This article deals with the consequences of breach of the duty to make a reference for a preliminary ruling pursuant to the third paragraph of Art. 267 TFEU. It aims to show that the remedies available to curb omissive conduct on the part of national courts of last instance are very difficult to implement from a practical standpoint, inasmuch as the case-law of the Court of Justice shows that those remedies, though they may be exercised on the basis of premises and conditions that are markedly diverse, are all of an exceptional nature. This predicament is a consequence of the behaviour of the Court of Justice, which seems to be primarily concerned with safeguarding its privileged relationship with the courts of the Member States rather than with limiting their discretionary powers.

SOMMARIO:

I. Introduction - II. The meaning of the duty to make a reference for a preliminary ruling and its relaxation - III. The duty to make a reference and national procedural rules - IV. Review or revision of final judgements without making a reference for a preliminary ruling - V. Breach of the duty to make a reference for a preliminary ruling on the interpretation of Union law and reparation of damage - VI. Failure to make a reference for a preliminary ruling on the interpretation of Union law as a sufficiently serious breach - VII. Infringement proceedings by reason of failure to make a reference for a preliminary ruling on a question of interpretation - VIII. Breach of the third paragraph of Art. 267 TFEU and the right to a fair trial - IX. Remedies against breach of the duty to make a reference for a preliminary ruling on the validity of a Union act - X. Liability of the State, rather than of the judicial body, for breach of the duty to make a reference - XI. Conclusions. - NOTE

I. Introduction

Reference for a preliminary ruling has evolved over the years to become one of the most significant legal tools in the Union. The fundamental role played by the preliminary ruling procedure in European integration has been repeatedly underlined, as it has ensured the uniform interpretation and application of Union law in Member States, thereby creating a form of direct cooperation between national courts and the Court of Justice [1]. Such cooperation has allowed the development of “the genetic features of the new legal order ... direct effect, primacy, accountability, effectiveness, and equivalence, and ma­ny others which have shaped the Union’s legal system” [2]. In its recent Opinion 2/13, the Luxembourg Court confirmed that the preliminary ruling procedure is the cornerstone of the judicial system established by the Treaties [3]. The Court of Justice has thus emphasised the autonomy and effectiveness of the preliminary ruling procedure, which remains unaffected by the accession of the European Union to the European Convention on Human Rights. To allow the proper functioning of the jurisdictional system and of the Union as a whole, it is necessary that the prerogatives of national courts be exercised in constant dialogue with the Court of Justice, under Art. 267 TFEU [4]. Viewed from this angle, the national courts operate as the «Union court of common law» or as «the decentralised court of Union law» which, in the event of doubt concerning the interpretation of Union law or the validity of Union acts, can and must, if its decisions are not subject to appeal, make a reference for a preliminary ruling to the Court of Justice [5]. Whilst these principles now appear to be entirely settled, light has not to date been fully shed on the possible negative consequences and implications that could arise out of a failure to make a reference for a preliminary ruling, due to a decision by a national court to proceed autonomously, disregarding the Court of Justice. There is thus a highly controversial and problematic issue as to what remedies may be available to parties prejudiced by a breach on the part of a national court of last instance of its duty to make a reference for a preliminary ruling, since individuals do not have direct access to the Court of Justice from a national court hearing their case. The TEU and the TFEU contain no sign of the proposal set out in the 1984 draft Treaty [continua ..]

II. The meaning of the duty to make a reference for a preliminary ruling and its relaxation

As references for a preliminary ruling on the interpretation of Union law and references for a preliminary ruling on the validity of Union acts cannot be placed on exactly the same plane, this paper will start by examining the first kind of reference and the remedies available in the event of a breach of Art. 267(3) TFEU. It will then consider whether the same conclusions can be drawn with regard to second kind of reference. Given the above approach, it is worth carrying out a preliminary review of the meaning and scope of the duty to make a reference for a preliminary ruling on interpretation, even though the relevant features of this procedural tool are by now well known, having been constantly underlined by the case-law of the Luxembourg Court. Nevertheless, there is a sense of dissatisfaction with the dicta constantly reiterated by the Union judicature, as if the obscure aspects of this fundamental tool were simply to be ignored and no attempt were to be made to seek out adequate answers. That said, the duty to make a reference has its basis in the third paragraph of Art. 267 TFEU and applies to the national court of last instance the decisions of which are not subject to appeal. The rationale of the correlation of this duty with the national courts of last instance is clearly to prevent a body of national case-law that is not in accordance with the rules of EU law from being established in a Member State. The duty to make a reference has been construed by the Court of Justice in a manner which seeks to reconcile two opposing needs: on the one hand, the need to allow courts in the Member States to use this tool in a flexible manner and, on the other hand, the need to avoid giving those national organs excessive discretionary power. As to the first need, the Court of Justice has emphasised its relationship of cooperation, rather than hierarchy, with respect to national courts, thereby showing a certain degree of indulgence with reference to the letter and spirit of Art. 267(3) TFEU [10]. In this connection, the well-known CILFIT decision [11], which has been confirmed by subsequent case-law [12], assigned a particularly active role to national courts, specifying that they may refrain from submitting a reference for a preliminary ruling to the Court of Justice pursuant to Art. 267(3) TFEU if the legal issue at stake is not relevant to the solution of the case, or if it has already been subject to [continua ..]

