Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Results (sanctions) and key consequences of the case:
...I suggest that the Court should dismiss the action and order Elitaliana SpA to pay the costs.
38. It should first be pointed out that the principles set out in Articles 6 and 13 of the ECHR correspond to those which now appear in Article 47 of the Charter of Fundamental Rights of the European Union (the ‘Charter’), which, in principle, was applicable in this case. However, an infringement of Article 47 of the Charter can be relied on in the present case only if the actions brought against the institutions which might reasonably be regarded as competent are held to be inadmissible for non-procedural reasons, and the claimant, in such circumstances, has no effective legal remedy.
39. The action brought before the General Court was brought against a party which the General Court found not to be the proper defendant. It is apparent from the appeal that Elitaliana considers that this finding amounts to an infringement of its fundamental rights, as protected by Article 47 of the Charter.
40. I note that the finding that Eulex Kosovo is not the proper defendant, either because it does not have the capacity to be a party to proceedings, or for other reasons, does not lead to the conclusion that there was a lack of judicial protection.
41. Indeed, the argument concerning Article 47 of the Charter is clearly premature. If the action has been brought against a party who is not the proper defendant, there cannot be, on that basis, an infringement of Article 47. Elitaliana’s situation can be analysed by reference to this provision only where an action against the proper defendant has been brought before the court or tribunal with jurisdiction and the latter finds that is no remedy.