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2020
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EUROPEAN ARREST WARRANT AND DOUBLE CRIMINALITY: THE COURT OF JUSTICE LAYS THE FOUNDATIONS By Leandro Mancano PAGE
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THE ECTHR’S CASE LAW ON THE OBLIGATION FOR NATIONAL COURTS TO REASON THEIR REFUSALS TO REFER TO THE CJEU By Jasper Krommendijk PAGE
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EU LAW LIVE 2020 © ALL RIGHTS RESERVED
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European Arrest Warrant and Double Criminality: the Court of Justice lays the foundations 1
By Leandro Mancano
The European Arrest Warrant and InterState Cooperation in Criminal Law
The identification and interpretation of the grounds for refusal has been the main battleground
Very few measures of European Union law have had the constitutional signicance of the European Arrest Warrant Framework Decision (‘FD’). The FD has substituted a longstanding system of extradition with a mechanism of surrender based on mutual recognition and mutual trust. Among the groundbreaking changes in the method of interstate cooperation, the most signicant innovations concern: the introduction of much tighter time-limits for executing the warrant; the shift from the executive to the judiciary as the institutional actor in charge of cooperation; the abolition - for 32 crimes - of the principle of double-criminality, which requires that the offence be criminalised in both states involved in the cooperation. The change in substance has come with a change in the vocabulary as well. We speak now of ‘surrender’ rather than ‘extradition’, of ‘issuing’ and ‘executing’ rather than ‘requesting’ and ‘requested’ states, of ‘arrest warrant’ rather than ‘extradition request’.
State ‘B’ against person X, must be recognised by Member State ‘B’ automatically unless specic grounds for refusal apply. The automaticity of cooperation is – in turn – built on the principle of mutual trust: the rebuttable presumption that Member States comply with fundamental rights save in exceptional circumstances (emphasis added, see Opinion 2/13, paragraph 191). To Surrender or Not to Surrender The identication and interpretation of the grounds for refusal has been the main battleground amongst the persons subject to EAWs, national authorities and the Court of Justice of the European Union (the ‘Court of Justice’). On the one hand, Articles 3 and 4 FD set out the mandatory and optional reasons for refusing the execution of a EAW. On the other, the question has arisen as to whet-
The principle of mutual recognition, in the context of judicial cooperation, means that a decision issued by a judicial authority in Member State ‘A’ and addressed to Member
1. Dr Leandro Mancano is Lecturer in EU Law at Edinburgh Law School and UK’s deputy contact point for the European Criminal Law Academic Network.
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One of the most controversial novelties is the operation of the ‘no-double criminality’ rule
her potential breaches of fundamental rights are capable of halting recognition and surrender, even though this scenario is not explicitly featured in the FD. After some reluctance, the Court of Justice has established the conditions on which the presumption of mutual trust must be rebutted, and the EAW must not be executed, on the grounds of possible fundamental rights violations (see judgments Căldăraru and LM). If the formative years of the EAW have been characterised by a strong emphasis on automaticity and effectiveness of cooperation, as time has gone by the approach of the Court of Justice and the EU legislature has become more nuanced. Of particular interest is the attention paid by the Court to the essential requirements of validity of the EAW as laid down in the FD. In that context, the Luxembourg-based EU judges have found that surrender should be refused when the EAW was issued without an underlying national arrest warrant. Likewise, an EAW must not be executed when issued by a body that cannot be considered a judicial authority (as required by Article 6(1) EAW FD) because it lacks sufcient independence. Compliance with these fundamental – ‘existentialist’ - requirements gives esh and blood to the presumption of mutual trust and guarantees the automaticity of the system. Double Criminality and Applicable Threshold of Penalties In yet a different scenario, the Court of Justice has recently answered, for the rst time, a question on one of the most controversial novelties brought about by the EAW FD: the operation of the ‘no-double criminality’ rule. The case (X, C-717/18) concerned a rapper who was sentenced to two years of prison in Spain in 2017 (his conviction became nal in 2018) for glorication of terrorism and humiliation of the victims of terrorism (among other charges) through his lyrics. He ed to Belgium after being sentenced, and the Spanish authorities issued a EAW to have him surrendered back to Spain. Under the law applicable to the person’s actions at the time he committed them, he could be punished by a maxi-
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mum custodial sentence of two years. However, an amendment to the Spanish Criminal Code made in 2015 increased the maximum custodial sentence for that offence to three years. The general rule under Article 2(1) FD is that an EAW may be issued for the execution of a custodial sentence where the passed sentence is for at least four months. For the nodouble criminality rule to apply, Article 2(2) FD requires that the offence fall under one of the 32 crimes listed therein, and, that the offence be punishable in the issuing state by a custodial sentence or a detention order for a maximum period of at least three years. If those two requirements are not met, the general threshold laid down in Article 2(1) FD and the double criminality principle apply (see Article 2(4) FD). The referring court asked the Court of Justice whether the executing judge, in verifying that the threshold has been met, must take into account the law of the issuing Member State in the version applicable to the facts at the basis of the EAW or the law of the issuing Member State in the version in force at the date of issue of the EAW. In his Opinion, Advocate General Bobek found that the relevant penalty threshold was that set out in the applicable law at the time the offence was committed. This conclusion was based on a systemic argument, on the logic of the EAW system, as well as the need for legal certainty. The Court of Justice followed the Opinion. The Court pointed to Article 8 FD, which indicates the information that must be included in the EAW must allow the executing judge to make a decision swiftly. Among the different pieces of infor-
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mation to be set out ‘in accordance with the form contained in the Annex’ to the FD, Article 8(1)(f) FD refers specically to the penalty imposed. Similarly, section (c) of the mentioned form requires that the issuing judge include information on the ‘length of the custodial sentence or detention order imposed’. The interpretation of the Court of Justice was further corroborated by the very purpose of the EAW FD. If the relevant law was not the one applicable to the facts of the case, the executing judge could experience difculties in identifying the relevant version of that law. This might create serious issues of legal certainty and foreseeability, as well as slow down the EAW procedures considerably. As the Court put it very neatly, Article 2(2) ‘cannot be interpreted as meaning that it could permit an issuing Member State, by amending the penalties provided for in its legislation, to bring within the scope of that provision persons who, at the date of the acts constituting the offence, could have benetted from verication of the double criminality of the act’ (paragraph 39). The Court concluded that ‘the executing judicial authority is under the responsibility to examine the criterion of double criminality [under] Article 2(4)’ (paragraph 42). What’s Next? Though the outcome of the case is not particularly controversial – it is rather difcult to see how the Court of Justice could have justied a different interpretation – this was an important judgment (the Court was sitting in a Grand Chamber composition) on one of the essential aspects dening the EAW.
