Budapest, 2-6 July The effectiveness of judicial remedies

Transcription

1 THEMIS 2018 Semi-final D Judicial Ethics and Professional Conduct Budapest, 2-6 July 2018 The effectiveness of judicial remedies A new identity for the European judge Team 2: Giorgia Sartoni Alfonso Serritiello Ugo Timpano Tutor: Francesco Perrone

2 TABLE OF CONTENT 1. Introduction 1.1. The protection of individual rights claims the effectiveness of judicial remedies 1.2. The judicial power to create an effective remedy: the role of EU law 1.3 The creation of an effective remedy: the new role for the judge 2. Consumer protection case-law 2.1 The right of the consumer to an effective judicial remedy 2.2 Pannon case: ex officio power to examine the unfairness of the clause 2.3 Going beyond: the ox officio power to provide for evidences 2.4 Marcello and Sanchez case: the effective protection of the consumer the Spanish execution procedure 2.5 The judicial creation of an effective remedy and the effective protection of fundamental rights 3. The neutrality of judicial power: is the judge a policy maker? 3.1 Asylum e immigration 3.2 Case decided by Turin tribunal: adequate and effective remedy 3.3 Automatic suspensive effect 3.4 Monetary compensation 3.5 Effective protection of personal data: the Bodil Lindqvist case 4. Conclusion 4.1 A new role for the judge 4.2 Open question: the judge, always a European judge 2

3 INTRODUCTION 1.1. The protection of individual rights claims the effectiveness of judicial remedies The judge must decide and find a solution, if possible the best solution for parties. Indeed, ensuring effective protection of individual rights is the first duty of each judge at any cost. The judge, who dresses the national and European gowns simultaneously, has to respect fundamental rights and, in particular, the right to effective judicial protection, finding appropriate remedies out. The today judge, no more only a bouche de la loi judge, has many useful tools available as costitutional-oriented interpretation, European-oriented interpretation, EU principles, questions to constitutional courts and preliminary reference to the European Court of Justice. What happened if the positive law or the case-law do not give any concrete remedy at all? In that paper, we are going to explore a European Court of Justice case-law collection, which develops solutions in that baseline scenario, through the principle of effectiveness and the ex officio powers theory. In accordance with the traditional European view of jurisdiction, the judge is generally not related to the policy-making system: the decisions about the administrative and political direction belong to Parliament, as legislative power, and to the Government, as executive power holder. This traditional view of jurisdiction and the principle of judge neutrality, belonging to civil law countries and to UK system too, have their roots in the outdated Jacobin vision referred to a specific historical period, the French Revolution, when it seemed necessary to limit the judicial discretion which had before assumed the features of real arbitrariness 1. Even today this traditional approach is typical of the EU Member State and according to which it is necessary a strict separation of powers: on the one hand, the legislative and political power and, on the other side, the jurisdictional one. Nowadays, the development of the European legal system has however affected the role of the judge, in particular, the traditional cultural knowledge, in which the judge, as a bouche de la loi, must be neutral and must not adopt political and moral positions. 1 The well-known definition of the judge as the mouth of the law refers to Montesquieu who in his famous work, The Spirit of Law, considered the magistracy not a political power but a function, independent of legislative and executive powers; a function which is limited to carry out the task of interpreting and applying the law. A similar concept was developed, later, by the declarative theory of law and in particular by J. Austin (see, in particular, The Province of Jurisprudence Determined, 1832). 3

4 In the light of the principles of sincere cooperation and effectiveness, the Member States shall take any appropriate measure (article 4 paragraph 3 TEU) and their obligation of implementing EU law determines the crisis of the traditional view of powers separation, putting into question also the traditional concept of judge neutrality. According to article 47 CFREU and article 19 TEU, the CJEU has suggested a significant expansion of judicial powers, stating the necessity to adapt national procedural laws to the European substantial legal system. The national judge is also requested to create new remedies to achieve European goals and to guarantee the effectiveness of the rights provided for by European standards. In this way, the judge could become a very important player in the policy making circuit. 1.2 The judicial power to create an effective remedy: the role of EU law To be clearer, we are required to clarify that in modern times the jurisdictional function has undergone significant development. In the contemporary democracies, the judge is called to interpret the law, taking account of the insufficiency of the mere literal criterion. In the hermeneutical activity, the Judge has to consider the evolution of the socio-economic context and even before he has as a reference parameter the Constitution, which plays a higher role than the other sources of the legal system. However, judicial interpretation takes form in the selection of the normative meaning considered correct among the multiple logically obtainable from the semantic potentiality of the interpreted disposition. This is an element which significantly distinguishes the legal systems of continental Europe from the United States one: in the latter the judge meets in the Constitutional Charter a direct parameter that allows him not only to disapply the conflicting statute but also to find out new meanings of the legal provision which are directly inspired to the constitutional system of values. In this legal system, the judge holds an effective power of judicial review, consisting in the widespread power of disregard of the normative acts deemed not consistent with the norms of the American Constitution. This power finds its link in the article 3 of the Constitution of 1787, which outlines the judiciary as a real "Power of the United States". The latter provision, in conjunction with amendments from 1 to 10 (the so-called bill of rights, then progressively extended), gives the judge a central role in the policy making system, as an active agent in the process of qualitative and quantitative selection of the interests stemming from the constitutional system of political values, insofar as oriented to the 4

