EUR-Lex Access to European Union law
This document is an excerpt from the EUR-Lex website
Document 62021CC0554
Opinion of Advocate General Pikamäe delivered on 26 October 2023.###
Opinion of Advocate General Pikamäe delivered on 26 October 2023.
Opinion of Advocate General Pikamäe delivered on 26 October 2023.
ECLI identifier: ECLI:EU:C:2023:816
Provisional text
OPINION OF ADVOCATE GENERAL
PIKAMÄE
delivered on 26 October 2023 (1)
Joined Cases C‑554/21, C‑622/21 and C‑727/21
Financijska agencija
v
HANN-INVEST d.o.o. (C‑554/21)
and
Financijska agencija
v
MINERAL-SEKULINE d.o.o. (C‑622/21)
and
UDRUGA KHL MEDVEŠČAK ZAGREB (C‑727/21)
(Request for a preliminary ruling from the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal, Croatia))
(Reference for a preliminary ruling – Second subparagraph of Article 19(1) TEU – Rule of law – Effective judicial protection in the fields covered by EU law – Article 47 of the Charter of Fundamental Rights of the European Union – Jurisdiction of the Court – Admissibility – Interpretation necessary for the referring court to be able to give judgment – Internal mechanism for ensuring the consistency of the case-law of a court of second instance – Principle of legal certainty – Principle of judicial independence – Requirement of access to a court or tribunal established by law and requirement of a fair trial)
1. Once the obvious fact that case-law is a source of law has been pointed out, the full extent and complexity of a court’s responsibilities become apparent, since it is the fulcrum of conflicting requirements, having to ensure legal certainty but also to innovate in order to adapt the law to developments in the society it is intended to regulate. The question has also been rightly raised in the legal literature: ‘Quelle part d’insécurité un système juridique peut-il supporter’ (‘How much uncertainty can a legal system tolerate?). (2)
2. If the answer to the question of the admissibility of the requests for a preliminary ruling is in the affirmative, the present cases provide the Court with an opportunity to strike a balance between the abovementioned requirements in carrying out an assessment of the compatibility of an internal procedural mechanism designed to ensure the consistency of a court’s case-law, an assessment which requires the need for judicial independence to be taken into account.
I. Legal framework
A. European Union law
3. Article 19(1) TEU is relevant in the present case.
B. Croation law
4. Article 37 of the Zakon o sudovima (Law on judicial bodies) (Narodne novine, br. 28/13, 33/15, 82/15, 82/16, 67/18, 126/19, 130/20) provides:
‘1. Courts which have several chambers or formations, including those comprising a single judge, ruling on matters falling within one or more related fields of law, shall establish sections comprising the judges ruling on those matters.
2. The section shall be established by the annual schedule for the assignment of judges, which shall designate the president of the section responsible for conducting its work. …’
5. Article 38 of that law provides:
‘1. Section meetings shall be concerned with the examination of matters of importance to the work of a section – that is to say, in particular, the organisation of its internal activities, disputed points of law, the harmonisation of case-law and issues relevant to the application of the legislation in each field of law – and with monitoring the work and training of the judges, legal advisers and trainee judges assigned to the section.
2. At the meetings of the sections of the Županijski sud (County Court), of the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal), of the Visoki upravni sud Republike Hrvatske (Administrative Court of Appeal), of the Visoki kazneni sud Republike Hrvatske (Criminal Court of Appeal) and of the Visoki prekršajni sud Republike Hrvatske (Higher Misdemeanour Court), matters of common interest to the lower courts within the area of jurisdiction of those courts shall also be examined.
3. The meetings of a section of the Vrhovni sud Republike Hrvatske (Supreme Court) shall be concerned with examining matters of common interest to some or all of the courts within the territory of the Republic of Croatia and with examining and giving an opinion on draft legislation in a specific legal field.’
6. According to Article 39 of that law:
‘1. The president of a section or the president of the court shall convene a section meeting whenever necessary and at least once every three months; he or she shall direct its work. Where the president of the court takes part in the work of a section meeting, he or she shall chair the meeting and participate in the decision-making process.
2. A meeting of all the judges of the court must be convened at the request of a section of the court or of one quarter of all the judges.
3. At meetings of the judges of the court or of the section, decisions shall be taken by a majority of the votes of the judges or of the judges of the section.
4. Minutes of the work of the meeting shall be taken.
5 . The president of the court or of the section may also invite eminent scientists and experts in a specific legal field to participate in the meeting of all the judges or of the section.’
7. Article 40 of the Law on judicial bodies provides:
‘1. 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.
2. The legal position adopted at the meeting of all the judges or of a section of the Vrhovni sud Republike Hrvatske (Supreme Court), of the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal), of the Visoki upravni sud Republike Hrvatske (Administrative Court of Appeal), of the Visoki kazneni sud Republike Hrvatske (Criminal Court of Appeal), of the Visoki prekršajni sud Republike Hrvatske (Higher Misdemeanour Court) and of the meeting of a section of a Županijski sud (County Court) shall be binding on all the chambers or judges at second instance of that section or court.
3. The president of a section may, where appropriate, invite university law professors, eminent scientists or experts in a specific field of law to participate in the section meeting.’
8. Article 41 of that law provides:
‘1. The president of the court shall appoint, in the annual schedule for the assignment of judges, one or more judges responsible for monitoring and examining case-law …’
9. Article 177(3) of the Sudski poslovnik (Rules of Procedure of the Courts (Narodne novine, br. 37/14, 49/14, 8/15, 35/15, 123/15, 45/16, 29/17, 33/17, 34/17, 57/17, 101/18, 119/18, 81/19, 128/19, 39/20 and 47/20) provides:
‘A case before a court of second instance shall be deemed to be closed on the date on which the decision is sent from the court office, after the case has been returned by the Case-law Monitoring and Registration Service. The Case-law Monitoring and Registration Service shall be required to return the file to the court office as promptly as possible after receipt thereof. The decision shall then be notified within a further period of eight days.’
II. The disputes in the main proceedings and the questions referred for a preliminary ruling
10. Three appeals are pending before the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal), the referring court in the main proceedings. In Cases C‑554/21 and C‑622/21, the appeals concern orders dismissing the application by the Financijska agencija (Financial Agency) for reimbursement of the costs of its involvement in insolvency proceedings. In Case C‑727/21, the appeal concerns an order dismissing the application of the appellant in the main proceedings to open court-supervised administration proceedings.
11. In those three cases, the referring court, sitting as judicial panels of three judges, examined the appeals and dismissed them with the unanimity of its members, thereby upholding the decisions at first instance. The decisions of those panels were signed and then forwarded to the Case-law Monitoring and Registration Service, in accordance with Article 177(3) of the Rules of Procedure of the Courts.
12. According to that provision, and as explained by the referring court, in a case adjudicated upon at second instance, the court’s task is considered to be completed only when the case is registered by the Case-law Monitoring and Registration Service and then returned to the judicial panel in order for the decision to be sent to the parties. The case is deemed to be closed only on the date that the decision is sent. The judicial decision is therefore considered to be finalised, despite the fact that it has been adopted by a judicial panel, only when it is confirmed by a judge from that service (‘the registrations judge’), who is appointed by the president of the court concerned, in his or her capacity as the body responsible for judicial administration, under the annual schedule for the assignment of judges. That procedure is not provided for by law as a condition for the adoption of a judicial decision, but is a practice of the courts of second instance based on the Rules of Procedure of the Courts.
13. The referring court states that, in the three cases in the main proceedings, the registrations judge refused to register the decisions adopted and returned them together with a supporting letter. In Cases C‑554/21 and C‑622/21, that letter refers to the finding of a conflict with other decisions concerning similar disputes, whereas in Case C‑727/21 the letter expresses that judge’s disagreement with the legal interpretation adopted by the chamber in the main proceedings, without making any reference to any conflicting case-law.
