The Present State of National
Procedural Autonomy in EU Law
Pr. Eleftheria NEFRAMI
Université du Luxembourg
eleftheria.neframi@uni.lu
• I. The Legal Framework
• II. Procedural autonomy and principles of equivalence and
effectiveness
• III. Procedural autonomy and effective judicial protection
• IV. Procedural autonomy and preliminary reference procedure
• I. The Legal Framework
I. The Legal Framework
• Article 5 (2) TEU: principle of conferral
• Article 291 TFEU: principle of indirect administration
• Article 4 (3) TEU: principle of sincere cooperation (principle of
loyalty)
• The Simmenthal mandate of the national judge
• Article 19 (1) TEU: judicial system of the EU and remedial obligation
of the Member States
• Article 47 fo the Charter of Fundamental Rights: Right to en
effective remedy
• Article 267 TFEU: preliminary reference procedure
Article 5 TEU: Principle of conferral
• 1. The limits of Union competences are governed by the
principle of conferral. The use of Union competences is
governed by the principles of subsidiarity and proportionality.
• 2. Under the principle of conferral, the Union shall act only
Article 291 TFEU: Principle of indirect administration
• 1. Member States shall adopt all measures of national law
necessary to implement legally binding Union acts.
• -Member States competence to implement EU law.
• Consequence:
– Principle of procedural autonomy of the Member States
Case 33-76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland
C-3/16, Aquino, 15 March 2017
Principle of loyalty
Article 4 (3) TEU
• Pursuant to the principle of sincere cooperation, the
Union and the Member States shall, in full mutual
respect, assist each other in carrying out tasks which
flow from the Treaties.
• The Member States shall take any appropriate
measure, general or particular, to ensure fulfilment of
the obligations arising out of the Treaties or resulting
from the acts of the institutions of the Union.
• ECJ, 9.3.1978, Simmenthal, Case 35/76
• “Any provision of a national legal system and any legislative,
administrative or judicial practice which might impair the
effectiveness of Community law by withholding from the national
court having jurisdiction to apply such law the power to do
everything necessary at the moment of its application to set aside
national legal provisions which might prevent Community rules from
having full force and effect are incompatible with those requirements
which are the very essence of Community law“.
Procedural autonomy limited by the principles of equivalence and
effectiveness
ECJ, Rewe, 33/76, 16.12.1976, ECJ, Comet, 45/76, 16.12.1976
C-3/16, Aquino, 15 March 2017
48 It should be recalled here that, according to settled case-law of the Court, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (judgment of 17 March 2016, Bensada
Benallal, C 161/15, EU:C:2016:175, paragraph 24 and the case-law cited).‑
Article 19 (1), second subparagraph, TEU
Member States shall provide remedies
sufficient to ensure effective legal
protection in the fields covered by
European Union law
Article 47 Charter of fundamental rights of
the EU
• Right to an effective remedy and to a fair trial
• Everyone whose rights and freedoms guaranteed by the law of the
Union are violated has the right to an effective remedy before a
tribunal in compliance with the conditions laid down in this Article.
CJEU, 28 April 2015, T & L Sugars Ltd, C 456/13 P
‑
•
45 However, judicial review of compliance with the European Union legal
order is ensured, as can be seen from Article 19(1) TEU, not only by the
Court of Justice but also by the courts and tribunals of the Member States.
The FEU Treaty has, by Articles 263 TFEU and 277 TFEU, on the one
hand, and Article 267 TFEU, on the other, established a complete system of
legal remedies and procedures designed to ensure judicial review of the
legality of acts of the institutions, and has entrusted such review to the
European Union judicature (judgments in Inuit Tapiriit Kanatami and Others
v Parliament and Council, C 583/11 P, EU:C:2013:625, paragraphs 90 and
‑
92, and Telefónica v Commission, C 274/12 P, EU:C:2013:852,
‑
paragraph 57).
• “The national courts and tribunals, in collaboration with
the Court of Justice, fulfil a duty entrusted to them both
of ensuring that in the interpretation and application of
the Treaties the law is observed”
• Opinion 1/09, Creation of a unified patent litigation
system, 8.03.2011, para 69
• -Procedural autonomy and principles of equivalence and
effectiveness
• Effectiveness and effective judicial protection?
