24.6.2019

Official Journal of the European Union

C 213/11

(Case C-256/19)

(2019/C 213/11)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: S.A.D. Maler und Anstreicher OG

Respondent authority: Magistrat der Stadt Wien

Other party to the proceedings: Bauarbeiter Urlaubs und Abfertigungskasse

Questions referred

1)Are the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and the principle of effectiveness at least with regard to a national legal system which, for the purpose of safeguarding the independence and impartiality of the courts in its constitution, establishes a fundamental right to the allocation of cases to judges of cases according to a fixed allocation of cases determined in advance according to general rules to be interpreted as meaning that the legislature must ensure that this fundamental guarantee is effective and not merely theoretical?

(1)(a)Supplementary question: If Question (1) is answered in the negative: Do the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and the principle of effectiveness in a national legal system which has enshrined the fundamental right of the fixed allocation of cases in the constitution impose any obligations to safeguard that right on the legislature and, if so, which?

(1)(b)Supplementary questions: If Question (1) is answered in the affirmative: Do the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and the principle of effectiveness at least with regard to a national legal system which has enshrined the fundamental right of the fixed allocation of cases in the constitution demand non-compliance with an instruction or action concerning the allocation of files to a judge by a body with no jurisdiction under law regarding that instruction or action?

(1)(b)- (2)Do the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and the principle of effectiveness at least with regard to a national legal system which has enshrined the fundamental right of the fixed allocation of cases in the constitution demand that, under intra-court rules of procedure, a body dealing with the allocation of court files may be granted only a narrow scope of discretion, if any, determined in advance, with regard to the allocation decision?

2)Are the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and the principle of effectiveness at least with regard to a national legal system which, for the purpose of safeguarding the independence and impartiality of the courts in its constitution, establishes a fundamental right to the allocation of cases to judges according to a fixed allocation of cases determined in advance according to general rules to be interpreted as meaning that a judge who has doubts (i) concerning the legality of an intra-court allocation of cases or (ii) concerning the legality of an intra-court decision implementing an intra-court allocation of cases and directly affecting the activity of that judge (in particular an allocation of cases decision) must, with regard to those doubts, be able to lodge an appeal (in particular at no financial cost to that judge) at a different court with full powers to review the legality of the act considered to be unlawful?

If not: Are there any other provisions to be guaranteed by the legislature which ensure that a judge is able to attain legal compliance with the statutory provisions concerning him in respect of the observance of the statutory (in particular intra-court) provisions regarding the allocation of cases?

3)Are the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and the principle of effectiveness at least with regard to a national legal system which, for the purpose of safeguarding the independence and impartiality of the courts in its constitution, establishes a fundamental right to the allocation of cases to judges according to a fixed allocation of cases determined in advance according to general rules to be interpreted as meaning that a party to a court case which has doubts concerning (i) the legality of a provision of the intra-court allocation of cases that is prejudicial to the settlement of its case or (ii) the legality of the allocation of that case to a certain judge must, before the issuing of the court decision, with regard to those doubts, be able to lodge an appeal (which does not place an excessive financial burden on that party) at a different court with full powers to review the legality of the legal act considered to be unlawful?

If not: Are there any other provisions to be guaranteed by the legislature which ensure that a party, before the issuing of the court decision, is able to attain legal compliance with its fundamental right to observance of the ‘lawful judge’ principle?

4)Are the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and the principle of effectiveness at least with regard to a national legal system which, for the purpose of safeguarding the independence and impartiality of the courts in its constitution, establishes a fundamental right to the allocation of cases to judges according to a fixed allocation of cases determined in advance according to general rules to be interpreted as meaning that the intra-court allocation of cases and the intra-court file registration are organised in such a transparent and comprehensible manner that the judge or a party is able, without particular effort, to check that the specific allocation of files to a judge or a certain panel of judges corresponds to the provisions of the intra-court allocation of cases?

If not: Are there any other provisions to be guaranteed by the legislature which ensure that a judge or a party is in a position to be able to obtain knowledge of the legality of a certain allocation of court cases?

5)Are the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and the principle of effectiveness at least with regard to a national legal system which, for the purpose of safeguarding the independence and impartiality of the courts in its constitution, establishes a fundamental right to the allocation of cases to judges according to a fixed allocation of cases determined in advance according to general rules to be interpreted as meaning that the parties to a case and the judge in a court case must be able, without particular action on their part, to acquaint themselves with the content of the case allocation rules and that the parties to a case and the judge must in this way be able to check the legality of the allocation of the case to a judge or certain panel of judges?

If not: Are there any other provisions to be guaranteed by the legislature which ensure that a judge or a party is in a position to be able to obtain knowledge of the legality of a certain allocation of court cases?

6)What obligations to act are incumbent upon a judge, in view of his obligation under EU law to observe the procedural provisions under EU law, who, by virtue of an (out-of-court or intra-court) legal act which cannot be challenged, is obliged to perform an act which is contrary to EU law and infringes party rights?