In its judgment in Consorzio Italian Management of 6 October 2021 (C-561/19), the European Court of Justice (ECJ) clarifies the obligation for national supreme courts to refer to the ECJ. The ruling comprehensively sets out the conditions under which national courts of last instance may refuse submitting questions for a preliminary ruling on the interpretation of EU law to the ECJ. It is a clear reminder that national supreme courts may only refuse to refer question under strict conditions.
National supreme courts have a duty to refer preliminary questions to the ECJ where an answer to the question is necessary to solve the case before them. That necessity criterion leaves a lot of room and is regularly used by national supreme courts to refuse a request by parties to refer questions to the ECJ, often on less than robust grounds. This is at times frustrating for parties and their lawyers, for which a referral to the ECJ might be part of their litigation strategy. Even though a reference to the ECJ is not a legal remedy for parties but a tool of judicial cooperation between courts, the European Court of Human Rights has recognised that a violation by national supreme courts of the duty to refer amounts to a violation of Article 6 of the European Convention on Human rights (ECHR).
To limit the margin of discretion of supreme courts on this point, the ECJ has developed several criteria following which a national supreme court is relieved of its duty to refer. This is the case where the correct application of EU law is so obvious as to leave no scope for any reasonable doubt, where the answer can be deduced from the case law, or where an answer to the question is not relevant for the solution of the case.
These criteria have come in for criticism as being too strict or impractical. Also, national supreme courts have refused to refer questions for reasons other than those set out in the case law of the ECJ. In recent years, moreover, it has been suggested that the ECJ has given more latitude to national supreme courts on this point.
In its judgment in Consorzio Italian Management, the ECJ reaffirms its case law on the duty to refer of national supreme courts. The criteria developed in its case law (relevance, similar or identical questions, obvious nature of correct application) are the only valid reasons for a national supreme court to be relieved of its duty to refer. A refusal to refer based on any other reason amounts to a breach of EU law and of Article 6 ECHR.
For these reasons, the ECJ also answered the specific question of the referring Italian court in the negative. The fact that a party only raised the possibility to refer questions to the ECJ at a very late stage in the proceedings, after a first reference by the same court, does not by itself relieve a supreme court from its duty to refer questions.
This is only different where the refusal to refer is based on grounds of inadmissibility specific to the procedure before that court or tribunal. For example, where national law prescribes that the subject matter of a dispute is determined by the pleas put forward at the point in time at which the action was brought, a national supreme court may refuse to refer questions which have been raised in relation to pleas altering the subject matter of the dispute in a reply or a rejoinder. Conversely, where the question raised in a reply or a rejoinder does not go beyond the subject matter of the dispute in such an instance, a national supreme court cannot refuse to refer for the mere reason that the possibility of a reference to the ECJ was not raised earlier.
This point is of particular importance in relation to proceedings before the Belgian Council of State, which, in a judgment of 5 November 2020, substantiated its refusal to refer by pointing out, apart from other reasons, that the applicant party, in its reply to the defence, had considerably reformulated the questions it had suggested in its application, which left the defending party without an opportunity to respond to them. Such reasoning is not in line with the judgment in Consorzio Italian Management.
The judgment in Consorzio Italian Management is a clear message to national supreme courts not to decide lightly that there is no reason to refer questions. It is also a powerful tool for lawyers seeking to incorporate the possibility of a preliminary reference in their litigation strategy.
Please contact Pierre de Bandt or Raluca Gherghinaru for further information about this case and/or for general legal advice relating to EU litigation.