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Datum rozhodnutí
6.9.2022
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FOURTH SECTION

DECISION

Application no. 7626/18
GERTA HAUSER GMBH & CO KG
against Austria

The European Court of Human Rights (Fourth Section), sitting on 6 September 2022 as a Committee composed of:

Armen Harutyunyan, President,

Jolien Schukking,

Ana Maria Guerra Martins, Judges,

and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 7626/18) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 31 January 2018 by an Austrian company, Gerta Hauser GmbH & Co KG (“the applicant company”), which is based in Linz and was represented by Mr J. Hintermayr, a lawyer practising in Linz;

the decision to give notice of the application to the Austrian Government (“the Government”), represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant company’s complaint under Article 6 § 1 of the Convention that the refusal of the domestic courts to grant their request for a preliminary ruling from the Court of Justice of the European Union (CJEU) rendered the proceedings unfair.

2. The applicant is an Austrian company which carries out painting work. On 30 June 2017, the applicant company lodged an application with the Constitutional Court (Verfassungsgerichtshof), requesting it to review the constitutionality of the Distance and Off-Premises Contracts Act (Fern und Auswärtsgeschäfte-Gesetz; hereinafter, “FAGG”) implementing the European Union (EU) Consumer Rights Directive 2011/83/EU (hereinafter “the Directive”), and to seek a preliminary ruling from the CJEU on the question of the compatibility of the FAGG with the EU Charter of Fundamental Rights.

3. On 27 November 2017 the Constitutional Court declined to deal with the applicant company’s application (case no. G 130/2017). It gave brief reasoning as to why the conditions for requesting the CJEU to give a preliminary ruling had not been met and referred to its judgment of 12 October 2017 (case no. G 52/2016).

4. The applicant company complained in particular that the Constitutional Court had not provided sufficient reasons for its decision not to refer the case for a preliminary ruling to the CJEU.

THE COURT’S ASSESSMENT

5. It is not disputed between the parties, and the Court sees no reason to hold otherwise, that Article 6 of the Convention in its civil limb is applicable to the present case.

6. The general principles on the question of whether domestic courts have an obligation under the Convention to seek a preliminary ruling from the CJEU and for assessing whether the domestic courts have duly reasoned their decision not to seek a preliminary ruling have been summarised in Ullens de Schooten and Rezabek v. Belgium (nos. 3989/07 and 38353/07, 20 September 2011, §§ 54‑62), Harisch v. Germany (no. 50053/16, §§ 33-36, 11 April 2019) and Sanofi Pasteur v. France (no. 25137/16, §§ 67-70, 13 February 2020).

7. In accordance with these principles, the Convention does not guarantee, as such, the right to have a case referred by a domestic court to the CJEU for a preliminary ruling. A domestic court’s refusal to grant a referral may, however, infringe the fairness of proceedings within the meaning of Article 6 § 1 of the Convention where the refusal proves to have been arbitrary, for instance where the refusal was not duly reasoned (see Harisch, cited above, § 33). In the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (Article 267 of the Treaty on the Functioning of the European Union), this means that national courts against whose decisions there is no remedy under national law, which refuse to refer to the Court of Justice a preliminary question on the interpretation of EU law that has been raised before them, are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the CJEU. They will thus be required, in accordance with the latter’s Cilfit case-law, to indicate the reasons why they have found that the question is irrelevant, that the EU law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (see Ullens de Schooten and Rezabek, cited above, § 62, and Sanofi Pasteur, cited above, § 67).

8. The obligation for domestic courts to provide reasons for their judgments and decisions serves to enable the parties to understand the judicial decision that has been given, which is a vital safeguard against arbitrariness, and to demonstrate to the parties that they have been heard (Harisch, cited above, § 33).

9. It is acceptable for the national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue, or by simply endorsing the reasons for the lower court’s decision (ibid., § 35).

10. The Court must therefore examine whether the Constitutional Court, in its decision of 27 November 2017, provided sufficient reasons for its refusal to seek a preliminary ruling from the CJEU in the applicant company’s case. The Court will do so by examining the arguments raised by the applicant company in their request for such a preliminary ruling, and the Constitutional Court’s response to them.

11. In their application to the Constitutional Court, the applicant company argued that the provisions of the FAGG on the consumer’s right of withdrawal, which had been modified by way of the implementation of the Directive, violated the EU Charter of Fundamental Rights. Specifically, in the case of off-premises contracts, a consumer could withdraw for more than twelve months if he or she had not been informed about the right of withdrawal. In the event of withdrawal, the trader would lose the right to remuneration even for services already duly rendered. This also applied if a consumer who had expressly requested the performance of services before the end of the withdrawal period withdrew, where the request had not been documented on a durable medium. While an exception existed for the supply of goods made to the consumer’s specifications, there was no such exception for services that were provided according to the customer’s wishes. Moreover, a consumer was never liable for the loss of value of goods if the consumer was not duly informed of the right of withdrawal. This was disproportionate and violated the guarantees of property rights and equal treatment arising from Articles 16, 17, 20, 21 and 52 of the EU Charter of Fundamental Rights.

12. The Constitutional Court responded to those arguments by referring to its judgment of 12 October 2017 (case no. G 52/2016). In that decision, the Constitutional Court had held that EU member States had no discretion in the implementation of the Directive, and that only the CJEU could declare the provisions of the Directive invalid. The Constitutional Court, however, saw no need to request the CJEU to give a preliminary ruling as it found that the proportionality between the measures and their purpose required by the CJEU’s case-law was ensured. The Directive pursued the objective of comprehensive consumer protection in distance and off-premises contracts. Informing consumers about their rights was of crucial importance. The legal situation changed by the Directive still allowed for the conclusion of contracts outside business premises. An effective conclusion merely depended on the trader providing the consumer with the information required by the Directive. Given the paramount importance of this information, the legal consequences for failing to provide it were justified, even to the extent that consumers were never liable for the loss of value of goods in such cases. Finally, the Constitutional Court held that it was not unreasonable for the Directive to provide for exceptions to the right of withdrawal only for certain, more precisely defined circumstances.

13. In view of this reasoning, it follows that the Constitutional Court, by way of reference to its earlier decision, provided comprehensible reasons for its standpoint that there were no unsettled legal issues of EU law and that a preliminary ruling by the CJEU was therefore unnecessary.

14. Under these circumstances, the Court cannot agree with the applicant company’s contention that the domestic proceedings were unfair in the meaning of the Court’s case-law. It is evident from the above that the Constitutional Court, though by referring to its previous judgment, addressed the applicant company’s arguments, and found, in essence, that the correct application of EU law was so obvious as to leave no scope for any reasonable doubt (see paragraph 7 above). Its reasoning enabled the applicant company to understand the decision and thus respected the procedural guarantees under Article 6 § 1 of the Convention. The Court does not need to examine whether the decision of the Constitutional Court was correct as it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law (see Ullens de Schooten and Rezabek, cited above, § 61). In conclusion, no sign of arbitrariness can be detected in the Constitutional Court’s decision of 27 November 2017 rejecting the applicant company’s request for a preliminary ruling to be sought from the CJEU. The application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 September 2022.

Ilse Freiwirth Armen Harutyunyan
Deputy Registrar President