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Fourthly, the Court of Justice concluded that the executing judge is ‘under the responsibility’ to examine the double criminality under Article 2(4) FD. This is different from the wording of that provision, which stipulates that ‘surrender may be subject to’ double criminality. Is the Court imposing an obligation not contemplated in the FD? This is possibly, another question that is soon to be referred to the Court.
Firstly, a systemic reading of the case law shows once again that – far from being called into question – the system of EU judicial cooperation has inherent antibodies to (at least potentially) safeguard individual rights and ensure that automaticity operates in compliance with the rule of law. Secondly, the judgment reinforces the idea that rules of procedural nature are inextricably linked to substantive criminal law, with remarkable impact on the principle of legality enshrined in Article 49(1) of the EU Charter of Fundamental Rights. This connection has emerged regularly over the years, and judicial cooperation will only tangle up that relationship.
The case X (C-717/18) was an important judgment on one of the essential aspects defining European Arrest Warrants
Thirdly, and as a related point, the reasoning of the CJEU is readily translatable into the scenario of EAWs issued for the purposes of prosecution. Although the relevant provisions in the FD refer to ‘prescribed scale of penalties’ or ‘sentence which may be imposed’, the logic of the Court’s answer applies notwithstanding the slight lexical variance. Imagine surrender via an EAW were sought and obtained for conduct that – at the time it was committed – was not serious enough to meet the penalty threshold of Article 2(1) FD, so even preventing the EAW from being issued validly. Postsurrender, the prosecution would take place pursuant to either (1) the law applicable at the time of the facts, or (2) the one currently in force. Scenario (1) would amount to gaming the EAW mechanism and blatantly contradict the Court’s judgment; scenario (2) would constitute a clear violation of the principle of non-retroactivity of harsher penalties.
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The ECtHR’s case law on the obligation for national courts to reason their refusals to refer to the CJEU 1
Jasper Krommendijk
and inconsistency in the case law of the ECtHR. What is needed is a Grand Chamber judgment as well as guidance from the CJEU to expand on the exact requirements for national courts in making or not making referrals.
On 13 February 2020, the ECtHR ruled for the fourth time ever that there had been a violation of Article 6(1) ECHR in the failure of a highest national court to give proper reasons for its refusal to refer preliminary questions to the Court of Justice of the EU (CJEU) in Sano Pasteur. In 2014 and 2015, the ECtHR had already determined a breach for a similar omission of the Italian Court of Cassation in Dhahbi and Schipani, while the Lithuanian Supreme Administrative Court was given a rap on the knuckles in 2019 in Baltic Master. This time it was the French Court of Cassation that took the blame in a claim for damages for bodily harm resulting from vaccination against hepatitis B. The company, Sano Pasteur, was found liable by lower French courts and appealed to the Court of Cassation. It unsuccessfully requested that the Court of Cassation refer questions about the Product Liability Directive 85/374 and, more specically, on the obligation for the victim to prove the damage, defect and causal relationship between defect and damage. The Court of Cassation dismissed the appeal and explicitly noted that it did so without needing to make a request for a preliminary ruling.
A strict obligation to provide reasons since Ullens de Schooten… Sano Pasteur ts perfectly in a line of cases in which the ECtHR has employed a strict test. Since the ECtHR’s Ullens de Schooten judgment, which is also extensively relied upon in this case, it has been well established that Article 6(1) ECHR requires the highest national courts to give reasons for decisions not to refer a question for a preliminary ruling under Article 267 TFEU. The ECtHR has consistently held that Article 6(1) ECHR does not confer a right to have a case referred to the CJEU. Article 267 TFEU obliges courts to re-
It has been well established that Article 6(1) ECHR requires the highest national courts to give reasons for decisions not to refer a question for a preliminary ruling under Article 267 TFEU
In this Long Read for EU Law Live’s Weekend Edition No. 8, I will argue that this judgment shows once again the unpredictability
1. Jasper Krommendijk is Associate Professor of International and European Law at Radboud University, the Netherlands. He is currently working on a Veni-research project funded by the Netherlands Organization for Scientic Research (NWO): ‘It takes two to tango. The preliminary reference dance between the CJEU and national courts’ (2017-2021). In this project he examines why national courts refer and what they do with the answers of the CJEU. Parts of this Long Read have already been published as a blog on Strasbourg Observers entitled ‘Tell me more, tell me more: the obligation for national courts to reason their refusals to refer to the CJEU in Sano Pasteur’. The editors of Strasbourg Observers gave their permission to reuse these parts.