III. The duty to make a reference and national procedural rules

 As noted above, the case-law of the Court of Justice regarding the duty to make a reference and the exceptions to the rules in that regard is not immune to criticism on the grounds of the abuses that it can allow [23]. The balance that has been struck is fragile, given that there are still many elements of uncertainty. Indeed, the national courts continue to raise doubts regarding the assessment of the relevance of the legal issue to be submitted to the Court of Justice [24]. The Luxembourg Court was recently asked how to reconcile the duty to make a reference for a preliminary ruling with the autonomy of national proceedings, where the national trial rules provide for a system of preclusions such as, for example, time-limits for the lodging of appeals, the necessary specificity of claims, the ban on the modification of claims during the proceedings, and the ban on the modification of the parties’ claims by the court. On the premise that the request for a reference for a preliminary ruling was made by the party concerned only during appeal proceedings and in a very generic manner, thus raising doubts of admissibility in light of the internal rules, the national court called on the Court of Justice to deliver a judgment on the relationship between powers that can be exercised by the national court of its own motion pursuant to Art. 267(3) TFEU and the principle whereby the subject-matter of a case brought before the national court is delimited by the claims submitted to it by the parties, which is a cornerstone of some national trial systems, such as the Italian one. In the view of this author, the confusion arose chiefly from the fact that failure to make a reference cannot constitute an independent ground of appeal, but it remains the case that the remedy of a reference for a preliminary ruling and the powers of the national court in that regard may not be conditioned in any way by the grounds raised by the parties [25], provided that the judicial body does not overstep the boundaries of the legal dispute before it [26]. Indeed, in its decision in Case C-136/12 Consiglio nazionale dei geologi, the Court of Justice clearly stated that the national court may disapply motu proprio any national procedural rules that would compromise its exclusive role of «[determining] and [formulating] the questions to be referred for a preliminary ruling concerning the interpretation of European Union law [continua ..]

IV. Review or revision of final judgements without making a reference for a preliminary ruling

In light of the foregoing, the first remedy to be considered, given its particular efficacy, is of a direct and substantive nature. Failure to make a preliminary reference can lead to a decision being issued that is inconsistent with Union law and that can acquire the force of res judicata; thus it is necessary to verify whether the party prejudiced thereby may seek a review of the final decision. The relationship between the law of the Union and the principle of res judicata is somewhat complex – so much so that the Court of Justice has itself indulged in recurrent vacillations, applying over the years solutions that have seemingly varied. The case-law in this regard reflects an attempt to perform a balancing act between the need for legal certainty and the principle of the primacy of Union law, in light of the factual and legal circumstances in a given dispute [32]. An initial trend in the relevant case-law, exemplified by the ruling in Kühne & Heitz [33], has recognised the possibility of annulling an administrative decision that is incompatible with Union law, on the following conditions: (1) the administrative body must have, under national law, the power to review the decision in question; (2) that decision must have become definitive following a judgment by the national court of last instance; (3) the decision, in light of subsequent case-law of the Court of Justice, must appear to be based on an erroneous interpretation of Union law that was arrived at without any reference being made to the Court for a preliminary ruling under Art. 267(3) TFEU; and (4) the interested party must have brought the matter to the attention of the administrative body immediately upon being informed of the aforementioned case-law [34]. For practical purposes, the scope for a review appears to be somewhat limited, given that a number of national systems are extremely reluctant to authorise administrative bodies to review an administrative decision that has been validated by a definitive judicial decision [35]. However, in other States that allow the review of unlawful administrative decisions, the administrative authority is sometimes under a duty to annul, even on its own motion, previous decisions in the event that they turn out to be incompatible with the law of the Union and where other conditions elaborated by the Court of Justice are met. In the subsequent Kempter [36] case, the Court followed the [continua ..]

