General Framework
Although the ECtHR’s ruling is not surprising and is in line with its previous case law, this decision illustrates the role of the ECtHR as a guardian of the right to a fair trial in cases where a Member State court decides not to refer questions to the CJEU without providing reasons for denying such request, reaffirming that the parties have a part to play in its interpretation of the right to a fair trial.
Georgiou v. Greece is an important ruling for domestic courts but only if they happen to be of last instance. Since the preliminary reference is only mandatory for these courts, in a worst-case scenario, taxpayers may have to litigate through all national instances up to the CJEU, in extensive litigation, which may reduce the practical value of taxpayers’ EU legal rights throughout the entire internal market, particularly in what concerns rights which have not been recognized by the CJEU before.
Although this article does not intend to imply that the national courts fail to suitably make references to the CJEU or implement EU law, we believe that the elimination of the currently existing distinction between lower national courts and courts of last instance in what refers to their obligation to make a reference to the CJEU whenever a point of EU law is raised (unless it constitutes an acte clair as defined by the Court’s case-law) could prove valuable in increasing the reliability of EU law as well as in achieving a greater protection of the rights of the European Union’s citizens and effective functioning of the internal market.
Georgiou v. Greece case
The case involves facts related to the sovereign debt crisis. Andreas Georgiou, the Applicant is a Greek citizen who served as president of the Hellenic Statistical Authority (ELSTAT) from 2010 to 2015. In 2010, the Applicant transmitted data concerning the Greek deficit for the year 2009 to Eurostat, not having presented the data for approval to the seven-member administrative board of ELSTAT in advance. Although the Applicant claimed that his actions complied with the principle of professional independence in the European Statistics Code of Practice, he was found guilty of breach of duty. In this case, the Applicant requested that a preliminary ruling should be sought from the CJEU and the last instance court did not refer the request made by the Applicant in its judgment, not having examined any relevant criteria nor providing any justification for denying such request. The Applicant appealed to the Court of Cassation, arguing that the rejection of his request to refer a legal question to the Court of Justice of the European Union violated his right to a fair trial under Article 6 (1) ECHR.
The ECtHR ruled for the Applicant, in line with its previous case law and criteria established therein, that a court of last instance must provide a justification for not requesting a preliminary ruling from the CJEU if a party in the case requests it.
According to the ECtHR, Article 6 (1) ECHR imposes an obligation to give reasons on the domestic courts, in the light of the applicable law, for decisions by which such courts refuse to refer a question for a preliminary ruling.
The ECtHR held that domestic courts against whose decisions there is no judicial remedy are required to justify a refusal to refer a question to the CJEU for a preliminary ruling on the interpretation of EU law, considering the exceptions provided for by the case-law of the CJEU, referring to Article 267 of the TFEU. Such justification includes the obligation to state the reasons why the court considers that the question is not relevant, that the provision of EU law in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious that it leaves no room for reasonable doubt. Since in Georgiou’s ruling, the national court’s judgment included none of these references, the ECtHR concluded that there had been a violation of Article 6 (1) ECHR, reinforcing the ECtHR case law on these matters.
The resolution of this case implied an interlocked application of the preliminary reference procedure and the right of a fair trial, a matter that is differently perceived by the ECtHR and the CJEU. Whilst the ECtHR focuses on the rights of the applicant in the preliminary ruling mechanism, the CJEU tends to elude them, focusing on the uniform interpretation of EU law in all Member States instead.
Even though Georgiou v. Greece does not concern tax matters it works as a reminder to reflect on the barriers that one EU taxpayer might face in case it intends to bring a case before the CJEU – a reflection which is particularly relevant when a taxpayer believes to have its EU law right was breached, without it resulting clearly from the CJEU jurisprudence or any legislative instruments.
The preliminary ruling mechanism and the need for its modification
The reference for a preliminary ruling, provided for in Article 19 (3) (b) TEU and Article 267 (3) TFEU is a fundamental mechanism of EU law. However, it must be recalled that currently, considering the wording of such a rule, a taxpayer must be prepared to litigate through all national instances until the last one to try to reach the CJEU, even if, in its understanding, it is clear from the start that the question will ultimately have to be settled by the CJEU.
