rights derived from EU law. It thus differs somewhat from the purpose underlying the principle of effectiveness, which is to secure the effectiveness of EU law. It is hard to draw definitive conclusions on the adequacy of the ECJ’s protection of this objective, due to a lack of case law. The ECJ’s ambiguity in the existing case law is criticised.