State liability for the infringement of the obligation to refer for a preliminary ruling under the European Convention on Human Rights

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Abstract

The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on well-established practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer.
Original languageEnglish
Pages (from-to)7-20
JournalJurisprudencija: mokslo darbai
Issue number19 (1)
Publication statusPublished - 2012

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ECHR
liability
obligation
court of justice
case law
treaty
human rights

Keywords

  • European Union law
  • Preliminary ruling
  • State liability

Cite this

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title = "State liability for the infringement of the obligation to refer for a preliminary ruling under the European Convention on Human Rights",
abstract = "The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on well-established practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer.",
keywords = "European Union law, Preliminary ruling, State liability",
author = "Regina Valutyte",
year = "2012",
language = "English",
pages = "7--20",
journal = "Jurisprudencija: mokslo darbai",
issn = "1392-6195",
publisher = "Mykolas Romeris University",
number = "19 (1)",

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AU - Valutyte, Regina

PY - 2012

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N2 - The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on well-established practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer.

AB - The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on well-established practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer.

KW - European Union law

KW - Preliminary ruling

KW - State liability

M3 - Article

SP - 7

EP - 20

JO - Jurisprudencija: mokslo darbai

JF - Jurisprudencija: mokslo darbai

SN - 1392-6195

IS - 19 (1)

ER -