Legal Consequences for the Infringement of the Obligation to Make a Reference for a Preliminary Ruling under Constitutional Law

Abstract

The article deals with the question whether a state might be held liable for the infringement of constitutional law if its national court of last instance violates the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on the well-established practice of the European Court of Human Rights, which accepts that in theory an arbitrary decision not to refer a question for a preliminary ruling could infringe the right to a fair trial established in the ECHR, the author analyses whether constitutional courts of Germany, Czech Republic, Spain and Lithuania have elaborated the equivalent practice and if so, whether they have established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer.