Judgment Gondert v. Germany and Decision De Simone v. Germany - Obligation to provide reasons when refusing referral request to CJEU

issued by the Registrar of the Court   ECHR 302 (2025)   16.12.2025   European Court clarifies requirement on national courts of last-instance to give   reasons when refusing an explicit request for referral to the CJEU   The cases of Gondert v. Germany (application no. 34701/21) and De Simone v. Germany (application   no. 21853/23) concerned sets of proceedings in which the national courts did not make a referral to   the Court of Justice of the European Union (“the CJEU”) for a preliminary ruling.   The European Court of Human Rights found in both cases that where a party to proceedings had   explicitly requested a referral to the CJEU for a preliminary ruling and it had been refused by a   domestic court against whose decisions there was no further right of appeal, that court was required   to give reasons for the refusal.   It therefore held, unanimously, in today’s Chamber judgment1 in Mr Gondert’s case that there had   been a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.   The national courts had not given reasons for the refusal to refer questions to the CJEU for a   preliminary ruling, despite Mr Gondert’s precise request and detailed submissions in that regard.   Mr De Simone, on the other hand, had not made an explicit request for a referral to the CJEU, and in   its decision in his case the Court, unanimously, declared the application inadmissible. The decision is   final.   Principal facts   The applicant in application no. 34701/21 is Heinz-Günter Gondert, a German national who was born   in 1949 and lives in Bingen (Germany). Mr Gondert was a partner in the German office of an   international law firm based in the United Kingdom until he retired in 2014.   In February 2014, Mr Gondert brought a claim against the law firm in respect of its pension scheme,   alleging a difference in his treatment in comparison with younger partners. In April 2014 the Frankfurt   am Main Regional Court found in his favour and held that the difference in treatment could not be   justified. However, in June 2016 the Frankfurt am Main Court of Appeal set aside that judgment and   dismissed the claim. It accepted that Mr Gondert had been treated less favourably in comparison with   partners born after April 1950 but held that the difference in treatment had been justified under EU   law. The Court of Appeal refused to grant Mr Gondert leave to appeal on points of law. He lodged a   complaint against that refusal with the Federal Court of Justice and complained that the Court of   Appeal had not sought a preliminary ruling from the CJEU and asked the Federal Court of Justice to   seek one. The Federal Court of Justice refused the applicant leave to appeal, stating, in its short   summary reasoning, that no grounds to allow an appeal on points of law were present and that it had   examined the question of an obligation to refer the matter to the CJEU for a preliminary ruling. The   Federal Constitutional Court refused to admit a constitutional complaint by the applicant for   adjudication, without giving reasons.   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any   party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers   whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the   referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   ***   The applicant in application no. 21853/23 is Claudio De Simone. He is a researcher who had invented   a probiotic product containing eight different strains of bacteria. In 2015, proceedings relating to the   proprietary rights over those bacterial strains were successfully brought in Italy by a company where   Mr De Simone had previously served as CEO.   The company instituted execution proceedings in Germany, where the bacterial strains were stored.   The Braunschweig District Court ordered the seizure of the strains and transferred the entitlement to   their return to the company. The applicant lodged an application, within the framework of those   execution proceedings, seeking refusal of enforcement. In April 2020 the Regional Court dismissed the   applicant’s application and on 14 October 2020 the Court of Appeal upheld that decision. In a   subsequent complaint on points of law, the applicant argued that a decision by the Federal Court of   Justice was necessary for the development of the law and in the interests of ensuring uniform   adjudication. He argued that that court had not yet ruled on a particular question regarding the   interpretation of EU law. On 19 May 2022 the Federal Court of Justice dismissed the applicant’s   complaint on points of law as inadmissible, as the legal matter in question was neither of fundamental   significance, nor did the further development of the law or the interest in ensuring uniform   adjudication require a decision by the court. In its six-page decision, it briefly assessed the main   arguments set out in Mr De Simone’s complaint.   