National judges have an obligation to observe and apply European Union legislation by virtue of the principle of community supremacy.
Moreover, the same Treatment of the European Union has repeatedly charged to recall that the national judge, in case of doubt, must either raise a preliminary ruling to the European Union Court of Justice, or directly disregard national rules by his own authority in the event that they are considered incompatible with Community law.
And likewise it was translated into the Spanish Law of Judicial Power (Article 4bis, who very clearly stated that the Judges and Courts will apply the Law of the European Union in accordance with the jurisprudence of the Court of Justice of the European Union).
But, what happens if the national judge does neither one thing nor the other?
Can it happen that we exhaust all the national jurisdictional ways and the courts have not observed the European Union rights, causing damages?
In other words, can the citizen reach the Court of Justice of the European Union?
The answer must be affirmative, although they are quite reasonable exceptions.
In particular, we highlight two possible ways to reach the Court of Justice of the European Union:
The first option is to Raise a question by a preliminary ruling.
As a general rule, Spanish judges and courts of any instance have the power to decide – or not – to raise a preliminary ruling before the Court of Justice of the European Union. The citizen or costumer can request it in his writings before the judge, but it must be the judge who finally decides if he needs the Court of Luxembourg to clarify an interpretation of the Law of the Union. However, there is an exception to this “power” of the judge: when all internal possible appeals have been exhausted (in our case the Spanish Supreme Court), the national judge has the obligation to refer the matter to the European court.
On the other hand, the second option could be to submit an appeal before the Spanish constitutional Court (known as “recurso de amparo”).
if the parties understand that their European rights have been infringed, they must submit an appeal before the Constitutional Court in order to be recognized the right violation to the proper legal protection.
If you need advice, please do not hesitate to contact us. We are a legal firm specialized in European Union Law with more than 35 years and with office in the heart of Europe to fight our client’s rights.