The relationship between the failure to refer a preliminary question to the Court of Justice of the European Union and the violation of the right to effective judicial protection in EU law
Abstract
This article focuses on the evaluation of the current state of the EU regulation of the responsibility of a member state for damage caused by the violation of the obligation to refer a preliminary question to the Court of Justice of the European Union according to Article 267 paragraph 3 of the TFEU. In addition to evaluating the current legislation, it also analyzes the practical applicability of the so-called Köbler doctrine and comes up with suggestions on how to increase its usability and effectiveness.
This is primarily because, in the author's opinion, the failure to refer a preliminary question by a Court of a member state, among other things, also constitutes a violation of the right to effective judicial protection (as one of the general legal principles that are part of primary EU law) in relation to participants in national court proceedings. This article presents options for streamlining the decision-making process of the national court on whether or not to refer a preliminary question in relation to the success of later recovery of damages by an individual according to the Köbler doctrine.
This is done with the help of a comparative analysis of primary EU law, relevant jurisprudence of the Court of Justice and the European Court of Human Rights. The aim of the thesis is to describe the procedure for applying the responsibility of a member state for damage caused to individuals in cases where a violation of EU law results from the decision of a court of a member state, which decides in the last instance, specifically in the event that a preliminary question is not submitted to the Court of Justice by this court, and further to outline the possibilities for the full effectiveness of this institute in practice, taking into account current jurisprudential developments within the EU.