National Courts of Last Instance Failing to Make a Preliminary Reference: The (Possible) Consequences Flowing Therefrom

Abstract:

According to Article 267 of the Treaty on the Functioning of the European Union (TFEU), Member State courts may - and sometimes must -  refer questions on the interpretation or validity of EU legal measures to the Court of Justice of the European Union for a binding preliminary ruling. But what are the consequences if a Member State court fails to make a preliminary reference in a situation where it was legally obliged to do so?

The article shows that such failure may constitute an infringement of the right to a fair trial as laid down in Article 6(1) of the European Convention of Human Rights. It may also form the basis for a claim for damages under EU law. Moreover, it may instigate the European Commission to institute infringement proceedings against the Member State in question. Finally, in some situations, a failure to make a preliminary reference may affect the validity of the Member State court’s judgment, and there may also be a requirement on Member State administrative authorities to reopen the case file if, after the ruling by the Member State court, it becomes apparent that this court erred with regards to EU law.

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