Reference to the case law of the EU Court of Justice in the Supreme Court's decisions is a kind of ‘inoculation’ of Ukrainian judicial practice with European law - SC GC Judge

In its judgments, the Supreme Court makes measured, gradual and cautious references to the case law of the Court of Justice of the European Union, which is an element of the adaptation of the Ukrainian legal system to European approaches. This was stated by Judge-Rapporteur of the Grand Chamber of the Supreme Court Kostiantyn Pilkov during the panel discussion ‘Ukraine - European Union: Challenges of the Negotiation Process’ at the VIII Kharkiv International Legal Forum, organised by the Yaroslav Mudryi National Law University.

According to the speaker, in 2016-2018, Ukrainian courts of administrative jurisdiction developed an approach according to which legal positions formulated in the judgments of the EU Court of Justice may be taken into account by administrative courts as part of their arguments. Not as an independent source of law, but as a factor in the interpretation of national legislation in the light of European values and approaches.

This position has evolved in the practice of the Supreme Court. Today, we can distinguish at least three categories of cases in which the Supreme Court has already referred to the case law of the EU Court of Justice: cases related to the energy sector; cases on state aid; and cases on the protection of intellectual property rights.

For example, in the electricity market, the Grand Chamber of the Supreme Court, in its resolution of 3 August 2022 in case No. 910/9627/20 on the claim of DTEK Zakhidenergo JSC against NPC Ukrenergo (https://supreme.court.gov.ua/supreme/pres-centr/news/1315229/), for the first time formulated a position in which it referred to the judgment of the EU Court of Justice as a source of law in the same way as courts refer to judgments of the European Court of Human Rights.

"In the judgments of the Supreme Court in state aid cases, one can see particularly cautious references to the case law of the EU Court of Justice. The Supreme Court remains very moderate on this issue, in order to avoid a situation where certain conclusions on the application of the law are established, which will certainly need to be adjusted once Ukraine is obliged to take this practice into account in all areas," Mr. Pilkov explained.

The third category of cases is illustrated by the resolution of the Grand Chamber of the Supreme Court of 17 April 2024 in case No. 910/13988/20 on the claim of the Darnytsia Pharmaceutical Company against Lubnyfarm JSC(https://supreme.court.gov.ua/supreme/pres-centr/news/1606302/). The case concerned the recognition of a trademark as well-known. In it, the SC GC obiter dictum referred to the case law of the EU Court of Justice to show that a certain approach, which may seem somewhat unusual for national practice (namely, that two entities may use trademarks for goods and services that will have the same designation), is perceived as normal practice, in particular in Europe.

The judge warned that the above practice (except for the resolution of the SC GC of 3 August 2022 in case No. 910/9627/20) is not a full application of EU law, but only an example of a reference to the decision of the EU Court of Justice.

The panel discussion can be viewed here - https://www.youtube.com/live/IDyCPmYHw6k.