Bulgaria, Supreme Administrative Court of the Republic of Bulgaria, 18 May 2020 No. 5733

Identification of the case

• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Law for Protection Against discrimination

• CFREU, Directive 2000/43

Summary of the case

The plaintiff had filed a suit regarding discrimination against 4 persons. He had lost in multiple proceedings, including initial proceedings in front of the Commission for Protection against Discrimination and judicial proceedings at the first two instances. Consequently, the plaintiff appealed to the highest administrative court with his position being that the Court should issue a request for a preliminary ruling in order to inquire whether Article 47 CFREU provides protection from the obligation to pay high legal fees in lost lawsuits that have to do with discrimination.

• Administrative judicial enforcement

Claimed: annulment of the administrative court decision, suspensive effect of the appeal, compensation for the violation of the individual’s rights by the administration (more precisely the Municipality of Shumen and the Commission for Protection Against Discrimination).

The National Court refuses to enact the claim of the plaintiff of issuing two questions for a preliminary ruling by stating that the matters they are addressing have already been resolved by the CJEU.

The two questions were:

1- Do Article 7 of Directive 2000/43 and Article 47 of the CFREU oblige member-states to cover the legal expenses of persons who assumed they were discriminated against in the case their claim is rejected by the court system and are consequently obliged to pay the legal expenses of the party?

2- Do the aforementioned articles allow for the existence of national legislation or case-law which relieves people who thought they were discriminated against from paying a state-mandated legal fee of 50 leva (approximately 25 euro) when after their claim is rejected they are obliged to pay approximately 2 thousand euros worth of legal expenses for the other party to the suit?

In addressing Article 7 of the Directive the national court states that its purpose is to address the accessibility of the judicial and administrative procedures but at the case-file at hand the question of accessibility is not present.

In addressing the question pertaining to Article 47 the national court states that it is pertinent to review it jointly with Article 13 ECHR because Article 47 CFREU is based on Article 13 ECHR. The court states that the CFREU does not establish specific requirements as to the form of the legal remedies that are to be provided and to this end refers to the ECtHR judgment M.S.S. v Belgium and Greece.

However, the court states that there are established principles in assessing the efficiency of a legal remedy:

• accessibility
• capacity to satisfy (and address) the complaint of the plaintiff
• present a reasonable perspective of success.

To this end the Court refers to the case of Vuckovic and Others v. Serbia.

Furthermore the Court states that the principle of equivalence of EU Law requires remedies under EU law to not be less favourable than those established under national law (and to this end refers to the case of: C-33/76. Moreover the Court mentions the cases of: C-415/11, 14 March 2013, p. 50; Joined cases C-482/13, C-484/13, C-485/13, C-487/13).

According to the Court the CJEU through its case-law has established that member-states should create a system of remedies and safeguards in order to ensure the right of effective judicial protection guaranteed by EU Law. To this end it refers to the cases of: C-50/00 P, 25 July 2002, p. 39–41. See also, ECJ, T-461/08, 20 September 2011, p. 46; and C-213/89.

The Court further states that the case-law of the CJEU establishes that rules pertaining to the establishment of liability in regards to legal fees fall under the notion of “ effective legal remedies in front of a court”, however it does so in cases where such rules have been made so unreasonably and without a legal basis and refers to the ECtHR judgment of Stankiewicz v. Poland.

Moving on to Directive 2000/43, the Court states that it contains no provisions that prohibit “excessively expensive” proceedings and contain an obligation of the state to pay the legal fees of parties winning a suit on behalf of the losing side.

In conclusion, the Court states that since there is a sufficient amount of case-law on the interpretation of Article 47 CFREU concerning the question brought forward by the plaintiff there is no need to send it for a preliminary ruling. After doing so, the Court rules that Article 47 of the CFREU and Article 7 of Directive 2000/43 do not provide for an obligation of the State to compensate the losing side of legal proceedings concerning discrimination.

Role of the Charter and role of the general principles on enforcement

The case relates to the question whether the right established in Article 47 of the Charter relates to the matters of legal expenses which the party filing proceedings ought to pay to the defendant in the case its claim is deemed unsubstantiated. Moreover the case concerns itself with the question whether specific attention must be paid to plaintiffs filing for proceedings related to discrimination and whether Article 47 extends more favourable treatment to them in the form of an obligation for member-states to cover the legal fees of said type of plaintiffs.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to access a court
• Right to an effective remedy before a tribunal
• Explicit reference to Art. 13 ECHR

Law for Protection Against discrimination.

The main scope of this law is to establish the forms of discrimination which are prohibited, what constitutes said forms of discrimination and the overall protections agaisnt discrimination extended to the persons fallin under its scope.

The right to an effective remedy established in the CFREU and ECHR is of central relevance to the judgment of the Court as they are the main discussed legal provisions and their role in regulating the carrying out of legal proceedings related to the determination of the legal fees that a losing side is to pay upon obtaining an unfavourable judgement is the deciding factor in the case.

• Equivalence
• Effectiveness

The principle of equivalence is discussed in the interpretation of Article 47 CFREU and is used as a criteria guiding how a legal remedy should be established in order to be in compliance with it. In essence the court states that Article 47 establishes no particular form of how the remedy should look like but the principles of equivalence and effectiveness do constitute outlines of sorts of what it ought to be.

The principle of effectiveness is discussed in the judgment to the extent that it stipulates that the rights extended under Article 47 CFREU to persons affected by EU Law ought to be provided effectively in national jurisdictions and due to that the article is applicable in the case at hand.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU, C-33/76
• CJEU, C-415/11
• CJEU, Joined cases C-482/13, C-484/13, C-485/13, C-487/13
• CJEU, C-50/00 P
• CJEU, T-461/08
• C-213/89

• Stankiewicz v. Poland
• Vuckovic and Others v. Serbia

Conform interpretation with EU law as interpreted by the CJEU.

The purpose is to establish whether Article 47 CFREU provides parties who have obtained an unfavourable judgement in proceedings related to discrimination the right to be compensated by the State in regard to the legal fees they ought to pay for the other side.

Additional notes on the decision

The expected impact is minimal (the court also does not refer to previous national case-law on the topic).