• -Procedural autonomy and effective judicial protection
• Effective judicial protection and preliminary reference?
• -Procedural autonomy and preliminary reference
procedure
• II. Procedural autonomy and principles of
equivalence and effectiveness
• Principle of effectiveness:
– Balance with national procedural autonomy
– Negative definition of the principle of effectiveness
• Principle of effective judicial protection (fundamental
right):
ECJ, Factortame, 1990, C-213/89
• 21 It must be added that the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute
governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.
• 22 That interpretation is reinforced by the system established by Article 177 of the • EEC Treaty whose effectiveness would be impaired if a national court, having • stayed proceedings pending the reply by the Court of Justice to the question • referred to it for a preliminary ruling, were not able to grant interim relief until it • delivered its judgment following the reply given by the Court of Justice.
• 23 Consequently, the reply to the question raised should be that Community law must • be interpreted as meaning that a national court which, in a case before it
• Scope of the principle of equivalence: the objective is not the extension of the most protective rule but the absence of discrimination between national and EU law similar situations
• ECJ, Dragoș Constantin Târșia, C-69/14, 6. 10. 2015
• 35 It follows that the principle of equivalence does not preclude a situation where there is no possibility for a national court to revise a final decision of a court or tribunal made in the course of civil proceedings when that decision is found to be incompatible with an interpretation of EU law upheld by the Court after the date on which that decision became final, even though such a possibility does exist as regards final decisions of a court or tribunal incompatible with EU law made in the course of administrative proceedings
• ECJ, Câmpean, C-200/14, 30.06.2016 , paras 55-56
• the Court of Justice extended the principle of equivalence to the equal consideration of claims based on an infringement of national law and on an infringement of European law. It is no longer about the similarity of remedial actions when the claims are raised; now it is about the similarity of claims to be qualified as pleas based on public policy
• Case C-161/15, Abdelhafid Bensada Benallalicy
• The Court of Justice qualified the right to be heard according EU law as public policy rule, which, as a consequence, must benefit from the same procedural treatment for national law pleas based on public policy, provided that the equivalent national rule (the right to be heard according to national law) constitutes a public policy issue.
• it is for the national court to determine whether the right to be heard, as guaranteed by national law, satisfies the conditions required by national law for it to be classified as a matter of public policy
ECJ, C-93/12, Agrokonsulting, 27.06.2013
•
European Union law, in particular the principles of equivalence and
effectiveness and Article 47 of the Charter of Fundamental Rights of the
European Union, does not preclude a national rule of jurisdiction such as
that in Article 133(1) of the Code of Administrative Procedure
(Administrativnoprotsesualen kodeks), which results in conferring on a
single court all disputes relating to decisions of a national authority
responsible for the payment of agricultural support under the European
Union common agricultural policy, provided that actions intended to ensure
the safeguarding of the rights which individuals derive from European Union
law are not conducted in less advantageous conditions than those provided
for in respect of actions intended to protect the rights derived from any aid
schemes for farmers established under national law, and that jurisdiction
rule does not cause individuals procedural problems in terms, inter alia, of
the duration of the proceedings, such as to render the exercise of the rights
derived from European Union law excessively difficult, which it is for the
referring court to ascertain
C-505/14, Klausner Holz Niedersachsen GmbH, 11 November 2015
• 45 In those circumstances, it must be concluded that a national rule which prevents the national court from drawing all the consequences of a breach of the third sentence of Article 108(3) TFEU because of a decision of a national court, which is
res judicata, given in a dispute which does not have the same subject-matter and
which did not concern the State aid characteristics of the contracts at issue must be regarded as being incompatible with the principle of effectiveness. A significant obstacle to the effective application of EU law and, in particular, a principle as fundamental as that of the control of State aid cannot be justified either by the principle of res judicata or by the principle of legal certainty (see, by analogy, judgments in Fallimento Olimpiclub, EU:C:2009:506, paragraph 31, and Ferreira da
Silva e Britto, C 160/14, EU:C:2015:565, paragraph 59).‑
C-105/14, Ivo Taricco, 8 September 2015
• 58 In the light of the foregoing, the answer to the third question is that a national rule in relation to limitation periods for criminal offences such as that laid down by the national provisions at issue — which provided, at the material time in the main proceedings, that the interruption of criminal proceedings concerning serious fraud in relation to VAT had the effect of extending the limitation period by only a quarter of its initial duration — is liable to have an adverse effect on the fulfilment of the Member States’ obligations under Article 325(1) and (2) TFEU if that national rule prevents the imposition of effective and dissuasive penalties in a significant number of cases of serious fraud affecting the financial interests of the European Union, or provides for longer limitation periods in respect of cases of fraud affecting the financial interests of the Member State concerned than in respect of those affecting the financial interests of the European Union, which it is for the national court to verify. The national court must give full effect to Article 325(1) and (2) TFEU, if need be by disapplying the provisions of national law the effect of which would be to prevent the Member State concerned from fulfilling its obligations under Article 325(1) and (2) TFEU.
