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.Footnote 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.Footnote 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).Footnote 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’.Footnote 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.Footnote 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,Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote 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.Footnote ²⁹ This latest jurisprudence seems to restrict the ability to challenge EU law.Footnote 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.Footnote 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.Footnote 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.

1.4.1 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.Footnote ³³ Of those actions, 1,307Footnote ³⁴ led to the annulment of EU acts, while 1,100 cases were dismissed on inadmissibility grounds.Footnote ³⁵ The number of annulment actions brought in the same period that involved fundamental rights pleas was around 830 cases,Footnote ³⁶ while those that included mentions of a general principle of EU law totalled 582;Footnote ³⁷ 130 actions for annulment that included mentions of ‘fundamental rights’ were dismissed.Footnote 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.Footnote 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,Footnote ⁴⁰ the right of defence,Footnote ⁴¹ the presumption of innocence,Footnote ⁴² the proportionality of penalties,Footnote ⁴³ and the ne bis in idem.Footnote ⁴⁴ In several cases, the General Court has raised fundamental rights pleas of its own motion.Footnote 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.Footnote 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.Footnote 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.Footnote 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:Footnote 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;Footnote 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.Footnote 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.Footnote 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 MuammerFootnote ⁵³ 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.Footnote ⁵⁴ The appropriateness of the statement of reasons is measured against several requirements. First, the statement cannot be a general stereotypical formulation.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote 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.,Footnote 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.Footnote 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.Footnote 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 authoritiesFootnote ⁶⁵ in compliance with the principle of effective judicial protection and therefore the rule of law.Footnote 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,Footnote ⁶⁷ the right of access to personal files,Footnote ⁶⁸ the obligation to give reasons,Footnote ⁶⁹ and the right to damages for losses caused by EU institutions,Footnote ⁷⁰ among others. The General Court has moulded these sub-rights to enhance fairness in the EU administration’s operations. The ADDE v ParliamentFootnote ⁷¹ 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.Footnote 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,Footnote ⁷³ the requirement of impartiality to which the EU institutions, bodies, offices, and agencies are subject also extends to experts consulted in that regard.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.

1.5.1 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 decisionsFootnote ⁸⁰ 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’Footnote ⁸¹ or ‘general principle’.Footnote ⁸² Only 17 appeals were successful, either totally or partially;Footnote 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.Footnote 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, KadiFootnote ⁸⁵ 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.Footnote 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.Footnote ⁸⁷ The protection of fundamental rights in the EU via judicial review is linked to the autonomy of EU law.Footnote 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),Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁹³

An example in point is Stichting Al-Aqsa.Footnote 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)Footnote 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 interestFootnote ⁹⁶ and, subsequently, its legitimacy.Footnote 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.Footnote 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 LtdFootnote ⁹⁹ 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,Footnote 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’.Footnote 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 EUFootnote ¹⁰² and Poland v European Parliament and Council of the EU,Footnote 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.Footnote 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.

2.2.1 Compensating Harm Caused by Fundamental Rights Violations

The main function of liability law is to provide compensation for harm.Footnote 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.Footnote 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.Footnote 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.Footnote 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’).Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ¹⁵

Regionally, violations of the European Convention on Human Rights (ECHR) can also be remedied by affording ‘just satisfaction’.Footnote 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).Footnote 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.Footnote 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).Footnote ¹⁹ In cases concerning non-pecuniary harm, the CJEU frequently finds that the harm is sufficiently compensated without monetary reparation.Footnote 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.Footnote 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’.Footnote ²² In other cases, the particular circumstances justified pecuniary reparation.Footnote 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.Footnote 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.Footnote ²⁵

On the other hand, damages liability may serve to deter wrongful conduct.Footnote 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.Footnote ²⁷ For this reason, changing state behaviour to prevent future violations is important in international human rights law.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote ³³ While Article 41(3) of the Charter only reproduces Article 340(2) TFEU and does not modify the conditions under which liability arises,Footnote ³⁴ it may form the basis for the CJEU to develop the conditions for liability in line with the requirements of fundamental rights law.Footnote ³⁵ Section 2.6 makes suggestions as to what this development could and should entail.

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.Footnote 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.Footnote 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’.Footnote 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.Footnote ⁵⁸ What this means is that principles are not automatically justiciable; their justiciability requires their prior implementation.Footnote ⁵⁹

Yet Charter principles are not simply ‘truncated rights’ that turn into fully fledged rights through implementation.Footnote ⁶⁰ Rather, they are structurally different from rights in that they merely entail duties but do not come with a corresponding claim right.Footnote 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.Footnote 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.Footnote 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).Footnote 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’.Footnote 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’.Footnote 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’).Footnote 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’.Footnote 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.Footnote 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’.Footnote 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.Footnote 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’.Footnote ⁷²

Leaving aside whether these policy considerations against lowering the liability threshold are supported by empirical evidence,Footnote 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 rightsFootnote ⁷⁴ but is also taken into account in formulating the positive obligations public actors may incur to prevent breaches of fundamental rights.Footnote 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.Footnote 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).Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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.

2.5.1 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁹² Accordingly, significant gaps exist in research regarding the role and interpretation of this concept in EU (liability) law.Footnote 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.Footnote 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]’.Footnote ⁹⁵ More fundamentally, it sometimes conflates the meaning of attribution and causation.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ¹⁰⁴ Whereas the General Court had dismissed the action due to the absence of an ‘exclusive’ causal link between Europol and the alleged damage,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ¹⁰⁹ The Court thus stayed the proceedings awaiting the decision of the national court on the matter.Footnote ¹¹⁰

This approach has been widely criticised.Footnote 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.Footnote 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.

