The Consorzio Italian Management, Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA (hereinafter, ‘Consorzio’) judgment has rightly attracted significant academic attention. While the facts of the case were uncontroversial, the preliminary reference of the Italian Council of State offered to the CJEU the opportunity to revisit its CILFIT case-law. Or at least Advocate General Bobek thought so. In his Opinion on the case, he boldly proposed a new test to guide courts of last resort in deciding when to refer or not under Article 267(3) TFEU. The starting point for this proposal was a well-established finding: the CILFIT case-law is often abused and disregarded by last instance national courts. In turn, these courts have, voluntarily or not, adversely impacted the uniform interpretation and application of EU law. Hence, according to AG Bobek, Consorzio offered the perfect opportunity for the CJEU to rethink CILFIT and create clearer guidance for national courts of last instance on how to approach the duty to refer in the preliminary ruling procedure.
In the final judgment, the Court has not followed the proposal presented by AG Bobek. At first sight, Consorzio might look like a (partially) missed opportunity. Yet, at a closer look, the decision in Consorzio suggests that the CJEU is conscious of the limits of the CILFIT doctrine. Previous CJEU’s judgments have already partially supplemented the instances in which the CILFIT jurisprudence can be triggered. Consorzio joins this line of jurisprudence by bringing both continuity and a (apparently modest, but potentially ground-breaking) change to the CILFIT requirements.
We observe continuity in so far as the CJEU has essentially confirmed its established jurisprudence on the circumstances in which the duty of national courts against whose decisions there is no remedy will not apply. By contrast, we identify change concerning the renewed role of Article 47 of the Charter in conjunction with the duty of courts of last instance to submit preliminary ruling questions under Article 267 TFEU. Consorzio is an instance of jurisprudence des petits pas: through apparently small changes, the CJEU is in reality raising the bar of the correct and uniform application of EU law.
In the next paragraphs, we focus on the change introduced by Consorzio and especially the central role of Article 47 of the Charter of Fundamental Rights in that judgment.
- Article 47 of the EU Charter and the preliminary ruling: raising the stakes of the uniform application of EU law
Consorzio introduces a major novelty. In paragraph 51, the CJEU held that it follows from Article 267, read in the light of Article 47 of the Charter, that:
‘if a national court or tribunal against whose decisions there is no judicial remedy under national law takes the view, because the case before it involves one of the three situations [identified in the CILFIT case law (i.e. the question raised is irrelevant; the EU law provision in question has already been interpreted by the Court; or the correct application of EU law is so obvious as to leave no scope for any reasonable doubt)], that it is relieved of its obligation to make a reference to the Court under the third paragraph of Article 267 TFEU, the statement of reasons for its decision must show either that the question of EU law raised is irrelevant for the resolution of the dispute, or that the interpretation of the EU law provision concerned is based on the Court’s case-law or, in the absence of such case-law, that the interpretation of EU law was so obvious to the national court or tribunal of last instance as to leave no scope for any reasonable doubt.’
It follows that national courts of last resort must provide a statement of reasons to justify their decision not to refer to the CJEU. The duty of statement of reasons is of central importance in EU law. It is provided for under the Treaties (see Article 296 TFEU with reference to EU institutions) as well as under Article 47 of the EU Charter. With Consorzio, the CJEU has aligned its case-law with that of the ECtHR: the latter court had long-established a duty to state reasons for national courts of last instance when deciding not to refer to the CJEU in light of Article 6 of the ECHR. Comparable rights have also been established by some national constitutional courts. Under Article 52 of the Charter, Charter rights corresponding to ECHR provisions should be interpreted in the light of the latter. Accordingly, Article 47 of the Charter should be deemed to require, as its twins Articles 6 and 13 of the ECHR, a duty for courts of last instance to expressly justify their refusal to submit preliminary ruling questions to the CJEU. In this sense, the change brought by Consorzio is relatively modest: the Consorzio decision is somehow a natural consequence of the EU constitutional architecture.
Nevertheless, Consorzio may be at the epicentre of a remarkable evolution of the standards of effective judicial protection in the EU for at least two reasons. To begin with, Consorzio further binds national courts’ discretion when they decide not to refer a question to the CJEU: national courts should explain the reasons for their refusal to dialogue with the Luxembourg Court. For this duty to be meaningful, the statement of reasons of last resort courts cannot be generic: national judges should be specific regarding the evidence to supplement. They should either demonstrate that ‘the question of EU law raised is irrelevant for the resolution of the dispute’ or they should explain either how the interpretation of EU law is covered by previous case-law (the ‘acte éclairé’ scenario) or how the issue of EU law is so obvious so as not to leave any reasonable doubt (the ‘acte clair’ scenario). Unfortunately, the Court of Justice has not elaborated in Consorzio what the precise content of the duty should be, and how detailed those explanations should be. But if the duty is to be taken seriously, as we argue, national courts will truly have to roll their sleeves up and reflect on how to provide appropriate justifications for their refusal to dialogue with the CJEU.
