Published on 19 September 2022

THIRD SECTION

Application no. 34701/21 Heinz-Günter GONDERT against Germany lodged on 2 July 2021 communicated on 1 September 2022

SUBJECT MATTER OF THE CASE

The application concerns civil proceedings where the national courts abstained from requesting the Court of Justice of the European Union (“the CJEU”) to give a preliminary ruling.

During civil proceedings concerning pension rights to be paid to him by a law firm the applicant, a lawyer, complained of discrimination and requested a referral to the CJEU. The Court of Appeal refused the applicant’s claim. The Federal Court of Justice dismissed the applicant’s appeal against the denial of leave to appeal on points of law, with reference to the relevant sections of the German Code of Civil Procedure, and finding a lack of a reason to admit the appeal on points of law. It added that it had “also examined the question of an obligation to request a ruling according to Article 267 § 3 of the Treaty on the Functioning of the European Union” (TFEU). The Federal Constitutional Court declined to accept the applicant’s constitutional complaint for adjudication, without providing any reasons.

The applicant complains under Article 6 of the Convention that the national proceedings were unfair and in particular that the national courts did not provide sufficient reasons for their decision not to refer the case to the CJEU for a preliminary ruling.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, did the refusal of the Federal Court of Justice to grant the applicant’s request for a referral to the Court of Justice of the European Union (CJEU) render the proceedings unfair (see Sanofi Pasteur v. France , no. 25137/16, §§ 67-68, 13 February 2020)?

Did the reasoning of the Federal Court of Justice in itself, or in conjunction with the decision of the Court of Appeal, suffice to comply with the State’s obligations under Article 6 § 1 of the Convention (see Bio Farmland Betriebs S.R.L. v. Romania , no. 43639/17, §§ 53-57, 13 July 2021; Sanofi Pasteur v. France , cited above, §§ 73-80, 13 February 2020; Baltic Master Ltd. v. Lithuania , no. 55092/16, §§ 40-44, 16 April 2019; and Dhahbi v. Italy , no. 17120/09, §§ 31-34, 8 April 2014; and compare with Harisch v. Germany , no. 50053/16, §§ 37-43, 11 April 2019)?