MIL-OSI Translation: June 28, 2022 | Unsuccessful constitutional complaint due to failure to request a preliminary ruling from the Court of Justice of the European Union


MIL OSI translation. Region: Germany/Germany –

Source: The Federal Constitutional Court, press release no. 57/2022 of June 28, 2022, decision of May 24, 20221 BvR 2342/17

With a decision published today, the 2nd Chamber of the First Senate of the Federal Constitutional Court did not accept a constitutional complaint for a decision due to a violation of the right to the statutory judge (Art. 101 Para. 1 Sentence 2 of the Basic Law). It concerns the question of whether the Federal Court of Justice violated the complainant’s right to the statutory judge under Art a request for a preliminary ruling pursuant to Article 267(3) of the Treaty on the Functioning of the European Union (TFEU) to the Court of Justice of the European Union (ECJ).

Facts: The subject of the main court proceedings was the conclusion of an overall contract between the complainant, a user association within the meaning of §§ 8, 35 Collecting Society Act, and the responsible collecting societies of the authors to regulate the copyright remuneration obligation for PCs. The central point of contention was the question of whether the copyright remuneration obligation also extends to PCs that are sold directly to commercial end customers. The Higher Regional Court dismissed the complainant’s action and, on counterclaim by the collecting societies, stipulated an overall contract that also included a remuneration obligation for direct commercial customers PCs delivered to end customers included. The Federal Court of Justice dismissed the complainant’s appeal against this ECJ has decided. Main considerations of the chamber: The constitutional complaint does not have a sufficient chance of success. The complainant does not show that the Federal Court of Justice no longer handled its duty to refer pursuant to Article 267 (3) TFEU in the initial proceedings in a justifiable manner and by not submitting to the Court of Justice of the European Union the guarantee of the statutory judge pursuant to Article 101 (3) 1 sentence 2 GG violated.1. According to the case law of the Court of Justice of the European Union, a national court of last instance is obliged to refer if a question of Union law arises in proceedings pending before it, unless the court has determined that this question is not relevant to the decision, that the relevant Union law provision has already been the subject of an interpretation by the Court of Justice of the European Union or that the correct application of Union law is so obvious that there is no room for reasonable doubt. A national court may only deny a reasonable doubt as to the decision of the question asked if it is satisfied that the same certainty also exists for the courts of the other Member States and the Court of Justice.2. The Federal Court of Justice has neither fundamentally misjudged the obligation to refer under Article 267 (3) TFEU, nor are there any indications that it would have deliberately deviated from the case law of the Court of Justice of the European Union in the contested decisions without a willingness to refer. Although he considered the duty of submission under Union law, he assumed that the application of the copyright remuneration regulation to PCs sold directly to commercial end customers was in line with the case law of the Court of Justice of the European Union and that the legal situation had been clarified taking into account the previous case law of the Court of Justice . The BGH did not make this assumption in an unreasonable way either. In view of the diverging case law of the Austrian Supreme Court, it is doubtful whether, with regard to a fundamental extension of the obligation to pay remuneration to commercial device buyers, a legal situation under Union law can be assumed that has been clearly clarified or clarified in a way that leaves no reasonable doubt. When the national court which has the final say is informed of the existence of divergent judicial decisions – by courts of the same Member State or between courts of different Member States – on the interpretation of a provision of EU law applicable to the dispute in the main proceedings, it must, in its assessment of whether there is no reasonable doubt as to the correct interpretation of the Union law in question, to be particularly careful, taking into account in particular the aim of the preliminary ruling procedure, which is to ensure the uniform interpretation of Union law. Here, however, the complainant does not indicate when the only short time before the challenged appeal judgment was announced, the decision of the Austrian Supreme Court was published, so that it could be assumed that the Federal Court of Justice, at the relevant point in time, the proclamation of the judgment would have known or at least should have known.3. In addition, the chamber clarified that the question also raised by the complainant, whether the general clauses in German law set the requirements of the case law of the Court of Justice of the European Union for a claim for reimbursement of private copying remuneration, as a question of the subsumption of national law under Union law according to the wording of Art. 267 (1) (a) TFEU. If the highest national specialist court – like the Federal Court of Justice here – comes to the conclusion that national law, including its general clauses, can be interpreted in such a way that it meets the requirements of Union law, this does not result in a legal question that can be referred. A submission to the Court of Justice of the European Union is only required if it is unclear how the requirements of Union law are to be understood.


EDITOR’S NOTE: This article is a translation. Apologies should the grammar and/or sentence structure not be perfect.

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