Opinion of the Advocate General — ECLI:EU:C:2006:755
Date: 2006-11-30
Language of the case: Swedish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 1. Community law – Principles – Right to effective judicial protection (Charter of fundamental rights of the European Union, Art. 47) 2. Community law – Direct effect – Individual rights – Safeguard by national courts (Art. 10 EC) 3. Community law – Principles – Right to effective judicial protection 4. Community law – Principles – Right to effective judicial protection 1. The principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and which has also been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union. (see para. 37) 2. Under the principle of cooperation laid down in Article 10 EC, it is for the Member States to ensure judicial protection of an individual’s rights under Community law. In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law. Although the EC Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Community Court, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law. It would be otherwise only if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under Community law. Thus, while it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection. It is for the Member States to establish a system of legal remedies and procedures which ensure respect for that right. In that regard, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness). Each case which raises the question whether a national procedural provision is effective must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. Moreover, it is for the national courts to interpret the procedural rules governing actions brought before them, in such a way as to enable those rules, wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under Community law. (see paras 38-44, 54) 3. The principle of effective judicial protection of an individual’s rights under Community law must be interpreted as meaning that it does not require the national legal order of a Member State to provide for a free-standing action for an examination of whether national provisions are compatible with Community law, provided that other effective legal remedies, which are no less favourable than those governing similar domestic actions, make it possible for such a question of compatibility to be determined as a preliminary issue, which is a matter for the national court to establish. Effective judicial protection is not ensured if the individual is forced to be subject to administrative or criminal proceedings and to any penalties that may result as the sole form of legal remedy for disputing the compatibility of the national provision at issue with Community law. (see paras 61, 64-65, operative part 1) 4. The principle of effective judicial protection of an individual’s rights under Community law must be interpreted as requiring it to be possible in the legal order of a Member State for interim relief to be granted until the competent court has given a ruling on whether national provisions are compatible with Community law, where the grant of such relief is necessary to ensure the full effectiveness of the judgment to be given on the existence of such rights. Where it is uncertain under national law, applied in accordance with the requirements of Community law, whether an action to safeguard respect for an individual’s rights under Community law is admissible, the principle of effective judicial protection requires the national court to be able, none the less, at that stage, to grant the interim relief necessary to ensure those rights are respected. However, the principle of effective judicial protection of an individual’s rights under Community law does not require it to be possible in the legal order of a Member State to obtain interim relief from the competent national court in the context of an application that is inadmissible under the law of that Member State, provided that Community law does not call into question that inadmissibility. Where the compatibility of national provisions with Community law is being challenged, the grant of any interim relief to suspend the application of such provisions until the competent court has given a ruling on whether those provisions are compatible with Community law is governed by the criteria laid down by the national law applicable before that court, provided that those criteria are no less favourable than those applying to similar domestic actions and do not render practically impossible or excessively difficult the interim judicial protection of those rights. In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to determine the conditions under which interim relief is to be granted for safeguarding an individual’s rights under Community law. (see paras 72-73, 77, 80, 83, operative part 2-3)