Abstract
Along with the progressive insertion of the right to an effective remedy in instruments of secondary legislation in different sub-areas of EU migration and asylum law, the question of interplay between the right to an effective remedy guaranteed at the level of primary law (Article 47 of the EU Charter of Fundamental Rights) and secondary law has been gaining more and more importance for the determination of boundaries between matters covered by EU law and those governed by national legislation. The present contribution will seek to examine the interactions between Article 47 of the Charter and the relevant provisions of secondary law in the field of migration and asylum. It will demonstrate that despite dense codification of the right to an effective remedy in different instruments of secondary law, Article 47 of the Charter continues to play a significant role in the case law of the Court of Justice of the EU concerning procedural guarantees conferred upon migrants and asylum seekers. A particular emphasis will be put on the analysis of recent case law developments that reveal the potential of Article 47 of the Charter to serve as a main tool for readjustment of national procedural rules.
Keywords
Long before its formal enshrinement in Article 47 of the Charter of Fundamental Rights of the European Union (the ‘Charter’), 1 the principle of effective judicial protection has played a major role in the EU legal order. 2 The concern for guaranteeing the right to an effective remedy was frequently a main rationale for limiting the application of national procedural rules impeding the enforcement of EU law. 3 As the right to judicial protection is the precondition for effective exercise of all other rights that individuals derive from EU law, respect for it constitutes the essence of the rule of law. 4
Along with the progressive insertion of the right to an effective remedy in instruments of secondary legislation in different areas of EU law, the question of interplay between the right to an effective remedy guaranteed at the level of primary and secondary law has been gaining more and more relevance. 5 Determining such interactions became a particularly challenging task in fields characterized by a complex legal framework ensuring protection of multiple procedural rights closely related to the exercise of the right to an effective remedy. EU migration and asylum law constitutes an illustrative example of such a field. In this branch of law, adequate protection of the right to an effective remedy is an essential precondition for the exercise of a whole set of procedural and substantive rights conferred upon asylum seekers and other third-country nationals (‘TCNs’). As the Treaties provide for a concrete legal basis for the adoption of procedural rules in the field of asylum law, this field specifically merits a special focus. Article 78(2)(d) TFEU confers upon the EU legislator the power to adopt measures for a common European asylum system, including ‘common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status’. There is no equivalent legal basis for the adoption of ‘common procedures’ in the areas of immigration and border controls, yet different instruments regulating these areas contain specific provisions on the right to an effective remedy. The degree of harmonization of this right and of related procedural guarantees varies significantly from one sub-area to the other. As rules relating to the scope and nature of the right to an effective remedy have not been fully harmonized, the application of these provisions often implies a difficult task of determining which aspects of the right are governed by EU law and which (if any) fall within the scope of national legislation. Difficulties resulting from the uncomplete harmonization of the right to a remedy in the area of migration and asylum are mirrored in numerous references addressed to the Court of Justice of the EU (the ‘CJEU’/‘Court’) by national courts seeking guidance on the interpretation of provisions on procedural guarantees enshrined in instruments regulating the field.
The fact that the right to an effective remedy is protected, at the level of both primary and secondary legislation, adds another layer of complexity to the determination of boundaries between matters covered by EU law and those governed by national legislation. As many provisions regulating the exercise of the right to a remedy leave a margin of discretion to Member States, a question arises: to what extent does the CJEU rely upon Article 47 of the Charter as a main tool for interpretation of secondary law provisions in the area of migration and asylum?
Determination of interactions between Article 47 of the Charter and the relevant provisions of secondary law is of paramount importance in the assessment of the case law-based acquis on EU standards of judicial protection. The standards embedded in Article 47 of the Charter cannot, in principle, be lowered by subsequent legislative reforms. 6 By contrast, the EU legislator may reduce standards of protection developed on the basis of an instrument of secondary legislation. In its case law in the field of migration and asylum, the CJEU does not systematically specify whether the established procedural standards derive from Article 47 of the Charter or the applicable secondary legislation. 7 Such a lack of clarity arguably fragilizes the acquis on effective judicial protection of migrants and asylum seekers. The characterization of the role of Article 47 of the Charter in the development of procedural guarantees presents a vital interest in light of the incoming reforms foreseen in the New Pact of Migration and Asylum. 8 The reforms in question have been widely criticized by numerous scholars pointing out that the new provisions could bring significant limitations to fundamental rights, including the right to an effective remedy. 9 The CJEU's recent case law reinforcing the right to an effective remedy stands in sharp contrast with the European Commission's proposals included in the New Pact. It would be interesting to observe whether new legislative reforms could force the Court to abandon its generous case law, developed most often through the interpretation of secondary law read ‘in light of’ or ‘in conjunction with’ Article 47 of the Charter.
The present contribution will demonstrate that the role of Article 47 of the Charter in the CJEU's rulings depends to a large extent on the degree of harmonization of the right to an effective remedy within a specific piece of legislation. Nonetheless, the actual importance of references to Article 47 of the Charter shall be assessed on a case-by-case basis as it tends to vary according to additional factors. These factors may include for example the type of procedural rule at issue or domestic legislative context.
The following findings were developed on the basis of the analysis of the CJEU's case law concerning the application of various sources of the right to an effective remedy in the area of migration and asylum. It should be noted at the outset that there exist important differences regarding the volume of cases across different sub-areas of migration and asylum. 10 Such quantitative disparities may explain why the CJEU applied Article 47 of the Charter more frequently with regard to certain instruments of secondary law than others. In addition, due account should be taken of the politically sensitive background of certain cases which could have justified particularly robust findings regarding EU standards on judicial protection: for instance, on several occasions, serious limitations imposed by a national legislator on the powers of domestic courts incited the latter make more frequent preliminary references to the CJEU. 11 The political context of particular cases as well as the attitude of national jurisdictions in the use of preliminary reference procedure will not be analysed in detail in the present contribution, yet their relevance in shaping the CJEU's case law on remedies shall not be disregarded.
The first part of the contribution will briefly present the current legislative framework relating to the protection of the right to an effective remedy in primary and secondary law in the area of asylum, immigration and border controls (section 1). The second part will trace selected case law developments concerning effective judicial protection and will identify the role of Article 47 of the Charter for the purposes of interpretation of provisions of secondary law in the field. Two recent rulings, C, B and X and I, S, providing particularly valuable insights on how the legislative framework affects the manner in which the Court uses Article 47 of the Charter will be subject to detailed analysis (section 2). 12 The third part will focus on the analysis of Article 47 of the Charter as a key tool for readjustment of national procedural rules leading to significant empowerment of national courts, which are called to apply EU legal framework on migration and asylum (section 3).
Sources of the right to an effective remedy in the field of migration and asylum
Although Article 47 of the Charter constitutes the main reference of the right to an effective remedy in primary law, due account should be taken of other provisions that concern directly or are closely related to the objective of ensuring judicial protection in the EU legal order (section 1.A). In the field of migration and asylum, the level of harmonization of the right to an effective remedy varies significantly from one sub-area to the other (section 1.B).
