JOINT SEPARATE OPINION OF JUDGES SAJÓ AND PINTO DE ALBUQUERQUE

1 . We voted with the majority as regards the finding that there has been a violation of Article 6 § 1 of the Convention (length of proceedings). We also agree with the majority that the complaint alleging a misinterpretation of EU law is inadmissible ratione materiae. In contrast to the majority, however, we find that the complaint concerning the lack of reasoning in respect of the need for a reference for a preliminary ruling is admissible; further, we conclude that Article 6 was violated.

2 . The Court came to the conclusion that “the applicant did not request, in his petition for review, that the case be referred to the CJEU for a preliminary ruling; nor did he provide any reasons as to why, in his view, the Budapest Labour Court ’ s judgment had violated Article 234 of the EC Treaty” (see paragraph 60 of the present judgment). We respectfully disagree.

3 . It is true that the applicant did not request in his petition for review, dated 22 March 2012, that the case be referred to the CJEU for a preliminary ruling. Nevertheless, it appears that the question of the interpretation of certain provisions of EU law, in particular Article 94(6) of the Regulation, was effectively raised before the Kúria within the meaning of the CJEU ’ s relevant case-law (see paragraph 41 of the present judgment). Moreover, the arguable need to give at least some consideration to the Cilfit criteria was also raised through the applicant ’ s argument concerning a violation of Article 234 of the EC Treaty. To disregard these facts is formalistic.

4 . The Court was of the view that, according the applicable EU law on matters of preliminary review, it is solely for the domestic court to determine – in the light of the particular circumstances of the case – whether it requires a preliminary ruling to enable it to deliver judgment. This does not exempt a domestic court from its Convention duty to give proper reasons. The Kúria did not put forward any reasoning to explain its interpretative stance. In this connection, an element of consideration, although not necessarily a decisive one, is that the Kúria did not base its interpretation on any case-law from the CJEU (see, mutatis mutandis , Dhahbi v. Italy , no. 17120/09, § 33, 8 April 2014, and, conversely, Société Divagsa v. Spain , no. 20631/92, Commission decision of 12 May 1993, Decisions and Reports 74, p. 280). Nor does it appear that the Kúria assessed the obvious nature of the adopted interpretation in the light of the specific characteristics of EU law, as required by the Cilfit case-law (see paragraphs 39 and 40 of the present judgment). Indeed, the Court is unable to identify any argument in the Kúria ’ s judgment as to why it considered the interpretation it had adopted so obvious as to leave no scope for any reasonable doubt, even in the light of the specific characteristics of EU law (see Ullens de Schooten and Rezabek v. Belgium , nos. 3989/07 and 38353/07, § 62 in fine , 20 September 2011).

5 . Such lack of reasoning is all the more apparent when it is considered together with the fact that the Kúria completely ignored the applicant ’ s argument concerning an alleged violation of Article 234 of the EC Treaty (see paragraphs 23 and 24 of the present judgment). Although Article 6 does not go so far as to require a detailed answer to every submission put forward, it does require judgments of tribunals adequately to state the reasons on which they are based (see, mutatis mutandis , Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, §§ 173-174, 11 June 2013, where the Court found even succinct reasons concerning a request for a preliminary ruling sufficient because, in the light of other findings, the reference to the CJEU would have been redundant). In the present case, where the correct interpretation of the relevant EU law was not a redundant question but the crux of the review proceedings before the Kúria , the applicant ’ s reference to Article 234 of the EC Treaty would have warranted at least adequate reasoning as to the grounds underpinning the Kúria ’ s judgment, in so far as it appears to contain an implicit application of the acte clair doctrine. It is of relevance in this respect that Article 94(6) of the Regulation was never subject to a preliminary ruling of the CJEU. There thus existed no well ‑ established case-law concerning its correct interpretation (see paragraph 42 in fine of the present judgment, and contrast Krikorian v. France (dec.), no. 6459/07, §§ 23 ‑ 25, 98 and 99, 26 November 2013).

6 . As regards the Government ’ s second objection (non-exhaustion of domestic remedies, namely recourse to the Constitutional Court), the Constitutional Court decision relied on by the Government (decision no. 7/2013, see paragraph 33 of the present judgment) concerned the courts ’ duty of reasoning under domestic procedural rules, rather than under the relevant EU requirements. The Government have failed to provide any examples of Constitutional Court practice, let alone established case-law, showing that that court had, at the relevant time and in application of the relevant EU-law criteria, dealt with issues related to the domestic courts ’ failure to provide adequate reasoning for non-referrals to the CJEU.

7 . In the light of these arguments, expressed in the context of admissibility, it is obvious that the domestic courts failed to satisfy their duty to provide duly reasoned judgments. In the circumstances of the case this resulted in a violation of Article 6 of the Convention.

[1] Formerly, Article 177 of the Treaty establishing the European Economic Community (“EEC Treaty”) and then Article 234 of the EC Treaty.

[2] See https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:31971R1408 , accessed on 12 June 2018