• Case C-441/14, Dansk Industri (DI ), 19. 04.2016
Case C-441/14, Dansk Industri (DI ), 19. 04.2016
•
31 It follows that, in applying national law, national courts called upon to
interpret that law are required to consider the whole body of rules of law and
to apply methods of interpretation that are recognised by those rules in
order to interpret it, so far as possible, in the light of the wording and the
purpose of the directive concerned in order to achieve the result sought by
the directive and consequently comply with the third paragraph of
Article 288 TFEU (see, inter alia, judgments in Pfeiffer and Others, C 397/01
‑
to C 403/01, EU:C:2004:584, paragraphs 113 and 114,
‑
and Kücükdeveci,
C 555/07, EU:C:2010:21, paragraph 48).
‑
•
32 It is true that the Court has stated that this principle of interpreting
national law in conformity with EU law has certain limits. Thus, the obligation
for a national court to refer to EU law when interpreting and applying the
relevant rules of domestic law is limited by general principles of law and
cannot serve as the basis for an interpretation of national law contra legem .
•
34 Accordingly, the national court cannot validly claim in the main
ECJ, Câmpean, C-200/14, 30.06.2016
•
40 Moreover, it must be recalled that the Court has already held that, in
accordance with the principle of sincere cooperation, a Member State may
not adopt provisions making repayment of a tax held to be contrary to EU
law by a judgment of the Court, or whose incompatibility with EU law is
apparent from such a judgment, subject to conditions relating specifically to
that tax which are less favourable than those which would otherwise be
applied to that repayment of the tax (see, to that effect, judgments of
10 September 2002 in Prisco and CASER, C 216/99, C 222/99,
‑
‑
EU:C:2002:472, paragraph 77 and the case-law cited, and 2 October 2003
in Weber’s Wine World and Others, C 147/01, EU:C:2003:533,
‑
paragraph 87).
C-14/16, Euro Park Service, 8 March 2017
• 40 Quant au principe d’effectivité, le respect de l’exigence de sécurité juridique requiert que les modalités procédurales mettant en œuvre la directive 90/434, et, plus particulièrement, son article 11, paragraphe 1, sous a), soient suffisamment précises, claires et prévisibles pour permettre aux contribuables de connaître avec exactitude leurs droits afin d’assurer qu’ils seront en mesure de bénéficier des avantages fiscaux en vertu de ladite directive et de s’en prévaloir, le cas échéant, devant les juridictions nationales.
• 45 En effet, pour que le contribuable puisse apprécier avec exactitude l’étendue des droits et des obligations qu’il tire de la directive 90/434 et prendre ses dispositions en conséquence (…), une décision de l’administration fiscale refusant à ce contribuable le bénéficie d’un avantage fiscal au titre de cette directive doit toujours être motivée afin que ce dernier puisse vérifier le bien-fondé des motifs qui ont conduit cette administration à ne pas lui accorder l’avantage prévu par ladite directive et, le cas échéant, faire valoir son droit devant les juridictions compétentes. • 46 Dans ces conditions, il apparaît que les modalités procédurales en cause au
principal méconnaissent l’exigence de sécurité juridique et, partant, que cette législation ne respecte pas le principe d’effectivité.
