ARTICLE 47 OF THE CHARTER: ON FIRST ACQUAINTANCE

VISIBILITY OF EFFECTIVE JUDICIAL PROTECTION AS AN EU FUNDAMENTAL RIGHT

Everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy, and to a fair trial before a court of law. This is a fundamental right of all EU citizens, enshrined in Article 47 of the EU Charter of Fundamental Rights (Charter).The high number of references to Article 47 by the Court of Justice of the European Union (CJEU), and by national courts in requests for preliminary rulings, nevertheless suggests it cannot be taken for granted that effective judicial protection is always available and accessible. In EU consumer law, the rise of Article 47 coincided with a wave of crisis-induced litigation in the aftermaThof the 2007/2008 ‘credit crunch’. Civil courts in Spain, Poland, Hungary and other EU Member States were confronted with large numbers of cases brought by financial institutions against indebted consumers. This triggered many questions to the CJEU on the meaning and scope of EU consumer protection legislation, as well as the need for effective judicial protection, in particular and most urgently for vulnerable consumer debtors. The referring courts questioned the adequacy of their own national legal frameworks, especially where the possibilities of judicial intervention were limited. Examples can be found in the CJEU's case law on mortgage enforcement and order for payment procedures.

This book focuses on the role of Article 47 in cases concerning the Unfair Contract Terms Directive (UCTD or Directive), where the number of references to Article 47 is relatively high. The Directive proved to be one avenue – an ‘indirect remedy’ – to address structural imbalances in the civil justice system, boThfrom a legal and a socio-economic point of view: ‘a fountain of social justice in times of drought’. As such, it was a portal to EU law and the applicability of the Charter. Since Reich referred to Article 47 as a‘sleeping beauty’ in 2013, it has become no longer dormant. Unfair contract terms control is one of the areas of private law where effective judicial protection, as an EU fundamental right, has emerged in the past decade.