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Article 47 - Right to an effective remedy and to a fair trial
It is for the referring court to ascertain whether the national legislation at issue before it can be construed in such a way as to meet those requirements of EU law.
41. Lastly, as regards the simultaneous applicability to national legislation implementing EU law, within the meaning of Article 51(1) of the Charter, of fundamental rights guaranteed by a national constitution and those guaranteed by the Charter, it should also be observed that the priority nature of an interlocutory procedure for the review of the constitutionality of a national law (the content of which merely transposes the mandatory provisions of an EU directive) may not undermine the jurisdiction of the Court of Justice alone to declare an act of the European Union invalid, and in particular a directive, the purpose of that jurisdiction being to guarantee legal certainty by ensuring that EU law is applied uniformly (see, to that effect, Foto-Frost, 314/85, EU:C:1987:452, paragraphs 15 to 20; IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 27; Lucchini, C‑119/05, EU:C:2007:434, paragraph 53; and Melki and Abdeli, EU:C:2010:363, paragraph 54).
42. To the extent that the priority nature of an interlocutory procedure for the review of constitutionality leads to the repeal of a national law (the content of which merely transposes the mandatory provisions of an EU directive) on the basis that that law is contrary to the national constitution, the Court could in practice, at the request of the courts ruling on the substance of cases in the Member State concerned, be denied the possibility of reviewing the validity of that directive in relation to the same grounds relating to the requirements of primary law and, in particular, the rights recognised by the Charter, to which Article 6 TEU accords the same legal value as that accorded to the Treaties (Melki and Abdeli, EU:C:2010:363, paragraph 55).
43. Before the interlocutory review of the constitutionality of a law (the content of which merely transposes the mandatory provisions of an EU directive) can be carried out in relation to the same grounds which cast doubt on the validity of the directive, national courts against whose decisions there is no judicial remedy under national law are, as a rule, required — under the third paragraph of Article 267 TFEU — to refer to the Court of Justice a question on the validity of that directive and, thereafter, to draw the appropriate conclusions resulting from the preliminary ruling given by the Court, unless the court which initiates the interlocutory review of constitutionality has itself referred that question to the Court pursuant to the second paragraph of Article 267 TFEU. In the case of a national implementing law with such content, the question whether the directive is valid takes priority, in the light of the obligation to transpose that directive (Melki and Abdeli, EU:C:2010:363, paragraph 56).
44. Also, where EU law allows Member States a measure of discretion in the implementation of an act of EU law, national authorities and courts remain free to protect fundamental rights under the national constitution, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (see, to that effect, Melloni, C‑399/11, EU:C:2013:107, paragraph 60).
45. In relation to the principle of equivalence, to which the referring court refers in its request for a preliminary ruling, it should be borne in mind that, according to that principle, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions, (Transportes Urbanos y Servicios Generales, C‑118/08, EU:C:2010:39, paragraph 33, and Agrokonsulting-04, C‑93/12, EU:C:2013:432, paragraph 36 and the case-law cited). Reliance on the principle of equivalence may not relieve the national courts, in the application of domestic procedural rules, of their duty to observe in full the requirements flowing from Article 267 TFEU.
46. In the light of the above considerations, the answer to Question 1 is that EU law and, in particular, Article 267 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which ordinary courts hearing an appeal or adjudicating at final instance are under a duty, if they consider a national statute to be contrary to Article 47 of the Charter, to apply, in the course of the proceedings, to the constitutional court for that statute to be generally struck down, and may not simply refrain from applying that statute in the case before them, to the extent that the priority nature of that procedure prevents — both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question — all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. On the other hand, EU law and, in particular, Article 267 TFEU must be interpreted as not precluding such national legislation to the extent that those ordinary courts remain free:
Questions 2 and 3
47. By its second and third questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 24 of Regulation No 44/2001, considered in the light of Article 47 of the Charter, must be interpreted as meaning that, if a national court appoints, in accordance with national law, a representative in absentia for a defendant upon whom the document instituting proceedings has not been served because there is no known place of residence for him, the appearance entered by the court-appointed representative amounts, for the purposes of Article 24 of Regulation No 44/2001, to an appearance being entered by the defendant, establishing the international jurisdiction of that court.
