Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling – Third paragraph of Article 267 TFEU – Obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Exceptions to that obligation – CILFIT case-law – Filtering mechanism – Supreme Court of a Member State – Grant of leave to bring an appeal on a point of law – Decision refusing an application for leave to bring an appeal – Article 47 of the Charter – Right to a fair trial – Statement of reasons
Outcome of the case:
In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Vrhovno sodišče (Supreme Court, Slovenia) as follows:
(1) The third paragraph of Article 267 TFEU precludes a national provision or practice according to which, in proceedings relating to the grant of leave to bring an appeal on a point of law, a national court of last instance is not obliged to consider whether it may be required to make a reference for a preliminary ruling, where a party has properly raised a genuine issue of EU law, substantiating its arguments as to the existence of more than one sufficiently plausible interpretation of the relevant EU provisions, and expressly invited the national court to make a reference. It is for the national courts to interpret the relevant procedural rules in such a way as to enable those rules, wherever possible, to ensure compliance with EU law.
(2) In accordance with Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, a decision by a court of last instance which refuses leave to appeal and terminates the proceedings, despite the appellant having properly raised an issue of interpretation of EU law, is a judicial decision that requires a statement of the reasons for which that court considered that its obligation to make a reference under Article 267 TFEU was not triggered. The extent of the obligation to give reasons varies according to the relevant circumstances.
76. The system established is, accordingly, one of direct cooperation between the Court of Justice and the national courts, as part of which the latter are closely involved in the correct application and uniform interpretation of EU law and also in the protection of individual rights conferred by it. (48) With regard to this second aspect, I would emphasise that the preliminary ruling procedure is part and parcel of the system of remedies established by the drafters of the Treaties to ensure that, as provided for in Article 19(1) TEU and Article 47 of the Charter, every person whose EU-law-based rights are adversely affected by an action (or inaction) of either the EU institutions or the national authorities, may be able to obtain effective judicial protection. (49)
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78. That notwithstanding, I am of the view that it follows from the third paragraph of Article 267 TFEU, read in the light of Article 19(1) TEU and Article 47 of the Charter, that, in each case, ‘a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law’ should a priori be identifiable. That is so because all litigants should be able, where the appropriate conditions are satisfied, to have the questions of interpretation of EU law which they have duly raised in the national proceedings, and upon which their outcome may hinge, heard by the authoritative interpreter of EU law: the Court of Justice of the European Union. For that reason, there must always be a court, within the national judicial system, which acts as a court of last instance and thus is responsible for checking, in a given dispute, whether the conditions provided for in the third paragraph of Article 267 TFEU are satisfied.
122. By its second question, the referring court asks whether Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter, should be interpreted as meaning that a decision refusing a party’s application for leave to bring an appeal before a court of last instance constitutes a judicial decision which must state the reasons why the party’s request that a reference for a preliminary ruling be made to the Court of Justice was not be granted.
125. It is important to start by pointing out that the Court derived the obligation to give reasons from Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter. That provision guarantees the right to a fair trial, a right that also results from the constitutional traditions common to the Member States and corresponds to Article 6(1) ECHR. (84)
133. In the light of the above, I take the view that Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter, should be interpreted as meaning that a decision by a court of last instance which refuses leave to appeal and terminates the proceedings, despite the appellant having properly raised an issue of interpretation of EU law, is a judicial decision that requires a statement of the reasons for which that court considered that its obligation to make a reference under Article 267 TFEU was not triggered. The extent of the obligation to give reasons varies according to the relevant circumstances.
