Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Request for a preliminary ruling from the Tribunalul Sibiu (Romania).
Member State legislation permitting review of definitive (judicial) decisions in breach of EU law delivered in administrative proceedings but not in civil proceedings – Request for a revision of a final decision taken with respect to pollution tax on motor vehicles in civil proceedings – Res judicata – Principles of effectiveness and equivalence – Article 47 of the Charter of Fundamental Rights.
Results (sanctions) and key consequences of the case:
54. ...I propose the following answer to the question referred by the Tribunalul Sibiu:
Article 47 of the Charter of Fundamental Rights of the European Union and the principle of effectiveness laid down in the case-law of the Court of Justice do not preclude national rules which allow for revision of national judicial decisions delivered in administrative proceedings when there is an infringement of the principle of primacy of EU law and which do not allow for revision on the same basis of national judicial decisions delivered in civil proceedings. This is subject to the proviso that there is sufficient clarity as to which is the correct procedure to remedy the infringement of EU law in question, and a final judgment of a court that should have established its incompetence of its own motion cannot bar seeking redress from a competent court.
The principle of equivalence precludes national rules which allow for revision of national judicial decisions delivered in civil proceedings because of a later judgment of the national Constitutional Court or the European Court of Human Rights, but do not allow for this with respect to a later judgment of the Court of Justice of the European Union.
30. The right to an effective remedy is also guaranteed by Article 47(1) of the Charter to everyone whose rights guaranteed by EU law are violated. It is beyond doubt that the Romanian authorities were implementing EU law, in the sense of Article 51(1) of the EU Charter, when recovery of the part of the special vehicle tax corresponding to the pollution tax was denied in breach of Article 110 TFEU. The requisite subject matter connection between the Member State measures impugned and substantive EU rules necessarily exists when a Member State levies a tax in breach of primary, and indeed secondary, EU law. The Court’s case-law further confirms that, whenever an individual seeks a judicial remedy to correct a breach of EU law concerning Member State implementation thereof, the Member State courts are bound by all of the requirements of Article 47 of the Charter.
35. In my opinion, it is arguable that the lack of clarity in Romanian procedural law was inconsistent with Article 47 of the Charter, EU law requirements pertaining to legal certainty, and may have rendered the recovery of the car pollution tax that was incompatible with EU law impossible in practice or excessively difficult to enforce.
40. Article 47(1) of the Charter states 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 set down by that article. According to the explanations accompanying Article 47, the first paragraph, encapsulating the right to an effective remedy, is based on, but goes beyond, the protection afforded under Article 13 of the European Convention on Human Rights (ECHR). I further note that, pursuant to Article 52(3) of the Charter, in so far as the rights contained therein correspond with the rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down in the ECHR, although the EU is not to be prevented from providing more extensive protection.
41. Under the case-law of the European Court of Human Rights concerning Article 6(1) ECHR, systems of judicial review must be ‘sufficiently coherent and clear’ so as to afford a ‘practical, effective right of access’ to a court. If the rules are of ‘such complexity’ that they generate ‘legal uncertainty’ then infraction of Article 6(1) results. The Court of Human Rights has also held that judicial remedies must be ‘sufficiently attended by safeguards to prevent a misunderstanding as to the procedures for making use of the available remedies’. Further, an unreasonable construction of a procedural requirement can result in breach of right of access to a court. The European Court of Human Rights has recently reiterated that ‘the authorities should respect and apply domestic legislation in a foreseeable and consistent manner’ and ‘the prescribed elements should be sufficiently developed and transparent in practice in order to provide for legal and procedural certainty’. Procedural rules are to serve the aims of legal certainty and the proper administration of justice. They are not to ‘form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court’.
42. Furthermore, I recall that according to the established case-law of the Court ‘legal certainty is a general principle of European Union law which requires in particular that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them’ (my emphasis).
43. In my opinion, and in the light of the above, the lack of clarity on the correct judicial procedure applicable to recovery of taxes levied in breach of EU law precipitates breach of the Article 47 of the Charter, both in terms of the right to an effective remedy and access to justice. This is even more so if a decision given by an absolutely incompetent civil court could create res judicata in the sense that it would bar raising a further action for recovery before the competent court, be that a civil court or an administrative court. In my opinion it is for the national referring Court in the case to hand to make the assessment of Romanian procedural law as a whole in terms of effective judicial protection with regard to the recovery of unduly paid pollution taxes on motor vehicles.