Primary law: Multiple sources of the right to effective judicial protection
As other fundamental rights, the right to effective judicial protection was initially protected in the EU legal order as a general principle of EU law. 13 According to the well-established case law, Article 47 of the Charter, which acquired binding force with the entry into force of the Lisbon Treaty, ‘constitutes a reaffirmation of the principle of effective judicial protection’. 14 The first paragraph of Article 47 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.’ The second paragraph provides for a right to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’ and the possibility of legal advice. The third paragraph includes the right to legal aid. 15
In its early case law relating to the scope of the principle of effective judicial protection the CJEU has put emphasis on the close relationship between this principle and Articles 6 and 13 of the European Convention of Human Rights (the ‘ECHR’). 16 These provisions as well as the related case law of the European Court of Human Rights (the ‘ECtHR’) have effectively served as guidance for determining the scope of the principle to effective judicial protection and subsequently, for the interpretation of Article 47 of the Charter. Nonetheless, it is worth observing that the first paragraph of Article 47 of the Charter does not ‘correspond’ (in the meaning of Article 52(3) of the Charter) to Article 13 ECHR guaranteeing the right to an effective remedy. 17 The Explanations to the Charter specify that it is solely ‘based’ on Article 13 ECHR. In fact, Article 47 of the Charter guarantees a higher level of protection than Article 13 ECHR. 18 Unlike the application of Article 13 ECHR, the application of Article 47 is not dependent upon the violation of another right of fundamental nature. Moreover, according to the ECtHR's case law a remedy required by Article 13 ECHR does not have to be of judicial nature whereas such a requirement exists under Article 47 of the Charter. The scope of the right to a fair trial ensured by the second paragraph of Article 47 is also broader than the scope of its equivalent in the Convention (Article 6 ECHR). The latter applies solely with regard to claims of civil and criminal nature. For this reason, the application of Article 6 ECHR is excluded in litigation in the sphere of migration and asylum procedures. 19
Apart from bestowing Article 47 of the Charter with a binding force, the Lisbon Treaty introduced a specific provision on the protection of the right to an effective remedy: Article 19(1), subparagraph 2, TEU. The latter imposes on the Member States an explicit obligation to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Despite the marked (and ever-increasing) presence of Article 19(1) TEU in the recent case law of the CJEU, 20 this provision has been mentioned only a few times in cases pertaining to the area of migration and asylum and its application did not affect significantly, or at least not in a detectable manner, the interpretation of relevant provisions of secondary law in this field. 21
Closely related to the right to an effective judicial remedy is the fundamental right to good administration enshrined in Article 41 of the Charter. This results from the fact that some defence rights which are currently components of the right to good administration have been previously covered by the general principle of effective judicial protection. 22 For instance, the duty of administrative authorities to give reasons for their decisions, currently enshrined in Article 41(2)(c) of the Charter, was initially derived from the principle of effective judicial protection. 23 Although the obligation to provide sound administration is addressed to the institutions of the EU, it reflects the content of the general principle to good administration that is binding upon the Member State's authorities when they are implementing EU law. 24 In the present contribution the emphasis will be put on the analysis of right to an effective remedy as enshrined in Article 47 of the Charter. Yet due account should be taken of close relationship between Articles 41 and 47 of the Charter, which have sometimes been applied jointly by the Court. 25 In particular, although the right to a fair hearing is provided under Article 41(2) of the Charter, the CJEU specified that the right to oral hearing before a court or tribunal derives directly from Article 47 of the Charter. 26 The right to an effective remedy and the right to sound administration are not absolute: their exercise may be limited in conformity with the conditions enshrined in Article 52(1) of the Charter: restrictions to these rights must be provided for by law, respect the essence of those rights and be consistent with the principle of proportionality.
B. Secondary law: Protection of the right to an effective remedy in different areas of asylum and migration law
The right to an effective remedy has been fleshed out in several provisions of secondary legislation in the field of asylum, border controls and immigration. The level of harmonization of this right varies considerably from one sub-field to the other. Far from providing a full picture of instruments giving expression or complementing fundamental right to an effective remedy, the following overview of selected provisions regulating asylum procedures (section 1.B.1), the functioning of the Dublin system (section 1.B.2), return procedures (section 1.B.3) and short-term visas and legal migration (section 1.B.4) aims to pinpoint their key features that have given rise to a significant body of case law.
Asylum procedures
Directive 2013/32 (the ‘Asylum Procedures Directive’) 27 provides for rules on the administrative phase of the asylum procedure and the exercise of the right to a remedy. 28 Despite the fact that the directive contains more detailed guidance on the scope and nature of procedural guarantees than the previous version of the instrument (Directive 2005/85 – the ‘former Asylum Procedures Directive’), 29 many provisions still leave an important margin of discretion to national authorities. 30 This results from the fact that during negotiations of the recast instrument Member States wished that their respective administrative traditions were reflected in the directive's provisions. 31
Article 46 of the directive guarantees the right to a remedy. Paragraph 3 reads as follows: ‘Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU, at least in appeals procedures before a court or tribunal of first instance’. 32 It provides for more detailed safeguards than its predecessor – Article 39 of Directive 2005/85 – which did not require specifically a ‘full and ex nunc examination of both facts and points of law’ and did not guarantee suspensive effect of appeal against the decision regarding the application for international protection. 33 In its current phrasing, Article 46 of the Asylum Procedures Directive constitutes one of the most sophisticated provisions on the right to a remedy in asylum and migration law. Yet even this provision reserves a significant margin of discretion to Member States. For instance, paragraph 4 underlines that ‘Member States shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy’. It adds that national rules on time limits ‘shall not render such exercise impossible or excessively difficult’. The Member States’ discretion with regard to establishment of time limits in appeal procedures is thus subject to the respect of the principle of effectiveness. 34
Apart from the provision on the right to an effective remedy, Directive 2013/32 includes various detailed procedural guarantees intrinsically linked to the exercise of the right to judicial protection. Chapter II of the directive lays down procedural guarantees for asylum seekers during the administrative phase regarding the examination of the application for international protection. These guarantees include, inter alia, the right to a personal interview 35 and the right to legal assistance and representation. 36 They form a key part of the rights of defence and play a crucial role in ensuring the respect of the right to an effective remedy.
