2019/06/26 – 30 Cdo 3378/2018 (summary)

Judgment of the Supreme Court of 26 June 2019, Ref. No. 30 Cdo 3378/2018
(obligation to refer a question for the preliminary ruling, court of last instance, EU Law)

The case concerns claimant´s action for compensation for non-material damage caused by the alleged violation of European Union Law (hereinafter as “EU Law”). The Constitutional Court of the Czech Republic in the previous case refused the constitutional complaint and argued that the directives put forward by the claimant were not applicable to his case at all. According to the claimant, the Constitutional Court breached the EU Law by not referring the question for the preliminary ruling to the Court of Justice of the European Union (hereinafter as “Court of Justice”) in accordance with Art. 267 of the Treaty on the functioning of the European Union. The claimant was of the opinion that failing to follow the requirements of the Court of Justice case-law in this area, the Constitutional Court did not duly substantiate the reasons for not requesting the preliminary ruling. Furthermore, the claimant pointed at the relevant case-law of the Court of Justice on the direct liability of a state for the damage caused by failing to refer the question for the preliminary ruling. In the subsequent proceedings, the court of first instance held that the Constitutional Court dealt with the claimant´s proposal in great detail and explained that the questions do not relate to the case at issue. The court of appeal confirmed this view – it added that in accordance with the case law of the Supreme Court, it is not admissible for the ordinary courts to evaluate the procedure before the Constitutional Court.

Within the extraordinary appeal, the Supreme Court firstly recalled that breach of EU Law by the decision of domestic court in the last instance is attributable to a Member State and that the conditions to make reparation for the damage caused by a state must satisfy principles of equality and effectiveness. It further recalled that under the case-law of the Court of Justice, a decision which caused the damage does not have to be set aside. According to the case-law, EU Law prevents from applying provisions of domestic legislation which require previous setting aside of that decision. Such a provision is according to the Court of Justice in breach with EU Law since it may excessively hinder obtaining redress for damage caused by the breach at hand.

The Supreme Court was subsequently of the opinion that answer to the question as to whether such a conclusion could be applied also to the enforceable and non-annulled decision of the Constitutional Court, was intertwined with the question of the Constitutional Court obligation to refer the question for the preliminary ruling to the Court of Justice. The Supreme Court noted in this regard that it is only a court deciding in the last instance whose decision may establish state liability for breach of EU Law. In respect to the Constitutional Court, the Supreme Court was of the opinion that even though Constitutional Court satisfies all the criteria of a “court” according to the case-law of the Court of Justice, and thus having the right to refer the question for the preliminary ruling, it is not a court having the obligation to refer such a question in the matters of individual constitutional complaints where it decides only after ordinary courts have already assessed the case. The Supreme Court further stressed that the Constitutional Court is not a part of a system of ordinary courts. It possesses special, autonomous and to some extent superior status as a judicial body established to protect the constitutionality.

The Supreme Court further noted that even after the accession of the Czech Republic to the EU, norms of the Czech constitutional order remain the reference framework for review by the Constitutional Court. According to the Supreme Court, EU Law is not part of this constitutional order and thus it is not for the Constitutional Court to interpret it. The Supreme Court held that the task of the Constitutional Court is the protection of constitutionality and not the supervision over compliance with conditions stipulated by EU Law for referring the questions for the preliminary ruling by ordinary courts. Nor is the task of the Constitutional Court to search for the correct application of EU Law or to interpret it authoritatively. The Supreme Court was equally of the opinion that the court of the last instance (i.e. the court that rendered a decision against which there is no judicial remedy) is either the Supreme Court or the Supreme Administrative Court. Such a stance therefore excludes the Constitutional Court.

The Supreme Court concluded that the Constitutional Court in the present case was not obliged to refer the question for the preliminary ruling to the Court of Justice. This conclusion does not relieve an injured party of the right to claim reparation for the damage caused by breaching the EU Law on the domestic level - the injured party, however, cannot derive its claim from a decision of the Constitutional Court concerning a constitutional complaint.