Back on 11 September 2014 (how time flies !) the Court of Justice handed down an interesting judgment in Case C-112/13 A v B and Others in a rather unusual case. It dealt with the role – and duty – of the national court when faced with national legislation which seemed incompatible with both EU law and with the national constitution.

Indeed, the Court of Justice had some really interesting to say about how national courts should ensure the primacy of EU law. It builds on the important judgment in Melki and Abdeli C‑188/10 and C‑189/10, EU:C:2010:363. The case turned on substance on the interpretation of Council Regulation (EC) no 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. I won’t deal with the substance issues, leaving them to our friends at the excellent Conflict of Laws blog. Just the primacy issue here.

 

First the rather curious facts.

Facts

In October 2009, B and Others brought an action for damages against A before the Landesgericht Wien (Regional Court, Vienna), claiming that A had abducted their husbands or fathers in Kazakhstan. An issue came up concerning the jurisdiction of the Austrian courts, as B and Others submitted that A had his normal place of domicile within the jurisdiction of the Landesgericht Wien. That court made numerous attempts at service, but it became clear that A was no longer domiciled at the addresses indicated for service. In  August 2010, the Landesgericht Wien appointed, at the request of B and Others, a representative in absentia (Abwesenheitskurator; ‘the court-appointed representative’), in accordance with Austrian civil procedure. The court-appointed representative lodged a defence contending that the action should be dismissed and raising numerous counter-arguments to the substantive claims made, but did not contest the jurisdiction of the Austrian courts.

Later, a firm of lawyers was instructed by A , the defendant, and intervened on his behalf to challenge the international jurisdiction of the Austrian courts.  A indicated that he had left Austria permanently before the action was brought against him.

The Landesgericht Wien declared that it lacked international jurisdiction and dismissed the action. It found that A was domiciled in Malta and that the lodging of the defence by the court-appointed representative did not amount to the entering of an appearance for the purposes of Article 24 of Regulation No 44/2001.

That judgment was appealed to the Oberlandesgericht Wien (Higher Regional Court, Vienna) which allowed the appeal brought by B and Others and held that it had international jurisdiction over the case.

The fundamental rights issue

The defendant, A, raised an issue of fundamental rights before the Oberster Gerichtshof. He claimed an infringement of his rights of defence as guaranteed by Article 6 of the European Convention on Human Rights and Fundamental Freedoms, (‘ECHR’), and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). B and Others contended, on the other hand, that the ECHR and the Charter guaranteed in equal measure their fundamental right to an effective remedy, making it necessary to appoint a representative in absentia for the defendant.

So where does the primacy issue come into this, you may well ask ?

The primacy issue

It does because the Oberster Gerichtshof states that an established line of authority required it, in recognition of the primacy of EU law, to refrain on a case-by-case basis from applying statutory provisions that were contrary to EU law. However, by judgment U 466/11 of 14 March 2012, the Verfassungsgerichtshof (Constitutional Court) departed from that case-law, ruling that its jurisdiction to review the constitutionality of national statutes covers the provisions of the Charter. In the context of such proceedings, the rights guaranteed by the ECHR may be relied upon before the Verfassungsgerichtshof as constitutional rights. According to the Verfassungsgerichtshof, it follows that, by dint of the principle of equivalence, as established by the case-law of the Court of Justice, the general review of legislation must also cover the rights guaranteed by the Charter.

And then the punch line ….According to the Oberster Gerichtshof, the effect of that judgment is that Austrian courts may not, of their own motion, refrain from applying a statute that is contrary to the Charter; rather, ‘without prejudice to the possibility of making a reference to the Court of Justice for a preliminary ruling’, they must lodge an application with the Verfassungsgerichtshof for that law to be struck down. Furthermore, the Verfassungsgerichtshof has ruled that, if a right guaranteed by the Austrian Constitution has the same scope as a right guaranteed by the Charter, it is not necessary to make a request to the Court for a preliminary ruling under Article 267 TFEU. In such circumstances, the interpretation of the Charter would not be relevant for the purposes of ruling on an application for a statute to be struck down, that being a decision which may be given on the basis of rights guaranteed by the Austrian Constitution.

As a result, the Oberster Gerichtshof – the referring court –  asked whether EU law and, in particular, Article 267 TFEU precludes rules of national law, such as those at issue in the main proceedings, under which ordinary courts hearing an appeal or adjudicating at final instance are under a duty, if they find that a national statute is contrary to Article 47 of the Charter, to apply, in the course of the proceedings, to the constitutional court for that statute to be generally struck down, and may not simply refrain from applying that statute in the case before them.

The answer of the Court of Justice

The Court reframed the issue as being one of primacy and not of the application of the principle of effectiveness: What the Oberster Gerichtshof wishes specifically to know is whether the Austrian case-law on primacy is consistent with the obligations of the ordinary courts under Article 267 TFEU and the principle of the primacy of EU law.

The Court of Justice held that it was clear from the order for reference that, according to the case-law of the Verfassungsgerichtshof, ordinary courts hearing an appeal or adjudicating at final instance must apply to that court if they consider a statute to be contrary to the Charter. Those ordinary courts are thus unable to decide the dispute before them immediately, leaving unapplied any law that they consider to be contrary to the Charter.

The Court of Justice went on that the obligation to apply to the Constitutional Court  for the general striking down of statutes does not affect the right of the ordinary courts, as expressed by the Verfassungsgerichtshof in wording borrowed from the judgment of the Court of Justice in Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 57), to refer to the Court of Justice for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of the interlocutory procedure for the review of constitutionality, any question which they consider necessary; to adopt any measure necessary to ensure provisional judicial protection; and to disapply, at the end of such an interlocutory procedure, a national legislative provision contrary to EU law.