The Dublin system
Regulation 604/2013 (the ‘Dublin III Regulation’) lays down the rules for determining the Member State responsible for examining an application for international protection. 37 As the Dublin system has been initially conceived as inter-state system mechanism, for a relatively long time, instruments regulating its functioning did not provide for an opportunity for individuals to challenge a transfer decision. 38 In the seminal judgment N. S., the Court recognized for the first time that individuals could bring an action against the transfer decision in exceptional situations where the transfer presented a real risk of violation of the prohibition of torture and inhumane and degrading treatment resulting from systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in the responsible Member State. 39 In subsequent rulings on the interpretation of the Dublin II Regulation (Regulation 343/2003, predecessor of Regulation 604/2013), 40 the Court confirmed that the existence of systemic deficiencies in the responsible state and related risk of breach of the right enshrined in Article 4 of the Charter constituted the only ground which could be successfully invoked by individual seeking to challenge a transfer decision. 41 Yet this situation changed considerably with the entry into force of the recast instrument (the Dublin III Regulation).
Article 27 of the Dublin III Regulation provides for the right to appeal against the transfer decision. Pursuant to this provision applicants for international protection ‘shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal’. Consequently, under current legislative framework, individuals may invoke various grounds to challenge the transfer decision. 42 This was recognized by the CJEU for the first time in Ghezelbash, in which it stated that in light of ‘the general thrust of the developments’ that have taken place in the Dublin system, the individuals seeking to annul the transfer decision might invoke the incorrect application of one of the criteria for determining responsibility of the Member State to examine the application for international protection. 43 Since the entry into force of the new regulation, national jurisdictions have seized the CJEU many times with questions concerning the admissibility of concrete grounds under Article 27 of the Regulation. Overall, the Court favoured broad interpretation of the right to an effective remedy.
Return procedures
Directive 2008/115 (the ‘Return Directive’) contains numerous procedural guarantees for TCNs subject to return procedure. 44 Article 13 guarantees the right to an effective remedy against return decisions ‘before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence’. It does not demand therefore that the appeal be examined by the judicial body. Yet, as it was clarified by the CJEU, such a requirement stems from Article 47 of the Charter. 45 The provision does not contain many indications regarding the scope of review. In particular, Article 13(2) does not explicitly require the review on the merits. 46 Moreover, it does not require that an appeal against return decision have an automatic suspensive effect. 47 Yet in several cases relating to the respect of the principle of non-refoulement the CJEU specified that, under some circumstances, the remedy guaranteed under Article 13 must have such an effect. 48
Other procedural guarantees closely linked to the right to a remedy include the access to information (Article 12) and legal and linguistic assistance (Article 13(4)). Notably, special guarantees are foreseen for TCNs kept in detention. In particular, Article 15 provides for a ‘speedy judicial review’ in case detention has been ordered by an administrative authority. Yet it does not contain indications regarding the scope of such review. 49
Short-term visas and legal immigration
In the absence of full harmonization in visa matters, different aspects of visa-related proceedings fall within the competence of Member States. 50 Numerous provisions of Regulation 810/2009 (the ‘Visa Code’) make explicit references to the laws of the Member States or grant to national authorities an important margin of discretion with regard to the execution of specific tasks. 51
Article 32(3) of the Visa Code guaranteeing the right to an effective remedy is far less detailed than its equivalents in the areas of return and asylum procedures. It specifies that ‘applicants who have been refused a visa shall have the right to appeal’. Such appeals shall be conducted ‘in accordance with the national law of that Member State’. 52 The generic wording of the provision and an explicit reference to national laws indicate that the EU legislator did not intend to replace national procedural rules by uniform EU rules. Read literally, Article 32(3) of the regulation does not require that an appeal against the refusal of a visa be brought before a judicial authority. Yet the CJEU confirmed the obligation of national authorities to establish a judicial remedy in the field on the basis of Article 47 of the Charter. 53
Similarly, numerous instruments regulating the field of legal immigration contain provisions on the right to appeal that have been broadly drafted. 54 For instance, Article 18 of the Family Reunification Directive guarantees the right to ‘mount a legal challenge’ against the decision of rejection of an application for family reunification or withdrawal of residence permit. 55 The provision does not require that the review be of judicial nature and specifies that procedures according to which the right is exercised ‘shall be established by the Member States’.
The added value of Article 47 of the Charter in the CJEU's case law
On different occasions, the CJEU has emphasized that the characteristics of remedies against decisions on asylum and return procedures ‘must be determined in a manner that is consistent with Article 47 of the Charter’. 56 Yet a deeper look into the case law on the right to an effective remedy in migration and asylum reveals complexity of interplay between different sources of this right. Overall, the intensity of reliance on Article 47 of the Charter and effects of its application seem to vary according to the level of harmonization of the right to an effective remedy in particular areas of migration and asylum law.
A brief overview of the application of Article 47 of the Charter in different areas of migration and asylum demonstrates the importance of this provision in determining characteristics of judicial review guaranteed by selected instruments of secondary law. As observed above, both the Asylum Procedures Directive and the Dublin III Regulation contain quite detailed provisions on protection of the right to an effective remedy. Thus, it is understandable that in many rulings relating to the interpretation of these provisions, the CJEU did not consider it necessary to make extensive use of Article 47 of the Charter (section 2.A). On the contrary, the Charter provision turned out to be a particularly valuable interpretive tool in the determination of the characteristics of the right to an effective remedy guaranteed under the Return Directive and the Visa Code since these instruments do not contain detailed provisions on the exercise of the right to an effective remedy (section 2.B).
