Effectiveness of EU Law versus Procedural Protection – Tracing the tension throughout the case-law of the Court of Justice on ex officio review by the national judge

Sammanfattning: This work deals with the tension between the effectiveness of European Union law and national rules of procedure put in place to safeguard the legal certainty and judicial protection of litigants. Particular attention is paid to rules constraining the power of national judges to apply Union law of their own motion – i.e. limiting their possibilities to investigate elements of law or fact which have not been invoked by the litigating parties. Such a course of action may on the one hand be necessary to ensure the uniform and effective application of Union law, but may on the other hand hamper the parties’ equality of arms. The book investigates the approach taken by the Court of Justice of the EU in proposing solutions for striking this balance in a way that ensures both Union law effectiveness and appropriate standards of procedural protection. The balancing exercise prescribed by the Court of Justice, when explaining to national courts how to handle constraints on ex officio review posing obstacles to the enforcement of EU law in national litigation, is examined. Tensions between substantive and procedural protection contained in the requirement of effective judicial protection, with sources both in national and European law, are moreover examined. The latter tension encapsulates a choice between protecting all litigants and protecting the EU law beneficiary. These issues are approached by developing and systematizing tools that the Court of Justice has provided for the national courts to help them navigate the field of national procedural law, in which the Member States have retained competence. In order to do so, a method is applied of identifying conditions and factors of central significance to making the said prioritizations, parameters which turned out to have constitutional repercussions for the role and function of national judges as “truth-seekers” or adjudicators. The main findings are the following. With regards to ex officio review, requiring a national judge to examine applicable Union law is the solution that best promotes its effective implementation, and, by consequence, substantive protection. Yet, this is a sensitive obligation to lay down, because it requires national judges to set aside national principles of judge passivity and party disposition. The effective implementation of Union law therefore risks coming at the expense of procedural equal treatment, potentially straying from a common tradition of judicial adversarialism. With regards to the wider issue of balancing effective judicial protection against the effectiveness of EU law, the study lends support to a theoretical approach towards distilling and differentiating between the beneficiaries of effectiveness, effective judicial protection under EU law, and national and ECHR standards of procedural protection. The identification of beneficiaries of effectiveness depends on the formulation of the construction and interpretation of the underlying substantive provision. The priority of substantive protection through Union law effectiveness singles out the litigant benefitting from EU substantive law also as beneficiary of effective judicial protection. Overall, the approach via the beneficiaries locates a key dividing line between ensuring procedural protection for all litigants and ensuring substantive protection of the Union law beneficiary. A theoretical contribution on ideologies of court procedure has therefore been made. The conditioned obligation of ex officio review that has evolved throughout the examined jurisprudence has the capacity of prescribing a role for the national judge with which he is not familiar. The search for the truth as the judge’s mission has been contested, and even deemed an externality to adjudication, whereas the obligation of ex officio review, when prescribed under EU law as an obligation of result, internalizes this task. Without national legislators validating the said instructions, a seized court’s deviation from national procedural law may have consequences for the legitimacy of the court system, public perceptions of judicial independence, and national concepts of procedural protection. In conclusion, technical rules of procedure – such as national constraints on ex officio review – should therefore not be harmonized, out of respect for the constitutional identities of the Member States and, by consequence, the legitimacy of the national court systems.