CJEU clarifies obligation of national supreme and constitutional courts to refer preliminary questions (C-322/16)

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In its Judgment of 20 December 2017 in Global Starnet, C-322/16, EU:C:2017:985, the Court of Justice of the European Union (CJEU) followed the Opinion of AG Wahl and clarified that a national court of last instance is under an Art 267 TFEU obligation to refer a question for preliminary ruling to the CJEU even if the constitutional court of that Member State has already assessed the constitutionality of national rules in the light of regulatory parameters with content similar to rules under EU law.

The case concerned the amendment of the terms of licences for the online operation of gaming during their term, and the challenge was based on principles of legal certainty and protection of legitimate expectations, which are common to EU law and to the constitutional frameworks of the EU's Member States (in this case, Italy). From that perspective, the Global Starnet Judgment can be particularly relevant for cases involving claims based on the EU Charter of Fundamental Rights and could create a push for a more significant role for the CJEU as a constitutional court for the Union.

There are a few passages of the Global Starnet Judgment that I find particularly interesting:

... a national court which, in a case concerning EU law, considers that a provision of national law is not only contrary to EU law, but also unconstitutional, does not lose the right, or escape the obligation under Article 267 TFEU, to refer questions to the Court of Justice on the interpretation or validity of EU law by reason of the fact that the declaration that a rule of national law is unconstitutional is subject to a mandatory reference to the constitutional court. The effectiveness of EU law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by EU law exercising the right conferred on it by Article 267 TFEU to refer to the Court questions concerning the interpretation or validity of EU law in order to enable it to decide whether or not a provision of national law was compatible with that EU law ...

... the effectiveness of EU law would be impaired and the effectiveness of Article 267 TFEU diminished if, as a result of there existing a procedure for review of constitutionality, the national court were precluded from referring questions to the Court for a preliminary ruling and immediately applying EU law in a manner consistent with the Court’s decision or case-law ...

Furthermore, although it is true that the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law necessary in order for them to decide the disputes before them, the fact remains that when there is no judicial remedy under national law against the decision of a court or tribunal of a Member State, that court or tribunal is, in principle, obliged to bring the matter before the Court of Justice under the third paragraph of Article 267 TFEU where a question relating to the interpretation of EU law is raised before it ...

The fact that the [domestic Constitutional Court] gave a ruling on the compatibility of the provisions of national law ... with the provisions of the [national] Constitution which the referring court regarded as constituting, in essence, the same regulatory parameters as [EU law] has no bearing on the obligation, laid down in Article 267 TFEU, to refer questions concerning the interpretation of EU law to the Court of Justice (C-322/16, paras 21 & 23-25, references omitted and emphases added).

ECJ new recommendations on the initiation of preliminary ruling proceedings sends clear signal to UK Supreme Court that the Miller case must be referred

The Court of Justice of the European Union (CJEU) has published today a new set of Recommendations to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings [2016] OJ C 439/1. This is a very timely document, which clarifies the circumstances under which a reference for a preliminary ruling can or must take place, as well as the basic parameters that those requests must meet in order to effectively enable the CJEU to issue preliminary rulings, including in cases requiring particularly expeditious handling.

In the context of the Brexit related litigation before the UK Supreme Court in the appeal of the High Court's Miller decision, these Recommendations are particularly timely and relevant. There has been a very intense discussion by distinguished legal scholars about the existence or not of an obligation to refer the case to the ECJ for interpretation of Article 50 TEU--and, in particular, in relation with the (ir)revocability of an Art 50(1) notice in view of Art 50(2) TEU. The positions are too wide to discuss here (see this very useful compilation of materials), and I hold the relatively minoritarian view that the UK Supreme Court is under an absolute and inexcusable obligation to request a preliminary ruling on the interpretation of Article 50 TEU.

I find additional support for my view and the underlying interpretation of the CILFIT test in para [6] of the CJEU's Recommendations, which very clearly indicates that:

Where a question is raised in the context of a case that is pending before a court or tribunal against whose decisions there is no judicial remedy under national law, that court or tribunal is nonetheless required to bring a request for a preliminary ruling before the Court (see third paragraph of Article 267 TFEU), unless there is already well-established case-law on the point or unless the correct interpretation of the rule of law in question admits of no reasonable doubt (emphasis added).

Para [3] is also relevant in its stress that:

The jurisdiction of the Court to give a preliminary ruling on the interpretation or validity of EU law is exercised exclusively on the initiative of the national courts and tribunals, whether or not the parties to the main proceedings have expressed the wish that a question be referred to the Court (emphasis added).

In my opinion, the CJEU has sent the clearest possible message to the UK Supreme Court: they expect a request for an interpretation of Article 50 TEU. And the UK Supreme Court will be well advised to do so as soon as possible, once all intervening parties have presented their arguments. Tertium non datur.