14. Following those refusals to register the decisions, the referring court decided, in Cases C‑554/21 and C‑622/21, to make references to the Court of Justice for a preliminary ruling in view of the doubts raised as to the compatibility of Article 177(3) of the Rules of Procedure of the Courts with EU law. As regards Case C‑727/21, after the referring court maintained its original decision and sent it back to the registrations judge, that judge forwarded it to the referring court’s Section for Commercial Litigation and Other Disputes so that the legal issue in question could be examined at a section meeting. At its meeting, that section adopted a ‘legal position’ in which it accepted the solution favoured by the registrations judge. Subsequently, the case was again referred back to the chamber for a ruling, pursuant to Article 40(2) of the Law on judicial bodies, in accordance with that legal position, a situation which led to the order for reference in Case C‑727/21.
15. In the light of the main proceedings, the referring court considers that the registrations judge, who is not known to the parties, whose role is not provided for by the rules of procedure applicable to appeals and who, although not a higher court, is capable of prompting a chamber having jurisdiction to alter its decision, may, by his or her actions, be in breach of the requirement of judicial independence. The referring court states that the existence of such a form of registration of judicial decisions has been justified, to date, by the need to harmonise case-law. However, the way in which that registration service proceeds following the adoption of a judicial decision is, in the view of the referring court, contrary to the fundamental right of judicial independence, in so far as that service itself chooses the decisions which will be sent to the parties by the court.
16. Moreover, in Case C‑727/21, with regard to meetings of a court section, the referring court states that this is a body which is not provided for by the Code of Civil Procedure and that the items on the agenda for those meetings are determined solely by registrations judges and the presidents of the sections. The parties to the various proceedings have no knowledge of the function of that meeting and cannot participate in it. A judicial panel’s decision can be examined and altered only following an action brought by the parties before the court having jurisdiction in the context of legal proceedings of which the parties are aware and not as a result of the opinion of a judge who does not form part of that panel or as a consequence of a general meeting of judges.
17. In those circumstances, the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal) decided, in each of the three joined cases, to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘Is the rule laid down in the second part of the first sentence and in the second sentence of Article 177(3) of the [Rules of Procedure of the Courts], which provides that “a case before a court of second instance shall be deemed to be closed on the date on which the decision is sent from the court office, after the case has been returned by the Registration Service[;] the Registration Service shall be required to return the file to the court office as promptly as possible after receipt thereof[;] the decision shall then be notified within a further period of eight days”, to be considered compatible with Article 19(1) TEU and Article 47 of the [Charter of Fundamental Rights of the European Union (“the Charter”)]?’
18. In addition, in Case C‑727/21, the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal) decided to refer the following question to the Court for a preliminary ruling:
‘(2) Is Article 40(2) of the [Law on judicial bodies], which provides that “the legal position adopted at the meeting of all the judges or of a section of the Vrhovni sud Republike Hrvatske [Supreme Court], of the Visoki trgovački sud Republike Hrvatske [Commercial Court of Appeal], of the Visoki upravni sud Republike Hrvatske [Administrative Court of Appeal], of the Visoki kazneni sud Republike Hrvatske [Criminal Court of Appeal], [of the] Visoki prekršajni sud Republike Hrvatske [Higher Misdemeanour Court] and of the meeting of a section of a Županijski sud [County Court] shall be binding on all the chambers or judges at second instance of that section or court” compatible with Article 19(1) TEU and Article 47 of the [Charter]?’
III. Procedure before the Court
19. By decision of the President of the Court of Justice of 14 March 2022, Cases C‑554/21, C‑622/21 and C‑727/21 were joined for the purposes of the written and oral procedure and the judgment.
20. The Croatian Government and the European Commission submitted written observations in Cases C‑554/21, C‑622/21 and C‑727/21. Written observations were lodged by the appellant in the main proceedings in Case C‑554/21. The Croatian Government and the Commission presented oral argument at the hearing on 5 June 2023.
IV. Analysis
21. As is apparent from the requests for a preliminary ruling, the referring court considers that it must obtain from the Court an interpretation of Article 19(1) TEU and Article 47 of the Charter in view of its doubts as to whether Article 177(3) of the Rules of Procedure of the Courts and Article 40(2) of the Law on judicial bodies, which govern the decision-making process in Croatian courts of second instance, are in conformity with those provisions of EU law.
22. Although none of the parties made observations on the Court’s jurisdiction and the admissibility of those requests for a preliminary ruling, it is important to bear in mind that, according to settled case-law, the Court itself must examine the circumstances in which cases are referred to it by the national court in order to assess whether it has jurisdiction or whether the request submitted to it is admissible. (3)
A. Jurisdiction of the Court
23. It is important to point out that, in the context of a reference for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred on it. (4)
24. In the first place, as regards the application of the second subparagraph of Article 19(1) TEU, it should be recalled that, under that provision, Member States are to provide remedies sufficient to ensure effective judicial protection for individuals in the fields covered by EU law. Thus, it is for the Member States to provide a system of remedies and procedures to ensure effective judicial review in those fields. It follows from the Court’s case-law that, as regards the scope of the second subparagraph of Article 19(1) TEU, that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing EU law within the meaning of Article 51(1) of the Charter. (5)
25. The second subparagraph of Article 19(1) TEU is intended inter alia to apply to any national body which can rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and which therefore fall within the fields covered by that law. This is true of the referring court, which may be called upon, in its capacity as an ordinary Croatian court, to rule on questions relating to the application or interpretation of EU law and, as a ‘court or tribunal’ within the meaning of EU law, forms part of the Croatian judicial system in the ‘fields covered by Union law’, (6) within the meaning of the second subparagraph of Article 19(1) TEU, so that that court must meet the requirements of effective judicial protection. Moreover, it should be borne in mind that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU. (7)
26. It follows from the foregoing that, in the present cases, the Court has jurisdiction to interpret the second subparagraph of Article 19(1) TEU.
27. In the second place, the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. As is clear from the Court’s settled case-law, where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction. (8)
28. In the present case, as regards, more specifically, Article 47 of the Charter, which is the subject matter of the present requests for a preliminary ruling, it should be noted that the disputes before the referring court concern, in essence, the reimbursement of the costs incurred by a public body following its involvement in insolvency proceedings and the validity of a decision at first instance rejecting the application of an association, established in Zagreb (Croatia), for the opening of court-supervised administration proceedings. With regard specifically to the field of insolvency proceedings, it is common ground that various measures have been adopted by the EU legislature which relate to that field. (9) However, the referring court makes no reference to any provision of EU law concerning that field which is applicable to the disputes in question and does not actually put forward any evidence to suggest that the cases in the main proceedings, which are succinctly referred to in the orders for reference, fall within the scope of EU law. It must be pointed out that the recognition of the right to an effective remedy enshrined in Article 47 of the Charter, in a given case, presupposes that the person invoking that right is relying on rights or freedoms guaranteed by EU law. It is not apparent from the orders for reference, however, that the appellants in the main proceedings relied on a right conferred on them by a provision of EU law. (10)
29. It follows from the foregoing that there is nothing to indicate that the disputes in the main proceedings relate to the interpretation or application of a rule of EU law which is implemented at national level. Therefore, the Court does not have jurisdiction to interpret Article 47 of the Charter in the present cases.
