6.  The applicant was born in 1964 and lives in Munich. He and Mr W. founded the T.AG, a directory enquiries service. The T.AG received, for a fee, the required subscriber information from DTAG. In 2007 and 2008 DTAG was ordered to refund the T.AG part of the fees paid, as they had been excessive.
7.  In 2005 the applicant brought an action against DTAG, claiming that as a result of the excessive prices paid by the T.AG, he and Mr W. had had to reduce their shares in the company before its stock market launch. For that reason, as well as on account of a lower valuation of the company on the day of the launch, he had sustained damage. On 28 May 2013 the Regional Court dismissed the claim.
8.  The applicant appealed against the Regional Court’s decision. In the reasons for the appeal, he made comments on, inter alia, EU law and the respective interpretation by the CJEU and the Federal Court of Justice. He did not request a referral of a particular question to the CJEU. During an oral hearing before the Court of Appeal the issue of EU law was discussed and the court explained that, in its view, the case-law of the CJEU was clear and that, in contrast to what had been suggested by the applicant, EU law was not applicable to the present case. In the same hearing the applicant called for the proceedings to be suspended and a preliminary ruling from the CJEU to be obtained. In submissions after the hearing he repeated his request and suggested the following wording for a possible preliminary question:
“Does Article 86 TEC in the version of the Maastricht Treaty (Article 102 TFEU) preclude the interpretation and application of domestic legislation enacted by a member State which categorically excludes, for legal reasons, the liability of a dominant undertaking that damages a competing joint-stock company through its abusive prices in violation of Article 86 TEC (Article 102 TFEU), thus putting it at risk of bankruptcy, also for damage sustained by the founding shareholders of the damaged joint-stock company resulting from the fact that they take on new shareholders in order to avert bankruptcy, thereby reducing their own shares in the company?”
9.  On 2 July 2014 the Court of Appeal dismissed the applicant’s appeal. In its reasoning the court stated, in particular, that his claim could not be based on EU law, as the applicant was not covered by the protective purpose of any of its provisions. In that regard, the court gave a detailed account of why the applicant’s legal opinion was not supported by the CJEU’s case‑law, to which it referred extensively. It also referred to the relevant case-law of the Federal Court of Justice. As regards the question of whether the applicant should be granted leave to appeal on points of law, the Court of Appeal stated:
“There is no reason to grant leave to appeal on points of law pursuant to Article 543 § 2 of the Code of Civil Procedure (Zivilprozessordnung). The chamber’s reasoning on the legal question as to who is covered by the protective purpose of Article 86 TEC, Article 82 § 2 EC and Article 102 TFEU and who is consequently eligible for compensation within the meaning of Article 823 § 2 of the Civil Code (Bürgerliches Gesetzbuch) or section 33(1) of the Prevention of Restrictions on Competition Act (Gesetz gegen Wettbewerbsbeschränkungen), have no significance in terms of legal principle (no fundamental significance). There is no need to clarify the legal question raised, since there are no doubts concerning the scope and interpretation of those legal provisions. The plaintiff’s opinion that anyone suffering damage on account of a violation of competition law should be entitled to damages, regardless of the law’s protective purpose, is not shared by anyone in academic writing or case-law.“
10.  The applicant filed a complaint against the refusal of leave to appeal on points of law. In his complaint he repeated his request for a referral to the CJEU and suggested the wording for two questions, one of them being a slightly modified version of the previously suggested question:
“Does Article 86 TEC in the version of the Maastricht Treaty (Article 102 TFEU) preclude the interpretation and application of domestic legislation enacted by a member State which categorically excludes, for legal reasons, the liability of a dominant undertaking that damages a competing joint-stock company in violation of Article 86 TEC (Article 102 TFEU), thus putting it at risk of bankruptcy, also for damage sustained by the shareholders of the competing joint-stock company resulting from the fact that they take on new shareholders in order to avert bankruptcy, thereby reducing their own share of the company?
...
