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.