B. The admissibility of the requests for a preliminary ruling
30. This issue seems to me to be of singular importance in the light of the very broad scope of the second subparagraph of Article 19(1) TEU, as interpreted by the Court, and having regard to the corresponding jurisdiction of the latter. (11) Since the adoption of the judgment in Associação Sindical dos Juízes Portugueses, (12) the Court has received a number of references for a preliminary ruling requesting an interpretation of that provision in a wide range of cases – some revealing serious infringements of the rule of law and, in particular, serious breaches of judicial independence, and others concerning the issue of the failure to promote a judge, his or her grading on the salary scale, the rules governing the allocation of cases within a court, the status of a signatory to a defence or the moment when a judgment is delivered – which have no clear link to the subject matter of the dispute in the main proceedings. (13) Rigour in the assessment of admissibility appears, in that context, to be the only possible limit to the examination of requests for preliminary rulings which are contrary to the spirit and purpose of that legal remedy, namely the co-construction, by the Court and the national court, in accordance with their respective jurisdictions, of a solution to the specific dispute before the national court.
31. In the light of the relevant case-law of the Court and, more particularly, its consolidated expression in the judgment in Miasto Łowicz, it is important to point out that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them, and that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. It is apparent from the actual wording of Article 267 TFEU that the decision on the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. The Court has thus repeatedly held that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling. In preliminary ruling proceedings, the Court’s function is to help the referring court to resolve the specific dispute pending before that court. In such proceedings, there must therefore be a connecting factor between that dispute and the provisions of EU law whose interpretation is sought, by virtue of which that interpretation is objectively required for the decision to be taken by the referring court. (14)
32. It is apparent from the judgment in Miasto Łowicz that that connecting factor may be direct or indirect, on the basis of the three admissibility scenarios set out in that judgment. It is direct where the national court is required to apply the EU law whose interpretation is sought in order to determine the substantive solution to be given to the main dispute (first scenario). It is indirect where the order for reference is capable of providing the referring court with an interpretation of the procedural provisions of EU law which it is required to apply in order to give judgment (second scenario) or an interpretation of EU law which would allow it to resolve procedural questions of national law before it, before being able to rule on the substance of the dispute before it (third scenario). (15)
33. As already pointed out above, the disputes in the main proceedings have some substantive connection with EU law on insolvency proceedings, though the referring court requests no interpretation of any provision of that body of law by the Court, making that connection manifestly insufficient to satisfy the criterion of necessity. Nor is it apparent from the requests for a preliminary ruling that the referring court is required to apply the second subparagraph of Article 19(1) TEU, to which the questions referred relate, in order to determine the substantive solution to be given to those disputes concerning the responsibility for costs or the conditions for the opening of insolvency proceedings.
34. It appears, in actual fact, that the referring court, by the questions referred to the Court for a preliminary ruling and by the interpretation of EU law which it requests, seeks clarification not as to the substance of the disputes before it but rather as to a procedural question, in the broad sense, (16) of national law to be settled by it in limine litis, in so far as that question relates to the power of the referring court to rule on those disputes with complete independence within the framework of an internal mechanism which seeks to ensure the consistency of that court’s case-law and involves other judicial bodies. The referring court has adequately set out the reasons which prompted it in the present case to inquire about the interpretation of the second subparagraph of Article 19(1) TEU and, in particular, the relationship which it sees between that Treaty provision and the national provisions which, in its view, are liable to influence the judicial process before delivery of its judgments. According to the referring court, the Court’s response as to the compatibility of the abovementioned mechanism with EU law will determine whether or not the referring court is able to depart from the legal positions adopted by the section of judges concerned in relation to the disputes in the main proceedings.
35. Nevertheless, those considerations in no way alter the subject matter of those disputes or the earlier observation that it is not apparent from the requests for a preliminary ruling that they relate to questions of EU law. The fact that the Court’s interpretation of the second subparagraph of Article 19(1) TEU may, having regard to the nature of the procedural issues raised in the requests for a preliminary ruling, have a bearing on how the referring court will decide the disputes in the main proceedings does not mean that it is necessary for the substantive resolution of disputes relating to EU law.
36. Must the Court therefore answer questions submitted by the referring court which are actually necessary for it to resolve, in limine litis, a national procedural issue that may have an adverse effect on the Member States’ obligation under the second subparagraph of Article 19(1) TEU before giving judgment on the substance of disputes which have no connection with EU law? This is, in my view, a delicate question.
37. It should be recalled, in the first place, that in the judgment in Miasto Łowicz the Court examined in turn the admissibility of the questions referred in the light of three separate and autonomous situations which satisfied the criterion of necessity and concluded that those questions were inadmissible, emphasising, as regards the third scenario, the difference from the cases giving rise to the judgment in A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), (17) in which the interpretation sought from the Court was such as to have a bearing on the issue of determining which court had jurisdiction for the purpose of settling disputes ‘relating to EU law’. (18)
38. In the second place, the formulation, in the judgment in Miasto Łowicz, of the third admissibility scenario, in addition to the more customary scenario of a direct substantive connection between the dispute in the main proceedings and EU law, does not mean that that scenario must necessarily be understood, in order to give it meaning, as having to apply to a case in which no such connection exists. It is in fact necessary to take account of the wide range of references for a preliminary ruling and to undertake an analysis in the light of each question referred. Orders for reference may, as in the present case, put questions to the Court relating solely to a national procedural issue or combine various types of questions, some relating directly to the substance of the dispute in main proceedings and others involving a national procedural issue: the former questions may be held admissible unlike the latter ones. (19)
39. In the third place, in the light of the wording of the second subparagraph of Article 19(1) TEU, which refers generally to ‘the fields covered by Union law’, irrespective of the situation in which the Member States implement that law, the basis for the Court’s jurisdiction cannot be the basis for the admissibility of references for a preliminary ruling, as this would confuse two separate legal concepts and render that latter requirement meaningless.
40. It is true that judicial independence is legally indivisible and, as Advocate General Bobek pointed out, (20) there is, in essence, no ‘judicial independence within the scope of EU law as opposed to judicial independence in purely national cases’. However pertinent that observation may be, it does not permit the Court to bypass the stage of examining the admissibility of the questions referred and thereby dispense with the need to consider whether EU law is in fact applicable in the dispute in the main proceedings which the referring court must resolve. (21)
41. The fact that the issue raised by the referring court appears to take on a certain importance, because of the systemic nature of the rules at issue with respect to the national judicial system, falls to be considered when examining not admissibility but the substance, that is to say whether those rules are compatible with the requirements of the second subparagraph of Article 19(1) TEU. A certain reluctance not to provide the referring court with a response and therefore not to examine a rule and a practice which potentially undermine Croatian judicial independence and which may, through the establishment of that mechanism for harmonising case-law, have a bearing on many other national legal systems cannot constitute the grounds, in this case the underlying grounds, for a decision as to admissibility. (22)
42. It must therefore be considered that, if the Court accepts that a question may be referred to it concerning a provision of EU law in order to resolve a question of national procedural law, so that the main proceedings may be conducted in compliance with EU law, it is only with a view to a decision by the referring court as to the substance of a dispute in the main proceedings relating to EU law. I must, however, acknowledge that, on that last point, the case-law of the Court subsequent to the judgment in Miasto Łowicz is not characterised by its uniformity, since it is true that certain decisions on the admissibility or otherwise of questions referred for a preliminary ruling are in line with that judgment (23) whereas others seem to depart from it and adopt, moreover, apparently contradictory solutions. (24)
43. In a recent judgment, the Court stated, in general terms, that questions referred for a preliminary ruling which seek to enable a referring court to settle, in limine litis, procedural difficulties such as those relating to its own jurisdiction to hear and determine a case pending before it, or which concern the legal effects which must or must not be conferred on a judicial decision which potentially precludes the continuation of the examination of such a case by that court, are admissible under Article 267 TFEU. (25) That approach seems to make the procedural issue as such autonomous in that it is capable of satisfying, in itself, the criterion of necessity under Article 267 TFEU. Nevertheless, the Court has clearly and solely referred only to two specific situations, distinct from that faced by the referring court, whose requests for a preliminary ruling neither contain any question as to its substantive jurisdiction to resolve the disputes in the main proceedings nor refer to any judicial decisions which preclude further consideration of those disputes.
