ERGA OMNES EFFECTS OF THE ECJ JUDGMENTS ARE APPLICABLE IN THE ENTIRE UNION TO EQUIVALENT SITUATIONS

Request for a preliminary ruling in Case C-177/20 ‘Grossmania’ Mezőgazdasági Termelő és Szolgáltató Kft. v Vas Megyei Kormányhivatal

 

The Administrative and Labour Court, Győr, Hungary, in the proceedings instituted at the request of the commercial company ‘Grossmania’, against the Vas Megyei Kormányhivatal, in connection with a dispute concerning legal transactions in land, referred a question to the European Court of Justice (ECJ) about the interpretation of the Article 267 TFEU.

 

The Court asked specifically if Article 267 of the TFEU be interpreted as meaning that, where the Court of Justice of the European Union, in a decision given in preliminary ruling proceedings, has declared a legislative provision of a Member State to be incompatible with EU law, that legislative provision cannot be applied in subsequent national administrative or judicial proceedings either, notwithstanding that the facts of the subsequent proceedings are not entirely identical to those of the previous preliminary ruling proceedings?

 

In the main proceeding, Grossmania, a commercial company comprising nationals of the Member States other than Hungary, whose usufruct rights over some immovable properties were cancelled in the Property Register under national law (Paragraph 108(1) of the 2013 Law on transitional measures).

 

By judgment of 6 March 2018, SEGRO and Horváth, Joined Cases C-52/16 and C-113/16, the ECJ held that Article 63 TFEU, regarding the free movement of capital and the prohibition of imposition of restrictions, precludes national legislation, declaring it is contrary to EU law, being this national law, one of the objects of conflict of the Grossmania case. 

 

From its part, the defendant stated that the application for re-registration by Grossmania was inadmissible since the controversial national law was still in force. Moreover, the defendant also considered that the judgment delivered by ECJ in Joined Cases C-52/16 and C-113/16 had been given in particular circumstances and applied only to the cases to which the requests for a preliminary ruling related.

 

Problems with this request of a preliminary ruling 

 

Firstly, the parties here were already aware of the content of the judgment delivered by the ECJ Cases C-52/16 and C-113/16, where it was held that paragraph 108(1) of the 2013 Law on transitional measures infringed EU law. 

 

Secondly, Grossmania did not take any action against the administrative decisions cancelling its rights of usufruct. Only, due to the judgment in Joined Cases C-52/16 and C-113/16, the applicant applied to have its rights of usufruct re-registered. 

 

Moreover, even if the underlying factual situations of the present case and the mentioned Joined cases are different, the relevant legislative provision is identical.

 

Finally, should the national Court disapply the national law because it was declared contrary to EU law by the ECJ in a previous case and therefore require the defendant to re-register the usufruct rights over Gossmania´s immovable properties?

 

Conclusion

 

If national Courts have doubts about whether or not to apply a national law or about the interpretation of the EU law, they are obliged to refer a preliminary ruling to the ECJ, unless the European Court has already ruled on a similar matter previously, this follows inter alia from the fact that the obligation imposed on courts of the last instance to refer a question for a preliminary ruling has an exception: where “the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case”.

 

The national court and the Hungarian authorities must stop applying the national law that has been declared contrary to the EU since the authorities of the Member State are obligated to take all the general or particular measures necessary to ensure that Community law is complied with.

 

We can never forget that the general system of EU law revolves around the principle of loyal cooperation, unity and coherence and that the primary objective of judges and member states is to give full effect to EU law. If we leave it to the discretion and free will of a state or a national court to continue applying a national law declared contrary to EU law, the ruling of the ECJ will have no meaning or effectiveness, in this regard, the judgments of the ECJ must have a binding effect to facilitate a harmonious interpretation of EU law. 

 

The Advocate General Tanchev in his opinion delivered on 16 September 2021 in this case, proposed to the CJEU to answer that the national court must disapply the national legal norm that infringes EU law, opinion, with which I fully agree, because only in this way can EU law be given full effect. 

In addition, this allows us to ensure that a judgment issued by the ECJ not only binds the national court that has formulated the request but also all the other national authorities, unanimously, since the objective of EU law is to create a uniform application in all the countries of the union.

 

On March 10, 2022, the ECJ hearing on this matter will take place, what do you think its position will be?

 

[1] Request for a preliminary ruling from the Győri Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 7 April 2020 — ‘Grossmania’ Mezőgazdasági Termelő és Szolgáltató Kft. v Vas Megyei Kormányhivatal (Case C-177/20)

 

[2]https://curia.europa.eu/juris/showPdf.jsf?text=&docid=228101&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=44882

 

[3] Judgment of the Court (Grand Chamber) 6 March 2018, SEGRO v Horváth, ECLI:EU: C:2018:157

 

[4] Judgment of 6 October 1982, Cilfit and Others (283/81, EU: C:1982:335, paragraphs 13 and 14)

 

[5] OPINION OF ADVOCATE GENERAL TANCHEV Delivered on 16 September 2021(1) ECLI:EU: C:2021:748 

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