Asylum procedures and the Dublin system: Reduced visibility of Article 47 of the Charter in the wake of legislative reforms
Asylum procedures
Article 47 of the Charter played a significant role in the interpretation of the right to an effective remedy guaranteed by Article 39 of the former Asylum Procedures Directive. 57 For instance, in Samba Diouf, the Court relied on Article 47 of the Charter and the principle of effective judicial protection to specify that decision relating to the application for international protection shall be subject to ‘thorough review’ and that such a review shall encompass reasons of examining the application under an accelerated procedure. 58 The marked presence of Article 47 of the Charter in the reasoning of the Court presumably resulted from broad terms of Article 39 of the former Asylum Procedures Directive. The lack of specific guidance as to the scope and intensity of judicial review in secondary legislation has been thus remedied by reliance on the Charter provision. 59 Noteworthily, relying on Article 47 of the Charter, the CJEU ruled that the remedy against decisions rejecting application shall be endowed with suspensory effect even though such a requirement was not foreseen by Article 39 of the former directive. 60
Arguably, with the entry into force of the recast instrument, the necessity to invoke Article 47 of the Charter for the purpose of interpretation of the right to an effective remedy became less compelling. The interpretation of the right to judicial remedy was often made by sole reference to the secondary law provisions. 61 In cases such as Ahmedbekova or Fathi, a specific wording of Article 46 of the Asylum Procedures Directive and legislative context allowed the Court to determine particular characteristics of judicial review without making references to Article 47 of the Charter. 62 Similarly, in a set of judgments concerning time limits regarding the exercise of the right to an effective remedy (cases JP, LH, PG, T.H.C.), the CJEU refrained from examining a specific question of whether time limits such as those established by national legislator were compatible with Article 47 of the Charter. 63 Rather it decided to scrutinize national standards by reference to the principle of effectiveness 64 which, as observed above, has been explicitly codified in 4th paragraph of Article 46. It is therefore the principle of effectiveness, and not Article 47 of the Charter, which constituted the benchmark for assessing the compatibility of national procedural rules with EU law. The scrutiny of national procedural rules against the requirements stemming from the principle of effectiveness (rather than Article 47 of the Charter) is consistent with the CJEU's approach towards rules on time limits in a wider context and with the wording of Article 46, paragraph 4. 65 In these judgments, only a brief reference is made to Article 47 of the Charter in the operative parts of the rulings (les dispositifs): the Court indicates that Article 46 of the Asylum Procedures Directive has been ‘read in light of Article 47 of the Charter’. 66 This short mention of Article 47 of the Charter might be interpreted as reminder of the fundamental nature of the right to an effective remedy codified in Article 46. As the right has been fleshed out in the secondary legislation, the Court could review national measures only by reference to the secondary legislation. It is worth observing, however, that in some cases, the scrutiny made under the principle of effectiveness was quite rigorous and had far-reaching consequences for national procedural rules – presumably, a similarly strict control would have been exercised had the Court chosen to use as a benchmark Article 47 of the Charter. 67
In Alheto the Court made some references to Article 47 of the Charter while providing clarifications on the requirement of ensuring ‘full’ and ‘ex nunc’ examination. 68 Firstly, the Court ruled that the judicial review should encompass the examination of circumstances which arose after the adoption of the decision relating to an application for international protection. 69 Secondly, it specified that the competent court which plans to examine a ground of inadmissibility which has not been examined by the determining authority must hear the applicant concerned. 70 Whereas the first finding could have been probably made without mobilizing Article 47 of the Charter, the reliance on the Charter seemed indeed justified for the ‘extension’ of the requirement to hear the applicant foreseen in Article 34 of the Asylum Procedures Directive to a judicial phase of the proceedings.
In several cases relating to the application of Article 46 of the Asylum Procedures Directive, a clear lack of legislative guidance on particular aspects of the right to an effective remedy incited the Court to rely more intensely on Article 47 of the Charter. This concerned, for instance, the question of the automatic suspensive effect of appeal against a judgment delivered at first instance upholding a decision rejecting an application for international protection. 71 In X and Y, the Court specified that under Article 46 of the Asylum Procedures Directive, read in the light of Article 47 of the Charter, the automatic suspensive effect is required only with regard to procedures of first instance. 72 Besides, the CJEU has systematically invoked Article 47 of the Charter when recalling that current legislative framework in return and asylum procedures does not require establishment of second level of appeal. 73 Member States may, however, introduce a second level of jurisdiction against decisions rejecting an application for international protection and against return decisions. 74 National rules providing for a second level of appeal must observe the principles of equivalence and effectiveness. 75
Another point which is not regulated by the Asylum Procedures Directive relates to consequences of the annulment of the decision concerning the application for international protection. In Alheto and Torubarov, the Court observed that ‘Article 46(3) of Directive 2013/32 does not govern what happens after any annulment of the decision relating to application for international protection.’ 76 Called to clarify consequences of such an annulment the Court heavily relied on Article 47 of the Charter. Through the application of Article 46 of the Asylum Procedures Directive ‘in conjunction with Article 47 of the Charter’ it ruled that a new decision consistent with the assessment made by national jurisdiction should be adopted promptly by administrative authorities 77 and that, in some cases, a national court should be able to substitute its own decision of that of national authorities. 78
The Dublin system
In rulings involving the interpretation of the Dublin II Regulation, the Court abstained from mentioning Article 47 of the Charter. 79 Overall, the reliance on sole provisions of the secondary legislation, resulted in a particularly narrow interpretation of the right to an effective remedy. 80 Such an approach could be explained by the perception of the Dublin II Regulation as an ‘inter-state’ instrument as well as by the Court's willingness to boost the concept of mutual trust between Member States. 81 Nonetheless, it is true that the reliance on Article 47 of the Charter could have contributed to striking a fairer balance between the objective of ensuring effective functioning of the Dublin system and the concern for protection of rights of asylum seekers. The quest for such a fairer balance has resulted in the adoption of the recast regulation. A new legislative framework allowed the Court to retrace the scope of the right to an effective remedy and reinforce the position of an individual in the Dublin system.
On the one hand, the great majority of cases on the interpretation of Article 27 of the Dublin III Regulation guaranteeing the right to an effective remedy does not mention explicitly Article 47 of the Charter. 82 In some judgments, the Court made minor references to Article 47 of the Charter, which did not seem to have particular relevance in its reasoning nonetheless. 83 However, while interpreting Article 27 of the Dublin III Regulation, the Court has quite often invoked recital 19 of the regulation, which refers to Article 47 of the Charter. 84 Generally, in its case law, the Court proceeded to a particularly broad interpretation of the right to an effective remedy by admitting new grounds on the basis of which an individual might challenge the transfer decision such as incorrect application of the responsibility criteria or expiration of relevant time limits. 85 On multiple occasions the Court underlined that a significant extension of the scope of the right to a remedy was the result of legislative reform. 86 As Article 47 has been de facto integrated into the scheme of a new legislation (Article 27 and recital 19 of the regulation), the Court was able to provide useful guidance on the interpretation of the right to a remedy by sole reliance on secondary law.
On the other hand, case law demonstrates that the Court is ready to explicitly invoke Article 47 of the Charter when adjudicating upon questions which have not been sufficiently regulated by the legislator. For instance, the Dublin III Regulation does not specify on whether a court examining lawfulness of a transfer decision should take account of new evidence submitted by the applicant after the adoption of the transfer decision. In H. A. vs État Belge, interpreting Article 27 of the Dublin III Regulation ‘in the light of recital 19 thereof, and Article 47 of the Charter’ the Court considered that a national jurisdiction should be able to take into account a change of circumstances while reviewing the transfer decision. 87
In a more recent case, I, S, the Court had the opportunity to provide clarifications on the scope of the right to an effective remedy guaranteed by Article 27 of the Dublin III Regulation in a specific situation relating to the application for international protection lodged by an unaccompanied minor. 88 A highly fundamental rights-sensitive dimension of the case required a significant widening of the scope of the right to judicial protection for the purpose of ensuring the respect of different rights and interests protected within the framework of the Dublin III Regulation.
The facts of the case are as follows. An unaccompanied minor who applied for international protection in Greece sought to be united with his uncle residing in the Netherlands. Under Article 8(2) of the Dublin III Regulation, the asylum application of an unaccompanied minor who has a relative in another Member State should be examined by that Member State and the minor concerned should be united with the relative, provided that it is in the best interests of the child. Yet the Dutch authorities rejected the request to take charge of the minor on the ground that the identity of the child and the alleged family relationship could not be established. The minor sought to challenge a decision of the Dutch authorities. National jurisdiction asked the CJEU whether a judicial remedy against the refusal of the request to take charge could be derived from Article 27 of the Dublin III Regulation or Article 47 of the Charter. The CJEU considered that the minor should indeed be entitled to contest the decision under Article 27 of the Dublin III Regulation despite the fact that the latter did not provide explicitly for a remedy against a refusal of a take charge request.