Why an appeal of the High Court Parliamentary approval Brexit judgment will bring the litigation to the cjeu?

The High Court has today issued its Judgment in the dispute about the UK Parliament's necessary approval of a Brexit notification--see R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). It has ruled that such Parliamentary approval is indeed required as a matter of UK constitutional and public law. The Government has already announced that it will appeal this decision to the UK Supreme Court (UKSC). The implications of such an appeal are important and need to be carefully considered. One such possible consequence is that the appeal (indirectly) brings the case to the docket of the  Court of Justice of the European Union (CJEU).

In my view, an appeal of the High Court's Judgment before the UKSC will indeed trigger a legal requirement under EU law for the UKSC to send a reference for a preliminary ruling to the CJEU. I have rehearsed most of my arguments on twitter earlier (see here and here) and this posts brings them together.

Basic EU Law Background

Article 267(1)(a) TFEU establishes the monopoly of interpretation of the CJEU and it indicates the Court shall have jurisdiction to give preliminary rulings concerning the interpretation of the Treaties. Article 267(2) then goes on to enable the domestic courts of the Member States to issue request preliminary rulings from the ECJ where questions of interpretation of EU law are raised before them and they consider that a decision on the question is necessary to enable them to give judgment. However, that discretion of domestic courts to request preliminary rulings from the CJEU does not apply to the courts or tribunals of a Member State against whose decisions there is no judicial remedy under national law. In that case, Article 267(3) indicates that where a question on the interpretation of EU law is raised, the highest court  shall bring the matter before the CJEU.

The uncertainties surrounding the interpretation of Art 50 TEU before the High Court

One of the extremely complex issues concerning the UK's potential withdrawal from the EU following the Brexit vote of 23 June 2016 concerns the interpretation of Article 50 TEU (on this, see here). One of the difficult sub-questions concerns the (ir)reversibility of an Art 50 TEU trigger notification. This is an essential element for an assessment of the UK's constitutional requirements for the delivery of such notification, as the High Court's Judgment makes clear.

Indeed, as a preliminary issue, in today's Judgment, the High Court has addressed the problematic interpretation of Art 50 TEU. Unanimously, the High Court has indicated that "Important matters in respect of Article 50 were common ground between the parties: (1) a notice under Article 50(2) cannot be withdrawn once it is given ..." para [10]; and that "Once a notice is given, it will inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union and from the relevant Treaties at the end of the two year period, subject only to agreement on an extension of time ..." para [11].

There are two ways of interpreting the High Court's dealing with the argument on irreversibility of an Art 50 notification. First, that the High Court takes this approach in para [11] because it is common ground between the parties ex para [10]--what I would call the UK procedural approach. Second, that the High Court has of its own interpreted an Art 50 notification to be irreversible ex para [11], which happens to align with the common position of the parties in para [10]--what I would call the EU substantive interpretation approach.

The UK procedural approach is saved by the High Court's discretion under Art 267(2) TFEU to consider that the interpretation of Art 50 TEU is actually not necessary for it to adjudicate the matter at hand because this is not part of the controversy between the parties. However, the EU substantive interpretation does trigger some issues because, having recognised the interpretation of Art 50 TEU as an important aspect for the adjudication of the case, the High Court should not have taken it upon itself to interpret it and should rather have requested a preliminary ruling from the CJEU. However, unless under a very expansive interpretation of the principle of sincere or loyal cooperation in Art 4(3) TEU, this does not amount to a breach of EU law.

The uncertainties surrounding the interpretation of Art 50 TEU before the UK Supreme Court

Now, in case of an appeal of the High Court's decision before the UKSC, in my opinion, the referral to the CJEU is legally unavoidable (I will not deal for now with arguments of judicial politics or pragmatic views on the UKSC's likely course of action). Even if the parties do not challenge or even raise to the UKSC's consideration the matter of the (ir)reversibility of and Article 50 notification, it is a logical given that the UKSC needs to take a stance (even if implicit) on this point in order to be able to rule on the case. If it quashes the High Court's decision, it needs to clarify the points of law which the High Court would have gotten wrong--one of which concerns the irrevocability of an Art 50 notification. if it upholds the High Court's decision, it is (implicitly) accepting the assumption that an Art 50 notification is irrevocable. Either way, the UKSC cannot escape a substantial (implicit) consideration of the interpretation of Article 50.

In my view, this engages the UKSC's obligation to request a preliminary ruling from the CJEU under Article 267(3) TFEU and not doing so triggers a risk of infringement of EU law by the UK due to the acts (or omission, in this case) of its highest court.

Semi-Advanced EU Law Background

The UKSC's obligation to request a preliminary reference from the CJEU is controlled by the so-called CILFIT test, which establishes that "a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of [EU] law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the [EU] provision in question has already been interpreted by the Court or that the correct application of [EU] law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of [EU] law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the [EU]" (283/81, EU:C:1982:335, para 21).

