CJEU Case C-767/23 / Opinion
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CJEU Case C-767/23 / Opinion
Key facts of the case:
Reference for a preliminary ruling – Article 267 TFEU – Scope of the obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Exceptions to that obligation – Obligation to state reasons for the concrete application of those exceptions – National legislation conferring on the national court or tribunal of last instance the power to dismiss actions by means of a summary statement of reasons – Conditions required to reason a refusal to make a reference for a preliminary ruling.
Outcome of the case:
In the light of the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Raad van State (Council of State, Netherlands) as follows:
The third paragraph of Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union,
does not preclude national legislation such as Article 91(2) of the Vreemdelingenwet 2000 (Law on foreign nationals of 2000), under which the Afdeling bestuursrechtspraak van de Raad van State (Administrative Jurisdiction Division of the Council of State, Netherlands), as a national court whose decisions are not amenable to appeal, can rule summarily, without substantiating which of the three exceptions to its obligation to refer occurs, on a question raised about the interpretation of EU law, whether or not in conjunction with an explicit request for a preliminary ruling, provided that such summary reasoning enables the parties to understand the reasons why that court decided not to refer the question of interpretation of EU law to the Court of Justice.
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Paragraphs referring to EU Charter
23. As the Court has established only relatively recently that such an obligation exists in EU law, I will begin my analysis with a brief explanation of the evolution and main features of the relevant case-law of the Court so far (A). I will then discuss the rationale for the obligation to reason from the perspectives of Article 267 TFEU and Article 47 of the Charter (B). On that basis, I will assess the question referred in the present case (C).
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38. Given that the present case in fact requires the interpretation of the scope of the obligation to reason, it is worth citing that paragraph of Consorzio: ‘it follows from the system established by Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter, that, if a national court or tribunal against whose decisions there is no judicial remedy under national law takes the view, because the case before it involves one of the three [CILFIT] situations …, that it is relieved of its obligation to make a reference to the Court under the third paragraph of Article 267 TFEU, the statement of reasons for its decision must show either that the question of EU law raised is irrelevant for the resolution of the dispute, or that the interpretation of the EU law provision concerned is based on the Court’s case-law or, in the absence of such case-law, that the interpretation of EU law was so obvious to the national court or tribunal of last instance as to leave no scope for any reasonable doubt’. ( 29 )
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52. The second paragraph of Article 47 of the Charter guarantees the fundamental right to a fair trial. According to the Court’s case-law, observance of that right requires, among other things, that all judgments be reasoned. This enables the party to see why a judgment has been pronounced and to bring an appropriate remedy. ( 37 )
53. The second paragraph of Article 47 of the Charter corresponds, according to the Charter Explanations, to Article 6(1) ECHR. In that respect, the case-law of the ECtHR to which the interested parties have referred in the present case is relevant for understanding the rationale for the obligation to reason from the perspective of Article 47 of the Charter.
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55. Similar to Article 6(1) ECHR, under the second paragraph of Article 47 of the Charter, the obligation of national courts of last instance to give reasons, in the light of the CILFIT situations, for their decisions not to refer is correlative of a subjective right of a party, which essentially consists in the right to understand why the law was applied in a certain way in the case without a reference.
56. Importantly, such a right to understand the reasons not to refer in the light of the CILFIT situations should be regarded as arising in any situation involving the possible application of EU law, whether or not a party has made a request for a preliminary ruling. That right is different from the right to have a question referred, which a party does not enjoy on the basis of either Article 267 TFEU or Article 47 of the Charter. It is rather the right to have a decision not to refer explained, which the party enjoys on the basis of Article 47 of the Charter.
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58. In any event, the obligation to refer as imposed by Article 267 TFEU is not dependent on a party’s request to refer. Therefore, under Article 47 of the Charter, last-instance courts owe parties an explanation as to why they did not refer, even if no party requested they do so. ( 40 )
59. In sum, the rationale for the obligation to reason from the perspective of the second paragraph of Article 47 of the Charter is to enable the parties in a case to understand the reasons for the judgment made, including a decision not to refer, thus guaranteeing their right to a fair trial.
60. It follows from the above that the justifications for imposing the obligation to reason on last-instance courts are different under Article 267 TFEU than under Article 47 of the Charter. Unlike the rationale from the perspective of Article 267 TFEU, which flows from objective considerations aimed at ensuring the public interest in the uniformity of EU law, the rationale from the perspective of Article 47 of the Charter flows from subjective considerations aimed at ensuring the individual right of a party to the proceedings.
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66. Under Section B, I have explained that the rationale for the obligation to reason is different under Article 267 TFEU than under Article 47 of the Charter. If, on one side of the scale, there are the justifications for summary reasoning and, on the other side, there are the justifications for the obligation to reason, then the result of the balancing exercise might be different based on whether that obligation to reason is justified under Article 267 TFEU or under Article 47 of the Charter.
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68. On the contrary, if the reasons for not referring are not at least implied in the decision of the national court of last instance to a sufficient degree that the parties to the proceedings understand the outcome of the decision, the interest which justifies the obligation to reason under Article 47 of the Charter would not be satisfied.
69. Thus, in the light of the second paragraph of Article 47 of the Charter, some reasoning must exist, even if that reasoning is only implied. That does not automatically exclude summary reasoning so long as it is adequate for the parties to understand why the court has not referred.
70. What summary reasoning is adequate reasoning under Article 47 of the Charter?
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77. That reasoning can, to my mind, be transposed to the interpretation of Article 47 of the Charter. Under that provision, as indicated by the Finnish Government, the extent of the reasoning that is required cannot be stated in advance, as every case is different. ( 48 )
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84. To sum up, Article 267 TFEU, read in the light of Article 47 of the Charter, does not preclude summary reasoning, provided that the parties understand why the last-instance court decided not to refer in view of the CILFIT situations.
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Paragraphs referring to EU Charter (original language)