V. Breach of the duty to make a reference for a preliminary ruling on the interpretation of Union law and reparation of damage

A final decision of a national court is no obstacle to the recognition of State liability for damage, as the remedy of reparation of damage does not call into question the principle of res judicata [51]. In particular, the Union Law precludes a provision of National law which requires, as a condition for declaration of State liability, the prior setting aside of the decision that caused the loss or damage, when such aside is, in practice, impossible [52]. Therefore, where there are no conditions that would allow the national court to avoid making a reference for a preliminary ruling, it is necessary to verify whether the protection afforded by reparation of damage is wider in its scope than that afforded by remedies of a direct or substantive nature. It is clear that the possibility of a State being held liable to make good damage caused by due to inaction on the part of its courts is contingent on fulfilment of the three conditions laid down by the Court of Justice, namely (1) that the rule of Union law that has been breached must be intended to confer rights; (2) that the breach must be sufficiently serious; and (3) that there must be a causal link between the breach of the duty of the Member State and the damage suffered by the injured party [53]. The national courts play a fundamental role regarding reparation of damage in both a negative and a positive way, given that, on the one hand, their decisions can involve the liability of the State and, on the other, they are called upon to determine claims made by parties injured by breaches committed by other national courts. The use of the preliminary ruling procedure can help to mitigate the awkwardness that a judge may feel in criticising the work of another judge who has failed to have recourse to that tool, thereby dissipating any legitimate doubt of impartiality and avoiding the commission of further breaches of Union law. The Court of Justice seems to follow a restrictive approach with reference to this scenario, in that it holds that States may be held liable for damage caused to individuals only in the exceptional case of a manifest breach of Union law by the national court adjudicating at last instance [54]. Advocate General Léger, for his part, has argued that State liability for damages could arise due to mere failure to make a reference for a preliminary ruling on the part of the national court against whose decision no appeal lies [55]. This stance needs [continua ..]

VI. Failure to make a reference for a preliminary ruling on the interpretation of Union law as a sufficiently serious breach

The foregoing does not mean that the duty to make a reference for a preliminary ruling is in itself not subject to a sanction or a remedy and that it can therefore be ignored with impunity. It is necessary to safeguard the proper functioning of the reference mechanism and the uniform application of Union law that it pursues. It is not by chance that the principles regarding State liability for breaches of Union law were developed by the Court of Justice precisely within the context of references by national co1urts for preliminary rulings. Arguably, breach of Art. 267(3) TFEU in any event takes on relevance for the purposes of reparation of damage. In other words, it may be argued that failure to make a reference, accompanied by a judicial decision that is incompatible with a Union rule or legal principle, in itself constitutes a sufficiently serious breach, without there being any need to verify the fulfilment of other conditions that normally need to be taken into consideration by a national court (discretionary powers, excusableness, clarity, intentionality, etc.). We refer, for example, to lack of clarity or precision of the rules of Union law, which is normally of decisive relevance but which cannot be a legitimate excuse in the event of failure to make a reference for a preliminary ruling, taking into account the specificity of the judicial function. Indeed, it is precisely in the more complex and controversial cases that the national court is a fortiori obliged to address the Union judicature, given that in such cases there is an exponential increase in the probability of decisions that conflict with Union law and, consequently, in the risk of prejudice to its uniform application. However, it may be argued that failure to make a reference for a preliminary ruling allows the injured party to take a faster route to demonstrating the existence of a sufficiently serious breach, without having to go into other issues normally taken into consideration by a national court (discretionary powers, excusableness, clarity, intentionality, etc.) [63]. Alternatively, one could claim that failure to make a reference for a preliminary ruling takes on a preeminent but not all-embracing character vis-à-vis other issues normally considered by the national court for the purposes of reparation of damage. Upon closer examination, neither of these two options was chosen in the Köbler case, given that the Court of [continua ..]