What does this mean for the UKSC in the Brexit litigation in case of appeal?

In short, my understanding of the CILFIT test is that a highest court of a Member State (the UKSC) must request a preliminary ruling on the interpretation of the Treaties to the CJEU and has no discretion not to do so unless: (a) the question is (objectively) irrelevant for the adjudication of the case, or (b) the provision has already been interpreted by the CJEU, or (c) there is no scope for reasonable doubt in the interpretation of the provision. None of these apply in the specific case of the Article 50 litigation.

First, it is inconceivable to me to argue that the interpretation of Art 50 and the (ir)revocability of a notice under it is irrelevant for the adjudication of this case. A different issue would be whether the UKSC could pragmatically sidestep the need to engage in that interpretation, either by presuming its content (the EU substantive interpretation approach mentioned above), or by insisting on the fact that it is common ground to the parties to the litigation and, therefore, the issue of the (ir)revocability of the notification is not (formally, explicitly) raised before it (the UK procedural approach.

However, in my opinion, neither of these avoidance strategies would meet the basic requirements of good faith in the interpretation of the CILFIT test, coupled with Article 4(3) TEU, which requires the domestic court to assess the need to request a preliminary ruling "in the light of the specific characteristics of [EU] law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the [EU]". The interpretation of Article 50 TEU is, to put it simply, the most relevant EU constitutional law issue since the OMT litigation and one of the top, if not the top, EU constitutional law issue since the entry into force of the Lisbon Treaty. Engaging in semantics in the analysis of the first prong of the CILFIT test against this background (ie, stretching the narrow interpretation "irrelevant") seems to me logically and legally unacceptable.

Second, it is plain that Art 50 has not been interpret by the CJEU yet. And, thirdly, it is also plain that there is scope (massive scope, a gaping hole) for reasonable doubt in the interpretation of Article 50 TEU. Thus, the so-called acte claire doctrine (ie the counterbalance of the CILFIT test) simply does not apply here.

Overall, in my opinion, the UKSC has an absolute and inexcusable obligation to request a preliminary ruling on the interpretation of Article 50 TEU from the CJEU the moment the appeal against the High Court's Judgment (eventually) reaches its docket. Otherwise, the UKSC risks triggering an infringement of EU law and eventually creating liability in damages under the Kobler / Traghetti del Mediterraneo strand of case law on State liability. Again, I am not dealing with the arguments on the likelihood of an actual infringement case brought forward by the European Commission, or the CJEU's eventual decision. I am, for now, simply stressing the state of EU law, which the UKSC would be well advised to bear in mind and uphold, unless it aims to contribute to the deterioration of the rule of law in the UK and the EU (which is something that keeps me awake at night).

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.

A PLEA FOR A MORE NUANCED APPROACH THAN AG BOT'S to the INTERACTION BETWEEN ART 267 TFEU AND FUNDAMENTAL RIGHTS TO FAIR TRIAL AND PRESUMPTION OF INNOCENCE (C-614/14)

In his Opinion of 23 February 2016 in case Ognyanov (C-614/14, EU:C:2016:111, not available in English), Advocate General Bot addressed the question whether, regarding the content of a reference for a preliminary ruling, compliance with Articles 267 TFEU and 94 of the Rules of Procedure of the Court of Justice of the European Union (CJEU) by a domestic criminal court may impair the exercise of the rights guaranteed in Articles 47 (right to a fair trial) and 48 (presumption of innocence) of the Charter of Fundamental Rights of the European Union (CFR). AG Bot answers in the negative. He considers that a national rule that presumes that referring a case to the CJEU for a preliminary ruling is a breach of judicial impartiality, and therefore requires the referring criminal court to inhibit itself (and face disciplinary sanctions) upon having referred the case to the CJEU is contrary to EU law. In my view, AG Bot raises important points on the need to keep an effective level of judicial cooperation between the domestic courts and the CJEU, also when criminal matters are concerned. However, some parts of the reasoning in the Opinion are too formal and too heavy-handed in favour of the CJEU's monopoly of interpretation of EU law and the effectiveness of the preliminary reference mechanism, at the expense of a substantive assessment of the proper respect to the presumption of innocence guaranteed by Art 48 CFR. In my view, a more nuanced position would be preferable, even if it requires a revision of the rules of procedure of the CJEU in relation to preliminary references in criminal law matters.

The case at hand concerns 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 has 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 particular, the dispute is about the 'EU law-compliant' interpretation of Art 29(2) of the Bulgarian Code of Criminal Procedure (BCCP), which  establishes that 'A judge ... may not be part of the court composition due to some other circumstances on account of which he/she may be considered biased or interested, directly or indirectly, in the outcome of the case'. In stylised terms, the argument is that, by laying out the relevant facts and the rules applicable thereto, the national court expresses a 'preliminary view' on the substance of the case. By doing so before the case is at deliberation phase, and then refraining from inhibiting itself from further decisions in the case, the criminal court would be breaching its duty of impartiality (which is a fundamental guarantee of the right to a fair trial) and the accused's right to the presumption of innocence.

