The pioneers in the effective access to justice movement were Cappelletti and Garth, conceiving access to justice as a fundamental principle enabling citizens to vindicate their substantive rights.107 Other scholars have seen access to justice as the demand for equal treatment of prospective litigants before the courts,108 aimed at reducing barriers due to costs, duration, and difficulties of communication in judicial proceedings. In the late 1970s and 1980s, access to justice was perceived as part of the legal services modern welfare states provide for the ‘weaker parties’.109 Since the 1990s, a consensus emerged that a wide range of procedures adapted to the specific types of
103 Ibid.
104 See below, ‘2 The Right of Access to Justice in the EU: In Search of a New Role’ 39.
105 See below, ‘4 Civil procedure law in the EU: the role of the CJEU case law’ 98; ‘5 Sectoral v Horizontal EU Civil Procedure Law: A Constitutional Conundrum?’ 133.
106 See below, ‘6 The Horizontal Approach to EU Civil Procedure Law Reconceptualised: Achieving Greater Coherence’ 184.
107 M Cappelletti and B Garth, ‘Access to Justice and the Welfare State: An Introduction’ in M Cappelletti and B Garth (eds), Access to Justice and the Welfare State (EUI 1981) 1.
108 See inter alia: R Moorhead and P Pleasence, ‘Access to Justice after Universalism: Introduction’
(2003) 30 Journal of Law and Society 1; R L Sandefur, ‘Fulcrum point of equal access to justice: legal and non-legal institutions of remedy’ (2009) Loyola of Los Angeles Law Review 949, 951: ‘different groups in a society would have similar chances of obtaining similar resolutions to similar kinds of civil justice problems’.
109 Cappelletti and Garth (n 107).
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litigation at stake had to supplement access to justice.110 Overall, the right to effective access to justice incorporates fundamental considerations of procedural and social justice and is not limited to requirements of procedural economy and efficiency.111 As a result, access to justice refers to all stages prior to the initiation of court proceedings, the trial process, and the post-trial phase of execution of judgments.112 It also refers to a number of actors, such as litigants, judges, lawyers, and state organs.
In the EU, the right of access to justice first appeared under the principle of effective judicial protection and the CJEU Johnston case.113 In this case, the Court argued that effective judicial protection in the EU constitutes a general principle of law, derived from Member States’ constitutional traditions and the European Convention on Human Rights and Fundamental Freedoms.114 However, the term ‘access to justice’
hardly existed in EU law,115 and has been advocated mainly in the context of consumer
110 B Hess, ‘EU Trends in Access to Justice’ in C H van Rhee and A Uzelac (eds), Civil Justice between efficiency and quality: from Ius Commune to CEPEJ (Intersentia 2008) 189-190.
111 For more recent studies from long-established international institutions, such as the World Bank, the Council of Europe, the European Commission, or from individual stakeholders, such as consortiums of academics and professionals confirming the wide scope of the right of access to justice, see inter alia:
Commission, ‘Study on the Transparency of Costs of Civil Judicial Proceedings in the European Union’
(Final Report, 2007)
http://ec.europa.eu/civiljustice/publications/docs/costs_civil_proceedings/cost_proceedings_final_report_
en.pdf accessed 06 March 2013; C Hodges, S Vogenauer, and M Tulibacka, The Costs and Funding of Civil Litigation (Hart Publishing 2010); CEPEJ, European judicial systems: Efficiency and quality of justice (Council of Europe Publishing 2010); Office of the High Commissioner for Human Rights and the International Bar Association, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (Professional Training Series No. 9/Add.1, United Nations 2008) 113 http://www.ohchr.org/Documents/Publications/training9chapter4en.pdf accessed 05 March 2013; Australian Government, A Strategic Framework for Access to Justice in the Federal Civil Justice System (Report by the Access to Justice Taskforce Attorney-General’s Department, 2009)
http://www.ag.gov.au/LegalSystem/Documents/A%20Strategic%20Framework%20for%20Access%20to
%20Justice%20in%20the%20Federal%20Civil%20Justice%20System.pdf 17 March 2013; The
International Bank for Reconstruction and Development/The World Bank, Doing Business 2011: Making A Difference for Entrepreneurs (The World Bank and the International Finance Corporation 2010)
http://www.doingbusiness.org/~/media/fpdkm/doing%20business/documents/annual-reports/english/db11-fullreport.pdf accessed 03 March 2013.
