The refusal of a preliminary ruling of the CJEU does not infringe the ECHR
JUDGMENT
Harisch v. Germany 11.04.2019 (no. 50053/16)
SUMMARY
Civil proceedings in which the applicant requested the domestic appeal court to refer a question to the Court of Justice of the European Union (CJEU). Reasoned refusal by the national court to submit it. Rejection of the applicant’s constitutional complaint before the Federal Court of Justice, in which he reiterated his request. The Court found that the Court of Appeal’s refusal was not arbitrary and had sufficient reasoning. Also, in the specific circumstances of the case, the ECtHR has been accepted by the Federal Court of Justice’s incomplete reasoning and the mere reference to the relevant legal provisions. No violation of Article 6 (right to be heard) of the European Convention on Human Rights
PRINCIPAL FACTS
The applicant, Klaus Harisch, is a German national who was born in 1964 and lives in Munich
(Germany).
Mr Harisch was one of the two founders of T.AG, a directory enquiries service. The T.AG received,
for a fee, the required subscriber information from DTAG. In 2007 and 2008 DTAG was ordered to
refund the TAG part of the fees paid as they had been excessive.
Mr Harisch brought an action against DTAG, claiming that as a result of the excessive prices paid by
the T.AG, he and his cofounder had had to reduce their shares in the company before its stock
market launch. For that reason, and also because of a lower valuation of the company on the day of
the launch, he had sustained damage. In May 2013 the Regional Court dismissed the claim.
Mr Harisch appealed. During an oral hearing before the Court of Appeal he called for the
proceedings to be suspended and for a preliminary CJEU ruling to be obtained. In July 2014 the Court
of Appeal dismissed his appeal by giving a detailed reasoning why his legal opinion was not
supported by the CJEU’s case-law. It also saw no reason to grant leave to appeal on points of law
since there was no need to clarify the legal questions raised.
He filed a complaint against the refusal of leave to appeal on points of law, in which he repeated his
request for a referral to the CJEU. The Federal Court of Justice rejected it, briefly indicating the
reasons for refusing leave to appeal on points of law and dispensed with any further reasoning
pursuant to Article 544 § 4 of the Code of Civil Procedure, to which it referred in its decision.
Mr Harisch further filed a complaint concerning a violation of his right to be heard (Anhörungsrüge).
The Federal Court of Justice also rejected this complaint, stating that a decision by a court of last
instance did not require more detailed reasoning. In February 2016 the Federal Constitutional Court
declined to consider Mr Harisch’s constitutional complaint.
THE DECISION OF THE COURT
Article 6 § 1
The Court reiterated that the Convention did not guarantee, as such, the right to have a case
referred to the CJEU for a preliminary ruling. However, a refusal to grant a referral might be deemed
arbitrary in cases where the applicable rules allowed no exception to the granting of a referral or
where the refusal was based on reasons other than those provided for by the rules, or where the
refusal was not duly reasoned.
The obligation for domestic courts to provide reasons for their judgments was accordingly a vital
safeguard against arbitrariness. However, the question of whether or not a court had failed to fulfil
this obligation could only be determined in the light of the circumstances of the case. In the Court’s
view it was acceptable under Article 6 § 1 for national superior courts to dismiss a complaint by
mere reference to the relevant legal provision if the matter raised no fundamentally important legal
issue, particularly in cases concerning applications for leave to appeal.
The Court firstly observed that the Federal Court of Justice was the court of last resort within the
meaning of Article 267 § 3 of the Treaty on the Functioning of the European Union (TFEU), and that
it had only given brief reasons for its decision, in accordance with national law.
The Court also observed that the Court of Appeal had earlier examined EU law in detail and had
referred extensively to the CJEU’s case-law. Moreover, during an oral hearing the issue of EU law
had been discussed and the Court of Appeal had explained why there was no reasonable doubt
concerning the correct application of German and EU law.
The Court further noted that, based on domestic case-law, a refusal of leave to appeal on points of
law included the consideration that a referral to the CJEU was not required in the case in question. It
concluded that the Court of Appeal had therefore considered Mr Harisch’s referral request and had
denied it by refusing leave to appeal on points of law.
Moreover, having regard to the fact that the Court of Appeal had provided detailed reasoning for its
decision, after discussing the issue of EU law with the parties, the Court considered that Mr Harisch
had been able to understand the Federal Court of Justice’s decision.
After examining the proceedings as a whole, the Court held that in the specific circumstances of the
case it was acceptable that the Federal Court of Justice had dispensed with providing more comprehensive reasoning and had merely referred to the relevant legal provisions when deciding on
Mr Harisch’s complaint against the refusal of leave to appeal on points of law.
Accordingly, there had been no violation of Article 6 § 1(echrcaselaw.com editing).
