Case C-318/25, Proschik – may a single judge be stopped from referring?
Article 267 gives every court the right to refer. The Landgericht Erfurt asks whether “every court” includes a single judge whose national rules say the question belongs to someone else.
Facts
RK is suing Meta Platforms Ireland Limited before the Landgericht Erfurt. The case is assigned to a single judge under Paragraph 348 of the Zivilprozessordnung, which allocates most civil cases to one member of a chamber of three. Paragraph 348(3) requires the single judge to transfer the case to the full chamber where it presents particular difficulties or questions of principle; Article 101(1) of the Grundgesetz guarantees the right to one’s lawful judge, and German case law treats a reference to the Court of Justice made by a judge who should have transferred the case as a breach of that guarantee. The single judge wishes to refer questions of EU law in the main proceedings and, before doing so, asks whether the rules that would first require the chamber’s involvement are compatible with Article 267 TFEU — and, if they are, what the chamber must then do. The four questions are entirely about the mechanism of reference; the substantive questions against Meta are not in the notice. (Proschik is a fictitious name assigned under the Court’s anonymisation practice; it does not correspond to any party.)
Questions Referred
1. Is Article 267 TFEU to be interpreted as precluding national law and national practice which require a member of a chamber composed of three judges, where it rules as single judge, to refer questions of EU law to his or her chamber for clarification and where the intention is to refer the case to the Court of Justice of the European Union? In other words: Does EU law, in particular Article 267 TFEU, read in conjunction with Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights, preclude provisions of German law such as Article 101(1) of the Grundgesetz (German Basic Law, ‘the GG’) and Paragraph 348(3) of the Zivilprozessordnung (German Code of Civil Procedure, ‘the ZPO’) and the related case-law, in so far as they impede, delay or frustrate a reference to the Court of Justice of the European Union?
2. If Question 1 is answered in the affirmative: Is a single judge nevertheless free to refer the main proceedings to his or her chamber with a view to its being taken over, even if the relevant national law is contrary to EU law?
3. If Question 1 is answered in the negative or Question 2 is answered in the affirmative: Is a chamber before which a single judge has brought a matter obliged to take over the main proceedings, or can it refuse to do so?
4. If the chamber decides to take over the main proceedings: Must the chamber then refer the questions of EU law to the Court of Justice of the European Union, as originally intended by the competent single judge, or can it refrain from doing so and rule on the questions of EU law itself?
Sources
OJ notice C/2025/3867 (EUR‑Lex) · Case file on CURIA · Cartesio, C‑210/06 (ECLI:EU:C:2008:723)
Comment
The Court has guarded the reference procedure against national interference for as long as it has existed, and the line of authority is clear. In Case C‑210/06, Cartesio (ECLI:EU:C:2008:723) it held that where national rules allow an appeal against an order for reference, the referring court’s power to refer cannot be called into question by the appellate court: the decision to refer belongs to the court that makes it. Later cases have said that a national rule cannot prevent a lower court from referring merely because a higher court has already ruled on the point, and that a court cannot be disciplined for referring. Proschik asks the same question one level down: not whether a higher court may block a reference, but whether a court’s own composition rules may route the decision to refer away from the judge who wants to make it.
The difficulty is that Paragraph 348(3) is not aimed at references. It is a general allocation rule — hard or important cases go to three judges rather than one — and there is nothing in Article 267 that entitles a single judge to keep a case the national rules would give to a chamber. The Court’s answer to Question 1 is therefore likely to be nuanced: a rule that requires transfer where a question of principle arises is not in itself contrary to EU law, but it becomes so if applied in a way that “impedes, delays or frustrates” a reference — the referring judge’s own words. Whether the German practice of treating an unauthorised reference as a breach of the right to the lawful judge crosses that line is the real question, because it gives the reference a cost the single judge cannot escape and the chamber can.
Questions 3 and 4 are what make the reference practically useful. If the chamber must take the case, must it also refer? A chamber that takes over and then decides the EU-law question itself has, from the single judge’s point of view, cancelled a reference the Treaty gave that judge the right to make. Article 267 makes reference a right of “any court or tribunal”, not of any judge; but the Court has never had to say what happens when the same court, differently composed, changes its mind. The answer will be read in every Member State whose procedure distinguishes single-judge from collegiate sittings — which is most of them.
It is a coincidence of the docket that the defendant is Meta. The same court has a substantive reference against Meta pending in Erser (C‑273/25); if Proschik establishes that the single judge may refer, the questions in the main proceedings here are likely to follow it to Luxembourg.