Does Article 86 TEC (Article 102 TFEU) preclude the interpretation and application of domestic legislation enacted by a member State as laid out in the first question for referral if the damaged shareholders are founding shareholders (investors) who, at the time of the damaging event, have a significant shareholding and, as members of the company’s executive board, decisively shape the company’s competitive conduct?”
11.  On 14 April 2015 the Federal Court of Justice rejected the applicant’s complaint:
“... because the legal matter [had] not [been] of fundamental significance, because the complaints based on violations of procedural rights [had] failed to convince and because neither the further development of the law nor the interests in ensuring uniform adjudication [had required] a decision to be issued by the court hearing the appeal on points of law (Article 543 § 1 of the Code of Civil Procedure). More detailed reasoning can be dispensed with pursuant to the second clause of the second sentence of Article 544 § 4 of the Code of Civil Procedure.”
12.  The applicant filed a complaint concerning a violation of his right to be heard (Anhörungsrüge) and argued that the Federal Court of Justice had not provided adequate reasoning for the refusal of a referral to the CJEU. On 18 May 2015 the Federal Court of Justice rejected the applicant’s complaint, stating that it had examined his submissions but had not considered them sufficiently convincing and that a decision by a court of last resort had not required more detailed reasoning.
13.  On 25 February 2016 the Federal Constitutional Court declined to consider a constitutional complaint (1 BvR 1410/16) lodged by the applicant, without providing reasons.
14.  Article 543 of the Code of Civil Procedure reads:
“(1) An appeal on points of law may only be lodged if: 2.  The court hearing the appeal on points of law has granted leave upon a complaint against the refusal to grant leave to appeal on points of law.
(2) An appeal on points of law shall be admitted if: 2.  Further development of the law or the interests in ensuring uniform adjudication require a decision to be issued by the court hearing the appeal on points of law.
The court hearing the appeal on points of law shall be bound by the admission of the appeal by the appellate court.”
15. The relevant parts of Article 544 of the Code of Civil Procedure read as follows:
“(1) Any refusal by the appellate court to grant leave to appeal on points of law may be subject to a complaint (complaint against the refusal of leave to appeal). ...
(4) The court hearing the appeal on points of law shall rule on the complaint in a corresponding court order. The reasons on which the order is based shall be summarised briefly; that reasoning may be dispensed with where it would not contribute to clarifying the requirements for granting leave to appeal, or where the court finds for the party filing the complaint. The decision regarding the complaint is to be served upon the parties.
...”
16.  According to the established case-law of the Federal Court of Justice and the Federal Constitutional Court a legal matter is, amongst other reasons, always of “fundamental significance” if it raises a question that requires a uniform interpretation of EU law, which is relevant for deciding the case, and makes a referral for a preliminary ruling during the appeal proceedings very probable. Therefore, refusal of leave to appeal (on points of law) includes the consideration that a referral to the CJEU is not required in that case (see, for example, Federal Court of Justice, I ZR 130/02, 16 January 2003; Federal Constitutional Court, 2 BvR 557/88, 22 December 1992; 1 BvR 2534/10, 3 March 2014; 1 BvR 1320/14, 8 October 2015). To provide the Federal Constitutional Court with the possibility to review such decisions for arbitrariness, it is necessary that the court establish the reasons for the decision either from the reasoning of the court of last resort or otherwise (see Federal Constitutional Court, 2 BvR 557/88, 22 December 1992; 1 BvR 2534/10, 3 March 2014; 1 BvR 1320/14, 8 October 2015). In case 2 BvR 557/88, the first-instance court had provided detailed reasoning concerning the relevant EU law and why there were no doubts regarding the correct interpretation of those provisions. It had relied on established case-law of the Federal Financial Court. Under these circumstances, the Constitutional Court found it acceptable that the Federal Financial Court had rejected the subsequent complaint against the refusal of leave to appeal without providing reasons. In case 1 BvR 1320/14, however, the Constitutional Court found a violation of the right to a decision by the legally competent court (Recht auf den gesetzlichen Richter) because the Federal Court of Justice had rejected a complaint against the refusal of leave to appeal on points of law and had not provided any reasoning. In that case, the court found that an obligation for a referral to the CJEU during the appeal on points of law proceedings was very likely (lag nahe) and that the Federal Court of Justice had not explained why it had rejected leave to appeal on points of law nevertheless. Even though the lower court had provided brief reasoning, there were no indications that the Federal Court of Justice had embraced it, particularly since the applicant in the proceedings had made extensive submissions in its complaint against the refusal of leave to appeal on points of law, disputing the reasoning of the lower court.
