The obligation to justify the decision not to refer a preliminary question as one of the tools to ensure the right to effective judicial protection (situation after the judgment of the CJEU in the Consorzio Italian Management case)
Abstract
This article focuses on the obligation of the national court of last instance to state reasons for its decision not to refer a preliminary question to the CJEU in relation to the EU rules on the liability of a Member State for damage caused by a breach of the obligation to refer preliminary question. This obligation is not directly enshrined in EU primary law, but is a prerequisite for maintaining the right to a fair trial for the parties before the national courts and also constitutes an infringement of the right to effective judicial protection and right to a lawful judge.
The thesis presents a definition of this obligation and an evaluation of the possibilities of its application, taking into account the development of the jurisprudence of the CJEU and ECtHR, primarily the decision of the CJEU in the case of Consorzio Italian Management. It sets out the essential elements of the statement of reasons and specify the consequences if the national court fails to state reasons for not refering a preliminary question, which leads to a violation of the rights guaranteed by the EU Charter of Fundamental Rights.