44. Lastly, I think it is necessary to mention the second scenario referred to in the judgment in Miasto Łowicz. In that regard, although the Court has already held to be admissible questions referred for a preliminary ruling on the interpretation of procedural provisions of EU law which the referring court is required to apply in order to deliver its judgment, that is not the scope of the questions raised in the present joined cases, unless the second subparagraph of Article 19(1) TEU is to be included in the abovementioned category of rules. An examination of the relevant case-law of the Court shows that that category of rules concerns secondary legislation laying down specific rules of a procedural nature, particular circumstances which determined the solution adopted by the Court as regards admissibility. (26)
45. In that regard, it is important to point out that the Court has declared admissible a question referred for a preliminary ruling concerning the interpretation of Regulation (EC) No 1206/2001, (27) a question which had previously been found not to have any direct impact on the outcome of the dispute in the main proceedings concerning the payment of compensation under a non-compete clause. (28) The transposition of such a decision to the present cases, in conjunction with the Court’s interpretation of the second subparagraph of Article 19(1) TEU, in order to hold that it has jurisdiction, would lead to an extensive, not to say unlimited, application of that provision in a field, the organisation of justice in the Member States, which is supposed to fall within the jurisdiction of the Member States.
46. In the light of the foregoing observations, it must be considered that the questions referred to the Court for a preliminary ruling do not concern an interpretation of EU law which meets an objective need for the resolution of the disputes in the main proceedings, but are of a general nature, thereby justifying a finding that they are inadmissible.
47. For the sake of completeness in performing an Advocate General’s duty of assisting the Court, I shall nevertheless set out my substantive analysis of those questions.
C. Substance
48. It is apparent from the requests for a preliminary ruling that the referring court has doubts as to the compatibility with EU law of national rules and practice providing for the intervention, in the judicial decision-making process at second instance, of the registrations judge and the section of judges, in respect of which the referring court is separately and specifically seeking guidance from the Court. Since those interventions form part of a single mechanism designed to ensure the consistency of a court’s case-law, it is appropriate to assess the compatibility of that mechanism under the second subparagraph of Article 19(1) TEU by examining together the questions referred for a preliminary ruling. (29)
49. In order to assess the compatibility of that mechanism, it is necessary at the outset to emphasise, in the context of the prevention of conflicting judicial decisions, the importance of the principle of legal certainty.
1. The requirement of legal certainty
50. The principle of legal certainty, which is a general principle of EU law, is designed to ensure the foreseeability of situations and legal relationships governed by EU law. (30) In particular, it requires that legal rules be clear and precise and that their application be foreseeable by those subject to them, so that those concerned may know precisely the extent of the obligations which the legislation in question imposes on them and that they may be able to ascertain unequivocally what their rights and obligations are and take steps accordingly. (31)
51. The consistency of the case-law interpreting EU law, which is a source of foreseeability and thus of legal certainty, is clearly a major concern of the Court, including in the way it operates internally, since the consistency of that case-law constitutes its original mission. In accordance with settled case-law, the preliminary-ruling mechanism established by Article 267 TFEU aims to ensure that, in all circumstances, EU law has the same effect in all Member States and thus to avoid divergences in its interpretation which the national courts and tribunals have to apply, and tends to ensure that application. To that end, that article makes available to national judges a means of eliminating difficulties which may be occasioned by the requirement of giving EU law its full effect within the framework of the judicial systems of the Member States. (32)
52. Moreover, the Court considers that a vertical mechanism for the harmonisation of case-law, through the intervention of the supreme courts of Member States, is not in itself contrary to EU law, even though the decisions of those courts are binding on lower courts. A finding of incompatibility would be required only if national law failed to guarantee the independence of the supreme courts or if that mechanism were such as to prevent a national court from referring a question to the Court for a preliminary ruling. (33)
53. Nevertheless, as the ECtHR correctly observes, in the context of reviewing compliance with Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), the possibility of conflicting decisions as between national courts or within the same court is an inherent trait of any judicial system. While such a situation is not in itself contrary to the ECHR, the ECtHR points out that the principle of legal certainty, which is implicit in all the articles of the ECHR, guarantees a certain stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law. In those circumstances, the ECtHR held that it is the Contracting States’ responsibility both to organise their legal systems in such a way as to avoid the adoption of discordant judgments and to verify the establishment of mechanisms capable of ensuring both consistent practice within the courts and the harmonisation of case-law. (34)
54. It is interesting to note, first, that the mechanism for ensuring the consistency of case-law referred to in the present cases concerns Croatian courts of second instance, whereas the resolution of any contradictions or uncertainties arising from judgments containing divergent interpretations is in principle the role of a supreme court. (35) In my view, however, this in no way precludes the need to take account of harmonised case-law at second instance, in particular in view of the exceptional nature of possible appeals against the decisions of those courts. (36) The foreseeability of the law and the legal certainty which it entails must be the concern of all judicial bodies, whatever their level within the judicial system, in order to ensure the equality of all individuals before the law throughout a particular territory. Secondly, the mechanism at issue is intended to ensure horizontal consistency, with each court of second instance having to ensure that its own case-law is consistent, a consideration to which the ECtHR attaches particular importance. (37)
55. Although it is necessary to introduce mechanisms to ensure the consistency of case-law, such mechanisms cannot be introduced in breach of the right of access to an independent and impartial tribunal established by law.
2. Compliance with the right to effective judicial protection
56. It should be recalled that the European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU, which respect those values and which undertake to promote them. In particular, it follows from Article 2 TEU that the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails. In that regard, it should be noted that mutual trust between the Member States and, in particular, their courts and tribunals is based on the fundamental premiss that Member States share a set of common values on which the European Union is founded, as stated in that article. Moreover, compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. A Member State cannot therefore amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU. The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of the judiciary (38)
57. As is provided for by the second subparagraph of Article 19(1) TEU, it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law. The principle of the effective judicial protection of individuals’ rights under EU law thus referred to in the second subparagraph of Article 19(1) TEU is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the ECHR, and which is now reaffirmed by Article 47 of the Charter. (39)
58. Since the second subparagraph of Article 19(1) TEU requires all Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law, within the meaning in particular of Article 47 of the Charter, that latter provision must be duly taken into consideration for the purpose of interpreting the second subparagraph of Article 19(1) TEU, as must the case-law of the ECtHR relating to Article 6(1) of the ECHR. (40) To ensure that bodies which may be called upon to rule on questions concerning the application or interpretation of EU law are in a position to ensure such effective judicial protection, maintaining their independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy. (41)
59. While the issue of the independence of the formation seised is essential in the present cases, that concerning respect for the rights of the defence and the guarantee of access to a court or tribunal previously established by law must also be taken into account.