In its reasoning the Court first recognized that based on a literal interpretation, Article 27 of the Regulation guarantees a remedy only for the purpose of challenging a transfer decision. 89 Nonetheless, it then emphasized that the provision must be interpreted in compliance with fundamental rights enshrined in the Charter. 90 The Court recalled that the right to an effective remedy protected under Article 47 of the Charter corresponds to the obligation of the Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law enshrined in the second subparagraph of Article 19(1) TEU. 91 It then referred to its key findings from Ghezelbash, 92 recalling that under Article 27 of the Dublin III Regulation, an asylum seeker is entitled to plead the incorrect application of one of the criteria for determining responsibility laid down in the regulation. 93
The Court pointed out that ‘Article 8(2) of the Dublin III Regulation is intended to ensure full respect for the fundamental rights of unaccompanied minors, guaranteed in Articles 7 and 24 of the Charter.’ 94 It observed that Article 24 of the Charter and several provisions of the Dublin III Regulation impose an obligation to take account of the best interest of the child during the determination of the Member State responsible for the examination of the application for international protection. 95 Additionally, in the same way as a transfer decision, a decision refusing a take charge of unaccompanied minor might undermine his right to be united with his or her relative. 96 The Court concluded that under Article 27(1) of the Dublin III Regulation, read in conjunction with Articles 7, 24 and 47 of the Charter, a minor may challenge the refusal of the take charge request. 97
Given the weight accorded by the legislator and by the Charter to the concern for protection of the best interest of the child within the Dublin system, a significant extension of the scope of Article 27 of the Dublin III Regulation in the case at hand seems justified. The wide interpretation of this provision, reinforced by explicit references to Article 47 of the Charter, shall guarantee full respect of the fundamental right of the child to family unity which Article 8(2) of the regulation seeks to protect. It is not certain whether the Court would have broadened the scope of review under Article 27 and whether it would have applied Article 47 of the Charter if the case had not involved the application of the ‘fundamental rights-sensitive’ criterion (such as Article 8(2) of the Dublin III Regulation) and if the applicant had not been an unaccompanied minor. Extending the scope of judicial remedy to new type of decisions, that is, to refusals to take charge request, constitutes a significant step in boosting protection of asylum seekers within the Dublin framework. The case is all the more remarkable as it led to the extension of national courts’ jurisdiction under Dublin III Regulation. It makes clear that, under certain circumstances (for instance in cases on the protection of the child's best interests) national courts are not only competent to examine the challenge against transfer decision but also against a decision not to transfer the asylum seeker.
H. A. vs État Belge and I, S, containing explicit references to Article 47 of the Charter constitute rather an exception in multiple judgments concerning the interpretation of the right to an effective remedy in the context of Dublin proceedings. The predominant choice not to ground the case law developments within the purview of primary law fragilizes the judge-made acquis in the sphere of effective judicial protection in the Dublin system. There is a risk that subsequent legislative reforms would reduce procedural guarantees of TCNs. 98 The Proposal for a Regulation on asylum and migration management (included in the New Pact on Migration and Asylum) considerably reduces the scope of the right to an effective remedy thus confirming that such a risk is not abstract. 99
Return procedures, short-term visas and legal immigration: Key function of Article 47 of the Charter in the interpretation of broadly drafted provisions of secondary legislation
Return procedures
Article 47 of the Charter allowed the Court to significantly expand judicial protection of TCNs subject to return procedures. As mentioned above, the Return Directive does not endow appeal against return decisions with suspensive effect. Yet in Abdida the Court underlined that provisions of the Return Directive ‘taken in conjunction with’ Article 19(2) of the Charter (prohibition of refoulement) and Article 47 of the Charter guarantee suspensive effect of remedy against return decision in cases where the enforcement of that decision would lead to the risk of violation of the principle of non-refoulement. 100
Broad interpretation of the right to an effective remedy against return decision achieved through the reliance on Article 47 of the Charter was essential for ensuring the respect of the principle of non-refoulement guaranteed within the framework of the Return Directive. 101 In the absence of requirement regarding the suspensive effect of the remedy in Article 13 of the Return Directive, the application of the Charter was necessary to fill in the gap in protection of fundamental rights. Findings from Abdida were further developed in subsequent cases in which the Court continued to interpret Article 13 of the directive ‘in the light of the principle of non-refoulement and the right to an effective remedy’ enshrined in Article 47 of the Charter. 102 In particular, in the CJEU heavily relied on Article 47 of the Charter while specifying that under EU law national jurisdiction must have the power to hold that an action for annulment of a return decision leads to automatic suspension of that decision even though it does not have such a competence under national legislation. 103
Another ‘gap’ in the fundamental rights protection which was filled in by reference to Article 47 of the Charter concerns the judicial nature of the remedy against return decisions. In the seminal case FMS v. Országos, the Court clearly stated that individuals must have access to judicial review against return decisions. 104
With regard to Article 15 of the Return Directive guaranteeing the ‘speedy judicial review’, in Mahdi, the CJEU interpreted broadly the scope of review of the detention decision. It specified that ‘a judicial authority deciding upon an application for the extension of detention must be able to rule on all relevant matters of fact and of law in order to determine, […] whether an extension of detention is justified’. 105 Additionally, the judicial authority should be able to substitute its own decision for that of administrative authority if the latter was found unlawful. 106 The judgment contains only scarce references to Article 47 of the Charter even though, according to some authors, the Charter-based logic was underlying the reasoning of the Court. 107 The reliance on the Charter would justify broad interpretation of Article 15 of the Return Directive and legitimize far-reaching consequences of the ruling for the national system of procedural rules.
The explicit reliance on Article for 47 of the Charter for the purpose of strengthening protection against arbitrary detention could have been observed in the recent Joined Cases C, B and X. 108 Under the applicable Dutch legislation, courts could not review detention measure on the grounds other than those relied on by the foreign national during the proceedings. In addition, they could not release the detainee even after having found that the detention is unlawful on grounds different than those put forward by the person concerned. In the C, B and X, three TCNs have been detained under relevant provisions of the Reception Conditions Directive 109 (Article 9), the Dublin III Regulation (Article 28) and the Return Directive (Article 15). In both cases, detainees contested the detention orders. Ruling upon the lawfulness of these orders, the Dutch jurisdictions decided to ask the CJEU whether EU law foresees an obligation for national courts to raise an argument concerning unlawfulness of detention of their own motion. The CJEU responded in the affirmative. In its reasoning, the Court put strong emphasis on the links between both Article 6 and Article 47 of the Charter and provisions of secondary law fleshing out the right to liberty and the right to an effective remedy.
