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When Are National Courts Obliged to Refer Questions?

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WHEN ARE NATIONAL COURTS OBLIGED TO REFER QUESTIONS?


1. The Right to Refer and the Obligation to Refer


According to the wording of Article 267(2) TFEU, a national court is free to decide whether or not to make a reference regarding the matters listed in Article 267(1). As an exception to that rule, Article 267(3), however, provides that:



Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.


In other words, a national court whose decision cannot be appealed against (a court of last instance) is obligated to make a reference for a preliminary ruling if the main proceedings give rise to a question about the interpretation or validity of EU law. This simple classification must be qualified on several points, however. Thus, a national court whose decisions are not subject to appeal is certainly not always required to make a reference for a preliminary ruling on EU law questions. Conversely, there are situations where national courts are required to make a reference, even if their decisions can be appealed against.


In this chapter we shall clarify when a national court has a duty to make a reference for a preliminary ruling. Section 2 analyses when a national court is regarded as being a court of last instance, as laid down in Article 267(3). Section 3 sets out when a court of last instance is exempt from the obligation to make a reference. Section 4 examines when national courts, other than those of last instance, have a duty to make a reference. Finally, section 5 considers the legal consequences of a national court failing to comply with its obligation to make a reference.


2. National Courts Covered by Article 267(3)


The wording ‘a court or tribunal of a Member State against whose decisions there is no judicial remedy’ in Article 267(3) expresses an EU law concept. In the early years following the entry into force of the EC Treaty, several writers supported an institutional approach to this concept normally referred to as the theory of ‘abstract appealability’. According to this theory, only the highest courts in the national legal systems were under an obligation to make a reference under Article 267(3). In support of this it was argued that the purpose of that provision was only to ensure that there were not diverging interpretations of EU law within the individual Member States, and that it was principally the highest national courts which laid down—and ensured—a uniform interpretation of the law.1 In opposition to the theory of abstract appealability other legal writers argued for a functional approach known as the theory of ‘concrete appealability’. According to this theory, what mattered was whether there was a right of appeal in the actual case in question. The proponents of the theory of concrete appealability were of the view that Article 267(3) should not only ensure, in a general manner, the uniform interpretation of EU law in the individual Member States, but also the legal protection of the rights of individuals under EU law. This protection required there to be an obligation to make a reference for a preliminary ruling in all cases where there was no right of appeal.2


The Court of Justice has chosen to follow the theory of concrete appealability.3 Indeed, this approach better ensures both the legal protection of individual citizens and the uniform application of EU law than would the theory of abstract appealability, had the Court adopted this approach instead.4 Hence, it is not difficult to imagine a situation where in different lower national courts, in cases without a right of appeal, ambiguity would arise in respect of an EU law question and where the national courts would answer this question differently if there were no obligation to make a reference for a preliminary ruling.


In Costa v ENEL, the Italian lawyer, Costa, had refused to pay the Italian electricity supply company ENEL for supplies of electricity for an amount of less than 2,000 Italian lire. Costa had brought the case before the Giudice Conciliatore in Milan. The small amount of the money at issue meant that it would not be possible to appeal to a higher national court against the decision of the lower national court. The Giudice Conciliatore referred a number of preliminary questions to the Court of Justice. The Court of Justice held that under what is now Article 267 TFEU, national courts whose decisions could not be appealed against must refer questions concerning interpretation of the EC Treaty to the Court of Justice.5


In Parfums Christian Dior, the Hoge Raad of the Netherlands (the Dutch Supreme Court) referred a question concerning the interpretation of the Trade Marks Directive to the Court of Justice for a preliminary ruling. In its first question the Hoge Raad requested clarification about which national court should be regarded as the court of last instance for the purposes of Article 267(3), where in connection with the interpretation of the Uniform Benelux Law on Trade Marks a question arose concerning the interpretation of the Trade Marks Directive. The Benelux countries had adopted common trade mark legislation which was authoritatively interpreted by references to the Benelux Court of Justice. In the case in question, according to the Uniform Benelux Law on Trade Marks, the Hoge Raad was required to refer a question for a preliminary ruling to the Benelux Court of Justice, which would be the court of last instance in relation to the question referred to it. However, it was the Hoge Raad which would make the decision as the court of last instance in the main proceedings. Thus, the question was whether the Hoge Raad itself or the Benelux Court was the court of last instance for the purposes of Article 267(3). In answering the question, the Court of Justice stated that the aim of Article 267(3) is to prevent a Member State developing a judicial practice which is not in accordance with EU law. Since the Benelux Court decided on the interpretation of the Uniform Benelux Law on Trade Marks without there being a right of appeal, and since the decision of the Hoge Raad could not be appealed against according to national law, both the Hoge Raad and the Benelux Court were covered by the obligation to refer the question to the Court of Justice for a preliminary ruling according to Article 267(3).6


