Advocate General Priit Pikamäe considers that a national court must disregard legislation or court practice that impairs its ability to refer questions to the Court of Justice of the EU (CJEU) for a preliminary ruling.
In his opinion of Thursday 15 April (case C-564/19), he asks the Court of Justice of the EU to declare that a Hungarian regulation which allows the Supreme Court to declare a reference for a preliminary ruling issued by a lower criminal court illegal is incompatible with EU law. This decision and its underlying regulation, in his view, undermine the ability of the national criminal court to make a reference for a preliminary ruling to the Court of Justice of the EU and, as a result, the functioning of the preliminary ruling mechanism provided for in European law. On this basis, the national court must set them aside.
In the main proceedings, the Central District Court of Pest, which is to try a Swedish national suspected of a minor weapons and ammunition offence in absentia, referred a series of questions to the Court of Justice of the EU for a preliminary ruling, in particular on the provisions of the relevant EU directives (Directives 2010/64/EU, 2012/13/EU and 2016/343/EU) concerning the rights of the defendant to correct information and a correct interpretation of the facts of the case and to adequate representation before a court in the specific case of a trial in absentia.
The Hungarian Supreme Court, at the request of the public prosecutor, considered the reference for a preliminary ruling to be unlawful on the grounds that certain questions were not relevant to the resolution of the case. At the same time, a disciplinary procedure was initiated against the judge of this District Court on the same grounds. In an addendum to its original application, the Pest District Court therefore questions the Court of Justice of the EU about the legality of the Hungarian Supreme Court’s decision and the initiation of this disciplinary procedure.
With regard to the admissibility of a reference for a preliminary ruling before the CJEU, Advocate General Pikamäe recalls that the decision requested from the Court of Justice must be necessary to enable the court which referred the case to give its decision in the case, and considers in this respect that certain questions asked by the District Court of Pest were not relevant.
On the other hand, he considers that the decision of the Hungarian Supreme Court and the national legislation on which it is based undermine the national court’s right to refer questions to the Court for a preliminary ruling and thus the functioning of the preliminary ruling mechanism. Indeed, this mechanism is based on a dialogue between the national court and the Court of Justice, “the triggering of which depends entirely on the assessment made by the referring court as to the relevance and necessity of its request”. In this respect, Mr Pikamäe emphasised that only the Court of Justice is entitled to assess the validity of this assessment in the context of the verification of the admissibility of the questions put to it.
On this basis, he notes that, by virtue of the principle of the primacy of Union law, the referring court is obliged to disregard the decision of the Supreme Court and the national rules underlying it.
See the judgment: https://bit.ly/3x78Wsn (Original version in French by Francesco Gariazzo)