EHRM, 24-04-2018, nr. 55385/14

Section 80a of the Judiciary (Organisation) Act entered into force on 1 July 2012. It provides as follows (references to other domestic legislation omitted):

Section 81 of the Judiciary (Organisation) Act reads:

In a judgment of 11 September 2012 (ECLI:NL:HR:2012:BX0129) the Supreme Court clarified its understanding of sections 80a and 81 of the Judiciary (Organisation) Act as applicable in criminal cases, which reads, as far as relevant to the present case:

In its judgment of 26 May 2015 (ECLI:NL:HR:2015:1332) the Supreme Court explained its practice as regards the application of sections 80a and 81 of the Judiciary (Organisation) Act in relation to a request for referral to the CJEU made in that case. It held, as far as relevant to the present case:

Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’)2.provides as follows:

On 25 November 2016, the CJEU published its (updated) Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2016/C 439/01), which reads, as far as relevant to the present case:

23. In the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health (C-283/81, ECLI:EU:C:1982:335), the CJEU received a request from the Italian Court of Cassation for a preliminary ruling. This request concerned the question as to whether the third paragraph of Article 177 of the EEC Treaty3.laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified, or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt.

In its judgment of 6 October 1982 the CJEU explained, firstly, as follows:

The CJEU went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain ‘whether a decision on a question of Community law [was] necessary to enable them to give judgment’. It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations: (1) where the question was not relevant, in the sense that the answer to the question, regardless of what it might be, could in no way affect the outcome of the case; (2) where the question was materially identical to a question which had already been the subject of a preliminary ruling in a similar case, or where previous decisions of the Court had already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue were not strictly identical; or (3) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved (bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member States and to the Court of Justice, and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it).

The judgment then concluded as follows (point 21):

In the case of György Katz v. István Roland Sós (C-404/07, ECLI:EU:C:2008:553), the CJEU delivered its judgment on 9 October 2008 which, as far as relevant to the present case, reads:

In its judgment of 9 November 2010 in the case of VB Pénzügyi Lízing Zrt. v. Ference Schneider (C-137/08, ECLI:EU:C:2010:659), the CJEU stated, as far as relevant to the present case:

In the case of Lucio Cesare Aquino v. Belgische Staat (C-3/16, ECLI:EU:C:2017:209), the CJEU gave judgment on 15 March 2017, stating, as far as relevant to the present case:

The applicant alleged that the refusal of the Supreme Court to seek a preliminary ruling from the CJEU upon his request violated his rights under Article 6 of the Convention. He submitted that it follows from the Court's case-law that the Supreme Court had a duty under Article 6 of the Convention to provide reasons for denying his request for a referral to the CJEU by indicating which of the Cilfit grounds (see paragraphs 23-26 above) was applicable, accompanied by an explanation. In the applicant's view, a mere reference to section 81 of the Judiciary (Organisation) Act, as contended by the Government, could not be accepted as adequate in this regard. The applicant contested the Government's argument that it followed from Hansen v. Norway (no. 15319/09, 2 October 2014) that the refusal of a request for a preliminary ruling without providing specific reasons is compatible with Article 6 of the Convention when a legal provision allowing summary reasoning by an appellate court has been applied. He noted that Hansen did not concern a request for a preliminary ruling by the CJEU but a filtering procedure on appeal. Furthermore, according to the applicant, unless the Court unequivocally decided otherwise, the ‘Cilfit obligation’ was a special obligation to provide reasons, with its own requirements.

The Government argued that it could not be inferred from this Court's case-law that Article 6 of the Convention requires domestic courts to refer a case to the CJEU or to provide specific reasons for refusing such a referral, irrespective of the content or grounds of that request. According to the Government, the duty to provide reasons when refusing to refer a question to the CJEU for a preliminary ruling is ‘a specific element of the general duty of courts to give reasoned decisions’ and, referring to Hansen (cited above, § 80), an appellate court was not required to provide more detailed reasoning when it applied a specific legal provision to dismiss an appeal in cassation as having no prospects of success, without further explanation. Therefore, in the Government's view, the Supreme Court's judgment containing a summary reasoning based on section 81 of the Judiciary (Organisation) Act was compliant with Article 6 of the Convention and it should be read as that Court's conclusion that the applicant's request for the referral of a question to the CJEU did not relate to a point of law that required answering.

