Source: EURLEX
Language: en
Format: md

Case C‑144/23

KUBERA, trgovanje s hrano in pijačo, d.o.o.

v

Republika Slovenija

(Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije)

Judgment of the Court (Grand Chamber) of 15 October 2024

(Reference for a preliminary ruling – Article 267 TFEU – Scope of the obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Proceedings relating to the grant of leave to appeal on a point of law to the supreme court of a Member State – Request by the party seeking leave to appeal on a point of law that a question concerning the interpretation of EU law be referred to the Court of Justice – National legislation under which leave to appeal on a point of law is to be granted if the appeal raises a question of law that is important for ensuring legal certainty, the uniform application of the law or its development – Obligation for the national supreme court to consider, in proceedings relating to the grant of leave to appeal on a point of law, whether a reference for a preliminary ruling should be made – Statement of reasons for the decision refusing leave to appeal on a point of law)

1. Questions referred for a preliminary ruling – Reference to the Court – Issues of interpretation – Obligation to make a reference for a preliminary ruling – Scope – Proceedings relating to the grant of leave to appeal on a point of law to the supreme court of a Member State – Refusal of an application for leave without a prior assessment as to whether that court is under an obligation to refer to the Court of Justice the question of EU law raised in support of that application – Not permissible

   (Art. 267, third para., TFEU)

   (see paragraphs 31-39, 45, 46, 54-56, 58-60, operative part 1)
2. Questions referred for a preliminary ruling – Reference to the Court – Issues of interpretation – Obligation to make a reference for a preliminary ruling – Proceedings relating to the grant of leave to appeal on a point of law to the supreme court of a Member State – Refusal of an application for leave containing a request that a question concerning the interpretation or validity of a provision of EU law be referred to the Court of Justice – Obligation to state the reasons for the decision not to make that reference

   (Art. 267, third para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

   (see paragraphs 62-65, operative part 2)

Résumé

In a reference for a preliminary ruling from the Vrhovno sodišče (Supreme Court, Slovenia), the Grand Chamber of the Court of Justice rules that in proceedings relating to the grant of leave to appeal on a point of law to a national supreme court, that court is not relieved of its obligation to consider, in the context of those proceedings, whether a question of EU law raised in support of that application for leave to appeal should be referred to the Court of Justice for a preliminary ruling.

KUBERA, a company, purchased cans of Red Bull in Türkiye that had been manufactured in Austria and transported them by ship to the port of Koper (Slovenia) for importation. By two decisions of 5 October 2021, the Slovenian financial administration decided to detain those cans, pursuant to Regulation No 608/2013, (
[1](#t-ECR_62023CJ0144_RES_EN_01-E0001)
) pending the outcome of judicial proceedings initiated by the company Red Bull to protect its intellectual property rights relating to those cans. Having exhausted the administrative appeals available, KUBERA brought actions against those decisions before the Upravno sodišče (Administrative Court, Slovenia), which delivered two judgments dismissing the actions.

KUBERA then submitted two applications to the referring court for leave to appeal on a point of law against those judgments, claiming that the dispute in the main proceedings raises a question of interpretation of Regulation No 608/2013 (
[2](#t-ECR_62023CJ0144_RES_EN_01-E0002)
) which, according to KUBERA, is an important legal question that justifies granting leave to bring appeals on a point of law. It also asked that, should the referring court not agree with its preferred interpretation of that regulation, the matter be referred to the Court of Justice for a preliminary ruling.

According to the national legislation applicable, leave to appeal on a point of law is to be granted if the case brought before the Supreme Court raises a question of law that is important for ensuring legal certainty, the uniform application of the law or its development. That legislation sets out the particular situations that correspond to those scenarios. While the referring court considers that, in this instance, the applications of KUBERA for leave to appeal on a point of law do not satisfy those conditions, it is nevertheless uncertain as to whether the third paragraph of Article 267 TFEU (
[3](#t-ECR_62023CJ0144_RES_EN_01-E0003)
) places it under an obligation, for the purposes of deciding on those applications for leave to appeal, to examine KUBERA’s request that the question of EU law raised by that company be referred to the Court of Justice for a preliminary ruling. It also seeks to establish whether, should it decide that it is not necessary to submit a request for a preliminary ruling to the Court of Justice, it is required, under Article 47 of the Charter of Fundamental Rights of the European Union, to state the reasons for its decision refusing the application for leave to appeal on a point of law.

