Gondert v. Germany and the Obligation to Give Causes
On 16 December 2025, the European Courtroom of Human Rights (ECtHR) delivered its judgment in Gondert v. Germany. The ruling has been broadly welcomed as a step in direction of strengthening the rule of regulation in Europe. The case raises questions that matter not just for the European Conference on Human Rights (ECHR) system, but in addition for the European Union (EU) authorized order and the constitutional orders of the EU Member States.
On the centre of the dispute lies the responsibility to offer causes. This obligation is firmly recognised in Europe as a normal precept of regulation and has gained comparable standing in lots of authorized methods past Europe. Procedurally, the case considerations a celebration’s request for a preliminary reference beneath Article 267 TFEU that was not granted. Whereas the Courtroom of Justice of the European Union (CJEU) has developed intensive jurisprudence on Article 267 TFEU, that jurisprudence largely is dependent upon a nationwide courtroom truly referring a query. When nationwide courts refuse to refer, the refusal could also be controversial, but there may be usually no direct approach to carry that controversy earlier than the CJEU.1)
In such conditions, an exterior supervisory discussion board will be the solely avenue for reviewing whether or not the refusal was procedurally honest and non-arbitrary. In apply, that discussion board could be the European Courtroom of Human Rights (ECtHR), working by way of Article 6(1) ECHR. Within the triangular relationship between EU regulation, the ECHR, and nationwide authorized orders, the responsibility to state causes performs a catalytic position: with out enough causes, the much-cited “dialogue between courts” can not function as real dialogue. Gondert improves issues to some extent, but it surely can not by itself treatment the deeper structural weaknesses that form how that dialogue capabilities.2)
The Street to Strasbourg
The appliance arose out of an age-discrimination dispute introduced by the German lawyer Heinz-Günter Gondert in opposition to his former employer, a British regulation agency organised as a restricted legal responsibility partnership (LLP). Mr Gondert (born in 1949) had been a companion within the LLP’s German workplace. The LLP revised its pension scheme in 2005 and once more in 2008, introducing guidelines that handled staff born earlier than 1 April 1950 much less favourably than these born after that date. When Mr Gondert retired in 2014, he was entitled to 3 annuity funds as an alternative of 5, representing a lack of at the least GBP 552,000.
In 2014, Mr Gondert sued earlier than the Frankfurt Regional Courtroom, which dominated in his favour. In 2016, nevertheless, the Frankfurt Courtroom of Attraction put aside that judgment. It held that the age-related distinction in remedy was justified beneath Directive 2000/78/EC. The Directive accepts the pursuit of social-policy goals as a respectable foundation for various remedy on grounds of age, and the Courtroom of Attraction thought of that this justification may prolong to managerial choices shaping an LLP pension scheme. It additionally thought of the measure proportionate: the scheme supplied for a transitional association beneath which retirees born earlier than Might 1946 had no entitlement to annuity funds in any respect, and the Courtroom of Attraction held that the revised scheme struck a good stability between limiting total bills and defending the respectable expectations of companions.
After the Courtroom of Attraction refused go away to enchantment on factors of regulation, Mr Gondert complained to the Federal Courtroom of Justice. He additionally requested the courtroom to request a preliminary ruling from the CJEU beneath Article 267 TFEU, formulating 4 questions on the interpretation of Directive 2000/78/EC.
The Federal Courtroom of Justice refused go away to enchantment. Its reasoning relied primarily on the German Code of Civil Process. Though it said, generally phrases, that there was no obligation to refer the matter to the CJEU beneath Article 267(3) TFEU, it didn’t have interaction with the factors laid down in CILFIT, which permit a courtroom of final occasion to chorus from making a reference solely in restricted circumstances: the place the query is irrelevant; the place the CJEU has already answered it (acte éclairé); or the place the reply is so apparent as to depart no affordable doubt (acte clair).
An extra try and get hold of reduction from the Federal Constitutional Courtroom additionally failed. On 21 February 2021, the courtroom refused to confess the constitutional grievance with out giving causes.
The ECtHR on Refusals to Refer
The ECtHR reiterated, in step with its established case regulation, that the Conference doesn’t assure a proper to a preliminary reference to the CJEU.
The central holding of the judgment was the reaffirmation that, the place a courtroom in opposition to whose choices there isn’t any judicial treatment beneath nationwide regulation refuses a celebration’s request for a preliminary reference to the CJEU, it should give causes for that refusal. These causes should be assessed within the mild of the exceptions recognised by CJEU case regulation, first articulated in CILFIT.
The ECtHR additionally harassed that the requirement shouldn’t be interpreted in a very formalistic approach. Specifically:
A selected and specific reply is required just for submissions which are decisive for the end result of the proceedings (para. 36, just about earlier jurisprudence).
Causes could also be inferred from the courtroom’s total reasoning, from a reference to earlier case regulation, or from an endorsement of the decrease courtroom’s causes, supplied that the decrease courtroom addressed the CILFIT standards (para. 38, just about earlier jurisprudence).
A courtroom needn’t deal with a request for a reference the place the preliminary query couldn’t have affected the conclusion that the enchantment was inadmissible (para. 39, just about earlier jurisprudence).
Outdoors these conditions, the ECtHR thought of it vital at the least to point which CILFIT criterion justified the refusal. In Mr Gondert’s case, the Federal Courtroom of Justice’s choice of 9 October 2018 didn’t achieve this: not one of the CILFIT standards was addressed. The ECtHR due to this fact discovered a violation of Article 6(1) ECHR.