In case this interpretation was accepted, this would create a significant issue of coordination of EU law and domestic criminal law in the Member States--which may well be an unresolved issue in the deepening of judicial cooperation in criminal matters in the EU, since there are no special rules for the purposes of a reference for a preliminary ruling in criminal law matters under Art 94 of the rules of procedure of the CJEU (as acknowledge by AG Bot in para 19). Thus, the case is important beyond the technical point concerning the current rules applicable to the content of references for a preliminary ruling and their effects in criminal law cases, and could easily be pointing out to the need to create such special rules.

In addressing the question referred by the Bulgarian court, AG Bot indeed acknowledges that the referral mechanism 'can create difficulties in situations requiring delicate handling by domestic courts of all jurisdiction and rank' (para 6, own translation from Spanish). However, he rejects that the referral of a case for a preliminary ruling can be interpreted as requiring the inhibition of the referring criminal court (much less the imposition of disciplinary sanctions). His arguments are based both on the need to facilitate judicial cooperation, and on the specific rules applicable to the preliminary reference procedure (para 7). More specifically, AG Bot submits to the CJEU that such a requirement for the inhibition of the referring criminal court would neutralise the effectiveness of Art 267 TFEU and would prevent (Bulgarian) criminal courts from referring cases for a preliminary ruling to the CJEU, which would encroach upon the prerogatives of the Court under Art 267 TFEU--most notably, its monopoly on the interpretation of EU law, which is an issue that comes up again and again in the area of enforcement of fundamental rights under EU law, as became clear in relation to Opinion 2/2013 on the accession of the EU to the ECHR (EU:C:2014:2454; see comments here, here and here).

AG Bot's point of departure is encapsulated in his consideration that 'case law and doctrine have sufficiently stressed that preliminary references are the cornerstone of the Union's judicial system, which exercise concerns the national courts' (para 36, own translation from Spanish). He further relies on Opinion 2/2013, where the CJEU stressed that 'by setting up a dialogue between one court and another, ... between the Court of Justice and the courts and tribunals of the Member States, [the preliminary ruling procedure] has the object of securing uniform interpretation of EU law ... thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties' (para 176). Moreover, he stresses that the proper exercise of the possibility to refer cases to the CJEU for a preliminary ruling is an integral part of the right to a fair trial, as recognised by the European Court of Human Rights (ECtHR) in Dhabbi v Italy (No. 17120/09) (para 38 of AG Bot's Opinion).

All the ensuing analysis concerning the content of the factual and legal requirements of Art 267 TFEU and Art 94 of the rules of procedure (paras 41-72) rests fundamentally on the importance of the exposition of facts and the explanation of the applicable domestic law that the domestic court needs to provide the CJEU for the purposes of enabling the Court to provide a ruling on the proper interpretation of EU law as it relates to the relevant domestic rules. AG Bot stresses that there is no reason to apply different requirements in criminal matters as compared with civil or administrative law cases (para 66, although he offers no further elaboration or support for this position); and that, if anything, the imposition of higher thresholds of precision and motivation in criminal cases would be justified by the impact that the CJEU's ruling can have on the accused's freedom (para 68).

AG Bot proceeds to consider the arguments regarding the lack of impartiality derived from the 'preliminary view' expressed by the criminal court in the referral (paras 73-87). Remarkably, he stresses that '[i]t is clear from settled case law of the European Court of Human Rights that the mere fact that a judge adopts resolutions before the process can not justify by itself any reproaches regarding his impartiality. What should be assessed is the extent of the measures which have been adopted ... Consequently, although a preliminary question before the Court is a court decision, it is not least true that stating, in that context, the circumstances of fact and legal issues inherent to the case constitutes only a mere statement by the national court, which, furthermore, does not to carry out any legal characterisation' (para 83, references omitted, own translation from Spanish, emphasis added). AG Bot supports this argument with his view that, in the specific case, there is no reason to believe that the referring court is biased or partial. This reasoning is, however, problematic because it tries to address a substantive requirement (ie assessment of the extent of the measures) with a formal justification (that, formally, the description of the legal rules applicable to the case by the domestic court does not necessarily imply a definite legal characterisation of the facts of the case).

Moreover, when it comes to the arguments on a potential breach of the presumption of innocence (paras 88-104), the Opinion seems to get into a muddy road. It starts off by acknowledging that the adoption of any preliminary view on the guiltiness of the accused would infringe the right to the presumption of innocence (para 89) and that, consequently, the key element in an analysis of compliance with Art 48 CFR would be to determine whether, in the referral for a preliminary ruling, the domestic criminal court has indicated that it considers the accused guilty, without guilt being duly proven. In my view, this is indeed the proper framework for the analysis. However, AG Bot proceeds to stress that, in the specific circumstances of the case, the accused cannot benefit from the presumption of innocence because he had already been convicted (para 91).

