3.1 Introduction
Rarely has legal scholarship interpreted the Treaty provisions on the so-called direct actions through the lens of evidence.Footnote 1 And understandably so, as none of the relevant Treaty provisions – Articles 263, 265, and 340 of the Treaty on the Functioning of the European Union (TFEU)Footnote 2 – mention any specific conditions or modalities pertaining to the evidence required for the instituting of those actions. Yet evidence theory as a vantage point for the analysis of said provisions and corresponding case law may shed new light on the much-debated issue of whether, when applied, they afford a high standard of effective judicial protection to private parties.
Bearing in mind this volume’s focus on fundamental rights, the present chapter will seek to critically analyse the rationale and design of the evidentiary requirements that private litigants must meet when launching direct actions. Our aim will be to determine if those requirements enable or hinder the exercise of the right to a legal remedy, pursuant to Article 47 of the Charter of Fundamental Rights of the European Union (CFR).Footnote 3 To conduct this analysis, a few preliminary, methodological observations should be made in relation to (the concept and system of) evidence in EU law. Though much can be said in this regard, our analysis will take into account two opposed points of view: the one procedural, the other processual.
From a procedural perspectiveFootnote 4 (focused on the EU’s normative power to codify evidence or any kind of procedural rules), evidence does not hold a prominent place in the EU procedural law jargon,Footnote 5 any allusion to the Union’s ‘general system’ or law of evidence having historically been viewed as oxymoronic. According to Wróblewski, such a law is a body of (ideally codified) rules and principles that answer four essential questions: How does the law distinguish between facts that require evidence from those that do not? Which evidence is admissible? How is evidence assessed? What is the role of evidence in the performance of (judicial) review?Footnote 6 Under the guidance of Wróblewski’s criteria, a law of evidence would ideally lay down principles that regulate key points of the process of accessing, adducing, and debating evidence. These typically include the distribution of the burdens of proof,Footnote 7 the criteria used to define relevant facts (facti probandi)Footnote 8 and admissibility,Footnote 9 the standards of proof,Footnote 10 and the benefit from presumptions.Footnote 11
An overview of EU positive law reveals no trace of an instrument akin to the US Federal Rules of Evidence.Footnote 12 Indeed, the Treaties have never conferred a competence enabling the Union’s legislature to enact a ‘code’ with evidentiary principles that would apply across the areas covered by those Treaties. True, there are examples of secondary law instruments that establish sectoral systems of evidence,Footnote 13 but those remain sporadic and minimally harmonising.Footnote 14 The leading principle in the field remains that of the residual priority (and discretion) that Member States have in applying their national rules on evidence in actions brought on the grounds of EU law.Footnote 15 In this context, the verdict seems clear: an EU law (or general system) of evidence does not and cannot exist.
This observation can, however, be nuanced from the second (processual) perspective, focused on the exercise, by private parties, of their so-called procedural abilities during the process of adjudication. In justice scholarship, the abilities doctrine emerged as a ‘spin-off’ from the capabilities strand, seminally developed by Nussbaum.Footnote 16 Taking a ‘humanist approach’ to the concept of justice, the philosopher suggested a list of ten capabilities,Footnote 17 understood as basic entitlements that humans require for a thriving and meaningful life. Translated into procedure, those capabilities took the shape of procedural abilities, understood as entitlements that litigants ought to benefit from in order to make their views known (typically before a court) and effectively participate in the (fair) resolution of their disputes.Footnote 18
Mirroring Nussbaum’s capabilities list, Owusu-Bempah suggested a list of – also – ten fundamental procedural abilities: (a) understand the nature of the charge, (b) understand the evidence adduced, (c) understand the trial process and the consequences of being convicted, (d) give instructions to a legal representative, (e) make a decision about whether to plead guilty or not guilty, (f) make a decision about whether to give evidence, (g) make other decisions that might need to be made by the defendant in connection with the trial, (h) follow the proceedings in court on the offence, (i) give evidence, (j) any other ability that appears to the court to be relevant in the particular case.Footnote 19
The abilities doctrine proposes a more ‘organic’, associative view of evidence and effective judicial protection. It perceives the administration of justice not only as a matter of machinal law-to-fact application but as a complex, multi-actor/stage process in which both courts and litigants participate in the fair resolution of disputes. In other words, the level of effectiveness of any system designed to afford judicial protection is largely dependent on the level of effectiveness of the parties’ involvement in the process of adjudication. In the jargon of procedural justice scholarship, this involvement is qualified as effective or ‘meaningful participation’, that is, the exercise, in a context of procedural equality (or parity), of the abilities to present and refute arguments in a formalised discourse setting such as that of a trial.Footnote 20
The association between evidence and effective judicial protection is not only supported by the procedural abilities scholarship but can also be inferred from the case law of the Court of Justice of the European Union (CJEU). In a legal order – like that of the EU – with a complex judiciary and system(s) of legal remedies (ideally) aimed at upholding the interpretative uniformity of EU law, principles of evidence were bound to emerge as the CJEU gradually defined the basic features of private parties’ effective participation in actions brought on the grounds of EU law (either before the national courts or before the Union Courts). From this perspective, the impossibility for a codified Union law of evidence was, in a way, compensated by principles that are functionally rooted in effectiveness and fairness and instrumentally meant to enhance the litigants’ capacity to play an active role in trials. Though it is difficult to suggest a general, clear-cut taxonomy of those principles, the sectoral Union legislation as well as the CJEU’s case law reveal roughly two families: principles that confer entitlements in support of the basic ability to give evidence and principles that regulate the distribution of evidentiary duties.