(a) The requirement that courts be independent
60. The requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded. (42)
61. According to settled case-law, the requirement that courts be independent has two aspects to it. The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. (43)
62. In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules applicable to the status of judges and the performance of their duties must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned, and thus preclude a lack of appearance of independence or impartiality on their part likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in individuals. (44)
63. Although the case-law of the Court recalled above is aimed primarily at safeguarding the independence of the courts vis-à-vis the legislature and the executive, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, it is fully applicable, in the light, inter alia, of the general nature of the wording used, in another context which may be regarded as purely internal. In the present case, the doubts expressed in the orders for reference in the light of the second subparagraph of Article 19(1) TEU concern, in essence, national provisions and practice relating to a mechanism for ensuring the consistency of case-law and providing for the intervention, in that connection, of two bodies forming part of the same court as the judges who made the decisions in question. In that regard, I would note that, in the context of a dispute arising out of a decision by the president of a court to transfer a judge, without his consent, from the division of that court in which he had previously held office to another division of the same court, the Court held that the requirement of judicial independence arising from the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, requires that the rules applicable to transfer without the consent of such judges present, like the rules governing disciplinary matters, in particular the necessary guarantees to prevent any risk of that independence being jeopardised by direct or indirect external interventions. (45)
64. That approach is supported by the unequivocal case-law of the ECtHR concerning Article 6(1) of the ECHR, according to which judicial independence demands that individual judges be free not only from undue influences outside the judiciary, but also from within. This internal judicial independence requires that they be free from directives or pressures from fellow judges or those who have administrative responsibilities in the court such as the president of the court or the president of a division in the court. In the absence of sufficient safeguards securing the independence of judges within the judiciary and, in particular, vis-à-vis their judicial superiors, it is reasonable to have doubts as to the independence and impartiality of the court. (46)
65. In the present case, can the intervention of the registrations judge and the section of judges, two judicial bodies at the same level as the judicial panel initially seised, be regarded as capable of undermining the requirement of independence of the members of that judicial panel? It seems to me that that question must be answered in the negative. (47)
66. In the first place, it is important to have regard to the literal interpretation of the relevant provisions of the national legislation relating to the functioning of a ‘section’, which, pursuant to Article 37 of the Law on judicial bodies, consists of the judges comprising the various chambers or formations of the court concerned, including those having a single-judge, ruling on matters falling within one or more related fields of law. Under Article 38 of that law, discussions at a section meeting concern ‘matters’ of interest to the section, including ‘disputed points of law’ and ‘the harmonisation of case-law’. Those discussions result in the adoption of a ‘legal position’, pursuant to Article 40(2) of that law; that term is significant, in so far as it precludes the concept of a resolution or decision in a particular case.
67. In the second place, the explanations provided by the Croatian Government and an examination of the file submitted to the Court confirm that interpretative analysis as to the functioning of a collegiate judicial body, which includes the judges of the formation seised, engaging in a general discussion relating to the interpretation of the rules at issue and the case-law relating thereto, and by majority vote ultimately adopting the judges’ common position as to the interpretation to be given. It is not disputed that, at the initiative of its president, a meeting, by videoconference, of the Commercial Disputes Section was held on 26 October 2021 attended by 28 judges, including the three members of the formation seised and the registrations judge. That meeting concerned, inter alia, the two legal issues, referred to in abstract terms on the agenda, which had given rise to exchanges between the registrations judge and that formation. The minutes of that meeting include the initial statement that the presence of 28 of the 31 judges comprising the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal) is sufficient for the adoption of valid decisions, ‘that is to say legal positions’, and sets out the various arguments of the judges, one of whom belongs to the formation seised, and the content of the legal position concerning each of the issues addressed. That position is characterised by its abstract nature and the absence of any reference to the main proceedings before the initial formation. Moreover, it follows from the observations of the Croatian Government that the files relating to those cases and containing the parties’ written submissions are not available to the section of judges and that only the first decision of the formation seised is communicated to the participants, together with case-law.
68. In the third place, it is for the chamber seised of the case to take into consideration the general interpretation of the applicable legal rules when adopting, in the light of the facts of the case and the evidence in the file, the appropriate legal solution in the cases before it. (48) That distinction between the interpretation of a legal rule and its application is recognised in other national legal systems and is the very essence of any preliminary ruling mechanism and, quite clearly, corresponds to that referred to in Article 267 TFEU. In that regard, it should be remembered that the purpose of the latter mechanism is to secure consistent and uniform interpretation of EU law by setting up a dialogue between the Court of Justice and the national courts. (49) The task entrusted to the Court by Article 267 TFEU is to provide any court or tribunal of the European Union with the points of interpretation of EU law which it needs in order to decide the actual disputes brought before it. (50) That provision does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. Accordingly, it is for the national courts, not the Court, to apply EU law in the light of the interpretation provided by the Court. (51)
69. The analysis set out above is fundamental to the assessment of Article 40(2) of the Law on judicial bodies, according to which the legal position adopted at a section meeting is binding on all that section’s chambers or judges at second instance. If the distinction between interpretation and application of the legal rule is accepted, the fact that the formation seised, which forms an integral part of a collegiate body which has discussed and voted by a majority for the adoption of the legal position, is required to implement that position, in the same way as a judgment of a supreme court ruling solely on the legal position, meets the objective of legal certainty without infringing the requirement of independence of the court. (52) To accept a mechanism for ensuring the consistency of case-law subject to the legal position being non-binding, as suggested by the Commission, would effectively mean that that position constituted mere guidance and its application was entirely uncertain.
70. In the fourth place, it is necessary to define the role of the registrations judge in the mechanism at issue. Although that judge has, according to the information provided by the referring court, the power to block the decision-making process and to prevent the decision of the formation seised of a case from formally becoming a judicial measure notified to the parties, he or she can under no circumstances substitute his or her assessment for that of that formation. The registrations judge can only refer the case back to that formation for reconsideration, together with his or her observations on the legal issues raised and, in the event of continuing disagreement with the chamber seised, that judge can only alert the president of the court or the president of the section responsible for directing its work, who have exclusive competence to refer a matter to that enlarged formation, ‘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’. (53) The assessment of those reasons is therefore a matter solely for those two bodies having competence to refer the matter to the section, (54) which, where appropriate, will adopt a legal position that is contrary to the approach of the registrations judge and will be binding on the latter as a judge of the section concerned. (55) The registrations judge therefore cannot be regarded as having the ‘last word’ in the deliberation process culminating in the adoption of a legal position, which has binding force as to the interpretation of the legal rule, and the subsequent decision of the formation seised.
71. Accordingly, the picture emerges of an internal procedural mechanism, common to various national legal systems, which, while not transferring the case concerned, provides for the involvement of an enlarged formation that does not give a decision settling the dispute in the place of the chamber initially seised but confines itself to ruling on a point of law and to referring the case back to the original judicial panel for the latter to rule on the dispute, taking into account the response provided by the enlarged formation. Depending on the legal system, the enlarged formation’s position may be advisory or, as in the present case, binding, (56) and be applicable solely to the initial formation or also to other formations.
72. Although in various national legal systems, only the chamber initially seised may make a referral to the enlarged formation, whether as a power or obligation, in the event that it proposes to depart from previous case-law, or where a divergence in case-law is identified or there exists a risk of such a divergence, a referral to the enlarged formation may be made by another judicial body, such as the president of the court or section concerned, who, in that case, is simply alerted by the registrations judge.
(b) The requirement to respect the rights of the defence
73. In its observations, the Commission stated that section meetings are not open to the public and that the parties are not able to put forward their arguments at those meetings. It was noted at the hearing that the minutes of those meetings are not circulated and that judges who have not read the parties’ written submissions or heard the parties participate in those meetings, considerations which raise the question of the fairness of the proceedings. The same applies to the intervention of the registrations judge.
74. It should be recalled that the fundamental principle of effective judicial protection of rights, reaffirmed in Article 47 of the Charter, and the concept of ‘a fair trial’, referred to in Article 6 ECHR, consist of various elements, which include, in particular, respect for the rights of the defence and the right to be advised, defended and represented. It is also apparent from the case-law of the Court that the right to be heard in all proceedings is inherent in respect for the rights of the defence thus enshrined in Articles 47 and 48 of the Charter, and that such a right guarantees every person the opportunity to make known his or her views effectively during those proceedings. (57)
75. In the present case, it is important to point out that, under Article 334 of the Croatian Code of Civil Procedure, ‘a court shall be bound by its judgment as soon as it has been published and, if the judgment has not been published, as soon as it is sent. The judgment shall not have effect on the parties until the day on which it is served on them’. According to Article 177(3) of the Rules of Procedure of the Courts, ‘a case before a court of second instance shall be deemed to be closed on the date on which the decision is sent from the court office, after the case has been returned by the Case-law Monitoring and Registration Service’.
