The Principles of Effectiveness, Effective Judicial Protection and the Rule of Law

Abstract

This preliminary ruling concerned the decision of the Supreme Administrative Court of Bulgaria to discontinue unilaterally proceedings challenging the compatibility of a certain provision of Bulgarian law with EU law. The proceedings were discontinued because the provision in question was repealed. The Administrative Court of Sofia asked the Court of Justice whether ending proceedings in such a manner was permissible and, relatedly, whether an applicant who challenged the legality of an act up to its time of withdrawal has enjoyed an effective remedy. The judgment is noteworthy for several reasons. First, in holding the reference admissible, the Court of Justice confirmed that an offending provision’s repeal does not, in and of itself, render a question about its legal effects vis-à-vis rights guaranteed by EU Law merely hypothetical. Second, the Court of Justice held that an action for liability in damages against a court of last instance would not offend the principle of res judicata. Third, the Court of Justice re-iterated that it is for Member States to establish procedural rules to safeguard rights guaranteed by EU Law subject to the principles of equivalence and effectiveness. Fourth, the Court of Justice offered detailed guidance on the principle of effectiveness and, in particular, that it must not be excessively difficult to exercise rights conferred by EU Law.