Although the facts of this decision appear to be very far from tax lawyers' concerns, the fact remains that this case raises a procedural issue to which they may want to pay attention.  Indeed, the source of this decision is the claim of a Tunisian national residing in Italy who wishes to enforce the EU-Tunisia Association Agreement-a Euro-Mediterranean Agreement-to obtain payment of the household allowance.

The Palermo Court of Appeal then the French Supreme Court dismissed his claims and, above all, denied his repeated petitions to refer a preliminary ruling to the Court of Justice of the European Union regarding the interpretation of the Euro-Mediterranean Association Agreement. The petitioner, arguing that the national courts' refusals to refer the preliminary question violated his right to a fair trial, referred the matter to the European Court of Human Rights ("ECHR") on the basis of Article 6§1 of the Convention.

This case was an opportunity for the European Court to reiterate that national courts' freedom is very limited when involving a petition to refer a preliminary ruling.[1]

According to the decision of the European Court of Human Rights, Article 267 of the Treaty on the Functioning of the European Union ("TFEU") and the provisions of Article 6§1 of the Convention are to be combined as follows:  "[n]ational courts against whose decisions there is no judicial remedy under national law are required, when they refuse to refer to the CJEU a preliminary ruling regarding the interpretation of EU law raised before them, to give reasons for their refusal with respect to the exceptions provided by the Court of Justice's case law.  Therefore, they have to state the reasons why they consider the question to be irrelevant or that the relevant EU law has already been interpreted by the CJEU or correct application of EU law is so obvious as to leave no scope for any reasonable doubt."[2]

Exhaustively restating the requirements of European Union law on preliminary ruling, the Court infers from the right to a fair trial an obligation for national courts to justify their refusal to make such referrals.

Therefore, first of all, it is in light of the CJEU's case law on the Member States' obligation to refer a preliminary ruling that one must read the European Court's analysis.  It follows from the Treaty on the Functioning of the European Union ("TFEU") that, as a general rule, national courts have the choice of whether or not to refer a preliminary ruling on interpretation unless when the matter involves a, "court or tribunal of a Member State against whose decisions there is no judicial remedy under national law.[3] 

Nevertheless, as the European Court points out, this rule has some exceptions:  not only is there no obligation when the relevant interpretation has already been provided by the Court of Justice and when the question does not appear to be relevant, but also, and above all, there is no obligation when, "correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved"[4] 

So as to ensure that litigants benefit from the guarantee of Article 6§1 of the Convention, a national court whose decision cannot be appealed, therefore, must justify its decision not to refer a preliminary ruling to the Court of Justice of the European Union with respect to the Treaty's requirements in this field.  Providing no justification for the refusal would amount to denying the individual's right, "In the determination of his civil rights and obligations (…) to a fair and public hearing (…) by an independent and impartial tribunal (…)."  In this specific case, this would create a right to a remedy for the litigant.

Indeed, performing the approach advocated, the ECHR reviewed the justifications defined by European Union law and found that the Italian Supreme Court did not justify its decision to refuse to make the referral. In the end, the ECHR ruled that the Court had violated Article 6§1 of the Convention.

As a compensation for the material damages suffered, the applicant obtained payment of the allowances he requested, as the Court recognized violations of Article 6§1 of the Convention and of Articles 8 and 14 on the right to privacy and the principle of non-discrimination.

The scope of this decision based on Article 6§1 of the Convention first appears to be limited since these provisions are applicable to tax matters only when challenging penalties.

However, beyond the penalties themselves, a taxpayer could be tempted to argue that a refusal to refer a preliminary ruling in a tax litigation affects his property right, which is protected by Article 1 of the first Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, provided that there is a legitimate expectation of winning his case.

At the same time, this decision has the merit to remind that access to the CJEU is a right and that national courts must clearly explain why the conditions of submission to its court are not met.

In any case, the tax debate should be clarified.