The main purpose of evidentiary entitlements is to enable litigants to gain access to relevant facts, acquire knowledge of the arguments and evidence presented by their adversaries, and have the possibility to rebut those arguments by adducing additional evidence. It is important to stress that the benefit from those entitlements should be such that any asymmetry in the parties’ access to relevant information should be avoided. This rationale of fairness expressed in the fundamental condition of equality under which litigants should access and give evidence, allows us to explain why many of the procedural entitlements pertaining to evidence have emerged as expressions of the fair trial safeguards, in particular the right to access courts, the right to effective defence, the equality of arms principle,Footnote 21 and the principle of contradictory debate. The abilities that have thus been recognised by the CJEU include, namely, the right to unhindered access to factsFootnote 22 in view of exercising the right to be heard,Footnote 23 the right to respond to allegations by adducing the evidence allowing effective defence,Footnote 24 the right to impartial appraisal of evidence (consubstantial to the principle of impartiality of judges),Footnote 25 and, in criminal procedures, the right to benefit from the presumption of innocence.Footnote 26
Regarding the distribution of evidentiary duties, the term ‘distribution’ should be understood as the placement, on the parties, of specific obligations to present or respond to evidentiary arguments, to adduce certain types of evidence, or to attain certain standards of proof and of persuasion. In the absence of positive law to say otherwise, the EU is a so-called free proof system,Footnote 27 that is, a system with no pre-established rules on who proves what, with which items of evidence, and to what extent. In this context, the basic distributary principle that regulates the allocation of burdens is actori incumbit probatio by virtue of which the initial burden to give evidence and to move forward falls on the claimant.Footnote 28
However, allocating burdens is not everything, since their ‘weight’ (or feasibility) is determined by a series of additional requirements that regulate the probative value and admissibility of specific items of evidence, as well as the standards of proof (e.g., preponderance of evidence or ‘beyond reasonable doubt’), which must be met for a contradictory debate to unfold based on concrete, evidence-based arguments as opposed to ‘mere’ assertions. In view of enhancing the ability of litigants to effectively present ‘their versions’ of the disputed facts,Footnote 29 the CJEU has established a series of requirements that define – albeit through broad brushstrokes – the ‘weight’ of the burdens of proof carried in actions brought on the grounds of EU law. The specificity of these principles is that they appear more as rational requirements rather than detailed, checklist-type prescriptions on points like relevance, admissibility, probative value, and standards of proof. The Court and its Advocates General (AG) considered, for example, that indicia cannot be taken as conclusive evidence unless they are ‘corroborated’ by additional evidence:Footnote 30 that, specifically in competition law, parallel behaviour is ‘strong evidence’ of a concerted practice;Footnote 31 that any disturbance of the functioning of the Internal Market should be supported by objectiveFootnote 32 and cogentFootnote 33 evidence; that infringements (Article 258 TFEU) cannot be supported by presumptions of non-conformity with EU law provisions;Footnote 34 that requests for interim measures should not be supported by ‘weak’ indirect evidence (hearsay).Footnote 35
This brief overview is, by no means, a detailed analysis but a canvassing of some of the key features of the ‘general system of evidence’ of the EU meant to set the stage for the remainder of this chapter. The key takeaway is the following: private parties’ ability to give evidence ought to support their effective participation in a trial and in doing so allow them to claim the benefit from the judicial protection EU law promises to provide. In other words, evidence should be an enabler of effective judicial protection, regardless of whether judicial redress is sought before national courts or directly before the Union Courts. However – as will be argued – the evidentiary requirements that litigants must meet in direct actions do not seem to follow this justice-enabling trend.
In this context, the present chapter will first discuss the interrelationship between the right to a remedy and the effective ability to give evidence (Section 3.2). Against the backdrop of this discussion, it will, second, explore the various ways in which evidence can hinder the judicial protection provided by the Treaty provisions on direct actions. In this regard, we will conduct two analyses. Our first analysis will concern the direct actions where evidentiary requirements obstruct the access to a legal remedy. This is the case in annulment and failure to act proceedings, the admissibility of which depends on the adducing of specific (and often unrealistic) evidence by private parties (Section 3.3). Our second analysis will concern the direct actions where evidence requirements limit private parties’ effective (or meaningful) participation and seeking of judicial redress. This is the case in actions for damages, which do not have clearly distinguished admissibility/substance stages (like, say, annulment proceedings) but are characterised by evidentiary requirements that are such that private litigants often experience difficulty in arguing their cause and having the judicial redress they hope to have when seeking compensation for harm causally connected to the conduct of a Union institution (Section 3.4).
3.2 The Interrelationship between ‘Effective’ Judicial Protection and the ‘Effective’ Ability to Give Evidence
Notwithstanding the references to effectiveness in the Treaties and the CJEU’s case law, a clear definition of this concept is lacking. In a generic sense, it can be understood as a standardFootnote 36 applied in the assessment of the capacity of national or Union measures to ensure the proper legislative, administrative, or judicial implementation of EU law. To further clarify the meaning of this standard and how it relates to ‘effective’ judicial protection, as well as to the ability to give evidence, we will address two questions. First, on the issue of scope: In a given procedure, does effectiveness apply only to the modalities that enable the access to a remedy, or does it also extend to the modalities according to which evidence is given and assessed? Second, on the issue of uniformity: Does the principle of effective judicial protection generate the same requirements of effectiveness for the systems of procedures of the Member States and that of the Union?
To answer these questions, a few preliminary observations should be made. A cursory overview of the CJEU’s case law does not reveal rigid criteria that could be used to ‘measure’ the effectiveness of a national or Union measure implementing an EU law provision. It does seem, however, that effectiveness is an outcome-oriented notion: a measure is ‘effective’ so long as it does not compromise the attaining of the objectives the Treaties assign to the Union. Prodifarma (dealing with an issue of collective dominance) can be mentioned as an example of a case where the Member States’ compliance with Article 102 TFEU (prohibition of abuse of dominance)Footnote 37 was interpreted as also implying their compliance with the Union’s general objectives, in particular effective competition in the Internal Market. This approach of viewing specific Treaty provisions (such as Article 102 TFEU) as particularising general Union objectives (listed in Article 3 TEU)Footnote 38 is, in a way, the Union Courts’ ‘signature reasoning’ when it comes to ensuring the full effet utile (and by that, full effectiveness) of Union law.Footnote 39
Scholarship has labelled this outcome-oriented notion of effectiveness as substantive, essentially translating to ‘the capacity of chosen legislative patterns in obtaining results that are as close as possible to realizing the ideal expressed by the political actors, considering the context of operation’.Footnote 40 In the context of EU law, the ultima ratio of substantively effective EU law provisions is, of course, the full guarantee of entitlements (rights and duties) that private parties derive from those provisions. The reasoning behind this effectiveness–rights correlation is fairly straightforward: only when an EU law provision is ‘effective’ can the benefit from the rights it confers to individuals be ‘effective’ as well. It can even be argued that there is an ‘in the law we trust’ presumption by virtue of which Union law provisions invariably provide the most adequate possible safeguards to individuals. This is, arguably, why EU law provisions benefit from ‘strong’ (i.e., not easily rebuttable) presumptions of legality and validity:Footnote 41 because of those provisions’ potential to be rights-giving, all subjects of Union law (including private parties) ‘must acknowledge the full effectiveness of legislative acts of the institutions so long as neither the Court of Justice nor the [General Court] has found them to be illegal’.Footnote 42
To concretely uphold substantive effectiveness, procedural means were, of course, needed, in order to allow individuals to practically (and effectively) claim the benefit from their rights. In Van Gend & Loos, the Court stressed that ‘the vigilance of individuals concerned to protect their rights amounts to an effective supervision … of the Member States’.Footnote 43 The judicial protection afforded under Union law is usually considered as ‘effective’ if private parties have access to legal remedies that allow them to launch actions on the grounds of Union law provisions. Indeed, the access to a remedy has been historically considered as the procedural guarantee associated with the principle of effective judicial protection – a canon seminally given in ReweFootnote 44 and Johnston.Footnote 45
But from the perspective of procedural abilities – this chapter’s theoretical vantage point – the Court’s long-standing case law on the principle of effective judicial protection leaves open the first question this section seeks to answer: Does the standard of effectiveness in ‘effective judicial protection’ apply only to the access to remedies or does it also extend to the parties’ ability to adduce evidence?