• Alassini, C-317/08,
• “ those requirements of equivalence and effectiveness embody the general obligation on the Member States to ensure judicial protection of an individual’s rights under EU law” (para 49).
• Effective judicial protection (Art 47 of the Charter) legitimates the procedural autonomy limits?
• Difference in reasoning:
– Effectiveness: negative definition, balance, rule of reason
– Effective judicial protection: rule of law, national rules as limitations of a fundamental right, proportionality
• III. Procedural autonomy and effective
judicial protection
C 562/12
‑
, Liivimaa, 17.09.2014
• - Are the rules of procedure of a monitoring committee jointly set up
by two Member States, such as the programme manual adopted by
the [Seirekomitee], which provide that “The decisions of the
Monitoring Committee are not appealable at any place of
jurisdiction” (Chapter 6.6.4 of the programme manual) compatible
with Article 63(2) of Council Regulation No 1083/2006 in conjunction
with Article 47 of the [Charter]?
C-205/15, Toma, 30 June 2016
• 54 Therefore, it must be held that legislation such as that at issue in the main proceedings, in so far as it merely exempts, a priori, legal persons governed by public law from the payment of certain court costs in procedures relating to the enforcement of judicial decisions concerning the repayment of taxes levied in breach of EU law, while subjecting, in principle, the applications submitted by natural and legal persons governed by private law in such procedures to the payment of those costs, does not place those persons in a clearly less advantageous position compared with their opponents and therefore does not call into question the fairness of that procedure.
• 55 Such an interpretation of Article 47 of the Charter is supported by the case-law of the European Court of Human Rights relating to Article 6(1) of the ECHR. Legislation such as that at issue in the main proceedings must be distinguished from legislation considered by the European Court of Human Rights to be incompatible with the requirements of Article 6(1) of the ECHR in the case which gave rise to the judgment of the European Court of Human Rights of 6 April 2006 in
Stankiewicz v. Poland (CE:ECHR:2006:0406JUD004691799).
• 56 The legislation at issue in that case not only exempted the public prosecutor’s department from the court costs — a situation which could, according to the European Court of Human Rights, be justified by the protection of public order — but also had the effect of requiring the successful private party to pay all its procedural costs, thus placing it in an unduly unfavourable situation in relation to its opponent (ECtHR, 6 April 2006, Stankiewicz v. Poland,
CE:ECHR:2006:0406JUD004691799, § 68 and 69). Legislation such as that at issue in the present case in the main proceedings does not have such an effect.
Secondary EU procedural law:
-Competition Damages Directive 2014/104
Aims to remove practical obstacles to compensation for all victims
of infringements of EU Competition law.
-Procurement Remedies Directives 89/665 and 92/13, revised
by Directive 2007/66
Member States must ensure that the review procedures are
available at least to any person having, or having had, an interest
in obtaining a particular contract and who has been, or risks
being, harmed by an alleged infringement
-Unfair terms directive in consumer law 93/13
C 61/14 ,
‑
Orizzonte Salute, 6.10.2015
• 48 As regards the principle of effectiveness, the Court has already held that it implies a requirement of judicial protection, guaranteed by Article 47 of the Charter, that is binding on the national court (see, to that effect, judgment in Sánchez Morcillo
and Abril García, C 169/14, EU:C:2014:2099, paragraph 35 and the case-law cited).‑ • 49 Accordingly, Article 1 of Directive 89/665 must be interpreted in the light of the
fundamental rights set out in the Charter, in particular the right to an effective remedy before a court or tribunal, laid down in Article 47 thereof.
• 50 It is therefore necessary to examine whether legislation such as that at issue in the main proceedings may be considered to be consistent with the principles of equivalence and effectiveness and consistent with the effectiveness of Directive 89/665.
