Effective Judicial Protection of Individuals - A duty for the Court of Justice or the National Courts?

Abstract: The starting point and reoccurring theme of this work is the accommodation of the effective judicial protection of individuals in the European Union system of review of validity of its acts. The discussion of this issue was intense during the decade before the adoption of the Lisbon Treaty due to the Court of Justice’s judgments in the two famous cases Unión de Pequeños Agricultores and Jégo-Quéré. Accordingly, the focus of this thesis is an examination of the respective roles of the European Court of Justice and the national courts in ensuring the right to an effective remedy and access to a competent court. The first part concerns the European level, by assessing the standing requirements for individuals in the action for annulment before the General Court. The alternative remedy at Union level, the preliminary ruling procedure is analysed in order to determine the completeness of the system. The study continues with an investigation of the possibilities for national courts to examine the validity of EU law and the conditions under which they can provisionally suspend its application when necessary. The national courts’ duty to raise issues of Union law ex officio is dealt with subsequently. The examination carried out in this work shows that there are still gaps left in the effective judicial protection of individuals. Therefore, three suggestions for change of the system are proposed, in order to remedy this lacuna. These are connected to the duties and division of competences previously discussed, and are assessed through a presentation of arguments in favour and against each proposition. The first change put forward entails an extension of the standing requirements for private applicants in actions for annulment. It is argued that the Court should change its interpretation of the condition of individual concern, combined with the adoption of a wide interpretation of the new concept ‘regulatory act’ in Article 263(4) TFEU. Secondly, the national courts should be allowed a more extensive mandate in applying and dealing with EU law, by inter alia proposing answers to the questions referred for a preliminary ruling and playing a larger part in this process altogether. A further development and clarification of the areas to be raised by the national courts of their own motion is also advocated. Lastly, the idea of harmonisation of the procedural rules to be applied domestically with regard to cases dealing with Union law is discussed. In the view of the author, the solution should not be a choice of only one of the reform proposals presented. Instead, the aim should be a combination of all three propositions, to best accommodate the attainment of effective judicial protection equally for all citizens of the European Union.