5 protection of civil and political rights. Therefore, in U.S. system the judicial interpretation of law shows to have an essential creative impact, as it is enabled to introduce new meanings, deduced from the reading of political and moral values that can be derived from the constitutional system as a whole 2. On the contrary, in European legal systems, the juridical function is traditionally conceived in terms of the pure guarantee. Within the scope of such view, neutrality constitutes one of the cornerstones of independence of judge: neutrality marks both the internal borderline between the power of judicial control and the subjective sphere of the individual conscience and the external barrier between the judiciary and the political power. Within this legal framework the judge, in interpreting and applying the law, is called to comply with the principle of legality in a rigorous manner. This is shown by the judgment 12 October 2012, n. 230 of the Italian Constitutional Court, where Court had been called to decide about the implementation of the principle of retroactivity of the favorable supervening law provided by article 7 ECHR, as interpreted by the European Court of Human rights in the case Scoppola c. Italy, 17 September The Italian Supreme Court of Cassation had changed its case-law regarding the interpretation of a substantive criminal provision (article 6 3 of legislative decree no. 286/98) which in the matter of clandestine immigration establishes as a crime the refusal committed by a foreign person to exhibit any identification document when requested by the public authority. Until 2011 the Court of Cassation held that the refusal to exhibit the residency permit is in itself sufficient to fall within the scope of article 6. In 2011 the Court of Cassation, in Joined Sections, changed its own case-law holding that the refusal to exhibit the residency permit does not fall in itself within the scope of that substantive criminal provision. Some Italian judges argued that in light of article 7 ECHR, such as interpreted by the European Convention of Human Rights, the retroactivity of the new more favorable law refers not only to formal provisions of law but also to the living law, that is to say, the well-established interpretation given by the courts. According to this thesis, these judges ordered the revocation of several final convictions insofar as in contrast with the favorable supervening overruling which excluded the existence of the crime 3. The Italian Constitutional Court did not uphold this opinion. The Court considered that in the specific case the defendant had been sentenced on the basis of a law regularly in force at the time of 2 See the opinion expressed by the Judge Brennan in the case Baker v. Carr, 369 U.S. 186 (1962). 3 In the Italian framework the judge is called to reverse a conviction when decriminalization occurs in the light of the article 673 of the Code of Criminal Procedure. 5

6 the crime, therefore it is not admitted any extension of the scope of the principle of the rule of law, provided by article 7 ECHR, to the interpreting activity carried out by the judicial body. This case shows in a very clear way that the cultural approach of Italian courts overall is still deeply rooted in the traditional idea of rigorous interdiction for the judiciary of any interference into the policymaking system. Given the above, it is possible to understand how significant the impact of the integration process within of the European legal system is on the identity of the judge: it also involves a change in the concept of neutrality of jurisdiction. The implementation of European law requires all the Entities of the Member States - legislature, public administration, judicial bodies - to interpret and apply the European provisions to allow the European Union to carry out its tasks and achieve its objectives 4. The judge is called to guarantee the primacy of European law and is required to adopt effective measures to ensure its effectiveness, that is to say, the effective implementation of the political aims of the European Union. This implies that also traditional idea of neutrality of the judge is overcome in the light of the need to implement the political aims pursued by the primary and secondary legislation of the European Union. This assumption is the corollary of the primacy of European law, established by the Court of Justice of the European Union in the first years of the European integration process (in particular, Costa c. Enel, 15 July C 6/64; Simmenthal, 9 March 1978, C-106/77) 5. The necessary logical development of the primacy of European law is the recognition of the principle of effectiveness, enshrined in article 19 TEU and in the article 47 of the Charter of Fundamental Rights of the European Union 6. In a very recent judgment the European Court of Justice, 27 February 2018, 4 See CJEU, Mangold, 22 November The primacy of European law draws its foundation, as is known, in the provision of art. 10 of the Treaty of the European Community, today article 4 paragraph 3 of the EU Treaty according to which: Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardize the attainment of the Union's objectives. 6 The principle of effectiveness is an essential element of every legal system. Authors have observed that "the principle of effectiveness is an essential notion for understanding and justifying every legal system (S. M. CARBONE, Principle of effectiveness and community law, 2009). Already in the early twentieth century, it had been stressed that "all the right to be such must have real value, i.e., the possibility of realizing oneself in the phenomena (G. JELLINEK, The State Doctrine, Milan, 1921). M. ROSS, Effectiveness in the European legal order(s): Beyond Supremacy to Constitutional Proportionality, in Eur. Law. Rev., 2006) In the European legal system with the entry into force of the Lisbon Treaty and the reorganization of the Union legislation resulting from it, there has been a codification of the general principle of 6

