On 16 December 2025, the European Court of Human Rights (ECtHR) delivered its judgment in Gondert v. Germany. The ruling has been widely welcomed as a step towards strengthening the rule of law in Europe. The case raises questions that matter not only for the European Convention on Human Rights (ECHR) system, but also for the European Union (EU) legal order and the constitutional orders of the EU Member States.

At the centre of the dispute lies the duty to give reasons. This obligation is firmly recognised in Europe as a general principle of law and has gained comparable standing in many legal systems beyond Europe. Procedurally, the case concerns a party’s request for a preliminary reference under Article 267 TFEU that was not granted. While the Court of Justice of the European Union (CJEU) has developed extensive jurisprudence on Article 267 TFEU, that jurisprudence largely depends on a national court actually referring a question. When national courts refuse to refer, the refusal may be controversial, yet there is generally no direct way to bring that controversy before the CJEU.¹⁾

In such situations, an external supervisory forum may be the only avenue for reviewing whether the refusal was procedurally fair and non-arbitrary. In practice, that forum can be the European Court of Human Rights (ECtHR), operating through Article 6(1) ECHR. In the triangular relationship between EU law, the ECHR, and national legal orders, the duty to state reasons plays a catalytic role: without adequate reasons, the much-cited “dialogue between courts” cannot operate as genuine dialogue. Gondert improves matters to some extent, but it cannot by itself remedy the deeper structural weaknesses that shape how that dialogue functions.²⁾

The Road to Strasbourg

The application arose out of an age-discrimination dispute brought by the German lawyer Heinz-Günter Gondert against his former employer, a British law firm organised as a limited liability partnership (LLP). Mr Gondert (born in 1949) had been a partner in the LLP’s German office. The LLP revised its pension scheme in 2005 and again in 2008, introducing rules that treated employees born before 1 April 1950 less favourably than those born after that date. When Mr Gondert retired in 2014, he was entitled to three annuity payments instead of five, representing a loss of at least GBP 552,000.

In 2014, Mr Gondert sued before the Frankfurt Regional Court, which ruled in his favour. In 2016, however, the Frankfurt Court of Appeal set aside that judgment. It held that the age-related difference in treatment was justified under Directive 2000/78/EC. The Directive accepts the pursuit of social-policy aims as a legitimate basis for different treatment on grounds of age, and the Court of Appeal considered that this justification could extend to managerial decisions shaping an LLP pension scheme. It also considered the measure proportionate: the scheme provided for a transitional arrangement under which retirees born before May 1946 had no entitlement to annuity payments at all, and the Court of Appeal held that the revised scheme struck a fair balance between limiting overall expenses and protecting the legitimate expectations of partners.

After the Court of Appeal refused leave to appeal on points of law, Mr Gondert complained to the Federal Court of Justice. He also asked the court to request a preliminary ruling from the CJEU under Article 267 TFEU, formulating four questions on the interpretation of Directive 2000/78/EC.

The Federal Court of Justice refused leave to appeal. Its reasoning relied essentially on the German Code of Civil Procedure. Although it stated, in general terms, that there was no obligation to refer the matter to the CJEU under Article 267(3) TFEU, it did not engage with the criteria laid down in CILFIT, which allow a court of last instance to refrain from making a reference only in limited circumstances: where the question is irrelevant; where the CJEU has already answered it (acte éclairé); or where the answer is so obvious as to leave no reasonable doubt (acte clair).

A further attempt to obtain relief from the Federal Constitutional Court also failed. On 21 February 2021, the court refused to admit the constitutional complaint without giving reasons.

The ECtHR on Refusals to Refer

The ECtHR reiterated, in line with its established case law, that the Convention does not guarantee a right to a preliminary reference to the CJEU.

The central holding of the judgment was the reaffirmation that, where a court against whose decisions there is no judicial remedy under national law refuses a party’s request for a preliminary reference to the CJEU, it must give reasons for that refusal. Those reasons must be assessed in the light of the exceptions recognised by CJEU case law, first articulated in CILFIT.

The ECtHR also stressed that the requirement should not be interpreted in an overly formalistic way. In particular:

• A specific and express reply is required only for submissions that are decisive for the outcome of the proceedings (para. 36, with reference to earlier jurisprudence).
• Reasons may be inferred from the court’s overall reasoning, from a reference to earlier case law, or from an endorsement of the lower court’s reasons, provided that the lower court addressed the CILFIT criteria (para. 38, with reference to earlier jurisprudence).
• A court need not address a request for a reference where the preliminary question could not have affected the conclusion that the appeal was inadmissible (para. 39, with reference to earlier jurisprudence).

Outside these situations, the ECtHR considered it necessary at least to indicate which CILFIT criterion justified the refusal. In Mr Gondert’s case, the Federal Court of Justice’s decision of 9 October 2018 did not do so: none of the CILFIT criteria was addressed. The ECtHR therefore found a violation of Article 6(1) ECHR.

