Principle of effective judicial protection: something new at the horizon?

Originally, when the European Economic Community was founded, the principle of procedural autonomy was one of the main rules regulating the relationship between the Community itself and Member States. While this principle is formally still in force, it has been the object of an interesting evolution which has happened in parallel to the evolution of another and complementary principle, the principle of effective judicial protection. The CJEU has often referred in combination to the two principles. Lately, however, the ECJ has referred to the principle of effective judicial protection in a new and broader sense. The paper is aimed at analyzing this most recent Luxemburg jurisprudence and, in particular, the case European Commission v. Republic of Polonia, C-619/18, in order of understand if this case law represents the beginning of a new season in the story of the principle of effective judicial protection.

Effective Judicial Protection against ‘Technical’ Law-making: The Case for Proportionality and the European Central Bank at the European Court of Justice

In reviewing legal acts adopted in the context of the financial crisis, the European Court of Justice has often resorted to proportionality. However, in general, a softened review seems to apply, as law-makers are left with a margin of political discretion which is the broadest where their normative choices – yet touching upon sensitive political interests – qualify as most ‘technically’ complex.
It is assumed that proportionality links with a ‘culture of justification’ as alternative to a ‘culture of authority’ in the exercise of public power. The paper outlines the fundamentals of the ‘culture of justification’ with which proportionality is infused. Furthermore, it analyses two judgments delivered by the Court of Justice concerning the activity of the European Central Bank in the context of the crisis – namely, Gauweiler and Weiss, and it highlights the peculiar ontology of law that transpires from these judgments and tests its consistency with the ‘culture of justification’.

The evolving nature of the principle of effective judicial protection

The principle of effective judicial protection (EJP) has traditionally been understood as a ‘procedural’ principle, used as a standard to assess national procedures applicable when individuals claim a right deriving from EU law. The EJP became part of EU primary law with Lisbon. This recognition has stimulated an evolution led by the CJEU. In several recent landmark decisions, the Court has made reference to the principle of EJP and operationalized it in quite different fields. The decisions of the Court and the changes in EU primary law are transforming EJP from a procedural into a more ‘substantive’ principle, of a constitutional nature. First, EJP is now a fundamental right under Art. 47 Charter. Second, EJP operates as a more structural principle, closely connected to the rule of law. Here the relevant provision is Art. 19(1) TEU. This paper aims to map the on-going evolution of the principle of EJP and to reflect on how recent Court’s decisions are transforming its nature.

The evolution of the principle of effective judicial protection in the context of composite administration

The paper aims at analysing the understanding and application by the European Court of Justice of the principle of effective judicial protection in the context of composite administrative proceedings. Recently, the Court has had to adjudicated on a case which arose in the context of the new Banking Union set up following the Eurozone crisis and which concerned the question of the exact division of tasks between the ECB and the national authorities, and its implications in terms of judicial review. Is the Court's jurisdiction exclusive and total, englobing the preparatory acts adopted at the national level, or is it split between the Court and national judiciaries, depending on the author of the act at stake? The court revisited in its ruling the long-standing Borelli case law and shed new light on the division of competences between national and European courts when shared execution of EU law is at stake.