Keywords

Summary



Keywords

1. European Union law – Principles – Right to effective judicial protection – Affirmed in the European Convention on Human Rights – Account to be taken of the Charter of Fundamental Rights of the European Union

(Charter of Fundamental Rights of the European Union, Art. 47)

2. European Union law – Principles – Right to effective judicial protection – Affirmed in the Charter of Fundamental Rights of the European Union – National rule making the pursuit of a claim before the courts subject to advance payment of the costs of proceedings and/or to the assistance of a lawyer – A legal person, not being in a position to make that advance payment, ineligible for legal aid – Lawfulness – Conditions – Assessment by the national court

(Charter of Fundamental Rights of the European Union, Art. 47)

Summary

1. The principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been affirmed in Articles 6 and 13 of the European Convention on Human Rights.

As regards fundamental rights, it is important, since the entry into force of the Treaty of Lisbon, to take account of the Charter of Fundamental Rights of the European Union, which, pursuant to the first subparagraph of Article 6(1) TEU, has ‘the same legal value as the Treaties’. Article 51(1) of the Charter states that the provisions thereof are addressed to the Member States when they are implementing Union law.

In that connection, according to the explanations relating to Article 47 of the Charter of Fundamental Rights of the European Union, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the European Convention on Human Rights.

(see paras 29-32)

2. The principle of effective judicial protection, as affirmed in Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it is not impossible for legal persons to rely on that principle and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer.

In that connection, it is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation of the right of access to the courts which undermines the very core of that right; whether they pursue a legitimate aim; and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.

In making that assessment, the national court must take into consideration the subject-matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the applicable law and procedure; and the applicant’s capacity to represent himself effectively. In order to assess the proportionality, the national court may also take account of the amount of the costs of the proceedings that must be paid in advance and whether or not those costs might represent an insurmountable obstacle to access to the courts.

With regard more specifically to legal persons, the national court may take account of their situation. The court may therefore take into consideration, inter alia, the form of the legal person in question and whether it is profit-making or non-profit-making; the financial capacity of the partners or shareholders; and the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings.

(see paras 59-62, operative part)