76. It follows from the above provisions that the procedural mechanism in question forms part of the deliberation stage of the proceedings before the formation seised of a case, since no judicial decision is formally delivered after the discussions within that formation, regardless of whether there is majority or unanimous agreement among the judges comprising that formation after an initial deliberation. That deliberation stage follows proceedings during which the parties were able to present their claims and arguments inter partes, and its sole purpose is to allow judges to consider and analyse the dispute before them and its resolution in accordance with the applicable legal rules.
77. In the present case, those deliberations include a collegial discussion by the judges of the section concerned, who do not have access to the case file examined by the chamber seised, relating solely to an abstract interpretation of the relevant legal rule or rules that were a matter of debate during the preliminary inter partes proceedings. In that context, legal positions cannot, as a rule, be adopted on the basis of elements on which the parties have not had the opportunity to comment. Where discussions within the section ultimately lead to the conclusion that the dispute must be resolved in accordance with a legal rule which was not raised and debated by the parties during the inter partes proceedings, application of that legal position requires the reopening of the hearing in order to respect the audi alteram partem principle, which forms part of the rights of the defence. This does not mean that the discussions between the judges within the section cannot cover case-law not cited by the parties or take the form of reasoning by analogy with a provision other than that at issue in the case being heard by the chamber seised. Nonetheless, that analysis as to the essential question of law is, by its nature, the work of a judge.
78. If the distinction between the interpretation and application of a legal rule is accepted, it cannot be held, in the circumstances described above, that there has been a failure to observe the requirement of a fair trial.
(c) Access to a court or tribunal established by law
79. Relying on the settled case-law of the ECtHR, the Court has pointed out that the reason for the introduction of the term ‘established by law’ in the first sentence of Article 6(1) ECHR is to ensure that the organisation of the judicial system does not depend on the discretion of the executive, but that it is regulated by law emanating from the legislature in compliance with the rules governing its jurisdiction. That phrase reflects, in particular, the principle of the rule of law and covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case and any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular, including, in particular, provisions concerning the independence and impartiality of the members of the court concerned. (58)
80. In that regard, according to the ECtHR, while the right to a ‘tribunal established by law’ guaranteed in Article 6(1) ECHR constitutes an independent right, it is nevertheless very closely related to the guarantees of ‘independence’ and ‘impartiality’, within the meaning of that provision. Thus, that court inter alia found that, although the institutional requirements of Article 6(1) ECHR each have specific aims which render them specific guarantees of a fair trial, they have in common the fact that they seek to observe the fundamental principles of the rule of law and the separation of powers, noting, in that regard, that the need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlies each of those requirements. (59)
81. In the present case, the provisions of the national legislation referred to in the orders for reference are concerned not with the very existence and powers of the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal), elements for which the legal basis is established, but with its decision-making process, after the close of the written and, where relevant, oral inter partes proceedings, leading to the adoption of the final judicial measure resolving the dispute submitted by the parties and, more specifically, with the circumstances in which the section of judges and the registrations judge intervene in that decision-making process. Having regard to its fundamental implications for the proper functioning and the legitimacy of the judiciary in a democratic State governed by the rule of law, such a process necessarily constitutes an inherent element of the concept of a ‘tribunal established by law’, within the meaning of Article 6(1) ECHR. (60)
82. It should also be noted that the issue raised by the requests for a preliminary ruling is not that of a failure to comply with internal rules which make it possible to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors (61) but rather that of the existence of provisions governing the deliberation stage of the proceedings which may give rise to such doubt.
83. In that regard, I would point out that all the rules governing the functioning of the section of judges derive from the Law on judicial bodies. The legal basis for that section’s participation in the deliberation stage of the formation seised is therefore indisputable and offers the degree of foreseeability and certainty necessary to satisfy the requirement concerned. (62) Moreover, as has already been noted, the detailed rules governing that participation are not such as to give rise, in the minds of individuals, to reasonable doubts concerning the independence of the members of the formation seised.
84. The very existence of the registrations judge is also provided for by the Law on judicial bodies, and the title of the function contains the definition of its purpose, namely to monitor and analyse case-law. The referral of cases to the latter service, prior to decisions being sent from the court office, clearly follows from Article 177(3) of the Rules of Procedure of the Courts, and the implementing regulation for that law was adopted by the Minister for Judicial Affairs under the power conferred on him by Article 76 of that law. (63) Nevertheless, the precise definition of the nature of that function is set out neither in that law nor in that regulation, as regards in particular the power to suspend the registration of a decision of a judicial panel. That power derives from judicial practice or, according to the Croatian Government, has its textual basis in a judicial measure internal to the court.
85. However, it should be recalled that the role of the registrations judge is to monitor case-law and to identify similar cases in order to ensure that those cases are dealt with in a consistent manner and, where that is not the case, his or her final action is to notify, simply as a measure of judicial administration, the president of the section of judges so that a meeting can be convened and a binding legal position adopted after discussions and a majority vote. Logically, during the period required for the adoption of that position, the decision-making process is suspended.
86. Moreover, the function of the registrations judge must be seen in the context of the reasons for convening a section meeting concerning, according to Article 40(1) of the Law on judicial bodies, the existence of differences of 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. The intervention of the registrations judge contributes to the coherence and effectiveness of a mechanism for ensuring that the case-law of the court concerned is consistent.
87. In those circumstances, the specific intervention of the registrations judge in the decision-making process is in no way comparable in scope to that of the section so far as concerns the content of the judicial measure bringing an end to the dispute and, unlike that section, seems to me to fall outside the requirement contained in the term ‘established by law’. (64)
3. Interim conclusion
88. For the foregoing reasons, I consider that Article 19(1) TEU must be interpreted as not precluding a mechanism designed to ensure the consistency of a court’s case-law, such as that at issue in the main proceedings. In addition, that conclusion appears to me to be well founded in the light of the following two observations.
89. First, it is important to point out that neither Article 2 TEU nor the second subparagraph of Article 19(1) TEU, nor any other provision of EU law, requires Member States to adopt a particular constitutional model governing the relationships and interaction between the various branches of the State, in particular as regards the definition and delimitation of their competences, or an institutional model relating to the organisation of justice. (65) The determination of the latter, including the course of the deliberation stage of proceedings, falls within the competence of Member States, which enjoy a certain degree of discretion in implementing the principles of the rule of law, (66) as regards inter alia reconciling the requirements of legal certainty, as applied to courts of second instance, and the independence of those courts. As Advocate General Bobek pointed out, the Court’s case-law seeks to identify minimal requirements that national systems must comply with. (67)
90. For its part, the ECtHR has stated that, in codified law countries, the organisation of the judicial system cannot be left to the discretion of the judicial authorities, which does not, however, rule out conferring on them a certain power to interpret the relevant national legislation. Furthermore, the delegation of powers in matters relating to judicial organisation is acceptable in so far as that possibility falls within the framework of the national law of the State in question, including the relevant provisions of its Constitution. (68)
91. Secondly, it is clear from the case-law of the ECtHR that the requirements of legal certainty and the protection of the legitimate expectations of the public do not confer an acquired right to consistency of case-law. Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement. (69) In the present case, the mechanism at issue seems to me to strike a relatively appropriate balance between those requirements and the need for the law to adapt to social changes by means of judicial progress. It should be recalled that the legal positions adopted at the meeting of judges of the courts of second instance are not binding on the courts of first instance, may be inconsistent with the approach adopted by the registrations judge and do not in any way prevent the supreme court from performing its regulatory role in the application of national law, if necessary, by setting aside the decision of the court of second instance referred to it and at the same time reversing the case-law.