VII. Infringement proceedings by reason of failure to make a reference for a preliminary ruling on a question of interpretation

On the surface, it appears easier to associate mere breach of the duty to make a reference for a preliminary ruling with Member State liability that may be sanctioned through an infringement proceeding under Art. 258 and 259 TFEU [66]. In such a case, indeed, an objective kind of liability may be configured, given that, for the purpose of censuring the conduct of a Member State, the mere breach of a Union rule, principle or law, of an international agreement, or of a Union judicial decision is sufficient, independent of any verification of the existence of any further prerequisites or of the harm done to individual rights. Only in relatively recent times has the Commission overcome its reluctance to bring proceedings against Member States for failure to fulfil an obligation based on the decisions of national courts [67]. In the Court’s view, a given case-law trend that systematically fails to make use of the preliminary ruling procedure should lead to assessment of a possible infringement by the State whose courts have breached the duty laid down by Art. 267(3) TFEU, independent of the existence of any damage or of other prerequisites for the reparation of da­mage. It goes without saying that the assessment of failure on the part of the State concerned to fulfil an obligation incumbent on it may also be sought in the event that the failure to make a reference is accompanied by a judicial decision running counter to Union law, even when the three conditions for obtaining reparation of damage are not met. Of course, the infringement proceeding is an additional remedy and not an alternative to a claim for reparation of damage brought before a national court. In fact, the use of the infringement procedure under Art. 258 et seq. TFEU to censure a failure to act on the part of a national court of last instance is by no means straightforward, given that the Court has emphasised the exceptional nature of State liability arising from the conduct of national courts. In those circumstances, one can readily understand the statement that infringement proceedings appear not to be an option in the event of «... isolated or numerically insignificant judicial decisions in the context of case-law taking a different direction, or still more a construction disowned by the national supreme court» [68]. On the contrary, it is necessary to assess all relevant circumstances in a given case which could exceptionally lead to [continua ..]

VIII. Breach of the third paragraph of Art. 267 TFEU and the right to a fair trial

Within the wide spectrum of actions that could in principle be pursued in consequence of a failure to make a reference for a preliminary ruling, it is necessary to consider the possible breach of the right to a judge predetermined by law. Such a failure by a national court would end up depriving the Court of Justice of its exclusive competence over the interpretation of Union law. The “right to have access to the Court of Justice” does not find complete expression or effective protection in the systems of the Member States, save in certain exceptional cases including, in particular, the Federal Republic of Germany, Spain and the Czech Republic, which allow such breaches to be challenged [75]. More particularly, the German Constitutional Court has held that the Court of Justice is the “natural court or the court predetermined by law” under Art. 101 of the German Constitution, which provides for a right of the individual to have access to the Court of Justice. Consequently, in the event that the duty of the court of last instance to make a reference is neglected, the Constitutional Court can be called upon to assess the omission on the part of the national court [76]. By contrast, in the Italian legal system there is no real right of access to the Court of Justice, because it has been held that the refusal by a court of last instance of a request for the making of reference for a preliminary ruling represents an expression of the potestas iudicandi conferred upon the national court. Hence, there is no means of examining, and thus censuring, within the national context, a breach of Art. 267(3) TFEU. Art. 111 of the Italian Constitution is not a possible remedy, given that the Italian Supreme Court of Cassation has always excluded the possibility of invoking a conflict or a denial of jurisdiction, underlining that Art. 267 TFEU is an international rule of a procedural nature [77] and that the Court of Justice does not intervene in this connection as the court determining a specific case but, rather, merely provides an interpretation of provisions of Union law that the national court deems to be relevant to the determination of the case before it [78]. The right of appeal to the Supreme Court on a point of law vested in the State Attorney pursuant to Art. 363 of the Italian Code of Civil Procedure, together with other remedies that have been proposed by academic lawyers, have never been taken into [continua ..]

IX. Remedies against breach of the duty to make a reference for a preliminary ruling on the validity of a Union act

Turning now to consider the issue of failure to make a reference for a preliminary ruling on the validity of Union acts, it is necessary first of all to recall the most significant peculiarities of this procedural tool [89]. It is well known that this procedure is different from that regarding interpretation, both because it is not subject to the CILFIT case-law and because not only the national court of last instance but also the lower courts are required to have recourse to this remedy in the event of doubt concerning the validity of a Union act, given that they may not declare such an act to be invalid. In this connection, the division of competence between the two courts may be characterised in partially different terms with respect to references for a preliminary ruling on interpretation: the Court of Justice has exclusive competence to declare a Union instrument unlawful, whereas the national court is only able to confirm its lawfulness, with the sole exception of a national precautionary proceeding. Systemic coherence requires that the Court has exclusive competence not only to annul the Union act in issue but also to declare it void in the event that its validity is challenged before a national court [90]. In accordance with this need, it has been underlined on many occasions that the existence of diverging views among courts in the Member States as to the validity of Union acts could compromise the very unity of the Union legal order and jeopardise the fundamental need for legal certainty [91]. However, in the case of a reference for a preliminary ruling on validity there is no traditional distinction between possibility and obligation, depending on whether the issue is raised before the national court of last instance or before a lower court. All national courts, regardless of their level within the judicial system, are obliged to address the Court of Justice in the event that doubts are raised as to the validity of a Union act. It should also be noted that the sole exceptional power vested in the national court is the power temporarily to suspend the application of the national act that is based upon the Union instrument that is suspected of being invalid and to adopt any other provisional act in that connection. It should in addition be noted that the scope of a reference for a preliminary ruling on validity is more limited than that of a reference concerning interpretation, given that it may only concern [continua ..]

