Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
The applicant, FIE, was a company limited by guarantee that had engaged in litigation promoting and protecting the Irish environment for over 20 years. In 2018, FIE applied to the Legal Aid Board for civil legal aid for proceedings which challenged the Government’s National Planning Framework and National Development Plan (the NDP case). The Board refused to provide legal aid to FIE on the basis that FIE was a company and the 1995 Act limited the provision of civil legal aid to natural persons. Neither the respondent nor the Attorney General disputed that the Charter (Article 51 of which limits its operation to fields covered by EU law) was engaged by the applicant’s challenge to the National Development Plan.
Key legal question raised by the Court:
The issue was whether Article 47(3) afforded a basis on which the court must interpret the Act so that the legislation enabled the grant of legal aid to a body corporate for the purpose of pursuing such proceedings.
Outcome of the case:
The court held that Article 47 of the EU Charter of Fundamental Rights did not give FIE the entitlement to legal aid. However, the court said it was arguable that a complete prohibition on the provision of legal aid for bodies corporate for EU law issues might breach the Charter.
Article 47(3) of the Charter
74. Neither the respondent nor the Attorney General disputed that the Charter (Article 51 of which limits its operation to fields covered by EU law) was engaged by the applicant’s challenge to the National Development Plan. The issue was whether Article 47(3) afforded a basis on which the court must interpret the Act so that the legislation enabled the grant of legal aid to a body corporate for the purpose of pursuing such proceedings.
75. Article 47 provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in the Article comprising a fair and public hearing within a reasonable time by an independent and impartial tribunal previously - 42 - established by law. Stating that everyone shall have the possibility of being advised, defended and represented, it then stipulates: ‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’
76. The scope of this provision fell for consideration by the CJEU in DEB. The Article 267 Reference giving rise to that judgment was made following an unsuccessful application for legal aid submitted by the (corporate) claimant to the Berlin Regional Court. It sought the aid for the purposes of pursuing an action against Germany for financial losses allegedly incurred as a consequence of the failure of that State to transpose two Directives aimed at the liberalisation of the natural gas market. Under the applicable law, the claimant was required to make a substantial advance payment of court costs (in the region of €275,000) before it could institute its claim. It was also required to instruct a lawyer. As the company had no assets, it was in a position to do neither. The German Code of Civil Procedure allowed the grant of legal aid to a legal person, but only where the failure to pursue or defend the claim in question ‘would run counter to the public interest’.
77. Both the Berlin Regional Court and, on appeal, the Higher Regional Court refused the application for legal aid on the basis that the discontinuance of the action in question was not contrary to the public interest. The reason for that conclusion was that that decision would not affect a sizeable proportion of the population, would not have social repercussions, would not preclude the claimant from fulfilling duties in the public interest and would not result in loss of employment or injury to a great many creditors (the claimant, which appears to have been a shelf company, had neither creditors nor employees). The Higher Court then referred to the CJEU a question as to whether – having regard to the fact that Member States may not make the award of compensation in accordance with principles of State liability in practice impossible or excessively difficult – there must be: ‘reservations with regard to a national rule under which the pursuit of a claim before the courts is subject to the making of an advance payment in respect of costs, and a legal person, which is unable to make that advance payment, does not qualify for legal aid.’
78. Noting that for the purposes of EU law ‘legal aid’ was not limited to payment for the assistance of a lawyer but could also include ‘dispensation from payment of the costs of proceedings’ (at para. 48) and stressing the relationship between provision for legal aid and the right to an effective remedy, the critical findings of CJEU were as follows.
79. First, the Court (at the very least) appears to me to have assumed that the provision for legal aid in Article 47(3) was not limited to natural persons, but extended to legal persons. While the respondent was inclined to dispute that the Court had so found, this is not consistent with the manner in which the Court analysed the issue. Thus, it stressed that the first two paragraphs of Article 47 did not exclude legal persons (para. 38), it specifically noted that the right to an effective remedy was found in Title VI in which other procedural principles are established which apply to both natural and legal persons (para. 40) and it stressed that provision for legal aid did not appear in Title IV of the Charter, which related to solidarity, thus indicating that the right was conceived not as one of social assistance (which, being rooted in human dignity would not be - 44 - readily applicable to legal persons – this is explained at para. 24 of the judgment). This assumption reflects the thrust of the Strasbourg jurisprudence. The European Court of Human Rights has thus considered claims that the absence of legal assistance and the fact of court fees in respect of proceedings breached the Article 6 rights of legal persons (Granos Organicos Nacionales S.A. v. Germany Application No. 19508/07, decision of 22 March 2012) and has recently found a breach of the provision in a case in which some of the applicants were legal entities and were refused an exemption from court fees found to be excessive, simply because they were commercial entities and the law did not permit the grand of legal aid to such bodies (Nalbant and ors. v. Turkey Application No. 59914/16, decision of 3 May 2022). Of course, the Strasbourg court addresses itself whether, on the facts a breach of the provisions of the Convention in issue (there, Article 6) is disclosed having regard to all the circumstances of the case, but the decisions show at the very least that a legal person can complain of a breach of that Article where it is precluded outright from obtaining legal aid.
