“So to return to our initial question of whether Art 263(4) and Art 267 provide effective judicial protection, the answer must be a categorical no. It is fatuous to argue otherwise, and the CJEU’s circular and self-indulgent assertions that the Treaties are complete fly in the face of their own standards of judicial protection. The CJEU’s cosseted principle of judicial effectiveness is applied to EU standing rules in manner virtually unrecognizable to its application in relation to Member states’ domestic norms. It exhorts zealous scrutiny from national judicatures, yet only totemic consideration from the EU Courts.
The vision of the Treaties providing unfailing protection, a perfect scheme of remedial eutaxy, exists only in the mind of the Court. It is a vision built on blasé assumptions about the effectiveness of the indirect enforcement, glib references to the rule of law and wilful blindness to any argument that might relax the nearly impossible conditions in Art 263(4). It is a chimera, a tower of babel, a unicorn. And, yet, it lives on …”
This is a final post in a series of three on standing in EU law. It will focus on whether the present position under Art 263(4) TFEU satisfies the principle of effective judicial protection.
Part I) Effective judicial remedies.
Effective judicial protection is of a long pedigree. We can trace an embryonic form of this right in the Magna Carta of 1215 which provides, in Article 29, that “no freeman is to be taken or imprisoned or disseised of his (…) liberties (…) save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice” (See also Arts 11 to 13). It also emerged fairly early on in the jurisprudence of the European Union in the mid-1980s, with the CJEU starting to toy with the idea…
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