Due to the autonomous EU law concept of what constitutes a court for the purposes of Article 267, there might be instances where a body which, under national law, does not qualify as a court nevertheless constitutes a court of last instance under Article 267(3).


In Austria, decisions by the national regulatory telecoms authority may be appealed to the Telekom-Control-Kommission (Telecoms Control Commission). Whilst this body does not constitute a court within the Austrian legal system, but only a board with judicial functions, it does qualify as a court within Article 267. Moreover, there is no right of appeal to a higher review body meaning that the Telecoms Control Commission acts as a court of last instance.7


What is decisive for the classification as a court of last instance is whether it is possible to refer any EU law questions to the Court of Justice for a preliminary ruling after the national court in question has issued its decision. Moreover, the national court that is to hear the appealed decision must have the power to overturn those parts of the decision which a preliminary ruling may show to be incompatible with EU law. On the other hand, there is no requirement that the appeal shall have suspensory effect,8 neither does it seem to be a requirement that there can be a new material examination of the main proceedings before the national court.


In Lyckeskog, Kenny Lyckeskog had been found guilty of attempted smuggling by the Strömstad District Court. The case was appealed to the Court of Appeal for Western Sweden. From the Court of Appeal the case could be appealed to the Swedish Supreme Court. If such an appeal was brought by the prosecution, it would always be heard, whereas in other cases the Supreme Court had to give leave to appeal before the case could be heard. The case involved a question of EU law, and the Swedish Court of Appeal therefore asked the Court of Justice whether it was covered by Article 267(3). The Court of Justice found that the Court of Appeal was not the court of last instance. This finding was based upon the observation that it was possible to bring an appeal to the Supreme Court, and if in this connection a question was raised about the interpretation or validity of an EU rule, the Supreme Court would be required to refer the question for a preliminary ruling in accordance with Article 267(3). Thus, since the Supreme Court would be obliged to refer a question of EU law for a preliminary ruling when considering whether to grant leave to appeal, the Court of Appeal did not qualify as a court of last instance. However, under EU law the Supreme Court would presumably only be entitled to make a reference if this were made in connection with the resolution of a dispute. The Court of Justice therefore must have regarded the processing of a request to the Supreme Court for leave to appeal as a first integrated step in the dispute settlement which the appeal would comprise.9


Where a decision by a lower national court may be appealed to a superior court which may rule on the law whilst referring the case back to the lower court for a (new) appraisal of the facts, the question arises which of these courts will be considered a court of last instance covered by Article 267(3).


In Elchinov a lower Bulgarian court had made a ruling in a dispute between Mr Elchinov and the national social security fund. This ruling was appealed to the Supreme Administrative Court which set aside the lower court’s ruling as to the law and referred the case back to a different chamber of the lower court. It appears from the case that under Bulgarian law the Supreme Administrative Court had finally settled the questions regarding the law so that the lower court was restricted to only consider the facts and that even if the new ruling by the lower Bulgarian court were appealed to the Supreme Administrative Court, this appeal could only be on the facts since the law had been finally settled. The lower court, however, made a preliminary reference, asking inter alia essentially whether under national law it could be precluded from making a preliminary reference in these circumstances. In answering, the Court of Justice ruled that EU law ‘precludes a national court which is called upon to decide a case referred back to it by a higher court hearing an appeal from being bound, in accordance with national procedural law, by legal rulings of the higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those rulings are inconsistent with European Union law’.10


It follows from the Elchinov ruling that, under EU law, the Supreme Administrative Court did not qualify as a court of last instance, since the lower court, to whom the main action was referred back, was entitled to make a preliminary reference.