Findings of the Court

In the first place, the Court rules that the third paragraph of Article 267 TFEU precludes a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law from deciding – in proceedings relating to the examination of an application for leave to appeal on a point of law the outcome of which depends on the significance of the legal issue raised by one of the parties to the dispute with respect to legal certainty, the uniform application of the law or its development – to refuse such an application for leave without having assessed whether it was obliged to submit to the Court for a preliminary ruling a question concerning the interpretation or validity of a provision of EU law raised in support of that application.

The Court recalls, first of all, that although the organisation of justice in the Member States falls within the competence of those Member States, they are required, when exercising that competence, to comply with their obligations deriving from EU law. Accordingly, although EU law does not, in principle, preclude the Member States from establishing procedures for granting leave to appeal or other selection or ‘filtering’ systems for bringing matters before the national supreme courts, the implementation of such procedures or systems must meet the requirements deriving from EU law, particularly from Article 267 TFEU.

In that regard, the obligation on courts or tribunals of a Member State against whose decisions there is no judicial remedy under national law to refer a question to the Court of Justice for a preliminary ruling is based on cooperation between national courts and tribunals and the Court, and is intended in particular to prevent a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States. Such a court or tribunal can be relieved of that obligation in only three situations: where it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the Court or that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt. (
[4](#t-ECR_62023CJ0144_RES_EN_01-E0004)
) If it is in one of those situations, (
[5](#t-ECR_62023CJ0144_RES_EN_01-E0005)
) that court or tribunal is not, therefore, required to bring the matter before the Court, even when the question concerning the interpretation or validity of a provision of EU law is raised by a party to the proceedings before it.

Moreover, the Court notes that the existence of a procedure for granting leave to appeal on a point of law cannot transform the lower court or tribunal whose decision may be challenged in such an appeal into a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law and which is, as a result, under an obligation to make a reference to the Court as provided for in the third paragraph of Article 267 TFEU. However, a national supreme court, such as the referring court, is under such an obligation.

The referring court nevertheless explains that, according to its own interpretation of the national legislation applicable, it is not required to determine, at the stage of the examination of the application for leave to appeal on a point of law, whether or not it is necessary, in the context of the procedure relating to appeals on a point of law, to submit to the Court for a preliminary ruling the question of EU law raised in support of that application. Where leave to appeal on a point of law is not granted, the decision refusing leave definitively brings the procedure to an end. In that case, the lower court’s interpretation of EU law could prevail in the national legal order concerned, even though the question raised in support of the application for leave to appeal on a point of law would have warranted a reference for a preliminary ruling being made to the Court.

The Court notes that such legislation or national practices can lead to a situation in which a question concerning the interpretation or validity of a provision of EU law, despite being raised before the Supreme Court, would not be submitted to the Court of Justice, contrary to the obligation imposed on that national court by the third paragraph of Article 267 TFEU. Such a situation is capable of undermining the effectiveness of the system of cooperation between the national courts and tribunals and the Court, and, in particular, the achievement of the objective of preventing a body of national case-law that is not in accordance with EU law from being established in any of the Member States. (
[6](#t-ECR_62023CJ0144_RES_EN_01-E0006)
)

The Court nevertheless invites the referring court to ascertain whether it is possible to interpret the national legislation applicable in accordance with the requirements of Article 267 TFEU. (
[7](#t-ECR_62023CJ0144_RES_EN_01-E0007)
) In fact, that legislation does not seem to prohibit the referring court from assessing, in the context of the procedure for examining an application for leave to appeal on a point of law, whether the question concerning the interpretation or validity of a provision of EU law raised in support of that application requires that a reference for a preliminary ruling be made to the Court of Justice or, instead, falls within one of the exceptions to the duty to refer. In particular, the situations which are set out in that legislation and which exclusively involve situations characterised, in essence, by variations in domestic case-law or by the absence of case-law from the national supreme court do not appear to be exhaustive.

In those circumstances, that legislation appears to be capable of being interpreted as meaning that the criterion of the significance of the legal issue raised with respect to legal certainty, the uniform application of the law or its development includes the situation in which the party to the dispute who is seeking leave to appeal on a point of law raises a question concerning the interpretation or validity of a provision of EU law which does not fall within any of the exceptions to the duty to refer and which requires, therefore, that a reference be made to the Court of Justice for a preliminary ruling.

