Joined Cases C‑554/21, C‑622/21 and C‑727/21

Financijska agencija

v

Hann-Invest d.o.o.,
Mineral-Sekuline d.o.o.
and
Udruga KHL Medveščak Zagreb

(Request for a preliminary ruling
from the Visoki trgovački sud Republike Hrvatske)

Judgment of the Court (Grand Chamber) of 11 July 2024

(Reference for a preliminary ruling – Second subparagraph of Article 19(1) TEU – Effective legal protection in the fields covered by Union law – Independence of the judiciary – Tribunal previously established by law – Fair hearing – Case-law Registration Service – National legislation providing for a registrations judge to be established in courts of second instance having, in practice, the power to stay the delivery of a judgment, to give instructions to judicial panels and to request that a section meeting be convened – National legislation providing for the power, for meetings of a section or of all judges of a court, to put forward binding ‘legal positions’, including for cases which have already been deliberated)

1. Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – Obligation on Member States to provide for remedies sufficient to ensure effective legal protection – Questions concerning a national court likely to rule on questions concerning the interpretation or application of EU law – Included

   (Art. 19(1), second subpara., TEU; Art. 267 TFEU)

   (see paragraphs 35-38)

2. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Right to an independent and impartial tribunal previously established by law – National rules relating to the composition of judicial panels – Conditions

   (Art. 2 and Art. 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Art. 47, second para., and Art. 52(3))

   (see paragraphs 44-59)

3. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Mechanism internal to a national court which makes the sending of a judicial decision to the parties subject to the content of the decision being approved by a judge not forming part of the judicial panel – Not permissible

   (Art. 19(1), second subpara., TEU)

   (see paragraphs 61-69, 81, operative part)

4. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Mechanism internal to a national court providing for the power for a meeting of judges of a court to compel the judicial panel to alter the content of the judicial decision previously adopted – Not permissible

   (Art. 19(1), second subpara., TEU)

   (see paragraphs 70-79, 81, operative part)

5. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Right to an independent and impartial tribunal previously established by law – National measures intended to avoid or resolve conflicts in case-law – Procedural mechanism allowing a judge of a national court not forming part of the judicial panel to refer a case to a panel of that court sitting in extended composition – Whether permissible – Conditions

   (Art. 19(1), second subpara., TEU)

   (see paragraph 80)

Résumé

The Grand Chamber of the Court of Justice has found that a mechanism internal to a national court providing for the intervention, in the decision-making process of the judicial panel responsible for a case, of other judges of the court concerned in order to ensure the consistency of its case-law, is incompatible with the requirements inherent in the right to effective legal protection and to a fair hearing.

Questions were referred to the Court on this issue by the Visoki trgovački sud (Commercial Court of Appeal, Croatia), before which three appeals had been brought against orders issued in insolvency proceedings. The referring court, sitting as judicial panels of three judges, examined the three appeals and dismissed them unanimously, thereby upholding the judgments delivered at first instance. The judges of that court signed their judgments and subsequently forwarded them to the Case-law Registration Service. ( 1 )

The judge of the Registration Service (‘the registrations judge’) refused to register those three judicial decisions and referred them back to the respective judicial panels, together with a letter stating that he was not in agreement with the approaches adopted. In two of those cases (C‑554/21 and C‑622/21), the registrations judge referred to other decisions of the referring court adopting different approaches from those adopted in the cases in the main proceedings. In the third case (C‑727/21), he stated that he was not in agreement with the legal interpretation adopted by the judicial panel, albeit he did not make reference to any other judicial decision.

Thereafter, in Case C‑727/21, the judicial panel met to begin fresh deliberations. After reviewing the appeal and the opinion of the registrations judge, it decided not to alter the outcome arrived at previously. It therefore issued a new judicial decision and forwarded it to the Registration Service.

Favouring a different legal approach, the registrations judge transmitted that case in the main proceedings to the referring court’s Section for Commercial Litigation and Other Disputes. That section then adopted a ‘legal position’ in which it accepted the outcome favoured by the registrations judge. The same case in the main proceedings was then referred back to the judicial panel concerned for it to give a ruling in accordance with that ‘legal position’.

Harbouring doubts as to the compliance with EU law of a mechanism providing for the intervention, in its decision-making process, of the registrations judge and other judges of a court adopting ‘legal positions’, the referring court decided to make a reference to the Court of Justice for a preliminary ruling.

Findings of the Court

The Court states, first of all, that any national measure or practice intended to avoid or resolve conflicts in case-law, and thus to ensure the legal certainty inherent in the principle of the rule of law, must comply with the requirements stemming from the second subparagraph of Article 19(1) TEU.

