This expert opinion examines whether the Council of State violates EU law (the right to an effective remedy and fair trial guaranteed by Article 47 of the EU Charter) when it refuses to refer a preliminary question to the CJEU without stating reasons for that decision.In a judgment of 5 March 2015 the Dutch Council of State ruled that it may reject a request for a preliminary reference with a standard formula based on Article 91(2) Aliens Act 2000. According to the Council of State such practice does not violate Article 6 ECHR. However, the European Court of Human Rights (ECtHR) has held in the case of Dhahbi v Italy and other cases that Article 6 ECHR requires that highest courts give reasons for such rejection. In migration it is not possible to complain about a violation of Article 6 ECHR before the ECtHR. For this reason it is relevant to know whether migrants can rely on the EU Charter in order to challenge the Council of State’s case law.

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The Court of Appeal in Brussels has referred questions on this topic to the CJEU. The text of the questions can be found here.