If the ruling of a national court may be appealed to a superior court, but this superior court is restricted in its examination of the case, the lower court will be a court of last instance to the extent that the case gives rise to questions of EU law that the superior court is precluded from examining as part of the appeal.


In Jozef Križan an appeal had been made from the Slovak Supreme Court to the Slovak Constitutional Court. The latter had overturned the Supreme Court’s ruling and had referred the case back to the Supreme Court. When the Supreme Court thereupon decided to make a preliminary reference to the Court of Justice it was argued that the Supreme Court was bound by the Constitutional Court’s ruling so that the former did not have competence to make the preliminary reference. Consequently, it was argued that the Court of Justice should dismiss the preliminary reference. The Court of Justice, however, rejected this argument. It held that not only does Article 267 give national courts the widest discretion in referring matters to the Court of Justice if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case. It also observed that in the actual case the Slovak Supreme Court was even required to submit a request for a preliminary ruling to the Court of Justice when it found that the substance of the dispute concerned a question to be resolved which came within the scope of Article 267(1). In this respect the Court of Justice observed that the possibility of bringing before the Slovak Constitutional Court an action against the decisions of the Slovak Supreme Court was limited to an examination of a potential infringement of the rights and freedoms guaranteed by the national constitution or by an international agreement. Such examination would not be sufficient to allow the Slovak Supreme Court to escape the obligation to refer as laid down in Article 267(3).11


Whether a Member State has an adversarial or an inquisitorial legal system does not affect the obligation contained in the third paragraph of Article 267.12


As a general rule, a national court has an obligation to make a reference where the party who does not receive full support for his claims does not have a right to legal review of the decision of the case in question. In contrast, if a party receives the support of the national court in relation to his claims, it does not matter whether or not the national court agrees with that party’s legal argument(s) based upon EU law. It is thus irrelevant whether a successful party agrees or disagrees with the grounds for the decision of the national court.13


Whether any subsequent examination of a decision of a national court is by means of an appeal to a higher national court or otherwise is immaterial. The crucial test is whether the losing party has a right to a legal review of the decision, thereby ensuring the possibility of a reference for a preliminary ruling.


In Hoffmann-La Roche, an undertaking had brought a case before a German court with a request that an interim order be given in interlocutory proceedings against another undertaking’s use of a trade mark. The case was dealt with by summary proceedings. The referring national court’s decision could not in itself be appealed. However, the losing party could require the matter to be determined in subsequent full proceedings in accordance with the usual rules of civil procedure. The Court of Justice held that a national court adopting a summary decision on interim measures was not covered by Article 267(3), where the legal question thus decided could subsequently be tried in an ordinary main action.14


A national appeal court which deals with the refusal of a lower national court to make a reference for a preliminary ruling does not necessarily constitute a court of last instance, even if the decision of the appeal court on whether to make a reference cannot be appealed to an even higher national court. Thus, the appeal court will not be the last instance if there is a subsequent possibility to appeal against the judgment of the lower national court in the main proceedings, and if in connection with the examination of this appeal there can be a reference for a preliminary ruling.15


There may also be situations where a court of last instance refuses to make a preliminary reference, and where this refusal can be appealed to a superior court. Even if the refusal to make a preliminary reference may be appealed to a superior court, the lower court will still be the court of last instance within the meaning of Article 267 if the main action continues to rest with the latter court and if the ultimate ruling of this court cannot be the subject of an appeal.16


A national court does not constitute a court of last instance if an appeal can only be made after leave to appeal has been granted but where the body which must grant leave to appeal is obliged to do this. In this situation the application for leave to appeal is merely a formality. Nor will a national court be regarded as a court of last instance if there is a right to seek leave to appeal, and the body granting this leave fulfils the criteria for being a national court with a right to make a reference under Article 267. Here it is necessary to make a closer examination of the role of each such body.


