Analysis: “The Kolev saga and yet another clash of national courts over EU law” by Daniel Sarmiento
Yesterday, the Court of Justice delivered a ruling in the second round of preliminary references in the Kolev saga, on criminal proceedings taking place in Bulgaria concerning the presumed involvement of several Bulgarian customs officers in a criminal organisation – Kolev II (C-704/18).
In Kolev I (C-612/15), the Court of Justice clarified some important issues about national procedural provisions requiring that criminal proceedings be closed. The Court stated that such rules can be set aside by the national court if they happen to undermine the financial interests of the EU, as long as procedural guarantees are upheld. The judgment was balancing, in a similar way to the judgment in M.A.S. following the Taricco case law, the financial interests and effectiveness of the EU with the fundamental rights of the accused.
Shortly after the judgment in Kolev I, the referring court decided to reopen the trial phase without referring the case back to the prosecutor. However, its decision was challenged before the appellate court, which struck down the challenged order. Unconvinced by this decision of its superior court, the lower court made yet another preliminary ruling request to Luxembourg questioning the decision on appeal.
Kolev II raises two interesting points, which can be explained by focusing on the decision of the Court of Justice.
First, the Court of Justice considers that although there might be an issue of effectiveness in reopening the trial phase and sending the case back to the prosecutor, it also clarifies the Kolev I judgment and states that any further action does not have to be undertaken directly by the criminal court itself. Although the judgment in Kolev I pointed at this possibility, in Kolev II (C-704/18) the Court clarifies that such an option was only one among several, which could include the referral of the proceedings to the prosecutor. Therefore, what seemed to be a very blunt initial message in Kolev I, is now subject to a more flexible interpretation in Kolev II.
Second, the Court of the Justice looks into the case of an order from a superior court that imposes an interpretation that may not be in line with what the Court ruled in its preliminary ruling. In other words, Kolev II raises the issue of a judgment rendered in a preliminary reference by the Court of Justice, but which cannot be enforced because an appellate court prevents the referring court from doing so. It is, in a certain way, a post-Cartesio situation, in which the appellate court precludes the referring court after the preliminary ruling of the Court of Justice, not before.
However, the answer to the second issue is partly resolved through the first query. Inasmuch as EU law does not preclude the referring court from reopening the proceedings and referring back to the prosecutor, the order of the appellate court is, in fact, EU law compliant. Therefore an appellate court can instruct a lower court to rule in a specific way following the Court’s preliminary ruling, as long as the instruction is compliant with the said ruling.
The judgment of the Court of Justice seems to step aside from a conflict between two national courts that has gradually deteriorated, and in which Luxembourg does not seem willing to take a relevant part, or be dragged into. Nevertheless, in paragraph 53 the Court adds a gentle reminder to appellate courts throughout the EU:
‘it follows from the principle of effectiveness that the referring court cannot be required to comply with the injunction imposed on it by the appeal court to refer the case in the main proceedings back to the prosecutor if that injunction undermined the effectiveness of Article 6(3) and Article 7(3) of Directive 2012/13, as interpreted by the Court in the Kolev judgment’.
In other words: it is perfectly fine for an appellate court to instruct a referring court on how to implement a preliminary reference ruling from the Court of Justice. However, ‘be careful’ and ‘make sure that the instruction is perfectly in line with EU law’. The Court has now greenlighted the role of appellate courts in the enforcement of a preliminary ruling, thus creating some potential friction with Article 267 TFEU, but subject to some serious warnings.
Daniel Sarmiento is Professor of EU Law at the University Complutense of Madrid and Editor-in-Chief of EU Law Live.