The Court of Justice recalled Article 267 TFEU provides that a national court or tribunal may refer questions on the interpretation or validity of EU law to the Court, if it considers that a decision on the question is necessary to enable it to give judgment. If the national court is a court of last resort it  must bring the matter before the Court.

While it might be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court (Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others EU:C:1981:62, paragraph 6; Meilicke, C‑83/91, EU:C:1992:332, paragraph 26; and JämO, C‑236/98, EU:C:2000:173, paragraph 31), national courts have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, necessitating a decision on their part (Rheinmühlen-Düsseldorf, 166/73, EU:C:1974:3, paragraph 3; Mecanarte, C‑348/89, EU:C:1991:278, paragraph 44; Cartesio, C‑210/06, EU:C:2008:723, paragraph 88; and Melki and Abdeli, EU:C:2010:363, paragraph 41).

Second, the Court has held that a national court that is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such a provision by legislative or other constitutional means (Simmenthal, 106/77, EU:C:1978:49, paragraphs 21 and 24; Filipiak, C‑314/08, EU:C:2009:719, paragraph 81; Melki and Abdeli, EU:C:2010:363, paragraph 43; and Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 45).

Any provision of a national legal system including any judicial practice that might impair the effectiveness of EU law by withholding from the national court the power to do everything necessary at the moment of its application to set aside national legislative provisions that might prevent EU rules from having full force and effect are incompatible with those requirements, which are the very essence of EU law (Simmenthal, EU:C:1978:49, paragraph 22; Factortame and Others, C‑213/89, EU:C:1990:257, paragraph 20; and Åkerberg Fransson, EU:C:2013:105, paragraph 46 and the case-law cited). In the event of a conflict between a provision of EU law and a national law, primacy of EU law cannot be assured if the solution of the conflict were to be reserved to an authority with a discretion of its own, other than the court called upon to apply EU law, even if such an impediment to the full effectiveness of EU law were only temporary (Simmenthal, EU:C:1978:49, paragraph 23, and Melki and Abdeli, EU:C:2010:363, paragraph 44).

The Court of Justice then considered the situation in which the national law infringes both EU law and the national constitution. It held that a national court dealing with such infringements does not lose the right or escape the obligation under Article 267 TFEU to refer questions to the Court of Justice on the interpretation or validity of EU law by reason of the fact that the declaration that a rule of national law is unconstitutional is subject to a mandatory reference to the constitutional court. The effectiveness of EU law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by EU law from exercising the right conferred on it by Article 267 TFEU to refer to the Court of Justice questions concerning the interpretation or validity of EU law in order to enable it to decide whether or not a provision of national law was compatible with that EU law (Melki and Abdeli, EU:C:2010:363, paragraph 45).

In sum, the system of cooperation between the Court of Justice and the national courts established by Article 267 TFEU and the principle of primacy of EU law require the national court to be free to refer to the Court for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at the end of an interlocutory procedure for the review of constitutionality (Melki and Abdeli, EU:C:2010:363, paragraphs 51 and 52).

When national law lays down an obligation to initiate an interlocutory procedure for the review of constitutionality, Article 267 TFEU requires that the national court be free, first, to adopt any measure necessary to ensure the provisional judicial protection of the rights conferred under the EU legal order and, second, to disapply, at the end of such an interlocutory procedure, that national legislative provision if that court holds it to be contrary to EU law (Melki and Abdeli, EU:C:2010:363, paragraph 53).

Lastly, as regards the simultaneous applicability to national legislation implementing EU law, within the meaning of Article 51(1) of the Charter, of fundamental rights guaranteed by a national constitution and those guaranteed by the Charter, the Court of Justice held that the priority nature of an interlocutory procedure for the review of the constitutionality of a national law (the content of which merely transposes the mandatory provisions of an EU directive) may not undermine the jurisdiction of the Court of Justice alone to declare an EU act invalid. The very purpose of that jurisdiction is to guarantee legal certainty by ensuring that EU law is applied uniformly (Foto-Frost, 314/85, EU:C:1987:452, paragraphs 15 to 20; IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 27; Lucchini, C‑119/05, EU:C:2007:434, paragraph 53; and Melki and Abdeli, EU:C:2010:363, paragraph 54).

The Court of Justice pointed out that if an national court during the interlocutory procedure for the review of constitutionality repeals the national law without referring a question to the Court of Justice on validity of the EU measure, the Court of Justice would be denied the possibility of reviewing the validity of measure. (Melki and Abdeli, EU:C:2010:363, paragraph 55).

The Court of Justice lays down the priority of the preliminary reference procedure  and holds that a national court must refer a question on the validity of an EU measure and thereafter, draw the appropriate conclusions resulting from the preliminary ruling given by the Court, before initiating the interlocutory review of the constitutionality of a law.

Consequently, Article 267 TFEU precludes national legislation, such as that at issue in the main proceedings, under which ordinary courts hearing an appeal or adjudicating at final instance are under a duty, if they consider a national statute to be contrary to the Charter, to apply, in the course of the proceedings, to the constitutional court for that statute to be generally struck down, and may not simply refrain from applying that statute in the case before them. National courts must remain free

– to make a reference to the Court at whatever stage of the proceedings they consider appropriate, and even at the end of the interlocutory procedure for the review of constitutionality, in respect of any question which they consider necessary,

– to adopt any measure necessary to ensure interim judicial protection of rights conferred under the EU legal order, and

– to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to EU law.