This happens because, in accordance with the third paragraph of Article 267 TFEU, only national courts against whose decisions there is no judicial remedy under national law have an obligation to make a reference to the Court, while lower instance courts only have the power to do so[1].
As results from the recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2019/C 380/01), the CJEU considers that all national courts should make a reference where a point is uncertain or of general interest.
However, the CJEU understands that the obligation to make a reference laid down in Article 267 is intended in particular to prevent a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States[2], being based on cooperation and established with a view to ensuring the proper application and uniform interpretation of EU law in all the Member States, between national courts, in their capacity as courts responsible for the application of EU law, and the Court[3]. In this context, the CJEU has pointed out on several occasions that only a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by EU law. From this understanding it follows that only Courts adjudicating at last instance have the duty of ensuring the uniform interpretation of rules of law at the national level[4].
From our viewpoint, considering that all national courts should be active guardians of the EU law and ensure its effective and homogenous application, seeking to avoid the proliferation of divergent interpretations by the various courts of the Member States, said distinction between lower instance courts and courts of last instance should not be maintained and Article 267 of the TFEU should be modified to foresee that the obligation for requesting a preliminary ruling covers all national courts.
Nowadays, as mentioned above, although all national courts should make a reference whenever a point of EU law is raised unless it constitutes an acte clair as defined by the Court’s case-law, such reference is entirely at the discretion of the lower instance court and the taxpayers have no right to claim the realization of such request.
By widening the obligation for a preliminary reference to all courts, the proposed modification would reinforce the combined nature of the EU’s judicial system in which all national courts, acting as forums of the European Union, play a decisive role in ensuring that the EU law is respected. After all, it should be recalled that it has been through this dialogue between the courts and the answers that the CJEU has given to the questions referred for a preliminary ruling that some of the most structural principles of EU law have emerged (as is the case of the direct application of EU lawand of the primacy of EU law over national law).
Furthermore, the proposed modification to article 267 of the TFEU would be in line with Article 19 of the TEU which obliges Member States to ensure effective judicial protection in areas covered by EU law, embodying the value of the rule of law stated in Article 2 of the TEU. As a matter of fact, if the objective is to ensure the abovementioned proper application and uniform interpretation of EU law in all the Member States, the proposed amendment would be a step forward in the development and evolution of the EU law given that such a modification could increase the national courts’ recourse to EU law, forestalling the risk of its incorrect interpretation, as opposed to focusing solely on national legislation.
Such a modification could also have a positive impact on the reliance of taxpayers on EU law, considering that it would become significantly less burdensome for taxpayers to enforce their EU law rights, compared to the current costs and time of extensive litigation up to the last instance court that such taxpayers may have to consider in current times.
Although it might be argued that if the extent of case-law which concerns evolving EU law is relocated from the national courts to the CJEU this might imply an increase of the cases pending before the CJEU, we believe that such matter could be addressed by increasing the number of judges in the CJEU or by means of specialization of the existing chambers.
Concluding remarks
Overall, broadening the obligation for requesting a preliminary ruling to cover all national courts – with the consequent issuance of a higher number of decisions by the main guardian of the EU law, applicable in all of the Member States – could turn this mechanism into a more effective tool.
This would not only enable a uniform interpretation of EU law in all Member States but also help to ensure the right to a fair trial as laid down in Article 6 (1) ECHR, thus avoiding (or, at least reducing) the chances that a party supports the costs and time incurred with several years of litigation until it reaches the last instance court (facing the risk of its request to seek a preliminary ruling being disregarded by the only court which was legally obliged to do so, as happened in Georgiou’s case).
Considering all the above, it is our view that putting an end to the existing dichotomy between the power and the obligation of different national courts for requesting a preliminary reference by extending such an obligation to all the national courts could outweigh the disadvantages of this solution, especially if viewed from a holistic point of view that considers the European Union member states’ judicial system as a whole.
Dalila Mendes Leal
April 2023
[1] Cilfit and Others, C-283/81, paragraph 6
[2] Intermodal Transports, C‑495/03, paragraph 29
[3] X and van Dijk, C‑72/14 and C‑197/14, paragraph 54
[4] Köbler, C‑224/01, paragraph 34, and Traghetti del Mediterraneo, C‑173/03, paragraph 31