He also indicates that '[i]n any case, we must not forget that the request for a preliminary ruling by a national court is only intended to obtain a correct interpretation of EU law--whereas determining, on the basis of this interpretation, if the accused is to be found innocent or guilty of the facts, is a task that can only result from the unique and personal appreciation of that [national] court' (para 92, own translation from Spanish). Then, he proceeds once more to arguments on the neutralisation or deactivation of the preliminary reference mechanism should domestic courts be forced to inhibit themselves (and face disciplinary sanctions) in case they referred cases to the CJEU (which is circular and returns to the initial points). AG concludes on this point that 'there is no doubt whatsoever that European Union law, and in particular Articles 267 TFEU and 94 of the Rules of Procedure, precludes national legislation ... which, if maintained, could very seriously affect the preliminary ruling mechanism and, with it, the cooperation established between the Court and national courts, and threaten the primacy of EU law' (para 103, own translation from Spanish).

I find this line of reasoning exceedingly formal because it creates an absolute separation between a view on the need of asking for the interpretation of specific legal provisions and the domestic court's position on the need or likelihood to apply that law to the case. Granted, not every instance in which a request is made necessarily indicates that the referring court has reached a decision on whether the rules will be applicable (as this may, in fact, be affected by the outcome of the CJEU's interpretative exercise). However, in my view, it cannot automatically be ruled out that by its nature the content of a reference for a preliminary ruling is inapt to contain an indication of bias by the referring court, or a breach of the presumption of innocence of the accused. Where that was apparent, and in order to properly protect the rights of the individuals affected by the procedure under the CFR, the CJEU shall engage in a substantive assessment to determine whether Art 48 CFR was at risk and, where warranted, include adequate safeguards when deciding on the preliminary ruling--such as, in specific instances, requiring the referring court to inhibit itself in favour of a different court.

Granted, the main difficulty is that there is no procedural avenue for this as Art 94 of the rules of procedure stands--which in my view seems to be more than a good reason to revisit the assumption that the same rules apply for civil/administrative and criminal references for a preliminary ruling (see para 66 of AG Bot's Opinion).

Beyond these issues, I find it troubling that AG Bot submits to the CJEU that it also needs to rule that a discretionary inhibition by the referring court should also be declared contrary to EU law. Specifically, when considering 'whether EU law prevents [the referring national court] from opting, in application of the national rule under dispute, to inhibit itself because that rule ensures a higher level of protection of fundamental rights of the individuals concerned' (para 113, own translation from Spanish), AG Bot argues considers that the question is actually whether 'European Union law precludes the national court's application of a national rule that has been declared contrary to EU law [by the CJEU]?' (para 114, own translation from Spanish). Of course, AG Bot considers that the answer is that EU law indeed prevents the referring court from relying on that rule to opt for discretionary inhibition. 

However, in my view, given that the domestic rule at stake is the fundamental rule for the disqualification of judges in criminal proceedings, this seems way too far fetched. In particular, because Art 29(2) BCCP establishes a general, open-ended standard to ensure judicial impartiality (see above), there seems to be no reasonable way to conclude that, even if the mere fact of having referred the case to the CJEU for a preliminary ruling does not necessarily trigger the application of Art 29(2) BCCP, its application should be completely excluded for the reasons discussed by AG Bot in his Opinion. More leeway is necessary for the referring court to exercise her own discretion and decide whether, all things considered, she is no longer in a position to make further decisions in the criminal process in an impartial way. Any other interpretation would be, in my submission, a breach not only of Article 48 CFR, but also of Article 6(1) of the European Convention on Human Rights, as it ensure the right to a 'fair and public hearing ... by an independent and impartial tribunal established by law'.

Therefore, overall, I would like to see the CJEU decide this case in a more nuanced way than AG Bot proposes. I do not hold very high hopes, though.

Strange question about obligation to refer issues for preliminary ruling to CJEU under Art 267 TFEU (C-452/14)

In its Judgment in Doc Generici, C-452/14, EU:C:2015:644, the Court of Justice of the EU (CJEU) was requested to interpret certain provisions of the EU framework for the evaluation of medicinal products by the Italian Consiglio di Stato. Beyond the technical details of the case concerning medicinal product evaluation, I find the Doc Generici case interesting because it presents a very strange question concerning the obligation to refer issues for preliminary ruling to CJEU under Art 267 TFEU.

Presented with contradictory interpretations of the relevant EU rules on medicinal product evaluation, the Consiglio di Stato decided to stay proceedings and to refer some questions to the CJEU for a preliminary ruling (C-452/14, para 27). This would seem to accord to the ordinary working of Art 267 TFEU, according to which second paragraph "any court or tribunal of a Member State [confronted with an issue regarding the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union] may, if it considers that a decision on the question is necessary to enable it to give judgment, request the [CJEU] to give a ruling thereon." 

