When is a "Court" Really a Court? Exploring Article 47 of the EU Charter of Fundamental Rights

 Written by George Kazoleas, Lawyer in Cyprus

Article 47 of the EU Charter of Fundamental Rights, which enshrines the right to an effective remedy and to a fair trial, 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 laid down in this Article (paragraph 1). This right is guaranteed without limitation to criminal charges and civil rights and obligations.


As is well-known, the Charter applies at the national level only when Member States are implementing or derogating from EU law. This specific provision applies to all rights and freedoms deriving from EU law and corresponds to the rights provided for in Article 6, paragraph 1, of the ECHR (right to a fair administration of justice), ensuring, at a minimum, the protection afforded by Article 6 of the ECHR in relation to all rights and freedoms deriving from EU law.

The purpose of this article is to clarify what the term "tribunal" or "court" encompasses for the purpose of defining the scope of Article 47. The jurisprudence on this matter, particularly concerning which body or authority can refer a case to the Court of Justice of the European Union (CJEU) for a preliminary ruling, is particularly useful.

Initially, it should be noted that the assessment of whether the referring body or authority falls within the concept of a "court" for the purposes of Article 177 of the Treaty (Article 234 EC) is exclusively a matter of EU law.

When making this assessment, the CJEU takes into account a number of factors, such as the establishment of the body by law, its permanence, the compulsory nature of its jurisdiction, the inter partes (adversarial) nature of its procedure, its application of rules of law, and its independence[1].

Regarding the adversarial nature of the proceedings before the referring court, Article 267 TFEU (formerly Article 234 EC) does not make the submission of a preliminary question to the Court conditional on the adversarial nature of those proceedings. On the contrary, this article implies that national courts may refer preliminary questions to the Court only if a dispute is pending before them and if they are called upon to rule in proceedings that are intended to lead to a decision of a judicial nature.[2]

For example, it has been held that a court responsible for maintaining a register cannot be considered to be performing a judicial function, as it acts in this instance as an administrative authority without being called upon to resolve a dispute. This occurs, for instance, when it rules on an application for the registration of a company in a register in accordance with a procedure whose object is not the annulment of an act alleged to infringe the applicant's right.[3]

Arbitral tribunals generally do not fall within the above definition of a "court" due to the voluntary nature of the proceedings and the lack of involvement of a state body or authority.

An interesting case on this matter was the CJEU's judgment of January 27, 2005, in Case C-125/04 (Guy Denuit and Betty Cordenier v. Transorient – Mosaïque Voyages et Culture SA). The Court held that an arbitral tribunal established by agreement, such as the Collège d'arbitrage de la Commission de Litiges Voyages (Belgium), which hears disputes between individuals and tour operators, does not constitute a court or tribunal of a Member State within the meaning of Article 234 EC, given that there is no obligation, either legal or de facto, for the contracting parties to refer their disputes to arbitration, and the public authorities (Belgian) are not involved in the choice of the arbitration route.

However, in another case, the CJEU ruled differently concerning the Portuguese arbitral body, Tribunal Arbitral Necessário. Its jurisdiction did not arise from the will of the parties but was based on national law 62/2011. This law granted the said court compulsory jurisdiction in disputes arising from intellectual property rights concerning reference medicines and generic medicines. The arbitral award issued by this court, if not appealed before the competent court of appeal, becomes final and has the same effects as judgments issued by ordinary courts. In this case, the CJEU held that the conditions of the adversarial nature of the procedure, the application of rules of law, and independence were met, recognizing a judicial function in the arbitral body, as required by the interpretation of Article 267 TFEU (Case C-555/13, CJEU Judgment of February 13, 2014).

Finally, it is worth mentioning a case with Greek interest (Case C-363/11, CJEU Judgment of December 19, 2012), where the referring court (the Hellenic Court of Audit) submitted questions regarding the compatibility with EU law of national rules allowing public sector employees to take trade union leave. The CJEU was asked to examine whether the Court of Audit is a "court or tribunal" within the meaning of Article 267 TFEU. Its decision was that it could not be characterized as such for the following reasons:

  • It has ties to the Ministry, meaning it does not act as a third party in relation to the disputed interests.
  • Its jurisdiction is limited to a preventive "control" of state expenditures and does not include the issuance of a decision.
  • Its decision does not have res judicata effect (a final decision), and the proceedings before it are not intended to lead to a decision of a judicial nature.
  • The beneficiary of the disputed expenditure in the main proceedings is not a party to the proceedings before the Court of Audit.

From the CJEU's jurisprudence on this matter, it becomes clear that for the concept of a "court" under Article 47 of the Charter of Fundamental Rights of the EU to be affirmed, it is essential that it possesses the characteristics of an independent and impartial judicial body established by law, which includes an adversarial procedure, applies rules of law, and has binding jurisdiction.

George Kazoleas is qualified Lawyer both in Greek & Cyprus Law. He has been practicing law for more than 20 years, as legal counsel and litigator being also certified mediator in civil & commercial disputes in Cyprus. 

Email: giorgos.kazoleas@gmail.com


[1] See, inter alia, judgments of 17 October 1989 in Case 109/88 Danfoss [1989] ECR 3199, paragraphs 7 and 8; of 27 April 1994 in Case C-393/92 Almelo and Others [1994] ECR I-1477; and of 19 October 1995 in Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9; of 17 September 1997 in Case C-54/96 Dorsch Consult and Others [1997] ECR I-23.

[2] See, inter alia, judgment of the CJEU of 15 January 2002, C-182/00, Lutz and Others, p. I-547, paragraph 13

[3] Same as above

(main photo: freepik.com)

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