112 On the various stages of a broadly conceived right to access to justice from legal protection to enforcement and civil society oversight, see: UNDP, Access to Justice. Practice Note (2004) 6 http://www.undp.org/content/dam/aplaws/publication/en/publications/democratic-governance/dg-publications-for-website/access-to-justice-practice-note/Justice_PN_En.pdf accessed 02 March 2013.
113 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (n 12).
114 Ibid, para 18.
115 In the international arena the term access to justice has been used and defined in a few instances, such as in Article 9 of the 1998 Aarhus Convention on Access to Information, Public Participation in
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protection in cross-border litigation.116 As a result, access to justice remained an obscure and uncertain concept in the EU, considered by many scholars as a vague term, inappropriate for use as a yardstick or benchmark for the review of law, and even more so for the adoption of any legislative measures. Accordingly, access to justice was often used as a term solely synonymous with access to courts, or with effective remedies, due process, fair trial, or simply with judicial protection and redress.117
Consequently, access to justice was hardly used as a benchmark for the over-enforcement of EU law, taking into account all relevant interests, namely the interests of the defendant in the non-enforcement of EU law118 and the general interest of the justice system in delivering just and equitable results.119 However, as long as the actual meaning and scope of the right to access to justice is not properly defined and assimilated, all efforts to promote only certain aspects of this right will lead to greater fragmentation of civil justice systems, undermining the rule of law and compromising the good functioning of democratic societies.120
After the entry into force of the Amsterdam Treaty, a genuine European Area of Justice was created that ‘[...] must ensure that individuals and businesses can approach courts and authorities in any Member State as easily as in their own and not to be prevented or discouraged from exercising their rights by the complexity of the legal and administrative systems in the Member States’.121 However, it was only after the introduction of the European Charter and, mainly, after the enactment of the Lisbon
[Footnotes continued on next page]
Making and Access to Justice in Environmental Matters, and in Article 13 of the 2006 Convention on the Rights of Persons with Disabilities.
116 Commission, ‘Green Paper on Legal Aid in Civil Cases: The Problems Confronting the Cross-border Litigant’ COM (2000) 51 final.
117 See, FRA, Access to justice in Europe: an overview of challenges and opportunities (Publications Office of the European Union 2011) 16 http://fra.europa.eu/fraWebsite/attachments/report-access-to-justice_EN.pdf accessed 02 March 2013.
118 To this effect see, case C-450/06 Varec SA v Belgian State [2008] ECR I-00581, para 52.
119 See inter alia: Himsworth, (n 20) 291; Genn (n 51).
120 See, C Rozakis, ‘The Right to a Fair Trial in Civil Cases’ (2004) 4 J.S.I.J. 96-106; Delcourt v. Belgium App no 2689/65 (ECtHR, 17 January 1970), para 25.
121 Commission, ‘Communication from the Commission to the Council and the European Parliament-Biannual Update of the Scoreboard to review Progress on the Creation of an Area of "Freedom, Security and Justice" in the European Union’ COM (2000) 782 final, point 3.1.
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Treaty that access to justice was established in EU law discourse. Article 47 (3) CFREU refers to the availability of legal aid as an element of effective access to justice. In addition, Article 67(4) TFEU imposes on Union institutions the duty to facilitate access to justice, whereas Article 81(2)(e) TFEU recognises the need for the adoption of approximation measures in the area of judicial cooperation in civil matters with the aim of promoting effective access to justice.
Article 47 CFREU122 draws inspiration from the European Convention, combining the protection provided by two distinct Convention rights, namely Article 6 ECHR on the right to a fair trial123 and Article 13 ECHR on the right to an effective remedy. Accordingly, the Strasbourg Court has produced abundant case law on the various procedural parameters of this right: the doctrine of reasonable length of proceedings;124 the conditions for a fair hearing;125 and guarantees of judicial impartiality.126 Judicial elaboration of this article has given expression to a common, primary conception of justice and fair trial within the European countries,127 and it is generally accepted that this right is also part of Member States’ legal cultures and constitutional traditions.128 However, there is a significant distinction between the mere
122 Article 47 CFREU on the ‘Right to an effective remedy and to a fair trial’ reads as follows:
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
Article 47 CFREU has codified the principle of effective judicial protection: joined cases 439/10 and T-440/10 Fulmen (T-439/10) and Fereydoun Mahmoudian (T-T-440/10) v Council of the European Union [2012] OJ C 133/24, para 87.
