Justice for both Effective judicial protection under Article 47 of the EU Charter of Fundamental Rights and the Unfair Contract Terms Directive

This study investigates the functions of Article 47 of the EU Charter of Fundamental Rights in European private law, by focusing on the case law of the Court of Justice and civil courts in Spain and the Netherlands concerning the Unfair Contract Terms Directive. Through a comparative analysis, this study reveals a discrepancy between the relevance attributed to Article 47 in theory and the role it plays in practice. Moreover, there is no convergence between references to Article 47 at European and national level. The research also exposes a mismatch between the effectiveness of EU law and the (unfulfilled) potential of effective judicial protection as a fundamental right. Whilst Article 47 emphasises the link between substantive and procedural protection, it holds the promise of autonomous procedural safeguards and reinforces a rights-based, court-centred approach. For civil courts, its added value lies mainly in its signalling function, where the national legal system, and in particular civil procedure, does not ensure justiciability in a broad sense: actual access to a court that can and must provide protection of the rights EU citizens, in their capacity as consumers, derive from EU law. Article 47 may enhance the visibility of systemic issues that transcend individual cases and are more fundamental than a lack of ex officio control; it adds a constitutional dimension to the adjudication of disputes between consumers and traders. “Justice for both” means that structural gaps, obstacles and inequalities should be identified as such and eliminated or compensated for as much as possible.