The material compensation was largely symbolic. The Court unanimously found a violation of Article 6(1) and awarded EUR 3,000 in non-pecuniary damage and EUR 2,000 for costs and expenses.

A Cautious Intervention

Gondert continues a line of ECtHR jurisprudence beginning with Ullens de Schooten and Rezabek v. Belgium (nos. 3989/07 and 38353/07, 2011) and followed by, among 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). Much of what appears in Gondert can already be found in Ullens de Schooten.

The ECtHR remains cautious not to interfere directly with the EU judicial system, yet it continues to exert influence at the point where national procedure and EU law meet. There, Article 6(1) ECHR provides a lever against arbitrariness by requiring that refusals to refer be reasoned in a way that allows parties to understand why their request has been rejected.

One notable feature of Gondert is its explicit engagement with recent CJEU case law. In Consorzio Italian Management (6 October 2021, C-561/19, EU:C:2021:799), the CJEU affirmed with particular clarity that a refusal to refer must be reasoned and, for the first time, linked that duty to Article 47(2) of the Charter of Fundamental Rights. This situates the duty to state reasons more squarely in a fundamental-rights context and, at the same time, creates a clearer point of contact with Strasbourg review.

The CJEU further clarified matters in Kubera (15 October 2024, C-144/23, EU:C:2024:881, para. 65), explicitly extending the duty to give reasons to leave-to-appeal “filter” decisions and resolving uncertainties about which bodies qualify as courts of last instance. Kubera also underlined that the duty cannot be circumvented by relying on national provisions that allow summary reasoning below the level required by the CILFIT criteria.

By referring expressly to these Luxembourg developments, Gondert adds substance to the frequently invoked Strasbourg-Luxembourg “dialogue”.

Unresolved Tensions

Despite the welcome reaffirmation of the need to give reasons at a sensitive junction between national and EU adjudication, Gondert also exposes persistent weaknesses in the European judicial architecture, particularly regarding the activation of the preliminary-ruling procedure.

To begin with, the ECtHR’s account of why reasons are required is narrowly framed. The Court emphasised that a reasoned decision protects individuals against arbitrariness by showing that they have been heard, that their submissions have been answered, and that they can understand the decision. This framing is noticeably deferential to national courts of last instance and centres on reassuring the parties that the procedure was fair (Gondert, para. 42).

In that context, the judgment also says little about the role of reasons in enabling effective review. Admittedly, in this specific setting, there is usually no remedy against a refusal to refer, aside from the possibility of state-liability actions, which (as experience to date suggests) remain more theoretical than practical (Ö. Dür, Vorlagepflicht und Staatshaftung, 2026).

More problematic is the Court’s silence on the disciplining function of reasons for judges themselves. The duty to give reasons does not merely reassure parties; it also compels courts to approach the question of a reference transparently, systematically, and with genuine engagement (Heselhaus in Heselhaus/Nowak, Handbuch der europäischen Grundrechte, 2020, p. 1482 para. 74).

This overall impression is reinforced by the ECtHR’s observation (para. 44) where it “recognizes […] the strain which high case numbers put on supreme courts and the challenges of balancing the need to speed up proceedings”. The judgment does not acknowledge, however, that preliminary references can themselves reduce the number of contentious proceedings by clarifying EU law authoritatively and preventing repeated litigation.

In the same passage, the ECtHR places particular weight on reasons as a tool to help parties “understand” and more readily “accept” the decision. This emphasis invites reflection about the legitimacy problem of the Court itself, especially given the Court’s very low admissibility rate (commonly reported to be below 5%), which raises broader questions about how effective the Strasbourg system can be as an international mechanism of fundamental-rights protection.

Even if one sets these broader legitimacy concerns aside, the duty to state reasons by reference to CILFIT is not a panacea. Courts of last instance may in future be more careful to cite the CILFIT formula, yet the criteria are easy to invoke, and there is no robust mechanism to verify whether they are applied correctly. Gondert does not suggest that Strasbourg will undertake such review, and state liability is unlikely to fill the gap.

Finally, one may question what moral authority Strasbourg has to press for greater accessibility to Luxembourg while its own admissibility procedures remain so restrictive. Why should Article 6-derived demands for reasoned decision-making not apply, at least in principle, to Strasbourg’s own filtering practices?

Against that background, it is legitimate to ask whether the European judicial system should develop stronger avenues to secure access to Luxembourg, at least in fundamental-rights cases and without filtering mechanisms. Otherwise, there is a risk that Gondert becomes a blueprint for better-worded refusals, while parties remain largely dependent on the willingness of national courts of last instance to trigger the Article 267 TFEU procedure.