The standard viewFootnote 46 has indeed been narrow: judicial protection has been thought to be ‘effective’ when (usually national) systems of procedures made remedies available for actions brought on the grounds of EU law. Seldom has effective judicial protection been connected, in any important way, to the private parties’ abilities to give evidence. This is, namely, due to a dissociation between the right (to a remedy) and the entitlements and/or requirements to give evidence for the purpose of exercising that right. Take Factortame,Footnote 47 for instance. The CJEU stressed that UK law ought to make available interim measures for actions based on EU law because ‘the full effectiveness of Community law would be … impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law’.Footnote 48 However, the ‘full effectiveness’ referred to in this case did not extend to requirements on evidence that the claimants were held to meet, the assumption being that the ‘evidentiary technicalities’ would, in any case, be defined by national law.
Of course, there have been cases where rules on evidence were sanctioned by the CJEU for having failed the ‘effectiveness test’. However, these are cases where said rules did not directly obstruct private parties’ access to a remedy but restricted the benefit from rights other than the right to a remedy. Famously in San Giorgio, the Court rejected an Italian rule that made the repayment of charges levied contrary to Union law conditional on documentary evidence that those charges had been passed on to consumers.Footnote 49 The Court considered that ‘any requirement of proof which has the effect of making it virtually impossible or excessively difficult to secure the repayment of charges levied contrary to Community law would be incompatible with Community law’.Footnote 50 Similarly, in Otero Ramos, the Court sanctioned an irrebuttable presumption of veracity of an employer’s declaration on the working conditions of female workers, since that presumption deprived ‘of all practical effect’ the principle of equality between men and women.Footnote 51
Based on these trends, two observations can be made. First – in a negative sense – cases like San Giorgio and Otero Ramos suggest that effectiveness limits the Member States’ procedural autonomy in the field of evidence when national rules of evidence adversely affect the benefit from a subjective right conferred by a Union law provision. Second – in a positive sense – the implication from this case law is that a system of evidence ought to support (or enable) the benefit and exercise of any such right, including the right to access a remedy.
The abilities doctrine as a theoretical framework for this chapter supports this view: a rule of evidence that sets out, say, practically unfeasible admissibility conditions would – unsurprisingly – make a private party’s access to a remedy difficult. The structure of Article 47 CFR also supports the association between the right to a remedy and the ability to give evidence as it seems to rely on a holistic view of the concept of ‘procedure’: the latter is not only limited to remedies stricto sensu but also includes procedural entitlements that allow litigants to access and participate in the proceedings those remedies give way to. As per Article 47(2) CFR, these entitlements are expressed in the fair trial safeguards, that is, fair and public hearing, reasonable time, independent and impartial tribunal, and the assistance of a legal counsel. As argued earlier,Footnote 52 most of the Union’s ‘general’ entitlements (or procedural rights) in the field of evidence have been derived by the CJEU from the right to a fair trial. The merging of the right to a legal remedy (Article 47(1) CFR) with the fair trial safeguards (Article 47(2) CFR) in a single constitutional provision gives an important hint for the remainder of this chapter: it does matter if, in addition to having the legally recognised ability to access a remedy, private parties also have the necessary procedural abilities to practically access and exercise that remedy.
Though this holistic reading of the principle of effective judicial protection is unorthodox, it has been endorsed by a part of scholarship. Wildemeersch, for instance, suggested that effective judicial protection as a principle should be understood lato sensu, that is, not only as defining a standard of effectiveness for the right to access remedies and courts but also as defining all the components of systems of remedies,Footnote 53 including the procedures designed for the adducing of evidence. Alternatively, he interpreted the right to a legal remedy stricto sensu as referring ‘only’ to the right to access courts.Footnote 54 Recent case law also supports this ‘holistic view’. In the SteffensenFootnote 55 case, for example, the issue addressed by the Court was whether the Foodstuff DirectiveFootnote 56 entitled a manufacturer to request a second opinion after an initial investigation procedure had taken place, during which samples had been collected from that manufacturer’s retailers and found non-conforming with the German legislation. The claimant argued that the German fact-finding procedure was improper since it did not allow them to express their views or present their own evidence, thus infringing their right to a fair hearing. From the perspective of the CJEU’s ‘standard’ case law on effectiveness, the Court’s ruling was unsurprising: it stated that the Directive might (not ‘should’) provide the basis for a second evidence-gathering procedure, if the national court found that the German rules on evidence were incompatible with the principles of equivalence and effectiveness.Footnote 57 However, from the perspective of the procedural entitlements associated with effective judicial protection, the Court’s reasoning is noteworthy because it seems to suggest that the availability of legal remedies is not the only such guarantee that stems from this principle. The latter also includes entitlements pertaining to evidence gathering and assessment, considering the importance – stressed by the Court itself – that private parties be given ‘adequate opportunity to participate in the proceedings before the court’,Footnote 58 these proceedings being ‘considered as a whole, including the way in which evidence was taken’.Footnote 59
Assuming – as we do – that the principle of effective judicial protection implies a holistic reading of the term ‘procedure’, the second question, raised in this section, remains yet to be answered. Indeed, the cases mentioned all deal with the effectiveness of national systems of procedures and remedies. This begs the question of whether the effectiveness requirements the Court has defined in connection to those systems do, or should also, apply to the system of remedies in the Treaties. In other words, is there a uniform standard of effectiveness that both the Member States’ and the Union’s systems of procedures should aspire to achieve?
With the entry into force of the Lisbon Treaty, Article 47 CFR – a primary law provision – was interpreted by the CJEU as ‘a reaffirmation of the principle of effective judicial protection’.Footnote 60 Given the constitutional nature of this article, it is reasonable to assume that the standard of effectiveness it implies concerns the Member States’ and Union’s systems of procedure alike. This would suggest that, much like the requirements under national systems of remedies, the requirements framing private parties’ access to the direct actions should not make that access ‘virtually impossible or excessively difficult’. Article 47 CFR thus supports an argument in favour of uniformity.
In pre-Lisbon times, savant minds would presumably not view this argument as convincing, given that the contours of the principle under consideration have been canvassed in the Court’s case law primarily dealing with the Member States’ systems of legal remedies. Post-Lisbon, a subtle trend toward uniformity was detected by Wildemeersch,Footnote 61 who observed the Court’s increasing tendency to rely on Article 47 CFR in lieu of the ‘usual’ effectiveness/equivalency test when seeking to determine if national systems of remedies succeeded in meeting the effectiveness requirement.Footnote 62 It is tempting to interpret this trend as a sign of standardisation (or standard-shifting) of the level of effectiveness associated with the judicial protection afforded by both national and the Union’s systems of remedies. But this trend does not yet seem to be consolidated. In Randstad Italia,Footnote 63 for example – in essence, dealing with the availability of remedies enabling the Italian judiciary Supreme Court to review the decisions of the administrative Supreme Court – Advocate General (AG) HoganFootnote 64 examined Italy’s procedural autonomy under Article 47 ECFR, but the CJEU referred (back) to its tried-and-true effectiveness/equivalency test.Footnote 65
The debate on the uniformity of the standard of effectiveness (stemming from the principle of judicial protection) is multi-faceted, complex, and beyond the scope of this chapter. May it suffice positing the following: rather than a proper (binding) constitutional requirement, this type of uniformity appears to be an aspirational ideal for the Members States’ and Union’s systems of remedies (and by extension, of evidence). It is reasonable to assume that the procedural abilities that private parties should have in national systems of procedure ought to be equivalent to those that are guaranteed in the context of direct actions. However, as our further discussion will show, though the national and Union’s systems of remedies converge in their finality (i.e., affording judicial protection to individuals) they strongly diverge in the procedural means through which they seek to attain that finality. The result of this divergence is a selective, rather than uniform, application of the standard of effectiveness associated with the principle of effective judicial protection.
