First, how do we know if a national body, in our case the ABLAN, fits the specialisation of a tribunal or court in the sense of Article 267 TFEU? Case law provides the characteristics which must be present. First, the body must be established by law. Second, it has to be permanent and thus not ad hoc. Third, it must have compulsory jurisdiction which means that if there occurs a dispute, it is laid down to which court you should go to. Its procedure must also be inter partes and the body must apply the rules of law. Finally, it must be independent. In addition, two conditions could be mentioned, namely there must be a case pending before it and its decision must be of a judicial nature.
In the given case, the ABLAN is established by the Latvian law on the Judiciary and therefore has a legal basis. It is permanent and has compulsory jurisdiction because otherwise, the case would be declared inadmissible (it has the competence to settle disputes with regards to the accession of the notary jobs). Therefore, its decisions are of judicial nature. Nonetheless, the entity is not independent: its costs and procedures are funded by members of the Latvian Association of Notaries. The conditions are thus not fulfilled, the ABLAN could not be seen as a tribunal or court in the sense of Article 267 TFEU.
Article 256, paragraph 1 of the TFEU lists the competences of the General Court, in particular within the articles 263, 265, 268, 270 and 272 with exceptions of the specialised courts (currently none) and competences retained in the Statute of the Court of Justice.
The Article 267-question which Erik suggests the District Court does not form part of the enumeration listed in Article 256 TFEU and thus not falls within the competence of the General Court. Therefore, the Court of Justice is competent for the related ruling.
According to the Elchinov case, lower courts are not bound by rulings of higher courts when it is in contrast with EU law. In other words, those courts have the freedom to decide on itself whether or not to follow the higher courts in their decisions.
It could possibly refer a preliminary question to the CJEU, but it is not an obligation in contrast to higher courts. Those “shall” refer because they are acting in last instance, no remedy is possible against their decisions.
In other words, the refusal of the District Court to refer a preliminary question, based on the given arguments, is incorrect. It has the possibility to refer because it could not be bound by higher courts, even when they act in breach with EU law.
According to Article 267 TFEU, in particular paragraph 2, national courts who do not act as last instance have the possibility to ask questions to the CJEU if they consider it necessary for giving their judgement.
No, Article 7 of Latvian law on the Judiciary does not prevent the Court of Appeals from referring a preliminary question to the CJEU, because the Treaty on the Functioning of the European Union (TFEU) states that it has the possibility to do so and, according to the hierarchy, Treaties are primary sources of EU law and therefore take precedence over national legislation. National courts have the freedom whether to ask questions or not.
According to paragraph 3 of Article 267 TFEU, a court or tribunal who acts as a last resort has the obligation to refer questions to the CJEU (because there is no judicial remedy for their decisions).
A few exceptions must be made, according to the CILFIT case. First, the acte clair which states that the issue is so clear that you do not need to refer. Second, the acte éclairé which explains that the CJEU has already clarified a case.
In the case, the Supreme Court creates an acte éclairé by saying that ‘the ruling Commission v Estonia makes it patently clear that notaries’ activities as regards divorces imply the exercise of ‘official authority’ in the sense of Article 51 TFEU. It sees no need to come back from Vejonis v Kucinskis’.” But the reality shows that the case cannot be a legal ground for the acte éclairé because it is not ruled by the CJEU. Also the court stated in the ruling of the Commission that it cannot be an acte éclairé because it states the opposite of the Supreme Court.
In my view, the Supreme Court of Latvia must have referred a preliminary ruling to the CJEU, because there is no other body who controls their decisions, there is no judicial remedy.
According to Article 259 TFEU, it states that a Member State can act against one another by bringing the matter before the Commission. The Commission then must deliver an opinion concerning the matter, but if they do not send it at time (within 3 months), it will not stop the Member State to go to Court.
The view of the civil servant is not correct: the matter will always pass the Commission who has the possibility to start an infringement procedure, but it has no obligation to do so. There is in other words, no guaranteed success if Erik returns to Sweden and there start an infringement proceeding under Article 259 TFEU
Only the Commission is entitled to start acting against a Member State who doesn’t fulfil its obligations of EU law. Both Articles 258 and 259 TFEU require the Commission to act, in contrast to Member States who must first pass through the Commission before going to court. the Commission is a body, acting in the public interests: it has the luxury to decide whether or not and when to Initiate both phases of the procedure.
In other words, the response of the civil servant is incorrect.
In terms of Member states and other institutions, according to Article 265 TFEU, they could bring an action before the court of justice when entities of the EU fail to act when there is a possible infringement going.
In terms of individuals, they could only file a complaint to the Court, they could not directly act against the omission of the concerned institution, body, agency,…
In Our case, Erik is an individual who does not want to be discriminated anymore. the threat of Erik could not be seen as a bluff, because the Commission still has the discretion whether to act or not.
As it has been said before, the Commission has a discretion to decide whether or not and when to initiate a judicial and administrative phase in the procedure. It has in other words no obligation to start an infringement procedure but on the other hand, the competence to make a preliminary reference to the CJEU belongs exclusively to the national courts. If the Commission would act by starting a procedure against the failure of a Member State to make a preliminary reference, it would mean that the Commission would intervene in the national court’s exclusive competence, a breach of EU law has been made.
Because it is a problematic issue concerning national courts case law, the Commission would not act in accordance with its official position on infringement procedures against a Member State for a failure to make a preliminary reference.
The general principle of res judicata means that a decision is final and binding on the parties.
According to the Elchinov case, the national court cannot be bound by rulings of higher courts if it considers that they are inconsistent with EU law.
The second argument the Latvian Government states is the impossibility of amending the article of the LLPN by the Latvian Parliament who are against foreign people that take notary jobs who are, according them, relatively linked to their nationality.
Some few exceptions that Member states cannot invoke in its favour are internal difficulties: The Length of the legislative procedure and political difficulties.
In the given case, they allege that there is a right-wing majority who will not vote to amend the mentioned article. But then again, this is a political issue which must not be invoked in the procedure. It is a failure to not be in accordance with EU law and thus the second argument cannot ‘deliberate’ Latvia from its breach of EU law.
Article 256 TFEU states the competences of the General Court and thus forms the exception of the Court of Justice. The article does not mention article 258 TFEU of the procedure of the Commission for the infringement procedure.
The Commission should thus bring the case before the Court of Justice.
According to Article 260(3) TFEU, special arrangements will apply for specific cases where a member state has failed to notify measures transposing a legislative directive on time.
The Court of Justice can thus impose financial sanctions, but it is not bound by the proposal of the Commission. the common financial sanctions are the penalty payment and the lump sum which could be cumulatively imposed together (for example if there is a time-limit).
No, the Court has the ability to impose financial sanctions but does not follow the desires of the Commission.
A possible remedy Erik could invoke is based on article 259 TFEU. If the Commission does not deliver its reasoned opinion on time, the Member states could nonetheless bring the matter before the Court. Unfortunately, it does not seem successful because the provision has rarely been used.
Another possible remedy is making Latvia liable for a breach of law. According to the Francovich arrest, the Member State must pay the damage that was caused to individuals by the breach of EU law.
If Erik fulfils the conditions of state liability (conferring rights, sufficiently serious breach & direct causal link between the breach and the damage), it could be successful.