Referral of a preliminary question to the ECJ

The national court refers a legal question of interpretation of EU law and the acts of its institutions to the ECJ

Article 1A of the constitution enshrines the supremacy of European Law over national law and the constitution and was enacted for the compliance of the Republic with its obligations as a member state of the European Union.

In this context, it was deemed necessary to amend the Courts Law 14/60 and with the addition of Article 34A, the jurisdictional framework was established for the judicial referral of a legal question from a Cypriot court to the Court of Justice of the European Union (ECJ).

It is provided in this regard that a court before which a question arises concerning the validity and interpretation of framework-decisions and decisions issued under the EU Treaty or the interpretation of conventions drawn up under it or the validity and interpretation of their implementing measures, may, if it considers that the decision on the issue is necessary for the issuance of its own decision, refer the issue to the ECJ to rule on it.

Article 267 of the Treaty on the Functioning of the EU to this end provides that a court of a member state, before which such a question arises in a pending case and whose decisions are not subject to remedies under domestic law, must refer the matter to the ECJ. Indeed, the ECJ with a relevant document of recommendations, Information Note 2019/C 380/01, states in recommendation 8 the following: “The request for a preliminary ruling must concern the interpretation or validity of Union law and not the interpretation of rules of national law or questions on the facts of the dispute in the main proceedings”.

An application for the referral of preliminary questions to the ECJ was submitted before the Court of Appeal, which in its decision in C.A.85/21, dated March 28, dealt with the issue as stated above.

In particular, a Turkish Cypriot (TC) claimed a declaration from the court of first instance that he is entitled to exploit and transfer property located in the free areas without needing the approval of the guardian of TC properties, as well as a declaration that the provisions of Law 139/91 on TC properties are not compatible with the principles of community law regarding the right to property, equal treatment and non-discrimination on grounds of racial or national origin.

Decision of the court of first instance

The court rejected the action because the TC failed to describe the immovable property he sought to sell in detail and regarding the intervention of the guardian, it emphasised that in addition to being constitutional based on the law of necessity, it was also legal and compatible with European law and with interrelated human rights enforcement.

It ruled that the Republic of Cyprus did not deprive the TC of the right to property since it continues to belong to him. The impossibility of the sale purchase is not due to the fact that he is a TC but that the immovable property constitutes TC property according to article 2 of Law 139/91 and the guardian acting in in the context of article 3, took into account that the TC possesses immovable property belonging to Greek Cypriots in the areas not controlled by the Republic.

Decision of the court of appeal

On the application for referral, the court of appeal ruled that the preliminary questions concern whether the specific case falls within the scope of Directive 2000/43 EC in relation to article 3.1 but also the meaning of the phrase “less favourable treatment” in article 2.2(a) of the Directive.

Referring to the above constitutional and legislative provisions and jurisprudence, it ruled that the national courts are exclusively competent to decide whether the issuance of a preliminary ruling is necessary for the issuance of their own judgment. References should therefore only be made where necessary and not merely when it is desirable or convenient and the national court also takes into account whether it can with certainty decide the issue raised itself.

Reasons for preliminary referral to the ECJ are: The relevant facts of the case are not in dispute, the legal point raised is decisive for the resolution of the dispute in question, there is no community case law on the legal point or its proximity and the point raised and the case itself be made in good faith and without ulterior motive.

The court of appeal concluded that compatibility issues can be considered by this court without the need for a preliminary reference to the ECJ and dismissed the application.

George Coucounis is a lawyer specialising in Immovable Property Law, based in Larnaca. E-mail: coucounis.law@cytanet.com.cy, tel: 24818288