The Court also points out that it is for a national supreme court to which an application for such leave to appeal has been made, and which is under an obligation to make a reference for a preliminary ruling to the Court, to decide whether it is appropriate to do so at the stage of the examination of that application for leave or at a later stage. If it decides to bring the matter before the Court of Justice for a preliminary ruling at the stage of the examination of that application, it must suspend further processing of that application pending the preliminary ruling and subsequently apply that ruling in its assessment as to whether leave to appeal on a point of law should be granted.

In the second place, the Court recalls that it follows from the system established by Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter of Fundamental Rights, that if a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law takes the view, because the case before it involves one of the three exceptions to the duty to refer, that it is relieved of that duty, the statement of reasons for its decision must show either that the question of EU law raised is irrelevant for the resolution of the dispute, or that the interpretation of the EU law provision concerned is based on the Court’s case-law, or, in the absence of such case-law, that the interpretation of EU law was so obvious to the national court or tribunal of last instance as to leave no scope for any reasonable doubt. The Court infers from this that, given that, without prejudice to the application of a purely procedural ground of inadmissibility, such a court or tribunal of a Member State cannot refuse an application for leave to appeal on a point of law that raises a question concerning the interpretation or validity of a provision of EU law without first assessing whether it is required to refer that question to the Court of Justice for a preliminary ruling or whether that question falls within one of the three exceptions to the duty to refer, that court or tribunal must, when refusing such an application for leave to appeal on the basis of one of those exceptions, set out the reasons why that reference was not made.

---

(
[1](#c-ECR_62023CJ0144_RES_EN_01-E0001)
) Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003 ([OJ 2013 L 181, p. 15](./../../../legal-content/EN/AUTO/?uri=OJ:L:2013:181:TOC)). See Article 17 of that regulation.

(
[2](#c-ECR_62023CJ0144_RES_EN_01-E0002)
) In this case, the question as to whether that regulation applies to a situation in which the imported goods are manufactured by the holder of intellectual property rights relating to those goods.

(
[3](#c-ECR_62023CJ0144_RES_EN_01-E0003)
) In accordance with that provision, where any question concerning the interpretation or validity of EU law 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 is to bring the matter before the Court of Justice.

(
[4](#c-ECR_62023CJ0144_RES_EN_01-E0004)
) Judgments of 6 October 1982, Cilfit and Others ([283/81](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1982%3A335&locale=en), [EU:C:1982:335](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A1982%3A335), paragraph [21](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A1982%3A335&anchor=#point21)), and of 6 October 2021, Consorzio Italian Management and Catania Multiservizi ([C‑561/19](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A799&locale=en), [EU:C:2021:799](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A799), paragraph [33](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A799&anchor=#point33)).

(
[5](#c-ECR_62023CJ0144_RES_EN_01-E0005)
) Those three situations in which national courts or tribunals of last instance are not subject to the obligation to make a reference for a preliminary ruling are referred to below as ‘exceptions to the duty to refer’.

(
[6](#c-ECR_62023CJ0144_RES_EN_01-E0006)
) That interpretation is not called into question by the case-law deriving from the judgments of 15 March 2017, Aquino ([C‑3/16](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2017%3A209&locale=en), [EU:C:2017:209](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2017%3A209), paragraph [56](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2017%3A209&anchor=#point56)), and of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, cited above, paragraph 61), according to which a national court or tribunal against whose decisions there is no judicial remedy under national law may decline to refer a question to the Court of Justice for a preliminary ruling on grounds of inadmissibility specific to the procedure before that national court or tribunal, subject to compliance with the principles of equivalence and effectiveness. Unlike those grounds, a criterion of leave to appeal on a point of law such as that provided for in the national legislation applicable requires the supreme court to examine the significance of the legal issue raised in support of the application for leave to appeal with respect to legal certainty, the uniform application of the law or its development.

(
[7](#c-ECR_62023CJ0144_RES_EN_01-E0007)
) The Court refers, in that regard, to the information provided in the order for reference concerning the development of the case-law of the Ustavno sodišče (Constitutional Court, Slovenia). In particular, according to the referring court, it follows from a decision of that constitutional court of 31 March 2022 that where one of the parties to a dispute requests, in the context of an application for leave to appeal on a point of law, that a matter be referred to the Court of Justice for a preliminary ruling under Article 267 TFEU, that party’s request must be dealt with at the stage of the examination of that application for leave.

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