EU law, in particular the principles of equivalence and effectiveness, must be interpreted as meaning that a national court is not required to extend to infringements of EU law, in particular to infringements of the fundamental right guaranteed by Article 50 of the Charter of Fundamental Rights of the European Union and Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen (Luxembourg) on 19 June 1990 and which entered into force on 26 March 1995, a remedy under national law permitting, only in the event of infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, or one of the protocols thereto, the rehearing of criminal proceedings closed by a national decision having the force of res judicata.

It is apparent from the file before the Court that the exceptional remedy laid down by Paragraph 363a of the Code of Criminal Procedure is justified by the very nature of the ECHR and, as was laid down by the Austrian legislature, is connected by a close functional relationship to the proceedings before the European Court of Human Rights. That legal remedy was inserted in order to implement the judgments of the European Court of Human Rights, the Austrian Government noting that the legislature had intended, in that way, to comply with the obligation laid down in Article 46 of the ECHR.

It must be observed in that connection, as noted by the Advocate General in point 75 of his Opinion, that the requirement in Article 35(1) of the ECHR, that the European Court of Human Rights may only deal with the matter after all domestic remedies have been exhausted, implies the existence of a decision of a national court adjudicating at last instance and with the force of res judicata.

As is apparent from the file before the Court, it is precisely in order to take account of that situation and to ensure the application in the national legal system of rulings made by the European Court of Human Rights that the procedure laid down by Paragraph 363a of the Code of Criminal Procedure was introduced, permitting the rehearing of criminal proceedings closed by a legal decision having the force of res judicata.

Furthermore, it follows from the request for a preliminary ruling and the explanations provided by the Austrian Government that the close functional relationship between the procedure laid down in that provision and the procedure before the European Court of Human Rights is not called into question by the extension of the scope of the former procedure made by the landmark ruling of the Oberster Gerichtshof (Supreme Court) of 1 August 2007. As noted in paragraph 30 of the present judgment, an action brought under that provision before any finding by the European Court of Human Rights of an infringement of the ECHR or one of the protocols thereto is subject to the same conditions of admissibility as an application submitted before that court and, according to the explanations provided by the referring court, has the sole purpose of anticipating such a finding.

It should be noted that the procedure laid down in Paragraph 363a of the Code of Criminal Procedure, given its purpose, cause of action and essential characteristics as set out above, cannot be regarded as similar to an action seeking to protect a fundamental right guaranteed by EU law, in particular by the Charter; that is because of the specific characteristics arising from the very nature of that law.

(see paras 31-35, 59, operative part)