The fabric compensation was largely symbolic. The Courtroom unanimously discovered a violation of Article 6(1) and awarded EUR 3,000 in non-pecuniary harm and EUR 2,000 for prices and bills.
A Cautious Intervention
Gondert continues a line of ECtHR jurisprudence starting with Ullens de Schooten and Rezabek v. Belgium (nos. 3989/07 and 38353/07, 2011) and adopted by, amongst others, Dhahbi v. Italy (no. 17120/09, 2014), Schipani and Others v. Italy (no. 38369/09, 2015), Baydar v. the Netherlands (no. 55385/14, 2018), Harisch v. Germany (no. 50053/16, 2019), and Sanofi Pasteur v. France (no. 25137/16, 2020). A lot of what seems in Gondert can already be present in Ullens de Schooten.
The ECtHR stays cautious to not intrude instantly with the EU judicial system, but it continues to exert affect on the level the place nationwide process and EU regulation meet. There, Article 6(1) ECHR supplies a lever in opposition to arbitrariness by requiring that refusals to refer be reasoned in a approach that permits events to know why their request has been rejected.
One notable characteristic of Gondert is its express engagement with latest CJEU case regulation. In Consorzio Italian Administration (6 October 2021, C-561/19, EU:C:2021:799), the CJEU affirmed with explicit readability {that a} refusal to refer should be reasoned and, for the primary time, linked that responsibility to Article 47(2) of the Constitution of Basic Rights. This situates the responsibility to state causes extra squarely in a fundamental-rights context and, on the similar time, creates a clearer level of contact with Strasbourg evaluate.
The CJEU additional clarified issues in Kubera (15 October 2024, C-144/23, EU:C:2024:881, para. 65), explicitly extending the responsibility to offer causes to leave-to-appeal “filter” choices and resolving uncertainties about which our bodies qualify as courts of final occasion. Kubera additionally underlined that the responsibility can’t be circumvented by counting on nationwide provisions that enable abstract reasoning under the extent required by the CILFIT standards.
By referring expressly to those Luxembourg developments, Gondert provides substance to the often invoked Strasbourg-Luxembourg “dialogue”.
Unresolved Tensions
Regardless of the welcome reaffirmation of the necessity to give causes at a delicate junction between nationwide and EU adjudication, Gondert additionally exposes persistent weaknesses within the European judicial structure, significantly concerning the activation of the preliminary-ruling process.
To start with, the ECtHR’s account of why causes are required is narrowly framed. The Courtroom emphasised {that a} reasoned choice protects people in opposition to arbitrariness by exhibiting that they’ve been heard, that their submissions have been answered, and that they will perceive the choice. This framing is noticeably deferential to nationwide courts of final occasion and centres on reassuring the events that the process was honest (Gondert, para. 42).
In that context, the judgment additionally says little concerning the position of causes in enabling efficient evaluate. Admittedly, on this particular setting, there may be often no treatment in opposition to a refusal to refer, except for the opportunity of state-liability actions, which (as expertise thus far suggests) stay extra theoretical than sensible (Ö. Dür, Vorlagepflicht und Staatshaftung, 2026).
Extra problematic is the Courtroom’s silence on the disciplining operate of causes for judges themselves. The responsibility to offer causes doesn’t merely reassure events; it additionally compels courts to strategy the query of a reference transparently, systematically, and with real engagement (Heselhaus in Heselhaus/Nowak, Handbuch der europäischen Grundrechte, 2020, p. 1482 para. 74).
This total impression is bolstered by the ECtHR’s statement (para. 44) the place it “acknowledges […] the pressure which excessive case numbers placed on supreme courts and the challenges of balancing the necessity to pace up proceedings”. The judgment doesn’t acknowledge, nevertheless, that preliminary references can themselves cut back the variety of contentious proceedings by clarifying EU regulation authoritatively and stopping repeated litigation.
In the identical passage, the ECtHR locations explicit weight on causes as a software to assist events “perceive” and extra readily “settle for” the choice. This emphasis invitations reflection concerning the legitimacy drawback of the Courtroom itself, particularly given the Courtroom’s very low admissibility fee (generally reported to be under 5%), which raises broader questions on how efficient the Strasbourg system could be as a world mechanism of fundamental-rights safety.
Even when one units these broader legitimacy considerations apart, the responsibility to state causes by reference to CILFIT shouldn’t be a panacea. Courts of final occasion could in future be extra cautious to quote the CILFIT components, but the factors are simple to invoke, and there’s no sturdy mechanism to confirm whether or not they’re utilized appropriately. Gondert doesn’t counsel that Strasbourg will undertake such evaluate, and state legal responsibility is unlikely to fill the hole.
Lastly, one could query what ethical authority Strasbourg has to press for better accessibility to Luxembourg whereas its personal admissibility procedures stay so restrictive. Why ought to Article 6-derived calls for for reasoned decision-making not apply, at the least in precept, to Strasbourg’s personal filtering practices?
In opposition to that background, it’s respectable to ask whether or not the European judicial system ought to develop stronger avenues to safe entry to Luxembourg, at the least in fundamental-rights instances and with out filtering mechanisms. In any other case, there’s a danger that Gondert turns into a blueprint for better-worded refusals, whereas events stay largely depending on the willingness of nationwide courts of final occasion to set off the Article 267 TFEU process.
