Tell me more, tell me more: the obligation for national courts to reason their refusals to refer to the CJEU in Sanofi Pasteur.

By Jasper Krommendijk (Radboud University, the Netherlands)

On 13 February 2020, the ECtHR found for the fourth time ever a violation of Article 6(1) ECHR for a failure of the highest national court to give proper reasons for its refusal to refer preliminary questions to the Court of Justice of the EU (CJEU) in Sanofi Pasteur. In 2014 and 2015, the ECtHR already determined a breach for a similar omission of the Italian Court of Cassation in Dhahbi and Schipani, while the Lithuanian Supreme Administrative Court was given a rap over the knuckles in 2019 in Baltic Master. This time it was the French Court of Cassation who took the blame in a claim for damages for bodily harm resulting from vaccination against hepatitis B. The company Sanofi Pasteur was found liable by lower French courts and appealed to the Court of Cassation. It unsuccessfully requested the Court to refer questions about the Product Liability Directive 85/374 and, more specifically, the obligation for the victim to prove the damage, defect and causal relationship between defect and damage. The Court dismissed the appeal whereby it explicitly noted that it did so without a need to refer. In this comment I will argue that this judgment shows once again the unpredictability and inconsistency in the case law of the ECtHR. What is needed is a Grand Chamber judgment as well as guidance from the CJEU to tell us more about the exact requirements for national courts. Continue reading