RSIEAblog

Introduction

 

Over the years, the Court of Justice of the European Union (CJEU) persistently emphasized the fundamental importance of the preliminary reference procedure within the EU judicial system. The procedure defined under Article 267 TFEU enables a dialogue between the national courts and the CJEU with the aim of ensuring the uniform interpretation and application of EU law.[1] In achieving this objective, references for preliminary rulings contribute to the effective judicial protection of the rights individuals enjoy by virtue of EU law. Could the preliminary reference procedure be further understood as an effective remedy, which gives the parties to the main proceedings an indirect access to EU Courts? Four recent cases led the European Court of Human Rights (ECtHR) to analyze the procedure of Article 267 TFEU in the light of the Convention.

The judgement Ullens de Schooten v. Belgium[2] outlined the criteria under which the right of access to a court enshrined in Article 6(1) of the ECHR (European Convention of Human Rights) may be violated by the refusal of a national court of last instance to submit a preliminary reference. By adopting the same reasoning in Dhahbi v. Italy[3], the ECtHR found for the first time a Member State to have breach Article 6(1) of the Convention, on the ground that the national court of last instance failed to state reasons on which it based the decision not to refer a preliminary reference to the CJEU. The Court reiterated its position one year later in Schipani v. Italy[4]. More recently, the ECtHR approached the question with regard to the right to actively seek review of detention orders under Article 5 §4 of the Convention in the case Chylinski v. The Netherlands[5]. These judgments are part of a line of case law developed by the ECtHR since the nineties. While at the beginning the ECtHR was referring to arbitrary refusals to refer, since Ullens de Schooten, the focus was put on unreasoned denials to submit preliminary questions to the CJEU.

The ECtHR’s judgments in question touch upon a key issue of the EU system of judicial remedies. Indeed, under Union law, there are no mechanisms of effective sanction when national courts fail to refer questions for preliminary ruling. Admittedly, according to Köbler, Member States are obliged to make good damage caused to individuals where the alleged infringement of EU law stems from a decision not to refer of a national court of last instance[6]. However, it is not the denial to refer itself that is seen as a manifest breach of EU law. When extending the principle of State liability enshrined in Fracovich[7] to violations by national courts, the CJEU puts into balance the effective protection of individuals and the discretion of national courts. Thus, State liability for violations of Union law encounters limitations. On the one hand, the existence of a serious breach of EU law attributable to a national court must meet stringent requirements. On the other hand, criteria of State liability established in Köbler have to be applied by the competent authorities in national proceedings. It is nonetheless unlikely that a national court will recognise the liability of a higher court due to its denial to refer or its own violation of EU law due to the omission to make a preliminary reference. Therefore, a complaint before the ECtHR may constitute a mechanism for individuals in order to obtain protection against last instance national courts’ failure to refer under Article 267 TFEU.

 

Ullens de Schooten v. Belgium

In Ullens de Schooten v. Belgium[8], the ECtHR was called upon interpret the procedure of Article 267 TFEU in the light of the fundamental right of access to a court. The applicants were two directors of a laboratory convicted by Belgian criminal courts for forgery and tax offences. At the appeal and the subsequent stages of the proceeding, they claimed that the national criminal provisions defining such offences were incompatible with the Union law. Therefore, they requested the national judges to refer a question to the CJEU for a preliminary ruling, a request rejected by the Belgian Conseil d’Etat. The applicants argued before the ECtHR a breach of Article 6(1) of the Convention based on the fact that the national court of last instance failed to comply with the duty to refer questions for preliminary ruling as provided under Article 267(3) TFEU. The ECtHR answered in three steps.

