In a judgment given on 6 October 2021, the CJEU had the opportunity to revisit its famous exceptions to national courts’ obligation to refer preliminary questions under Art 267(3) TFEU. In Advocate-General Bobek conclusions to the case, he extensively argued, in line with a handful of former Advocate-Generals, that after almost forty years of the Cilfit judgment, it was time to refine and even replace its strict and practically unfeasible exceptions to the obligation to refer with less subjective, less strict, and more feasible ones. However, in the end, the judgment largely confirms the validity of the Cilfit exceptions in their classical terms.
A failed attempt? Not fully. After all, the Cilfit doctrine has been enriched with new elements and nuances. Upon first reading, these new elements and nuances appear, in a rather Solomonic way, to affect both the relaxation and strengthening of the obligation to refer. Upon a more thorough assessment, however, strengthening seems to prevail. In this regard, two elements deserve attention: the new approach to the linguistic dimension of interpreting EU law, and the newly founded statement of reasons regarding decisions of non-referral.
The judgment confirmed the specific requirements conforming to the so-called acte clair-exception, including the need to respect the autonomy and peculiarity of EU law concepts, to give them a systematic, teleological and evolutive interpretation, and to consider all the linguistic versions of the provision of EU law under discussion. Nevertheless, it does slip in a nuance concerning the last, highly criticized requirement: a national court or tribunal of last instance cannot be required to examine each of the language versions of the provision in question, but it must bear in mind the divergences between the various language versions of that provision in question, specifically, when those divergences are laid forth by the parties and verified.
The impact of relaxation on this new approach to the linguistic dimension of the interpretation of EU law, nevertheless, is more theoretical than real. There are no records, in the case-law of the CJEU, the ECtHR, the national constitutional courts, or supreme courts, of strictly reviewing national courts’ compliance with the said linguistic requirement. Now, undoubtedly the national court of last instance does not need to collect and compare all of the language versions of the provision of EU law under discussion, but at the same time, should the parties point out divergences in this regard, the national court of last instance must verify them and, if they exist, assess whether they create a risk for the uniform interpretation of the provision concerned.
In other words, the linguistic dimension of the acte clair-exception, which was relevant only on paper and was, therefore, often the object of authors’ mockery, for its practical unfeasibility in an EU of 24 official languages, has not been overridden but instead restructured and resized to make it feasible. If divergences are brought forth by the parties or found by the court, they must be verified and included in the complex assessment of the existence of reasonable doubt. Thus, the linguistic aspect is not decisive on its own but is still relevant.
The second element is more striking; it is a newly found duty to reason the exception to the obligation to refer to the CJEU. Only here did the Court follow Advocate-General Bobek’s proposals when it deduced, rather enigmatically, ‘from the system established by Article 267 TFEU, read in light of the second paragraph of Article 47 of the Charter,’ and without any further explanation, that the national court must state the reasons for its decision of non-referral. Although this duty to reason already existed according to ECtHR case-law, it now enjoys the primacy of EU law. This is the big innovation of the judgment (see blog post by Gentile and Bonelli).
What are the consequences for the review that constitutional courts in some Member States carry out, in different degrees, over national courts’ compliance with the obligation to refer preliminary questions to the CJEU under Article 267(3) TFEU?
Even if the CJEU stresses once again that the system established by Article 267 TFEU ‘does not constitute a means of redress available to the parties to a case pending before a national court or tribunal,’ a link between Article 267(3) TFEU and Article 47(2) of the Charter has been made explicit for the first time in CJEU case-law. These statements may sound paradoxical and even contradictory. Whilst critics attack the Cilfit doctrine for its supposed strictness and lack of feasibility, the CJEU is more concerned about its lack of enforceability while being relatively content with its operation.
The CJEU’s strategy is to favour indirect ways to address the enforceability issue, in line with the decentralised character of the EU judicial system. To strengthen the obligation to refer, the CJEU imposes on the national courts an additional obligation to state the reasons for decisions of non-referral. It provides the national supreme and constitutional courts with a control mechanism and expects them to draw pertinent conclusions within their jurisdiction, since, in some legal orders, they can adjudicate in individual complaints against judicial decisions of non-referral, even from courts of last instance.
Some constitutional courts (for instance, those in Germany, Austria, the Czech Republic, Slovenia, and Spain) have already subjectivized the obligation to refer, incorporating it into the scope of protection of one of the fundamental rights entrenched in the national constitution. When a national court of last instance does not fulfil its duty to refer a preliminary question to the ECJ, those constitutional courts can review the constitutionality of the decision of non-referral using the national standard of review, into which the content of the Cilfit doctrine penetrates in varying degrees. The Consorzio Italian Management case will strengthen this national judicial policy and promote its spread into those legal orders where constitutional or supreme courts have yet to establish it. Moreover, the Member States’ constitutional courts, specifically those in Austria and Germany, that have incorporated the Charter rights to their parameter of review within the field of application of EU law, will now have to include the new link between Article 267(3) TFEU and Article 47(2) of the Charter as part of their scrutiny. As they say, one grain fills not a sack, but it helps one’s fellow.
Posted by Xabier Arzoz, Professor of EU and Administrative Law at the National Distance University (UNED), Madrid. Former Legal Clerk at the Spanish Constitutional Court (2011-2020). He recently obtained a Jean Monnet Chair on Integration through EU Fundamental Rights. In 2020, he published the book, La Garantía Constitucional del Deber de Reenvío Prejudicial, on the issue dealt with in this post.
Suggested citation: X. Arzoz, “The constitutional review of national courts’ compliance with the obligation to refer preliminary questions after Consorzio Italian Management”, REALaw.blog, available at https://realaw.blog/2022/01/13/916/.