This clause in Art 267.II TFEU is generally understood as an enabling mechanism and, as far as I am aware, there is no controversy about the possibility for domestic courts to avail themselves of the preliminary ruling mechanism--which is, in any case, subjected to a check by the CJEU, which can reject the reference on several grounds (including the fact that such interpretation is already available to the referring court by means of previous case law of the CJEU). Thus, nothing out of the ordinary seemed to take place in Doc Generici and the referral by Consiglio di Stato could hardly be interpreted as a procedural anomaly.

However, the Consiglio di Stato does not seem worried about whether it is allowed to refer the questions for preliminary ruling, but about whether it is obliged to do so. In that regard, in Doc Generici, the Consiglio di Stato asked the CJEU whether '[i]n the circumstances in the present proceedings, may or must, as held by this court [ie the Consiglio di Stato itself], the question be referred to the Court of Justice?'.

In my view, given the Consiglio di Stato's willingness to refer the questions on the substantive EU law provisions for interpretation, the further question whether it could or had to do so seems quite superficial and legally irrelevant. The controversy about the obligation to refer questions generally arises when the would-be referring court does not intend to ask the CJEU to provide a preliminary ruling, in which case the extent to which the clause in Art 267.III TFEU forces it to do so can be controversial.

Under Art 267.III TFEU, "[w]here any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court" (emphasis added). This has given raise to a significant body of case law, including the relatively recent developments as to the liability in which the Member State incurs when its highest courts fail to comply with Art 267.III TFEU. In any case, though, as mentioned, this is only controversial when there is no referral.

In Doc Generici, the question of the Consiglio di Stato on whether it was obliged to refer the questions for interpretation under Art 267.III TFEU, or whether it was simply doing so out of a discretionary measure under Art 267.II TFEU, seems to respond to some argument of the parties in the case at hand (which domestic law implications exceed my imagination), but it is irrelevant from the perspective of EU law. 

In fact, the answer given by the CJEU in paras 42-45 could not be more inane, as it simply reiterates the existing doctrine that 
In accordance with the third paragraph of Article 267 TFEU, a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the provision of EU law in question has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (see, inter alia, judgments in Cilfit and Others, 283/81, EU:C:1982:335, paragraph 21, and Boxus and Others, C-128/09 to C-131/09, C-134/09 and C-135/09, EU:C:2011:667, paragraph 31) (C-452/14, para 43).
After that reminder, the CJEU simply proceeds to stress that the Consiglio di Stato was right in considering itself obliged to refer the question because
it is clear from the explanations provided by the Consiglio di Stato that it considers that it is obliged to make a reference to the Court of Justice for a preliminary ruling. Indeed, it is of the view that the dispute in the main proceedings raises a question of interpretation of EU law which is relevant and novel and the answer to which is not so clear as to leave no scope for any reasonable doubt as to the solution (C-452/14, para 44, emphasis added).
However, this is quite empty or circular reasoning, not least because the circumstances of the case the CJEU refers to are 'internal' to the decision of the Consiglio di Stato--ie the referring court is the one that assesses whether the question is useful and is not covered by the doctrine of acte claire. Under EU law, the CJEU would only second-guess such a judgment of a would-be referring court when there is no referral, and only when the non-referring domestic court incurred in a "manifest infringement" of the applicable EU law. 

Thus, in a scenario where the domestic highest court decides to refer, the CJEU is hardly ever going to answer in a way that determines that the referral was not mandatory under 263.III TFEU, even if it eventually decides not to answer the specific questions referred for interpretation. Not least, because even if it was not mandatory, it was in any case possible, so the CJEU need not worry about how the question got to its docket--it need only be concerned when a question that had to be referred is not.

Overall, then, the issue of the obligation or mere possibility for a referral to the CJEU by the Consiglio di Stato in Doc Generici seems the result of an unnecessary domestic imbroglio concerning the effects of such a referral and, in my view, simply serves to strengthen the point that, when in (reasonable) doubt, highest domestic courts must refer questions for preliminary ruling to the CJEU. I am still curious as to the background reasons why the Consiglio di Stato felt the need to justify that it had to refer the issues to the CJEU. If any Italian reader would tell us in the comments, I would remain much obliged.

CJEU toys with the one stop shop approach and muddies the waters of State Aid analysis (C-284/12)


In its Judgment of 21 November 2013 in case C-284/12 Deutsche Lufthansa, the Court of Justice of the EU has further defined the role of domestic courts hearing State aid cases and has clarified the legal effects that result from an Article 108(2) TFEU Decision whereby the European Commission decides to open a formal investigation and expresses a preliminary opinion on the incompatibility of certain State aid measures with Article 107(1) TFEU.
 
