Agne Limante (MA, PhD) is a Research Fellow at the Law Institute of Lithuania.
The duty of last instance national courts to submit preliminary references to the Court of Justice of the European Union (CJEU) is analysed by academics almost exclusively in the light of the Luxembourg Court’s case law. However, the case law of European Court of Human Rights (ECtHR) also appears to be relevant in this context. In several instances the ECtHR was asked whether non-referral of preliminary questions to the CJEU constituted a breach of Article 6 ECHR, guaranteeing the right to a fair trial. This post aims at providing some reference in this regard. First, it briefly describes the rules governing the preliminary reference procedure. Then, it analyses the ECtHR’s judgements relevant to this subject. Some conclusions will follow.
Duty to refer to the CJEU for a preliminary reference under EU law
Article 267 TFEU, establishing the preliminary reference procedure, differentiates between the discretion and the duty of national courts to refer a preliminary question to the CJEU. A national “court or tribunal” may ask the CJEU to give a preliminary ruling if it considers that a decision is “necessary” to enable it to give a judgment in a particular case (Article 267(1) TFEU). The obligation to refer occurs when a question on EU law application arises in a case pending before a national judge against whose decisions there is no judicial remedy in domestic law and the answer is necessary to reach a decision (Article 267(3) TFEU). In addition, reference becomes obligatory (even for a court of first instance) when a question on the validity of EU law arises as national courts have no jurisdiction to declare void measures taken by EU institutions.
The obligation of last instance national courts to make a preliminary reference may extinguish when (i) the questions are not relevant to solve the national proceeding; (ii) the issue arisen before the national court is materially identical to a question which has already been object of a preliminary ruling by the CJEU (‘acte éclairé’), or (iii) when the interpretation of EU law is “so obvious that no reasonable doubt is left” (‘acte clair’).
Duty to refer in light of right to a fair trial (Article 6 ECHR)
In Ullens De Schooten the applicants argued that a national law was incompatible with the EU Treaties and requested the national court of last instance before which the case was pending to refer the question to the CJEU. However, the national court considered that a CJEU’s preliminary ruling was not necessary to solve the case on the ground that such an issue was not indispensable for adjudicating. As a consequence, the applicants submitted an application to the ECtHR alleging a breach of Article 6 ECHR for violation of the duty to refer a preliminary question to the CJEU.
The ECtHR considered the CJEU’s case-law identifying exceptions to Article 267(3) TFEU. In addition, it affirmed that “Article 6(1) ECHR imposes an obligation to domestic courts to give reasons when they refuse to refer a preliminary question to the CJEU, especially where the applicable law allows for such a refusal only on an exceptional basis”. The Court then recalled that national courts are required, in accordance with the Cilfit case of the CJEU to indicate, alternatively, the reasons why (i) they have found that the question is irrelevant, (ii) the EU law provisions at issue have already been interpreted by the CJEU, or (iii) the correct application of EU law is so obvious that no reasonable doubt is left.
Also in Dhahbi v. Italy, the ECtHR held that refusal by a national court of last instance to make a preliminary reference to the CJEU amounts to a breach of Article 6 ECHR if the national court does not provide reasons to justify its decision. In this case, the applicant alleged that the Italian Court of Cassation had ignored his request to have a preliminary question referred to the CJEU also failing to provide any reasons for its denial. 
Thus, although the duty to refer to the CJEU for a preliminary reference is not absolute, Article 6 ECHR imposes alternative obligations to last instance national courts in relation to Article 267(3) TFEU. When a question on EU law application arises, these courts shall either (i) submit a question for a preliminary ruling when a party to the case before it requests so or (ii) state the reasons why they deemed that the question should not be referred to the CJEU. In case no justifications for refusal are included in the decision of the last instance national court, the ECtHR appears to consider that Article 6 (1) ECHR was violated.
Another issue is how detailed should the national courts’ arguments for refusing to refer a preliminary question be. In this respect, the ECtHR appears to set only minimal requirements. So far, the Strasbourg court accepted that the reference to one of the exceptions to the duty to refer for a preliminary ruling established by the CJEU is a sufficient statement of reasons. As the case law suggests, a national court should only state that either the EU law question was not relevant in that particular case, that the EU provision had already been interpreted by the CJEU, or that the correct application of EU law was so obvious as to leave no scope for reasonable doubt.
