Joe Gote is an external PhD candidate in the Department of Public Law. He is American attorney who has experience litigating in the U.S. and throughout Europe. In addition to his PhD research, he provides litigation and commercial transaction advice to multinational companies. Joe is also the Legal Director for an environmental organization, No Ash At All, which is dedicated to protecting the wetlands in Wayne County, Georgia, from becoming a coal ash disposal site.
Joe received his J.D. degree from the University of Texas. He also holds master degrees in International and European Law (LLM, the University of Amsterdam), International Business Law (LLM, London School of Economics, University of London), and Business (MBA., Thunderbird School of Global Management, Arizona State University). His undergraduate degrees are in Economics and History (BA, University of Delaware).
Joe’s PhD research concerns the judicial architecture of the EU and access to justice for litigants when seeking effective judicial protection of their EU rights and freedoms in Member State courts.
Access to Effective Judicial Protection of EU Rights: The Effectiveness Gap
The central focus of this thesis is the growing inability of the European Union’s (“EU”) judicial architecture to provide its citizens (natural persons and legal entities) access to effective judicial protection of their EU rights and freedoms. As the EU’s competences expanded, the rights and freedoms of EU citizens also expanded. The EU’s autonomous legal order was created to promote and protect EU principles, rights, and freedoms. However, the EU’s judicial architecture, which is crucial in providing the platform for effective judicial protection, was not designed to protect the rights and freedoms of EU citizens as its primary objective. The hypothesis of this thesis is that the effective judicial protection of EU rights and freedoms is being undermined by an ineffective judicial architecture to protect these rights and freedoms. This shortfall is the “effectiveness gap” that this thesis will focus upon.
The Court of Justice of the European Union (“CJEU”) recognizes the principle of effective judicial protection of individuals’ rights and freedoms as a general principle of EU law that is subsumed in the meaning of the second subparagraph of Article 19(1) TEU and is reaffirmed by Article 47 of the Charter of Fundamental Rights (the “Charter”). Moreover, Article 47 of the Charter guarantees access to justice as a fundamental part of EU law’s general principle of effective judicial protection. However, the judicial architecture of the EU’s legal system does not provide litigants with any reasonable certainty that their claim based on an EU right or freedom will be considered by an EU court, particularly, by the CJEU. Instead, EU litigants must begin the adjudication of their claims in a Member State court. Article 19(1) TEU only mandates the Member States to provide sufficient remedies to ensure effective legal protection. Article 47 of the Charter guarantees an EU litigant access to an “independent and impartial” court and adjudication within a “reasonable amount of time.” This thesis hypothesizes that in order to have effective judicial protection of EU rights and freedoms, there must be guaranteed access to a court that is not only formally “independent and impartial” and enabled to apply a sufficient remedy, but, also is substantively competent (knowledgeable, empowered, and unbiased) to adjudicate and enforce claims grounded on EU law. It is debatable if Member State courts are willing and/or capable to effectively fulfill the enhanced aspirations of judicial protection infused into EU law by the Charter.
Subject to the very limited opportunities available for direct actions, EU litigants can only seek indirect access to the CJEU through the sole discretion of a Member State court to initiate a preliminary question procedure with the CJEU. In plain terms, the Member State courts are the “gatekeepers” for access to the CJEU. There is a growing amount of research showing that Member State courts do not refer requests for preliminary questions as often as they should. The combined factors of: discretionary (indirect) access; the variation in substantive EU legal knowledge of presiding Member State courts; and, the level of empowerment provided by the prevailing judicial culture in the Member State - mean that, although it may be mandatory under EU law for Member State courts to interpret and apply EU law when it is invoked, when and how Member State courts actually exercise this mandate is unpredictable and significantly jeopardizes the uniform interpretation and application of EU law.
This unpredictable access to competent substantive adjudication of EU rights and freedoms is an inherent shortcoming in the EU’s judicial architecture. This thesis will explore whether the EU’s aspiration for effective judicial protection of EU rights and freedoms has exceeded the structural capability of the EU’s judicial architecture to deliver such judicial protection. A comparison of the EU approach will be made with the direct access and centralized US approach where it is possible for a litigant to directly seek judicial protection of federally created rights in a state court or a federal court. Generally, the rights and freedoms of US citizens under federal law are comparable to the rights and freedoms that EU citizens have under EU law. Potential reforms of the EU’s judicial architecture, based on the US approach, will be analyzed and analogized into an EU context for reform considerations. It is anticipated that most of the reforms that will be advocated by this thesis are within the current construct of the Treaty.