• 77 In the event of objections being raised by a party concerned, it is for the national court to examine the subject-matter of the actions submitted by an individual or the pleas raised by that individual within the same proceedings. If the national court finds that their subject-matter is not in fact separate or does not amount to a significant enlargement of the subject-matter of the dispute that is already pending, it is required to relieve that individual of the obligation to pay cumulative court fees.
C 439/14 and C 488/14
‑
‑
, Star Storage, 15.09.2016
• 43 However, according to settled case-law, the detailed procedural rules governing the
remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities, must not compromise the effectiveness of Directives 89/665 and 92/13, the objective of which is to ensure that decisions taken unlawfully by contracting authorities may be reviewed effectively and as rapidly as possible
• 46 Accordingly, when they set out detailed procedural rules for legal actions intended to
ensure the protection of rights conferred by Directives 89/665 and 92/13 on candidates and tenderers harmed by the decisions of contracting authorities, the Member States must ensure compliance with the right to an effective remedy and to a fair hearing, enshrined in Article 47 of the Charter.
• 63 Having regard to the foregoing considerations, the answer to the questions referred is that
C-49/14 , Finanmadrid , 18.02.2016
• 55 Having regard to all the foregoing considerations, the answer to the first and second questions referred is that Directive 93/13 precludes national legislation, such as that at issue in the main proceedings, which does not permit the court ruling on the enforcement of an order for payment to assess of its own motion whether a term in a contract concluded between a seller or supplier and a consumer is unfair, when the authority hearing the application for an order for payment does not have the power to make such an assessment.
• Opinion of the Advocate General SZPUNAR in Fiananmadrid
• 91. As the Commission correctly states, Article 47 of the Charter does not, in general, prevent a non-judicial body from taking certain decisions falling within the exercise of judicial functions, provided that those decisions may be subject to an a posteriori review by a court. Furthermore, the right to a court laid down in Article 47 does not, in itself, include the requirement for a court to conduct a review of its own motion in order to safeguard the rights that parties derive from EU law.
• 92. The requirement for a court to conduct a review of its own motion is a special feature of proceedings characterised by an imbalance between the parties. In the present case, this requirement can only flow from the need to ensure that consumers are protected, as provided for in Article 6 of Directive 93/13.
C-429/15, Danqua, 20 October 2016
• 47 That conclusion, moreover, cannot be called into question by the need to ensure the effectiveness of return procedures, since the time limit at issue in the main proceedings is not directly linked to the return procedure, but to the rejection of the application for refugee status.
• 48 Accordingly, it must be held that a national procedural rule, such as that at issue in the main proceedings, is capable of compromising the ability of applicants for subsidiary protection actually to avail themselves of the rights conferred on them by Directive 2004/83.
• 49 In the light of all the foregoing considerations, the answer to the questions referred is that the principle of effectiveness must be interpreted as precluding a national procedural rule, such as that at issue in the main proceedings, which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority, that an applicant whose asylum application has been rejected may make an application for subsidiary protection.
• Effective judicial protection through access to the national judge (challenging national implementing measures) and the preliminary reference for validity
• C-583/11 P, Inuit Tapiriit Kanatami, 3.10.2013
• 90 First, it must be recalled that judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, by the Court of Justice and the courts and tribunals of the Member States (see, to that effect, Opinion of the Court 1/09 [2011] ECR I-1137, paragraph 66).
• 91 Further, the European Union is a union based on the rule of law in which the acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, the general principles of law and fundamental rights (see, to that effect, Case C 550/09 ‑ E and F [2010] ECR I 6213, paragraph 44). ‑
• IV. Procedural autonomy and preliminary
reference procedure
C-583/11 P, Inuit Tapiriit Kanatami, 3.10.2013
• 99 As regards the role of the national courts and tribunals, referred to in paragraph 90 of this judgment, it must be recalled that the national courts and tribunals, in collaboration with the Court of Justice, fulfil a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed (Opinion of the Court 1/09, paragraph 69).
• 100 It is therefore for the Member States to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection (Unión de Pequeños Agricultores v Council, paragraph 41, and Commission v Jégo-Quéré, paragraph 31).
• 101 That obligation on the Member States was reaffirmed by the second subparagraph of Article 19(1) TEU, which states that Member States ‘shall provide remedies sufficient to ensure effective judicial protection in the fields covered by European Union law’.
