Court of Justice of European Union Rules on Obligation to Refer Cases for Preliminary Rulings While Constitutional Court Rules on Supreme Court's Impartiality

• 17/03/2017
• Articles

A case currently pending before the Brussels Court of Appeal (Hof van Beroep/Cour d'Appel) gave rise to two interesting judgments by the Court of Justice of the European Union (“ECJ”) and the Constitutional Court (Grondwettelijk Hof/Cour Constitutionnelle).

In the case at hand, the plaintiff (Mr. Aquino) had initiated proceedings before the Council for asylum and immigration proceedings (Raad voor Vreemdelingenbetwistingen/Conseil du Contentieux des étrangers) against a decision of the Office for asylum and immigration ordering him to leave the country. During those proceedings, Mr. Aquino argued that the decision ordering him to leave the country had been taken in violation of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“Directive 2004/38”). Mr. Aquino therefore called on the Council for asylum and immigration proceedings to refer a question to the ECJ for a preliminary ruling. However, the Council for asylum and immigration proceedings refused to do so and dismissed his application.

Mr. Aquino then appealed this judgment to the Council of State (Raad van Staat/Conseil d'Etat) but later discontinued that appeal.

Meanwhile, Mr. Aquino had also initiated different proceedings against another decision adopted by a court that had denied him the privilege of electronic surveillance (instead of incarceration). The proceedings ultimately ended up before the Supreme Court (Hof van Cassatie/Cour de Cassation) where Mr. Aquino also asked the judges to make a preliminary reference to the ECJ on the interpretation of Directive 2004/38. The Supreme Court refused to refer a question for a preliminary ruling to the ECJ as well and also dismissed Mr. Aquino’s claim.

Following his unsuccessful actions, Mr. Aquino initiated new proceedings against Belgium arguing essentially that Belgium was liable for the breach of EU law committed by the Supreme Court and the Council for asylum and immigration proceedings on the ground that those courts, adjudicating as courts of last instance, had infringed EU law and disregarded their obligation to make a reference to the ECJ for a preliminary ruling. The Brussels Court of Appeal stayed the proceedings and referred the matter to the ECJ and to the Constitutional Court for two distinct preliminary rulings.

Issues before ECJ – Obligation for National Courts to Refer Cases to ECJ for Preliminary Ruling

In its first question to the ECJ, the Brussels Court of Appeal sought to know whether a court against whose decisions there is a right of redress under national law (in the case at hand, before the Council for asylum and immigration proceedings) should be regarded as a court adjudicating at last instance, if an appeal against a decision of that court was not examined because the applicant had abandoned the procedure.

In a judgment of 15 March 2017, the ECJ found that it does not qualify as a court adjudicating at last instance. According to the ECJ, the fact that an appellant discontinued a valid appeal against a Court judgment, does not affect the fact that the judgment of that court can be challenged before a higher court.

In its second question to the ECJ, the Brussels Court of Appeal asked whether a court adjudicating at last instance (in the case at hand the Supreme Court), may decline to refer a question to the ECJ for a preliminary ruling if the appeal is dismissed on grounds of inadmissibility.

The ECJ found that it could. According to the ECJ, Article 267 of the Treaty on the Functioning of the European Union (the “TFEU”) provides that courts adjudicating at last instance are obliged to make a reference to the ECJ as soon as a question of interpretation of the TFEU is at stake. Nevertheless, it follows from settled case-law of the ECJ that requests for a preliminary ruling should not be made for advisory opinions on general or hypothetical questions. Therefore, the ECJ held that, by deciding that the appeal before it was inadmissible, the Supreme Court was entitled to find that it was not necessary to refer a question to the ECJ for a preliminary ruling.

Issue Before Constitutional Court –Supreme Court's Impartiality

In its question to the Constitutional Court, the Brussels Court of Appeal asked whether the fact that an appeal against its judgment would be brought before the Supreme Court violated the principle of impartiality given that the Supreme Court had already ruled previously in the same case and would then be ruling on the legality of its own judgment.

On 23 February 2017, the Constitutional Court held that the provisions of the Judicial Code on impartiality (i.e., Articles 828, 1° and 831 of the Judicial Code) were sufficiently clear as to avoid any risk of bias. Moreover, the rules on the organisation of the Supreme Court, laid down in Articles 132, 133 and 317 of the Judicial Code, contribute to ensuring the Court’s subjective and objective impartiality. Consequently, the Constitutional Court held that the potential conflict situation identified by the Brussels Court of Appeal does not give rise to any violation of the principle of impartiality.

Having received the responses of both the ECJ and the Constitutional Court, the Brussels Court of Appeal will now have to determine whether Belgium was liable for a breach of EU law committed by its own courts.