123 It should be noted that the text of Article 6 constitutes only the starting point, which the extensive ECtHR case law has further explicated and substantiated.
124 König v. Germany App no 6232/73 (ECtHR, 28 June 1978), para 96; Di mauro v. Italy App no 34256/96 (ECtHR, 28 July 1999), para 23.
125 Artico v. Italy App no 6694/74 (ECtHR, 13 May 1980), para 32; J.J. v. The Netherlands App no 21351/93 (ECtHR, 27 March 1998), para 43.
126 Golder v. United Kingdom App no 4451/70 (ECtHR, 21 February 1975), paras 34-37; Sramek v.
Austria App no 8790/79 (ECtHR, 22 October 1984), para 42.
127 Kerameus, ‘Procedural Implications of Civil Law Unification’ (n 40) 154-156.
128 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (n 12) para 18.
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legal recognition of Articles 6 and 13 ECHR and their actual implementation.129 This is aggravated by the lack of an enforceable nature of ECtHR judgments, allowing at the end of the day differing levels of implementation and legislation adaptation from one Member State to another.
It is against this background, I advocate the use of Article 47 CFREU procedural guarantees as the starting point for the development of EU civil procedure law. The Charter of Fundamental Rights of the European Union (CFREU) has codified the right of access to justice, which, after the enactment of the Lisbon Treaty, has gained the legal status of primary EU law, binding EU institutions and Member States.130 This right associates effective remedies with in-court justiciability and secures access to justice for everyone ‘whose rights and freedoms guaranteed by the law of the Union are violated’.131 It also sets the fundamental procedural aspects of the right to access the courts, namely fair and public hearing, reasonable length of proceedings, and the independence and impartiality of the judging court/tribunal.132 Rather recent CJEU case law refers to this provision with an increased frequency, even in cases where initial references for a preliminary ruling do not raise an issue of application of the relevant right.133 The key difference with the ECtHR case law is that the EU constitutes a sui
129 L van Puyenbroeck and G Vermeulen, ‘Towards minimum procedural guarantees for the defence in criminal proceedings in the EU’ (2011) 60 (4) ICLQ 1017.
130 Article 6 TEU.
131 Case 5/88 Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 02609, para19; Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (n 12); case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v Georges Heylens and others [1987] ECR 04097; case C-97/91 Oleificio Borelli SpA v Commission of the European Communities [1992] ECR I-06313; A W Heringa and L Verhey, ‘The EU Charter: Text and Structure’ (2001) 8 MJ 27.
132 See: joined cases C-317/08, C-318/08, C-319/08 and C-320/08 Rosalba Alassini v Telecom Italia SpA (C-317/08), Filomena Califano v Wind SpA (C-318/08), Lucia Anna Giorgia Iacono v Telecom Italia SpA (C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08) [2010] ECR I-02213, para 61; Draft Charter of Fundamental Rights of the European Union [2000] Charte 4473/00, 41; case 294/83 Parti écologiste "Les Verts" v European Parliament [1986] ECR 01339, para 23; joined cases 377/00, T-379/00, T-380/00, T-260/01 and T-272/01 Philip Morris International, Inc and Others v Commission of the European Communities. [2003] ECR II-00001, paras 120-122; EU Network of Independent Experts on Fundamental Rights, ‘Commentary of the Charter of Fundamental Rights of The European Union’
(2006) 361 http://ec.europa.eu/justice/fundamental-rights/files/networkcommentaryfinal_en.pdf accessed 23 March 2013.
133 DEB v Bundesrepublik Deutschland (n 91). See also, Hess, ‘Procedural Harmonisation in a European Context’ (n 1) 166.
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generis legal order,134 with increased central enforcement capacity compared to other international organisations.135 More importantly, Article 47 CFREU establishes a more extensive framework of protection of fundamental procedural guarantees in case of violation of EU law.136