This brings us to the second point. The implications of Consorzio are powerful: if one takes the duty to provide reasons seriously, national courts are now subject to the clear risk of appearing categorical, political, and unsupported by solid reasoning in their refusal decisions. Consorzio offers a subtle reminder to national courts that their legitimacy also depends on the way they decide to apply (or not) EU law, and thus whether they can rely on solid grounds to interrupt the direct communication with the Luxembourg court under Article 267 TFEU, the pillar of the EU constitutional structure (see “Cilfit on trial?”, by Anthony Arnull).
- An individual right to a preliminary ruling?
The decision in Consorzio has another crucial implication: it is a matter of fundamental rights for an individual claiming the application of EU law to receive a justification from last instance courts when the latter refuse to submit a preliminary ruling request. If national judges do not provide a statement of reason or do not meet the standards imposed by Consorzio, they would violate the fundamental right to a fair trial and an effective remedy protected under Article 47 of the Charter.
In this way, the preliminary ruling procedure becomes entangled with the fundamental procedural right to a statement of reasons: fundamental rights have colonised yet another aspect of the EU constitutional order. Thus, taking this implication of Consorzio a step further, one may wonder whether this judgment could be the first move towards establishing an individual right to trigger a preliminary ruling. In this context, we should be cautious and not put the chariot before the horses: Consorzio merely enhances transparency and accountability for national courts when it comes to initiating a preliminary ruling procedure. It does not go as far as introducing an individual entitlement to a preliminary ruling. More generally, both Bobek’s Opinion and the Court judgment endorsed the ‘Hoffmann-Laroche’ view of the duty to refer for courts of last instance: in short, the duty is not imposed to protect individual rights in a specific case, but rather it is a structural duty which generally strives to protect the uniform application of Union law.
Nevertheless, by explicitly linking Article 267 TFEU and Article 47 of the Charter, Consorzio also reminds us of the second parallel goal of the preliminary reference system: contributing to the effective judicial protection of Union rights. In Consorzio, the linkage still produced fairly modest results, mostly allowing the CJEU to ‘catch-up’ with the ECtHR jurisprudence on the duty to provide reasons in cases of non-referral. But by establishing that connection, the Court has laid the foundations for other more ground-breaking developments that may bolster the claim of the parties to judicial protection in the fields covered by EU law via the preliminary reference procedure.
- An enforceable duty?
The decision in Consorzio is apparently modest but potentially ground-breaking when correctly applied. At this point, the question arises as to the enforceability of the obligation of national courts of last resort to provide a statement of reasons for their refusal to trigger the procedure of Article 267(3) TFEU, in addition to the possibilities offered by ECHR and national constitutional law. Under EU law, the Francovich claim of state liability is one avenue. While, traditionally, state liability for judicial breaches has not been very effective, the Consorzio decision might be a step forward. By bringing Article 47 into the picture, it will be easier for claimants to prove that the first condition of the Francovich case law – the breach of a provision that confers right on an individual – is fulfilled when courts of last instance do not refer a case to the CJEU where they should have done so (and that decision is not adequately reasoned). The infringement action is then a possible enforcement alternative, although from an effective judicial protection perspective individuals do not directly benefit from a possible CJEU’s finding of a breach of EU law in that procedure.
As argued by AG Bobek, Consorzio could have been the appropriate occasion for a full rethinking of the CILFIT case law. The Court decided otherwise. It largely confirmed the CILFIT doctrine and offered a few clarifications – for example, on the number of language versions that must be consulted before determining whether something can be considered an acte clair: definitely not all of them, but certainly more than one. Most importantly, from our perspective, the Court explicitly linked for the first time Article 267 TFEU to Article 47 of the Charter, establishing – following the ECtHR lead – that national courts of last instance have a duty to explain, and provide reasons for, their decision not to submit a preliminary reference to the CJEU because the CILFIT exceptions apply. The judgment is not revolutionary – far from it – but still a significant advancement from an effective judicial protection’s perspective. And it contains a few traces of what the future may hold when it comes to the preliminary ruling procedure: from our side, we are most curious to see how the stronger and more explicit link between Article 47 and Article 267 could shape the future case-law of the Court in this area.
Posted by Giulia Gentile (London School of Economics and Political Science) and Matteo Bonelli (Maastricht University)
Suggested citation: G. Gentile and M. Bonelli, ‘La jurisprudence des petits pas: C-561/19, Consorzio Italian Management e Catania Multiservizi and Catania Multiservizi’, REALaw.blog, available at https://realaw.blog/2021/11/26/780/
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