V. Conclusion
92. In the event that the Court finds that the requests for a preliminary ruling made by the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal, Croatia) are admissible, I propose that the Court answer the questions submitted to it by that court as follows:
The second subparagraph of Article 19(1) of the Treaty on European Union
must be interpreted as not precluding national rules and practices which, at the deliberation stage of court proceedings at second instance concerning a dispute that has been the subject of a decision by the judicial panel seised, provide for:
– the referral to an enlarged formation by the president of the court or the president of a specialised section, in the light of that decision and where the consistency of the court’s case-law may be or is being undermined, for the purpose of the adoption, by majority vote, of a common position as to the general and abstract interpretation of the applicable legal rule, previously a matter of debate between the parties, which the formation initially seised must take into account for the purpose of resolving the dispute as to the substance;
– the informing of the president of the court or the president of a specialised division, by a judge responsible for monitoring the case-law of the court, in a situation where the consistency of that case-law may be or is being undermined because the formation seised has maintained its original decision and, pending the adoption of the abovementioned legal position, the suspension of that formation’s decision ruling on the dispute and its notification to the parties.
1 Original language: French.
2 Huglo, J-G., ‘Le principe de sécurité juridique’, Cahier du Conseil constitutionnel, No 11, December 2001.
3 Judgment of 22 March 2022, Prokurator Generalny and Others (Disciplinary Chamber of the Supreme Court – Appointment) (C‑508/19, EU:C:2022:201, paragraph 59).
4 See, to that effect, judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 77).
5 Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, ‘the judgment in Miasto Łowicz’, EU:C:2020:234, paragraphs 32 and 33).
6 According to the information provided by the Commission, the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal), as a court of second instance, hears and determines, inter alia, commercial disputes and disputes concerning company law, intellectual property law, and aircraft and ships. According to Articles 21 and 24 of the Law on judicial bodies, the referring court hears appeals brought against the decisions of the commercial courts, which rule on applications to open insolvency proceedings and conduct court-supervised administration proceedings.
7 See, to that effect, judgment in Miasto Łowicz (paragraphs 34 to 36).
8 Judgments of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 78), and of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 22).
9 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19) and Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) (OJ 2019 L 172, p. 18). It should be noted that that regulation concerns cross-border insolvency proceedings and focuses on the resolution of conflicts of jurisdiction and law in cross-border insolvency proceedings and ensures the recognition of judicial insolvency decisions throughout the European Union. It does not harmonise Member States’ substantive insolvency law. Directive 2019/1023 is without prejudice to the scope of Regulation 2015/848 but aims to be complementary to it by establishing substantive minimum standards for preventive restructuring procedures as well as for procedures leading to a discharge of debt for entrepreneurs (recitals 12 and 13).
10 See, to that effect, judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court) (C‑430/21, EU:C:2022:99, paragraphs 34 and 35).
11 In the light of the incorporation of an ever more fruitful body of EU law into the legal order of the Member States and the task of the national court, as an ordinary court of the European Union, to ensure the effective application of the rules of EU law, the criterion for the application of the second subparagraph of Article 19(1) TEU, namely that it is solely for a national court to rule on questions relating to the application or interpretation of EU law, should, in my view, be satisfied almost as a matter of course.
12 Judgment of 27 February 2018, (C‑64/16, EU:C:2018:117).
13 In certain cases, the reference for a preliminary ruling appears, in my view, to be no more than a procedural pretext used by the referring court to present before the Court, simply by invoking the second subparagraph of Article 19(1) TEU, its dissatisfaction with and/or criticism of the functioning of the national judicial system.
14 Judgment in Miasto Łowicz (paragraphs 44 to 46 and 48).
15 See judgment in Miasto Łowicz (paragraphs 49 to 51).
16 In my view, it is sufficient to note that the mechanism for harmonising the case-law in question has a decisive influence on the decision-making process during the deliberation stage within the referring court, and the fact that the provisions in question do not form part of the Croatian Code of Civil Procedure is irrelevant.
17 Judgments of 19 November 2019, (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982).
18 Judgment in Miasto Łowicz (paragraph 51).
19 See judgment of 23 November 2021, IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:949), in so far as concerns the first and second questions referred.
20 Opinion of Advocate General Bobek in Joined Cases Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:403, point 136).
21 However, this is, in essence, the view of the referring court, according to which the mechanism for harmonising case-law is of such a kind as to have an appreciable impact on respect for the rule of law and the independence of the judiciary, in particular because it applies in all cases before all the courts of second instance in Croatia, ‘irrespective of whether EU law is or is not applied in the particular case’ (page 4 of the order for reference in Case C‑554/21).
22 Moreover, is it reasonable to consider that that mechanism will in the future never be called into question by a Croatian court of second instance in a dispute relating to EU law? Quite apart from that situation, it is possible to envisage infringement proceedings being brought by the Commission or a review by the European Court of Human Rights (‘ECtHR’) as to compatibility with the ECHR.
23 Order of 6 October 2020, Prokuratura Rejonowa w Słubicach (C‑623/18, EU:C:2020:800); judgments of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798, paragraph 94); of 23 November 2021, IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:949, paragraphs 58 to 66 and 87); and of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, paragraphs 67, 92 and 99).
24 Order of 2 July 2020, S.A.D. Maler und Anstreicher (C‑256/19, EU:C:2020:523), in which, while reproducing the reasoning of the judgment in Miasto Łowicz, the Court specifically gave reasons for not applying the third admissibility scenario notwithstanding the prior finding that the dispute in the main proceedings had no connection with EU law. In that case, which concerned the allocation of case files within the court, the Court referred to the fact that the referring judge had exhausted the remedies available to him and was unable to rule, in the dispute in the main proceedings, on the question whether the case had been allocated to him lawfully. See, also, the judgment of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:931, paragraphs 48 and 49), in which the substantive connection between the disputes in the main proceedings (criminal proceedings at the trial stage) and EU law is not explained, and the judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraphs 113 to 121), declaring admissible a question concerning a procedural objection relating to the status of the drafter of a defence in main proceedings which concerned the obtaining, by an association of judges, of statistical data held by the Judicial Inspectorate.
25 Judgment of 13 July 2023, YP and Others (Lifting of a judge’s immunity and his or her suspension from duties) (C‑615/20 and C‑671/20, EU:C:2023:562, paragraphs 46 and 47), given that there was nothing to suggest that the disputes in the main proceedings to be settled by the referring court as to the substance were related to EU law.
26 Judgments of 17 February 2011, Weryński (C‑283/09, EU:C:2011:85); of 13 June 2013, Versalis v Commission (C‑511/11 P, EU:C:2013:386); and of 11 June 2015, Fahnenbrock and Others (C‑226/13, C‑245/13 and C‑247/13, EU:C:2015:383).
27 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ 2001 L 174, p. 1).
28 Judgment of 17 February 2011, Weryński (C‑283/09, EU:C:2011:85, paragraph 38). To that end, it has been held that the concept ‘give judgment’ within the meaning of Article 267(2) TFEU must be understood as encompassing the whole of the procedure leading to the judgment of the referring court, in order that the Court of Justice is able to interpret all procedural provisions of EU law that the referring court is required to apply in order to give judgment, and it is of little importance that the interpretation of Regulation No 1206/2001 appears not to be necessary for the resolution of the dispute in the main proceedings (paragraph 42 of the judgment).
