Why Do So Few Preliminary Questions Come From Czechia?

2.1. Overview of Czech Preliminary Questions in the Last Six Years

Before I present the reasons as to why so few preliminary questions come from the Czech Republic, I would like to first examine how questions arise in the Czech Republic, using a sampling of questions submitted by Czech courts between 2017 and 2022.

In the course of the Czech Republic’s 19 years of European Union membership, half of the total number of preliminary questions have been referred in the past six years. 16 Czech preliminary questions have predominantly dealt with taxation, transport, governing law, internal markets, and competition. Of the 51 preliminary questions, the vast majority have related to the interpretation of directives. Only a small number of these preliminary questions focused on the interpretation of EU Treaties.

Figure 3:

According to Article 267 of the TFEU, if a preliminary question is raised in a case pending before a EU Member State’s court or tribunal, and there is no (ad hoc) judicial remedy against its decisions, that particular court or tribunal shall bring the matter before the CJEU. Therefore, it could rightly be assumed that the two Supreme Courts in the Czech Republic are the main bodies that refer preliminary questions. Although Czech Supreme Courts have been given the theoretical pride of place in this area, they share this pedestal with the courts of first instance in the Czech Republic. 18 If we compare Czech courts individually, the Supreme Administrative Court is court that refers the most preliminary questions. 19 This seems to be the case in general, as during the last six years the Supreme Administrative Court has referred 14 out of the 51 preliminary questions coming from the Czech courts. 20

3.1. Lack of Appreciation or Understanding of EU Law’s Relevance in the Czech Republic

In my more than 15 years of legal experience, as both an attorney and as an in-house legal practitioner, I have routinely found negative or at best lukewarm attitudes towards EU laws in most of my legal colleagues and clients. The Czech Republic is regarded as one of the most EU-sceptical EU nations, perennially appearing at the bottom of ranked surveys of general attitudes towards the EU. According to research published in 2019 by the Pew Research Center, ‘[w]hile more people see the EU in a positive light than not, in the UK, Greece, the Czech Republic and France, these countries also have sizable portions of the public – more than four-in-ten – that voice negative opinions.’ 22 One of the key drivers of this negative attitude is the perception that there are no discernible benefits for Czech citizens from EU Membership. 23

According to quite-recent polls, it seems that current events such as the COVID pandemic, the war in Ukraine and its related energy crisis, and the Brexit process and its impact on the United Kingdom have all led to an increase in positive attitudes about the EU in the Czech Republic. 24 However, this positive shift has not been tangible enough to alter the overall ranking of the Czech Republic in comparison to other EU Member States with regards to its attitudes towards the EU. This negativity manifests itself in individual actions, such as the removal of EU stickers, and in the media, with Czech tabloid stories that fuel anti-EU attitudes by portraying the EU as a destroyer of the Czech production of spreadable butter, Czech rum, and a provider of diktats on issues such as the permissible size of cucumbers. 25

Czech legal professionals, and their clients’ knowledge and understanding of the EU, mirror the society from which they originate, and the extent to which this subject is taught at schools and universities. Simultaneously, understanding the relevance of EU law, and harmonising interpretations between the CJEU and the Czech judiciary (which have the same or slightly better levels of EU knowledge), conflicts with the need to refer preliminary questions to the CJEU. 26 Over the past 6 years, Czech preliminary questions were only referred to the CJEU after either the Czech Constitutional Court or the Supreme Administrative Court indicated that the lower courts should have originally referred them. 27 In their failure to engage with the CJEU from the beginning, they may have breached the constitutional right to a lawful judge and fair trial. 28

EU law is understood to provide the bulk of most national laws; however, once an EU law is incorporated into Czech law, a perception arises that Czech law and jurisprudence take precedence. 29 This perception means that many falsely believe that once an EU law has been incorporated into Czech law, the role of the EU has been forfeited and can be ignored to a large degree.

An added objective of EU harmonisation was to institute a level playing field for rules in all EU Member States, with laws applied consistently no matter where an individual resides in the EU. 30 Such an aim expects and assumes that national legal orders will adapt to the new harmonised rules and adjust their own rules, national practices, and even legal thinking to that new system.

However, in reality, the opposite outcome has largely occurred. I have noted the tendency to adjust EU laws to fit the already existing national legal order, thus pursuing a ‘national mindset’ in the interpretation and application of EU law by legal professionals. In everyday life, EU directives are mostly overlooked, as they are perceived to lack impact until they are transposed into national law. Additionally, EU regulations and decisions are usually adapted to fit to existing national practices, and thus interpreted in a way in which a nation’s body of laws is comprehended. 31 These misconceptions may explain why most Czech preliminary questions, at least within the past 6 years, have dealt with the interpretation of EU directives, even though the number of EU regulations is much higher. 32 It draws me to an interim conclusion that a preliminary question by the national court deciding on a matter is usually made when there is a noticeable discrepancy between the EU directive and its national transposed version, and/or when the national transposition is unclear. 33