Presumably, two situations are likely to be particularly relevant. First, there are cases where an application for leave to appeal is brought directly before the national appeal court, and where the first step in the appeal process consists of an evaluation of whether the case should be accepted for a full hearing. In this case the appeal court will be entitled to make a reference for a preliminary ruling, and hence the lower court will not constitute a court of last instance for the purposes of Article 267(3).17 Second, there may also be cases where the body considering an application for leave to appeal does not decide on the dispute in question, but merely assesses, on the basis of a discretionary evaluation, whether the case gives rise to such issues of principle that leave to appeal to a higher court should be granted. In this situation the body deciding whether to grant leave to appeal will not itself be entitled to make a reference, and hence the lower court will constitute a court of last instance for the purposes of Article 267(3). Moreover, if leave to appeal is granted in the latter situation, the court hearing the appeal will (also) be a court of last instance with a duty to refer. In other words, both the court rendering the ruling that is subject to appeal and the court hearing the appeal will be courts of last instance within the meaning of Article 267(3).


This may be compared with the ruling by the Polish Supreme Court in S˛ad Najwyz·szy. Here the Supreme Court held that a Polish Court of Appeal would not be a court of last instance within the meaning of Article 267(3) when it is possible to make an extraordinary appeal in cassation from the Polish Court of Appeal to the Polish Supreme Court. Provided the losing party (or parties) has a right to make such appeal and provided the Polish Supreme Court cannot on a discretionary basis refuse to hear the case, this interpretation is in line with the one submitted here.18


The condition that there must be access to appeal can be fulfilled even though the appeal procedure differs according to which party loses the case.19 What matters is whether the losing party can appeal. Conversely it must be assumed that it will not be sufficient if the right of appeal is only granted to a third party, or if one of the parties does not have a right of appeal in cases where this party does not receive full support for its claims.


In Lyckeskog, referred to earlier, the prosecution authorities had an unconditional right of appeal, whereas the accused did not have the same right. Since the accused had been found guilty in the lower national court, the Court of Justice found it necessary to look closely at his right of appeal in order to determine whether the situation was covered by Article 267(3). In other words, the Court of Justice did not find it sufficient that the prosecution authorities had an unconditional right of appeal in cases where the lower national court had not supported their claim.20


The fact that there is a possibility of an extraordinary reopening of the case—for example by a review board—does not mean that a national court of last instance is no longer a court of last instance for the purposes of Article 267.21 The losing party has no guarantee that the case will be reopened. On the other hand, the fact that an appeal can only be made on a point of law22 does not in itself mean that the court handing down the decision that is subject to such limited appeal is a court of last instance.23


Finally, in some circumstances it is not clear from the outset whether it will be possible to appeal the judgment that will be given; this is the position, for example, where access to appeal depends on the decision which the national court will take. One such situation where this will be the case is where a decision has been appealed to a national superior court and that court must choose between either finally deciding the case, meaning that a reference will not be possible following its decision, or referring the case back for a retrial by the lower national court or by another lower court of similar rank in the judicial hierarchy, meaning that it will be possible to make a preliminary ruling after the superior court’s decision to refer for a retrial.24 In the latter situation the superior national court will not be a court of last instance. In contrast, if, in dealing with the appeal, the superior national court makes a final decision on the EU law question in dispute, it will be considered the court of last instance. In other words, in this situation the superior national court will be covered by Article 267(3) if following its decision it will not be possible to try the EU law question, either in connection with the lower national court’s retrial of the case or in any subsequent appeal of the lower national court’s judgment.


3. Exceptions to the Obligation to Refer


According to its wording, Article 267(3) requires all national courts of last instance to refer questions for preliminary rulings in all situations where a case gives rise to a question of the interpretation or validity of EU law. However, the obligation to make such a reference must be understood in the light of the purpose behind Article 267, which is to ensure the uniform and correct application of EU law by the national courts.25 This has considerable importance, not least today where EU law covers so many areas that there would inevitably be an excessively large number of cases referred if every court of last instance were to make a reference every time it was faced with a case that contained elements of EU law.


Section 3.1 herein examines the situations in which EU law questions are not relevant to the decision on the main proceedings. Next, section 3.2 considers the situation where the same case is dealt with by more than one ‘court of last instance’. Section 3.3 reviews so-called acte éclairé situations, meaning situations where in other cases the Court of Justice has already made a decision on the question. Section 3.4 analyses acte clair situations, namely situations where the question for interpretation has not previously been put before the Court of Justice, but where there is no real doubt about the proper interpretation of EU law. In section 3.5 the various possibilities for making preliminary references which are not based on Article 267 are considered. Section 3.6 examines the obligation to refer where the national court makes a decision on interim measures. Finally, Section 3.7 analyses the question of the obligation of the court of last instance to refer when EU law is applied outside its formal scope of application.