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,Footnote 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,Footnote 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’.Footnote 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 & LoosFootnote ⁶⁹ 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)Footnote ⁷⁰ translates to proof of absence of discretion – namely from the Member States – in the implementation of EU law provisions.Footnote 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.Footnote ⁷² With this reading of Article 173 TEEC the canon was set: in its subsequent case law,Footnote 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.Footnote 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.Footnote 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’Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote ⁸⁰ In contrast, in Edinger,Footnote 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.Footnote 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 GiorgioFootnote ⁸³ and Otero RamosFootnote ⁸⁴ 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,Footnote 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.Footnote 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,Footnote 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’.Footnote 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 OpinionFootnote ⁸⁹ 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.Footnote ⁹⁰ This Opinion was not followed by the CJEU who, in its ruling,Footnote 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.Footnote 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.Footnote 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);Footnote 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.Footnote ⁹⁵

Regarding the processual abilities strand, the recent Nord Stream 2 case is a noteworthy example.Footnote ⁹⁶ A Swiss gas company challenged a 2019 directive amending provisions of the 2009 so-called Gas Directive.Footnote ⁹⁷ The applicant brought an annulment action against the 2019 act before the General Court,Footnote 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,Footnote 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’.Footnote 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]’.Footnote 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.Footnote ¹⁰² Although the EU legal order is governed by the principle of freedom of proof, with no general rules on the admissibility of evidence,Footnote 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.’Footnote 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.Footnote 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’.Footnote 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:Footnote 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,Footnote 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.

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:Footnote 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.Footnote ¹⁵ The Court has taken a relatively broad view on when standing for bringing an annulment action is unequivocal,Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote ²²

The Court generally tries to avoid the annulment of EU acts and particularly secondary legislation.Footnote 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.Footnote ²⁴ Indeed, the Court states that secondary legislation must be ‘interpreted as to not affect its validity’.Footnote 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.Footnote ²⁶ This ultimately relates to the relationship between primary and secondary law,Footnote 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,Footnote 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 passengersFootnote ²⁹ in the light of primary law to find that passengers of delayed flights had the same right to compensation as passengers of cancelled flights.Footnote 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.Footnote ³¹ As the duty for the Union to comply with the fundamental rights of the Charter is recognised in Article 51(1) CFR,Footnote 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.Footnote 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,Footnote 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,Footnote 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.Footnote ³⁶ Similarly, a much older case like Mulder,Footnote 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.

4.3.1 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,Footnote 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.Footnote ⁴⁴ Furthermore, the national courts can also attach a pre-emptive opinionFootnote ⁴⁵ or provisional answer,Footnote 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).Footnote 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.Footnote 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.Footnote ⁴⁹

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

The preliminary reference procedure is a non-contentious,Footnote ⁵⁰ ‘special’ procedure that aims to ensure the uniformity of EU law throughout the territory of the European Union.Footnote 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’.Footnote ⁵² Technically, there are no parties to the proceedings,Footnote 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’.Footnote 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’.Footnote 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.Footnote ⁵⁶ The parties might submit written observationsFootnote ⁵⁷ and oral pleadings (though these tend to be very brief),Footnote 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.Footnote ⁵⁹ The purpose of the observations is to clarify the scope of the dispute and the answers to be given to the questions.Footnote 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.Footnote 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.Footnote ⁶² The possibility that the parties could influence the Court to consider other arguments seems fairly limited.Footnote 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.Footnote 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.Footnote 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,Footnote ⁶⁶ the non-public, internal guidelines of the Court,Footnote 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,Footnote ⁶⁸ the interaction with the parties,Footnote ⁶⁹ the capacity of the Court to change the scope of the questions,Footnote ⁷⁰ or the extent to which it conducts a proportionality test or defers to the national courts.Footnote ⁷¹ An analysis of each procedural factor is beyond the scope of this chapter,Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote ⁷⁶ but they cannot force the Court to do so.Footnote ⁷⁷

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.Footnote 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.Footnote 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.

4.5.1 Claimants

Most of the applicants are individuals, that is, natural persons (48%), followed by private companies (39%), and NGOs (6%).Footnote 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.Footnote ⁸⁴

The variety in the individual applicants mirrors the diversity of policy areas displayed in Figure 4.1: alongside company owners and farmers,Footnote ⁸⁵ we find asylum seekers,Footnote ⁸⁶ or benefits recipients.Footnote ⁸⁷ As for the claims, unsurprisingly, there is more variety in the claims coming from private applicants: challenges to European arrest warrants,Footnote ⁸⁸ instances of discrimination because of disability or religion,Footnote ⁸⁹ the possible invalidity of the asylum system,Footnote 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.Footnote ⁹¹ On other occasions, the applicant specifically signalled the national implementation as the origin of the breach in their fundamental rightsFootnote ⁹² or expressly rejected the existence of any issue of validity.Footnote 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.Footnote 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.Footnote 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.Footnote ⁹⁶

4.5.3 Fundamental Rights Treatment by the Court

Confirming previous literature in this regard,Footnote 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,Footnote 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,Footnote ⁹⁹ stylistic reformulation is frequent in cases dealing with the validity of EU acts: the Court rewrites the questions in most cases.Footnote ¹⁰⁰ Instances of substantive reformulation serve to consider provisions not mentioned by the national court in its order for reference,Footnote ¹⁰¹ reformulate questions on validity as questions on interpretation,Footnote ¹⁰² and limit the extent of the validity review conducted.Footnote 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.Footnote 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,Footnote ¹⁰⁵ this distribution reflects the Court’s own perception of the relevance of the case.Footnote 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.