On 15 October 2020, Hungarian Member of the European Parliament (MEP) Kinga Gál of the Non-attached Members posed a written parliamentary question to the European Commission:
“Since the 1980s, case-law has stressed that the Member States must ensure judicial review if a case falls within the scope of Union law. The importance of judicial review as a general principle was further reinforced by Articles 47 and 49 of the Charter and by the recognition of the rule of law as a fundamental criterion.
1. How can Union citizens enforce their rights deriving from the Union’s legal order if Member State legislators fail to ensure judicial review in a particular field, and how can a so-called ‘negative competence conflict’ be avoided in such cases?
2. In principle, pursuant to the case-law, does the Union’s legal order grant special authorisation to the authorities to adjudge the case, or should the courts in the Member States disregard a procedural requirement which prevents a judicial review, on the basis of the principle of direct effect and primacy, and admit actions aimed at enforcing Union law?
3. In the latter case, on the basis of what criterion/criteria should those concerned select the court which, in the application of Union law, is obliged to accept an action? On the basis of the principle of equal treatment, should the Member State court be selected which is indicated by the procedural requirement for enforcing rights deriving from the Member State’s law in cases similar to that in question, or does the acting Member State court have to be determined as a result of an analysis of the whole Member State legal order, on the basis of the leaf-and-branch comparison?”
On 19 January 2021, Justice Commissioner Didier Reynders responded on behalf of the European Commission stating: “According to the case-law of the Court of Justice of the EU, Member States are to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EC law as provided for by the second subparagraph of Article 19(1) of the Treaty on EU. It is, therefore, for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields.
The principle of effective judicial protection of an individual’s rights under EC law does not require the national legal order of a Member State to provide for a free-standing action for an examination of whether national provisions are compatible with EC law, provided that other legal remedies make it possible for such an issue of compatibility to be determined as a preliminary issue.
The Court has also stated that, where it is uncertain under national law, applied in accordance with the requirements of EC law, whether an action to safeguard respect for an individual’s rights under EC law is admissible, the principle of effective judicial protection requires the national court to be able, none the less, at that stage, to grant the interim relief necessary to ensure those rights are respected.
In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to determine the conditions under which the remedy is to be granted for safeguarding an individual’s rights under EC law.
However, those conditions cannot be less favourable than those applying to similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the interim judicial protection of rights conferred by EC law (principle of effectiveness).”
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