3.1. The Question Is Not Relevant


A national court of last instance within the meaning of Article 267(3) does not have a duty to refer a question on the interpretation of EU law to the Court of Justice if the ruling of the Court would have no bearing on the final decision in the main proceedings.26 As explained in Chapter 5, sections 2 and 4 herein, all national courts are precluded from making a reference if the question is not relevant.


In an employment case before the Danish Supreme Court the question of the application of s 2 in the Danish Act on an Employer’s Obligation to Inform Employees of the Conditions Applicable to the Employment Relationship was brought up. The Danish Supreme Court found that this provision would have to be construed in the light of Article 2 of Directive 91/533. However, based on the evidence of the case the Supreme Court found that s 2 of the Danish Act did not apply in the actual case, and so there was no basis for making a preliminary reference to the Court of Justice.27


Moreover, a national court of last instance will not be required to make a reference for a preliminary ruling if it decides the main proceedings without drawing on EU law. This situation may arise where national procedural rules mean that the matter that gives rise to a problem in EU law cannot be judged, for example, because a claim under EU law is brought after the expiry of the period of limitation laid down in national law. Likewise, a national court of last instance can refrain from making a reference if, on the basis of national law, it arrives at a result that makes an otherwise relevant EU law provision obsolete for the resolution of the dispute.28


Under EU law, where the solution to a dispute before a national court raises issues of EU law, the national court must, as far as possible, take account of the relevant EU rules even if the parties do not invoke these rules in support of their claims.29 On the other hand, as a main rule EU law does not preclude a party from choosing not to introduce a claim based on EU law during national proceedings, even if this may mean that this party will lose (parts of) the case. The consequence of this is that the national court will not be given the possibility of considering what may otherwise have been an important EU issue—and thus it will not be possible to make a preliminary reference on the matter. Likewise, in cases other than criminal procedures, as a rule, EU law does not prevent a party from concurring with his opponent’s claim even if he could have raised a counter argument based on EU law but chooses not to do so.30 Normally there is therefore nothing to prevent one or both parties from presenting a case which might otherwise be thought to prompt questions of EU law in such a way that the national court does not have to decide on such questions.31 In these situations the lack of relevant EU law to interpret implies that the obligation to refer laid down in Article 267(3) is not triggered even if the national court would otherwise have been obliged to make a reference to the Court of Justice.


3.2. More Courts Handling the Case Qualify as ‘Court of Last Instance’


In section 2 herein it was pointed out that in rare situations a case can be handled by two (or more) courts that both qualify as ‘a court of last instance’. In these situations both courts remain under an obligation to make a preliminary reference even if they can both show that another ‘court of last instance’ is also involved in the same main proceedings.


Thus, if in a trademark case a court from a Benelux country qualifying as a court of last instance makes a reference to the Benelux Court, neither of these two courts of last instance can invoke the other court’s involvement to show that it is not a court of last instance under Article 267(3).32


3.3. Acte Éclairé—a Materially Identical Question Has Already Been the Subject of a Preliminary Ruling


Article 267 is intended to ensure the uniform application of EU law in all Member States. Even if, formally, a preliminary ruling is only addressed to the referring national court, such a ruling authoritatively establishes the correct interpretation of EU law.33 If another national court is faced with a similar question, then that other court may therefore base its decision on the answer which the Court of Justice has already given to the corresponding question. In such a situation, a national court of last instance is thus allowed, but not obliged, to make a reference.34


In Da Costa, a Dutch court of last instance referred a question which was materially identical to a question which had already been the subject of a preliminary ruling in a similar case. The Court of Justice held that albeit the reference was from a court of last instance, in this situation the national court was not obliged to make a reference of the question asked. On the other hand the national court could make the reference under Article 267 even though, on the face of it, the previous judgment seemed to have made a final settlement of the question. The Court of Justice therefore gave a preliminary ruling.35


Even where a previously referred question and a question which a national court of last instance is considering referring are not identical, the answer to the earlier question can mean that the law has been so unambiguously explained that there is no obligation to make a reference under Article 267(3). What is decisive is whether Article 267’s underlying aim of ensuring uniform application of EU law would be put at risk if a reference were not made.36


