CJEU confirms incompatibility between automatic judicial inhibition rules and references for a preliminary ruling: need for reform? (C-614/14)

In its Judgment of 5 July 2016 in Ognyanov, C-614/14, EU:C:2016:514, the Court of Justice of the European Union (CJEU) has taken a final decision on whether domestic (criminal) procedural rules concerned with safeguards against judicial bias need to be set aside if their application is such as to jeopardise the functioning of the system of referrals for a preliminary ruling in the interpretation of EU law established by Article 267 TFEU.

It is worth stressing that the case at hand concerned criminal law enforcement in Bulgaria, where a domestic rule concerning breaches of judicial impartiality could be interpreted so as to require a referring national court that had laid out the factual background and the law applicable to the case for the purposes of the reference to the CJEU, to inhibit itself from any further decisions in a criminal case (and face disciplinary action).

In short, the CJEU has followed the Opinion of AG Bot (see here) and has decided that such a rule is incompatible with EU law and that the domestic courts not only cannot be obliged to refrain from taking any further decisions in a given criminal case on the basis that they referred a preliminary question to the CJEU where they laid out the facts of the case and the law applicable to them, but they are also prevented from voluntarily stepping down of the case on the basis that they consider themselves biased after having referred the question to the CJEU.

I do not have much of an issue with the first part of the Judgment, where the CJEU considers contrary to EU law a rule implying that any referral of a case for a preliminary ruling is a ground for automatic judicial recusal or inhibition; but I find the second part of the CJEU's decision worrying because the opposite position, whereby a judge cannot recuse herself on the basis of a bias created or identified at the point of sending the request for a preliminary ruling, or whereby she would be breaching EU law if she decided to inhibit herself from any further decision in the case, cannot be right.

In my view, the main issue with the Ognyanov Judgment derives from the (logical) formality of the CJEU's reasoning. After having determined that 'a national rule which is interpreted in such a way as to oblige a referring court to disqualify itself from a pending case, on the ground that it set out, in its request for a preliminary ruling, the factual and legal context of that case' is contrary to EU law, the CJEU engaged in the analysis of whether that rule could be applied voluntarily by the court concerned on the basis that 'that rule ensures a higher degree of protection of the parties’ fundamental rights'. The CJEU analysis was as follows:

32 ...  the fact that a national court sets out, in the request for a preliminary ruling ... the factual and legal context of the main proceedings is not, in itself, a breach of [the right to a fair trial]. Consequently, the obligation to disqualify itself, imposed by that rule on a referring court which has, in a reference for a preliminary ruling, acted in that way cannot be considered as serving to enhance the protection of that right.
36 ... in this case, the referring court is obliged to ensure that Article 267 TFEU is given full effect, and if necessary to disapply, of its own motion [the domestic rule requiring its inhibition] where that interpretation is not compatible with EU law (see, to that effect, judgment of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 34).
37      In the light of the foregoing, ... EU law must be interpreted as precluding a referring court from applying a national rule, such as that at issue in the main proceedings, which is deemed to be contrary to EU law (C-614/14, paras 32 and 36-37, emphasis added).

In my view, the biggest issue with the Ognyanov Judgment is that the CJEU seems to only take into account one of two possibilities. It is certainly true that, as the CJEU emphasises, setting out the factual and legal context of the main proceedings to which the request for a preliminary refers 'is not, in itself [always or necessarily], a breach of that fundamental right', but it is not less true that the way in which a court lays out such factual and legal context can be sufficient to establish the existence of judicial bias because the referring court may demonstrate that it has pre-judged the issues at stake and thus expressed a legal position that prevents it from remaining involved in the criminal investigation without jeopardising the fundamental rights of the accused. Therefore, a more nuanced approach is needed.

I would suggest that a careful holistic interpretation of the Ognyanov Judgment could result in such nuanced approach, particularly if it was understood that the CJEU only considers contrary to EU law for a domestic court to inhibit itself from any further decisions in an on-going (criminal) case exclusively on the basis that it had laid down the factual and legal context of that case for the purposes of the request for a preliminary ruling--that is, exclusively in view of its having met the requirements of Art 267 TFEU and Art 94 of the rules on procedure--but it does not consider the same incompatibility with EU law if the domestic court identifies any (additional) substantive (and substantial?) indication of (its own) bias in the way that factual and legal background is laid out.

It certainly seems wrong to me to adopt a broader reading of the Ognyanov Judgment whereby any judicial inhibition (or recusal) on the basis of bias shown within the context of a request for a preliminary ruling is barred as a matter of (non)compliance with EU law.

Ultimately, and beyond these considerations, in my view, the difficulties derived from the reconciliation of domestic rules on judicial impartiality (in criminal law matters) and the EU preliminary reference mechanism seem to be more than a good reason to revisit the assumption that the same rules can apply without causing significant problems for civil/administrative and criminal references for a preliminary ruling to the CJEU.