Order — ECLI:EU:C:2018:417
Date: 2018-06-07
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Right of establishment;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based; … (c) a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings.’ 22 Moreover, it is apparent from point 22 of the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2012 C 338, p. 1) that a reference for a preliminary ruling must be ‘sufficiently complete and must contain all the relevant information to give the Court and the interested persons entitled to submit observations a clear understanding of the factual and legal context of the main proceedings’. 23 In the present case, the request for a preliminary ruling manifestly does not satisfy those requirements. 24 Indeed, as regards, in the first place, the requirements referred to in Article 94(a) of the Rules of Procedure, it must be stated that, even if the present reference for a preliminary ruling makes it possible to determine the subject matter of the disputes in the main proceedings, the factual background of these disputes is essentially absent. 25 As regards, in the second place, with regard to the requirements referred to in Article 94(c) of the Rules of Procedure and, first of all, the requirement that the reference for a preliminary ruling must contain a statement of the reasons which prompted the referring court to inquire into the interpretation or validity of certain provisions of EU law, it must be recalled that the referring court is seeking an interpretation of Article 47 of the Charter, as read in conjunction with Article 56 et seq. TFEU. 26 In that regard, it must be recalled that Article 51(1) of the Charter provides that the provisions of the Charter are addressed to the Member States only when they are implementing EU law. Article 6(1) TEU, like Article 51(2) of the Charter, specifies that the provisions of the Charter do not extend in any way the scope of EU law beyond the competences of the Union as defined in the Treaties (order of 10 November 2016, Pardue, C‑321/16, not published, EU:C:2016:871, paragraph 18 and the case-law cited). 27 It follows that the question referred by the national court must be understood as referring to the interpretation of Article 56 et seq. TFEU, as read in the light of Article 47 of the Charter. 28 Yet, in the present case, there is nothing in the order for reference that sets out with the necessary precision and clarity the reasons which led the referring court to inquire into the interpretation of Article 56 et seq. TFEU in the context of the disputes in the main proceedings. Moreover, the link between EU law and the national legislation applicable to the disputes in the main proceedings is not explained. 29 Admittedly, the referring court refers to the Court’s settled case-law according to which it is for national courts to verify that national legislation such as that at issue in the main proceedings is consistent with its objectives (see, to that effect, judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 49). 30 In that regard, it submits that, with respect to games of chance, the national legislation at issue in the main proceedings cannot be regarded as meeting this consistency requirement inasmuch as, in particular, the Verwaltungsgerichtshof (Supreme Administrative Court) and the Verfassungsgerichtshof (Constitutional Court) confine themselves to accepting the facts, and their assessment, as established by the lower courts and thus do not engage in a genuine verification of consistency, although the decisions given by the lower courts are determined in accordance with the case-law of the Verwaltungsgerichtshof (Supreme Administrative Court) and the Verfassungsgerichtshof (Constitutional Court). 31 Nevertheless, the referring court does not set out the grounds on which it considers that the national legislation at issue in the main proceedings — which assigns jurisdiction in a complementary manner between, on the one hand, the lower courts, by investing them with powers to establish and evaluate the facts and, on the other hand, the higher courts, by limiting their jurisdiction to examining legal matters or to questions relating to fundamental rights — does not, as a result, meet in a consistent manner the objectives it aims to pursue in the area of games of chance. 32 Moreover, with regard to the requirement laid down in Article 94(c) of the Rules of Procedure concerning the information on the national legislation applicable to the dispute in the main proceedings, it should be pointed out that, while the present request for a preliminary ruling sets out the content of certain provisions of the Law on the Supreme Administrative Court and the Law on the Constitutional Court, it does not indicate in a sufficiently clear manner how such provisions could apply in the disputes before the referring court and which are the subject of the request. 33 Consequently, the requirement laid down in Article 94(c) of the Rules of Procedure according to which a link must be established between the provisions of EU law in question and the national legislation applicable to the dispute in the main proceedings is not satisfied. 34 According to the settled case-law of the Court, the justification for making a request for a preliminary ruling is not for advisory opinions to be delivered on general or hypothetical questions, but rather that it is necessary for the effective resolution of a dispute concerning EU law (judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 123). 35 For all practical purposes, it should be added that, if it appears that the assessments made by a national court are not in conformity with EU law, EU law requires that a different national court which is in domestic law unconditionally bound by the interpretation of EU law made by the first court must, of its own motion, refuse to apply the rule of domestic law which requires it to comply with the interpretation of EU law according to that first court (order of 15 October 2015, Naderhirn, C‑581/14, not published, EU:C:2015:707, paragraph 35). 36 That is true in particular where, as a result of having to follow a rule of national law, a national court, in dealing with the cases pending before it, would be prevented from taking due account of the fact that it follows from a judgment of the Court of Justice that a provision of national law must be held to be contrary to EU law and ensuring that the primacy of EU law is duly guaranteed, by taking all measures required to that end (order of 15 October 2015, Naderhirn, C‑581/14, not published, EU:C:2015:707, paragraph 36). 37 Having regard to all the foregoing considerations, it must be held that, pursuant to Article 53(2) of the Rules of Procedure of the Court, the present request for a preliminary ruling is manifestly inadmissible. Costs 38 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Eighth Chamber) hereby orders: The request for a preliminary ruling made by the Landesverwaltungsgericht Oberösterreich (Regional Administrative Court of Upper Austria, Austria) by decision of 16 November 2016 is manifestly inadmissible. [Signatures] * Language of the case: German.