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had already been interpreted by the CJEU, or whether it was simply ignored [...]. The Court observed in this connection that the reasoning of the Court of Cassation contained no reference to the case-law of the CJEU’. In Schipani, the ECtHR did not consider it sufcient that the same Court of Cassation discussed the case law of the CJEU and thus seemingly showed that there was already an acte clair, without however expressing this in so many words and without mentioning the complainants’ request to refer.
fer a question about the interpretation or validity of EU law when ‘there is no judicial remedy under national law’. The CJEU has formulated three exceptions for the Member States’ highest courts, which are commonly referred to as the Cilt-exceptions (2). Firstly, when ‘a decision on the question is not necessary to enable it to give judgment’. Secondly, when the CJEU has ‘already dealt with the point of law in question’ (acte éclairé). Thirdly, when ‘the correct application of [EU] law may be so obvious as to leave no scope for any reasonable doubt’ (acte clair). The ECtHR determined that the duty to provide reasons implies that judges must indicate which one of the three Cilt-exceptions applies (paragraph 68).
In the most recent judgment of Sano Pasteur, the ECtHR reasoned similarly and in a rather straightforward way: there has been a very precise request to refer (paragraph 72), and the Court of Cassation only stated that it dismissed the appeal ‘sans qu’il y ait lieu de poser une question préjudicielle’ (paragraph 74) and without explicitly (or even implicitly) mentioning a Cilt-exception (paragraph 75). The outcome in Sano Pasteur seems logical, but one wonders how it ts into a line of cases in which the ECtHR has been more pragmatic.
Ullens de Schooten marked a departure from the ECtHR’s previous case law (3). Earlier, the ECtHR had applied the criterion of arbitrariness and held that a refusal of a request for such a referral might infringe the fairness of proceedings if it appeared to be arbitrary. The Strasbourg Court had never found a refusal to be arbitrary. In Dhahbi, the ECtHR determined that an implicit substantive reasoning is not enough. The Italian Court of Cassation had examined the request for a referral implicitly by looking at the merits of provisions referred to by the applicant. The ECtHR, nonetheless, held that ‘it is therefore not clear from the reasoning of the impugned judgment whether that question was considered not to be relevant or to relate to a provision which was clear or
… with some room for a pragmatic approach in other cases Since the two Italian cases of Dhahbi and Schipani, the ECtHR had been more reluctant to nd there had been a violation, at least until Baltic Master four years later. Possibly as a result of some criticism from CJEU judges (see below), the ECtHR has accepted various practices which at rst sight do not dif-
2. For a recent overview of the application of these Cilt-exceptions, see Directorate-General for Library, Research and Documentation, ‘Application of the Cilt case-law by national courts or tribunals against whose decisions there is no judicial remedy under national law’, May 2019 3. For an extensive overview, see J. Krommendijk, ‘''Open Sesame!' Improving access to the CJEU by obliging national courts to reason their refusals to refer’ (2017) 1 European Law Review 46; M. Broberg, ‘National courts of last instance failing to make a preliminary reference: the (possible) consequences owing therefrom’ (2016) 22 European Public Law 243; J. Laffranque, ‘(Just) give me a reason…’, (2018) 27 Juridica International.
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It is not uncommon that the parties draft very elaborate questions but without any merit whatsoever
had been put on the market before the date of transposition. The ECtHR rejected this argument. It did so, because it was unclear for the ECtHR whether this was indeed the reason for the Court of Cassation (paragraphs 7677).
fer substantively from the cases just discussed. In the light of a pragmatic approach in the cases discussed below, one wonders in particular why the ECtHR has been so formalistic in Sano Pasteur. This is because the rst civil division of the Court of Cassation did refer (more or less the same) questions about the Product Liability Directive on the same day as the decision complained of. This is also acknowledged in Sano Pasteur, albeit very briey (paragraphs 64 and 80). The decision to refer was made in a case with a similar set of facts, the same President (Mme Batut) and the same respondent (Sano Pasteur) (for the CJEU judgment, see here). The main difference between these cases was that Sano Pasteur was found liable by lower French courts in the case before the ECtHR, but not in the case referred to the CJEU, because of the failure to prove a causal link between a defect in the vaccine and the harm. This shows that the Court of Cassation was not unwilling to refer. Rather, it seems (4), as the French government also argued before the ECtHR, that a referral was not necessary for the resolution of the case, possibly also because the Directive did not apply rationae temporis, since the vaccine
Several Dutch courts, for example, easily got away with a relatively short statement of reasons in Chylinski. The ECtHR declared the application inadmissible without paying any attention to the fact that the various Dutch courts complained of did not deal with any CJEU judgment or Cilt, thereby ignoring its Dhahbi/ Schipani requirements. What’s more, it even considered that a preliminary ruling by the CJEU for settling the dispute would not have arrived on time. In Somorjai, the ECtHR applied an ‘arbitrariness’ standard and did not nd a breach of Article 6(1) ECHR, primarily because the applicant had not requested the Hungarian courts in a ‘self-contained and comprehensive manner’. This echoes some of the older case law of the ECtHR which is, however, not explicitly mentioned. In cases like John and Matheis the ECtHR ruled for example that
4. I must admit that this reason is not put forward in a very clear way by the Court of Cassation, as the ECtHR also noted, and my knowledge of French and the specic legal area is not sufcient enough to grasp all details
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and how they have been assessed. In Harisch, the ECtHR accepted the limited reasoning of the German Federal Court of Justice because of the extensive reasoning of a lower German judge, the Court of Appeal. The ECtHR said in its ruling in plural: ‘examining of the proceedings as a whole, the Court notes that the domestic courts provided the applicant with a detailed explanation...’. This quote shows that the ECHR does not only look at the procedure before one court, as in Baydar, but at the entire national judicial proceedings. The ECtHR has not taken such an approach in its most recent judgment in Sano Pasteur. The ECtHR did quote from and discuss the Opinion of the Advocate General (paragraphs 20 and 80), but did not see any reason to conclude differently or to adopt a more holistic perspective in line with Baydar and Harisch. It is not immediately clear why not, especially considering the preliminary reference of similar questions made on the same day in a parallel case.
