Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the ECJ (Grand Chamber) of 6 October 2021,  Case C-561/19, Consorzio Italian Management and Catania Multiservizi,  EU:C:2021:799

Reference for a preliminary ruling – Article 267 TFEU – Scope of the obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Exceptions to that obligation – Criteria – Question on the interpretation of EU law raised by the parties to the national proceedings after the Court has given a preliminary ruling in those proceedings – Failure to state the reasons justifying the need for an answer to the questions referred for a preliminary ruling – Partial inadmissibility of the request for a preliminary ruling

Facts

In proceedings between Consorzio Italian Management and Catania Multiservizi SpA, the successful tenderers for a public contract for cleaning services for the national railway infrastructure, and Rete Ferroviaria Italiana SpA, the Consiglio di Stato (Council of State, Italy) made a reference to the ECJ for a preliminary ruling. The ECJ delivered its judgment in 19 April 2018, Consorzio Italian Management and Catania Multiservizi (C‑152/17, EU:C:2018:264). However, the parties to those proceedings asked the Consiglio di Stato to refer other questions for a preliminary ruling.

It is against this background that, in 2019, the Consiglio di Stato made a new reference to the ECJ for a preliminary ruling seeking, inter alia, to ascertain whether a national court or tribunal against whose decisions there is no judicial remedy under national law is relieved of the obligation, laid down in Article 267 (3) TFEU, to bring before the ECJ a question concerning the interpretation of EU law where that question is put to it by a party at an advanced stage of the proceedings, after the case has been set down for judgment for the first time or where a reference for a preliminary ruling has already been made in that case.

Findings of the ECJ

In its judgment, the ECJ reasserts the criteria identified in its settled case-law, following the judgment of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, according to which a national court or tribunal against whose decisions there is no judicial remedy under national law cannot be relieved of that obligation unless it has established that i) the question raised is irrelevant to enable them to give judgment, ii) that the EU law provision in question has already been interpreted by the ECJ or iii) that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.

With regard to the second situation, the ECJ held that the authority of an interpretation already provided under Article 267 TFEU “does not preclude the national court or tribunal to which it is addressed from taking the view that it is necessary to make a further reference to the Court before giving judgment in the main proceedings. A national court or tribunal of last instance must make such a reference when it encounters difficulties in understanding the scope of the judgment of the Court.”

With regard to the third situation referred to above, the ECJ clarified that, before concluding that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt, “the national court or tribunal of last instance must be convinced that the matter would be equally obvious to the other courts or tribunals of last instance of the Member States and to the Court of Justice.” The ECJ also recalled that that assessment must be made on the basis of the characteristic features of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the EU.

In any case, national courts or tribunals of last instance must take upon themselves, independently and with all the requisite attention, the responsibility for determining whether the case before them involves one of the situations in which they may refrain from submitting to the ECJ a question concerning the interpretation of EU law which has been raised before them. If such a court or tribunal takes the view that it is relieved of that obligation, the statement of reasons for its decision must show that the matter involves one of those three situations. Therefore, Moreover, where the case before the court or tribunal of last instance involves one of those situations, it is not required to bring the matter before the ECJ, “even when the question concerning the interpretation of EU law is raised by a party to the proceedings before it.” By contrast, “the fact that that court or tribunal has already made a reference to the Court of Justice for a preliminary ruling in the same national proceedings does not affect that obligation when a question concerning the interpretation of EU law the answer to which is necessary for the resolution of the dispute remains after the Court’s decision.”

Nevertheless, a court or tribunal of last instance may refrain from referring a question to the ECJ for a preliminary ruling on grounds of inadmissibility specific to the procedure before that court or tribunal. Where the pleas in law raised before such a court or tribunal must be declared inadmissible, a request for a preliminary ruling cannot be regarded as necessary and relevant for that court or tribunal to be able to give judgment. The applicable national procedural rules must however observe the principles of equivalence and effectiveness.

