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EU Judgment in Case C-564/19 IS: Illegality of the referral order

23 November 2021

Tuesday, 23 November

(Extract from the Opinion of AG PIKAMÄE)

How can it be determined whether the preliminary ruling sought is necessary to enable the referring court to ‘give judgment’ within the meaning of the second paragraph of Article 267 TFEU? How is the concept of ‘giving judgment’, which is central to the preliminary ruling procedure, to be interpreted? That question is certainly not new, but it has acquired a particular dimension in the context of the all too many cases of alleged infringements of the rule of law and the independence of the judiciary which have been dealt with by the Court or are currently under consideration. It is clear that questions are regularly referred to the Court for a preliminary ruling which, in some cases, are appeals for assistance from national judges concerned by or even subject to disciplinary proceedings and which must be answered in compliance with the conventions of that unique legal remedy, the reference for a preliminary ruling.

In the judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234; ‘Miasto Łowicz’), the Court sought to consolidate its case-law on the admissibility of requests for preliminary rulings in this highly sensitive area, in which the concept of ‘res judicata’ may have a dimension other than strictly legal. The present case gives the Court the opportunity to explain the full significance of that judgment by responding, in particular, to a novel question concerning a decision, adopted by a higher court adjudicating at last instance, declaring an order for reference to be unlawful, without affecting the legal effects of that order.

(…)

The referring court, which sits as a single judge at Pesti Központi Kerületi Bíróság (Central District Court, Pest, Hungary) (‘the referring judge’), is hearing proceedings against the accused person, IS, on the basis of an act of prosecution issued on 26 February 2018 by the public prosecutor of the 5th and 13th districts of Budapest (Hungary) for an alleged infringement of the law on firearms and ammunition. The accused person, a Swedish national of Turkish origin, was arrested in Hungary on 25 August 2015 and questioned as a suspect on the same day. Before the questioning, the accused person requested the assistance of a lawyer and an interpreter. During the questioning, which the lawyer was unable to attend, the accused person was informed through the interpreter of the suspicions in his respect but he refused to testify because he could not consult his lawyer. The accused person was released after the questioning.

The accused person is currently outside Hungary and the summons to appear before the court was returned marked ‘unclaimed’. If the prosecution merely applies for a fine, the referring judge is required under national law to continue the proceedings in absentia. At the hearing, the accused person’s defence made an application seeking a request for a preliminary ruling, which was granted.

Background Documents C-564/19

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Date:
23 November 2021
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