ECtHR communicates case about refusal of Dutch Supreme Court to refer case to CJEUfor a preliminary ruling

The complaint alleges that the Netherlands has violated article 6 of the ECHR, which, among other things, guarantees the right to a fair trial and the right of access to an independent court. Reason for the complaint was the fact that the Dutch Supreme Court denied a defence request to refer the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling on the interpretation of EU Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence. The Dutch Supreme Court did not give any reasons for denying this request, let alone that it applied the so-called ‘Cilfit-criteria’ in its reasoning. In the Cilfit-case, the CJEU ruled that a national court against whose decision there is no judicial remedy is obligated to refer a case for a preliminary ruling on the interpretation on EU law unless 1) this interpretation is not relevant for the case; the interpretation is evident (acte clair); or 3) this interpretation has already been given by the CJEU (acte éclairé). According to consistent case law of the ECtHR, denying a request for a referral to the CJEU without providing reasons or without applying the Cilfit-criteria violates art. 6 ECHR.

By communicating the case, the Dutch Government is given an opportunity to respond to the complaint. After an exchange of written submissions, the ECtHR will decide if the complaint is well-founded.

The applicant in this case is represented by Thom Dieben, attorney-at-law at Jahae Raymakers, and Gwen Jansen. The decision to communicate the case can be downloaded here.