3.3 The Requirements on Evidence Restricting the Effective Access to a Remedy in the Context of the Legality Review
3.3.1 The Heavy Burden of Proving Standing in Annulment and Failure to Act Proceedings
If Article 263(4) TFEU was read as defining a system of evidence, the key point it would define – albeit broadly – would be that of relevance,Footnote 66 laying down the basic criteria of the factum probandum, that is, the fact(s) for which evidence is sought for the action to be declared admissible. The admissibility probandum in annulment actions launched by private parties against Union acts not addressed to them consists of two relevant facts: direct and individual concern. As is well known, the CJEU clarified the features of those facts in the Plaumann case,Footnote 67 dealing with a German clementine importer who challenged the legality of a Commission decision addressed to Germany, allowing for the maintenance of import duties on clementines from non-Member States. The applicant considered that they met the direct/individual concern requirements because the total number of importers of clementines was small and easily ascertainable. In this case, the Court famously discussed only individual concern as, having found it lacking, it considered that there was no need to address the direct concern criterion. However, the latter was discussed by AG Roemer, who strongly criticised the applicants’ views of directness ‘as no more than a measure of the strength of the interest’, frustrating the raison d’être of Article 263 TFEU, which – the AG argued – ‘must be understood in a particular way from the system of the Treaty and the structure of the Community order … [and its] organisation of legal protection’.
It is interesting to note that AG Roemer’s reasoning on direct concern was developed against the backdrop of the Union’s ‘federal structure … a situation in which the [Union] institutions are raised above national courts with powers which in part have direct effects in the sphere of the Member States but in part are limited and in realizing specific aims require cooperation of Member States’.Footnote 68 The reference in the AG’s Opinion to the ‘ontological grounds’ of Article 173 of the Treaty Establishing the European Economic Community (TEEC, currently Article 263 TFEU) is telling since directness within the meaning of this article echoes the direct effect doctrine, established in Van Gend & LoosFootnote 69 a few months prior to the Plaumann ruling. Although direct concern and direct effect are separate concepts, they serve the same normative purpose, that is, the judicial protection of private parties before national courts, under the direct effect doctrine, and before the Union Courts, under the direct concern requirement. Because of this, they share a common evidentiary requirement: for either to be established, litigants are held to show the absence of mediation between themselves and the applicable EU law provisions. This ‘absence of mediation’ (or immediacy)Footnote 70 translates to proof of absence of discretion – namely from the Member States – in the implementation of EU law provisions.Footnote 71
In this context, and considering that in Plaumann the implementation of the contested decision required that Germany take the necessary measures (and therefore exercise discretion), the direct concern leg of the probandum was ultimately not considered as established.Footnote 72 With this reading of Article 173 TEEC the canon was set: in its subsequent case law,Footnote 73 the CJEU would systematically seek to determine if a Union provision had, without any type of institutional or normative mediation, directly affected or altered the legal situation of the applicant. This ‘test’ of direct concern was applied talis qualis in failure to act proceedings. For example, the omission by the Commission to amend an approved national programme on vocational training was found not to directly affect the legal position of a private party applicant, considering the extent of national discretion in the implementation of that programme.Footnote 74 Similarly, given the level of discretion of the European Commission in the context of infringement proceedings, its refusal to respond favourably to an invitation to launch such proceedings could not provide sufficient grounds for the author of the invitation to establish direct concern.Footnote 75
It was, however, on the proof of individual concern that the Plaumann case gave the apex evidentiary requirement in (and presumably the strongest procedural ‘filter’ of) annulment actions launched by private parties. In this regard, AG Roemer stressed – again, sharply – that the limited number of clementine importers ‘cannot be decisive’Footnote 76 since individual concern does not arise from the individuality of particular persons but ‘from membership of the abstractly defined group of all those who wished to import clementines during the period in question’.Footnote 77 The Court took an even stricter stance, asserting that a person is individually concerned by a decision not addressed to that person if it affects them ‘by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed’.Footnote 78
This interpretation provided the normative understanding of individual concern as being an extremely high level of individuation, the applicant’s ‘particular features’ or ‘circumstances’ having become facti probans (facts that prove the probandum) necessary to establish that they are, in actuality, the addressees of a Union act formally not addressed to them. In this context, merely showcasing some distinguishing personal features (like a limited number of addressees) is not enough. A cursory overview of the CJEU’s case law shows that the desired level of individuation is proven to the satisfaction of the Court when two criteria are met. First, the applicants must establish factual individuation: they must prove that in fact (i.e., by virtue of specific characteristics) the circle of addressees of a contested act is identified, identifiable, and closed. Second, this factual individuation is paired with – what can be qualified as – normative individuation: the applicant should be singled out by virtue of the legal effects produced by the contested act, not by the characteristics of the market concerned.Footnote 79 Needless to say, establishing these two versants of individuation has proven to be challenging.
What is more, those requirements were transposed to failure to act proceedings, though, in the latter, applicants face the added challenge of supporting, with evidence, an ex hypothesi argument. Namely, under Article 265 TFEU, they carry the (heavy) burden of proving that, had an act been adopted, it would have been of individual concern. For instance, the existence of a sufficient relationship of competition between an applicant and a recipient of State aid, which the former had invited the Commission to investigate, was viewed by the General Court as a circumstance warranting sufficient individuation.Footnote 80 In contrast, in Edinger,Footnote 81 the refusal by the Commission to request the withdrawal of bilateral measures taken by the EU Member States vis-à-vis Austria during its Haider episode did not, in any way, individualise the applicant.Footnote 82
A common characteristic in the cited cases is the level of austerity on the part of the EU Courts in assessing the applicants’ arguments of direct and individual concern: establishing the admissibility probandum under Article 263(4) TFEU and, by extension, Article 265 TFEU seems to be the exception rather than the rule. The question which then arises is whether, under those provisions, private parties are not required to adduce a so-called probatio diabolica: evidence that is formally admitted but practically difficult or impossible to adduce. For a legal order priding itself on its ‘complete system of procedures’ and its strong commitment to a high standard of judicial protection afforded to private parties, this is surprising. The surprise is even greater when one considers some of the CJEU’s cases where the Court did not hesitate to sanction national rules on evidence that placed unrealistic burdens on private parties, thus restricting their ability to effectively benefit from the rights they derived from Union law. The abovementioned San GiorgioFootnote 83 and Otero RamosFootnote 84 come to mind in this regard.
