KUBERA (C-144/23, 15.10.2024) would appear to be the first case in which the CJEU imposed an obligation on a national court against whose decisions there is no judicial remedy (Art. 267(3) TFEU) to give reasons when rejecting the request by a party to the proceedings to make a reference for a preliminary ruling by the CJEU.

Admittedly, the procedural situation was a particular one, as it concerned proceedings before the Slovenian Supreme Court on an appeal on a point of law. Under the Slovenian Code of civil procedure, the Supreme Court is not required in this particular context to make a determination on whether it should grant a request by a party that a reference for a preliminary ruling by the CJEU be made. It can thus lawfully ignore that request. It is this approach with which the CJEU takes issue in the present ruling. It remains to be seen whether this case-law will be extended to other types of procedures in the future.

What is interesting about this novel move by the CJEU is its proximity with the well-established Strasbourg jurisprudence, according to which Article 6 of the Convention (right to a fair trial) requires any last instance court, within the meaning of Article 267(3) TFEU, which dismisses a request by a party to the proceedings that a reference for a preliminary ruling be made, to give reasons for its dismissal.

While the ECtHR, for lack of competence, does not itself assess the merits under Union law of the reasons thus given, it nonetheless must be satisfied that these reasons are built upon the relevant criteria as first set out in the Cilfit jurisprudence of the CJEU (for an overview of that Strasbourg case-law, see The obligation to give reasons for a refusal to make a preliminary reference to the Court of Justice of the European Union; see also Georgiou v. Greece)

It is significant to note, in this respect, that in establishing this new rule, the CJEU refers to Article 267 TFEU, read in the light of the second paragraph of Article 47 of the EU-Charter, which is the “counterpart” in EU law of Article 6 of the Convention, protecting the right to a fair trial. This is another indication of the new similarity between the two approaches. What they ultimately have in common is an upgrading of the role of the parties to proceedings in the system of preliminary rulings by the CJEU. This is in contrast with the traditional Luxembourg view according to which no reasons are required in this context, as preliminary rulings are part of the system of cooperation between national courts and the CJEU, with no involvement of the parties to the main proceedings.

Both Courts also concur in requiring that the said reasons be given by reference to the Cilfit jurisprudence.

Some differences are to be noted, though. The first one concerns the justification of the respective approaches. While the Strasbourg approach is primarily dictated by the right to a fair trial, which requires courts to give reasons for their decisions, as an expression of the rule of law and a guarantee against arbitrariness, the Luxembourg approach is more system-oriented, i.e. intended to preserve the effectiveness of the system of preliminary rulings, as explained by the CJEU in the following terms:

“Such legislation or national practices can thus lead to a situation in which a question concerning the interpretation or validity of a provision of EU law, despite being raised by a party before the Vrhovno sodišče (Supreme Court) or having to be raised by that court in the light of the legal issue highlighted by that party and not being a question that is covered by the exceptions referred to in paragraph 36 above, would not be submitted to the Court of Justice, contrary to the obligation imposed on that national court by the third paragraph of Article 267 TFEU.

Such a situation is capable of undermining the effectiveness of the system of cooperation between the national courts and tribunals and the Court of Justice established in Article 267 TFEU, and the achievement of the objectives which that article is intended to achieve, particularly that of preventing a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States.” (§§ 45-46)

A second difference is perhaps the fact that the ECtHR does not require the same level of reasoning in all circumstances. The ECtHR indeed considers that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints, if the matter raises no fundamentally important legal issue, or for lack of prospects of success, without dealing explicitly with the request (see, among others, Baydar v. the Netherlands, § 42).

What is now the bottom line of this for national judges? First of all, the case-law discussed above only applies to courts against whose decisions there is no domestic remedy, within the meaning of Article 267(3) TFEU. As far as these courts are concerned, they should, when rejecting a request for a preliminary ruling, always give reasons based on the Cilfit jurisprudence, so as to at least meet the Strasbourg standards which, however, are flexible as regards the level of reasoning required. As regards any Luxembourg standards, the future will tell if and how the CJEU case-law will develop in terms of its scope and its concrete requirements.