Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court established the primacy of EU law against national procedural rules in criminal proceedings. In doing so, it helped clarify the scope and purpose of articles 47 and 48 CFR on the rights to a fair trial and an effective remedy, the presumption of innocence and the right to defence, stating that national rules which may undermine the normative content and the prerogatives granted to national courts, as regards their role in the preliminary ruling process and their dialogue with the CJEU, do not serve to enhance the protection of fair trials rights.
Mr Ognyanov, a Bulgarian national, was sentenced to 15 years for murder and first-degree robbery by a criminal court in Denmark. After serving part of his sentence in Denmark, Ognyanov was delivered to the Bulgarian authorities to serve the remainder of his sentence in Bulgaria. Through the preliminary ruling procedure, the Criminal Court of Sofia submitted several questions to the CJEU, concerning the interpretation of Council Framework Decision 2008/909/JHA of 27 November 2008 on the mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.
Immediately after the request for a preliminary ruling, the Prosecutor's Office in Sofia requested the exclusion of the judges who submitted the preliminary question to the CJEU from the case, based on the premise that those judges set out the factual and legal context of the case and this fact raises issues of potential bias in the said case. The Sofia Prosecutor's Office bases its request for exemption on the Bulgarian Supreme Court of Cassation case law, according to which a judge's preliminary judgment on a case before a final and irrevocable decision has been made, constitutes a special case of bias on the part of that judge.
The Sofia Criminal Court, before declaring an exception, again puts forward a request for a preliminary ruling to the CJEU, requesting clarification as to whether Article 267 of the Treaty on the Functioning of the European Union, which provides for the preliminary ruling procedure, interpreted in light of paragraph 2 of Article 47 and Article 48 (1) of the Charter, must be interpreted as precluding the national rule which requires the judges of the referring court to be excluded from the case pending before them on the grounds that they stated the factual and legal context of that case for the purposes of requesting a preliminary ruling.
1. Do Article 267 TFEU and Article 94 of the Rules of Procedure, read in the light of the second paragraph of Article 47 and Article 48(1) of the Charter, need to be interpreted as precluding a national rule being interpreted in such a way that it obliges a referring court to disqualify itself from a pending case on the ground that it set out, in its request for a preliminary ruling, the factual and legal context of that case?
2. Does EU law, and in particular Article 267 TFEU, need to be interpreted as precluding the possibility, after the delivery of the preliminary ruling, of the referring court making no change to the findings of fact or law made in the request for a preliminary ruling or, on the contrary, the possibility, after that delivery of the preliminary ruling, of the referring court hearing the parties again and undertaking further inquiries, which might lead it to alter those findings of fact or law?
3. Does EU law need to be interpreted as precluding the referring court from applying a national rule, such as that at issue in the main proceedings, which is deemed to be contrary to EU law, on the ground that that rule ensures a higher degree of protection of the parties’ fundamental rights?
As regards the first question, the Court observed that where a referring court presents, in its request for a preliminary ruling, the relevant factual and legal context of the main proceedings, that is a response to the requirement of cooperation that is inherent in the preliminary reference mechanism and cannot, in itself, be a breach of either the right to a fair trial, enshrined in the second paragraph of Article 47 of the Charter, or the right to the presumption of innocence, guaranteed by Article 48(1) of the Charter.
Furthermore, a national rule, such as the one in question, may lead a national court to choose to refrain from referring questions for a preliminary ruling to the Court, in order to avoid, on the one hand, being disqualified and exposed to disciplinary penalties or, on the other, lodging requests for preliminary rulings that are inadmissible. Consequently, such a rule is detrimental to the prerogatives granted to national courts and tribunals by Article 267 TFEU and to the effectiveness of the cooperation between the Court and the national courts and tribunals established by the preliminary ruling mechanism.
In the light of all the above, the Court concluded that EU law precludes a national rule which is interpreted in such a way as to oblige a referring court to disqualify itself from a pending case, on the ground that it set out, in its request for a preliminary ruling, the factual and legal context of that case.
As regards the second question, the Court first recalled its settled case law, according to which Article 267 TFEU solely requires the referring court to give full effect to the interpretation of EU law provided by the Court. Neither that article, however, nor any other provision of EU law, requires the referring court, after the delivery of the preliminary ruling, to alter the findings of fact or law made in a request for a preliminary ruling. Equally, no provision of EU law prohibits the referring court from altering, after the delivery of the preliminary ruling, its findings in respect of the relevant factual and legal context. Article 267 TFEU, must, thus, be interpreted as meaning that it does not require the referring court to hear the parties again and to undertake further inquiries, nor does it prohibit the referring court from doing so, provided that the latter gives full effect to the interpretation of EU law adopted by the Court.
In response to the third question, and in light of its answer to the first question, the Court clarified that the obligation of the national court to disqualify itself cannot be considered as serving to enhance the protection of fair trial rights, as enshrined in the Charter. It also underscored that according to settled case law, the referring court is obligated to refuse of its own motion to apply any conflicting provision of national law, and to alter established case-law, where necessary, if that is based on an interpretation of national law that is incompatible with EU law. It follows that, in this case, the referring court is obliged to ensure that Article 267 TFEU is given full effect, and if necessary to disapply, of its own motion, national legislation as interpreted by the Supreme Court of Appeal, where that interpretation is not compatible with EU law.
Council Framework Decision on the mutual recognition of judgements in criminal matters 2008/909/JHA
Rules of Procedures of the CJEU
Case Study - Ensuring the Effectiveness of EU Law