Cilfit on Trial?, by Anthony Arnull

This post traces the early development of the case law on preliminary rulings, dealing in particular with mandatory references under the third paragraph of what is now Article 267 TFEU and the famous CILFIT case. It serves as an introduction to subsequent posts focusing on more recent developments in the field, in particular the decision of the Court of Justice of 6 October 2021 in Case C-561/19 Consorzio Italian Management and another v Rete Ferroviaria SpA.

Much of the responsibility for applying the rules laid down in the EU Treaties and acts of the institutions of the EU has always fallen on the national courts of the Member States. If those rules were to function properly, they would therefore need to have the same effect in all the Member States. However, varying legal traditions and the nature of the judicial process meant that, left to their own devices, it would be highly unlikely that courts across the EU would always apply Union law in the same way.

To help safeguard the uniform application of Union law, Article 267 TFEU (ex 234/177 EC) therefore laid down a so-called preliminary rulings procedure enabling national courts to ask the Court of Justice questions of Union law that they had to decide before giving judgment. It is hard to exaggerate the importance of this procedure. Courts can only decide issues raised by cases brought before them. The reference procedure brought before the Court of Justice a multitude of issues it might not otherwise have had a chance to consider and enabled it to influence directly the application of Union law in the Member States. In a report on the application of the Treaty on European Union in 1995, the Court itself described the procedure as “the veritable cornerstone of the operation of the internal market”.

The success of the procedure depends on the willingness of the national courts to do two things. First, they must be willing to send questions to the Court of Justice where appropriate. If they refuse to do this, the procedure will not work. Secondly, they must apply conscientiously the answers given by the Court of Justice. By and large, the national courts have played their part in the procedure remarkably diligently.

DISCRETIONARY REFERENCES

Under the second paragraph of Article 267, inferior national courts enjoy a discretion in deciding whether or not to ask for a preliminary ruling. They may if they wish reach their own conclusions on questions of Union law they are asked to decide. This may be sensible where the point raised is reasonably clear or a general approach to a particular question can be worked out from the case law of the Court of Justice. However, where it seems likely that a reference will be made at some stage in the proceedings, it may be wise for that step to be taken sooner rather than later, for the Court of Justice is better equipped than national courts to resolve issues of Union law. The proper functioning of the preliminary rulings procedure therefore depends to a large extent on the way in which inferior national courts exercise the discretion conferred on them by Article 267.

MANDATORY REFERENCES

Where a question of Union law crops up 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 is obliged to refer the question to the Court of Justice. That obligation is not confined to courts whose decisions are always final. It covers any court, even if not an apex court, against whose decision there is no judicial remedy in the case in hand.

A leading case on the preliminary rulings procedure is CILFIT v Ministry of Health, decided in 1982. The Court explained in that case that apex courts were in the same position as other national courts in deciding whether they needed to resolve a question of EU law before giving judgment. Even where they concluded that a question of Union law did need to be resolved, a final court was under no obligation to refer in two situations:

(a) where “previous decisions of the Court had already dealt with the point of law in question” (although in that event the national court remained free to refer if it wished the Court of Justice to reconsider its earlier ruling); or

(b) where the correct application of Union law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised should be resolved.

That second situation came to be known as “acte clair“. However, before the national court concluded that the situation was acte clair, it had to satisfy itself that the matter would be equally obvious to the courts of other Member States and to the Court of Justice itself. This required it to take account of the characteristic features of Union law and the particular difficulties to which its interpretation gave rise.

The Court mentioned three features in particular:

• that Union legislation was drafted in several languages, all of which were equally authentic. Interpreting a provision of Union law therefore involved comparing the different language versions;
• that Union law used its own terminology and that legal concepts did not necessarily have the same meaning in Union law as they might have in the national laws of the Member States;
• that ‘every provision of [Union] law must be placed in its context and interpreted in the light of the provisions of [Union] 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.’ This echoed Van Gend en Loos, where the Court said that, in interpreting Article 12 EEC, it was necessary to take account of the spirit, the general scheme and the wording of the Treaty.