The CJEU’s selective reading of private parties’ evidentiary abilities afforded under national and Union systems of remedies is open to criticism. This reading is of course alarming, especially in cases where a claimant might argue that a Union act is illegal because it infringes on a fundamental right other than the right to a remedy. In Jégo-Quéré,Footnote 85 for instance, dealing with the annulment of a regulation defining the size of fishing boats and the types of fishing nets used for the fishing of juvenile hake, the applicant was – arguably – the only fishing company to have vessels and nets covered by the contested act. It had nevertheless failed to establish the specific ways in which that act individualised it from any economic operator actually or potentially in the same situation.Footnote 86 Bearing in mind the CJEU’s case law on the effectiveness of national procedural rules, it is reasonable to assume that if said act was a national regulation, the Court would have no doubt found that it restricted, say, the applicant’s right to conduct business, as guaranteed by Union law.
Of course, the CJEU’s rigour in assessing the proof of individual concern has not always amounted to declarations of inadmissibility. In Codorníu,Footnote 87 for example, dealing with a regulation allowing only French and Luxembourg producers of sparkling wine to use the Grand Crémant label – the Court considered that the applicant, a Spanish producer of sparkling wine, had succeeded in establishing the existence of a situation that ‘from the point of view of the contested provision differentiates [them] from all other traders’.Footnote 88 It remains, however, that, more often than not, private parties fail to pass the admissibility test of Article 263(4) TFEU because the burden they carry is simply too heavy. In reaction to this, pleas have been made to relax those evidentiary requirements and increase the effectiveness characterising private parties’ access to a legality review. Alas, the protection of the right to a legal remedy, but also other fundamental rights, have often been the leitmotivs of these – often disregarded – pleas.
3.3.2 Pleas to Lighten the Burden to Prove Standing in Annulment and Failure to Act Proceedings
Chronologically, there have been two types of plea for the lightening of the admissibility burden in the context of the legality review. The plea based on the right to access a remedy came first and is procedural in nature (that is, pertains to the normative design of the system of evidence in annulment and failure to act proceedings). The criticism here was that the Court’s austere application of the Plaumann criteria raised an almost insurmountable barrier obstructing private parties’ direct access to the Union Courts.
The more recent, second plea is based on those parties’ procedural abilities and is processual in nature (that is, pertains to the modalities according to which litigants give evidence in the context of the legality review). The criticism here is that the conduct of the Union institutions in making evidence unavailable to litigants restricts their ability to prove standing under Article 263 (and by extension, 265) TFEU.
Regarding the ‘procedural’ right to a remedy strand, the emblematic example is, of course, the UPA OpinionFootnote 89 in which AG Jacobs famously suggested a redefinition of the individual concern probandum: in lieu of proving the (excessively high) degree of individuation discussed earlier, the AG suggested that the applicant establish a ‘substantial adverse effect on [their] interests’ that the challenged measure has or is liable to have.Footnote 90 This Opinion was not followed by the CJEU who, in its ruling,Footnote 91 considered that the failure to meet the Plaumann criteria did not restrict the otherwise ample opportunity for litigants to seek judicial protection via other procedural routes.Footnote 92 But the Court missed the point of AG Jacobs’ Opinion, which did not suggest altogether eliminating the individual concern probandum but to – merely – ‘lighten’ the burden it entails, in view of facilitating private applicants’ effective access to a remedy.Footnote 93 True, Article 267(3) TFEU provides an alternative to Article 263 TFEU through the involvement of the Member States’ courts, but the coexistence of two remedies conducive to the same type of review does not justify the fact that one of them is virtually impracticable.
A step toward the ‘lightening’ of the direct/individual concern burden was thought to be made with the entry into force of the Lisbon Treaty. Article 263(4) TFEU eliminated the proof of individual concern in actions seeking the annulment of regulatory acts not requiring implementing measures. However, a reading of Article 263 TFEU from the perspective of evidence might suggest that it, in fact, created two burdens, corresponding to two distinct types of normative acts. For general legislative acts, claimants continue to carry the ‘standard’ Plaumann burden of proving direct and individual concern. For actions concerning self-executing regulatory acts, the duty to prove individual concern was indeed eliminated, though it is not certain that this translated into a considerable lightening of the overall burden to prove standing. Regulatory acts being a new category introduced with, but not defined in, the Lisbon Treaty, the launching of annulment proceedings against those would require proof that (i) an act is, indeed, regulatory (as opposed to legislative);Footnote 94 (ii) it does not require implementation measures; and (iii) it is of direct concern to the claimant. The possibility for litigants to avoid proving individual concern was understandably attractive, though in practice Article 263(4) TFEU was ultimately not the ‘effectiveness booster’ it was expected to be with the entry into force of the Lisbon Treaty. A cursory overview of the CJEU’s case law reveals that the Court has seldom qualified an act as both regulatory and self-executing, often finding that the acts applicants argued were regulatory relied on implementing measures.Footnote 95
Regarding the processual abilities strand, the recent Nord Stream 2 case is a noteworthy example.Footnote 96 A Swiss gas company challenged a 2019 directive amending provisions of the 2009 so-called Gas Directive.Footnote 97 The applicant brought an annulment action against the 2019 act before the General Court,Footnote 98 which was dismissed for lack of proof of direct concern. The appeal before the Court of Justice included two grounds: first, the appellant argued direct concern although the directive had not yet been transposed, implying that it had not deployed its legal effects likely to ‘directly’ affect the applicant’s situation. This of course raised the issue of the interpretation of the direct concern probandum when the contested act is a directive, by definition requiring the Member States’ intervention to be transposed into national law.
The first ground of appeal raised a very clear issue in connection with the right to a remedy, the main question being whether annulment proceedings are, in practice, impossible to launch when they concern a directive (i.e., a general act) which – to further complicate matters – has not yet been transposed into national law. The obstruction to the right to a remedy in such a case is obvious: given the general nature of directives and the need for implementation measures, it is reasonable to assume (in light of the CJEU’s case law) that, try as they might, private parties would never be able to establish direct concern.
The second ground of appeal raised an interesting evidentiary issue. Curiously, during the procedure before the General Court and based on Article 130(2) of the CJEU’s Rules of procedure,Footnote 99 the Council withdrew three documents for which the appellant requested disclosure of their unredacted version. This raised the issue of the equality of arms principle – a fair trial safeguard – in the sense that the Council’s withdrawal of items of evidence affected the appellant’s knowledge of facts necessary to express their views throughout the procedure (i.e., admissibility and substance).
On the first point, AG Bobek virulently opposed the systematic inadmissibility of annulment proceedings brought against not-yet-transposed directives. He stressed that this can ‘hardly be reconciled with the right to an effective remedy which Article 47 [ECFR] ensures to everyone … and with the freedom to conduct a business and the right to property, recognized in respectively 16 and 17 of the Charter’.Footnote 100 The CJEU followed the AG’s Opinion, stating that for directives, the fact that transposition measures have not yet been adopted ‘is not, in itself, relevant since they do not call into question the direct nature of the connection between that directive and its effects [on individuals]’.Footnote 101 The possibility to establish direct concern in such cases was laudably admitted in the name of effective judicial protection.
