Failure to Make a Preliminary Reference to the Court of Justice of the European Union as a Violation of the Right to a Fair Trial
Abstract
The aim of this paper is to examine the consequences of a failure to make a preliminary reference from the point of view of consumer organizations striving for the protection of collective consumer rights. Also, this paper argues against a strict application of the principle of procedural autonomy of Member States, as it makes the enforcement of consumer rights practically impossible, in particular with respect to Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (the Injunctions Directive). The author discusses both judicial and extrajudicial remedies that are available in case of a failure to make a preliminary reference to the Court of Justice of the European Union. She believes that procedural rules and the specific conditions for obtaining damages based on the Francovich judgment are not sufficiently harmonized throughout the European Union.
Keywords
preliminary reference, CJEU, ECHR, fair trial, consumer organizations, injuctions, unfair commercial practices, procedural autonomy
Author Biography
Nicole Grmelová
Born in 1975, she graduated from the Law Faculty of Charles University in Prague (M.A., PhD) and the Faculty of Law of the Universidad de Sevilla in Spain (LDO). In 2012 she defended her doctoral dissertation at the Faculty of International Relations of the University of Economics in Prague (PhD). Between the years 2004 and 2008, she worked as a lawyer-linguist at the European Parliament in Brussels. From 2009 to 2012 she worked externally with the Court of Justice of the European Union. She currently works as an assistant professor at the Department of Business and European Law at the Faculty of International Relations, University of Economics, where she is dedicated to both teaching and publishing.