7 Associação Sindical dos Juízes Portugueses v Tribunal de Contas, recognized the principle of the effective judicial protection of individual rights as a general principle of European Union law stemming from the Constitutional traditions common to the Member States. According to a shared thesis, effectiveness must be understood both in terms of the effectiveness of European law in the strict sense and of the effectiveness of the judicial protection of subjective situations that are relevant for European law 7. The two meanings of effectiveness are placed in a real relationship of instrumentality: the law of the European Union becomes really effective only in the moment and to the extent that the legal system, particularly the internal one, can guarantee in equally effective terms adequate protection for all individuals. It could be said that the criterion of effectiveness limits the procedural autonomy: the judge is required to identify and use his own procedural rules to guarantee the effectiveness of the substantive provisions of European derivation. The principle of effectiveness must be declined as a genuine right to an effective judicial remedy and admits a jurisdictional change of the national procedural system when the latter provides no remedy, not even of an incidental type, aimed at protecting the rights due to legal persons of the European legal system 8. The European Court of Justice had recognized on several occasions the right to recourse to a judicial action before an internal judge even if it was not expressly provided for by national law and if this turns out to be useful and necessary to guarantee the fulfilment of a right deriving from the effectiveness, especially in its procedural meaning and therefore in terms of the principle of effectiveness of judicial protection. The EU Court of Justice has often stated that the effectiveness of judicial protection is a fundamental principle of the European legal system (Court of Justice, 16 July 2009, case C-385/07 P, Der Grüne Punkt Duales System Deutschland / Commission, EU : C: 2009: 456, points 177 and 178, Court of Justice, 1 March 2011, Case C- 457/09, Chartry, EU: C: 2011: 101, Court of Justice, 22 December 2010, Case C-279/09, DEB, EU: C: 2010: 811). See MASTROIANNI, L effettività alla prova della Carta dei diritti fondamentali, On the autonomy acquired by article 47 of the Charter of Fundamental Rights with respect to the provisions of the European Convention on Human Rights see N. TROCKER, Article 47 of the Charter of Fundamental Rights of the European Union and the evolution of the Community legal order on the judicial protection of rights, in G. VETTORI (edited by), European Charter and private rights, Milan, 2002, pp. 381 ss. 7 In this sense, the EU Court of Justice issued on 6 October 2015, Horizon Health, Case C-61/14; EU C: 2015: 655. On the subject see A. Tizzano, The protection of individuals with regard to the Member States of the European Union, in Foro it., 1995, IV, col. 17; X. GROUSSOT, General Principles of Community Law, EU Court of Justice, 1 March 2007, Unibet, C. 432/05, EU C:2007: 163 7

8 European legal system 9. Therefore, the national judge, in assuring the right to an effective remedy, is called to perform a creative activity, also with respect to the procedural remedies. In this regard, noteworthy are also various decisions about environmental protection. For example, in order to provide an effective judicial protection for a relevant interest grounded in European Union law (the environmental protection), which is a specific aim pursued by the European legislature, the national judge is called by the case-law of the European Court of Justice to recognise the legal standing to non-governmental environmental associations, although this legitimacy was not provided by any domestic procedural rule of the Member State 10. This shows how the principle of effectiveness may have a creative impact also in respect of the procedural remedies to be made available for ensuring effective protection of rights provides by the European Union law. The principle of effectiveness shows to have a significant impact also in respect of the barrier of the res iudicata. The European judges have recognized the power-duty of the internal judge to disapply internal rule providing for the intangibility of the final judgment when it appears necessary to ensure the compliance with the European Union law. In this case too, the primacy of European law calls the national judge to carve innovative powers, going beyond the dictates of the internal rules that generally provide for the prohibition of challenging the final judgments The creation of an effective remedy: the new role for the judge To analyse the way in which the national judge may play a new role within the policymaking sphere, some case-studies decided by the national judicial authorities will be taken into account. 9 EU Court of Justice, 19 march 2015, E. on Folgdaz trade, C- 510/13, EU: C: 2015: 189; EU Court of Justice, 23 October 2014, Olain Farm, C- 104/13, EU:C:2014: See EU Court of Justice, 12/5/2011, C-115/09; EU Court of Justice (Grand Chamber) March 8, 2011, n.c240 / 09. For a broad discussion of the topic see R. ROTA, The principle of effectiveness for environmental protection, Minimum Notes on the Court of Justice EC (Grand Chamber) March 8, 2011, n.c-. 240/09 and EC Court of Justice May 12, 2011, n.c-115/09, On the subject see, ex multis, EU Court of Justice, 10 July 2014, Case C-213/13, Pizzarotti, according to which "if the applicable internal procedural rules provide for the possibility, under certain conditions, for the national court to return a decision with a judicial authority, in order to make the situation compatible with national law, this possibility must be exercised, in accordance with the principles of equivalence and effectiveness in order to restore compliance with the principle of the European Union legislation". 8

