A v B and Others.
Date: 2014-09-11
32. Nevertheless, it emerges from the documents before the Court, which include the decision of the Verfassungsgerichtshof referred to in paragraph 24 above, that the obligation to apply to that court for the general striking down of statutes does not affect the right of the ordinary courts, as expressed by the Verfassungsgerichtshof in wording borrowed from the judgment of the Court of Justice in Melki and Abdeli  (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 57), to refer to the Court of Justice for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of the interlocutory procedure for the review of constitutionality, any question which they consider necessary; to adopt any measure necessary to ensure provisional judicial protection; and to disapply, at the end of such an interlocutory procedure, a national legislative provision contrary to EU law. In that regard, the Verfassungsgerichtshof considers it important, as can be seen from paragraph 42 of its judgment, that the Court should not be deprived of the possibility of reviewing EU secondary legislation in the light of primary law and the Charter.
35. It follows, first, that, while it might be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court (see Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others  EU:C:1981:62, paragraph 6; Meilicke , C‑83/91, EU:C:1992:332, paragraph 26; and JämO , C‑236/98, EU:C:2000:173, paragraph 31), national courts have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, necessitating a decision on their part (see, inter alia, Rheinmühlen-Düsseldorf , 166/73, EU:C:1974:3, paragraph 3; Mecanarte , C‑348/89, EU:C:1991:278, paragraph 44; Cartesio , C‑210/06, EU:C:2008:723, paragraph 88; and Melki and Abdeli , EU:C:2010:363, paragraph 41).
36. Second, the Court has held that a national court that is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such a provision by legislative or other constitutional means (see, inter alia, Simmenthal , 106/77, EU:C:1978:49, paragraphs 21 and 24; Filipiak , C‑314/08, EU:C:2009:719, paragraph 81; Melki and Abdeli , EU:C:2010:363, paragraph 43 and the case-law cited; and Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraph 45).
37. Any provision of a national legal system and any legislative, administrative or judicial practice that might impair the effectiveness of EU law by withholding from the national court with jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions that might prevent EU rules from having full force and effect are incompatible with those requirements, which are the very essence of EU law (see Simmenthal , EU:C:1978:49, paragraph 22; Factortame and Others , C‑213/89, EU:C:1990:257, paragraph 20; and Åkerberg Fransson , EU:C:2013:105, paragraph 46 and the case-law cited). This would be the case in the event of a conflict between a provision of EU law and a national law, if the solution of the conflict were to be reserved to an authority with a discretion of its own, other than the court called upon to apply EU law, even if such an impediment to the full effectiveness of EU law were only temporary (see Simmenthal , EU:C:1978:49, paragraph 23, and Melki and Abdeli , EU:C:2010:363, paragraph 44).
38. Third, the Court has held that a national court which, in a case concerning EU law, considers that a provision of national law is not only contrary to EU law, but also unconstitutional, does not lose the right or escape the obligation under Article 267 TFEU to refer questions to the Court of Justice on the interpretation or validity of EU law by reason of the fact that the declaration that a rule of national law is unconstitutional is subject to a mandatory reference to the constitutional court. The effectiveness of EU law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by EU law from exercising the right conferred on it by Article 267 TFEU to refer to the Court of Justice questions concerning the interpretation or validity of EU law in order to enable it to decide whether or not a provision of national law was compatible with that EU law ( Melki and Abdeli , EU:C:2010:363, paragraph 45 and the case-law cited).
39. In the light of the case law referred to in paragraphs 35 to 38 above, the functioning of the system of cooperation between the Court of Justice and the national courts established by Article 267 TFEU requires, as does the principle of primacy of EU law, the national court to be free to refer to the Court for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at the end of an interlocutory procedure for the review of constitutionality (see, to that effect, Melki and Abdeli , EU:C:2010:363, paragraphs 51 and 52).
40. Furthermore, in so far as national law lays down an obligation to initiate an interlocutory procedure for the review of constitutionality, the functioning of the system established by Article 267 TFEU requires that the national court be free, first, to adopt any measure necessary to ensure the provisional judicial protection of the rights conferred under the EU legal order and, second, to disapply, at the end of such an interlocutory procedure, that national legislative provision if that court holds it to be contrary to EU law (see Melki and Abdeli , EU:C:2010:363, paragraph 53).
41. Lastly, as regards the simultaneous applicability to national legislation implementing EU law, within the meaning of Article 51(1) of the Charter, of fundamental rights guaranteed by a national constitution and those guaranteed by the Charter, it should also be observed that the priority nature of an interlocutory procedure for the review of the constitutionality of a national law (the content of which merely transposes the mandatory provisions of an EU directive) may not undermine the jurisdiction of the Court of Justice alone to declare an act of the European Union invalid, and in particular a directive, the purpose of that jurisdiction being to guarantee legal certainty by ensuring that EU law is applied uniformly (see, to that effect, Foto-Frost , 314/85, EU:C:1987:452, paragraphs 15 to 20; IATA and ELFAA , C‑344/04, EU:C:2006:10, paragraph 27; Lucchini , C‑119/05, EU:C:2007:434, paragraph 53; and Melki and Abdeli , EU:C:2010:363, paragraph 54).