17.  Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) provides as follows:
“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union ...;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”
18.  Interpreting this provision, the CJEU held in the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health (C‑283/81, judgment of 6 October 1982, ECLI:EU:C:1982:335, § 21) that:
“... a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court [of Justice], unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”
19.  In the case of Kenny Roland Lyckeskog (C-99/00, 4 June 2002, ECLI:EU:C:2002:329) the CJEU decided, among other things, the question of whether a national court which in practice was the court of last resort in a case, because a declaration of admissibility was needed in order for the case to be reviewed by the country’s supreme court, was a court within the meaning of the third paragraph of Article 234 EC (current Article 267 of the TFEU). The court held:
“16. Decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of a ‘court or tribunal of a Member State against whose decisions there is no judicial remedy under national law’ within the meaning of Article [267]. The fact that examination of the merits of such appeals is subject to a prior declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy. 17. That is so under the Swedish system. The parties always have the right to appeal to the Högsta domstol against the judgment of a hovrätt, which cannot therefore be classified as a court delivering a decision against which there is no judicial remedy. Under Paragraph 10 of Chapter 54 of the Rättegångsbalk, the Högsta domstol may issue a declaration of admissibility if it is important for guidance as to the application of the law that the appeal be examined by that court. Thus, uncertainty as to the interpretation of the law applicable, including Community law, may give rise to review, at last instance, by the supreme court. 18. If a question arises as to the interpretation or validity of a rule of Community law, the supreme court will be under an obligation, pursuant to the third paragraph of Article [267], to refer a question to the Court of Justice for a preliminary ruling either at the stage of the examination of admissibility or at a later stage.”
20.  This judgment was referred to in a later judgment of the CJEU (Cartesio Oktató és Szolgáltató bt, C-210/06, 16 December 2008, ECLI:EU:C:2008:723), in which it held:
“76. The Court has already held that decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of ‘a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law’ within the meaning of the third paragraph of Article 267. The fact that the examination of the merits of such challenges is conditional upon a preliminary declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy (Lyckeskog, paragraph 16). 77. That is true a fortiori in the case of a procedural system such as that under which the case before the referring court must be decided, since that system makes no provision for a preliminary declaration by the supreme court that the appeal is admissible and, instead, merely imposes restrictions with regard, in particular, to the nature of the pleas which may be raised before such a court, which must allege a breach of law.”
21.  As regards the initiation of preliminary ruling proceedings, the CJEU stated in the case of György Katz v. István Roland Sós (C-404/07, 9 October 2008, ECLI:EU:C:2008:553):
“37. ... It is for the national court, not the parties to the main proceedings, to bring a matter before the Court of Justice. The right to determine the questions to be put to the Court thus devolves on the national court alone and the parties may not change their tenor ...”
22.  In its judgment of 9 November 2010 in the case of VB Pénzügyi Lízing Zrt. v. Ference Schneider (C-137/08, ECLI:EU:C:2010:659), the CJEU stated:
“28. ... the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties ...”
23.  On 25 November 2016 the CJEU published its (updated) Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2016/C 439/01). The relevant part reads as follows:
“3. The jurisdiction of the Court to give a preliminary ruling on the interpretation or validity of EU law is exercised exclusively on the initiative of the national courts and tribunals, whether or not the parties to the main proceedings have expressed the wish that a question be referred to the Court. In so far as it is called upon to assume responsibility for the subsequent judicial decision, it is for the national court or tribunal before which a dispute has been brought – and for that court or tribunal alone – to determine, in the light of the particular circumstances of each case, both the need for a request for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.”