80. Second, the CJEU found that the assessment of the need to grant a litigant such aid must be made ‘on the basis of the right of the actual person whose rights and freedoms as guaranteed by EU law have been violated, rather than on the basis of the public interest of society, even if that interest may be one of the criteria for assessing the need for theaid’ (para. 42). It is to be recalled that that statement was made in a context in which the relevant national rule of civil procedure framed the test for grant or refusal of aid to a legal person by reference to the public interest. Thus, the selection procedure applied to determine who will obtain that aid must operate in a non-arbitrary manner (para. 49).
81. Third, the court identified factors that could be taken into account in determining whether to grant legal aid to a legal person, including the subject matter of the litigation, - 45 - the financial capacity and form of the company, and the financial capacity of the shareholders (paras. 52-55).
82. Fourth, it followed that the principle of effective judicial protection protected by Article 47 must be interpreted as requiring 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’ (para. 59). While this statement may not be a model of clarity, I think it hard to dispute that it follows from this part of the judgment of the CJEU that it is arguable that the court was positing a prohibition on the absolute exclusion of bodies corporate from legal aid for certain purposes. This would reflect the analysis I have identified earlier and the context, in which the effect of the specific rules for the provision of legal aid to corporate entities in the German Civil Procedure Code was to preclude the claimant in that case from obtaining assistance with the discharge of the advance payment in question. It is to be remembered that the entire point of the Reference was that a body corporate had been denied legal aid under specific rules provided in German law for the provision of such aid to such entities.
83. Fifth, it is clear from its judgment that limitations on the availability of legal aid were permissible, and that such limitations would involve a breach of Article 47 only where in an individual case they undermined ‘the very core’ of the right of access to the courts having regard to whether such limitations pursued a legitimate aim, and whether there was a reasonable relationship of proportionality between the means employed and that aim. There can be no doubt but that the restrictions that could be imposed on the provision of legal aid to a body corporate could be more restrictive than those that might be imposed on an individual. And critically for present purposes, there can be no - 46 - dispute but that in deciding whether such an entity should be afforded legal aid, the court is entitled to have regard to a range of factors, including whether it can proceed with the litigation in question without such aid, together with other relevant aspects of the legal system in question (including provisions as to lodgement of monies as a precondition to suing and potential exposure to costs orders in the event of an adverse outcome).
84. Noting that where the CJEU refers to ‘court’ in this context it is reflecting the fact that it was concerned with a case in which the grant or refusal of legal aid was determined de novo by the referring tribunal, and the CJEU described the assessment this entails as follows (at paras. 61-62): ‘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 in respect of which advance payment must be made 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 - 47 - the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings.’ The Article 47 issues
85. As I have explained earlier, the trial judge addressed the arguments in respect of Article 47 by reference to what was, in effect, an argument of jus tertii: the applicant had not established that the absence of legal aid had prevented it from obtaining a legal remedy in the judicial review proceedings (in fact because it was able to obtain the services of lawyers on a ‘no foal no fee’ basis, it was able to obtain such a remedy). Therefore, the judge decided, it followed that it could not assert any breach of its rights so as to enable the agitation of its argument that the Act should be interpreted so as to allow it to apply for legal aid.
86. Here, I respectfully part company with the judge. The applicant is a body corporate which wished to apply for legal aid, and which contended that its exclusion from the relevant Legal Aid scheme because and only because it was a legal and not a natural person was in breach of its rights under EU law. It may well be that a scheme of legal aid which allowed bodies corporate to apply for and to be granted legal aid could quite properly have made provision for the refusal of legal aid to a legal entity which, as a matter of fact, had a proven track record of being able to obtain on a ‘no foal no fee’ basis the services of a stable of expert environmental lawyers, but that was not the point. There was no scheme making such provision and the applicant was entitled to contend that the absence of a facility for its application to be even assessed demanded, in the light of the provisions of Article 47, that the legislation be construed otherwise. Here - 48 - it is to be repeated that the applicant’s case is that Article 47 confers a direct right on it, which it is entitled to enforce against the State and which requires that domestic legislation be construed so as to align with that entitlement.
