November 29
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Trajan Shipley
23rd November 2021
Institutional law Justice & Litigation

Court of Justice: EU law precludes bringing proceedings against national judges for referring preliminary request

The Court of Justice delivered its judgment today in Grand Chamber case IS (Illegality of the order for reference) (C-564/19), finding that Article 267 TFEU precludes bringing disciplinary proceedings against a national court for referring a request for a preliminary ruling to the Court of Justice. It also ruled that it precludes national supreme courts from declaring such a request as unlawful, thereby requiring lower courts to set aside such decisions in accordance with the principle of primacy.

The substance of the case leading to the main proceedings concerns the need for Member States to create a register of properly qualified independent translators and interpreters or ensure by some other means that it is possible to control the quality of language interpretation in court proceedings in order to guarantee the right to a fair trial for defendants who do not speak the language of the proceedings. 

However, the single judge who had referred a question for a preliminary ruling to the Court was subject to disciplinary proceedings after the referral. Following an addendum to its initial request, the referring court inquired whether the initiation of disciplinary proceedings against a judge for having made a reference for a preliminary ruling is precluded by EU law, along with a national practice whereby the court of last instance, in proceedings to harmonise the case-law of the Member State, declares as unlawful a decision by which a lower court makes a request for a preliminary ruling.

In its judgment delivered today, the Court held that a decision of a supreme court declaring a reference for a preliminary ruling to be unlawful on the ground that the questions referred are not relevant and necessary to the resolution of the main proceedings is incompatible with Article 267 TFEU, insofar as such an assessment falls within the exclusive competence of the Court of Justice to rule on the admissibility of questions referred for a preliminary ruling. In this sense, it also ruled that in accordance with the principle of primacy, lower courts are required to set aside such decisions if they consider that they infringe the prerogatives conferred on it by Article 267 TFEU and the effectiveness of the cooperation between the CJEU and national courts.

The Court also held that Article 267 TFEU precludes disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling to the Court of Justice, since the mere prospect of being the subject of such proceedings can undermine the mechanism provided for in Article 267 TFEU, the judicial independence of the referring court and be liable to deter all national courts from making references for a preliminary ruling, which could jeopardise the uniform application of EU law. In this sense, it rejected to examine this question under Articles 19 TEU and 47 of the Charter. 

The Court further rejected as inadmissible two questions concerning the interpretation of Articles 19 TEU and 47 of the Charter, insofar as there was no connecting link between them and the dispute in the main proceedings. It held that the fact that there may be a material link between the substance of the main proceedings and Article 47 of the Charter or 19 TEU is not sufficient to satisfy the necessity test of Article 267 TFEU.

Finally, on the substance of the case, it ruled that under Directive 2010/64, Member States must take specific measures to ensure that the quality of the interpretation and translations in criminal proceedings is sufficient to enable the suspect or accused person to understand the accusation against him or her. In that sense, the creation of a register of independent translators or interpreters is one of the means of pursuing that objective. It also held that the measures adopted by Member States must enable the national courts to ascertain that the interpretation was of sufficient quality so that the fairness of the proceedings and the exercise of the rights of the defence are safeguarded.

The judgment is available here. The Court’s press release can be read here.

An Op-Ed on this case by Petra Gyöngyi will be published soon on EU Law Live.


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