In the case at hand, Lufthansa intended to avail itself of a Commission's Article 108(2) TFEU Decision that opened an in-depth investigation on certain types of aid received by Ryanair for its activities at Frankfurt Hahn Civil Airport (operated by FFH). Prior to the Commission's investigation, Lufthansa initiated private litigation and sought an order for the recovery of certain payments made to Ryanair and an additional order that there be no future aid for the benefit of Ryanair. The initial dismissal of Lufthansa's action was under appeal when the Commission formally decided to investigate the case.
 
After learning that the Commission had opened an in-depth investigation, Lufthansa contended that the domestic courts were barred from conducting their separate assessment under Articles 107 and 108 TFEU and were bound to follow the preliminary assessment of the Commission--which indicated that 'each of the measures in question was selective and constituted State aid within the meaning of Article 107(1) TFEU, unless it satisfied the private investor principle. As regards that principle, the Commission noted that, on the basis of the information available to it at the time of the adoption of the [Decision], the airport fees paid by Ryanair were not enough to cover the costs incurred by FFH'.
 
The German courts were not satisfied and asked the Commission for its opinion under the relevant provisions in the Notice on the enforcement of State aid law by national courts. Unsurprisingly,  the Commission supported Lufthansa and replied that the domestic court itself was not required to assess whether the measures in question could or could not be classified as State aid as it could take the Commission's Decision as a basis for drawing all the necessary inferences from the infringement of Article 108(3) TFEU. The German court was still not persuaded and made a preliminary reference.
 
In its Lufthansa Judgment, the CJEU has ruled that:
37 While the assessments carried out in the decision to initiate the formal examination procedure are indeed preliminary in nature, that does not mean that the decision lacks legal effects.

38 It must be pointed out in that regard that, if national courts were able to hold that a measure does not constitute aid within the meaning of Article 107(1) TFEU and, therefore, not to suspend its implementation, even though the Commission had just stated in its decision to initiate the formal examination procedure that that measure was capable of presenting aid elements, the effectiveness of Article 108(3) TFEU would be frustrated.

39 On the one hand, if the preliminary assessment in the decision to initiate the formal examination procedure is that the measure at issue constitutes aid and that assessment is subsequently confirmed in the final decision of the Commission, the national courts would have failed to observe their obligation under Article 108(3) TFEU 
[...]
to suspend the implementation of any aid proposal until the adoption of the Commission’s decision on the compatibility of that proposal with the internal market.

40 On the other hand, even if in its final decision the Commission were to conclude that there were no aid elements, the preventive aim of the State aid control system established by the TFEU 
[...]
requires that, following the doubt raised in the decision to initiate the formal examination procedure as to the aid character of that measure and its compatibility with the internal market, its implementation should be deferred until that doubt is resolved by the Commission’s final decision.

41 It is also important to note that the application of the European Union rules on State aid is based on an obligation of sincere cooperation between the national courts, on the one hand, and the Commission and the Courts of the European Union, on the other, in the context of which each acts on the basis of the role assigned to it by the Treaty. In the context of that cooperation, national courts must take all the necessary measures, whether general or specific, to ensure fulfilment of the obligations under European Union law and refrain from those which may jeopardise the attainment of the objectives of the Treaty, as follows from Article 4(3) TEU. Therefore, national courts must, in particular, refrain from taking decisions which conflict with a decision of the Commission, even if it is provisional.

42 Consequently, where the Commission has initiated the formal examination procedure with regard to a measure which is being implemented, national courts are required to adopt all the necessary measures with a view to drawing the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure
(C-284/12, paras 37-42, emphasis added).
So far, the solution is clear cut and seems to impose a very clear preference for Commission (preliminary) assessment over any other assessment independently carried out by domestic courts. This would strengthen the one stop shop approach derived from the Commission's monopoly over the enforcement of Article 107 and 108 [except for the direct effect of 108(3) TFEU] and would strengthen the current centralised enforcement system.
 
However, in the two followning paragraphs, the CJEU muddies the waters by further ellaborating and indicating that:
43 To that end [ie to draw the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure] national courts may decide to suspend the implementation of the measure in question and order the recovery of payments already made. They may also decide to order provisional measures in order to safeguard both the interests of the parties concerned and the effectiveness of the Commission’s decision to initiate the formal examination procedure.

44 Where they entertain doubts as to whether the measure at issue constitutes State aid within the meaning of Article 107(1) TFEU or as to the validity or interpretation of the decision to initiate the formal examination procedure, national courts may seek clarification from the Commission and, in accordance with the second and third paragraphs of Article 267 TFEU, as interpreted by the Court, they may or must refer a question to the Court for a preliminary ruling (see, to that effect, as regards requests for preliminary rulings on the validity of State aid, Case C-222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I-289, paragraphs 72 to 74)
(C-284/12, paras 43-44, emphasis added).
In my view, this reopens the question and destroys the one stop shop approach (or, in more clear terms, the approach in para 44 basically deactivates all the reasoning in paras 39-40 and introduces a level of uncertainty and procedural complication that seems unnecessary). And I wonder where are the concerns about the effectiveness of Article 108(3) TFEU that had previously been alluded to in para 38, particularly if the preliminary reference is made before any interim measures are adopted (and what would be the use for it otherwise?). 
 