At the beginning of the judgment, the Court recalled that detention constitutes a serious interference with the right to liberty enshrined in Article 6 of the Charter. It observed that Article 15 of the Return Directive, Articles 8 and 9 of the Reception Conditions Directive 2013/33 and Article 28 of the Dublin III Regulation lay down the conditions governing the lawfulness of detention, ‘including in the light of Article 6 of the Charter’. 110 After having highlighted that the lawfulness of detention is subject to strict conditions, the Court moved to the analysis of another fundamental right applicable in the cases at hand: the right to an effective remedy enshrined in Article 47 of the Charter. It noticed that Article 15(2) of the Return Directive and Article 9(3) of the Reception Conditions Directive ‘give concrete form’ to the right to effective judicial protection safeguarded in Article 47 of the Charter. Importantly, the Court underlined that with regard to control of lawfulness of detention of TCNs ‘the EU legislature has not confined itself to establishing common substantive standards but has also established common procedural standards’. 111 Drawing attention to the close links between primary and secondary law has allowed the Court to interpret broadly the scope of two fundamental rights at stake. In view of the importance of the right to liberty and the requirement of a high level of judicial protection established by the EU legislator in the context of detention of migrants, the competent court must be able to raise the failure to comply with a condition governing lawfulness of detention of its own motion. 112 The interpretation of Article 15 of the Return Directive, Article 9 of the Reception Conditions Directive and Article 28 of the Dublin III Regulation, ‘read in conjunction with Articles 6 and 47 of the Charter’ led thus to the imposition of a new duty for national courts adjudicating upon the lawfulness of detention. 113
Presumably, the fact that the right to an effective remedy has been invoked for the purposes of protection of another fundamental right, the right to a liberty, justified a significant increase of powers of national judges and setting aside the doctrine of national procedural autonomy. 114 It should be underlined that the imposition of a new procedural duty for national courts was justified by ‘a specific normative context’ of the Joined Cases. 115 In the ruling, the Court emphasized that EU legislator decided to regulate both substantive and procedural aspects of the lawfulness of detention 116 and established for this purpose ‘common EU standards on judicial protection’. 117 It is worth noting that in this case the Court for the first time used the expression ‘common EU standards on judicial protection’. As accurately pointed out by Advocate General Pikamäe, in its reasoning the Court highlighted that, under Article 15(3) of the Return Directive, in case of the continuation of the detention measure, the competent authority is required to control the lawfulness of the measure of its own motion, even if the person concerned does not request it. 118 The establishment of the obligation for national jurisdictions to raise ex officio the failure to comply with detention conditions at an earlier stage of detention was thus consistent with other requirements flowing from Article 15 of the Return Directive and with the concern for ensuring a high level of protection of the right to liberty of the TCNs expressed by this provision.
Short-term visas and legal immigration
In cases concerning granting of short-term visas, judicial review is limited ‘to ascertaining whether the contested decision is based on a sufficiently solid factual basis and verifying that it is not vitiated by a manifest error.’ 119 As the Visa Code confers large discretion to national authorities in the implementation of EU rules, on several occasions, the CJEU relied on Article 47 of the Charter to determine the minimum standard of judicial protection.
In the landmark case El Hassani, the Court made clear that despite its broad wording, Article 32(3) of the Visa Code requires establishment of judicial remedy. In its reasoning the Court first stated that modalities of the remedy shall be determined by national legislation and referred explicitly to the doctrine of national procedural autonomy. 120 Yet it then observed that national procedural rules at stake should be compliant with Article 47 of the Charter. 121 The silence of secondary law provision on the nature of the remedy provided the CJEU with the opportunity to establish the minimum level of protection on the basis of Article 47 of the Charter. The CJEU confirmed in that case that the wide discretion of the Member States with regard to the determination of the remedy did not preclude the application of Article 47 of the Charter. 122 El Hassani actually contributed the creation of new remedy of judicial nature in domestic legal order. 123 The requirement of an effective remedy before a court or tribunal was based on Article 47 of the Charter and applies irrespective of the type of migration case at issue. 124
In R.N.N.S. and K.A., the CJEU again used Article 47 of the Charter as guidance for interpretation of Article 32(3) of the Visa Code. In that case, it held that a decision on the refusal of visa on the ground that another Member State objected to the issuing of that visa shall indicate ‘the identity of the Member State which raised that objection, the specific ground for refusal based on that objection, accompanied, where appropriate, by the essence of the reasons for that objection’. 125 Therefore, the wide interpretation of the right to review achieved through reliance on Article 47 of the Charter extended the obligations of the national authorities in visa-related proceedings. A marked presence of Article 47 of the Charter in cases concerning visa-related proceedings might be the result of the broad phrasing of Article 32(3) of the Visa Code. In El Hassani and R.N.N.S. and K.A., the CJEU interpreted the provision ‘in the light of Article 47 of the Charter’. 126
The Court did not have many occasions to provide clarifications on characteristics of the right to an effective remedy within different secondary law instruments regulating legal immigration. In the Joined Cases B. M. M. concerning interpretation of Article 18 of the Family Reunification Directive, the Court specified that although the provision confers a certain discretion to Member States, when implementing Directive 2003/86, national authorities must comply with Article 47 of the Charter. 127 It ruled that pursuant to Article 18 of the Family Reunification Directive, ‘read in the light of Article 47 of the Charter’, an action against the rejection of an application for family reunification of a minor child cannot be dismissed as inadmissible solely on the ground that the child concerned has reached majority in the course of the court proceedings. 128
C. Interim conclusion
As it is clear from the above analysis, the presence and the added value of references to Article 47 of the Charter in the CJEU's case law in the area of migration and asylum depends to large extend on the legislative context. Overall, the intensity of reliance on Article 47 of the Charter varies according to the degree of detail of secondary law provision guaranteeing right to a remedy. In the area of migration and asylum, Article 47 of the Charter clearly fulfils a gap-filling function – the Court resorts to this provision in cases where legislative framework does not contain sufficiently detailed guidance on the exercise of the right to an effective remedy. 129 Article 47 of the Charter is oftentimes invoked by the Court in cases raising questions of essential content (the very existence) of the right to an effective remedy, i.e. where national procedural rules do not ensure access to an independent and impartial court. 130 Moreover, Article 47 of the Charter has been used by the Court several times to establish suspensory effect of appeal in situations where such a requirement did not stem from the secondary legislation. 131 The role of the provision has been more marginal in the context of the assessment of the procedural rules relating to conditions of the exercise of the right to an effective remedy, such as rules on time limits. 132 The case law on the interpretation of the Dublin III Regulation indicates that the inclusion in the preamble of the instrument of the recital referring explicitly to Article 47 of the Charter might have a considerable impact on the presence of direct references to this provision in the Court's rulings. The question of whether the ‘generous line’ of case law on the interpretation Article 27 of the Dublin III Regulation could be continued in the aftermath of the expected legislative reforms remains open.