The Court recalls that it is for the national courts to interpret and apply domestic law, if applicable in conformity with EU law, and to decide on whether it is necessary to seek a preliminary ruling from the CJEU to enable them to give judgment. It reiterates that the Convention does not guarantee, as such, the right to have a case referred by a domestic court to another national court or to the CJEU for a preliminary ruling. The Court has previously observed that this matter is, however, not unconnected to Article 6 § 1 of the Convention since a domestic Court's refusal to grant a referral may, in certain circumstances, infringe the fairness of proceedings where the refusal proves to have been arbitrary. Such a refusal may be deemed arbitrary in cases where the applicable rules allow no exception to the granting of a referral or where the refusal is based on reasons other than those provided for by the rules, or where the refusal was not duly reasoned. Indeed, the right to a reasoned decision serves the general rule enshrined in the Convention which protects the individual from arbitrariness by demonstrating to the parties that they have been heard and obliges the courts to base their decision on objective reasons (see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, 20 September 2011, §§ 54–59). As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see, among many other authorities, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 116, ECHR 2005-X). In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society (see Taxquet v. Belgium [GC], 16 November 2010, no. 926/05, § 90 and the cases cited therein).

The obligation under Article 6 § 1 of the Convention for domestic courts to provide reasons for their judgments and decisions cannot, however, be understood to mean that a detailed answer to every argument is required. The extent to which the duty to provide reasons applies may vary according to the nature of the decision. It is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question of whether or not a court has failed to fulfil the obligation to provide reasons − deriving from Article 6 of the Convention − can only be determined in the light of the circumstances of the case (see Borovská and Forrai v. Slovakia, no. 48554/10, § 57, 25 November 2014; García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I; Kok v. the Netherlands (dec.), no. 43149/98, 4 July 2000; and Ruiz Torija v. Spain, no. 18390/91, § 29, 9 December 1994).

These principles are reflected in the Court's case-law where the issue of due reasoning by domestic courts when refusing a request for a referral to the CJEU has been considered in the light of Article 6 § 1 of the Convention.

For example, the Court has held that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable under Article 6 of the Convention for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see John v. Germany (dec.) no. 15073/03, 13 February 2007) or for lack of prospects of success without dealing explicitly with the request (see Wallishauser v. Austria (No. 2), no. 14497/06, § 85, 20 June 2013; see also Rutar Marketing D.O.O. v. Slovenia (dec.), no. 62020/11, § 22, 15 April 2014 and Moosbrugger v. Austria, no.44861/98, 25 January 2000).

Furthermore, in the case of Stichting Mothers of Srebrenica and others v. the Netherlands (no. 65542/12, § 173, ECHR 2013) the Court found that the summary reasoning used by the Supreme Court to refuse a request for a preliminary ruling was sufficient, pointing out that it followed already from a conclusion reached in another part of the Supreme Court's judgment that a request to the CJEU for a preliminary ruling was redundant. In Astikos Kai Paratheristikos Oikodomikos Synetairismos Axiomatikon and Karagiorgos v. Greece ((dec.), nos. 29382/16 and 489/17, § 47, 9 May 2017) the Court observed that the preliminary ruling requested by the applicant in that case would not have changed the conclusion reached by the Council of State of Greece since his appeal had been declared inadmissible due to the non-compliance with statutory requirements for the admissibility of appeal.

