19.2.2011

Official Journal of the European Union

C 55/9

(Case C-279/09) (<span class="super">1</span>)

(Effective judicial protection of rights derived from European Union law - Right of access to a court - Legal aid - National legislation refusing legal aid to legal persons in the absence of ‘public interest’)

2011/C 55/15

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: DEB Deutsche Energiehandels-und Beratungsgesellschaft mbH

Defendant: Bundesrepublik Deutschland

Re:

Reference for a preliminary ruling — Kammergericht Berlin — Interpretation of the principle of effectiveness — Compatibility with that principle of national rules refusing legal aid to legal persons in the absence of ‘public interest’ — Action seeking to establish the liability of a Member State for delay in transposing Community directives

Operative part of the judgment

The principle of effective judicial protection, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it is not impossible for legal persons to rely on that principle and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer.

In that connection, it is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right; whether they pursue a legitimate aim; and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.

In making that assessment, the national court must take into consideration the subject matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the relevant law and procedure; and the applicant’s capacity to represent himself effectively. In order to assess the proportionality, the national court may also take account of the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an insurmountable obstacle to access to the courts.

With regard more specifically to legal persons, the national court may take account of their situation. The court may therefore take into consideration, inter alia, the form of the legal person in question and whether it is profit-making or non-profit-making; the financial capacity of the partners or shareholders; and the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings.

(<span class="super">1</span>) OJ C 267, 7.11.2009.