there was no violation of Article 6 ECHR because the applicant had insufciently substantiated the importance of a reference for a preliminary ruling. In Sano Pasteur, the ECtHR noted that the applicant had formulated precise preliminary questions (paragraph 72). As I will argue below, this heavy reliance on the parties does not t easily with the way in which the preliminary ruling procedure has been envisaged in the EU Treaties and by the CJEU. It is not uncommon that the parties draft very elaborate questions but without any merit whatsoever. As such, this should not require a national court to provide more reasoning than it would normally do. In Repcevirág Szövetkezet , the ECtHR clearly and explicitly stated that an implicit justication for not reasoning a refusal may be sufcient even though the ECtHR did not seem to accept such a more pragmatic line in Dhahbi and Schipani. In Baydar, the ECtHR seems to go back to the pre-Ullens de Schooten case law and examines whether the refusal is 'arbitrary or otherwise manifestly unreasonable'. The ECtHR applied a more procedural test and did not require an explicit reference to one of the three Cilt-grounds. It looked at the entire procedure before the Dutch Supreme Court to assess whether the decision was arbitrary. What the ECtHR particularly valued was the fact that the case was dealt with by three judges and was preceded by a conclusion of an Advocate General to which the applicant could react in writing. With this procedural test, the ECtHR basically examined whether the Dutch Supreme Court had, in principle, properly looked at the case. It did not look at whether it is clear to the parties how the EU law aspects have been looked at
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The possibility of a summary reasoning In Sano Pasteur, the ECtHR determined that the Court of Cassation had not declared the case inadmissible and had not concluded that it was not based on serious grounds. Hence, the ECtHR suggested that a summary reasoning could not be used in such an instance (paragraphs 71 to 73). The ECtHR accepted a summary reasoning in the Dutch cases of Mothers of Srebrenica and Baydar even though the reasoning employed therein completely ignored Cilt or any other case law of the CJEU. The Dutch Supreme Court simply held in Baydar: ‘The grievances cannot lead to cassation. Based on section 81 (1) of the Judiciary (Organisation) Act, this requires no further reasoning as the grievances do not gi-
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te clair in the sense of Cilt without explicitly labelling it as such. The Lithuanian court also referred to the complainant’s request for a referral. In that sense, the Lithuanian judge provides a more substantive reasoning than the Dutch Supreme Court in Baydar.
ve rise to the need for a determination of legal issues in the interests of legal uniformity or legal development.’ One wonders how much different the reasoning of the French Court of Cassation is in comparison with the Dutch Supreme Court? What is more, the ECtHR seems to suggest that the Court would have an easier life, had it dismissed the case for not being based on serious grounds, without any further explanation. In a way, the ECtHR seems to encourage the highest national courts to provide even less reasoning given its rather easy acceptance of summary reasoning. Such an unsatisfactory result is also visible when considering the earlier mentioned case of Baltic Master in which the ECtHR found a violation. This time the ECtHR (a chamber of three judges with Pinto de Albuquerque as president) did not accept a shortened summary reasoning because there was no legal basis in Lithuanian law for such summary reasons, such as Article 81 of the Dutch Judiciary (Organisation) Act. The Lithuanian court got a slap on the wrist even though it had stated that the interpretation of EU law was clear and thus found that there was an ac-
In sum, the ECtHR’s acceptance of summary reasoning makes it very easy for the highest national courts to escape their referral obligation. It invites courts to take the easy way out in complex cases rather than to justify why a referral is not necessary. Time for a Grand Chamber judgment of the ECtHR to stop the inconsistencies Sano Pasteur is the rst level 1 judgment since the ECtHR considered an obligation for national courts to provide reasons for non-referral in Ullens de Schooten in 2014. The (registrar of the) Court does not specify the specic reason for this categorisation. It, nonetheless, seems that this was based on the clarication of the case law, as the ECtHR gives an overview of the principles in paragraphs 68-72, and does not come up with something new, and does not change its case law (importance level 1 is given to this judgment, which denotes that it of ‘high importance’ and makes ‘a signicant contribution to the development, clarication or modication of its case-law’). The question is whether Sano Pasteur truly claries the case law. As is evident from this commentary, the useful overview of principles does not camouage the fact that the case law of the ECtHR on this very issue goes in all directions and has been highly dependent upon individual judges involved. Some judges, such as Sajó and Pinto de Albuquerque, have in
The ECtHR seems to encourage the highest national courts to provide even less reasoning given its rather easy acceptance of summary reasoning
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national court has not considered the interthe past criticised the ECtHR and have propretation of EU law (yet). There might thus posed a more intensive test (which the latter still be an outstanding question of EU law. of the two subsequently employed in Baltic This is different when the reason for nonMaster), while others, such as Wojtyczek arreferral is an acte clair or acte éclairé. It is gued for a more pragmatic approach wheimportant for litigants, but also lower court reby the seriousness of the infringement is judges, to know how the highest national considered. What is more, Sano Pasteur wacourt qualies a particular legal question. rrants the more normative question as to When the matter is considered clair that whether the ECtHR case law still makes sencould be a clear discouragement for further lise in the light of the underlying rationale, natigation. These considerations are especially mely the protection of the right to a fair trial relevant from the perspective of the functioand access to a judicial remedy. The unprening of the preliminary ruling procedure and dictability calls for a clear Grand Chamber reasons of procedural economy. While relajudgment putting an end to this casuistic and ted to Article 6 uctuating case law ECHR, one wonso as to make clear The unpredictability calls for a ders whether this is how much room for clear Grand Chamber judgment still something for pragmatism there is. the ECtHR to exThe Grand Chamber putting an end to this casuistic pand on or rather sopanel of ve judges and fluctuating case law so as mething for its coununfortunately rejecto make clear how much room terpart in Luxemted a request of the bourg. applicant in Harisch for pragmatism there is for referral to the Grand Chamber in September 2019. Time for the CJEU to step in Should the Grand Chamber fundamentally change its approach? Not necessarily. The ECtHR rightfully expects the national court to make clear which Cilt-ground was the reason not to refer. That does, however, mean that it should have been more strict in Baydar and thus it should have required more from the national court in terms of reasoning, while being more pragmatic in Baltic Master or Schipani. It is important that national courts make clear which specic Cilt-ground informed their decision not to refer, as there is a difference between an acte clair or éclairé and the exception that an answer to the question is irrelevant because it is not necessary for the solution of the dispute. If the latter situation exists, it may be that the
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In addition to offering more clarity, there is every reason for Luxembourg to itself step in on the matter, even more so because it concerns an important EU procedure. An EU procedure requires an EU response There has been criticism of the ECtHR’s ‘interference’ with this EU procedure. Interestingly, the president of the ECtHR chamber that handed down Sano Pasteur, O’Leary, worked at the CJEU for 20 years until April 2015. This, however, has not prevented her from applying the strict requirements. The criticism has noted in particular that the ECtHR has turned the preliminary ruling procedure into a mechanism safeguarding the in-
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so approached the procedure from the perspective of fundamental rights and have required courts to reason their decision not to refer (7).
dividual right to a fair trial (5). By contrast, the CJEU has approached the procedure as an instrument of cooperation between courts. The CJEU determined in Cilt that Article 267 TFEU ‘does not constitute a means of redress available to the parties to a case’. It has consistently held that it is entirely a court-to-court procedure, which is ‘completely independent of any initiative by the parties’ (6). A duty for courts to provide reasons that is dependent upon (the quality of) requests of the parties to refer is thus especially questionable from the perspective of EU law, as the previous quotes show as well. It is perhaps not surprising that there has also been discontent among CJEU judges in Luxembourg. This can be derived from the fact that the ECtHR case law on this issue was one of the two topics discussed in March 2016 at a joint meeting of ECtHR and CJEU judges. The idea of ‘intrusion’ is, however, not entirely valid. Constitutional and Supreme Courts in various Member States have al-
There have been calls for the CJEU to take the matter into its own hands and make clear whether a similar obligation for national courts to provide reasons on the basis of Article 267 TFEU and Article 47 of the Charter, the right to effective judicial protection (8). So far, the CJEU has however avoided involvement in this delicate matter (9). In Aquino, the CJEU managed to circumvent questions of the Brussels Court of Appeal about this. In AFNE it seemed to arrive at a duty to provide reasons for non-referral, albeit limiting this obligation to the exceptional situation of a declaration of illegality of national law in the area of environmental law. The Dutch Supreme Court unfortunately decided not to refer questions about the obligation to provide reasons, despite the Opinion of the Advocate General.
The CJEU has approached the procedure as an instrument of cooperation between courts
The CJEU has imposed burdensome requirements on national courts There is thus need for a principled ruling from Luxembourg. This is obviously a delicate matter that the CJEU wishes to avoid in order not to upset the fragile balance with na-
5. C. Lacchi, ‘The ECtHR’s interference in the dialogue between national courts and the Court of Justice of the EU: Implications for the preliminary reference procedure’ (2015) 8 Review of European Administrative Law 95; M.P. Broberg and N. Fenger, Preliminary references to the European Court of Justice (Oxford University Press, 2014), 239.
