Access to the judicial process

Access to the judicial process has been held to be a general principle of EU law. ‘The right to an effective judicial remedy’ was the subject of a preliminary reference by a national court from the United Kingdom, which asked the European Court of Justice: Johnston v. RUC, Case 222/84, [1986] ECR 1651) ‘… whether Community law, and more particularly [the Equal Treatment] Directive No. 76/207, requires the Member States to ensure that their national courts and tribunals exercise effective control over compliance with the provisions of the Directive and with the national legislation intended to put it into effect...’. The Court replied that Article 6 of the Directive required Member States to introduce legislation to ensure that ‘all persons who consider themselves wronged by discrimination’ can pursue their claims by the judicial process.

The ‘right to an effective remedy and to a fair trial’ is now recognised by Article 47 of the Charter of Fundamental Rights of the European Union..

The right in EU law to an effective judicial remedy raises a number of questions about access to justice for complainants. National procedures in some Member States for obtaining access to labour courts might have a deterrent effect on claimants wishing to invoke EU employment rights. Failure to provide adequate avenues of redress is a breach by the Member State of its obligations.

An example of the extent to which national procedures providing redress for infringements of EU law can be questioned is where a Member State applies its normal procedure of establishing liability to the specific case of a claim for employment rights. In European civil law procedure, the burden of proving the claim is normally imposed on the plaintiff. One case concerned a legal action under Dutch law for damages based on breach of the principle of equal treatment embodied in a Directive. Under Dutch procedures, the claim could succeed only if the plaintiff proved the employer to be at fault. This was challenged as violating the Directive, on the basis that infringement of the equal treatment principle, once established, is sufficient to make the employer liable without proof of fault. (Dekker v. Stichting Vormingscentrum voor Jong Volwassenen (VJV Centrum) Plus, Case 177/88, [1990] ECR I-3941)

See also: enforcement of EU law; national labour courts; preliminary reference procedure.