2) More particularly, the national court is concerned with the compliance of the ban with Article 63(2) of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999, ( 2 ) read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) which protects the right to an effective remedy and a fair trial.

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27) In October 2011, the applicant appealed against the order of the Tartu Halduskohus to the Tartu Ringkonnakohus. It decided to stay the proceedings and to refer the following question to the Court of Justice of the European Union for a preliminary ruling:

‘(a) Are the rules of procedure of a monitoring committee jointly set up by two Member States (and the Programme Manual adopted by the Monitoring Committee for the Estonia-Latvia Programme 2007-2013), which provide that “The decisions of the Monitoring Committee are not appealable [at any place of jurisdiction]” ( 10 ) (Chapter [6.6.4] of the Programme Manual) compatible with Article 63(2) of Council Regulation No 1083/2006 […] in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union?

(b) If Question (a) is to be answered in the negative, must point (b) of the first paragraph of Article 267 of the Treaty on the Functioning of the European Union be interpreted as meaning that Chapter [6.6.4] of the Programme Manual adopted by the Monitoring Committee for the Estonia-Latvia Programme 2007-2013 is an act of an institution, body, office or agency of the Union which must be declared invalid?

(c) If Question (a) is to be answered in the negative, must the second sentence of the first paragraph of Article 263 in conjunction with Article 256(1) and Article 274 of the Treaty on the Functioning of the European Union be interpreted as meaning that the General Court of the European Union or the competent court under national law has jurisdiction to hear and determine actions against decisions of the Monitoring Committee for the Estonia-Latvia Programme 2007-2013?’

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45) Firstly, it is important to specify the arm of Article 47 of the Charter that is at issue in these proceedings. Like Article 6(1) of European Convention on Human Rights (the ‘ECHR’), Article 47 of the Charter refers to a number of different rights that are essential to the administration of justice. These include the right to a fair and impartial hearing, which is to take place within a reasonable time, and the availability of effective remedies, to name only a few of its elements. The case file shows that the dispute to hand concerns an alleged infringement of the right of access to a court, since the Programme Manual imposes a blanket ban on the adjudication of the decision in issue. ( 25 )

46) By its first question, the Tartu Ringkonnakohus asks in essence whether the Monitoring Committee, in adopting its rules of procedure under Article 63(2) of Regulation No 1083/2006, and by excluding judicial review of its own decisions, has complied with Article 47 of the Charter. However, as noted above, the pertinent provision in disputes, like the case to hand, involving European territorial cooperation, is Article 19(3) of Regulation No 1080/2006 and not Article 63(2) of Regulation No 1083/2006.

47) As I have already mentioned, in essence this case turns on whether the ban imposed by Chapter 6.6 of the Programme Manual, and indeed Estonian law if the findings of the Tartu Halduskohus are correct, breach the right of access to a court. However, as will be explained below, this arm of Article 47 of the Charter equally binds Member State courts to respect the principles of effectiveness and equivalence, which are also pertinent. Under the former principle Member States are bound to ensure that the remedies and procedural rules available to enforce rights arising from EU law do not render them impossible in practice or excessively difficult to enforce. Under the latter, Member State remedies and procedural rules must not be less favourable than those attaching to analogous claims of a purely domestic nature. ( 26 ) In my opinion, the principles of effectiveness and equivalence need to be brought under the umbrella of Article 47 of the Charter. ( 27 )

48) The European Union is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the question of whether the measures adopted by them are in conformity with the basic constitutional charter, ( 28 ) namely the EU the FEU Treaties and the Charter. In my opinion, and contrary to the concerns expressed by the representative of Latvia at the hearing on the consequences of allowing judicial review of cross-border measures, it would be inconceivable for implementation of an EU programme to escape all judicial control merely through involvement of more than one Member State.