There has long been a view that the CILFIT criteria are too strict, particularly the one which requires comparison of the different language versions. Rarely, if ever, applied in its full rigour, this has become impossible in practice since the great enlargement of 2004 and 2007. The authors of a report entitled The Role and Future of the European Court of Justice, published by the British Institute of International and Comparative Law in 1996, observed: “Compliance with these requirements for acte clair is virtually impossible. In practice this test is completely unworkable.” In one English case, the criteria were described as “intimidating”.

Extreme views of this sort failed to acknowledge the Court’s acceptance that the Treaty imposed no obligation to refer where the point in issue had already been addressed in previous case law. Indeed, in a development of previous case law, the Court made it clear that this was so “irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical.” In circumstances such as these, there would be no need to invoke the acte clair doctrine. At the Nice intergovernmental conference in 2001, the Member States declined to pursue a suggestion that the obligation of the highest national courts to refer should be relaxed and accepted that the obligation laid down by the third paragraph of Article 267 provided a safeguard against the incorrect application of Union law by national courts.

More recently, however, the tectonic plates seemed to move. On 9 September 2015, the second chamber of the Court decided two cases – X v Inspecteur van Rijksbelastingdienst and T.A. van Dijk v Staatssecretaris van Financiën and João Filipe Ferreira da Silva e Brito and Others v Estado português – that might have suggested that the obligation to refer was being diluted. The ground was, however, unstable, for in Commission v France, an infringement action decided in 2018, the CILFIT criteria were robustly reiterated when the Court found that France was in breach of its obligations under Article 267 by reason of the failure of one of its top courts (the Conseil d’Etat) to refer a question the answer to which was ‘not so obvious as to leave no scope for doubt.’

In practice, there has often been room for argument over whether the CILFIT criteria have been met. This may make it difficult to establish when the obligation to refer has been breached. In Dhahbi v Italy, the European Court of Human Rights held that Article 6(1) of the European Convention on Human Rights (right to a fair trial) meant that:

national courts against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of European Union law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU.

In reality, however, the obligation is very difficult to enforce and relies in large part on the good will of national judges. This helps to explain the thinking behind the Court’s unprecedented decision in Commission v France.

REFERENCES ON VALIDITY

Under the first paragraph of Article 267, the Court of Justice may also be asked for a preliminary ruling on the validity of Union acts. The Court’s exclusive jurisdiction to declare Union acts invalid means that apex national courts cannot avoid referring questions of validity by reference to the CILFIT criteria. The Court held in Case C-461/03 Gaston Schul Douane-Expediteur that those criteria applied only to questions of interpretation. This is so even where the Court has declared void analogous provisions contained in a comparable act. Whatever the implications of Consorzio Italian Management, this seems unlikely to change.

Posted by Anthony Arnull (University of Birmingham, UK)

Professor Anthony Arnull specialises in the law of the European Union. He served as a référendaire at the European Court of Justice in the Chambers of Advocate General Jacobs from 1989-92 and was Head of Birmingham Law School from 2006-09. Professor Arnull is the author of The General Principles of EEC Law and the Individual (Leicester University Press, 1990); The European Union and its Court of Justice (Oxford University Press, 2nd ed, 2006); and European Union Law: A Very Short Introduction (Oxford University Press, 2017). He is co-editor of (and a contributor to) The Oxford Handbook of European Union Law (Oxford University Press, 2015) and Consultant Editor of the European Law Review, having been its co-editor from 1996-2007. Professor Arnull has given evidence to a number of UK Parliamentary Select Committees and acted as Specialist Adviser to the House of Lords EU Committee.

Suggested citation: A Arnull, ‘Cilfit on Trial?’, REALaw.blog, available at https://realaw.blog/2021/11/24/770/