Guest Post by Stanislovas Tomas (CMS DeBacker Leclère Walry)
Article 267(3) of the Treaty on the Functioning of the European Union requires the national court of last instance to make a preliminary reference to the ECJ on questions of interpretation of the Union law.
In case Köbler v Austria, C-224/01, the ECJ interpreted that if a national court of last instance refuses to make the preliminary reference, the interested party may sue the State before a respective national court of first instance.
This is exactly what has happened in case Tomas v Lithuania, 51226/09. When the national court of last instance refused to make the preliminary references, the State was sued for the violation of current Article 267(3) TFEU following the Köbler procedure. However the Lithuanian national courts declared the action inadmissible.
The next step was suing Lithuania for the violation of the Köbler procedure before the ECHR. On 12/04/2011 the sinle judge chamber (judge András Sajó) interpreted that the right to court (Article 6(1) of the European Convention of Human Rights) is not applicable to the Köbler procedure.
However, since it is a single judge chamber judgment, it is possible that this interpretation will not be applicable to futurer litigations.