9 In the light of Council Directive 93/13/EEC on unfair terms in consumer contracts, the judge is called to provide an effective remedy when there is a lack of effective protection of the consumer rights. In the case of C-243/08, Pannon, the CJEU recognized the ex officio power to evaluate the contract clause as unfair, without a claim by the consumer. In the field of immigration and asylum, the effective protection of the European rights calls the judge to assign a remedy different and further than the one claimed by the party. In 2016, the Italian Tribunal of Turin decided a shorter detention period in the asylum than the duration of the detention requested by the administration, on the basis of the principle of proportionality, despite of the absence of a specific national provision providing for such a reformatory power. Another important set of cases concerns the recognition of the automatic suspensive effect of appeals in accelerated asylum and return proceedings according to the articles 19(2) TEU and 47 EU Charter: it will be analysed how the national judge is called to provide for an automatic suspensive effect where the enforcement of the challenged decision is likely to expose the asylum seeker to a risk of ill-treatment contrary to the article 4 EU Charter or the article 3 ECHR. Finally, this paper will present some constructive proposals, keeping in mind an indispensable assumption: the judge is the engine of the European integration and contributes making alive the European Union rights. CONSUMER PROTECTION CASE-LAW As far as consumer protection area concerned, the CJEU case-law has contributed to modify national procedures not able to ensure appropriate remedies to the consumer in the light of the scope of the weaker party s safeguard, clearly stated in the Unfair Contract Terms Directive (UCTD). As we consider in next paragraphs, also in asylum and immigration field there are some interesting applications of the principle of effectiveness by CJEU, but not yet as consumer protection concern. Thanks to article 47 CFR, which is also referred to civil judicial proceedings, and article 19 TEU the CJEU has dictated the significant expansion of ex officio powers, to guarantee the necessity to adjust procedural laws to the consumer rights, avoiding effects of unfair contracts. 2.1 The right of the consumer to an effective judicial remedy In the last 20 years case-law (the first judgment on the ex officio application of mandatory consumer law was in Joined cases C-240/98 to C-244/98 Oceano Grupo), the CJEU has developed 9

10 the concept of the ex officio powers. Initially, new consumer remedies were only as an application of the principle of effectiveness, now even as a self-standing principle of EU procedural consumer law. The principal outcome is a concrete oriented approach, consistency with effective remedies for the consumer, not a formal analysis of abstract legal systems. In the light of Council Directive 93/13/EEC on unfair terms in consumer contracts, the main scope to reach is the harmonization of the laws relating to the terms of agreements between the seller of goods or supplier of service and the consumer of them. In fact, in the different Member States, there are many disparities, with the result that the national markets for the sale of goods and services to consumers differ from each other and that distortions of competition may arise amongst the sellers and suppliers, notably when they sell and supply in other Members States. The European goal of effective protection of consumer is, of course, one of the further aim, which a European judge has to archive. When the judge seized of an EU law issue, he or she has to be oriented by the EU consumer protection, and his or her neutrality becomes enlarged also by that specific finality. In fact, unfair agreements not always are protected by national law in any case. In this perspective, sometimes the judge must be not only a user but also a lawmaker in the concrete case, especially when there is a lack of adequate protection of consumer rights. Further juridical tools should be remedies not established by the law, made in the interest of the parties, and the application of innovative ex officio powers. In some leading cases, the Court of Justice has declared the violation of EU law or rights based on EU law, in the situations which are not covered by national procedural legislation or in the absence of the claimant s initiative. The CJEU creates many ex officio powers in the name of effectiveness. First of all, the control of validity of jurisdiction clause under articles 3 and 6 UCTD and, in general, the evaluation of contract terms unfairness without the consequential application are two techniques available. Secondly, the CJEU case-law shows us several more active ex officio powers, like investigations, useful remedies as granting an appropriate reduction in the price of goods or adopting interim relief. All these new solutions form an increasing climax of measures, to involve ever profoundly national courts, beyond what is expected in national civil proceedings. We are going to consider many cases and many different necessities, but the only one common point of view in CJEU reasoning is the principle of effective judicial protection. 2.2 Pannon case: ex officio power of examining the clause unfairness 10

