The ‘access to justice’ within the meaning of the Treaty of Lisbon and the pertinent CJEU jurisprudence is primarily seen as access to the EU judicial system, i.e. to the EU Member States’ national courts applying the EU Law or/and the CJEU. The concept of ‘access to justice’ is therefore developing such premises of the Van Gend en Loos judgment as direct effect, vigilance of the EU individual, and the symbiotic relationship between the CJEU and national courts via the preliminary reference procedure. This work aims to explore the development of two basic ideas of Van Gend en Loos, i.e. granting directly enforceable EU rights to individuals and authorizing national courts to protect those rights, in light of the ‘access to justice’ concept within the meaning of the Lisbon Treaty – considering their importance for the realization of EU individuals’ substantive rights and uncertainty surrounding this issue. The paper develops a critique of the theory of justice in EU Law, analyzing if and how the Van Gend en Loos premises influenced the role of individuals making an attempt to claim their EU rights and the role of the EU courts responsible for the enforcement of ‘access to justice’ in the European Union. The claim of this paper is that the new concept of ‘access to justice’ brought by the Lisbon Treaty may be seen as the further development of the Van Gend ‘federalizing effect’ for greater integration through law and an enhanced protection of the individual within the EU multilevel system of Human Rights protection.
The first attempts of the European Commission and Parliament to invoke Art. 7(1) of the Treaty on European Union against the Polish and Hungarian governments demonstrate the EU’s political willingness to claim its own authority in defending core European values (Art. 2 TEU) in case of state disobedience. However, despite these attempts to integrate the Rule of Law concept into the overall EU’s supervisory machinery, the Commission’s and the Parliament’s submissions indicate a lack of coherency in implementing the principle as a relevant tool to address multiple challenges arising within the EU Member States legal systems. The parallel developments in the CJEUs case-law (LM/ML, Torubarov) support this statement. Regardless of the Council’s yes/ no decisions in the Polish and Hungarian cases, these lines of reasoning are capable of giving rise to further questions in application of the European Arrest Warrant Framework decision or the Asylum Procedures Directive, in particular the EU Member States which remain within the scope of the EU’s attention in view of systemic Human Rights violations (Italy, Romania, Bulgaria, Croatia). Moreover, the series of the CJEU’s judgements on the Polish judicial reform are capable of paving the way to the de facto intervention into traditional areas of the EU Member States competence – the organisation of the national judicial systems, in light of the development of a EU-specific principle of effective judicial review.
This paper is devoted to the legal analysis of CJEU Opinion 2/13 on European Union accession to the European Convention on Human Rights. The article examines the CJEU’s approach to the interpretation of Art. 267 and 344 of the Treaty on the Functioning of the European Union — in the light of Protocol No. 16 to the European Convention on Human Rights, as well as the previous case law of the Court of Justice (Mox Plant and Melki and Abdeli). The conclusions are drawn as to the manner in which Opinion 2/13 develops EU legal order autonomy doctrine and how it affects the future perspectives of EU accession to the European Convention on Human Rights. Firstly, while interpreting the content and purpose of Art. 344 TFEU, the CJEU gives a positive answer to the question as to whether the ECHR compliance system falls within the ambit of this Treaty provision. Secondly, the Court of Justice takes an extremely protective approach in giving its interpretation to the role of preliminary rulings procedure guaranteed by Art. 267 TFEU for the unity and efficiency of European law, making even the legal protection of individuals secondary to these purposes. It is quite probable that the accession will be delayed for an indefinite period of time — due to the likely impossibility of reaching a consensus on a new version of the Draft accession agreement with all members of the Council of Europe (such as Russia, Ukraine and Turkey) in the very near future. At the same time, European Union accession to the European Convention on Human Rights remains a legal duty in accordance with Art. 6 Treaty on the European Union (TEU), Declaration No. 2 on Article 6 (2) TEU and Protocol No. 8 to the Lisbon Treaty.
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