• 102 In that regard, in the absence of European Union rules governing the matter, it is for the domestic legal system of each Member State to designate, with due observance of the requirements stemming from paragraphs 100 and 101 of this judgment and the principles of effectiveness and equivalence, the courts and tribunals with jurisdiction and to lay down the detailed procedural rules governing actions brought to safeguard rights which individuals derive from European Union law (see, to that effect, inter alia, Case C-268/06
Impact [2008] ECR I-2483, paragraph 44 and the case-law cited; Case C-118/08 Transportes Urbanos y Servicios Generales [2010] ECR I-635, paragraph 31; and Joined
Cases C-317/08 to C 320/08 ‑ Alassini and Others [2010] ECR I-2213, paragraphs 47 and
C-583/11 P, Inuit Tapiriit Kanatami, 3.10.2013
• 103 As regards the remedies which Member States must provide, while the FEU Treaty has made it possible in a number of instances for natural and legal persons to bring a direct action, where appropriate, before the Courts of the European Union, neither the FEU Treaty nor Article 19 TEU intended to create new remedies before the national courts to ensure the observance of European Union law other than those already laid down by national law (Case C 432/05 ‑ Unibet [2007] ECR I 2271, ‑ paragraph 40)
• 104 The position would be otherwise only if the structure of the domestic legal system concerned were such that there was no remedy making it possible, even indirectly, to ensure respect for the rights which individuals derive from European Union law, or again if the sole means of access to a court was available to parties who were compelled to act unlawfully (see, to that effect, Unibet, paragraphs 41 and 64 and the case-law cited).
CJEU, 28 April 2015, T & L Sugars Ltd, C 456/13 P
‑
• 49 As regards persons who do not fulfil the requirements of the fourth paragraph of Article 263 TFEU for bringing an action before the Courts of the European Union, it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection (Inuit
Tapiriit Kanatami and Others v Parliament and Council, C 583/11 P, EU:C:2013:625, ‑ paragraph 100 and the case-law cited).
• 50 That obligation on the Member States was reaffirmed by the second subparagraph of Article 19(1) TEU, which states that Member States ‘shall provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law’ (see judgment in Inuit Tapiriit Kanatami and Others v Parliament and Council, C 583/11 P, EU:C:2013:625, paragraph 101). That obligation also follows from ‑ Article 47 of the Charter as regards measures taken by the Member States to implement Union law within the meaning of Article 51(1) of the Charter.
Opinion 2/13, Accession to the ECHR, 18.12.2013
• 176. In particular, the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law (see, to that effect, judgment in van Gend & Loos, EU:C:1963:1, p. 12), 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 (see, to that effect, Opinion 1/09, EU:C:2011:123, paragraphs 67 and 83).
Opinion 1/09, Creation of a unified patent litigation system, 8.03.2011
• 66. As is evident from Article 19(1) TEU, the guardians of that legal order and the judicial system of the European Union are the Court of Justice and the courts and tribunals of the Member States.
• 68. It should also be observed that the Member States are obliged, by reason, inter alia, of the principle of sincere cooperation, set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for European Union law (see, to that effect, Case C 298/96 Oelmühle and Schmidt Söhne [1998] ECR I 4767, ‑ ‑ paragraph 23). Further, pursuant to the second subparagraph of Article 4(3) TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union. In that context, it is for the national courts and tribunals and for the Court of Justice to ensure the full application of European Union law in all Member States and to ensure judicial protection of an individual’s rights under that law (see, to that effect, Case C 432/05 Unibet [2007] ECR I 2271, paragraph 38 and case-law ‑ ‑ cited).
CJEU 9 September 2015, T. A. van Dijk, C-72/14, C-197/14
• . The third paragraph of Article 267 TFEU must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law, such as the referring court, is not required to make a reference to the Court of Justice of the European Union on the sole ground that a lower national court, in a case similar to the one before it and involving the same legal issue, has referred a question to the Court for a preliminary ruling; nor is it required to wait until an answer to that question has been given.