3.2. Preliminary Rulings ‘Only’ Interpret the EU Law

In conjunction with the previous factor, the second potential reason for low number of preliminary questions from the Czech Republic could be due to the understanding of the role and purpose of preliminary questions. According to Art. 267 TFEU, the purpose of a preliminary question is twofold. First, the question may address the interpretation of EU Treaties and/or the actions and acts of EU institutions, bodies, offices, or agencies. Second, preliminary rulings can decide on the validity of the acts by EU institutions, bodies, offices or agencies. The whole system is framed and functions around cooperation between national courts and the CJEU. 34 When a national court is deciding on a disputed matter, if the court finds that EU law applies and considers that a preliminary question is necessary to enable it to pass judgment, it may request that the CJEU provide a guiding ruling. 35 Once the CJEU answers a preliminary question, the national court reopens the proceeding and decides upon the dispute. The CJEU is not involved in the dispute and does not decide on the finality of the matter.

As Matthias Derlén and Johan Lindholm have pointed out, the division of labour between national bodies and the CJEU is, in theory, quite straightforward. 36 The role of the CJEU is ‘to provide the national court with an answer which will be of use to it and enable it to determine the case before it.’ 37 Such cooperation between the national courts and the CJEU requires the national court to understand the purpose of the preliminary question and its ability to correctly apply the interpreted EU law to the case before the court. In some cases, guidance can be quite clear, and so it is evident as to how the national court should proceed. However, in many cases, a rather thorough analysis of the preliminary ruling is required in order for the national court to decide how to apply it correctly. 38 The unifying function of uniform CJEU interpretation depends on the ability and willingness of national courts to correctly apply the CJEU’s rulings. 39

The arduous process of analysing preliminary rulings can be further complicated by the way CJEU judgments are structured, and meaning can be lost in translation. 40 The CJEU decides in chambers on the final text of the preliminary ruling, reflecting compromises reached during the court’s deliberations. 41 This process means that it is not uncommon that with some preliminary rulings, it is not clear how the CJEU reached its conclusions. 42 In cases where the CJEU follows the opinion of the Advocate General, their analysis serves as helpful guidance toward understanding the ruling itself. With preliminary questions, the language of the proceeding is in the same language of the referring court. 43 However, the decision is usually drafted in French – the language of the CJEU – and the language of the proceeding becomes a simple translation. As Michal Bobek aptly remarked, ‘[t]he equality of languages in the European Union is a myth. It has always been, be it in a Europe of six or in one of twenty-seven. It has been a noble dream, though: a political vision of Europe in which everyone speaks their own language but, at the same time, they are able to understand each other. Unfortunately, that dream already proved to be infeasible within the First Book of Moses.’ 44 Even the best translation is not free from errors and misunderstandings, and the act of translation can dilute the nuance of what is being communicated. As CJEU Judge Sacha Prechal set out, ‘approximately 30% of the time for delivering a judgement goes into translation. So basically, after deduction of the ‘translation time,’ a preliminary reference takes about 10 months. Language complicates life at the Court, that is for sure, in terms of time and in terms of understanding.’ 45 When this issue is combined with the use of EU terminology, which is often not familiar to national legal professionals, preliminary rulings can sound cumbersome and not particularly user-friendly.

A second interim conclusion I have come to is that the reluctance to refer preliminary questions can be viewed as the result of the characteristics of the preliminary ruling, which can trigger an arduous process for national judges when they interpret and apply the ruling towards the facts of the case. Undoubtedly, this is not a factor only Czech judges have to deal with. However, it can noticeably contribute to the low numbers of Czech preliminary questions when combined with the first factor (to the low appreciation of the relevance of EU law and language, and the complexity of the content of the CJEU’s judgments).

3.3. Restrictive Notion of a ‘Court or Tribunal’

Following on from the first two potential reasons, which were slightly more Czech-centric, the third issue can be seen across much of Europe and is related to how a court or tribunal has come to be defined for the purposes of preliminary questions and how that applies to authorities in EU Member States. According to Art. 267 TFEU, only a court or tribunal of an EU Member State is entitled to refer a preliminary question to the CJEU. It stems from the nature of preliminary rulings, which constitute indirect procedure, and its primary aim, which is to help national courts to correctly interpret EU law. 46 Even though Meyer argues that the CJEU does not claim a monopoly on the interpretation of EU law, 47 it undoubtedly unifies the interpretation of the EU body of laws in all EU Member States. 48

Therefore, it was essential from the outset of the origins of the CJEU to define a national court or tribunal so that a preliminary question can be referred appropriately. The CJEU has established certain institutional criteria that a body must fulfil to be regarded as a court or tribunal within the meaning of Art. 267 TFEU. This includes criteria such as whether the entity is established by law, and whether is permanent; has compulsory jurisdiction; has inter partes procedure; applies the rule of law; and whether it is independent. 49 These factors have been consistently used on an ad hoc basis whenever the CJEU has had to decide on the admissibility of a preliminary question referred by a body that was not a ‘typical’ court or tribunal of an EU Member State.