29 The doubts expressed by the referring court concern the mechanism itself, which applies ‘irrespective of whether EU law is or is not applied in the particular case’, according to the referring court. The present proceedings demonstrate, moreover, that there appears to be nothing to prevent the Croatian courts of second instance from referring a matter to the Court for a preliminary ruling under Article 267 TFEU in order to seek an interpretation of the applicable provisions of EU law.
30 Judgment of 2 February 2023, Spain and Others v Commission (C‑649/20 P, C‑658/20 P and C‑662/20 P, EU:C:2023:60, paragraph 81).
31 Judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899, paragraph 46).
32 Judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court) (C‑430/21, EU:C:2022:99, paragraph 64).
33 Judgments of 7 August 2018, Banco Santander and Escobedo Cortés (C‑96/16 and C‑94/17, EU:C:2018:643); and of 22 February 2022, RS (Effect of the decisions of a constitutional court) (C‑430/21, EU:C:2022:99, paragraph 44); and order of 17 July 2023, Jurtukała (C‑55/23, EU:C:2023:599, paragraph 38 and the case-law cited).
34 ECtHR, 29 November 2016, Lupeni Greek Catholic Parish and Others v. Romania, (CE:ECHR:2016:1129JUD007694311, § 116 and 129). An examination of the various national legal systems within the European Union shows that, in the absence of a system of precedent as provided for in common law, many legal orders in continental Europe actually have recourse to internal mechanisms for ensuring the consistency of case-law within their courts.
35 ECtHR, 29 November 2016, Lupeni Greek Catholic Parish and Others v. Romania, (CE:ECHR:2016:1129JUD007694311, § 123). In systems which provide for mechanisms to ensure the consistency of case-law in dealing with a given case, the legal orders of the European Union tend to provide supreme courts with such mechanisms, although there exists a mechanism for referral to an enlarged formation within courts of second instance, for example, in Germany for administrative courts of appeal ruling at last instance on a particular issue, as well as in Finland.
36 That characterisation applies to the proceedings which may be brought before the Vrhovni sud Republike Hrvatske (Supreme Court), according to the information provided by the Croatian Government at the hearing. That Government also pointed out that the legal positions adopted by the higher courts are not binding on courts of first instance.
37 ECtHR, 1 July 2010, Vusić v. Croatia (CE:ECHR:2010:0701JUD004810107); ECtHR, 29 November 2016, Lupeni Greek Catholic Parish and Others v. Romania (CE:ECHR:2016:1129JUD007694311); and ECtHR, 23 May 2019, Sine Tsaggarakis A.E.E. v. Greece (CE:ECHR:2019:0523JUD001725713).
38 Judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, ‘the judgment in Commission v Poland’, EU:C:2021:596, paragraphs 50 and 51).
39 Judgment in Commission v Poland, paragraph 52.
40 See, to that effect, judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court) (C‑430/21, EU:C:2022:99, paragraph 37).
41 Judgment in Commission v Poland, paragraph 57 and the case-law cited.
42 Judgment in Commission v Poland, paragraph 58.
43 See, to that effect, judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 121 to 123).
44 Judgment in Commission v Poland, paragraph 60.
45 Judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798, paragraph 117).
46 ECtHR, 22 December 2009, Parlov-Tkalčić v. Croatia, (CE:ECHR:2009:1222JUD002481006, §§ 86 to 88).
47 It is ultimately for the referring court to rule on that matter having made the relevant findings in that regard. It must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. According to settled case-law, the Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 132).
48 In paragraphs 42 and 43 of its observations, the Croatian Government refers to orders of the Ustavni sud (Constitutional Court) in which it is stated that the question whether the conditions for the application of legal positions are fulfilled is determined by the judges themselves, who adjudicate autonomously and independently in the case in question and have the right and obligation to give reasons for all aspects of the case on which they are adjudicating, including the question of whether or not a binding legal position applies to the identified legal basis for the action.
49 Judgment of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158, paragraphs 35 and 37).
50 See, to that effect, judgment of 9 September 2015, Ferreira da Silva e Brito and Others (C‑160/14, EU:C:2015:565, paragraph 37).
51 See, to that effect, judgments of 16 July 2015, CHEZ Razpredelenie Bulgaria (C‑83/14, EU:C:2015:480, paragraph 71), and of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 33). It is true that, in certain cases in which the degree of precision/technicality of the legislation at issue is high, the dividing line between the concepts of interpretation and application of the legal rule may be tenuous. However, it does not seem to me possible to assess, de jure, the conformity of the Croatian mechanism in the light solely of the particular factual circumstances of certain cases, which cannot render the conceptual distinction in question irrelevant.
52 The fact that the members of the judicial panel are not able to have an item placed on the agenda for the section meeting is not such as to undermine the independence of those judges, as the referring court points out.
53 Here again, the wording is particularly significant.
54 This observation seems to me to address the fact that the referring court calls into question the registration judge’s choice of cases when exercising his or her powers and that the referring court states more specifically that the registrations judge had not actually identified any conflicting case-law in the case file relating to Case C‑727/21.
55 I would point out that it is apparent from the file submitted to the Court in Case C‑727/21 that the registration judge, who wrote the letter of 23 June 2021 inviting the chamber seised of the case to reconsider its position, was one of 28 of the 31 judges comprising the section concerned who were present, as indicated in the minutes of that meeting.
56 It should be borne in mind that the national court, having exercised the discretion conferred on it by the second paragraph of Article 267 TFEU, is bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of the provisions at issue given by the Court and must, if necessary, disregard the rulings of a higher court if it considers, having regard to that interpretation, that they are not consistent with EU law (order of 17 July 2023, Jurtukała, Case C‑55/23, EU:C:2023:599, paragraph 36, and the case-law cited).
57 Judgment in Commission v Poland, paragraphs 203 and 205.
58 Judgment of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 73 and the case-law cited).
59 Judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798, paragraph 124, citing judgment of the ECtHR of 1 December 2020, Ástráðsson v. Iceland, CE:ECHR:2020:1201JUD002637418, §§ 231 and 233).
60 See, by analogy, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798, paragraph 125, citing judgment of the ECtHR of 1 December 2020, Ástráðsson v. Iceland, CE:ECHR:2020:1201JUD002637418, §§ 227 and 232).
61 Judgment of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 71).
62 See, by analogy, Commission v Poland, paragraph 171.
63 Paragraph 11 of the Croatian Government’s observations.
64 It is interesting to note that, in the judgment of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232), the Court held that illegality affecting the procedure for the appointment of a judge does not constitute an infringement of the principle of the lawful judge, which is equivalent to the requirement that a court or tribunal must be established by law, in so far as that illegality does not amount to an infringement of the fundamental rules relating to that procedure. As one author points out, the Court has thereby limited the scope of the abovementioned requirement (see Dero-Bugny, D., ‘Le principe du juge légal en droit de l’Union européenne’, Journal du droit européen, p. 154, 2022).
65 See, to that effect, judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court) (C‑430/21, EU:C:2022:99, paragraphs 38 and 43).
66 Judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442).
67 Opinion of Advocate General Bobek in Asociaţia ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746, point 230).
68 ECtHR, 28 April 2009, Savino and Others v. Italy (CE:ECHR:2009:0428JUD001721405, § 94), cited in the judgment in Commission v Poland, paragraph 168.
69 ECtHR, 18 December 2008, Unédic v. France, (CE:ECHR:2008:1218JUD002015304, § 74); ECtHR, 29 November 2016, Lupeni Greek Catholic Parish and Others v. Romania (CE:ECHR:2016:1129JUD007694311, § 116); ECtHR, 20 October 2011, Nejdet Sahin and Perihan Sahin (CE:ECHR:2011:1020JUD001327905, § 58).