Preliminary references to the Court of Justice of the European Union and the right to a fair trial under Article 6 ECHR

Abstract:

According to Art. 267 of the Treaty on the Functioning of the European Union (TFEU), the courts of the Member States may - and sometimes must - refer questions about the validity and interpretation of EU law to the Court of Justice of the EU so that it can make a binding ruling.

This article reviews the practice of the European Court of Human Rights (ECtHR) on the demands that Art. 6 of the European Convention on Human Rights (ECHR), on the right to a fair trial, make on Member States’ courts when considering making a reference to the Court of Justice for a preliminary ruling. Among other things, it is pointed out that the ECtHR practice on the requirement to give reasons for not making a reference appears to go further than several of the rulings given by Member States’ courts.