The German Bundesfinanzhofs judgment of 11 June 1997 provides an example of an inexpedient application of the acte éclairé doctrine. One of the questions that arose in the case was whether private schools were engaged in the provision of services within the meaning of what is now Article 56 of the Treaty on the Functioning of the European Union. In this connection the Bundesfinanzhof relied upon the ruling by the Court of Justice in Humbel.37 This ruling, however, concerned school fees regarding education provided by the State and thus did not provide an answer for the actual case before the Bundesfinanzhof.38 Indeed, subsequently the Court of Justice ruled on the same question and reached a conclusion which conflicted with the earlier one by the Bundesfinanzhof.39


In Sweden the Regeringsrätten (Supreme Administrative Court) in a ruling of 26 October 2004 assessed whether an administrative decision of the Swedish authorities to prohibit a company from engaging in offering gambling services was compatible with EU law. The Regeringsrätten found that on the face of it the prohibition was difficult to reconcile with the applicable Treaty provisions on free movement. Nevertheless, taking into account the practice of the Court of Justice in the field, the Regeringsrätten concluded that the prohibition did not conflict with EU law. This approach to the acte éclairé doctrine appears somewhat liberal, not least taking into consideration that in later cases in the same field the Court of Justice not only received a host of observations from a large number of Member States, but also heard the cases in the Grand Chamber.40


A precedent from the General Court of the European Union can also be included in the assessment as to whether an acte éclairé situation exists, though generally judgments from this court do not carry the same weight as a decision of the Court of Justice.


Atlanta concerned a national court’s decision on interim measures in a situation where it had doubts about the validity of an EU legal act. The Court of Justice held that such interim measures must be rejected, not only in cases where in its previous practice the Court of Justice had denied that there was doubt about such validity, but also in cases where the General Court, in a judgment which had become final and binding, had dismissed a plea of illegality on the merits.41


A decision of the General Court can also show that a reference is relevant. This might, for example, be the case where a decision of the General Court casts doubt upon the correctness of an earlier interpretation given by the Court of Justice.


3.4. Acte Clair—the Correct Application Leaves No Scope for any Reasonable Doubt


3.4.1. The CILFIT criteria

It is hardly surprising that the Court of Justice has established that a court of last instance is relieved from the obligation to make a reference for a preliminary ruling where the answer would not be relevant to the decision in the main proceedings. It is correspondingly easy to acknowledge that the Court of Justice has accepted that there is no obligation to make a reference where the law has been unambiguously established in previous decisions. In other words, the first and the second of the abovementioned exceptions for courts of last instance to refer arguably do not involve any substantial risk that national courts will apply EU law inconsistently. It is, however, more problematic to allow courts of last instance to refrain from making a reference for a preliminary ruling where a decision on the main proceedings requires an interpretation of EU law and the Court of Justice has not ruled on the issue. This entails a risk of different national courts, including supreme courts, coming to mutually conflicting conclusions. Furthermore, there will be a risk that the right to refrain from making a reference will be abused by national courts that wish to exclude the Court of Justice when they decide certain cases.42


That said, it regularly happens that a provision of EU law is so unambiguous that there can be no real doubt about its correct interpretation. In such a situation it would be inappropriate to require a reference to be made for a preliminary ruling. As explained above, the aim of Article 267(3) is to ensure the uniform and correct application of EU law by the national courts and to prevent a body of national case law that is not in accordance with the rules of EU law from coming into existence in any Member State. This aim does not require a court of last instance to make a reference in cases where there is no real risk of an incorrect interpretation of EU law. Furthermore, an unconditional obligation could induce one of the parties to a case to raise an EU law argument solely with the aim of delaying the proceedings.


