C-432/05, Unibet

>> Principle of effective judicial protection does not require that national legal order provides for free-standing action

>> Court again refers to Charter of Fundamental Rights

In this case, the Court was asked by the Swedish Supreme Court whether Community law required a Member State’s legal order to provide for, first, a self-standing action for a declaration that a provision of its national law conflicted with Community law and, second, interim suspension of that national provision pending determination of its legality.

The Court first of all reiterated that the principle of effective judicial protection was a general principle of Community law stemming from the constitutional traditions common to the Member States, which had been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
Case 222/84 Johnston [1986]; Case 222/86 Heylens and Others [1987]; Case C-424/99 Commission v Austria [2001]; and Case C-50/00 P Unión de Pequeños Agricultores v Council [2002]).

The Court also referred to Article 47 of the Charter of fundamental rights. This was somewhat remarkable, as this was only the third time the Court referred to this - still not legally binding - document.

The Court held that principle of effective judicial protection did not require that the national legal order of a Member State provided for a free-standing action for an examination of whether national provisions were compatible with Article 49 EC.

However, this was provided that other effective legal remedies, which were no less favourable than those governing similar domestic actions, made it possible for such a question of compatibility to be determined as a preliminary issue, which was a task that fell to the national court.

The principle did require that the legal order of a Member State made it possible that interim relief was granted until the competent court had given a ruling on whether national provisions were compatible with Community law, where the grant of such relief was necessary to ensure the full effectiveness of the judgment to be given on the existence of such rights. The Court hence confirmed its famous judgment in
Case C-213/89 Factortame and Others [1990].

Text of Judgment