Obligation to refer to the ECJ and the right to the lawful judge – Current developments by the Constitutional Court of Rhineland-Palatinate
The decision of the Constitutional Court of Rhineland-Palatinate of July 22, 2022 (Case No. VGH B 70/21) once again underscores the significance of the right to the lawful judge insofar as it concerns the obligation to refer cases to the European Court of Justice (ECJ). The central issue is how courts are to handle the obligation to refer matters to the ECJ pursuant to Article 267(3) TFEU, and to what extent an inadequately reasoned rejection of this obligation can impair the fundamental right to the lawful judge under Article 101(1) sentence 2 of the German Basic Law (GG).
Legal framework and background of the obligation to refer to the ECJ
Significance of Article 267 TFEU
Within the European legal framework, the ECJ is responsible for the interpretation and application of primary and secondary European law. Article 267 TFEU provides that national courts in principle have the option to refer questions of interpretation regarding Union law. Such an obligation arises for national courts when no further domestic legal remedies are available in the respective proceedings and there are uncertainties regarding the interpretation of Union law.
Binding effect for courts
The obligation to refer is independent of the substantive classification of Union law provisions by the national court. A failure to refer, in the context of national fundamental rights—especially with regard to Article 101(1) sentence 2 GG—may constitute a violation of the right to the lawful judge. This requires courts to provide a careful and substantive justification when they choose not to refer a question.
Facts and course of the underlying proceedings
In the present case, an applicant sought administrative judicial protection after an administrative authority had issued an order based on Union law requirements. The court of last instance seized saw no reason to refer relevant questions of Union law to the ECJ. The reasoning for the decision was limited to a brief explanation of its own case law as well as allegedly clear ECJ judgments, thereby justifying that, from the court’s perspective, there was no reason for a referral.
Decision of the Constitutional Court of Rhineland-Palatinate
Standard of review
The Constitutional Court emphasized that the obligation to guarantee the lawful judge not only covers the formal competence of the adjudicating panel, but also must ensure access to supranational courts, provided this is established by ordinary or superior law. A summary rejection of a referral, not tailored to the specific case or based solely on a court’s own assessments, does not meet the requirements.
Core of the constitutional objection
The court found that the reasoning in the original proceedings for not referring the matter to the ECJ failed to address essential aspects of the Union law issue. There was a lack of in-depth engagement with relevant ECJ decisions as well as a precise explanation of why, from the perspective of the national court, no significant uncertainty in interpretation remained. Consequently, the applicant was deprived of the right to the lawful judge to which he was entitled—the decision therefore violates Article 101(1) sentence 2 GG.
Consequences for national case law and legal protection
Obligation to substantiate
The decision makes clear that both appellate and supreme courts are required to address any preliminary questions of Union law with methodologically meticulous substantiation. This includes analyzing current ECJ decisions in light of the specific facts of the case and providing a detailed explanation for any exceptional decision not to refer.
Significance for legal protection
Ensuring effective integration of the European legal protection system is a key aspect for parties involved in legal proceedings. Especially within the European Economic Area, where Union law requirements have far-reaching practical and economic impacts, effective control by both national and supranational courts remains essential.
Implications for ongoing and future proceedings
Even in ongoing or future proceedings, case law must ensure that parties are not denied comprehensive legal protection solely because of inadequate reasoning for not referring cases to the ECJ. The decision of the Constitutional Court of Rhineland-Palatinate sets a clear standard in favor of fundamental rights and emphasizes the institutional responsibility of the courts.
Conclusion and outlook
The current decision vividly underscores the interaction between national and European legal protection systems. It prompts courts to further refine their reasoning practice and to firmly anchor compliance with the structural principles of Union law—particularly the effective application and interpretation of Union law—in their adjudicative practice.
For companies, investors, and high-net-worth individuals, this can have far-reaching effects in numerous areas, especially where decisions by authorities are based on Union law norms and access to further instances depends on comprehensive reasoning.
For more in-depth legal questions relating to the topic of access to Union law instances and judicial review mechanisms, the lawyers at MTR Legal are at your disposal by individual mandate agreement.
