The Importance of EU Law for Defence Strategy in Domestic Criminal Trials

CJEU judgment on preliminary references and EU law in domestic criminal defence

As European criminal defence lawyers, we have witnessed in recent years the significant influence of EU law on criminal trials at national level. The Court of Justice of the European Union is increasingly ruling on matters within the Area of Freedom, Security and Justice, while EU legislation has already been introducing new rules, including in the field of criminal law.

A Decision That Changes the Defence Perspective

From the Grand Chamber’s decision of Tuesday, 24 March 2026, it becomes clear that criminal defence lawyers must not only take notice of EU law passively and substantively. We believe that this decision in Case C-767/23 shows that, in future, it will become increasingly important for criminal defence lawyers also to engage with EU law actively, from a procedural perspective.

Why This Matters

Why is that? In this decision (ECLI:EU:C:2026:243), the Court of Justice ruled that where preliminary questions on the interpretation or validity of provisions of EU law are requested, a judge who must decide on that request, and against whose decision no judicial remedy under national law is available, cannot remain silent on such a request. The question was raised by the highest court in administrative proceedings in the Netherlands, asking whether it is possible to rule “in a summary manner” on such requests. In short, the answer is no. When rejecting a request for preliminary questions to be referred to the Court of Justice of the European Union, the highest national court must set out at least “the specific and concrete reasons why one of the three exceptions to the obligation to make a reference for a preliminary ruling applies in that case”.

The Relevance for Domestic Criminal Trials

Why is that important for domestic criminal trials? We observe that supreme courts across Europe are not only reluctant to make preliminary references, but are also reluctant to provide comprehensive decisions setting out the specific and concrete reasons why convictions are upheld, even where defence counsel has pointed out, in equally specific and concrete terms, why a conviction should be overturned.

Efficiency Cannot Override the Rule of Law

Of course, we understand the desire, and at times the pressing need, for efficiency. But especially where the stakes are high — such as long custodial sentences and financial measures — and where the subject matter is complex — such as digital evidence, cryptocurrencies, and international law — efficiency cannot outweigh the rule of law and, for us as lawyers, the interests of the individuals involved.

Our role as Criminal Defence Lawyers specialising in EU Law

That is why we warmly welcome this decision, and why we will act accordingly in our defence of individuals whose fundamental rights may be at stake.