The ECtHR’s case law suggests that the CJEU should consider also Article 6 ECHR when interpreting the duty to refer a preliminary ruling request provided by Article 267(3) TFEU. This is even more relevant in the light of the potential accession of the EU to the ECHR – the event that should happen sooner or later as the Article 6 of the Treaty on European Union requires the EU to accede to the ECHR (“The Union shall accede to the ECHR”).
At present stage, the Strasbourg Court does not consider EU law when solving questions related to the preliminary reference procedure and abstains from commenting on the EU rules or CJEU’s case law. The ECtHR seems to fully acknowledge the exceptions to the obligatory preliminary references as developed by the CJEU. Nevertheless, the ECtHR emphasises the duty of last instance national courts to provide justifications for the refusal to refer a preliminary question to the CJEU.
 It should be reminded that right to a fair trial is envisaged in Article 6 of the ECHR and guaranteed in the EU Charter of Fundamental Rights (Article 47 – Right to an effective remedy and to a fair trial). The second paragraph of Article 47 of the EU Charter of Fundamental Rights in fact corresponds to Article 6(1) of the ECHR. Article 52(3) of the Charter specifies that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR. Thus, it is clear that both instruments interrelate, and this is acknowledged by Strasbourg and Luxembourg courts. The Charter has been used by the Strasbourg Court both before and after its entry into force, while the CJEU often refers to the ECHR and the case law of ECtHR. Both courts seem to find it important that their case law, including that concerning the right to fair trial, would not be conflicting. See also: Anand Doobay, “The right to a fair trial in light of the recent ECtHR and CJEU case-law”, ERA Forum, 2013.
 Case 314/85 Foto-Frost, EU:C:1987:452.
 Joined Cases 28/62 to 30/62 Da Costa  ECR 31. As noted Advocate General Colomer, that approach is based on the view that, where a EU law provision has already been interpreted by the Court, the obligation to refer further questions on the interpretation of the same provision would be deprived of substance. Opinion of Advocate General Ruiz-Jarabo Colomer in the Gaston Schul (C-461/03), EU:C:2005:415. See also Case 283/81 Cilfit and Others, EU:C:1982:335, para 13.
 Case C‑495/03 Intermodal Transports, EU:C:2005:552.
 Ullens De Schooten, (dec.), no. 3989/07 and 38353/07, 20 September 2011.
 Paragraph 29.
 Paragraph 60.
 Case 283/81 Cilfit and Others, EU:C:1982:335.
 Dhahbi v. Italy, (dec.), no. 17120/09, 8 April 2014.
 See also Vergauwen and Others v. Belgium, (dec.), no. 4832/04, para. 89-90, 10 April 2012, where the ECtHR established that Article 6(1) requires the domestic courts to give reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling.
 See also Schipani v. Italy, (dec.), no. 38369/09, 21 July 2015.
 One might wonder whether failure to include arguments for the refusal to make a preliminary reference should automatically entail a breach of Article 6 ECHR, or, instead, whether the criterion of ‘seriousness of the interference’ with the individuals’ rights should rather be applied. In light of the ECtHR case law it seems that the Court sticks to the first option, without analysing whether lack of reference entails a significant loss for the applicant. In his dissenting opinion in the Schipani case, Judge Wojtyczek argued that the decision on the breach of Article 6 ECHR for failure to make a reference should not rely on an objective and “automatic” criterion and should be based instead on the gravity of interference of the contested decision with the rights of the applicant. However, the majority of judges were of a different opinion and decided to refrain from applying the criterion of ‘seriousness of the interference’. See Schipani v. Italy, (dec.), no. 38369/09, 21 July 2015.
 Ullens De Schooten, (dec.), no. 3989/07 and 38353/07, 20 September 2011. See also Dhahbi v. Italy, (dec.), no. 17120/09, 8 April 2014; Matheis v. Germany (dec.), no. 73711/01, 1 February 2005; André Desmots v. France (dec.), no. 41358/98, 23 October 2001; Bakker v. Austria (dec.), no. 43454/98, 13 June 2002; Dotta v. Italy (dec.), no. 38399/97, § 13, 7 January 1999. See also Valutytė, R. (2012), pp. 7–20.