Two Paths, One Form of Justice? Denying CJEU Referrals and the Right to a Fair Trial

In this article, the author discusses the duty of national courts to state reasons for not referring preliminary questions to the Court of Justice of the European Union (CJEU) as an aspect of the right to a fair trial (article 6 of the European Convention on Human Rights (ECHR) and article 47 of the Charter of Fundamental Rights of the European Union (Charter). It first outlines the relationship between the European Union and the ECHR, followed by a bird’s eye view of the exceptions under EU law to the duty for national courts of last instance to refer matters to the CJEU. The author then discusses case law of the CJEU and the European Court of Human Rights (ECtHR) on the duty to state reasons. The recent Georgiou v. Greece (14 March 2023) decision is also discussed. In this decision, the ECtHR adopted a new step in answering the question of whether a refusal by a national court of last instance to refer a preliminary question to the CJEU violates article 6 of the ECHR. Also, the two European systems of fundamental rights protection and the (im)possibilities of avoiding divergences in the case law on the obligation to state reasons are addressed. In this light, the preliminary ruling procedure before the ECtHR is also briefly mentioned.