In other cases, not concerning a context of domestic accelerated proceedings, the Court has held that national courts against whose decisions there is no remedy under national law are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the CJEU (Ullens de Schooten and Rezabek, cited above, § 62). In Dhahbi v. Italy (no. 17120/09, § 31, 8 April 2014; see also Schipani and others v. Italy, no. 38369/09, § 42, 21 July 2015), the Court formulated the following principles regarding the domestic courts' duty under Article 6 of the Convention when a request is made for a referral to the CJEU for a preliminary ruling, and where the request was accompanied by a due argumentation:

Turning to the present case, the Court observes that the Supreme Court partly dismissed the applicant's appeal in cassation, including his request for a referral to the CJEU for a preliminary ruling, using a summary reasoning based on section 81 of the Judiciary (Organisation) Act (see paragraph 15 above). It is the applicant's contention that Article 6 § 1 of the Convention militated against the Supreme Court's confining itself to that summary reasoning in respect of his request for a referral of a question to the CJEU.

The Court recalls that it has previously held that it is acceptable under Article 6 § 1 of the Convention for national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see John, cited above). It has also considered that it is likewise not contrary to that provision for these courts to dismiss an appeal on points of law as having no prospect of success, without further explanation (see Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009, and Gorou v. Greece (no.2) [GC], no. 12686/03, § 41, 20 March 2009). This principle was reiterated by the Court in Talmane v. Latvia (no. 47938/07, § 29, 13 October 2016 with further references). It must, also in this context, ascertain that decisions of national courts are not flawed by arbitrariness or otherwise manifestly unreasonable, this being the limit of the Court's competence in assessing whether domestic law has been correctly interpreted and applied (see Talmane, cited above, § 31).

The Court accepts that, in line with the aim of the legislature (see paragraph 19 above), section 81 of the Judiciary (Organisation) Act — which allows the Supreme Court to dismiss an appeal in cassation for not constituting grounds for overturning the impugned judgment and not giving rise to the need for a determination of legal issues — and section 80a of the same Act — which allows the Supreme Court to declare an appeal in cassation inadmissible for not having any prospect of success — are aimed at keeping the length of proceedings reasonable and also allow courts of cassation or similar judicial bodies to concentrate efficiently on their core tasks, such as ensuring the uniform application and correct interpretation of the law.

Taking into account the Supreme Court's explanation that it is inherent in a judgment in which the appeal in cassation is declared inadmissible or dismissed by application of and with reference to section 80a or 81 of the Judiciary (Organisation) Act that there is no need to seek a preliminary ruling since the matter did not raise a legal issue that needed to be determined (see paragraph 20 above), the Court furthermore accepts that the summary reasoning contained in such a judgment implies an acknowledgment that a referral to the CJEU could not lead to a different outcome in the case.

The Court also notes that the CJEU has ruled that the domestic courts referred to in the third paragraph of Article 267 TFEU are not obliged to refer a question about the interpretation of EU law raised before them if the question is not relevant, that is to say, if the answer to that question, whatever it may be, cannot have any effect on the outcome of the case (see paragraph 29 above).

The Court therefore considers that, in the context of accelerated procedures within the meaning of section 80a or 81 of the Judiciary (Organisation) Act, no issue of principle arises under Article 6 § 1 of the Convention when an appeal in cassation which includes a request for referral is declared inadmissible or dismissed with a summary reasoning where it is clear from the circumstances of the case that the decision is not arbitrary or otherwise manifestly unreasonable (see paragraph 46 above).

The Court observes that pursuant to section 81(2) of the Judiciary (Organisation) Act (see paragraph 18 above), an appeal in cassation is considered and decided by three members of the Supreme Court. The Court further observes that, in the case at hand, the applicant's request for a question to be referred to the CJEU, which he raised in his written reply to the Advocate General's advisory opinion, was dismissed by the Supreme Court with summary reasoning on the basis of section 81 of the Judiciary (Organisation) Act, after having taken cognisance of the applicant's written grounds of appeal, and both the Advocate General's advisory opinion and the applicant's written reply thereto (see paragraph 14 above).

In these circumstances the Court is satisfied that the Supreme Court has duly examined the grounds of the applicant's appeal on points of law. The Court can thus discern no appearance of unfairness in the proceedings before the Supreme Court.

There has accordingly been no violation of Article 6 § 1 of the Convention.