The broadening of EU regulations, which today cover growing areas of often highly specialised fields – from financial services, to telecommunications, to energy, transport and so on – triggered the need for the establishment of specialised EU and national supervisory authorities that monitor and provide oversight on relevant stakeholders and their compliance with newly harmonised rules. 50 Of the 23 preliminary questions referred by Czech courts of first instance in the last 6 years, in 14 instances a specialized Czech national body, often including an appeal within that body, had itself previously decided on the matter. De facto, the national court deciding on the dispute then plays a role of second instance if the plaintiff is not satisfied with how the national supervisory body has set out to resolve the matter. Thus, it is not surprising that those national supervisory and regulatory bodies that usually first decide on matters and disputes within a particular field would also wish to refer to the CJEU a preliminary question on the interpretation of EU legislation.

It is evident that some national supervisory bodies do not fulfil all the key criteria, especially in regard to independence, meaning that they cannot be regarded as a court or tribunal under Art. 267 TFEU. However, with some national bodies, the issue of meeting the criteria is not so categorical. Recently the CJEU had to decide on the admissibility of a preliminary question brought by the Czech Transport Infrastructure Access Authority (‘TIAA’). 51 The request for a preliminary ruling in this case mainly concerned the interpretation of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012, establishing a single European railway area that regulates access to the EU train network and certain related facilities. The dispute arose between a railway-infrastructure entity in the Czech Republic, which had laid down conditions for access to the network and certain related facilities, and a railway undertaking CityRail, a.s., which challenged those conditions with the TIAA. The TIAA had doubts as to whether the conditions were compatible with Directive 2012/34/EU, and thus decided to pause the proceedings and refer preliminary questions to the CJEU. As the TIAA is not classified as a court within the judicial system of the Czech Republic, the CJEU had to decide on the admissibility of such a preliminary question vis-a-vis whether the question had been referred by a court of tribunal within the meaning and criteria of Art. 267 TFEU.

The TIAA, as a national regulatory body for the railway sector, originates from Directive 2012/34/EU, which declares, ‘this body shall be a stand-alone authority which is, in organisational, functional, hierarchical and decision-making terms, legally distinct and independent from any other public or private entity. It shall also be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. It shall furthermore be functionally independent from any competent authority involved in the award of a public service contract.’ 52 Further, ‘Member States shall ensure that the regulatory body is staffed and managed in a way that guarantees its independence.’ 53 Therefore, the TIAA considered itself to be in compliance with all the criteria defining a court or tribunal under Art. 267 TFEU. Simultaneously, it referred to the Westbahn Management case, in which the CJEU admitted a preliminary question from a similar regulatory body for the Austrian railway sector, the Schienen-Control Kommission (Railway Supervisory Board). 54

However, the CJEU, via its Grand Chamber, reconsidered this, and further expanded upon the existing doctrine in relation to the determination of a court or tribunal for the purposes of preliminary rulings. As a result, the CJEU declared that to determine whether a body may refer a case to the CJEU, it needs to fulfil criteria relating both to the constitution of that body and to its function: ‘In that regard, a national body may be classified as a ‘court or tribunal’, within the meaning of Article 267 TFEU, when it is performing judicial functions, but not when exercising other functions, inter alia functions of an administrative nature.’ 55

It is true that the request for simultaneous fulfilment of functional criteria is not a complete novelty, 56 but the decision-making practice of the CJEU has not been fully consistent in this regard, and this is exemplified especially in the decision in the Westbahn Management case, where the CJEU considered only the institutional criteria of the regulatory body in Austria. 57

Based on the judgment in the CityRail case, an administrative body wishing to refer a preliminary question to the CJEU must not only verify the institutional criteria, but also ‘ascertain the specific nature of the functions which it exercises in the particular legal context in which it is called upon to make a reference’ to the CJEU. 58 The first layer of an assessment is an examination to understand if the entity meets the basic criteria: whether the body is established by law, is a permanent body, has compulsory jurisdiction, has inter partes proceedings before it, applies the law, and/or is independent.

The second layer of an assessment considers the respective procedures before the institutions, in the context of when they wish to refer a judicial or administrative question for a preliminary ruling. However, the administrative and judicial functions of regulatory bodies cannot always be easily distinguished. Based on the guidance given by the Advocate General, the following questions may help an entity to conclude whether it can, in an ad hoc proceeding, be regarded as a body performing judicial functions, or if its functions are administrative in nature. 59 These guidelines include:

• – Whether the body is empowered to act on its own accord;

• – Whether its function is to review the legality of a decision, or to adopt a position, for the first time, on a complaint made by an individual;

• – Whether it acts as a specialist administrative body, and if it can exercise power to impose penalties in matters falling within its competence and remit;

• – Whether it can decide on matters by performing non-judicial functions, such as functions of an administrative nature;

• – Whether its decisions can be appealed to its President;

• – And lastly, whether the decisions of the body and its President are open to review before an administrative court in which the body would have the status of a defendant or an interested party.