C-689/13, Puligienica Facility Esco SpA (PFE), 5.04.2016
• 33 Both that discretion and that obligation are an inherent part of the system of cooperation between the national courts and the Court of Justice established by Article 267 TFEU and of the functions of the court responsible for the application of EU law entrusted by that provision to the national courts.
• 34 As a consequence, where a national court before which a case is pending considers that a question concerning the interpretation or validity of EU law has arisen in that case, it has the discretion, or is under an obligation, to request a preliminary ruling from the Court of Justice, and national rules imposed by legislation or case-law cannot interfere with that discretion or that obligation.
• 35 In the present case, a provision of national law cannot prevent a chamber of a court of final instance faced with a question concerning the interpretation of Directive 89/665 from referring the matter to the Court of Justice for a preliminary ruling
•
Effectiveness of Art 267 TFEU and national standards of judicial protection
•
C-112/13 11, A v B, September 2014
•
C-614/14, Ognyanov, 5 July 2016
•
By its first question, the referring court seeks, in essence, to ascertain
whether Article 267 TFEU and Article 94 of the Rules of Procedure, read in
the light of the second paragraph of Article 47 and Article 48(1) of the
Charter, must be interpreted as precluding a national rule being interpreted
in such a way that it obliges 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.
C-614/14, Ognyanov
15 First, it must be recalled that the preliminary ruling procedure provided for in Article 267 TFEU constitutes the keystone of the European Union judicial system, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, 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 (see Opinion 2/13 of 18 December 2014, EU:C:2014:2454, paragraph 176 and the case-law cited).
16 In accordance with settled case-law, the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts and tribunals, by means of which the former provides the latter with interpretation of such EU law as is necessary for them to give judgment in cases upon which they are called to adjudicate.
C-614/14, Ognyanov
• 28 In that regard, it must be recalled that, in accordance with settled case-law, Article 267 TFEU requires the referring court to give full effect to the interpretation of EU law provided by the Court (see, to that effect, judgment of 5 April 2016, PFE, C 689/13, EU:C:2016:199, paragraphs 38 to 40 and the case-law cited).‑
• 32 In that regard, it must be observed at the outset that the assumption that underlies that question, that the national rule at issue in the main proceedings provides an individual with enhanced protection of his right to a fair trial, within the meaning of the second paragraph of Article 47 of the Charter, cannot be accepted. As was stated in paragraph 23 of this judgment, the fact that a national court sets out, in the request for a preliminary ruling, in accordance with what is required by Article 267 TFEU and Article 94 of the Rules of Procedure, the factual and legal context of the main proceedings is not, in itself, a breach of that fundamental right. 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.
• The preliminary reference procedure is considered by the European Court of Human Rights as an element of the fair trial obligation (Art 6 of the Convention)
• ECtHR, Dhahbi v Italy, 8.04.2014 • Schipani v Italy, 21.07.2015
State liability?
• C-6/90 et C-9/90, Francovich, 19.11.1991 • C-225/01, Köbler, 30.9.2003
• C-173/03, Traghetti del Mediterraneo, 13.6.2006 • C-379/10, Commission v/ Italy, 24.11.2011
C-160/14, João Filipe Ferreira da Silva e Brito and Others,
9.09.2015
• 40 It is true that the national court or tribunal has sole responsibility for determining whether the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and for deciding, as a result, to refrain from referring to the Court a question concerning the interpretation of EU law which has been raised before it (see judgment in Intermodal Transports, C 495/03, EU:C:2005:552, paragraph 37 and the case-‑ law cited).
• 50 It must be recalled that where the conditions for a State to incur liability are satisfied, a matter which it is for the national courts to determine, it is on the basis of the rules of national law concerning liability that the State must make reparation for the consequences of the loss or damage caused, provided that the conditions laid down by national law in respect of reparation of loss or damage are not less favourable than those relating to similar domestic claims (principle of equivalence) and are not so framed as to make it, in practice, impossible or excessively difficult to obtain reparation (principle of effectiveness) (see judgment in Fuß, C 429/09, EU:C:2010:717, paragraph 62 and the case-law cited).‑
