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Individuals' access to justice under Community Law

03 December 2009

PhD ceremony: H.R. Schwensfeier, 11.00 uur, Academiegebouw, Broerstraat 5, Groningen

Thesis: Individuals' access to justice under Community Law

Promotor(s): prof.dr. L.W. Gormley

Faculty: Law

Contact: Roland Schwensfeier, tel. + 49 228 9499 242 (werk), roland.schwensfeier@gmx.net

Individuals’ access to justice under Community law has been an issue of continuing legal debate since the foundation of the European Economic Community although the text of the relevant Treaty articles will have remained unaltered until the slight amendment by the Lisbon Treaty. Roland Schwensfeier’s research question is, whether Community law provides effective judicial protection to individuals. It covers the interlocking systems of jurisdictions of the European Court of Justice and the national courts of the Member States, as linked through the preliminary reference procedure.

Under the EC Treaty, the restrictions of individuals’ direct access to the Court of Justice are only partially compensated through Community requirements of access to national courts. This shortcoming is patched by national law e.g. in England and Germany, but not in France. Community law requires that a remedy be available in national courts whenever a national authority would be competent to enforce a contested piece of Community law. There is thus no justification to transcend the limits of the wording of the EC Treaty by opening direct access to the Court of Justice on the basis of affected interests.

The ambit of this issue would be slightly reduced through the amendments by the Lisbon Treaty, which is prone to being circumvented through legislative choices of form. In relation to acts not covered by the amendment, Union law will continue to require access to the national courts. Other legislative solutions, e.g. a fundamental rights complaint or public interest litigation would not structurally improve the present system.

Last modified:15 September 2017 3.39 p.m.

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