6. M.P. Broberg, ‘Preliminary references as a right – but for whom? The extent to which preliminary reference decisions can be subject to appeal’ (2011) 36 European Law Review 276. 7. C. Lacchi, ‘Review by Constitutional Courts of the obligation of national courts of last instance to refer a preliminary question to the Court of Justice of the EU’ (2015) 16 German Law Journal 1663. 8. Krommendijk, supra n. 3. 9. Some authors have called for a further individualisation of the preliminary reference, also in the light of Art. 47 of the Charter. M. Safjan and D. Düsterhaus, ‘A Union of effective judicial protection: Addressing a multi-level challenge through the lens of art. 47 CFREU’ (2014) 33 Yearbook of European Law 1, 38.
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tional courts. Nonetheless, the CJEU has recently ruled for the rst time in an infringement procedure that France had breached Article 267(3) TFEU because the highest court (the French Conseil d'État) had failed to refer to the CJEU in Commission v France (10). In this judgment the CJEU concluded relatively quickly and in only ten paragraphs (of which 6 primarily reiterate the previous case law in general) that there was a breach. The CJEU hardly addressed the point that the Conseil d’État had previously referred questions but did not want to go to Luxembourg again, possibly also because this can be burdensome for the parties (11). The CJEU held that the decision not to refer ‘led that court to adopt, in those judgments, a solution based on an interpretation of the provisions of Articles 49 and 63 TFEU which is at variance with that of the present judgment, which implies that the existence of reasonable doubt concerning that interpretation could not be ruled out when the Conseil d’État (Council of State) delivered its ruling’. The question is to what extent this reasoning can and will be generalised and applied in future cases. The situation that an interpretation of EU law by a national court does not correspond to a later interpretation of the CJEU obviously occurs with some regularity in practice. It remains to be seen whether the CJEU applies this approach in other cases. This judgment once again begs the question as to whether the Cilt-exceptions are not too
This is obviously a delicate matter that the CJEU wishes to avoid in order not to upset the fragile balance with national courts restrictive, as has been frequently argued in the literature (12). Leaving aside those intricate questions, the judgment shows that the CJEU has recently been willing to impose a burdensome requirement on national courts and has, so far at least, not seen any reason to alleviate the Cilt-requirements. Requiring national courts to reason their refusals to refer would as such not be such a big step in the light of the previous point. Legal and policy inspired reasons for an EU duty to provide reasons As I argued earlier, the Charter of Fundamental Rights, more specically Articles 41(2)( c), 47 and 52(3), as well as Article 19(1) TEU and the existing case law of the CJEU constitute sufcient building blocks for the CJEU to develop such a requirement (13). As the CJEU itself has also held, a statement of reasons makes it clear for the party why its arguments we-
10. A. Turmo, ‘A dialogue of unequals – The European Court of Justice reasserts national courts’ obligations under Article 267(3) TFEU’, (2019) 15 European Constitutional Law Review, 340
11. One could also wonder whether it is desirable from the perspective of the workload of the CJEU that national courts all too easily ask follow-up questions when particular aspects remain unclear or have received too little attention in the CJEU judgment. 12. A literal reading would mean that the likelihood of establishing a ‘true’ acte clair would ‘seem just as likely as encountering a unicorn’. Opinion A.G. Wahl in X. and T.A. van Dijk (C-72/14 and C-197/14), ECLI:EU:C:2015:319, para. 62; N. Fenger and M. Broberg, ‘Finding light in the darkness: On the actual application of the acte clair doctrine’ (2011) 30 Yearbook of European Law, 180. 'A reasonable reading of Cilt' is also mentioned in Association of the Councils of State and Supreme Administrative Jurisdictions of the EU and Network of the Presidents of the Supreme Judicial Courts of the EU (ACA), 'Report of the working group on the preliminary rulings procedure', www.aca-europe.eu/seminars/ 2007_DenHaag/Final_report.pdf, 10-11.
13. Krommendijk, supra n. 3.
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tion to several complaints to the ECtHR, complaints have been made to the European Commission to provoke infringement proceedings. The Commission is generally reluctant to take up this issue and has – aside from France - only done so in relation to Sweden in 2006 (17). In the recent case against France, the issue was the last of four complaints and thus seems a ‘bycatch’ but not a primary consideration.
re unsuccessful and it enables a reection on the chances of a successful appeal. It could also improve the quality of judgments and indirectly perceptions of procedural legitimacy of the judgment (14). Aside from such legal arguments, there are also more policy inspired considerations as to why such a step is needed. The most important reason is that several national courts have been reluctant to make preliminary ruling references, and have abused the Cilt-exceptions as a g leaf for not referring (15). A duty to provide reasons compels national courts to seriously consider the need to refer in specic and EU law and the case law of the CJEU more in general. In addition, aside from the infringement procedure, that has been applied only once to date and which also depends on the willingness of the Commission, there are no real remedies under EU law for individuals when national courts refuse to refer for invalid reasons. The Köbler remedy of state liability is impractical and hardly used in practice, as has been documented in the literature (16).
Conclusion In conclusion, the ECtHR provided a bit more clarity in its most recent judgment in Sano Pasteur as to the reasons that national courts should provide when they decide not to refer to the CJEU. At the same time, when viewed in the light of earlier case law, it reveals the inconsistencies and arbitrariness whereby national courts are sometimes required to provide more reasoning and at other times less. It seems to put more weight on a mere reference to Cilt than a(n implicit) substantive engagement with EU law and Cilt (18). It is to be hoped that a Grand Chamber judgment of the ECtHR will put an end to the unpredictable case law. What is more, the CJEU should on future occasions not dodge this issue, as in Aquino. It should make clear what the requirements of EU law are as to the reasoning to be employed by national courts when they decide not to refer.