In CILFIT, the question of the applicability of the theory of acte clair was put before the Court of Justice by the Italian Court of Cassation. In the main action before the Court of Cassation, the EU law aspects appeared to be so obvious that it was difficult to see any reason for obtaining a preliminary ruling. It therefore decided to ask the Court of Justice under what conditions national courts of last instance were obliged to refer questions of interpretation. The Court of Justice observed that the correct application of EU law could be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. In such situations a court of last instance would not be required to make a reference for a preliminary ruling. The Court of Justice, in other words, embraced the theory of acte clair. However, it went on to lay down strict conditions for when a national court is justified in refraining from making a preliminary reference and instead taking upon itself the responsibility for resolving the question. In particular, not only must the national court itself be convinced as to the correct interpretation of EU law, it must also ‘be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice’. Observing that EU law presents some characteristic features and that its interpretation gives rise to particular difficulties, the Court added that EU legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of EU law thus involves a comparison of the different language versions. Moreover, even where the different language versions are entirely in accord with one another, EU law uses terminology which is peculiar to it and legal concepts do not necessarily have the same meaning in EU law and in the law of the various Member States. The Court rounded off its words of caution by observing that every provision of EU law must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. In other words, even though at first the interpretation of some EU legal act may appear obvious, it may nevertheless prove to be much less so on closer scrutiny.43


The ruling in CILFIT is a reflection of the different roles played by the national courts and the Court of Justice. Whilst laying down a definite interpretation of the applicable national law is among the most important functions of national courts of last instance, this does not apply to EU law, for which the final authority for interpretation is the Court of Justice. Even though a court of last instance may be better placed for interpreting EU law than are lower national courts, the definitive interpretation—and the consequent stability and legal certainty in the interpretation of the law—can only be established by reference to the Court of Justice. The strict conditions which the Court of Justice has attached to the application of the acte clair doctrine, if complied with, both maintain the Court of Justice’s monopoly on questions of interpretation and minimize the risk of a court of last instance adopting a wrong interpretation.44


3.4.2. What does the requirement that the national court must be convinced that the matter is equally obvious to the courts of the other Member States entail?

3.4.2.1. Introduction

It is difficult to state in abstract terms the degree of certainty which a court of last instance must have in order to be able to refrain from making a reference. Some have interpreted CILFIT so narrowly that they assume that the vast majority of the cases before national courts of last instance in which EU law is relevant must be referred to the Court of Justice.45 Others support the view that the national courts of last instance have been given some room for discretion so that they may refrain from making a reference if they find that a question raised about EU law is based on an unreasonable interpretation by one of the parties or that the motive for proposing to make a reference is to drag out the proceedings.46


The same divergence of approach can be found in the case law of the Member State courts. On the one hand, the French Conseil d’État has stated that it will only make a preliminary reference when it finds that the case raises ‘une difficulté sérieuse d’interprétation’.47 And indeed, it is quite telling that, in the period from 1 January 1978 to 30 September 2001, the Conseil d’État applied the acte clair doctrine with respect to European Union law on 191 occasions while only making 18 preliminary references within the same time span.48 On the other hand, in England and Wales, the tendency is that there should be a willingness to refer unless the national court can resolve the issue itself with ‘complete confidence’.49 The same tendency can be seen in Austria, where it is estimated that the Austrian Constitutional Court has made a reference in more than half of the situations where it seriously considered making a reference,50 as well as in Italy, where the percentage of references made by the Italian Constitutional Court ‘apparaît extrêmement fort’ in relation to the number of cases where a serious issue of interpretation has arisen.51


As mentioned in section 3.4.1 herein, in CILFIT the Court of Justice held that there can only be acte clair if the national court is not merely itself convinced as to the correct interpretation of EU law, but also ‘convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it.’ In other words, the national court must, first, consider the meaning of a provision of EU law to be unambiguous from its own perspective, and, second, make a finding as to whether the interpretation of a provision is beyond any reasonable doubt, both in its own eyes and in those of the courts of the other Member States and the Court of Justice.


The criterion that the national court invoking acte clair must be convinced about how other judges will view the interpretative issue at stake is virtually impossible to fulfil and is a much stricter requirement than the need for the judge himself to feel certain about the correct interpretation of the rule in question. The very fact that the Court of Justice has a tendency to develop its case law in a dynamic fashion and that it retains the right to overrule previous case law makes it close to impossible to be absolutely certain about the correct interpretation, even where the situation would otherwise seem to be one of acte éclairé.52 However, the bar is set even higher when the national court must also be convinced not only that other national courts will arrive at the same result, but also that they will consider the outcome to be ‘obvious’. As Advocate General Stix-Hackl has argued, ultimately the national court can only rely on its own judgment. In contrast, it cannot realistically engage in imagining the workings of the minds of other judges whom it has never met and actually convince itself about the minds of these other persons.53

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