EU & Human Rights

ˮGrossmaniaˮ (Principles of EU law - Conflict between EU law and national law - Opinion)

[2022] EUECJ C17720_OCourt of Justice of the European Union (including the General Court)2022

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(Request for a preliminary ruling from the Győri Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Győr, Hungary))

This case presents the Court with a fundamental Cornelian dilemma in law: whether to give precedence to the principle of legality or the principle of legal certainty. The preliminary reference was submitted by the Győri Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Győr, Hungary) in the context of a decision rejecting the re-registration of the applicant’s cancelled usufruct rights over agricultural land.

I. The facts giving rise to the dispute in the main proceedings and the question referred for a preliminary ruling

By judgment of 6 March 2018, SEGRO and Horváth , (Joined Cases C‑52/16 and C‑113/16, EU:C:2018:157 ) (‘the judgment in SEGRO and Horváth ’), the Court held that Article 63 TFEU precluded national legislation, such as that at issue in the main proceedings, under which rights of usufruct which have previously been created over agricultural land and the holders of which do not have the status of close relation of the owner of the land were extinguished by operation of law and were, consequently, deleted from the property registers.

As a result, Grossmania applied to the Vas Megyei Kormányhivatal Celldömölki Járási Hivatala (Celldömölk District Registry, part of the Vas Region Administrative Department, Hungary; ‘the first-tier administrative authority’) to have its rights of usufruct over the properties in question re-registered. By decision of 17 May 2019, it rejected that request, referring in particular to Paragraph 108(1) of the 2013 Law on transitional measures.

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Judgment of 21 June 2007, Jonkman and Others (C‑231/06 to C‑233/06, EU:C:2007:373 , paragraphs 37 and 38) (‘judgment in Jonkman ’).

Judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153 , paragraph 148).

See also judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199 , paragraph 38).

Judgment of 12 February 2008, Kempter (C‑2/06, EU:C:2008:78 , paragraph 35). See case note by Simon, D., Europe, April 2008, p. 13.

Judgment of 16 January 1974, Rheinmühlen-Düsseldorf (166/73, EU:C:1974:3, paragraph 2).

Judgments of 27 March 1963, 28/62 to 30/62, EU:C:1963:6 , and of 6 October 1982, 283/81, EU:C:1982:335 .

Emphasis added ( Achmea , C‑284/16, EU:C:2018:158 , paragraph 36).

Achmea , C‑284/16, EU:C:2018:158 , paragraph 37 and case-law cited.

Judgment of 6 October 2020, La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791 , paragraphs 214 and 215).

Judgment of 3 March 2020, Tesco-Global Áruházak (C‑323/18, EU:C:2020:140, paragraph 46).

Judgment of 19 January 2010, Kücükdeveci (C‑555/07, EU:C:2010:21 , paragraphs 53 and 54).

Judgment of 16 May 2000, Preston and Others (C‑78/98, EU:C:2000:247 , paragraph 31).

Judgment of 4 December 2018, Minister for Justice and Equality and Commissioner of the Garda Síochána (C‑378/17, EU:C:2018:979 , paragraph 34).

Judgment of 11 September 2019, Călin (C‑676/17, EU:C:2019:700 , paragraph 29).

Paragraph 77 of that judgment. See, on the case-law in relation to national procedural rules, Biondi, A., The European Court of Justice and certain national procedural limitations: Not such a tough relationship , 36 CMLR, 1999, p. 1271, and Hoskins, M., Tilting the balance: Supremacy and national procedural rules , 21 European Law Review, 1996, p. 365.

Judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, ‘the judgment in XC ’, paragraph 22).

Judgment in Byankov , paragraphs 79, 81 and 82.

See judgments in Kühne & Heitz (paragraphs 25 and 26) and in Byankov (paragraph 77).

It follows from paragraph 71 of the judgment in SEGRO and Horváth that 5 058 nationals from Member States other than Hungary had their usufruct rights cancelled. This cancellation was not accompanied by any form of compensation, thus simply depriving those nationals of their property/investments.

Judgment of 5 March 1996, C‑46/93 and C‑48/93, EU:C:1996:79 , paragraphs 21, 22, 31 and 36.

Ritleng, D., Le retrait des actes administratifs contraires au droit communautaire , Bestand und Perspektiven des europäischen Verwaltungsrechts , 2008, p. 237, and Taborowski, M., op. cit., p. 1481. See also Müller, H., Die Aufhebung von Verwaltungsakten unter dem Einfluss des Europarechts , Duncker & Humblot, Berlin 2000, and Kovar, R., Le retrait des actes administratifs nationaux contraires au droit communautaire , Mél. L. Favoreu, Dalloz 2007. Moreover, in relation to the withdrawal of EU administrative acts, see Lübbig, T., Die Aufhebung (Rücknahme und Widerruf) von Verwaltungsakten der Gemeinschaftsorgane) , EuZW, 2003, p. 233.

Opinion in Kühne & Heitz (C‑453/00, EU:C:2003:350).

Opinion in Joined Cases i-21 Germany and Arcor (C‑392/04 and C‑422/04, EU:C:2006:181).

Opinion in Kempter (C‑2/06, EU:C:2007:245).

See further references in Wallerman, A., Towards an EU Law Doctrine on the Exercise of Discretion in National Courts? The Member States’ Self-Imposed Limits on National Procedural Autonomy , CMLR, 53, 2016, p. 350.

As the legal literature points out critically about that judgment, there the Court opened a Pandora’s box because, while tinkering with one of the most fundamental principles of legal certainty, that judgment lacks an understandable justification of the adopted view and spreads uncertainty with regard to the interpretation of the four Kühne & Heitz conditions. The literature also points out that that judgment causes national courts to have problems with its application (Taborowski, M., op. cit., pp. 1464, 1465 and 1469). For an attempt to fit that judgment into the frame of the principles of supremacy, effectiveness, equivalence and autonomy, see Becker, F., Application of Community Law by Member States’ Public Authorities: Between Autonomy and Effectiveness , 44 CMLR, 2007, p. 1035.

Judgments of 9 March 1978, Simmenthal (106/77, EU:C:1978:49 ); of 19 June 1990, Factortame and Others (C‑213/89, EU:C:1990:257); and of 28 June 2001, Larsy (C‑118/00, EU:C:2001:368 ).

See, generally, on these topics Ruffert, M., The Stability of Administrative Decisions in the Light of EC Law: Refining the Case Law , Review of European Administrative Law, Vol. 1, No 2, 2008, pp. 127-135.

See, in support of the same view, inter alia Ginter, C., and Schasmin, P., Options Arising from European Union Law to Review Final Judgments and Administrative Decisions: Implications for Future Developments? , available at researchgate.net, p. 157.

Tridimas, T., General Principles of EU Law , OUP, 2006, p. 528.

This view is also defended by Groussot, X., and Minssen, T., Res Judicata in the Court of Justice Case-Law: Balancing Legal Certainty with Legality?, European Constitutional Law Review, 3, p. 401.

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