Article 47 of the Charter in the Opinion Procedure: Some Reflections Following Opinion 1/17

Abstract

The emphasis on Article 47 of the Charter in Opinion 1/17, as a separate ground in the compatibility review, has a constitutional dimension. Once again, as in Achmea, the specific characteristics of the EU legal order, especially with regard to the affirmation and development of the rule of law, are analysed in the investment protection legal framework. However, Article 47 has a specific role and function in the EU legal order, establishing the guarantees for a composite judicial system at the basis of the principle of autonomy. Preserving the specific function of Article 47 in the balance between effectiveness, procedural protection, and national autonomy in the EU legal order is also of utmost importance in the current rule of law crisis. This paper affirms that external relations are outside the scope of Article 47 of the Charter. This does not however mean that the principle of judicial protection and the right of access to an independent tribunal have only an internal EU law dimension. The Union’s contribution to the development of the WTO dispute settlement mechanism and to the establishment of permanent investment courts confirms that promoting the rule of law is part of the Union’s external action. The Court of Justice could assess the CETA’s compatibility with the right of access to an independent tribunal without having recourse to Article 47 of the Charter, on the ground either of the principle of autonomy or of the compatibility with the substantive provisions of the common commercial policy. This paper argues that while judicial protection as part of the autonomy claim could meet some conceptual limits, promoting judicial protection as part of the common commercial policy could reinforce the perception that the Union is a credible and influential actor in international trade and in international procedural law.