First, the Court recalled that the right of access to a court under Article 6 of the Convention is not absolute. In fact, the national judge enjoys a margin of appreciation in verifying whether a question shall be referred to a specific court in order to settle a dispute. In this respect, it is worth noting that the judgement refers to the case law of the CJEU. At the outset, Article 267 TFEU requires only national courts or tribunals against whose decisions there is no judicial remedy under national law to bring the matter before the Court of Justice. As for the conditions under which such an obligation arises, the ECtHR quote the well-known CILFIT case law: the decision on a question of Union law must be necessary to enable the national court of last resort to give judgement. By contrast, if the question is irrelevant, has been already interpreted by the Court of Justice (théorie de l’acte éclairé) or the correct application of Union law is so obvious as to leave no scope for any reasonable doubt” (théorie de l’acte clair), EU law does not require national courts of last instance to refer questions for preliminary ruling.

Second, the decision not to submit a preliminary reference to the CJEU falls within the scope of Article 6 of the Convention that requires domestic courts to hear any legal question that may arise in the course of the proceedings. Again, the ECtHR quotes the case law of the CJEU, while emphasizing the “particular significance” of the role national courts play within the EU judicial system.

Third, the right of access to a court is violated if the failure to submit a preliminary reference proves arbitrary. Consequently, the Strasbourg Court verifies whether the national tribunal duly accompanied the decision in which it failed to refer a preliminary question under Article 267 TFEU by sufficient reasons in relation with the applicable law and in the light of the exceptions provided for in the case law of the CJEU. As a result, national courts of last resort have a duty to state reasons when failing to submit a question for preliminary ruling.

 

Dhahbi v. Italy and Schipani v. Italy

 

The ECtHR adopted the same reasoning in Dhahbi v. Italy[9]. For the first time, it found that a national court of last instance violated Article 6 of the Convention since it did not provide reasons for its refusal to refer a question for preliminary ruling to the CJEU. In particular, the judgement of the Italian Court of Cassation made no reference to the applicant’s request for a preliminary ruling, nor did it provide reasons why the court considered that the question raised did not warrant referral to the Court of Justice.

The ruling was confirmed in Schipani v. Italy. Again, the ECtHR held that the Italian Court of Cassation did not make reference to the applicant’s request for a preliminary ruling and did not justify the failure to bring the question before the CJEU. It is interesting to note the concurring opinion of Judge Wojtyczek. With the view of enhancing the consistency of the ECtHR case law, he argued against a systematic violation of Article 6 of the Convention where there is an unreasoned refusal to refer a question for preliminary ruling to the CJEU. By contrast, the duty to provide reasons could be interpreted in a more or less stricter way depending on the severity of the interference in the sphere of human rights in dispute.

 

Chylinski v. The Netherlands

 

More recently, the ECtHR was called upon to rule on the right to actively seek review of detention within the EU system of judicial remedies. The case Chylinski v. The Netherlands raised the question of whether an obligation for the judicial authority executing a European Arrest Warrant to ask a preliminary question to the CJEU can arise under Article 5 §4 of the Convention. Although the Court found the complaint manifestly ill-founded, the decision acknowledges the applicability of the Article 5 §4 of the Convention in respect of EU surrender procedure. It follows from Chylinski that the right to judicial review guaranteed by Article 5 §4 must be interpreted according to the requirements set out in the Ullens jurisprudence, namely the duty incumbent to national courts to state reasons when failing to bring a preliminary question before the CJEU. Accordingly, the ECtHR pointed out that the executing national authorities explained that “it was not necessary to seek a preliminary ruling from the CJEU in order to determine the lawfulness of the brief additional period of detention while awaiting the envisaged surrender of the applicants to the respective issuing States, there being adequate provision for such delays in domestic law”. In addition, it argued that: “In any event, it is inconceivable that the CJEU could have given a preliminary ruling in time; this means that a preliminary ruling could have provided no guidance to the Court of Appeal in deciding on the lawfulness of the applicants’ continued detention. In the circumstances, therefore, a request for a preliminary ruling could have had no bearing on the lawfulness of the detention in issue”.

 

Some comments and remarks

 

Although the judgement in Dhahbi has been partly welcomed by the legal doctrine, it also raised concerns and criticisms. Indeed, the ECtHR case law calls into question two conflicting arguments: on the one hand, the duty of the EU Member States to comply with the Convention even when they are implementing Union law and, on the other, the autonomy of the Union legal order vis-à-vis the ECHR.

