Rights and Remedies - Article 47 EUCFR and Effective Judicial Protection in European Private Law Matters

Abstract

This paper explores the current place of Article 47 of the EU Charter of Fundamental Rights (right to an effective remedy) in European private law and assesses whether this provision could form the basis of a judge-made European law on remedies. In order to make this assessment, first, the development of the right to effective judicial protection in EU law is sketched and the relationship of EU fundamental rights to European private law is explained. Subsequently, instances of the application of Article 47 EUCFR in the case law of the Court of Justice of the EU are examined (incl. Alassini, Kadi, Otis and Fus/Stadt Halle). In light of the contemplation of the influence of the right to effective judicial protection in European private law, finally, the thesis is elaborated that, within certain boundaries, Article 47 EUCFR can support the further judicial development of effective remedies in European private law. These boundaries are determined by, inter alia, 1) Article 47 EUCFR’s place between old(er) means of effective judicial protection and new remedies; 2) its relation to the division of tasks between national and EU institutions; 3) the procedure guaranteeing effective protection of Article 47 itself; 4) the relationship between the CJEU and the European Court of Human Rights (ECtHR); 5) the ‘constitutionalising’ effects of Article 47 on European private law adjudication; and, finally, 6) the relationship between regimes for enforcing individual and collective rights.