X. Liability of the State, rather than of the judicial body, for breach of the duty to make a reference

Leaving aside the de iure condendo prospects, we have seen the relative weakness of possible reactions to breach of the duty to make a reference. However, in the event that a breach of Union law or of the ECHR is established, due to a failure of a national court of last instance to make a reference for a preliminary ruling, the liability for that failure will be imputed to the State. This statement is the expression of the settled principle of unity of the State and the inconsequence or irrelevance of the identity of the organ of the State that has committed the breach. Indeed, through the adoption of a principle of international law, the Court of Justice has consistently ruled that the State is the sole party that may be held liable for loss and damage caused to individuals, irrespective of the organ that committed the breach [100]. The extension of this principle to breaches committed by the State through its courts has inevitably raised various doubts regarding the proper use of the reference tool. The concerns arise mainly out of the fear of calling into question the autonomy and independence of the courts, given that the judges could incur personal liability out of the breach of the duty to make a reference. It must thus be clearly borne in mind that the personal liability of national judges is not a species of the genus of State liability for a breach of Union law, but rather that those two kinds of liability are separate and distinct from one another. On the one hand, the Luxembourg Court merely contemplates the obligation upon the State to make reparation for loss and damage sustained as a result of breaches committed by its judicial organs, given that Union law recognises the State as the sole party that can be held liable. On the other hand, the issue of the admissibility of, and the prerequisites for, an action against a judge is a purely internal matter and must, as such, be resolved within the national system. Thus, a Member State may legitimately regulate the kind of action for loss and/or damage that may be brought against its judges, but it must assume and accept full ownership thereof without being permitted to offload its own responsibility onto the European Union. It goes without saying that this discretionary power of the Member States must be exercised within the limits of their respective constitutional rules and of the common principles of the Mem­ber States regarding the independence and autonomy of the courts, [continua ..]

XI. Conclusions.

 In conclusion, the Court of Justice has now completed the mosaic of possible means of protection afforded to a party prejudiced by failure to make a reference for a preliminary ruling, but there remain grey areas in the case-law, in relation to which it is not easy to give clear answers. Those areas of doubt need to be eradicated as soon as possible so as to avoid a situation in which the reference for a preliminary ruling, which was conceived with a view to ensuring the certainty and uniform application of Union law, itself becomes itself a source of uncertainty and of divergent practices by national courts [102]. The mere knowledge of the various remedies available in the event of a breach of Art. 267 TFEU has definitely played a deterrent role, so much so that there has been an exponential increase in the number of references made by national courts. There is no doubt that references for preliminary rulings have come to constitute a quite widespread practice in all national judicatures of the Member States, to the extent that there is now a knowledge of the need to use this tool to prevent the development of national case-law that erroneously interprets or applies Union law. Notwithstanding this, there continue to be courts, mainly of last instance, which fail to fulfil this obligation, while the tools available to discourage such omissive conduct appear to be relatively weak. Indeed, the rulings of the Court of Justice show that the various remedies to which recourse may be had in cases of failure to refer are all of an exceptional nature. It is clear from a consideration of the case-law of the Court of Justice that this difficulty is of a cross-cutting nature, since it concerns all the remedies examined, even though they may be exercised on the basis of premises and conditions that are markedly diverse. Therefore, the cited case-law cannot be interpreted as a judicial attempt to build coherence and unity by establishing a de facto hierarchy resembling that of the classical federal judicial systems (the so-called appellate theory) [103]. The approach hitherto adopted by the Court of Justice appears to be exceptionally restrictive and not in line with the principle of the effectiveness of Union law, which runs the risk of being compromised by an excessively sporadic and discontinuous use of available remedies. The improper use by national courts of the preliminary ruling procedure can lead to a denial of individuals’ rights [continua ..]

NOTE