42. To the extent that the priority nature of an interlocutory procedure for the review of constitutionality leads to the repeal of a national law (the content of which merely transposes the mandatory provisions of an EU directive) on the basis that that law is contrary to the national constitution, the Court could in practice, at the request of the courts ruling on the substance of cases in the Member State concerned, be denied the possibility of reviewing the validity of that directive in relation to the same grounds relating to the requirements of primary law and, in particular, the rights recognised by the Charter, to which Article 6 TEU accords the same legal value as that accorded to the Treaties ( Melki and Abdeli , EU:C:2010:363, paragraph 55).
43. Before the interlocutory review of the constitutionality of a law (the content of which merely transposes the mandatory provisions of an EU directive) can be carried out in relation to the same grounds which cast doubt on the validity of the directive, national courts against whose decisions there is no judicial remedy under national law are, as a rule, required — under the third paragraph of Article 267 TFEU — to refer to the Court of Justice a question on the validity of that directive and, thereafter, to draw the appropriate conclusions resulting from the preliminary ruling given by the Court, unless the court which initiates the interlocutory review of constitutionality has itself referred that question to the Court pursuant to the second paragraph of Article 267 TFEU. In the case of a national implementing law with such content, the question whether the directive is valid takes priority, in the light of the obligation to transpose that directive ( Melki and Abdeli , EU:C:2010:363, paragraph 56).
44. Also, where EU law allows Member States a measure of discretion in the implementation of an act of EU law, national authorities and courts remain free to protect fundamental rights under the national constitution, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (see, to that effect, Melloni , C‑399/11, EU:C:2013:107, paragraph 60).
45. In relation to the principle of equivalence, to which the referring court refers in its request for a preliminary ruling, it should be borne in mind that, according to that principle, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions, ( Transportes Urbanos y Servicios Generales , C‑118/08, EU:C:2010:39, paragraph 33, and Agrokonsulting-04 , C‑93/12, EU:C:2013:432, paragraph 36 and the case-law cited). Reliance on the principle of equivalence may not relieve the national courts, in the application of domestic procedural rules, of their duty to observe in full the requirements flowing from Article 267 TFEU.
50. According to settled case-law, the provisions of Regulation No 44/2001 must be interpreted autonomously, primarily by reference to the scheme and purpose of that regulation (see, to that effect, Cartier parfums-lunettes and Axa Corporate Solutions Assurance , C‑1/13, EU:C:2014:109, paragraph 32 and the case-law cited, and Hi Hotel HCF , C‑387/12, EU:C:2014:215, paragraph 24).
51. Furthermore, the provisions of EU law, such as those of Regulation No 44/2001, must be interpreted in the light of fundamental rights which, according to settled case-law, form an integral part of the general principles of law whose observance the Court ensures and which are now set out in the Charter (see, to that effect, Google Spain and Google , C‑131/12, EU:C:2014:317, paragraph 68 and the case-law cited). In that respect, it must be borne in mind that all the provisions of Regulation No 44/2001 express the intention to ensure that, within the scope of the objectives of that regulation, proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence enshrined in Article 47 of the Charter are observed (see Hypoteční banka , C‑327/10, EU:C:2011:745, paragraphs 48 and 49, and G , C‑292/10, EU:C:2012:142, paragraphs 47 and 48 and the case-law cited).
53. In that regard, it should first be borne in mind that Article 24 falls within Section 7 of Chapter II of Regulation No 44/2001, which is entitled ‘Prorogation of jurisdiction’. The first sentence of Article 24 of Regulation No 44/2001 lays down a rule of jurisdiction, based on the entering of an appearance by the defendant, for all disputes in which the jurisdiction of the court seised does not derive from other provisions of that regulation. Article 24 of Regulation No 44/2001 applies also in cases where a court has been seised in breach of that regulation and implies that the entering of an appearance by the defendant may be regarded as tacit acceptance of the jurisdiction of the court seised and, accordingly, as a prorogation of that court’s jurisdiction (see ČPP Vienna Insurance Group , C‑111/09, EU:C:2010:290, paragraph 21, and Cartier parfums-lunettes and Axa Corporate Solutions Assurance , EU:C:2014:109, paragraph 34).
54. Thus, as the Advocate General observed in point 43 of his Opinion, 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. On the other hand, 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.
55. 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.
56. Secondly, it should be observed that, within the scheme of Regulation No 44/2001, the international jurisdiction of the court seised is not subject to judicial scrutiny by the court of its own motion or on the application of the defendant, as is clear from Article 26 and point (2) of Article 34 of that regulation, unless the defendant can be regarded as not having entered an appearance. Accordingly, respect for the rights of the defence requires that the legal representative should be unable validly to enter an appearance on behalf of the defendant, for the purposes of Regulation No 44/2001, unless that measure does in fact ensure that an absent defendant’s rights of defence are respected. However, as is made clear by the case-law of the Court relating to Article 27(2) of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), as amended by the later conventions relating to the adherence of new Member States to the Brussels Convention, and by the case-law on point (2) of Article 34 of Regulation No 44/2001, where proceedings are initiated against a person without his knowledge and a lawyer or ‘representative’ appears on his behalf but without his authority, such a person is quite powerless to defend himself and must therefore be regarded as a defendant in default of appearance, for the purposes of point (2) of Article 34 of Regulation No 44/2001, even if the proceedings have become inter partes  (see, to that effect, as regards the interpretation of the Convention of 27 September 1968, as amended, Hendrikman and Feyen , C‑78/95, EU:C:1996:380, paragraph 18, and the judgment in Hypoteční banka , EU:C:2011:745, paragraphs 53 and 54).