As regards the first argument, the ECtHR consistently held that the Member States’ responsibility for securing rights arising from the Convention applies even when they are implementing Union law[10]. In the well-known Bosphorus judgement[11], the Court considered that the EU offer an equivalent level of protection compared to the ECHR. This constitutes a presumption that might be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In a second interesting passage, the Court came to the conclusion that the EU system of judicial remedies ensures the effective judicial protection of individual rights. In Ullens and Dhahbi, the Strasbourg Court takes a step further: the judgements interpret the provisions regulating the preliminary ruling procedure and the case law of the CJEU in the light of Article 6 of the Convention. In doing do, it outlined an additional requirement domestic court must fulfill, namely the duty to state reasons for the decision not to bring the matter before EU courts. Such a requirement is not provided under EU law, neither arises from the Union case law. The only reference on the duty to state reasons appears in the Opinion of Advocate General Bot in the case Ferreira da Silva[12], in which he argued that CILFIT doctrine imposes on national courts of last instance an increased duty to provide reasons. Instead, the CJEU found in its judgement that the Portuguese Supreme Court violated its obligation to refer under Article 267(3) TFEU, given that the provision of EU law in question was subject to conflicting lines of case-law at the national level and frequently gives rise to difficulties of interpretation in the various Member States.[13]

As for the second argument, criticisms against the ECtHR case law focuses on the additional requirement the Strasbourg Court imposes for the procedure under Article 267 TFEU, which undermines and affects the autonomy of the Union legal order. It is superfluous to recall the well-known emphasis put by the CJEU on this argument in the Opinion 2/13 concerning the accession of the EU to the ECHR. Whilst the Dhahbi judgement will presumably not relieve the tensions between the CJEU and the ECtHR, it raises a fundamental underlying question: who is responsible for securing the protection of individual rights and particularly the right to an effective remedy within the EU? How to coordinate the judicial dialogue within Europe in order to secure a comprehensive and consistent protection of human rights? Should the right to an effective judicial remedy prevail or at least balance the principle of autonomy of the Union law?

From a human rights perspective, the ECtHR case law enhances the effective judicial protection of individuals under EU law, although such a conclusion calls for some nuance. The ECtHR case law will presumably and hopefully make national courts of last instance attentive on the importance of the procedure for preliminary ruling. Considering the reluctance encountered in some countries, the Dhahbi case may contribute to the legal certainty in terms of possibility for the parties to have indirect access to the EU judiciary. Early signs can be found in recent judgement of national Constitutional Courts. For instance, the Hungarian Constitutional Court held that the National Assembly violated the Hungarian Constitution inasmuch as it did not require national courts to give reasons for their refusals to refer to the CJEU[14]. Therefore, the Constitutional Court asked for the adoption of a legislative provision imposing a duty to state reasons for denials to make preliminary references. In a similar way, the Hungarian Supreme Court seems to impose an obligation to give reasons for the refusals to refer on domestic courts, including those not adjudicating at last instance.[15] By reference to the ECtHR case law, the Slovenian Constitutional Court pointed out that last instance courts are required to state reasons in relation to the EU law issues raised in the proceedings.[16] They must include a reference to the motion of the parties to submit a preliminary question and to CILFIT in order to enable the Constitutional Court to determine the compliance of the refusal to refer under Article 267(3) TFEU with the national Constitution. According to the Czech Constitutional Court[17], national courts of last instance have a duty to state reasons showing that they dealt with the issue of whether to refer according to CILFIT. This duty is particularly incumbent when the solution proposed by the domestic court in question has been contested by the parties and when the courts of other Member States follow a different solution.

