A Commentary on Article 47 of the Charter and the Member States

EU law is applied by Member States and on the Union level alike and accordingly EU law is to be applied by Member State courts as well as the CJEU. Different constellations of implementation and enforcement of EU law on the national and European levels, however, lead to a diverse set of conditions of judicial review. The CJEU aims to ensure that a ‘complete’ system of remedies2 be provided for all “rights and freedoms protected under Union law” (Article 47 of the Charter).
A central tool for realising a ‘complete’ system of remedies is the strengthening of Member State courts as ‘first level EU courts’ as well as ensuring the CJEU’s monopoly of reviewing the validity of acts under EU law. Accordingly, this chapter concentrates on Member State obligations and the links between the national and the EU levels under the right to an effective remedy. The following analysis of the right to an effective remedy within Member State legal systems3 looks at the right to effective remedies in its constitutional context (a), before analysing the scope of protection of the right to an effective remedy and turning to the concept of the rights and freedoms under Union law as the ‘ius’ protected by the right to an effective remedy enshrining the Latin maxime of ubi ius, ibi remedium into EU law (b). The commentary then turns to specific obligations in ‘vertical’ relations between individuals and Member States (c) as well as those in ‘horizontal’ relations between individuals (d). Part (e) examines the permissible limitations on the right to an effective remedy before looking at some of the main lines of development (f).