48. At the outset, it should be noted that, according to the findings of the Oberster Gerichtshof, at the time when the dispute before it was first brought before the Austrian courts, A was no longer resident in that Member State. Furthermore, that dispute was an action for damages in relation to the abduction of persons, not in Austria, but in Kazakhstan. Clearly, therefore, the international jurisdiction of the Austrian courts does not arise under Article 2(1) of Regulation No 44/2001. Moreover, it does not appear that the dispute in the main proceedings has any link whatsoever with Austrian territory that could establish the jurisdiction of the Austrian courts, unless A had entered an appearance before the court seised for the purposes of Article 24 of Regulation No 44/2001.
49. In that respect, it can be seen from the documents before the Court that a representative appointed by a court under Paragraph 116 of the ZPO has a wide power of representation, which includes the power to enter an appearance for the absent defendant.
50. According to settled case-law, the provisions of Regulation No 44/2001 must be interpreted autonomously, primarily by reference to the scheme and purpose of that regulation (see, to that effect, Cartier parfums-lunettes and Axa Corporate Solutions Assurance, C‑1/13, EU:C:2014:109, paragraph 32 and the case-law cited, and Hi Hotel HCF, C‑387/12, EU:C:2014:215, paragraph 24).
51. Furthermore, the provisions of EU law, such as those of Regulation No 44/2001, must be interpreted in the light of fundamental rights which, according to settled case-law, form an integral part of the general principles of law whose observance the Court ensures and which are now set out in the Charter (see, to that effect, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 68 and the case-law cited). In that respect, it must be borne in mind that all the provisions of Regulation No 44/2001 express the intention to ensure that, within the scope of the objectives of that regulation, proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence enshrined in Article 47 of the Charter are observed (see Hypoteční banka, C‑327/10, EU:C:2011:745, paragraphs 48 and 49, and G, C‑292/10, EU:C:2012:142, paragraphs 47 and 48 and the case-law cited).
58. Lastly, the applicant’s right to an effective remedy — as guaranteed by Article 47 of the Charter, which must be implemented in conjunction with respect for the defendant’s rights of defence within the scheme of Regulation No 44/2001 (see, to that effect, Hypoteční banka, EU:C:2011:745, paragraphs 48 and 49, and G, EU:C:2012:142, paragraphs 47 and 48) — does not require a different interpretation of Article 24 of that regulation, contrary to the arguments put forward by B and Others in their observations submitted to the Court.
59. In that regard, B and Others submit that, in the dispute before the referring court, A has never revealed his actual place of domicile, thus making it impossible to determine the court with jurisdiction and preventing them from exercising their right to an effective remedy. In those circumstances, in order to avoid a situation in which justice was denied and to strike a fair balance between the rights of the applicants and those of the defendant, in accordance with the case-law referred to in paragraph 58, it is necessary — they argue — to allow a representative in absentia to enter an appearance for the defendant, for the purposes of Article 24 of Regulation No 44/2001.
60. However, although the Court has held, in the specific circumstances of the cases that gave rise to the judgments in Hypoteční banka (EU:C:2011:745) and G (EU:C:2012:142), that Regulation No 44/2001, interpreted in the light of Article 47 of the Charter, does not preclude a procedure against an absent defendant in which the latter was deprived of the opportunity to defend himself effectively, it emphasised the fact that the defendant would have the opportunity to ensure respect for the rights of the defence by opposing, in accordance with Article 34(2) of that regulation, recognition of the judgment issued against him (see, to that effect, Hypoteční banka, EU:C:2011:745, paragraphs 54 and 55, and G, C‑292/10, EU:C:2012:142, paragraphs 57 and 58). That remedy on the basis of Article 34(2) of Regulation No 44/2001 presupposes, however — as was stated in paragraph 56 above — that the defendant failed to enter an appearance and that the procedural steps taken by the guardian ad litem or the court-appointed representative in absentia do not amount to an appearance having been entered by the defendant for the purposes of that regulation. In the present case, on the other hand, the procedural steps taken by the court-appointed representative under Paragraph 116 of the ZPO have the effect under national law that A must be regarded as having entered an appearance before the court seised. However, to construe Article 24 of Regulation No 44/2001 as meaning that such a guardian or representative in absentia may enter an appearance on behalf of the defendant for the purposes of Article 24 of Regulation No 44/2001 cannot be regarded as striking a fair balance between the right to an effective remedy and the rights of the defence.
61. Accordingly, the answer to Questions 2 and 3 is that Article 24 of Regulation No 44/2001, read in the light of Article 47 of the Charter, must be interpreted as meaning that, if a national court appoints, in accordance with national legislation, a representative in absentia for a defendant upon whom the documents instituting proceedings have not been served because his place of domicile is not known, the appearance entered by that representative does not amount to an appearance being entered by that defendant for the purposes of Article 24 of that regulation.