Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

The European Court of Human Rights’ (ECHR) judgment in the Schipani vs. Italy case, issued on July 21, 2015, revisited a topic of significant interest to EU legal experts: the violation of the ECHR by a national court due to its failure to request a preliminary ruling. This judgment, released just before the summer break, might have slipped under the radar for some.

Schipani vs. Italy isn’t groundbreaking; rather, it reaffirms a legal principle established by the ECHR in the recent Dhahbi vs. Italy case.

In Dhahbi vs Italy, the ECHR determined that when a highest national court declines to request a ruling from the Court of Justice without providing any justification, it violates Article 6 of the ECHR (right to a fair trial). Therefore, if a supreme court refuses to utilize Article 267 TFEU (the provision concerning references to the CJEU) without any justification, even when the appellant has raised this point on appeal, such refusal constitutes a breach of Article 6 ECHR.

Schipani vs. Italy follows a similar line of reasoning (incidentally, it involves the same national court). In this instance, the Corte de Cassazione considered the EU law arguments but neglected to address whether the matter at hand was an acte clair or an acte éclairé. The ECHR, after examining the content of the disputed national judgment, concluded, “it is therefore not clear from the reasoning of the impugned judgment whether that question was considered not to be relevant or to relate to a provision which was clear or had already been interpreted by the CJEU, or whether it was simply ignored.” Consequently, the court found a violation of Article 6 ECHR.

A noteworthy aspect of Schipani is that, unlike Dhahbi, the judgment isn’t unanimous. Judge Wojtyczek’s dissenting opinion is insightful and deserves attention.

Judge Wojtyczek argues that the determination of an Article 6 ECHR violation due to the lack of a preliminary reference shouldn’t hinge on an objective and automatic standard. Instead, the violation should be assessed based on the severity of the impact the disputed decision has on the applicant’s rights. In other words, not every instance of an unjustified refusal to seek a preliminary ruling should automatically constitute an Article 6 ECHR violation, particularly when the absence of a referral might not necessarily result in a significant disadvantage for the applicant.

This concept of the severity of interference is logical, especially for a court solely responsible for safeguarding human rights. Naturally, the Court of Justice might have different policy considerations when interpreting the EU law equivalent of Article 6 ECHR: Article 47 of the EU Charter of Fundamental Rights. The Court of Justice, after all, interprets Article 47 within the broader context of the EU legal system, which it is tasked with upholding. This broader EU law context might necessitate the Court of Justice to prioritize its cooperative relationship with national courts, given the obligation of sincere cooperation. Nevertheless, ensuring the uniform interpretation and application of EU law undoubtedly falls under the jurisdiction of the Court of Justice.

Surprisingly, when it comes to Article 267 TFEU, the opposite seems to be occurring. The Strasbourg court is implementing a relatively “objective” and rigorous system for reviewing national judgments from supreme courts obligated to refer cases to the CJEU as outlined in Article 267.3 TFEU. Conversely, the Court of Justice appears content with the Cilfit criteria, which afford national supreme courts considerable leeway.

This creates a paradoxical situation. The Strasbourg court, tasked with interpreting Article 6 ECHR, does so in a way that strengthens a strict interpretation of the obligation stipulated in Article 267.3 TFEU. Meanwhile, the Court of Justice appears more deferential towards its national counterparts when it comes to making references, introducing into said provision a unique variation of the “margin of appreciation” doctrine that is central to the Strasbourg court.

Advocates General have previously urged the Court of Justice to interpret Article 267 TFEU in light of Article 47 of the Charter. However, their efforts have been unsuccessful thus far. The developments in Strasbourg suggest that this approach might be worth reconsidering. Otherwise, the Court of Justice might find itself compelled to reinterpret Article 267 in light of Article 6 ECHR, driven by the mounting pressure from Strasbourg case-law in cases like Dhahbi, Schipani, and future similar cases.

In light of this, while the validity of Judge Wojtyczek’s interpretation of Article 6 ECHR is debatable, his argument undoubtedly warrants serious consideration.

Barnard & Peers: chapter 8, chapter 10

Photo credit: BBC News

*This post previously appeared on the ‘Despite our Differences’ blog