Article 47 - Right to an effective remedy and to a fair trial
Key legal question raised by the Court:
…4. The applicant also advanced a significant argument to the effect that the Charter of Fundamental Rights, specifically Article 47 on the right to an effective remedy, and the Aarhus Convention, specifically Article 9(4) which requires that identified procedures relating to environmental law remedies not be prohibitively expensive, imposed an obligation to interpret the 1995 Act so as to include legal persons in the definition of persons. Having joined Ireland and the Attorney General to these proceedings as notice party to ensure that the argument in respect of Aarhus be thoroughly addressed, I conclude that the right to an effective remedy under the Charter does not require the reference to person in the 1995 Act to include legal persons. In respect of the Aarhus argument, I find that, given the special costs regime applicable in Ireland to all persons litigating certain environmental matters, including the applicant, and the evidence provided by the applicant on affidavit as to its access to legal representation, it is not prohibitively expensive for it to access judicial review procedures. Therefore, in order to achieve the result sought by Article 9(4) in this respect, it is not necessary to construe the Act as covering legal, as well as natural persons, including the applicant. Interpretative obligation – Charter of Fundamental Rights …66. The applicant has what is describes as a fall back argument, based on what it says is an obligation of the Court to interpret the 1995 Act in accordance with the Charter of Fundamental Rights so as to ensure the availability of civil legal aid for legal persons where it was within the scope of application of EU law (as here since the litigation for which it sought legal aid was based on an alleged breach of EU environmental law). It argues that if there is a doubt about the meaning of the word person in the Act, it should be interpreted in such a way as to advance the requirements of the Charter, in this case the requirement that “legal aid must be in principle be available to legal persons where those persons are entitled to rely on the provisions of the EU Charter of Fundamental Rights” (paragraph 51 of the Applicant’s legal submissions). The applicant describes this as a “narrow” category of person. Yet there are various provisions of the Charter that legal persons may wish to avail of, including for example the right to protection of data, the environment, and the right to property, suggesting that the category is not necessarily all that narrow. However, the core point is not the applicability of the Charter since that is not in doubt here, but rather what the Charter requires in terms of civil legal aid for legal persons. The applicant invokes Case C-279/09 DEB ECLI:EU:C:2010:811 which discusses whether Article 47 of the Charter (itself inspired by Article 6(1) of the ECHR) requires the provision of civil legal aid to legal persons.
67. The interpretative obligation (also known as the doctrine of harmonious interpretation invoked by the applicant was described in the recent decision of Case C-122/17 Smith v. Meade ECLI:EU:C:2018:631 as placing an obligation on the national court to consider the“whole body of rules of law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive” (paragraph 39). It is well established in EU law that the interpretative obligation does not apply if such an interpretation would be contra legem. Because I conclude below that there is no obligation under EU law or under the Aarhus Convention to interpret the 1995 Act as including legal persons, I do not need to consider the question as to whether, if such an obligation existed, such an interpretation would be contra legem. 68. For the applicant to establish the applicability of the interpretative obligation in this case, it must establish that the Charter requires that legal aid must be in principle be available to legal persons coming within the scope of the Charter. In support of that wide-ranging proposition, it relies upon. But in my view, DEB is not authority for the principle contended for. …70. Article 47 is inspired in significant part by Article 6(1) of the ECHR. “Explanations relating to the Charter of Fundamental Rights” (2007/C 303/02) were published in the Official Journal, having been prepared under the authority of the Praesidium of the Convention which drafted the Charter of Fundamental Rights. The preamble to their publication in the Official Journal notes that they do not have the status of law but are a valuable tool of interpretation intended to clarify the provisions of the Charter. The explanation in respect of the third paragraph of Article 47(3) of the Charter notes as follows: “With regard to the third paragraph, it should be noted that in accordance with the case-law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR judgment of 9 October 1979, Airey, Series A, Volume 32, p. 11). A similar approach has been taken to the interpretation of Article 47 by the CJEU. …74. This is a very different principle to that advanced by the applicant; the decision in DEB makes it very clear that, contrary to the applicant’s submission, there is no requirement to the effect that legal aid must, in principle, be available to persons relying upon the Charter. Any entitlement to legal aid is therefore highly fact dependant and no general entitlement to same exists. Here, the case was not made that in the Friends litigation a lack of civil legal aid made it impossible for the applicant to exercise its right of access to the court or that it was denied an effective remedy.
75. Therefore, the conditions required for an entitlement to civil legal aid have not been met; and accordingly, there is no identified principle of EU law that affects the interpretation of the 1995 Act. That disposes of the applicant’s argument based on the interpretative principle insofar as the Charter is concerned.
