Before dealing with the decision by the Court of Justice in Akerberg Fransson, some words should be said about a particular aspect of the case, namely the efforts by the Public Prosecutor to stop the case from being tried in Luxembourg.
In an effort to ‘silence’ the Haparanda District Court, the Prosecutor appealed the decision to stay of proceedings while waiting for the decision by the Court of Justice to the Court of Appeal on the grounds that the case was being delayed unnecessarily. However, the Court of Appeal rightly rejected the Prosecutor’s request by referring to the case law of the Court of Justice. The Court of Appeal gave these legal grounds:
Article 267 of the TFEU gives every national court the right to request a preliminary ruling from the Court of Justice on issues dealing with the interpretation or validity of Community law. It is not the concern of the Court of Appeal, or any other national court to revoke a request for a preliminary ruling and order the court that has decided to request a preliminary ruling to resume proceedings that have been stayed in accordance with national law, since such a decision would restrict the possibility of requesting a preliminary ruling provided by Article 267 TFEU (see the judgment of the Court of Justice (Grand Chamber) of 16th December 2008, case C-210/06, para. 95-98).
In the case at hand, the Prosecutor has not appealed the actual decision to request a preliminary ruling, only the decision to stay the proceedings due to the decision to request a preliminary ruling. Since the District Court has a discretionary right to request a preliminary ruling, the Court of Appeal should therefore not limit the District Court’s possibility to stay the proceedings in anticipation of the preliminary ruling, since such a decision would limit the right provided the District Court by Article 267 TFEU. This should in any case apply in cases for which a preliminary ruling has been requested. Therefore the Court of Appeal shares the view of the District Court that the proceedings should be stayed in anticipation of the requested preliminary ruling. The Court of Appeal thus rejects the appeal.
The Court of Appeal added that its decision regarding a stay of proceedings in accordance with Chapter 54, section 8 of the Swedish Code of Judicial Procedure may not be appealed.
The Court of Justice judgment in the Cartesio case, referred to by the Court of Appeal, indicated that the Court of Justice concludes that it is important that each national court has the opportunity to decide independently and autonomously whether it finds that there is a need to request a preliminary ruling from the Court of Justice. The Cartesio judgment makes it clear that EU law does not accept that national courts of the higher instance, when issuing a ruling on an appeal, try to ‘censor’ a decision made by a court of the lower instance with regard to requesting a preliminary ruling. This applies even if the court of the higher instance takes the view that the decision made by the court of the lower instance is unjustified or would lead to an unwarranted delay in proceedings. The developments in the Akerberg Fransson case illustrate quite well the importance of the Cartesio principle as established by the Court of Justice in securing the independence of the national court requesting a preliminary ruling.
Notă MMB: pentru jurisprudența constantă CEDO potrivit căreia timpul scurs cu o speță pe rolul CJUE nu este calculat atunci când se analizează dacă s-a respectat termenul rezonabil în înțelesul autonom al articolului 6 din Convenție, a se vedea Pafitis și alții împotriva Greciei (paragr. 95) sau Koua Poirrez împotriva Franței (paragr. 61).
(The Akerberg Fransson Case în Human Rights in Contemporary European Law, Swedish Studies in European Law, vol. 6, ed. Hart, 2015, la pp. pp. 195-6)