On the second point, the request to disclose evidence was examined through the prism of a right to access documents issued by the Union institutions, governed by Regulation 1049/2001.Footnote 102 Although the EU legal order is governed by the principle of freedom of proof, with no general rules on the admissibility of evidence,Footnote 103 AG Bobek cautioned against considering said regulation as a ‘go-to’ instrument when issues on the access to and admissibility of evidence in annulment proceedings arise. Instead, he suggested that those issues be addressed from the perspective of (here again) the right to effective judicial protection: ‘[T]he rules on evidence seek to ensure the proper administration of justice, enabling the [CJEU] to carry out its mission under Article 19 TEU. The overarching aim is to guarantee to everyone the right to an effective remedy enshrined in Article 47 of the Charter.’Footnote 104 Against this backdrop, the Court would need to assess how the admissibility or non-admissibility of certain types of evidence is likely to affect the economy of procedure, the fairness of the proceedings, and the respect for the rights of the defence.Footnote 105 Again, the CJEU’s ruling converged with the AG’s Opinion. The fundamental principles of evidence in EU law should be interpreted so as to allow the assessment of the ‘reasonable opportunity’ of the applicant to present their case ‘including his or her evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent’.Footnote 106
In the context of the CJEU’s standard case law on the direct and individual concern probandum, Nord Stream 2 brings some hope. It seems to be in line with the broad understanding of effective judicial protection we suggested earlier in this chapter:Footnote 107 the effectiveness of the judicial redress offered to private litigants under Article 263 and Article 265 TFEU should go beyond the ‘mere’ issue of access to a legal remedy, extending to the (evidentiary) modalities according to which those remedies can, or should be accessed. This is an important point to stress because Nord Stream 2 is one of the rare cases where the admissibility and substance of an action for annulment against a general Union act was assessed in connection with the applicant’s ability to give evidence. This increased awareness of the importance of evidence might – dare we hope – trigger a more procedural abilities–oriented interpretation of Articles 263 and 265 TFEU.
Such a shift would be welcomed because it would allow applicants to argue that any restriction on their ability to give evidence might also restrict their right to a remedy, as well as other rights enshrined in the Charter. The interconnectedness between procedural abilities to give evidence and fundamental rights has been typically associated with the CJEU’s economic sanctions case law. In Kadi, for instance,Footnote 108 the contested measure instituted a freezing of funds that infringed the applicant’s right to property. To establish that infringement, they of course required that evidence be disclosed (by the Council) on the reasons underlying that sanction. Similarly, in Nord Stream 2, the proof of the violation of the right to conduct business depended on the applicant’s ability to both demonstrate standing and have access to the documents the Council had decided to withdraw. The analogy between Nord Stream 2 and the Kadi case law is apparent: in both cases, it was the access to evidence that dictated, to a large extent, the success of the arguments pertaining to the violation of fundamental rights as the core issue of the debate on the substance of the proceedings. However, the specificity of Nord Stream 2 is – again – that this access was recognised in relation to a general Union measure, as opposed to the individual acts instituting economic sanctions, by definition destined for specific groups of addressees.
It is too early to tell if Nord Stream 2 will become a trend-setting case on the interrelationship between evidence and standing/substance in annulment actions brought against general Union acts. While we wait for new developments in the Court’s case law, the Plaumann austerity does not seem to have been relaxed. The reason for this is – what can be seen as – the Court’s (over)protective attitude toward secondary Union law, the rationale that emerges being that legality should be the norm, illegality the (rare) exception. If we were to place procedural entitlements (access to evidence, feasibility of evidence, equality of arms, contradictory debate) and the presumed legality of EU law on a balance, the scales would clearly tip in favour of the latter, which begs the question of whether direct actions are a notable exception to the standard of effectiveness that Article 47 CFR seems to uphold (in paragraphs 1 and 2). The answer seems to be ‘yes’ and our discussion of the system of evidence under Article 340 TFEU (non-contractual liability) gives additional confirmation of this.
3.4 The Requirements on Evidence Restricting the Litigants’ Effective Participation (and Ability to Seek Judicial Redress) in Actions for Damages
Like the actions conducive to a legality review, the evidence in non-contractual liability proceedings seeks to establish unlawfulness in the conduct of a Union institution having resulted in the suffering of harm by a private party. However, unlike the Treaty provisions on illegal acts or omissions – which provide minimal information on the admissibility conditions (and corresponding burdens) applicants must satisfy – Article 340 TFEUFootnote 109 makes no mention of private parties nor of evidence but merely states that ‘the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’. Presumably, this Article would require some proof of causation,Footnote 110 but its wording alone does not allow us to clearly map out the relevant facts that litigants ought to establish in order to have standing when seeking compensation for a harm caused by a Union institution or civil servant.
Charged with the task of conceiving the overall design of the system of evidence in non-contractual liability actions, the CJEU drew a parallel with the system of evidence applied in the field of State liability. Referring to the conditions set out in FrancovichFootnote 111 and consolidated in Brasserie du Pêcheur,Footnote 112 in Bergaderm,Footnote 113 the Court stressed the importance of – what can be qualified as – structuralFootnote 114 uniformity of both the Union’s and the Member States’ liability regimes, by reiterating – as already stated in BrasserieFootnote 115 – that the conditions for non-contractual liability of both cannot differ.Footnote 116 In light of this, the system of evidenceFootnote 117 applied in State liability provided the template for the system of evidence of the EU’s non-contractual liability. However, the burdens and relevant facts for each leg of the facts to be proven (unlawful conduct, harm, causation) were yet to be defined.
Regarding the proof of sufficiently serious breach, applicants are required to establish a violation of a norm by a Union entity (institution, agency, civil servant, etc.) that can qualify as a rule of law intended to confer rights on individuals.Footnote 118 The practical issue of what exactly that evidence entailed was raised early on. An initial clarification was given in Kampffmeyer,Footnote 119 where the CJEU stressed that the claimants needed to establish a ‘wrongful act or omission capable of giving rise to liability on the part of the [Union]’.Footnote 120 The concept of ‘wrongful act’ was to be understood as an ‘unlawful act’, not to be found ‘in a mistaken evaluation of the facts but in [a] general conduct which is shown clearly by the improper use made of [an EU law provision]’.Footnote 121 In its subsequent case law, the Court further clarified the relevant facts that could establish an ‘improper use of an EU law provision’. In Bergaderm,Footnote 122 it seminally considered that the ‘decisive test’Footnote 123 for determining whether a breach of Union law was sufficiently serious required evidence that a Union institution had manifestly and gravely disregarded the limits on its discretion.Footnote 124 Where a Member State or a Union institution has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach.Footnote 125
By defining the features of the breach of Union law that was the original cause of a harm, the CJEU brought some clarity on the otherwise laconic wording of Article 340 TFEU. However, grey areas persisted in terms of the litigants’ practical ability to adduce the evidence according to the Court’s requirements. For example, the Court did not list the criteria that would allow litigants to distinguish cases where the Union enjoyed broad discretion from cases where this discretion was minimal or non-existent. It is in the case law following Bergaderm that we can discern certain criteria used by the Court in its appraisal of the manifest and grave disregard of the limits of an institution’s discretion. The key criterion in this regard was the level of discretion warranted by the rule of law infringed,Footnote 126 along with the complexity of the situation to be regulated, the difficulties in the application or interpretation of the legislation, the clarity and precision of the rule infringed, and whether the error of law made was inexcusable or intentional.Footnote 127
The merit of these clarifications notwithstanding, it remains the case that in practice we detect a tendency by the Court to interpret the evidentiary requirements as filters rather than ‘enablers’ of actions for compensation brought by private parties. A key reason for this is the Court’s limited review of the extent of the institutions’ discretion. In general, the Union Courts have seldom considered there to be a ‘manifest and grave disregard’ of the limits of institutional discretion in liability claims, when those claims pertained to normative choices made for the purpose of implementing common policies.Footnote 128 The standard formula in such cases is that the EU legislature ‘enjoy broad discretion in those cases in which it has to evaluate a complex economic situation’, which is not limited solely to the nature and scope of the measures to be taken but also ‘to the finding of basic facts’.Footnote 129 The implication from this limited judicial review is that, as a matter of principle, the institutions are – again – presumed to act within the limits of their powers, any disregard of those limits being perceived as a rare exception. However, the impact of this presumption on the claimants’ procedural abilities under Article 340 TFEU is that they were and continue to carry a burden that is quite heavy, the proof of ‘unlawful’ exercise of normative discretion needing to be such that it strongly (and exceptionally) justifies the rebuttal of said presumption.
