Opinion of Advocate General Emiliou delivered on 18 June 2024.

• Jurisdiction: European Union
• Celex Number: 62023CC0144
• ECLI: ECLI:EU:C:2024:522
• Date: 18 June 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 18 June 2024 (1)

Case C‑144/23

KUBERA, trgovanje s hrano in pijačo, d.o.o.

v

Republika Slovenija

(Request for a preliminary ruling from the Vrhovno sodišče (Supreme Court, Slovenia))

(Reference for a preliminary ruling – Third paragraph of Article 267 TFEU – Obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Exceptions to that obligation – CILFIT case-law – Filtering mechanism – Supreme Court of a Member State – Grant of leave to bring an appeal on a point of law – Decision refusing an application for leave to bring an appeal – Article 47 of the Charter – Right to a fair trial – Statement of reasons)

I. Introduction

1. The difficulties encountered by judicial bodies, both at national and at international level, in managing their dockets efficiently, due to the large number of disputes brought before them, is certainly not a recent phenomenon. For obvious reasons, the problem has always been felt more acutely by the courts which sit at the apex of the judicial system, which are generally assigned task of ensuring the consistency and accuracy of the case-law. (2)

2. The risks which an excessive workload may give rise to are clear and, thus, need no more than a brief mention: inter alia, significant delays in dealing with cases, lower quality of the judicial decisions, prolonged state of legal uncertainty and higher litigation costs for the individuals involved and, more indirectly, for society as a whole.

3. One of the mechanisms which has traditionally been used to permit the highest courts to keep control of their dockets and thus limit the abovementioned risks is to endow them with the ability to select, to a greater or lesser degree, the cases (or, in some systems, also the legal questions) they wish to hear and decide. (3) A research note drawn up by the Research and Documentation Directorate of the Court of Justice of the European Union in April 2013 showed that, in the last decades, there has been a certain trend, across the Member States of the European Union, towards establishing filtering mechanisms for appeals before the highest court. In fact, some forms of filtering mechanisms now exist in several Member States. (4) In addition, in 2019 the Statute of the Court of Justice of the European Union (‘the Statute’) (5) was amended in order to introduce a filtering mechanism for appeals relating to decisions by certain EU agencies and offices. (6)

4. However, that note also shows that, in some Member States, the introduction of similar mechanisms has been deemed problematic (or rejected outright) since, although they may help national courts to manage their dockets more effectively, those mechanisms also have the effect of limiting the access to court of certain litigants. That may, accordingly, create some tension with regard to the right to an effective judicial remedy, as recognised in the relevant national laws, Article 6 of the European Convention of Human Rights (‘the ECHR’) and – last but not least – Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

5. The present case brings to the fore one rather specific aspect in that respect. Indeed, the Court is asked whether and, if so, under what conditions, the existence of filtering mechanisms at national level could be reconciled with the obligation which national courts of last instance have, under the third paragraph of Article 267 TFEU, to make a reference for a preliminary ruling to the Court when an issue of interpretation of EU law is raised in a procedure pending before them.

II. National law

6. Article 367(1) of the Zakon o pravdnem postopku (Civil Procedure Act; ‘the ZPP’), (7) applicable to administrative disputes by virtue of Article 22(1) of the Zakon o upravnem sporu (Administrative Proceedings Act), (8) in the version applicable in the main proceedings, reads:

‘The parties may lodge an appeal for review against a final judgment delivered at second instance within 15 days of notification of the decision of the Supreme Court to allow the appeal.’

7. Under the terms of Article 367a of the ZPP:

‘(1) The court shall allow an appeal for review if the decision of the Supreme Court can be expected to decide a question of law that is important for ensuring legal certainty, the uniform application of the law or the development of the law through case-law. In particular, the court grants leave to appeal in the following cases:

– if it is a question of law on which the decision of the court of second instance departs from the case-law of the Supreme Court; or

– if it is a question of law on which there is no case-law of the Supreme Court, in particular if the case-law of higher courts is not uniform; or

– if it is a question of law on which the case-law of the Supreme Court is not uniform.

(2) The Supreme Court shall decide to grant leave to appeal on the basis of a party’s application for leave to appeal.’