11 An unfair contract clause is not binding for a consumer at all and, for this reason, it is not necessary a previous judiciary contestation by the part. This decision of the CJEU has concerned the Hungarian judge preliminary reference in the notorious Pannon case. The issue started when the consumer, Erzsébet Sustikné Gyorfi, filed an opposition to the payment order against the telephone company Pannon GSM Zrt., during the execution of a telephone subscription contract, stipulated some years before. The unfair term was explicitly a clause which settles jurisdiction down in the place of the business party, Pannon, far from the consumer s home. Under the Hungarian procedural law, it was no longer possible to raise that issue after the first filling by the defendant. Independently from the national procedural rules given, the ex officio power to evaluate the contract clause unfairness, without a consumer claim, is a mandatory step to reach the effective consumer protection. According to the CJEU opinion, the weak position of the consumer and the imbalance between consumer and professional justify this interference by the judge. So anytime in which by the acts follow up elements of the unfairness of the contract term, the judge, joining the CJEU request, must arise ex officio the invalidity of unfair contract clauses, even if there are no issues by the party. At this point, the national judge finds himself or herself at a crossroad: not following up the CJEU request and without any other remedy exposing the Member State to the liability for violation of the EU law (Court of Justice, Joined cases C-6/90 and C-9/90 Francovich) or executing the request including, in fact, EU political scope in the traditional concept of judge neutrality. Thanks to Court case-law, now, in the consumer area all national judges can decide not to apply an unfair contract clause. In this way, they can contribute to modify the procedures and ensured a fair process, also in that judicial systems (like the Italian procedural system), in which there are some principles in contrast with the solution provided by the Court, based on the principle of party disposition and the obligation of the parties to submit factual allegations and proofs. Moreover, in that judicial systems, it is generally requested a specific issue by the claimant who acts in the judicial proceeding and the related power is not given by the law to the judge. In particular, in case C-243/08, the CJEU has decided the Hungarian court s issue about the necessity of an explicit claim by the consumer regarding the binding effect of an unfair contractual term. Regards this specific case, the CJEU has established only a condition: the subsistence of all factual and law elements in acts. In the light of the double gown wearing by the judge, if he or she decides to take over the role requested by the CJEU, the traditional principles of powers separation and judge neutrality would change, and inevitably the judge will become in that specific cases a kind of legislator. 11

12 In line with the Court point of reference, recently also the Italian Court of Cassation, in Joined Sections, has admitted the ex officio power of declaration of special protection invalidity, in case there is no consumer opposition Going beyond: the ex officio power of providing evidences The CJEU once again overcomes some difficulties linked to many national legal systems, in which the party of a civil lawsuit must prove all relevant allegations of fact upon which a claim is based, providing means of proof. In order to guarantee a sufficient protection to the consumer and to overcome formalistic approaches of national procedures, considered the nature of the interests involved, the CJEU in case Pénzugy C-137/08 has gone further Pannon case-law of the assessment of the contract term unfairness, affirming the court s ex officio power to make also investigation in order to ascertain if that term is unfair. Also in this legal dispute, the issue was concerned a clause conferring exclusive territorial jurisdiction to the court of the business place of the seller. A consumer credit contract linked with the purchase of a car established that clause. The Hungarian procedural law provided an order for payment proceeding without the involvement of the debtor. So the jurisdiction's issue was not reviewed by the court before the decision of the order for payment or the consumer appeal against the order for payment. Thanks to reasoning similar to Pannon case, concerning the necessity of ensuring effective consumer protection, the CJEU has allowed judges to make own motion investigation to evaluate the clause unfairness when a party is a consumer. In both judgments (Pannon and Pénzugy cases), the remedies given by the Court are examples of the substantial EU approach, which can solve problems and limitations of the national legal system, as the Hungarian one, based on the strict principle of supremacy of the law. When, in this kind of domestic legal orders, the lack of the law does not ensure effective protection to the consumer, the principle of effectiveness can offer concrete solutions, acting through the enlarged concept of judge neutrality by a specific EU political scope, like consumer protection. 2.4 Morcillo and Sanchez case: the Spanish execution procedure not allowed effective protection to the consumer The distinguishing characteristic of this landmark decision is the specific referring to article 47 CFREU, not used, for example, in Pannon case. The CJEU has analysed how the Spanish 12 Court of Cassation in Joined Section n and 26243, 12 December

13 procedural law is compatible with the principle of jurisdictional effectiveness regarding the consumer protection. In particular, the case C-169/14 involved two consumers Juan Carlos Sanchez Morcillo and his wife Maria del Carmen Abril Garcia, who took out a mortgage with Banco Bilbao, to buy their house. The object of the judgment of the Court was the asymmetry between debtor and creditor during the national mortgage enforcement proceeding. The consumer who is subjected to enforcement was not allowed to appeal against a dismissing decision; instead, the creditor could appeal the judgment terminating the processes. According to the CJEU opinion, the Spanish procedural system was not in line with article 47 CFREU, because, on the one hand, the judge can discretionarily examine of its own the contract fairness, ordering or not an unfair term to be disapplied, and, on the other side, the consumer can claim the unfairness clause only in a separate proceeding, without any suspensive effect of the different process. For that reasons, the only possible remedy can be the separate compensation of the suffered damage and not an effective restoration in kind. According to the principle of effectiveness, there is a deficiency of protection in a system of enforcement like that, so it could be necessary a further expansion of ex officio powers of the court to guarantee the procedural equality to the parties, creating a useful remedy in the interest of the consumer. That means that it suffices for effective consumer protection if the judge enlarges his or her powers, first of all, thanks to the ex officio powers by CJEU and the neutrality with variable geometry. National judge, in fact, has the potential to form the basis of a substantial approach in line with the EU scope of effective consumer protection, abandoning the all internal idea of legality and the strict supremacy of law. 2.5 The judicial creation of effective remedy for the protection of fundamental rights The principle of effective consumer protection is even more fundamental to find further remedies out, especially when the party does not claim legal issues or not existing useful tools in the national legal system. For example, in case C-32/12, Soledad Durante Hueros purchased a car from Automoviles Citroen Espana SA, and she was forced to bring a judicial claim to invoke her right to the rescission of the contract of sale, because of material defects of the car. The possibility of claiming a reduction of the purchase price, in the Spanish system, was only an alternative remedy and the consumer was not more entitled to bring this new action after seeking the only rescission of the contract. 13