Cases such as C, B and X and I, S suggest that the concern for protection of fundamental rights that had been fleshed out in secondary legislation may justify a particularly wide interpretation of the right to an effective remedy. 133 Apart from highlighting the crucial role of judicial protection in guaranteeing effectiveness of fundamental rights of TCNs, similar rulings illustrate the potential of Article 47 to serve as a main tool for creation of new remedies at the level of EU law and posing limits to the application of national procedural rules.
Conjunctive application of Article 47 and secondary legislation: A tool for readjusting national procedural rules
The presence of Article 47 of the Charter in the Court's judgments tends to be perceived primarily as a guarantee for establishing enhanced protection of fundamental right to an effective remedy. However, apart from fulfilling a key function in reinforcing and setting uniform standards of protection of this fundamental right, Article 47 of the Charter plays a crucial role as a tool used by the Court to ensure effective enforcement of EU law through disapplication or readjustment of national procedural rules. Together with principles of effectiveness and equivalence, Article 47 limits the application of the doctrine of national procedural autonomy. 134 A set of relatively recent cases in the field of migration and asylum reveal the potential of Article 47 of the Charter to serve as a rationale for direct interferences with national procedural rules (section 3.A). The enhancement of judicial protection of migrants and asylum seekers has resulted in a significant empowerment of national courts called to apply EU migration and asylum law (section 3.B).
Article 47 of the Charter: A key tool for readjustment of national procedural rules
The principle of primacy of EU law entails that domestic courts disapply national legislation which is contrary to EU law. In some instances, the effectiveness of EU law requires not solely to disapply national legislation contrary to EU law but also implies the creation of new remedies in domestic legal orders. 135 The emergence of new, EU law-based remedies and positive procedural obligations for national authorities is not a frequent phenomenon in EU law. 136 Yet several recent judgments in the field of migration and asylum directly led to important adjustments of national procedural and remedial rules on the basis of Article 47 of the Charter. This could have been observed in particular in cases relating to the question of establishing jurisdiction of national courts ruling upon cases concerning migration related issues. As mentioned above, in El Hassani, the Court specified that an individual should be able to introduce an action against the decision rejecting visa before a court, and not solely an administrative authority. These findings were recalled in Konsul Rzeczypospolitej Polskiej w N. 137 with regard to Article 34(5) of Directive 2016/801. 138 In a similar vein, the above-mentioned case I, S also contributed to the expansion of the jurisdiction of national courts applying EU asylum law. 139 In that case the joint application of Article 47 of the Charter and Article 27 of the Dublin III Regulation led to broadening the competence of national courts to examine a new type of action raised in the context of application of the Dublin proceedings.
Among the rulings which have resulted in serious interferences with national procedural rules, Torubarov and FMS v. Országos have received increased attention in academic writings. 140 In these judgments the Court relied on comprehensive reasoning based on principles of primacy, direct effect and Article 47 of the Charter to determine consequences of finding that national rule at stake is incompatible with the right to an effective remedy as guaranteed by EU law. The role of Article 47 of the Charter in characterizing the interplay between EU law and national procedural rules is of paramount importance in light of the CJEU's findings relating to interactions between the principle of direct effect and the duty of disapplication of national provision incompatible of EU law. In Popławski II, the CJEU stated clearly that a provision of national law incompatible with a provision of EU law shall be set aside by a national judge when it has a direct effect. 141 Thus, a provision of EU law deprived of direct effect does not trigger the duty of disapplication of national legislation.
According to a well-established case law, Article 47 of the Charter has direct effect. 142 In consequence, national legislation which is found incompatible with Article 47 of the Charter shall be disapplied by national jurisdiction. 143 In Torubarov and FMS v. Országos, the Court drew close links between provisions of secondary law protecting right to an effective remedy and Article 47 of the Charter. More precisely, the Court recognized direct effect of Article 46(3) of the Asylum Procedures Directive in Torubarov and of Article 13(1) of the Return Directive in FMS v. Országos. 144 In both cases, the direct effect of provisions guaranteeing the right to a remedy seemed to have been simply derived from the direct effect of Article 47 of the Charter. Findings on direct effect of the right to an effective remedy as enshrined in instruments of secondary law immediately triggered the duty of disapplication of national legislation incompatible with EU law. 145 Yet, more importantly, the conjunctive application of secondary law provisions and Article 47 of the Charter resulted in direct readjustment of national procedural rules. In Torubarov, the CJEU considered that after having ruled that the decision regarding the application for international protection was unlawful, the domestic jurisdiction should be able to vary the decision of administrative authority even though it did not have such a power under national law. 146 In FMS v. Országos, the Hungarian law at stake did not guarantee any judicial review for third-country nationals staying in transit zones. After having qualified the stay of TCNs in such transit zones as ‘detention’, the CJEU ruled that the referring court shall declare itself competent to rule upon the lawfulness of detention decision. 147 Importantly, the Court emphasized that national legislation in question ‘undermines the essential content of the right to effective judicial protection, guaranteed in Article 47 of the Charter, in that it absolutely prevents a court from ruling on respect for the rights and freedoms guaranteed by EU law to the third-country national placed in detention.’ 148 The national court was therefore obliged to declare that it had competence to examine the lawfulness of detention measure and to disapply national procedural law that would prevent it from doing this. 149 The conjunctive application of Article 47 of the Charter and provisions of the directive providing for the right to an effective remedy led to a significant broadening of the jurisdiction of national courts applying EU migration and asylum law.
The reasoning based on the cumulative application of doctrines of primacy, direct effect and the principle of effective judicial protection as enshrined in EU primary and secondary law instruments reveals the potential of Article 47 of the Charter to serve as a key tool for readjustment of national procedural and remedial rules. 150 Although important adjustments of national procedural rules may result also from the application of other directly effective norms of EU law, 151 several cases confirm that the CJEU seems to be particularly inclined to rely on Article 47 of the Charter when it is called to make far-reaching inroads into domestic systems of remedies. 152
Empowerment of national judges: Towards common standards of protection of the right to a remedy?
The application of Article 47 has on many occasions required important readjustments of national procedural rules. 153 Cumulatively, these readjustments resulted in empowerment of national courts called to apply EU migration and asylum law. 154 Such an empowerment has occurred in particular through broadening of the jurisdiction of national courts. 155 The wide interpretation of the scope and nature of review equally increases the role of national judiciary in the protection of fundamental rights of TCNs. Equipped with new procedural tools which shall guarantee the effective application of the EU legislative framework, national courts play an increasing role in ensuring the application of the right to an effective remedy. A few selected cases demonstrate how the conjunctive application of Article 47 of the Charter and secondary law provisions guaranteeing the right to an effective remedy enshrined in secondary law instruments has increased the powers of judicial authorities ruling upon migration- and asylum-related issues. The empowerment of national courts constitutes a crucial step in the ongoing construction of EU-wide standards of protection of the right to an effective remedy. The EU legal framework in migration and asylum, as interpreted by the CJEU, regulates more and more detailed aspects of jurisdiction of national courts controlling decisions rendered by administrative authorities. Consequently, the scope of national procedural autonomy becomes further limited.