8. Article 367b of the ZPP states:

‘(1) An application for leave to appeal shall be filed by a party within 30 days of service of the final judgment of the court of second instance.

(2) An application for leave to appeal shall be lodged with the Supreme Court.

…

(4) In the application for leave to appeal, the party must set out in a precise and specific manner the point of law in dispute and the rule of law alleged to have been infringed, the circumstances demonstrating the importance of the issue and a brief statement of the reasons why the court of second instance unlawfully ruled on the issue; it must describe in a precise and specific manner the alleged procedural irregularities and, in the same way, demonstrate the existence of case-law of the Supreme Court from which the decision allegedly departed, or the inconsistency of the case-law.’

9. Article 367c of the ZPP provides:

‘(1) A panel of three judges of the Supreme Court shall decide by order on the application for leave to appeal.

(2) It shall be sufficient, in order to state the reasons for a decision rejecting an application for leave to appeal, for the court to state in general terms that the conditions laid down in Article 367a of this Act have not been met.

(3) In the order granting leave to appeal, the court or tribunal shall indicate in which part or on which specific points of law leave to appeal is to be granted.

(4) There shall be no appeal against a decision to allow or refuse to allow an appeal.’

10. Article 370 of the ZPP states:

‘(1) An appeal may be brought on the ground of a material breach of provisions governing proceedings before the court of first instance which the party relied on before the court of second instance, on the ground of a material breach of provisions governing proceedings before the court of second instance or on the ground of an error of law.

(2) An application for judicial review may not be made on the basis of an erroneous or incomplete finding of fact.’

11. Article 371 of the ZPP reads:

‘The reviewing court shall review the contested judgment only in so far as and in relation to the specific questions of law in respect of which leave to appeal was granted.’

III. Facts, procedure and the questions referred

12. KUBERA, trgovanje s hrano in pijačo d. o. o. (‘Kubera’), the applicant in the main proceedings, purchased in Türkiye cans of the drink Red Bull manufactured in Austria and transported them by ship to the port of Koper (Slovenia), where the customs procedure began.

13. On 15 September 2021, the Finančna uprava Republike Slovenije (Financial Administration of the Republic of Slovenia) issued an opinion by which, on account of a suspected infringement of an intellectual property right, within the meaning of Article 17 of Regulation (EU) No 608/2013, (9) it suspended the customs procedure and seized the goods. Subsequently, on 5 October 2021, the same public authority issued two decisions by which it decided to seize Kubera’s goods pending the decision on the dispute brought by the right-holder, Red Bull GmbH (Austria), to protect its intellectual property rights.

14. Kubera first lodged two administrative complaints against those decisions, which were rejected. Subsequently, it brought two actions against those decisions, which were dismissed by the Upravno sodišče (Administrative Court, Slovenia) on the basis of, inter alia, Article 1 of Regulation No 608/2013.

15. In response to those decisions of the Upravno sodišče (Administrative Court), Kubera submitted two applications for leave to bring an appeal on a point of law before the Vrhovno sodišče (Supreme Court, Slovenia), raising as a relevant point of law the interpretation of Article 1(5) of Regulation No 608/2013, read in conjunction with recital 6 thereof. In those applications, Kubera also asked the Vrhovno sodišče (Supreme Court), in the event that Regulation No 608/2013 was not interpreted in the manner it suggested, to stay the proceedings and to refer the matter to the Court of Justice. In that regard, Kubera argued that the issue raised in the case at hand had not been addressed in the EU case-law or in national case-law, despite its significance in establishing the limits of the customs authorities’ powers.

16. In the main proceedings, the Vrhovno sodišče (Supreme Court) takes the view that the provisions of the ZPP (‘the national legislation at issue’) do not allow the application for leave to bring an appeal on a point of law to be granted, on the ground that the conditions laid down for that purpose by that code are, in principle, not satisfied. However, that court wonders whether, when deciding on the application for leave to bring an appeal on a point of law, it is also required to assess the substance of the party’s request that a reference for a preliminary ruling be made to the Court of Justice, in accordance with the requirements laid down in Article 267 TFEU, and whether, if a...