Opinion of the Advocate General — ECLI:EU:C:2014:207
Date: 2014-04-02
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (Fifth Chamber), 11 September 2014 1. Questions referred for a preliminary ruling — Reference to the Court — Jurisdiction of national courts — National legislation requiring ordinary courts hearing an appeal or adjudicating at final instance to apply to the constitutional court for a national law contrary to the Charter to be generally struck down — Priority nature of such an interlocutory procedure — Ordinary courts unable to dispose of the case immediately by refraining from applying that law — Lawfulness — Conditions — Determination by the national court (Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 47) 2. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Prorogation of jurisdiction — Appearance entered by the defendant within the meaning of Article 24 of Regulation No 44/2001 — Definition — Appearance of the defendant by a representative in absentia — Not included — Conditions (Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 44/2001, Art. 24) 1. EU law and, in particular, Article 267 TFEU must be interpreted as precluding national legislation under which ordinary courts hearing an appeal or adjudicating at final instance are under a duty, if they consider a national law to be contrary to Article 47 of the Charter of Fundamental Rights of the European Union, to apply, in the course of the proceedings, to the constitutional court for that law to be generally struck down, and may not simply refrain from applying that law in the case before them, to the extent that the priority nature of that procedure prevents — both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question — all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. By contrast, EU law and, in particular, Article 267 TFEU must be interpreted as not precluding such national legislation to the extent that those ordinary courts remain free: - to make a reference to the Court at whatever stage of the proceedings they consider appropriate, and even at the end of the interlocutory procedure for the review of constitutionality, in respect of any question which they consider necessary, - to adopt any measure necessary to ensure interim judicial protection of rights conferred under the EU legal order, and - to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to EU law. It is for the referring court to ascertain whether the national legislation at issue before it can be construed in such a way as to meet those requirements of EU law. (see para. 46, operative part 1) 2. Article 24 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, where a national court appoints, in accordance with national legislation, a representative in absentia for a defendant upon whom the documents instituting proceedings have not been served because his place of domicile is not known, the appearance entered by that representative does not amount to an appearance being entered by that defendant for the purposes of Article 24 of that regulation, establishing the international jurisdiction of that court. The tacit prorogation of jurisdiction by virtue of the first sentence of Article 24 of Regulation No 44/2001 is based on a deliberate choice made by the parties to the dispute regarding jurisdiction, which presupposes that the defendant was aware of the proceedings brought against him. By contrast, an absent defendant upon whom the document instituting proceedings has not been served and who is unaware of the proceedings against him may not be regarded as having tacitly accepted the jurisdiction of the court seised. Furthermore, an absent defendant who is unaware of the action brought against him or of the appointment of a representative to act on his behalf cannot provide that representative with all the information necessary, for the purposes of determining whether the court seised has international jurisdiction, which would enable him effectively to contest that jurisdiction or to accept it in full knowledge of the facts. Nor, accordingly, may an appearance entered by a court-appointed representative be regarded as tacit acceptance, by the defendant, of the jurisdiction of that court. In that regard, in circumstances where the document instituting proceedings has not been served on the defendant, who was domiciled in a Member State other than that of the court seised, the establishment of the international jurisdiction of that court on the basis of an appearance entered by a representative in absentia, appointed on the defendant’s behalf, cannot be regarded as predictable. The right to an effective remedy guaranteed by Article 47 of the Charter, which must be implemented in conjunction with respect for the defendant’s rights of defence within the scheme of Regulation No 44/2001 is not to be interpreted differently from Article 24 of that regulation. Interpreting Article 24 of Regulation No 44/2001 to mean that such a guardian or representative in absentia may enter an appearance on behalf of the defendant for the purposes of Article 24 of Regulation No 44/2001 cannot be regarded as striking a fair balance between the right to an effective remedy and the rights of the defence. Such an interpretation would deprive of the opportunity to ensure respect for the rights of the defence by opposing, in accordance with Article 34(2) of that regulation, recognition of the judgment issued against him. (see paras 54, 55, 57, 58, 60, 61, operative part 2)