CJEU Case C-600/23 / Opinion
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CJEU Case C-600/23 / Opinion
Key facts of the case:
Reference for a preliminary ruling – Judicial remedies – Effective judicial protection – Article 47 of the Charter – FIFA Statutes – Court of Arbitration for Sport – The conformity of an arbitral award with EU law reviewed by a court of a third country – National rules according the status of res judicata
Outcome :
In light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Cour de cassation (Court of Cassation, Belgium) as follows:
- Article 19(1) TEU, read in conjunction with Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding the application of national law such as Article 24 and Article 1713(9) of the Code judiciaire belge (Belgian Judicial Code), laying down the principle of res judicata, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice for a preliminary ruling.
- Article 19(1) TEU, read in conjunction with Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a rule of national law granting an arbitral award rebuttable probative value vis-à-vis third parties, where the review of conformity with EU law has been carried out by a court of a third country.
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Paragraphs referring to EU Charter
35. In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does Article 19(1) [TEU], read in conjunction with Article 267 [TFEU] and Article 47 of the Charter of Fundamental Rights of the European Union [(“the Charter”)], preclude the application of provisions of national law such as Article 24 and Article 171[3](9) of the Code judiciaire (Belgian Judicial Code), laying down the principle of res judicata, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice of the European Union for a preliminary ruling?
(2) Does Article 19(1) [TEU], read in conjunction with Article 267 [TFEU] and Article 47 of the [Charter], preclude the application of a rule of national law according probative value vis-à-vis third parties, subject to evidence to the contrary which it is for them to adduce, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice of the European Union for a preliminary ruling?’
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41. However, when a FIFA rule, or a decision based on such a rule, potentially infringes the right of an individual based on EU law, the constitutional system of the European Union bestows on that individual the right to effective judicial protection, expressed today in Article 47 of the Charter.
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123. Taking the preceding into account, I consider that the Court should expand on its judgment in International Skating Union and develop a separate approach to the judicial review of arbitral awards resulting from mandatory arbitration, such as the one before CAS on the basis of the FIFA Statutes.
124. In that respect, I am of the view that effective judicial protection demands that both access to national courts and their powers of review be expanded in relation to mandatory arbitration, beyond their current powers in relation to commercial arbitration.
125. Direct access to challenge FIFA’s rules, despite a CAS award confirming their validity, should be available to subjects who claim that their rights guaranteed by EU law have been infringed. The scope of review should not be limited to public policy, but should include all relevant EU law provisions. It should be possible to exercise such review in all judicial proceedings, be they initiated as a direct challenge to FIFA’s rules, in enforcement proceedings of a CAS arbitral award, or incidentally in a different type of procedure, such as the one initiated by an action for damages.
126. Based on such an approach to the FIFA system of mandatory arbitration by CAS, I propose that the Court answer the first question of the referring court as follows. Article 19(1) TEU, read in conjunction with Article 267 TFEU and Article 47 of the Charter, must be interpreted as precluding the application of national law such as Article 24 and Article 1713(9) of the Code judiciaire (Belgian Judicial Code), laying down the principle of res judicata, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice for a preliminary ruling.
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135. In conclusion, I propose that the second question of the referring court be answered as follows. Article 19(1) TEU, read in conjunction with Article 267 TFEU and Article 47 of the Charter, does not preclude a rule of national law granting an arbitral award rebuttable probative value vis-à-vis third parties, where the review of conformity with EU law has been carried out by a court of a third country.
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Paragraphs referring to EU Charter (original language)