14 According to the Spanish judge reasoning, rescission cannot be granted because the lack of conformity in those goods was minor, but also the reduction of the price was precluding without a specific party question, no more possible on account of the procedural foreclosure. This national legislation was not in conformity with the principle of effectiveness, in CJEU opinion, because in this case, any other effective remedy was unavailable for consumer elsewhere, unless the ex officio power of a reduction of the sale price by the court on its motion. In this way, the CJEU has asked the national judge to overcome obstacles of his or her procedural law, archiving the objective of the UCTD. In Joined cases C-568/14 to C-570/14, CJEU took other creative solutions concerning the validity of the floor clause laid down in a mortgage loan agreement. In particular, we are considering the contract between the consumer Fernandez Oliva and Caixabank SA. the Spanish procedural system did not provide an ex officio power of interim measures, even though the significant conditions have been met, without consumer request to the court. The national court, seized of individual action, cannot adopt interim relief to ensure the full effectiveness of the final decision, but must temporarily suspend the proceeding, waiting for the conclusion of the ongoing collective action. According to the previous case-law, the CJEU once again has concluded for the not compatibility of this national legislation relating to the effective consumer protection. So to prevent prejudices, the Court has reached a broader expansion of the ex officio powers till the grant of interim relief, which is considered as an essential means to ensure the effectiveness of consumer protection in this kind of judicial situations. The EU substantial approach, focusing strongly on principle of effectiveness and the political scope of consumer protection, is used by the judge for entering effective remedies in national legal orders because of the concept of neutrality with variable geometry. New substantial powers, as its own motion reduction of the sale price or interim relief, can fill the gap inevitably existing in Constitutional systems characterized by a strict principle of legality and a formal approach. THE NEUTRALITY OF JUDICIAL POWER: IS THE JUDGE A POLICY MAKER? All that being said about the principle of neutrality of the judge in general and the principle of effectiveness of judicial protection, it s useful to go through the topic dealing with the relationship between these two mentioned principles. 14

15 We have to figure out, indeed, how the concept of the neutrality with variable geometry has been concretely applied by the Jurisprudence in particular within the fields of consumer right, asylum and immigration and data protection. Therefore the main purpose of this paper at least within the listed subjects is to answer the question about the possibility for the judge, who, as previously said, has to be neutral, to use ex officio powers when there are no other remedies prescribed by State, European or case-law in order to guarantee the effectiveness of judicial protection. 3.1 Asylum and immigration Focusing mainly on the second of the two mentioned topics, the remedy of nullity of administrative decisions in asylum and immigration is absolutely relevant in cases of asylum/immigration detention and rejections adopted with the violation of the right to be heard and other fundamental rights (e.g. right to family life, best interests of children). First of all, it is essential to figure out what the European Union's right states about this topic to analyse, then, how it has concretely been developed in Italy. The nullity of asylum and immigration detention orders is required when the detention measure is not necessary, justified or proportionate according to the requirements set out in articles 8 and 9 of the Reception Conditions Directive, article 28 of the Dublin Regulation and article 15 of the Return Directive, and in light of article 6 and 52(1) Charter. There is an EU rule common to asylum and return proceedings whereby the detention measure can be adopted only if other sufficient but less coercive measures cannot be applied effectively in a specific case. This requirement for the legality of detention measures has been reinforced by the CJEU, by way of establishing the principle of gradation of return-related measures, in the area of immigration. So return measures should be chosen in an order starting from the measure which allows the person concerned the most liberty, namely granting a period for voluntary departure, to actions which most restrict liberty, such as detention measures according to the principle of gradation as a specific form of the principle of proportionality. This means that before adopting detention orders, the administrative body should hear the third country national regarding the feasibility of alternatives to detention. If the administrative body has not taken the requirement of assessing the efficiency of alternative measures into consideration, then the judicial authorities should carry out ex officio this assessment within the framework of the judicial control of the preremoval/asylum detention. 15