A gradual increase of powers of national courts in the field could have been observed in cases relating to the review of the decision on the application for international protection under the Asylum Procedures Directive. Alheto was one of several preliminary references concerning the scope of powers of national court called to examine the lawfulness of the decision on the application for international protection. 156 These preliminary references raised the question of consequences of the annulment decision rejecting the application for international protection taken by an administrative authority. In Alheto the Court recognized that ‘the purpose of Directive 2013/32 is not to establish a common standard in respect of the power to adopt a new decision on an application for international protection after the annulment of the initial decision’. 157 Yet it then added that it results from ‘the need, arising from Article 47 of the Charter, to ensure an effective remedy’ that in the event that the file is referred back to the administrative authority, a new decision shall be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision. 158 Findings from Alheto were further developed in Torubarov, in which the Court specified that in case an administrative authority failed to take a decision in compliance with the judicial assessment, the judicial authority should be able to substitute its own decision of that of the administrative authority. 159 The need to preserve practical effect of Article 46 of the directive and the concern for protection of ‘the essential content of the right provided for in Article 47 of the Charter’ incited the Court to impose a new duty on national jurisdictions in case administrative authorities refuse to issue a new decision on the application for international protection consistent with the assessment made by competent jurisdiction. 160
In H. A. v. État Belge, concerning the Dublin system, the Belgian rule explicitly prohibited national courts from examining circumstances that arose after the adoption of the transfer decision. 161 Relying on Article 47 of the Charter as a limitation to the doctrine of national procedural autonomy, the Court considered that a national jurisdiction should be able to take into account such circumstances while reviewing the lawfulness of the transfer decision under Article 27 of the Dublin III Regulation.
The willingness of the Court to confer additional procedural tools to national courts called to apply EU migration and asylum law has been also visible in the Joined Cases C, B and X analysed above. 162 The reliance on Article 47 of the Charter and common procedural rules at the expense of doctrine of national procedural autonomy allowed the Court to create new procedural obligation for national judges. It is interesting to note that the question of ex officio application of EU law has been traditionally tackled through referring to the doctrine of national procedural autonomy and its limitations (the application of the ‘Rewe/Comet test’). 163 Yet in C, B and X the Court opted for a more demanding scrutiny of national procedural rules on the basis of Article 47 of the Charter. As pointed out above such an approach was justified by the specific legislative and factual framework of the joined cases that was strongly marked with the concern of fundamental rights protection of most vulnerable group of TCNs. Arguably, the reliance on Article 47 of the Charter allowed the Court to be more demanding with regard to the requirement of the scope of the obligation of ex officio review of lawfulness of detention. Although the final outcome of the ruling is not surprising given that the Return Directive confers overall important powers to judges responsible for controlling the lawfulness of detention, the CJEU's choice to assess national procedural rules by reference to Article 47 of the Charter may be seen as a significant step in the establishment of common standards of protection against restrictions of right of liberty of TCNs.
By rooting its findings regarding the powers of national judges ruling upon migration and asylum-related issues in Article 47 of the Charter, the Court actively participates in the construction of common procedural rules in the field. Even though in several judgments the Court recognized that some aspects of judicial review fall into the scope of national procedural autonomy, it then invoked Article 47 of the Charter and principle of effectiveness to restrict the application of domestic rules. 164 The wide interpretation of the right to an effective remedy contributes to further judicial harmonization of procedural rules in the field of migration and asylum.
Conclusion
Despite dense codification of the right to an effective remedy in different instruments of secondary law in the field of migration and asylum, Article 47 of the Charter continues to play a significant role in the Court's case law relating to procedural guarantees conferred upon migrants and asylum seekers. This role differs nonetheless across various areas of migration and asylum and has evolved over time as a result of legislative reforms.
A high degree of harmonization of the right to an effective remedy naturally limits the necessity to resort to the Charter provision for the purposes of determining minimal standards of judicial protection. Nonetheless, many features of the right to an effective remedy are not exhaustively regulated in secondary law instruments. Hence, Article 47 of the Charter continues to be relied upon by the Court when it is called to provide guidance on aspects which were not subject to harmonization.
Overall, the CJEU's case law in the field of migration and asylum has brought several clarifications on the complex question of interactions between Article 47 of the Charter and secondary law provisions fleshing out the fundamental right to an effective remedy. On different occasions, the Court has underlined that the characteristics of the remedy in asylum and return proceedings shall be determined by reference to Article 47 of the Charter. It did not hesitate to rely on the Charter provision in cases where secondary legislation did not provide sufficient guidance on the concrete exercise of the right to an effective remedy.
Yet, in the majority of rulings containing references to Article 47 of the Charter, it is difficult to assess to what extent the broad interpretation of the right to an effective remedy has been rooted in the Charter. According to the settled case law, Article 47 of the Charter requires the existence of the remedy before an independent and impartial court. It is thus understandable that the CJEU relies heavily on this provision in situations where access to a judicial body is threatened because of the vagueness of EU secondary legislation or evident obstacles stemming from national procedural rules. References to Article 47 of the Charter seem to be more sporadic and less significant in the context of the interpretation of detailed rules relating to conditions of the exercise of the right to an effective remedy. Recent judgments in which the Court drew close links between Article 47 of the Charter and provisions of secondary law for the purpose of confirming that the latter have direct effect illustrate the essential role of Article 47 of the Charter in the enforcement of common standards on judicial protection.
A fresh wave of cases recalls that apart from setting minimal standards of judicial protection, Article 47 of the Charter has vocation to serve as a key tool for shaping national procedural rules in the field of migration and asylum. Applied conjunctively with provision of secondary law guaranteeing the right to an effective remedy, it may lead to considerable limitation of application of national procedural rules. Cases such as FMS v. Országos and C, B and X highlight that the application of Article 47 of the Charter contributes to the harmonization of standards of judicial protection at the EU level and to the empowerment of national jurisdictions called to apply EU legislation in the field of migration and asylum.
Footnotes
Acknowledgements
An earlier version of this paper was presented at the doctoral workshop ‘The interaction between the sources of European Union law’ held at KU Leuven in March 2023. The author would like to thank Prof. Elise Muir, Dr Gian Marco Galletti, Sara Notario, Mateusz Miłek and anonymous reviewers for their encouragements and helpful comments on earlier drafts. All views expressed and mistakes are those of the author.
