Unsuccessful constitutional complaint challenging an ordinary court’s failure to request a preliminary ruling from the Court of Justice of the European Union

Press Release No. 57/2022 of 28 June 2022

Order of 24 May 2022
1 BvR 2342/17

In an order published today, the Second Chamber of the First Senate of the Federal Constitutional Court did not admit for decision a constitutional complaint concerning the question whether the Federal Court of Justice (Bundesgerichtshof) violated the complainant’s right to its lawful judge following from Art. 101(1) second sentence of the Basic Law (Grundgesetz – GG). The proceedings before the ordinary courts concerned the copyright remuneration payable upon the sale and distribution of computers. In its judgment, the Federal Court of Justice had decided that this remuneration is also payable if the transaction concerns computers sold directly to business customers. In this respect, the Federal Court of Justice had refrained from requesting a preliminary ruling from the Court of Justice of the European Union (CJEU) pursuant to Art. 267(3) of the Treaty on the Functioning of the European Union (TFEU) before rendering its judgment.

Facts of the case:

The initial proceedings before the ordinary courts concerned the conclusion of an inclusive agreement on the copyright remuneration payable upon the sale or distribution of computers between the complainant, an association of users within the meaning of §§ 8 and 35 of the Collecting Societies Act (Verwertungsgesellschaftsgesetz), and the responsible collecting societies representing the right holders. The key issue contested between the parties was whether the obligation to pay remuneration under copyright law also extends to transactions concerning computers sold directly to business customers.

The Higher Regional Court (Oberlandesgericht) dismissed the complainant’s action. Following the counterclaim action brought by the collecting societies, the court set forth an inclusive agreement that also included an obligation to pay remuneration upon the sale or distribution of computers sold directly to business customers. The Federal Court of Justice rejected the complainant’s appeal on points of law (Revision) against this decision.

The complainant asserts that the Federal Court of Justice would have been obliged to request a preliminary ruling from the CJEU regarding the interpretation of Art. 5(2)(b) of Directive 2001/29/EC, and in failing to do so violated the complainant’s right to its lawful judge.

Key considerations of the Chamber:

The constitutional complaint is unsuccessful. The complainant failed to demonstrate that the Federal Court of Justice handled its obligation to request a preliminary ruling pursuant to Art. 267(3) TFEU in an untenable manner and that it therefore violated the guarantee to one’s lawful judge under Art. 101(1) second sentence GG by failing to make a referral to the CJEU.

1. According to the case-law of the CJEU, a national court of last instance is required, where a question of European Union law is raised in proceedings before it, to comply with its obligation to bring the matter before the Court of Justice, unless the national court has established that the question raised is irrelevant, that the provision of EU law in question has already been interpreted by the Court of Justice or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. A national court may only conclude that there is no reasonable doubt as to how the question raised is to be resolved if said court is convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice itself.

2. It is not ascertainable that, in choosing not to request a preliminary ruling, the Federal Court of Justice generally failed to recognise its obligation to make a referral pursuant to Art. 267(3) TFEU, nor are there indications that the court deliberately deviated from the CJEU’s case-law. In its decision, the Federal Court of Justice considered its obligation to make a referral under EU law but ultimately held that extending the obligation to pay remuneration under copyright law to transactions concerning computers sold directly to business customers was in line with the case-law of the CJEU, finding that the applicable legal standards following from this case-law were sufficiently clear. This finding by the Federal Court of Justice was not untenable in this sense.

However, it must be noted that the Austrian Supreme Court of Justice (Oberster Gerichtshof) ruled differently on the matter at issue in a recent decision. In light of this, it is doubtful whether the applicable EU law can be considered to be so unequivocally clear or clarified as to leave no scope for any reasonable doubt with regard to the general applicability of the obligation to pay remuneration under copyright law to transactions involving commercial buyers of devices.

If a national court of last instance is made aware of the existence of diverging lines of case-law – among the courts of a Member State or between the courts of different Member States – concerning the interpretation of a provision of EU law applicable to the dispute in the main proceedings, that court must be particularly vigilant in its assessment of whether or not there is any reasonable doubt as to the correct interpretation of the provision of EU law at issue and have regard, inter alia, to the objective pursued by the preliminary ruling procedure, which is to secure uniform interpretation of EU law.

Yet in the present case, the complainant failed to establish when the decision of the Austrian Supreme Court of Justice was published. This would have been relevant given that the Austrian decision had only been rendered shortly before the Federal Court of Justice pronounced the challenged judgment. Only if the time of publication preceded the pronouncement of the challenged judgment, as the relevant point in time here, could it be assumed that the Federal Court of Justice was aware of the decision of the Austrian court, or at least should have been aware of it, when assessing its own obligation to request a preliminary ruling.

Another question raised by the complainant is whether the general or blanket clauses under German law satisfy the requirements laid down in the case-law of the Court of Justice of the European Union regarding claims for reimbursement of private copying levies. The Federal Constitutional Court clarified that this is a question concerning the application of EU law to national matters, which, according to the wording of Art. 267(1)(a) TFEU, cannot be referred to the CJEU. Where the highest national ordinary jurisdiction – like the Federal Court of Justice in this case – concludes that national law, including general or blanket clauses, can be interpreted in such a way that they satisfy the requirements arising from EU law, there are no grounds for making a referral to the CJEU. Such a referral would only be required if it was unclear how the requirements arising from EU law are to be interpreted.