In the first place, it examines, in the light of those requirements, the practice according to which the judicial decision adopted by the judicial panel responsible for the case may be regarded as final and sent to the parties only if its content has been approved by a registrations judge who does not form part of that judicial panel.

In that regard, it points out that, while the registrations judge cannot substitute his or her own assessment for that of the judicial panel responsible for the case, he or she can, in fact, block registration of the judicial decision adopted and thus hinder the completion of the decision-making process and the notification of that decision to the parties. He or she is thus able to refer the case back to that judicial panel for a re-examination of that decision in the light of his or her own legal observations and, if he or she continues to be in disagreement with that judicial panel, invite the president of the relevant section to convene a section meeting for the purpose of adopting a ‘legal position’, which will be binding, inter alia, on that judicial panel. The effect of such a practice is to allow the registrations judge to intervene in the case in question, and that intervention may lead to that judge influencing the final outcome in that case.

However, first, the national legislation at issue in the main proceedings does not appear to make provision for such intervention of the registrations judge. Second, that intervention occurs after the judicial panel to which the case concerned has been assigned has, following its deliberations, adopted its judicial decision, even though the registration judge is not a member of that judicial panel and did not therefore participate in the earlier stages of the proceedings which led to that decision being taken. Third, the power of the registrations judge to intervene does not even appear to be circumscribed by clearly stated objective criteria which reflect a specific justification and are capable of preventing the exercise of discretion.

In view of those circumstances, the Court finds that the registrations judge’s intervention is incompatible with the requirements inherent in the right to effective judicial protection.

In the second place, the Court examines the national legislation which allows a section meeting of a national court to compel, by putting forward a ‘legal position’, the judicial panel responsible for the case to alter the content of the judicial decision which it previously adopted, even though that section meeting also includes judges other than those of that judicial panel and, as the case may be, persons outside of the court concerned before whom the parties do not have the opportunity to put forward their arguments.

In that regard, it states that intervention in the form of the section meeting in fact allows a group of judges participating in that section meeting to intervene in the final resolution of a case that has previously been deliberated and decided upon by the judicial panel having jurisdiction but that has not yet been registered and sent. The prospect that, in the event that that judicial panel maintains a legal view that is contrary to that of the registrations judge, its judicial decision will be subject to review by a section meeting, and the obligation on that judicial panel to respect, after deliberations which have concluded, the ‘legal position’ set out by that section meeting, are likely to influence the final content of that decision.

First, it is not apparent that the power of the section meeting to intervene at issue in the main proceedings is sufficiently circumscribed by objective criteria that are applied as such. In particular, it is not apparent from the provision governing the convening of a section meeting ( 2 ) that that meeting may be convened, as in Case C‑727/21, simply on the ground that the registrations judge does not share the legal view of the judicial panel having jurisdiction. Second, the convening of a section meeting and the formulation by that section meeting of a ‘legal position’ that is binding, inter alia, on the judicial panel responsible for that case, are not at any stage brought to the attention of the parties. The parties do not therefore seem to have the possibility of exercising their procedural rights before such a section meeting.

In the light of the foregoing, the Court finds that the national legislation at issue is incompatible with the requirements inherent in the right to effective judicial protection and to a fair hearing.

The Court goes on to state that, in order to avoid or resolve conflicts in case-law and thus to ensure the legal certainty inherent in the principle of the rule of law, a procedural mechanism which allows a judge of a national court, who is not a member of the judicial panel with jurisdiction, to refer a case to a panel of that court sitting in extended composition is not contrary to the requirements stemming from the second subparagraph of Article 19(1) TEU, provided that the case has not yet been deliberated by the judicial panel initially designated, that the circumstances in which such a referral may be made are clearly set out in the applicable legislation and that the referral does not deprive the persons concerned of the possibility of participating in the proceedings before the panel sitting in extended composition. In addition, the judicial panel initially designated can always decide to make such a referral.

( 1 ) In accordance with Article 177(3) of the Sudski poslovnik (Rules of Procedure of the Courts), which states: ‘Before a court of second instance, a case shall be deemed to be closed on the date on which the decision is sent from the office of the judge concerned, after the case has been returned by the Registration Service. The Registration Service shall be required to return the case file to the office of that judge as promptly as possible after receipt thereof. That decision shall then be notified within a further period of eight days.’

( 2 ) Article 40(1) of the Zakon o sudovima (Law on judicial bodies) provides that a section meeting or a meeting of judges shall be convened where it is found that there are differences in interpretation between sections, chambers or judges regarding questions relating to the application of the law or where a chamber or a judge of a section departs from the legal position previously adopted.