National courts and the review of validity of EU acts after Eurobolt

If any of you are interested in EU law litigation at national courts, the Court of Justice’s judgment in Eurobolt (C-644/17) is well worth your time.

The question at stake concerns whether a national court can request information from an EU Institution in order to rule on the validity of an EU act. Needless to say, this situation arises when the EU Institution is not a party in the national proceedings, in which case the EU Institution is requested to cooperate sincerely on the sole grounds of Article 4 TEU.

In principle, this should not really be an issue, because national courts can only rule on the legality, but not the illegality of an EU act. In order for a national court to rule and confirm the legality of, say, a Commission Decision, this will be the result of a rather straight forward and prima facie analysis. In case the national court has any doubts, it must refer the case to the Court of Justice (classic Foto-Frost), and it will be for the Court of Justice to request information from the EU Institution, if necessary. Thus, these requests should typically take place in Luxembourg, not at national courts.

But in the case of Eurobolt the situation was quite different, because the applicants managed to raise a genuine doubt in the national court, but a doubt that could only be dissipated by looking at the file and the decision-making process of the challenged Council Implementing Regulation. Eurobolt submitted observations in the decision-making process of the act, but they were not brought forward to the Member States within the relevant time-period, as required by the Basic Regulation. Since Eurobolt lacked standing to bring an action of annulment against the Implementing Regulation, it had to bring an action against the national implementing acts in The Netherlands. Therefore, it made perfect sense for the Dutch Supreme Court to take a look at the Council’s file, in order to confirm that Eurobolt’s observations had not been referred to the Member States when enacting the challenged act, thus breaching the Basic Regulation.

The Court of Justice clearly stated that, indeed, national courts can request to the EU Institutions having participated in the enactment of a challenged EU act “evidence and documents” for the purpose of deciding on the validity of the contested act. The only limit that the Court introduces is the one enshrined in the Zwartveld case-law, which refers to judicial cooperation in the context of the Protocol on Privileges and Immunities. The analogy might not be fully convincing, but it’s as close as it gets to a case of cooperation between national courts and EU Institutions in gathering access to documents. As it was ruled in that judgment, the EU Institution may refuse to provide the evidence if “justified by legitimate reasons based, inter alia, on protecting the rights of third parties or the risk of an impediment to the functioning or the independence of the Union”.

Eurobolt seems quite logical and unsurprising at first, but in fact it’s a relevant decision for national litigators and courts. It is very difficult to convince a national court to review an EU act. It is also very difficult to convince them into referring the case of validity to the Court of Justice. National courts sometimes feel too overwhelmed by the idea of going into such trouble, particularly when the defendant party (usually a public authority) provides helpful arguments to convince the national court that the EU act is perfectly all right. Also, the fact that the EU Institutions are not a party in the proceedings can also be an obstacle, since most national courts don’t like being dragged into a discussion about an act whose author is absent in the proceedings.

But thanks to Eurobolt, now the national court can request the EU Institution to indirectly participate in the proceedings, by way of providing “evidence and information”. It is a subtle but effective way of inviting national courts to request the help of EU Institutions when having to rule on the validity of EU acts. In fact, once the information has been gathered, the case might take a completely unexpected turn. The parties will be given a right to submit observations in light of the evidence and information provided, and the national court will have a more realistic idea of how the decisoin-making process took place in Brussels. It’s a completely different context in which the national court can now make a determination.

In fact, Eurobolt is another turn in the process of involving EU Institutions in national proceedings, which is a positive feature that should not be an exception to the rule. In a more integrated judiciary, EU Institutions should be participating in national proceedings as a normal feature of a European court system, particularly when national courts are to decide on issues of EU law, as is the case of the review of an EU act. To this end, Article 4 TEU and the principle of sincere cooperation are proving to be useful tools that glue together the two levels of the European judiciary. In Eurobolt, the interaction happened to be very productive for the applicant: the Court of Justice sided with Eurobolt and confirmed that the Council’s Implementing Regulation suffered a procedural flaw and it was therefore null and void. If the first instance Dutch court would have had access to the file from the first place, Eurobolt wouldn’t have waited eight years for that outcome. Thus, Eurobolt is not only a nice lesson on sincere cooperation, but also on how to avoid delaying justice unnecessarily.

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