As I already indicated when I criticised the Advocate General's Opinion in this case (here), this can create significant complications by way of parallel procedures (before the Commission, the national courts and the CJEU) in one and the same case. Such duplication of procedures can only result in a waste of resources and, most likely, in legal uncertainty and potentially contradictory outcomes.
 
Leaving the door open for a reference for a preliminary ruling (of validity) against a provisional assessment of the European Commission is excessively deferential towards domestic courts and can have significant undesirable effects. This is not satisfactory and it starts to be evident that there is a need for the adoption of a more streamlined procedural system where (in the absence of a decentralised enforcement system for State aid, which may well be superior), national courts would have to suspend their powers of interpretation of the concept of aid and limit their role to the adoption of effective interim measures when the Commission is still completing its investigation on a given measure.

In my view, this could be easily achieved by simply applying Article 4(3) of the Treaty on European Union, since the need for sincere cooperation in this type of matters seems out of the question (an argument the CJEU has used differently in Lufthansa). Nonetheless, it is now clear that the CJEU is not willing to go very far in striking a more sustainable balance between the sphere of jurisdiction/competence of domestic courts and ensuring a manageable procedural system in State aid law. In my view, domestic courts should resort to the possibilities outlined in para 44 of the Lufthansa Judgment only in very extreme cases (if ever).

AG (dangerously) stresses possibility to indirectly challenge State Aid decisions via Art 267 TFEU

In his Opinion of 27 June 2013 in case C-284/12 Deutsche Lufthansa, Advocate General Mengozzi stressed that (provisional) Decisions of the European Commission in State Aid cases are open to (indirect) challenges via a reference for a preliminary ruling on their validity under Article 267 of the Treaty on the Functioning of the European Union. 

In the case at hand, the complainant before the Commission seeked interim measures against the beneficiary of a measure that the Commission qualified as State aid in its decision to open a formal investigation. The domestic court competent in the matter remained unconvinced by the Commission's preliminary assessment and seeked ways not to adopt interim measures on the basis of such an assessment. It referred the following question to the CJEU:
Does the uncontested decision of the Commission to initiate the formal investigation procedure under Article 108 paragraph 3, second sentence, result in the national court seised of a procedure which aims to recover payments already made and the prohibition of future payments being bound by the legal assessment expressed by the Commission in that decision on the state aid character of the measure in question?
In paragraph 42 of his Opinion, AG Mengozzi indicates that:
under the combined effect of Article 108 paragraph 3, last sentence, and the qualification as a new aid of the controverted measure [in the provisional decision of the Commission], the opening of the formal investigation procedure generates the obligation of the Member State concerned to suspend its execution from the date of adoption of the decision to open the investigation and until a final decision is reached, regardless of the objective nature of the controverted measure [...]. National courts will therefore be obliged to take all necessary measures to ensure compliance with this requirement and to eliminate the consequences of any breach thereof, regardless of any previous assessment of the measure under Article 107, paragraph 1. In case national courts harbour doubts about whether the requirements to qualify the measure as aid are met in the given case, which justify the initiation of the formal investigation procedure, national courts may refer a question of validity under Article 267 TFEU, first paragraph, letter b) (Opinion in C-284/12 at para 42, own translation from Spanish).
This comes to stress the (procedural) difficulties derived from the joint competence of domestic courts and the Commission to interpret and apply the notion of aid under Article 107(1) TFEU--as stressed in paragraph 10 of the Commission Notice on the enforcement of State Aid law by national courts, which also metions the possibility for a preliminary reference in paragraph 90, but (impliedly) in a context where no concurrent Commission investigation is in place--and can create significant complications by way of parallel procedures (before the Commission, the national courts and the CJEU) in one and the same case. Such duplication of procedures can only result in a waste of resources and, most likely, in legal uncertainty and potentially contradictory outcomes.

In my view, leaving the door open for a reference for a preliminary ruling (of validity) against a provisional assessment of the European Commission is excessively deferential towards domestic courts and can have significant undesirable effects. This is not satisfactory and would justify the adoption of a more streamlined procedural system whereby national courts would have to suspend their powers of interpretation of the concept of aid and limit their role to the adoption of effective interim measures when the Commission is still completing its investigation on a given measure. 

In my view, this could be easily achieved by simply applying Article 4(3) of the Treaty on European Union, since the need for sincere cooperation in this type of matters seems out of the question. It will be interesting to see how far the CJEU is willing to go in the balance between the sphere of jurisdiction/competence of domestic courts and ensuring a mangeable procedural system in State aid law.