16 Therefore EU asylum and return law in conjunction with articles 6, 47 and 52(1) Charter confer power and obligation upon national courts to adapt the administration measures ordering the detention of aliens. By article 47, national courts would also have a corresponding power to adapt the financial amount subject of the compensation claim based on the individual circumstances of the case. There are several case studies where the national courts established new remedies that were not set out in the relevant domestic law. It is useful now to focus on the Italian concrete application of this theme. 3.2 Case decided by Turin tribunal: adequate and effective remedy The Tribunal of Turin 13 decided a shorter detention period in asylum and returned proceedings than the duration of the detention requested by the administration, on the basis of the principle of proportionality, in the absence of a specific national legal provision providing for such a reformatory power. Under the Italian law applicable to the case at the time of the decision, an asylum seeker could have been maintained in detention even if he applied for international protection after he had already received detained pending preparation for escort to the border. Under these circumstances, article 21.2 legislative decree n. 25/2008 request of prorogation decision to detain the person concerned for a period of 30 days. The law did not provide, and still, it does not, the possibility for the judge to apply a shorter time of detention due to the specific circumstances of the case. In the case decided by Tribunal of Turin, the public authorities required to validate a prorogation of detention for a period of 30 days. The detainee was an asylum seeker whose situation fell under the scope of the above-mentioned sect However, the defence of the asylum seeker opposed the prorogation request on the grounds of the health conditions of the asylum seeker that were deemed incompatible with detention. The defence produced medical documentation issued by a public health centre attesting mental disorder of the asylum 14. Although the national judge did not base his decision to prolong detention for a shorter period expressly on the principle of proportionality, this decision is worth mentioning. 13 in the Judgment of 25th of May The judge prolonged the detention for 7 days only, instead of the 30 days required by the law. She also ordered the doctor of the detention centre to produce, within 7 days, a report to assess whether the asylum seeker's health conditions were compatible with the detention in the centre. 16

17 The potential breach of the fundamental right to health of the person concerned has played a major role in the decision. This is in line with the Italian constitutional court case-law stating the right to health is a core value to be guaranteed to everyone, included irregular migrant included 15. Nevertheless, the case is also meaningful with regard to the right to effective remedy. It is important to note that the Italian law does not provide the detainee the possibility of applying for an autonomous review of the detention, in case of prorogation of detention. The assessment is provided ex lege by the judge every 30 or 60 days (depending on the fact the detained individual is an irregular migrant or an asylum seeker). Thus, if the judge had validated the detention for 30 days as required by the law, the person concerned would not have had the possibility to autonomously ask for a reviewing of the decision after a shorter period. Moreover, although the public authorities have the opportunity to apply less coercive measures that detention, in practice they rarely do this and judges are deferential to these decisions. Thus, the Turin tribunal decision by imposing on the public authority a duty to assess whether the current health conditions of the detainee were compatible with the facilities offered in the detention centre and by validating prorogation of the detention for a shorter time, despite no expressly derogation admitted under the law, have shaped a procedural remedy that grants the individual an adequate effective remedy. As known, article 47 CFREU gives individuals and organizations the right to effective judicial protection, which includes several guarantees. Indeed, effectiveness means and implies the suitability of the remedy to the function. Therefore the effective protection can lead the judge to assign a remedy/measure different and further than that claimed by the party when the party claims for a remedy which is not effective enough or cannot be granted. This also happens when the judges, in the lack of a specific remedy, create it by referring to fundamental principles and rights. 3.3 Automatic suspensive effect Another important string of cases concerns the recognition of the automatic suspensive effect of appeals in accelerated asylum and return proceedings on the basis of articles 19(2) and 47 EU Charter, in the absence of express domestic provisions Constitutional Court 252/ Following the CJEU preliminary ruling in Tall (C-239/14, EU:C:2015:824) article 47 together with article 19(2) EU Charter requires, within the fast track asylum procedure, a suspensory effect of the appeal, regardless of the number of asylum applications made. 17

18 The recognition of an automatic suspensive effect of appeals depends whether the enforcement of the challenged decision is likely to expose the third-country national concerned to a risk of illtreatment contrary to article 4 EU Charter or article 3 ECHR and does not depend on the legal qualification of the decision or the type of asylum procedure within which the decision was adopted (i.e. regular, accelerated, border). According to the Tall preliminary ruling, when article 19(2) EU Charter is at stake, article 47 EU Charter requires that only the remedies with automatic suspensive effect are deemed effective, given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialized. The appeal with suspensory effect is necessary when it is brought against a return decision whose enforcement may expose the third-country national concerned to a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, thereby ensuring that the requirements of articles 19(2) and 47 of the Charter are met in respect of that third-country national. While the suspensive effect of appeal can be subject to restrictions, in the sense of being subject to a separate request, the full and ex nunc judicial review cannot be limited. 3.4 Monetary compensation Within the same topic, monetary compensation for unlawful asylum/immigration detention is another relevant case study. Two interesting Polish judgments established monetary compensation for unlawful detention of asylum seekers adopted under an incorrect legal framework (return proceedings) in one of the cases concerning vulnerable persons (victims of violence), and an increase of the compensation. These are not cases where the judge created a new remedy, but an example of applying a remedy by analogy, from a different field of law (i.e., administrative from civil law). The first case is interesting as it is the Supreme Administrative Court of Poland deciding contrary to previous courts that compensation was needed on the basis of article 5(1)(f) ECHR. Although the Supreme Administrative Court does not expressly refer to article 47 EU Charter, this is a case of establishing an effective remedy for violation of the right to liberty. The outcome of the second case, decided by the Court of Appeal, awarded an increase of the compensation to a single mother with two minor children. The increase is considerable, almost 10 times more, decided on the appeal lodged by the applicant on similar grounds as the Supreme Administrative Court in the case as mentioned above. 3.5 Effective protection of personal data: the Bodil Lindqvist case 18