Similar observations can be made regarding the evidence of the harm suffered. In this regard, applicants are required to show that they were ‘particularly harmed or harmed in a different way and much more seriously than all other economic operators’.Footnote 130 In other words, the harm should not be the result of risks that go beyond the normal hazards – whatever ‘normal’ is – in a given sector (say, international trade).Footnote 131 It goes without saying that proving the abnormality of a harm suffered is a difficult task, especially when a claimant seeks compensation for an imminent harm, which ought to be established with sufficient certainty.Footnote 132
But even for harm that has already materialised, proving its special or abnormal nature is far from reasonably feasible. The T-Port caseFootnote 133 provides a telling example of this. Following a Regulation on the organisation of the banana market in the EU, a German importer sought compensation for the damage suffered by reason of their obligation to buy export licences in order to commercialise bananas from third countries in Germany. The General CourtFootnote 134 declared the action inadmissible due to the lack of the ‘indispensable evidence’Footnote 135 by which the applicant would prove the amount they actually paid in exporting bananas from certain third countries. As evidence of harm, the claimant had provided an auditor’s certified statements, which the General Court viewed as inconclusive.Footnote 136 Moreover, the applicant ought to have taken greater care to communicate information on various points because ‘the Commission expressly drew the applicant’s attention to the fact that such information was essential if the existence and extent of the damage alleged were to be established’.Footnote 137 In the appeal brought before the CJEU, the Court’s judgment was in line with that of the General Court, as far as evidence was concerned. The Court, indeed, stressed that by basing the action on the fact that costs were incurred, the applicant ‘had not adduced sufficient proof of having actually sustained loss’.Footnote 138 Considering that the existence and extent of the alleged damage was not established, and given the lack of sufficient evidence to show any direct causal link between the unlawful conduct and the harm suffered, the action was dismissed.
Similarly, in Dole Fresh Fruit International,Footnote 139 an importer of fresh fruit brought an action for damages by reason of the adoption of a Council Decision and Regulation. The defendants argued that the applicant ‘has not adduced sufficient evidence of the existence and extent of the alleged loss or the existence of the causal link between the unlawful conduct [and] that loss’.Footnote 140 However – and interestingly – the General Court defined those standards through the aptitude of the claimant’s evidence to enable the exercise of the right to effective defence.Footnote 141 The Court required ‘for the basic legal and factual particulars relied on to be indicated, at least in summary form, coherently and intelligibly in the application itself’.Footnote 142 To this end, the applicant must ‘set out the evidence from which the [unlawful conduct] can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered and the nature and extent of that damage’.Footnote 143 In this case, the General Court considered that the applicant did provide a sufficient description of the nature and the extent of the alleged harm, the conduct that caused it, and the causal link between the two. But the action was ultimately dismissed because the applicant had – unsurprisingly – failed to establish the manifest and grave disregard of the limits of the discretion that the defendant institutions enjoyed.Footnote 144
The practical difficulties in adducing the abovementioned evidence did not push the Court to reconsider the evidentiary requirements pertaining to the serious breach probandum. One might argue that claimants ought to have a right to compensation whenever they suffer a harm caused by an institution’s conduct, be it legal or illegal. This issue was raised in FIAMM.Footnote 145 The applicants in this case suffered harm due to a lengthy dispute, within the WTO, between the United States and the EU, on the commercialisation of bananas. They stated that the infringed rule of law was not a Union provision but one of international law, in particular the pacta sunt servanda principle, arguing that, by violating this principle, the EU institutions had failed to comply with their obligations under the WTO agreement. Since the Union Courts do not have jurisdiction to assess the lawfulness of the institutions’ conduct under WTO rules, and considering that the claimant had failed to prove the unlawfulness of said conduct under EU law, the action was prima facie inadmissible.
However, the General Court went on to determine if the harm suffered could be compensated in the absence of unlawful action, when there is evidence showing a causal link between that harm and the conduct of the Union institutions. The General Court thus stated that the absence of proof of unlawful conduct does not mean that undertakings that are required to bear a ‘disproportionate part of the burden resulting from a restriction of access to export markets can in no circumstance obtain compensation by virtue of the [Union’s] non-contractual liability’.Footnote 146 The General Court’s daring attempt to redesign the system of evidence in liability proceedings was justified by the general principles common to the laws of the Member States, which do not systematically require proof of unlawfulness as a determining cause of a given harm.Footnote 147
Much like the UPA caseFootnote 148 in annulment proceedings, FIAMM can be interpreted as a plea for the lightening of the burden of proof in actions for damages, by disregarding the requirement – resulting from the case law, not the wording of Article 340 TFEU – that unlawfulness is a mandatory probandum that applicants must establish. The analogy with UPA is of course not total. In FIAMM, the ‘lightening’ of the onus probandi was not directly motivated by the right to access a remedy. It was, however, indirectly so. Maintaining the condition to establish unlawful conduct, on the part of the EU’s institutions, as the determining cause for a harm would mean that private parties do not have a legal remedy available to seek compensation for harm resulting from prima facie lawful conduct. The General Court’s ruling in FIAMM would have been in line with the right to a remedy since it would have broadened the procedural abilities of litigants in seeking compensation for harm causally related to a Union institution (having acted lawfully or not).
However, in the appeal,Footnote 149 the Court marked a return to the Brasserie du Pêcheur/Bergaderm orthodoxy, (re)asserting that the proof of sufficiently serious breach invariably required the establishing of illegal conduct of a Union entity.Footnote 150 The Court’s unwavering interpretative orthodoxy of claimants’ evidentiary duties under Article 340 TFEU mirrors its ‘clinging’ to the Plaumann criteria in the context of annulment proceedings: notwithstanding the difficulty in attaining the standard of proof required in liability actions, the CJEU ultimately refused to lighten the burden of proving serious breach, thus confirming – as was the case in the context of the legality review – the ‘filtering out’ rationale underlying the system of evidence under consideration.