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51)For a correct understanding of the role of the general principles of EU law and Article 47 of the Charter for the case to hand, it is important to distinguish between two issues; namely (i) whether there has been a legally binding rejection of the application by MTÜ Liivimaa Lihaveis for funding under the Estonia-Latvia Programme and (ii) at which stage of the administrative procedure this took place. In other words, what was the decisive step in this respect? It is the first issue where Article 47 of the Charter is directly relevant, whereas the second issue is a matter for national procedural autonomy as limited by the general EU law principles of effectiveness and equivalence, the latter being an expression of the more general principle of non-discrimination.

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52) It is important to bear in mind that, due to Article 6(1) TEU, the Charter forms part of the primary law of the European Union. That being so, all EU legislation, including Article 19(3) of Regulation No 1080/2006, must be interpreted in conformity with Charter rights. ( 31 )

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54) It is beyond doubt that Estonia and Latvia are bound to comply with the right of access to a Court, as protected by Article 47 of the Charter, when they apply and implement the programme. Further, the Monitoring Committee itself is bound by this fundamental right. I recall that it is the Monitoring Committee that adopted the Programme Manual containing the impediment to access to a court.

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55) I am deeply convinced that a clearly non-legislative body like the Monitoring Committee cannot have competence to exclude judicial review of its own decisions with an effect that binds the relevant national courts. It would not fulfil the criteria ‘provided for by law’ which is required of any limitation on exercise of the rights recognised by the Charter. ( 33 ) Therefore, if any exclusion of access to justice regarding the decisions of the Monitoring Committee can lawfully be provided in this case, it must be a consequence of a clearly prescribed Estonian law, not of the Programme Manual.

56) In consequence, Article 47 of the Charter underscores the principles of the established case law to the effect that decisions refusing EU funding made by national authorities exercising implementing powers are to be open to judicial review. ( 34 )

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57) As I have already mentioned, the procedural and remedial autonomy of the national referring court is circumscribed by the principles of effectiveness and equivalence. As stated in paragraph 47, in my opinion these rules now fall under the umbrella of Article 47 of the Charter.

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68) Further, in my opinion the Member State court must take into account the reality that the Monitoring Committee is bound by the same criteria as are applicable to EU institutions when they exercise a power of appraisal. In this context it has been held that, ‘respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present. ( 45 ) These elements are, in my opinion, part of the duty of good administration, which is now reflected in Article 41 of the Charter.

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70) I therefore propose that question (a) is answered to the effect that irrespective of the rules of a monitoring committee jointly set up by two Member States in the context of the European Regional Development Fund, such as the Programme Manual adopted by the Monitoring Committee for the Estonia-Latvia Programme 2007-2013, and according to which decisions of the committee are not appealable, the principle of effective judicial protection and Article 47 of the Charter require that an applicant whose application for funding in accordance with Regulations Nos 1080/2006 and 1083/2006 has been rejected must be able to challenge that rejection before a competent court or tribunal of the Member State responsible for the management of the programme. It is for the national court to decide which procedural provisions and principles of national law govern access to a court in this context, subject to the requirements stemming from the principles of equivalence and effective judicial protection.

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76) On the basis of the preceding reasoning, I propose the following answer to the questions referred by the Tartu Ringkonnakohus:

Question (a)

The principle of effective judicial protection and Article 47 of the Charter of Fundamental Rights of the European Union require that an applicant whose application for funding in accordance with Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 and Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 has been rejected, must be able to challenge that rejection before a competent court or tribunal of the Member State responsible for the management of the programme. It is for the national court to decide at which point in the decision-making process a reviewable act has been adopted, and which procedural provisions and principles of national law govern access to a court in this context, provided that they fulfil the requirements stemming from the principles of equivalence and effective judicial protection.

Questions (b) and (c)

Decisions of a monitoring committee jointly set up by two Member States in the context of the European Regional Development Fund, such as the Monitoring Committee for the Estonia-Latvia Programme 2007-2013, are not acts of an institution, body, office or agency of the Union, within the meaning of Article 263 TFEU, and it is the Member State courts, and not the General Court of the European Union, which have jurisdiction to hear and determine actions against the decisions of such monitoring committees.