It should further be noted that reference to the ECtHR judgement in Dhahbi can also be found in recent Opinions delivered in cases brought before the CJEU. In Ognyanov, Advocate General Bot stressed that referrals for preliminary rulings by a national criminal court do not impair the independence and impartiality of the latter. On the contrary, it is the failure to refer that may constitute, under certain circumstances, a breach of the right to a fair trial[18]. Similarly, when examining the absence of sanction as regards refusals to refer by last instance courts, Advocate General Wahl stressed that the increasing number of cases related to failures to refer shows that the EU judicial system of checks and balances relating to Article 267(3) TFEU has also evolved.[19]

Against this background, one could argue that the procedure for preliminary ruling is not to be understood as a mere mechanism of judicial dialogue, but rather as a judicial remedy for individuals that must be effective. Nevertheless, the ECtHR case law raises several questions as regard its potential consequences. Would be sufficient for the national court to refer to the applicant’s request for a preliminary ruling and to the CILFIT case law in order to comply with Article 6 of the Convention? Does the duty to state reasons only apply to national court of last instance or would it also concern ordinary tribunals? Does the duty to state reason carry greater weight in case of preliminary reference on validity, considering the exclusive competence of the CJEU for invalidating an act of Union law? While the questions remain open, an increasing number of cases related to the duty to refer questions for preliminary ruling is brought before the European Courts. On the one hand, CJEU recognized for the first time in Ferreira da Silva that a national supreme court violated its obligation to refer under Article 267(3) TFEU, while emphasising the importance for a strict interpretation of CILFIT.[20] On the other hand, the ECtHR held in Avotins v Latvia[21] that the fact that “the domestic court hearing the case did not request a preliminary ruling from the CJEU is apt to preclude the application of the presumption of equivalent protection” of fundamental rights by EU law developed in Bosphorus. It may seem that the preliminary reference procedure under Article 267 TFEU is a new arena of confrontation between European Courts…

 

Dr. Valentina Covolo,

Postdoctoral Researcher, University of Luxembourg

Clelia Lacchi, LL.M.

Ph.D candidate and Teaching Assistant, University of Luxembourg

 

 

 

[1] Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, OJ C 338, 6.11.2012, p. 1.

[2] Ullens de Schooten and Rezaabek v. Belgium, n° 3989/07 and 38353/07, 20 September 2011.

[3] Dhahbi v. Italy, n° 17120/09, 8 April 2014.

[4] Schipani v. Italy, n° 38369/09, 21 July 2015.

[5] Chylinski v. The Netherlands (dec.), n°38044/12, 21 April 2015.

[6] Case C-224/01, Gerhard Köbler v Republik Österreich, ECLI:EU:C:2003:513.

[7] Joined cases C-6/90 and C-9/90, Francovich and Bonifaci and others v Italy, ECLI:EU:C:1991:428.

[8] Ullens de Schooten and Rezaabek v. Belgium, n° 3989/07 and 38353/07, 20 September 2011.

[9] Dhahbi v. Italy, n° 17120/09, 8 April 2014.

[10] Matthews c. Royaume-Uni, n° 24833/94, 6 February 1999, §32.

[11] Bosphorus Hava Yollari Turizm ve Anonim Serketi v. Irland [GC], n° 45036/98, 30 June 2005.

[12] Opinion of Advocate General Bot in Case C-160/14, Ferreira da Silva e Brito and Others v Portugal, ECLI:EU:C:2015:390.

[13] Case C-160/14, Ferreira da Silva e Brito and Others v Portugal, ECLI:EU:C:2015:565.

[14] 14 July 2015, Case No. 26/2015.

[15] Order of 12 November 2014, Case No. Kfv.III.37.826/2014/6

[16] Up-1056/11.

[17] ÚS 1009/08 ; ÚS 1658/11.

[18] Opinion of Advocate General Bot in Case C-614/14, Criminal Proceedings against Ognyanov, ECLI:EU:C:2016:111.

[19] Joined Cases C‑72/14 and C‑197/14, X and T.A. van Dijk, ECLI:EU:C:2015:319.

[20] Case C-160/14, Ferreira da Silva e Brito and Others v Portugal, ECLI:EU:C:2015:565.

[21] Avotins v. Latvia [GC], n° 17502/07, 23 May 2016.

Tweet about this on TwitterShare on Facebook0Share on Google+0Share on LinkedIn5
Author :
Print

Leave a Reply