19 In relation to the theme of data protection, many relevant decisions showed up how the idea of the neutrality of the judge has been evolving to match the principle of effectiveness of the judicial power. One of the leading cases is the Bodil Lindqvist s one 17 : Bodil Lindquist was a worker who had infringed the Swedish law on data protection by setting up pages on the internet after she had followed a data processing course. The internet pages displayed personal data on a number of people working with her on a voluntary basis in a parish of the Swedish Protestant Church. As soon as Mrs. Lindqvist became aware that some of her colleagues did not appreciate these pages, she removed them. She was nevertheless prosecuted and charged with breach of the law. The amount of the fine was SEK 4 000, which was liquidated by multiplying the sum of SEK 100, representing Mrs. Lindqvist financial position, by a factor of 40, reflecting the severity of the offence. Mrs. Lindqvist was also sentenced to pay SEK 300 to a Swedish fund to assist victims of crimes. The Court in this decision put in perspective both principles of effectiveness and proportionality, which should be considered altogether when imposing a sanction. Sanctions are to be effective, but they should not be disproportionate. And national courts or authorities should take into account all circumstances of the case to assess what should be the adequate sanction. Although the Court only refers to the duration of the breach and the importance of the protection of the data disclosed, it seems that other circumstances could be considered, such as the awareness of the controller that he was infringing the law, the purpose he was pursuing, or his good faith 18. Another relevant decision within the topic of the balance between the principle of effectiveness of the judicial power and the neutrality of the judge (thus implying the idea of neutrality with variable geometry) has been made by the French Cour de Cassation 19 which stated that even if the law does 17 Judgment of the court, 6 November 2003, Case C-101/01 18 The Court stated: "whilst it is true that the protection of private life requires the application of effective sanctions against people processing personal data in ways inconsistent with Directive 95/46, such sanctions must always respect the principle of proportionality. That is so a fortiori since the scope of Directive 95/46 is very wide, and the obligations of those who process personal data are many and significant. It is for the referring court to take account, in accordance with the principle of proportionality, of all the circumstances of the case before it, in particular, the duration of the breach of the rules implementing Directive 95/46 and the importance, for the persons concerned, of the protection of the data disclosed. 19 commercial chamber 25 June 2013, n

20 not expressly state so, the sale of a file including personal data - that has been unlawfully collected and processed - is void since the object of the sale is unlawful. In conclusion, all the mentioned verdicts show up how the idea of the judge as a mere controller of legality is definitely fading. In fact, the judge is actually considered an active promoter of the protection of rights and values guaranteed by the Constitution who might also recourse to legal devices arising from national and supranational sources. CONCLUSION 4.1 A new role for the judge According to what has been said so far, the traditional conception of the judge s role as an impartial applicator of the formal right, linked to the law s literal interpretation established by the written law ( in claris non fit interpretatio) inspired by the doctrine of the judge bouche de la lois is threatened by the new relationship between the Italian jurisdiction and the European Law. Within the European legislation indeed the judge has a new identity (the judge who dresses the national and the European gown simultaneously) which overcomes the traditional distinction between jurisdictional and political power; this new conception of the judge s figure implies that he is directly linked to the European Union s political objectives. For this reason, the judge has to play a significant role in the policy making circuit. It seems, thus, that the evolution of the jurisdiction in Europe has been retracing what happened in the U.S.A. where the judge, according to the main local doctrine, is considered as the guardian of the substantial equity with the purpose of making the right and most effective decision in the concrete case also when the law he is supposed to apply does not provide the remedy claimed by the parties. In other words, the mentioned evolution of the jurisdiction seems to lead to the theory which, refuses the idea of the judge as a mechanical applicator of rules (dura lex sed lex): it looks like we are getting closer to the American conception of the judge as actor of policy - making who, also in order to guarantee the principle of effectiveness of judicial powers, makes his decisions even through political and moral values arising from the overall Contitutional system As stated by the U.S.A. Supreme Court Judge W. J. Brennan also in the famous cases Baker v. Carr, 369 U.S. 186/1962 (when the Supreme Court affirmed the jurisdiction about the relevant political issue dealing with redefining the district boundaries of Tennessee State) and Green v. County Sch. Bd. of New Kent County, 391 U.S. 430/1968 (dealing with racial segregation in schools). 20