87. The claim must, accordingly, at the very least be considered on its merits. It can be looked at two ways. Viewed from one perspective, it might be said that the decision in DEB makes clear both that Article 47(3) envisages an entitlement to legal aid in some circumstances as a necessary component of the principle of effective judicial protection and that that right is enjoyed by natural and legal persons. While the decision leaves no doubt but that natural persons and legal persons may be treated differently for this purpose, it is at the very least arguable that the decision demands that the Member States have in place a facility for legal aid that may be availed of in cases involving litigation that engages EU law, that that system be open in principle to legal persons, and that there must be a process whereby applications for legal aid by bodies corporate in cases within the field of EU law can be assessed in accordance with the factors and considerations identified by the court in DEB. On this construction, and in the absence of any other system of legal aid for such cases, it might be said that the Act should be construed harmoniously with EU law so as not to impose a blanket prohibition on the grant of legal aid to bodies corporate. In DEB itself (as was noted by Advocate General Bobek in Case C-298/16 Ispas at para. 50) the CJEU assumed that generally applicable provisions of national law governing legal aid, while not intending to implement EU law, nonetheless fell within the scope of EU law for the purposes of Article 47.
88. Looked at another way, DEB can be explained as a case that was focussed not on legal aid as it is comprehended by the Act, but as a case concerned primarily with the - 49 - abatement of a requirement that a corporate litigant lodge a significant sum of money prior to the commencement of a legal action. The court (as the respondent argued in its submissions on appeal) was concerned not with whether legal aid must be made available to bodies corporate, but with how a scheme which in theory did apply to such entities should be operated to render it compliant with Article 47. Thus considered, it can be plausibly said that the Irish legal system viewed in a conspectus way, does not interfere with what CJEU described as ‘the core’ of the right of access to court for bodies corporate such as the applicant. First, there is not only no requirement to lodge monies in Court as a precondition to pursuing legal action of the kind considered in DEB, but Irish law does provide to all litigants (including bodies corporate) a wide exemption from any exposure to legal costs for certain environmental claims through s. 50B of the Planning and Development Act 2000 as amended, and the Environment (Miscellaneous Provisions) Act 2011. Second, it might be said that in the light of that exemption, of the fact that individuals may avail of legal aid under the Act, of the clear and accepted differences between natural and legal persons for the purposes of granting legal aid, of the fact that Irish law – while enabling the exemption from adverse cost orders in certain environmental proceedings – allows a successful applicant to obtain its costs, and of the consideration that in Ireland there is a long tradition of lawyers providing services on a ‘no foal no fee’ basis (and an economic incentive for them to so do in cases of merit), the blanket exclusion of bodies corporate from the 1995 Act is lawful.
89. Third – and this is a point made forcefully by the Advocate General in her opinion in Case C-260/11 Edwards and ors v. Environment Agency and ors ECLI:EU:C:2012:645 at para. 39 – Article 47 of the Charter (in contrast to Article 9 of the Aarhus Convention) - 50 - is concerned with individual rights and is not specifically targeted at litigation brought in the public interest. DEB, it will be noted, was a case in which the claimant sought to bring proceedings in its own right to recover damages consequent upon nonimplementation of two Directives. The extent to which provisions of Article 47 would confer a right to legal aid in connection with proceedings such as the NDP case is, therefore, an open question, and factors permissibly brought to bear on the decision whether or not to grant such aid to a body corporate are not canvassed in DEB. Advocate General Kokott put the distinction as follows: ‘Article 47 expressly relates to the protection of individual rights. The basis for the assessment of the need to grant aid for effective legal protection is therefore the actual person whose rights and freedoms as guaranteed by the European Union have been violated, rather than the public interest of society, even if that interest may be one of the criteria for assessing the need for the aid. Legal protection in environmental matters, on the other hand, generally serves not only the individual interests of claimants, but also, or even exclusively, the public. This public interest has great importance in the European Union, since a high level of protection of the environment is one of the European Union’s aims under Article 191(2) TFEU and Article 37 of the Charter of Fundamental Rights.’
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104. While I am thus of the view that the applicant’s case insofar as based upon Article 9(4) of the Aarhus Convention is misconceived, I also feel that its substantive claim insofar as based upon Article 47 of the Charter may be arguable – but is by no means clear cut. The argument is such that its resolution might conceivably merit a reference to CJEU. However, this should only be done if it is necessary. 105. Here, it is important to say something about the nature of the applicant’s claim. That claim was not for orders requiring that State provide it with legal aid for the purposes of the NDP case. The relief was sought only against the Board, the Attorney General and the State being joined at the instigation of the High Court judge and for the purposes of negotiating the argument based on the Aarhus Convention. Although the Board is, of course, an emanation of the State, it can generally only act in accordance with its statutory remit. It might be argued that if the Act prevents the applicant from applying for legal aid in breach of Article 47(3) of the Charter, the provisions in the Act which so limit the scheme to natural persons should be set aside and ignored by the Court so as to give effect to the Charter rights. This case, however, was not made by the applicant, perhaps because, while the Act is the only composite legal measure in Ireland providing for a scheme of legal aid, it is not the only legal aid scheme. The State has put in place other schemes and there is no reason why it could not do so on an extra statutory basis if this was required by EU law.