L'Obligation De Renvoi Préjudiciel En Irlande : Raisonnement Sur Hypothèses En L'Absence De Dispositif National De Sanction

One of the most recently debated issues about the preliminary ruling procedure is about State liability for breaches of EU law by the judiciary. Stemming from the implications of three sets of cases by the Court of Justice of the European Union, namely Köbler, Kühne and Kempter, Lucchini and Fallimento Olimpiclub, the issue calls for a reflection on the possibility to sanction at national level a judicial decision not to refer. The issue is of particular relevance since the European Court of Human Rights has ruled that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial. The work by
Laurent Coutron, L’Obligation De Renvoi Préjudiciel: Une Obligation Sanctionnée ?, offers detailed analyses on this issue in nineteen EU Member States, including Ireland. Some legal systems such as Germany regard the preliminary ruling procedure as a right for individuals who are entitled to an appropriate remedy when this right has been infringed by failure to refer by a supreme court which has the obligation to do so. Other countries have started to hint in this direction, for example the French Court of Cassation which has recently decided that the refusal to refer could be regarded as a ‘denial of justice’ leading to possible State liability proceedings. The report on Ireland is divided in three parts. A first part gives an overview of the practice of preliminary procedure by Irish courts with updated figures and trends. A second part presents preliminary observations about the domestic courts subject to the obligation to refer. The third part analyses the mechanisms aimed at 'sanctioning' the failure to refer by courts against which there is no remedy. While such mechanisms are absent in Irish law, the chapter puts forward two potential options, namely the possibility of judicial review and State liability for a decision not to refer by the Supreme Court, the High Court and instances involving lower courts against which there is no further remedy.