Another reason why more clarity from the perspective of EU law is needed is that legal practitioners are concerned with this issue. In the Netherlands, there have been various migration and criminal lawyers who have been trying to denounce the issue of short and summary reasoning for years. In addi-
14. M. Bobek, ‘Of feasibility and silent elephants: The legitimacy of the Court of Justice through the eyes of national courts’, in M. Adams et al. (eds.), Judging Europe’s judges: the legitimacy of the European Court of Justice (Hart, 2013), 197, 203.
15. J. Krommendijk, ‘The highest Dutch courts and the preliminary ruling procedure: critically obedient interlocutors of the Court of Justice’, (2019) 25 European Law Journal 394; G. Davies, ‘Activism relocated. The self-restraint of the European Court of Justice in its national context’ (2012) 19 Journal of European Public Policy 76, 84; A. Arnull, ‘The use and abuse of art. 177 EEC’ (1989) 52 Modern Law Review, 631. 16. Z. Varga, ‘Why is the Köbler Principle Not Applied in Practice?’ (2016) 23 Maastricht Journal of European and Comparative Law 984; B. Beutler, ‘State Liability for breaches of Community law by national courts: Is the requirement of a manifest infringement of the applicable law an insurmountable obstacle?’ (2009) 46 Common Market Law Review. 17. M.P. Broberg and N. Fenger, Preliminary references to the European Court of Justice (Oxford University Press, 2014), 271; M. Taborowski, ‘Infringement proceedings and non-compliant national courts’, (2012) 49 C.M.L.R., 1906.
18. Krommendijk, supra n. 3.
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News Highlights 2-8 March 2020 Commission opens in-depth investigation concerning possible State aid for Béziers airport and Ryanair
General Court publishes new composition of Chambers and reaffirms internal organisation decisions
Monday 2 March
Monday 2 March
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The European Commission announced the launch of an in-depth investigation procedure concerning a possible infringement of EU State aid rules by operating aid granted to Béziers airport (France) and by the marketing and airport services agreements signed by Ryanair and the Béziers airport operators.
The new composition of Chambers of the General Court, as well as the assignments of Judges to Chambers, was ofcially published. The new composition will be in place from 3 February 2020 to 31 August 2022.
Commission investigates possible breach of State aid rules in French public service contracts for maritime services to Corsica Linea
CJEU: Variable interest rates of mortgage loan agreements based on an official index can be reviewed under consumer protection rules
Monday 2 March
Tuesday 3 March
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The European Commission announced the opening of an in-depth investigation procedure under EU State aid rules concerning three public service delegation contracts granted by French authorities to Corsica Linea for maritime services between Corsica and mainland France.
The Court of Justice’s Grand Chamber ruled in Gómez del Moral (C-125/18) that mortgage loan agreements concluded between a consumer and a credit institution, in which the interest rate varies according to an ofcial index, fall under the scope of the Unfair Terms Directive.
CJEU: Sentencing thresholds must be determined under the relevant laws at the time of the offence, not the issuance of the European Arrest Warrant
CJEU: Progressive special taxes on Vodafone and Tesco do not infringe EU internal market, VAT or State aid rules
Tuesday 3 March
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In its Grand Chamber judgment in the case of X (C717/18), the Court of Justice ruled that, when determining the relevant punishable offence in the issuing Member State of a European Arrest Warrant, the offence to be taken into account is the one applicable to the facts and not the date of issuance of the warrant.
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Tuesday 3 March
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The Court of Justice’s Grand Chamber delivered its preliminary rulings in Vodafone Magyarország (C-75/18) and Tesco-Global Áruházak (C-323/18). According to these rulings, Hungarian special taxes do not amount to indirect discrimination under the freedom of establishment, and they are compatible with both the VAT Directive and EU State aid rules.
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General Court rejects Junqueras’s request to take his MEP seat provisionally Tuesday 3 March
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The Vice-President of the General Court issued an order rejecting the request for interim relief sought by Oriol Junqueras i Vies in Junqueras i Vies v Parliament (T24/20 R).
Merger Regulation: CJEU clarifies the concept of single concentration and the role of the ne bis in idem principle Wednesday 4 March
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In its judgment in Marine Harvest v Commission (C10/18 P), the Court of Justice claried the scope of the ‘single concentration’ term under the Merger Regulation, as well as the conditions in which the Commission can impose separate penalties for breaches of Articles 4(1) and 7(1) of that Regulation.
Amazon argues it did not receive unlawful State aid from Luxembourg in hearing at the General Court today Thursday 5 March
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On Thursday the rst day of hearings was held at the General Court in joined cases in which Member State Luxembourg and Amazon EU Sàrl and Amazon.com Inc are challenging the Commission’s decision that Luxembourg granted the multinational Amazon unlawful State aid.
Platini’s application before ECtHR declared inadmissible Thursday 5 March
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The European Court of Human Rights decided to declare inadmissible the application led by Michel Platini, a former professional football player, president of UEFA and vice-president of FIFA, regarding his Article 6 ECHR rights and the disciplinary sanctions imposed on him by the FIFA authorities, conrmed by the Court of Arbitration for Sport and by the Swiss Federal Court.
