The matter at hand

KUBERA, a food and beverages trading company, submitted two applications to the Vrhovno sodišče (Supreme Court, Slovenia), the referring court, for leave to appeal on a point of law against judgments of the Upravno sodišče (Administrative Court, Slovenia). In this context KUBERA claims that the dispute in the main proceedings raises the question whether the Customs Enforcement of IPR Regulation applies to the situation at hand. KUBERA maintains that that is an important legal question, that justifies granting leave to bring appeals on points of law. KUBERA asks that, in the event that the referring court does not agree with that assessment, that question be referred to the ECJ for a preliminary ruling.

The referring court, decided to stay the proceedings and to refer two questions to the ECJ. By its first question, the referring court seeks to ascertain, in essence, whether the third paragraph of Article 267 TFEU must be interpreted as precluding a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law from deciding – in proceedings relating to the examination of an application for leave to appeal on a point of law the outcome of which depends on the significance of the legal issue raised by one of the parties to the dispute with respect to legal certainty, the uniform application of the law or its development – to refuse such an application for leave without having assessed whether it was obliged to submit to the ECJ for a preliminary ruling a question concerning the interpretation or validity of a provision of EU law raised in support of that application.

By its second question, the referring court asks, in essence, whether Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter, must be interpreted as meaning that a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law must set out, in its decision refusing an application for leave to appeal on a point of law containing a request that a question concerning the interpretation or validity of a provision of EU law be referred to the ECJ for a preliminary ruling, the reasons why that reference was not made.

The Judgment of the ECJ

With regard to the first question, the ECJ considers that “Such a national court or tribunal must take upon itself, independently and with all the requisite attention, the responsibility for determining whether it is under an obligation to refer the question of EU law raised before it to the Court of Justice” (paragraph 37). With reference to Cilfit and Others (case C-283/81) and Consorzio Italian Management and Catania Multiservizi (C‑561/19), the ECJ considers that a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law can only be relieved of the obligation laid down in Article 267(3) TFEU when “it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the Court of Justice or that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt” (paragraph 36).

The ECJ considers, with reference to Aquino (case C-3/16) and Consorzio Italian Management and Catania Multiservizi (C‑561/19), that a national court may also “decline to refer a question to the Court of Justice for a preliminary ruling on grounds of inadmissibility specific to the procedure before that national court or tribunal, subject to compliance with the principles of equivalence and effectiveness” (paragraph 47).

In the absence of a procedural reason justifying non-referral of a question to the ECJ, the national supreme court should assess whether the question concerning the interpretation or validity of a provision of EU law raised in support of that application requires that a reference for a preliminary ruling be made to the Court of Justice or, instead, falls within one of the exceptions referred to in paragraph 36 of the judgment. This assessment does not require a more detailed examination than that which the supreme court is required to  carry out under national law anyway, “since that assessment requires only that that court satisfy itself of the relevance of the question raised for the resolution of the dispute that has been brought before it and that it verify, if necessary, the need to obtain from the Court of Justice an interpretation of the provision of EU law to which that question relates because it does not fall within any of the exceptions referred to in paragraph 36 above” (paragraph 57).

Based on the foregoing, the ECJ concludes that Article 267(3) TFEU must be interpreted as precluding a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law from deciding – in proceedings relating to the examination of an application for leave to appeal on a point of law the outcome of which depends on the significance of the legal issue raised by one of the parties to the dispute with respect to legal certainty, the uniform application of the law or its development – to refuse such an application for leave without having assessed whether it was obliged to submit to the Court of Justice for a preliminary ruling a question concerning the interpretation or validity of a provision of EU law raised in support of that application.

With regard to the second question, the ECJ considers that when the “national supreme court decides to refuse such an application on the basis of one of those exceptions, that decision must comply with the obligation to state reasons” (paragraph 64). This means that, unless it concerns the application of a purely procedural ground of inadmissibility, a national supreme court cannot refuse an application for leave to appeal on a point of law that raises a question concerning the interpretation or validity of a provision of EU law without first assessing whether it is required to refer that question to the ECJ for a preliminary ruling or whether that question is irrelevant or pertains an acte clair or acte éclairé. Subsequently, this court must set out the reasons why that reference was not made.

Commentary

The KUBERA-judgment provides interesting insights for Dutch legal practice, where Article 81 of the law on the judicial organisation (‘Wet RO’) allows the Supreme Court of the Netherlands to dismiss an appeal without reasoning. The practice of applying this article in supreme litigation probably does not meet the reasoning requirements set by the KUBERA-judgment. In rejecting an application under Article 81 Wet RO, the Supreme Court does not in any way demonstrate the manner in which it has assessed and determined that the question raised is irrelevant or whether it is an acte clair or acte éclairé.

Further, it is wise for parties in proceedings to always formulate a question of interpretation which can be referred to the ECJ, to make clear that the issue at hand is one involving European law. In this way, failure to refer questions of interpretation to the ECJ qualifies as a rejection of a request for referral that must be substantiated by the national supreme court. However, to what extent and how comprehensively this rejection should be substantiated remains unclear as the ECJ does not formulate any guidelines for this in the KUBERA-judgment.