Autonomous but interdependent: Constitutional traditions on judicial protection and the general principle of effective judicial protection
| DOI | http://doi.org/10.1177/1023263X231158489 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Autonomous but
interdependent: Constitutional
traditions on judicial protection
and the general principle of
effective judicial protection
Giulia Gentile*
Abstract
The EU general principle of effective judicial protection is the epitome of the EU liberal-constitu-
tionalism. The creative force of this principle has emerged, among others, in connection with the
protection of the rule of law and the introduction of procedural guarantees both at the national
and EU level. It is well established that effective judicial protection stems from the ECHR and the
constitutional traditions common to the Member States. While existing scholarship has explored
the influence of the ECHR over the development of this principle, less attention was paid to the
impact of constitutional traditions from the Member States. Yet, exploring the role of constitu-
tional traditions in shaping effective judicial protection, the primus inter pares among the general
principles of EU law, goes at the heart of the conundrum of the EU: the latter is an autonomous
legal system, which is inevitably shaped by the legal concepts and traditions existing in the Member
States. This exploration is particularly timely. Some Member States affected by the rule-of-law
backsliding have recently invoked constitutional traditions on judicial protection to delimit the
application of EU standards of effective judicial protection, thus questioning the relationship
between the EU principle and national conceptions of judicial protection.
Keywords
Constitutional traditions common to the Member States, effective judicial protection, general
principles of EU law, rule of law, EU Charter of Fundamental Rights
*
LSE Law School, London, UK
Corresponding author:
Giulia Gentile, LSE Law School, Houghton St, London WC2A 2AE, UK.
Email: g.gentile1@lse.ac.uk
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(6) 685–707
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231158489
maastrichtjournal.sagepub.com
1. Introduction
The EU general principle of effective judicial protection (or ‘effective judicial protection’) is one of
the pillars of the EU legal order and the epitome of the EU liberal-constitutionalism. The creative
force of this principle has emerged in connection with, among other things, the protection of the rule
of law and the introduction of procedural guarantees both at the national and EU level.
1
Effective
judicial protection appears to be the factotum of the EU legal order. Since the Johnston case,
2
it is
well established that effective judicial protection stems from the European Convention of Human
Rights (ECHR) and the constitutional traditions common to the Member States. While existing
scholarship has explored the influence of the ECHR over the development of this principle,
3
less
attention was paid to the impact of constitutional traditions from the Member States.
Yet exploringthe role of common constitutionaltraditions in shapingeffective judicial protection–
the primus inter paresamong the general principles of EU law –brings focus to theheart of the con-
undrum of the EU: althoughit is an autonomous legal system, it is inevitablyshaped by the legal con-
cepts and traditions existing in its Member States. What is more, while it has been established that
common constitutional traditions remain an evolutionary force for EU law,
4
in so far as they shape
EU general principles, recent developments highlight two tensions between national constitutional
traditions and EU standards of effective judicial protection enshrined in the homonymous principle.
The first tension concerns the complex interactions between national constitutional identities,
constitutional traditions and the general principle of effective judicial protection. Article 6 TEU
acknowledges the role of common constitutional traditions as a source of general principles of
EU law. In selected circumstances national constitutional traditions have also received protection
at EU level.
5
Additionally, Article 4(2) TEU requires the EU to protect the national identity of
the Member States. Hence, the EU constitutional architecture acknowledges the role of national
constitutional traditions and identity in shaping the EU. However, in recent litigation, some
Member States have invoked national constitutional traditions to delimit the application of EU stan-
dards of effective judicial protection.
6
Such reliance on constitutional traditions signals the Member
1. A. Arnull, ‘The Principle of Effective Judicial Protection in EU Law: An Unruly Horse?’, 36(1) European Law Review
(2011), p. 51; C. Mak, ‘Rights and Remedies: Article 47 EUCFR and Effective Judicial Protection in European Private
Law Matters’, Social Science Research Network, 2012, https://papers.ssrn.com/abstract=2126551 accessed 22 July
2021; S. Prechal, ‘The Court of Justice and Effective Judicial Protection: What Has the Charter Changed?’,in
C. Paulussen, T. Takacs, V. Lazic and B. van Rompuy (eds.), Fundamental Rights in International and European
Law (Springer, 2016), p. 143; M. Bonelli, ‘Effective Judicial Protection in EU Law: An Evolving Principle of a
Constitutional Nature’,12Review of European Administrative Law (2019), p. 35.
3. E. Sharpston, ‘Effective Judicial Protection through Adequate Judicial Scrutiny: Some Reflections’,4Journal of
European Competition Law & Practice (2013), p. 453; J. Krommendijk, ‘Is There Light on the Horizon? The
Distinction between “Rewe Effectiveness”and the Principle of Effective Judicial Protection in Article 47 of the
Charter after Orizzonte’,Common Market Law Review (2016), p. 1395; T. Konstadinides and N. O’Meara,
‘Rebalancing Fundamental Rights and Judicial Protection in Criminal Matters after Lisbon and Stockholm’,in
Acosta Arcazaro and Murphy (eds.), EU Security and Justica Law; After Lisbon and Stockholm (Hart Publishing,
2017); W. Piątek, ‘The Right to an Effective Remedy in European Law: Significance, Content and Interaction’,6
China-EU Law Journal (2019), p. 163.
4. M. Fichera and O. Pollicino, ‘The Dialectics Between Constitutional Identity and Common Constitutional Traditions:
Which Language for Cooperative Constitutionalism in Europe?’,20German Law Journal (2019), p. 1097.
6. See Opinion of AG Tanchev in Case C-824/18 A.B. and Others v. Krajowa Rada Sądownictwa and Others, EU:
C:2020:1053. See also below.
686 Maastricht Journal of European and Comparative Law 29(6)
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