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CJEU: Google Ireland – advertising tax penalty system applied to foreignMember State established companies is incompatible with EU free movement of services Tuesday 3 March
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The Court of Justice handed down its Grand Chamber ruling in Google Ireland (C-482/18), nding that the Hungarian advertising tax penalty system as applied to Google Ireland was incompatible with EU internal market law.
Commission proposes European Climate Law and launches consultation on the European Climate Pact Wednesday 4 March
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The Commission adopted a proposal for the rst ever EU Climate Law, which purports to translate into legal rules the EU’s political commitment to be climate neutral by 2050. The Commission also launched a public consultation today on a new European Climate Pact.
HALLOUMI v BBQLOUMI: Court of Justice sends case back to the General Court Thursday 5 March
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The Court of Justice set aside the General Court’s ruling in the appeal case Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO (C-766/18 P). The Court of Justice claried how the likelihood of confusion test applies to collective marks.
European Commission sets out priorities for EU taxation policy Thursday 5 March
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Commissioner Paolo Gentiloni presented the Commission’s priorities for EU taxation policy, stressing that taxation must be fully coherent with other policy areas, in particular, Climate Change and the European Green Deal.
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After first round of negotiations, UK-EU positions stand far apart
Presentation of the European Commission’s Gender Equality Strategy
Thursday 5 March
Thursday 5 March
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The rst round of UK-EU negotiations came to an end in Brussels and Michel Barnier summarised the main developments, pointing out that, even though conversations have taken place in a ‘cordial and constructive spirit’, major hurdles remain ahead.
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The European Commission presented its strategy for equality between women and men in Europe, which sets out key actions for the next ve years and commits to ensure that the Commission includes an equality aspect in all EU policy areas.
Advocate General: Hungary must treat foreign and national higher institutions equally in line with GATS, TFEU and Charter obligations Thursday 5 March
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Advocate General Kokott issued her Opinion in Commission v Hungary (C-66/18), proposing that the Court of Justice rules that the Hungarian law of 2017 on Higher Education infringes Article XVII GATS in conjunction with Article 216(2) TFEU, as well as the Articles 13 and 14 of the Charter.
This Week's Analyses & Op-Eds Another Piece of the Puzzle Surrounding the Application of Article 20 TFEU
CJEU – brief review of Court’s new Practice Directions
By Silvia Bartolini
By Michal Kianička
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Analysis on the Court of Justice’s judgment in Subdelegación del Gobierno en Ciudad Real v RH (C-836/18), a case regarding the conditions for the application of Article 20 TFEU. Does this provision allow the automatic refusal of a derived right of residence to a thirdcountry national family member of a EU citizen who has never exercised his or her free movement right on the sole ground that that EU citizen does not have sufcient economic resources not to become a burden for the national social assistance system?
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Analysis on the Court of Justice’s new Practice directions to parties concerning cases brought before the Court. Michal Kianička explores the most important novelties compared to the previous version which had been in force since 2014.
Judgment of the Court of Justice, Google Ireland (C-482/18) By Fernando Pastor-Merchante
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Analysis on the ruling of the Court of Justice in Google Ireland Limited v Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vámigazgatósága (C-482/18), a case concerning a Hungarian tax on advertising and its compatibility with internal market law. Fernando PastorMerchante explains inter alia why this case is a good illustration of the problems raised by the attempts of Member States to tax the digital economy.
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The compatibility of turnover-based progressive taxes with EU law By Małgorzata Cyndecka
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The budgetary instrument for convergence and competitiveness: some remarks on form and substance By Ana Bobić
Analysis on the Court of Justice’s interpretation in Vodafone Magyarország (C-75/18) and Tesco-Global Áruházak (C-323/18), two Grand Chamber cases concerning the compatibility with EU law of Hungarian special taxes levied on the turnover of telecommunications operators and of undertakings active in the retail trade sector, respectively. A take from the perspectives of State aid, non-discrimination, and tax law.
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Analysis on the implications of a possible intergovernmental agreement for the Budgetary Instrument for Convergence and Competitiveness, and why this would represent a return to the realm of public international law, following the solution taken in creating the European Stability Mechanism.
Transparency of contract terms with a Marine Harvest: where there’s smoke, reference index to calculate interest ra- there’s gun-jumping tes in mortgage loans and consequen- By Miguel Sousa Ferro READ MORE ON EU LAW LIVE ces of their unfair nature By Francisco Pertíñez
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Analysis on the Court of Justice’s doctrine on the integration of unfair terms, on the occasion of the release of the Court of Justice’s judgment in Gómez del Moral v Bankia (C-125/18), a case regarding the unfair nature of terms that in variable-interest mortgage loan contracts provide ‘IRPH-Cajas’ as a reference index.
Op-Ed on the Court of Justice’s judgment in Marine Harvest v Commission (C-10/18 P). Miguel Sousa Ferro explains the implications of the Court’s ruling on mergers and the scope of the ne bis in idem principle when applied to the Commission’s powers in the eld of competition.
Library - Book Review DANNY BUSCH & GUIDO FERRANINI
By Karl-Philipp Wojcik
OUP, Oxford, 2020, 736 pp.
European Banking Union (2nd ed)
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Assessment of the second edition of a must-read including contributions by highly reputed, international experts from academia as well as global legal and regulatory practice on topical institutional, legal and policy aspects related to EU banking rules. A handbook structured along the three-pillar-architecture of the Banking Union, namely the Single Supervision and the CRD IV, the Single Resolution and the BRRD, and the European Deposit Insurance Scheme.
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