Judgment of the ECJ (Grand Chamber) of 23 November 2021, Case C‑564/19, IS (Illegality of the order for reference), EU:C:2021:949

Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2010/64/EU – Article 5 – Quality of the interpretation and translation – Directive 2012/13/EU – Right to information in criminal proceedings – Article 4(5) and Article 6(1) – Right to information about the accusation – Right to interpretation and translation – Directive 2016/343/EU – Right to an effective remedy and to a fair trial – Article 48(2) of the Charter of Fundamental Rights of the European Union – Article 267 TFEU – Second subparagraph of Article 19(1) TEU – Admissibility – Appeal in the interests of the law against a decision ordering a reference for a preliminary ruling – Disciplinary proceedings – Power of the higher court to declare the request for a preliminary ruling unlawful

Facts

A judge of the Pesti Központi Kerületi Bíróság (Central District Court, Pest, Hungary) is seized of criminal proceedings brought against a Swedish national. At the first interview with the investigative authority, the accused, who does not speak Hungarian and was assisted by a Swedish-language interpreter, was informed of the suspicions against him. However, there is no information as to how the interpreter was selected, how that interpreter’s competence was verified, or whether the interpreter and the accused understood each other. Indeed, Hungary does not have an official register of translators and interpreters and Hungarian law does not specify who may be appointed in criminal proceedings as a translator or interpreter, nor according to what criteria. Consequently, according to the referring judge, neither the lawyer nor the court is in a position to verify the quality of the interpretation. In those circumstances, the referring judge decided to refer to the ECJ questions regarding the interpretation of Directive 2012/13/EU of the European Parliament and of the Council, of 22 May 2012, on the right to information in criminal proceedings (OJ 2012 L 142, p. 1), and Directive 2010/64/EU of the European Parliament and of the Council, of 20 October 2010, on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1), and whether it follows from EU law that, if Hungarian law is not compatible with those directives, a national court may not continue the criminal proceedings in absentia.

However, the Hungarian Prosecutor General brought an appeal, in the interests of the law, before the Kúria (Supreme Court), directed against this request for a preliminary ruling. The Kúria held that this request for a preliminary ruling was unlawful on the ground, in essence, that the questions referred were not relevant for the resolution of the dispute in the main proceedings. The decision of the Kúria did not, however, set aside the decision containing that request nor require the referring judge to withdraw the request. Nevertheless, on the same grounds as those underlying the decision of the Kúria, disciplinary proceedings, which have in the meantime been discontinued, were brought against the referring judge. Since he was uncertain as to whether such proceedings and the decision of the Kúria are compatible with EU law, the referring judge made a supplementary request for a preliminary ruling in that regard.

Findings of the ECJ

Firstly, the ECJ held that the system of cooperation between the national courts and the ECJ, established by Article 267 TFEU, precludes a national supreme court from declaring, following an appeal in the interests of the law, that a request for a preliminary ruling submitted by a lower court is unlawful, on the ground that the questions referred are not relevant and necessary for the resolution of the dispute in the main proceedings, even when that declaration does not alter the legal effects of the order for reference. Such a review of legality is similar to the review carried out in order to determine whether a request for a preliminary ruling is admissible, for which the ECJ has exclusive jurisdiction. Furthermore, such a finding of illegality is liable, first, to weaken the authority of the answers that the ECJ will provide and, secondly, to limit the exercise of the national courts’ jurisdiction to make a reference to the ECJ for a preliminary ruling and, consequently, is liable to restrict the effective judicial protection of the rights which individuals derive from EU law.

The ECJ added that, in such circumstances, the principle of the primacy of EU law requires the lower court to disregard the decision of the supreme court declaring its request for a preliminary ruling to be unlawful. That conclusion is in no way undermined by the fact that, subsequently, the ECJ may find that the questions referred are inadmissible.

Secondly, the ECJ interpreted Article 267 TFUE as precluding disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling. Indeed, “the mere prospect of being the subject of disciplinary proceedings as a result of making such a reference, or deciding to maintain that reference after it was made, is likely to undermine the effective exercise by the national judges concerned of their discretion to make a reference to the Court and of their role as judges responsible for the application of EU law.” Moreover, “disciplinary proceedings commenced on the ground that a national judge has decided to make a reference for a preliminary ruling to the Court are liable to deter all national courts from making such references, which could jeopardise the uniform application of EU law.”

Lastly, the ECJ examined the obligations of Member States under Directive 2010/64. In that regard, the ECJ clarified that Member States must take specific measures ensuring, first, that the quality of the interpretation and translations is sufficient to enable the suspect or accused person to understand the accusation against him or her. The creation of a register of independent translators or interpreters is, in that regard, one of the means of pursuing that objective. Secondly, the measures adopted by the Member States must enable the national courts to ascertain that the interpretation was of sufficient quality, so that the fairness of the proceedings and the exercise of the rights of the defence are safeguarded. Following that verification, if a national court concludes that, either because the interpretation provided was inadequate or it is impossible to ascertain its quality, a person has not been informed, in a language which he or she understands, of the accusation against him or her, Directives 2010/64 and 2012/13, read in the light of Article 48(2) CFREU, preclude the criminal proceedings from being continued in absentia.