3.5 Conclusion
In light of the above, let us conclude by, first, commenting on the effectiveness of the procedural abilities conferred to private parties in the context of direct actions. Our analysis suggests that those abilities were neither designed to facilitate the access to a remedy (the seminal example being that of annulment proceedings), nor to support the parties’ effective participation in the actions they launch before the Union’s Courts (the seminal example being that of actions for compensation). With the abilities doctrine as the backdrop and based on our holistic reading of the term ‘procedure’Footnote 151 – as including all the stages, components, and actors in a trial – it would follow that the (in)effectiveness of private parties’ ability to meet the evidentiary requirements defined for said actions is, naturally, conducive to the (in)effectiveness of the judicial protection that the EU Courts are assumed to afford under the Treaty provisions examined in this chapter. As mentioned earlier, the CJEU does not seem to practise what it preaches where the principle of effective judicial protection is concerned: on the one hand, said principle had justified the Court’s – not so uncommon – shaping of Member States’ procedural laws and systems of remedies while, on the other hand, the Court seems to be far more tolerant toward the restrictive procedural requirements that it had, itself, raised as gatekeepers for access to the remedies enshrined in the Treaties.
This two-speed effective judicial protection allows us to, second, give some concluding remarks on the uniformity of the principle of effective judicial protection, discussed earlier in this chapter.Footnote 152 As we argued,Footnote 153 the wording and structure of Article 47 CFR prima facie support an argument of uniformity. Nothing in this Article gives the impression that it generates two standards of effectiveness, one that would apply to national systems of procedures, the other to the Union’s. On the contrary, the fundamental right enshrined in its first paragraph implies – because it is a fundamental right – that both the Member States and the EU should exercise their procedural autonomy in a way that gives private parties if not equal, at least equivalent opportunity to seek judicial redress before national and Union Courts alike. This does not mean that the legal remedies and systems of evidence on the levels of the Member States and the EU should be harmonised, but they should ideally include conditions under which the access to courts is framed by evidentiary requirements that are, at the very least, feasible. In other words, Article 263(4) TFEU would be a decorative remedy if, in the face of the Plaumann criteria, private applicants were driven to challenge the legality of, say, a directive before a national court (taking the route of Article 267(3) TFEU) because the evidentiary requirements before that court are more realistic than those defined in Plaumann. Practice confirms that effective judicial protection is, indeed, applied selectively, depending on the system of remedies (national or the Union’s) called to provide judicial protection on the grounds of EU law. The ‘big’ question is, of course: Why? To sketch out an answer to this question, we should note the EU’s judiciary machinery seems to run on a number of axiological (i.e., value-based) assumptions.
The first assumption is that private parties are, in any case, never left without a remedy, because they often have several procedural routes available for the claims they wish to make on the grounds of Union law. It is curious to observe that when the CJEU addresses the ethos of the Treaty provisions on direct actions, it does not qualify them as effective so much as it qualifies them as complete. Axiologically, the completeness principle is coherent with the aspiration toward unity and effectiveness of Union lawFootnote 154 as well as with the latter’s capacity to create rights in favour of private parties. We could even argue that the principles established in Les VertsFootnote 155 and Rewe/Johnston carry the imprint of Van Gend & Loos.Footnote 156 Inaugurating the direct effect doctrine in this case, the Court famously stressed that the rights that Union law confers upon individuals ‘become part of their legal heritage’Footnote 157 and – as mentioned earlierFootnote 158 – called upon their vigilance to protect those rights. The effectiveness of that protection required a system of procedures that would providentially leave no lacuna in the procedural pathways that private litigants could follow in seeking judicial redress based on Union law. In other words, the completeness principle translates to a choice of procedures, the assumption being that effective judicial protection would, come what may, be afforded: if judicial redress could not be sought following one procedure (say, annulment proceedings), a claimant would in any case have alternative procedures to seek the same type of redress (say, the preliminary ruling procedure).
The trouble with that assumption is that it is not tenable in relation to the direct actions: the mere fact that individuals have ample choice of procedures is not a convincing justification for the fact that those actions are impracticable, as our analysis of the evidentiary requirements associated with those sought to show. So why is the Court so obstinately refusing to change those requirements?
Bentham may provide some food for thought on this point. For him, procedural law ‘is good’ if it supports substantive lawFootnote 159 and procedural fairness (or justice)Footnote 160 is achieved if a dispute is resolved in conformity with the law. Bentham’s assumption is that the law can – so to speak – ‘do no wrong’, his perception of justice being limited to the concept of legal justice, that is, adjudication that, in a given dispute, upholds the content and the authority of substantive law. In other words, the law itself cannot be presumed to be unfair or unjust.
The rationale underlying the design of the systems of evidence relies on a second axiological assumption similar to that expressed by Bentham. We alluded to this assumption in our discussion on substantive effectiveness:Footnote 161 the EU’s legislature is (strongly) presumed to comply with the Treaties and, by doing so, it is assumed to enforce legislation that confers subjective rights that the objectives in those Treaties warrant. The effectiveness of the law is therefore the consequence of the effective (and again, providential and primary law-conforming) normative action of the EU institutions. The Union Courts have explicitly confirmed this. For example, in a case dealing with the confidentiality of the European Commission’s documents,Footnote 162 the General Court stressed that the ‘provisions of the Treaty may be interpreted only in the manner most favourable to the sound functioning of the [Union] institutions’.Footnote 163 With regard to the specific issue raised in this case (i.e., access to documents), the General Court considered that ‘the possibility of an impairment of the sound functioning of the institutions, detrimental to the attainment of the objectives of [the Treaty], cannot be ruled out a priori in the event of their unconsidered disclosure of certain documents’.Footnote 164 The General Court’s ruling is noteworthy and rather ‘Benthamian’: since the Union institutions’ normative action (or conduct) is presumed to be lawful, the result of that action (say, secondary law act) cannot be considered as unlawful. In this context, the procedural restraints discussed in this chapter make sense: if the EU legislature ‘can do no wrong’, it is only logical that the occasions to challenge the lawfulness of that legislature’s conduct be extremely limited. True, private parties who exceptionally succeed in meeting the Court’s evidentiary requirements do, sometimes, succeed in rebutting that presumption. More often than not, however, the latter remains standing for the reasons discussed in the previous sections.
Using evidence to ‘manipulate’ the access to and administration of justice is the oldest procedural trick in the book. In medieval times, defendants in criminal ordalian trials were required to prove their innocence through absurd modes of proof (say, plunging their hands in boiling water and hoping they would remain unharmed). Mind you, proof of innocence was admitted, perfectly legal only, it was a type of proof that virtually no one could succeed in providing. But the EU’s direct actions are modern procedures committed to upholding a workable idea of the rule of law; after all, we now have Article 47 CFR. True as this may be, if the analogy with archaic proceedings and modes of evidence should be seen as irrelevant or untenable, the evidentiary shields raised around the Union’s secondary law provisions should perhaps be placed a bit lower, so that private parties can effectively challenge those provisions and, in doing so, benefit from all the rights that EU law confers on them, including the right to effective judicial protection.
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