17.11.2014

Official Journal of the European Union

C 409/10

Judgment of the Court (Fifth Chamber) of 11 September 2014 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — A v B and Others

(Case C-112/13) (1)

((Article 267 TFEU - National constitution - Interlocutory procedure for the mandatory review of constitutionality - Assessment as to whether a national law is consistent both with EU law and with national constitutional law - Jurisdiction and the enforcement of judgments in civil and commercial matters - Where the defendant has no known domicile or place of residence in the territory of a Member State - Prorogation of jurisdiction where the defendant enters an appearance - Court-appointed representative in absentia for the defendant))

2014/C 409/14

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: A

Defendants: B, C, D, E, F, G, H

Operative part of the judgment

EU law and, in particular, Article 267 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which ordinary courts hearing an appeal or adjudicating at final instance are under a duty, if they consider a national statute to be contrary to Article 47 of the Charter, to apply, in the course of the proceedings, to the constitutional court for that statute to be generally struck down, and may not simply refrain from applying that statute in the case before them, to the extent that the priority nature of that procedure prevents — both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question — all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. On the other hand, EU law and, in particular, Article 267 TFEU must be interpreted as not precluding such national legislation to the extent that those ordinary courts remain free:

—	to make a reference to the Court at whatever stage of the proceedings they consider appropriate, and even at the end of the interlocutory procedure for the review of constitutionality, in respect of any question which they consider necessary,

—	to adopt any measure necessary to ensure interim judicial protection of rights conferred under the EU legal order, and

—

to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to EU law.

It is for the referring court to ascertain whether the national legislation at issue before it can be construed in such a way as to meet those requirements of EU law.

Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, if a national court appoints, in accordance with national legislation, a representative in absentia for a defendant upon whom the documents instituting proceedings have not been served because his place of domicile is not known, the appearance entered by that representative does not amount to an appearance being entered by that defendant for the purposes of Article 24 of that regulation.

(1) OJ C 226, 3.8.2013.