search

… of the . 194 An examination of whether the ombudsperson mechanism which is the subject of the Privacy Shield Decision is in fact capable of addressing the Commission’s finding of limitations on the right to judicial protection must, in accordance with the requirements arising from of the and the case-law recalled in paragraph 187 above, start from the premiss that data subjects must have the possibility of bringing legal action before an and court …

… According to the second paragraph of that , everyone is entitled to a hearing by an and tribunal. 187 According to settled case-law, the very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law. …

… Thus, legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him or her, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in of the (judgment of 6 October 2015, Schrems, C-362/14, EU:C:2015:650, paragraph 95 and the case-law cited). 188 To that effect, Article 45(2)(a) of the GDPR requires …

… (2) Is the referring court an and court or tribunal within the meaning of 267 TFEU read in conjunction with the second paragraph of Article of [the ]?’ …

… Second, that is a necessary condition if individuals are to be guaranteed, within the scope of EU law, the fundamental right to an and tribunal laid down in of the , which is of cardinal importance as a guarantee of the protection of all the rights that individuals derive from EU law (see, to that effect, inter alia, judgment of 26 March 2020, Review Simpson v Council and HG v Commission, C-542/18 RX-II and C-543/18 RX II, EU:C:2020:232, paragraphs …

… However, by itself, that functional is insufficient to protect the court or tribunals from any external influence. 37 The conclusion of the Verwaltungsgericht Wiesbaden (Administrative Court of Wiesbaden) is that, probably, it does not satisfy the conditions laid down in the second paragraph of of the governing whether it can be regarded as an and tribunal. 38 In those circumstances, the Verwaltungsgericht Wiesbaden (Administrative Court of Wiesbaden …

… (3) (a) Are the combined provisions of the second subparagraph of 19(1) TEU and of the , together with the principle of effectiveness, at least with regard to a national legal system which, for the purpose of safeguarding the and of the courts, establishes in its constitution a fundamental right to the allocation of cases to judges in accordance with a predetermined order under general rules, to be interpreted as meaning that a party to a court …

… (2) (a) Are the combined provisions of the second subparagraph of 19(1) TEU and of the , together with the principle of effectiveness, at least with regard to a national legal system which, for the purpose of safeguarding the and of the courts, establishes in its constitution a fundamental right to the allocation of cases to judges in accordance with a predetermined order under general rules, to be interpreted as meaning that a judge who has doubts …

… (5) (a) Are the combined provisions of the second subparagraph of 19(1) TEU and of the , together with the principle of effectiveness, at least with regard to a national legal system which, for the purpose of safeguarding the and of the courts, establishes in its constitution a fundamental right to the allocation of cases to judges in accordance with a predetermined order under general rules, to be interpreted as meaning that the parties to a case …

… of the , which is the standard by reference to which the Council must assess the observance of the right to effective judicial protection, provides that everyone is entitled to a fair and public hearing within a reasonable time by an and tribunal previously established by law (see, to that effect, judgment of 11 July 2019, Klymenko v Council, T-274/18, EU:T:2019:509, paragraph 84 and the case-law cited). 97 In so far as the Charter contains rights which correspond …

… to rights guaranteed by the ECHR, such as those provided for by 6, their meaning and scope are, under Article 52(3) of the Charter, the same as those laid down by the ECHR. 98 In that regard, it must be noted that, in its interpretation of Article 6 ECHR, first, the ECtHR has held that the purpose of the reasonable time principle is, inter alia, to protect persons charged with a criminal offence against excessive procedural delays and to prevent them from being left in a state of uncertainty …

… conclusion that the protection of the rights in question had been guaranteed, when, as the applicant pointed out in the letters he sent to the Council, Case 521, which had been brought in April 2014 and related to facts which allegedly occurred between 2011 and 2014, was still at the preliminary investigation stage and the case at issue had been brought before the Ukrainian court not for consideration of the merits, but, at most, only in connection with procedural matters. 96 The second paragraph of …

… and , that wording does not in itself allow further inferences to be drawn as regards the characteristics of the ‘administrative authority’ that may be required to determine such an action against a return decision. 127 However, it follows from the Court’s case-law that the characteristics of the effective remedy referred to in 13(1) of Directive 2008/115 must be determined in a manner that is consistent with Article of the , which provides that everyone whose rights …

… decisions, recognised to the Public Prosecutor’s Office and authorising only the latter to challenge such a decision, where appropriate, before a court does not constitute a remedy that satisfies the requirements of Article 13(1) of Directive 2008/115. 126 Second, while it follows from the wording of Article 13(1) of Directive 2008/115 that return decisions must be capable of being appealed against or reviewed before a competent judicial or administrative authority or a body composed of members who are …

… . - The alleged lacuna in the EU system for the protection of rights As regards the applicant’s argument that, in essence, a finding that the action is inadmissible would create a lacuna in the EU system for the protection of rights on the ground that that would mean that those procedural guarantees could not be the subject of an and judicial review, in breach of of the of Fundamental Rights, it should be noted that, by that argument, the applicant seeks …

… tasks (OJ 2017, L 339, p. 83) states as follows: ‘Nature of reviewing body: in line with 6 and 13 ECHR and [of the ], the appeal body must in substance be an and tribunal. …

… 13 of Directive 2008/115, read in the light of of the . 93. …

… That being so, out of respect for the fact that the wording of 13 of Directive 2008/115 is unambiguous when it lists the appeal bodies, I propose that it should be found that the effective remedy required by that , read in the light of of the , is also ensured in a situation where an appeal is brought before a non-judicial body, provided that body is composed of members offering guarantees of and . (27) 94. …

… ., the Court held as follows: ‘ of the of Fundamental Rights of the European Union and 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [(OJ 2000 L 303, p. 16)] must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an and tribunal, within the meaning of the former provisions …

… cannot be regarded as a tribunal within the meaning of of the of Fundamental Rights (‘the Charter'), Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and Article 45(1) of the Constitution of the Republic of Poland. …

… The judgment of 5 December 2019 19 In its judgment of 5 December 2019, the Sąd Najwyższy - Izba Pracy i Ubezpieczeń Społecznych (Supreme Court - Labour and Social Insurance Chamber), ruling in the dispute which gave rise to the request for a preliminary ruling in Case C-585/18, held that the National Council of the Judiciary (‘the KRS’) is not, as currently constituted, an body of the legislature and the executive. 20 Similarly, that court held that the Disciplinary Chamber …

… 277 TFEU. 55 However, it follows from the fundamental right to an effective remedy before an and tribunal previously established by law, guaranteed by of the , that everyone must, in principle, have the possibility of invoking an infringement of that right. …

… Legal context The 6 of the , entitled ‘Right to an effective remedy and to a fair trial’, states, in the first and second paragraphs thereof: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this . …

… the judge appointed to the third post could not be regarded as a lawful judge for the purposes of the first sentence of the second paragraph of of the . 70 As set out in that provision, everyone is entitled to a fair and public hearing within a reasonable time by an and tribunal previously established by law. 71 In that regard, this Court has held that the requirements that courts be independent and impartial form part of the essence of the right to effective …

… of the provides: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this . Everyone is entitled to a fair and public hearing within a reasonable time by an and tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. …