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EU law issues in appellate review proceedings and the applicant’s right to a fair trial

Judgment I. ÚS 2839/21

The First Panel of the Constitutional Court (Justice Rapporteur Jaromír Jirsa) annulled Resolution of the Supreme Court ref. No 23 Cdo 1272/2021-420 of 27 July 2021, as it violated the complainant’s right to judicial protection guaranteed by Article 36(1) of the Charter of Fundamental Rights and Freedoms.

By an action in accordance with Part 5 of the Code of Civil Procedure, the complainant sought to have the District Court for Prague 8 replace refusal decisions of the Energy Regulatory Office (ERO). Through these decisions, the ERO refused the complainant’s request to be granted the right to electricity support at the rate applicable to the sources put into operation between 1 January 2011 and 31 December 2011, and to further impose an obligation on the intervener to provide this support in the form of “green bonuses” and to determine that these rights and obligations last for the lifetime of the energy facilities. However, the district court dismissed the action. On appeal by the complainant, the Municipal Court in Prague upheld the original decision of the court of first instance. The complainant challenged the judgment of the municipal court by means of an application for an appellate review, together with a motion for preliminary questions to be put to the CJEU. However, the Supreme Court dismissed that application of the complainant as partly defective and partly inadmissible. In view of the outcome of the appellate review proceedings, the Supreme Court did not deal any further with the complainant’s motion for preliminary questions to be put to the CJEU – if the application for appellate review is found to be partly defective and partly inadmissible, then, according to the Supreme Court, there is no further need to ensure a correct and uniform interpretation of EU law for the initial proceedings on the merits before the court of a Member State.

In her constitutional complaint, the complainant argued in particular that her application for appellate review was not defective and that she had set out the grounds for admissibility. In her opinion, the general courts violated her right to a fair trial because they did not put the preliminary question to the CJEU and failed to properly justify their course of action. In this respect, the complainant argued that the national legislation was inconsistent with Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (in particular Article 13 thereof).

The Constitutional Court concluded that the Supreme Court had violated the complainant’s right to judicial protection under Article 36(1) of the Charter and annulled the Supreme Court’s resolution. 

The right to judicial protection under Article 36(1) of the Charter of Fundamental Rights and Freedoms is not infringed in a case where the Supreme Court does not put a preliminary question on the merits to the Court of Justice of the European Union under Article 267 of the TFEU if it finds that the application for appellate review is defective or inadmissible under the rules of the Code of Civil Procedure, irrespective of any response from the CJEU.

If the applicant for appellate review argues in the application that the court of appeal wrongly assessed an issue of EU law and at the same time specifies how he/she considers the admissibility prerequisite to be fulfilled in relation to the case law of the Supreme Court, the Supreme Court violates the applicant’s right to judicial protection under Article 36(1) of the Charter of Fundamental Rights and Freedoms if it rejects the appeal as defective without further consideration.