A Commentary on the Right to an Effective Remedy in the Case Law of the CJEU

University of Luxembourg Law Working Paper No. 2019-016

48 Pages Posted: 6 Jan 2020

Date Written: December 13, 2019

Abstract

The right to an effective judicial remedy is an essential element of realising the rule of law. It is the fundamental right granting individuals the possibility to request independent review of compliance with the legal provisions. The genius of protecting as an individual fundamental right this structural notion of independent judicial review, has much contributed to the prominence and the protection of judicial accountability and effective enforcement of EU law. Yet, this critical commentary on the right to an effective remedy shows that the case law of the CJEU has predominantly aimed at ensuring Member State compliance with the right to an effective remedy. When it comes to reviewing EU law provisions against this right, the general considerations of ensuring effective judicial remedies are a lot less pressing, and accordingly, the CJEU has decided to be less stringent in its application of the right. Such case law of the CJEU has left gaps in protection. The commentary ends with the observations that additional problems for the enforcement of the right to an effective remedy arise from the often-composite nature of procedures, linking one or several Member State bodies with European institutions and bodies in one single procedure.

Suggested Citation

Hofmann, Herwig C.H., A Commentary on the Right to an Effective Remedy in the Case Law of the CJEU (December 13, 2019). University of Luxembourg Law Working Paper No. 2019-016. Available at SSRN: https://ssrn.com/abstract=3503540 or http://dx.doi.org/10.2139/ssrn.3503540

Herwig C.H. Hofmann (Contact Author)

Universite du Luxembourg ( email )

Luxembourg
Luxembourg

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