Complaints, procedure and composition of the Court   Relying on Article 6 § 1, in particular, Mr Gondert and Mr De Simone complain, among other things,   that the national courts had not made a referral to the CJEU for a preliminary ruling in their cases.   Application no. 34701/21 was lodged with the European Court of Human Rights on 2 July 2021.   Application no. 21853/23 was lodged with the European Court of Human Rights on 25 May 2023.   The judgment and the decision were given by a Chamber of seven judges, composed as follows:   Lado Chanturia (Georgia), President,   Faris Vehabović (Bosnia and Herzegovina),   Lorraine Schembri Orland (Malta),   Anja Seibert-Fohr (Germany),   Anne Louise Bormann (Denmark),   Sebastian Răduleţu (Romania),   András Jakab (Austria),   and also Simeon Petrovski, Deputy Section Registrar.   Decision of the Court   Firstly, the Court reiterated that while it was for the national courts to interpret and apply domestic   law, if necessary, in conformity with EU law, and to decide whether it was necessary to seek a   preliminary ruling from the CJEU, a refusal to grant a referral might, in certain circumstances, infringe   on the fairness of the proceedings.   The obligation for domestic courts to provide reasons for their judgments and decisions served to   enable the parties to understand the judicial decision that had been given, which was a vital safeguard   against arbitrariness. In addition, it served the purpose of demonstrating to the parties that they had   been heard, contributing to a more willing acceptance of the decision on their part.   2 The Court went on to say that where a party had asked a national court, against whose decisions there   was no further right of appeal, to refer a question to the CJEU for a preliminary ruling and that court   refused, it had to give reasons for that refusal in line with the CJEU’s case-law (the CILFIT criteria2).   Taking into account the fact that there was no right to have a question referred for a preliminary   ruling, a party could, as a safeguard against arbitrariness, only expect a response by a national court   in the reasons of a judgment or decision if that party had made a request and submissions for a   referral. It was not sufficient for a party to have broadly challenged the alignment of the domestic   provisions with EU law or the interpretation of EU law by the domestic courts. There had to be a   request and explicit reasons, in the absence of which the Court considered that the fact that a court,   without providing reasons, did not refer a question to the CJEU for a preliminary ruling could not be   regarded as infringing the fairness of the proceedings under Article 6 of the Convention.   ***   In Mr Gondert’s case the Court concluded that the national courts had not given reasons for the refusal   to refer questions to the CJEU for a preliminary ruling, despite his precise request and detailed   submissions in that regard. In its refusal of leave to appeal on points of law, the Federal Court of Justice   had noted that it had examined whether it had an obligation to refer the matter to the CJEU for a   preliminary ruling, but it had not stated the reasons why it had considered such a referral to be   unnecessary. It had not stated, in line with the CILFIT criteria, whether it considered the questions   raised by the applicant to have been irrelevant, whether the EU provision in question had already been   interpreted by the CJEU, or whether the correct application of EU law had been so obvious as to leave   no scope for any reasonable doubt.   There had therefore been a violation of Article 6 § 1.   ***   In Mr De Simone’s case, although he had formulated a specific question in his complaint on points of   law to the Federal Court of Justice, that question had concerned the interpretation of German and EU   law by the Federal Court of Justice and not by the CJEU. He had argued that the matter required a   decision by the Federal Court of Justice and had not requested or even mentioned a referral to the   CJEU. Furthermore, his complaint had not made arguments as to why a preliminary ruling was   necessary.   Accordingly, he had neither requested a referral nor provided any arguments in support of such a   request and his complaint was therefore inadmissible.   Just satisfaction (Article 41)   The Court held that Germany was to pay Mr Gondert 3,000 euros (EUR) in respect of non-pecuniary   damage and EUR 2,000 in respect of costs and expenses.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int.   2 Court of Justice of the European Communities judgment of 6 October 1982 in CILFIT (C-283/81, EU:C:1982:335,   paragraph 21.   3 Follow the Court on Bluesky @echr.coe.int, X ECHR_CEDH, LinkedIn, and YouTube.   Contact ECHRPress to subscribe to the press-release mailing list.   Where can the Court’s press releases be found? 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