In the past few weeks, five blog posts have been published on REALaw about the Court of Justice’s landmark judgment Consorzio Italian Management e Catania Multiservizi or CILFIT 2.0 (Arnull, Gentile and Bonelli, Sanchez-Graells, Arzoz and Cecchetti). I have two objectives with this concluding blog post. First, I will engage with the five pieces and provide some additional reflections following my initial and early reflections in an Op-Ed published on EU Law Live. Second, I will enrich this legal appraisal with some empirical insights that stem from a recently concluded four-year research project on national courts and the Court of Justice based on more than 80 interviews with national court judges, published Open Acces with Edward Elgar.
In my Op-Ed, I pointed to two subtle refinements and relaxations of the CILFIT–requirements in Consorzio: the possibility of different interpretations that does not prevent an acte clair (para. 48) and the less burdensome requirements with respect to language versions. I did not spot a third and fourth apparent relaxation of the acte clair doctrine upon first reading. The Court of Justice only requires that the highest court must be convinced that the matter would be equally obvious to the other ‘courts or tribunals of last instance’, whereas CILFIT referred to (all) courts, including lower courts (contrast para. 40 of Consorzio with para. 16 of CILFIT). A fourth point -that I will discuss below- relates to questions about the application of EU law. I wonder whether we should really read between the lines; and whether national courts would be able to spot such nuances. If the Court of Justice has intentionally changed the contours of the acte clair doctrine, it should have done more explicitly and unequivocally.
Not all language versions: an alleviation of the burden, or not?
Let me first pick on the point of language versions. Following Consorzio, courts are no longer required to examine ‘each of the language versions’, but only ‘divergences between the various language versions … of which it is aware’ (para. 44). Interestingly, Arzoz actually construes the latter point as a greater burden for national courts. He arrives at this conclusion primarily from the perspective that most national courts have to date simply foregone consideration of another language version than their own. In his view, the theoretical relaxation is in practice an additional burden because Consorzio now obliges national courts (‘must bear in mind’) to deal with other versions when the parties point out divergences. This interesting point might be true for some courts and especially those that have already a poor record of referencing. The Court of Justice’s research note on the application of CILFIT indeed concluded that ‘language versions do not appear to be compared as a matter of course and, where the courts adjudicating at last instance do carry out such a comparison, they usually do so in relation to a limited number of language versions, quite often English, French and German’ (para. 39). In that sense, Arzoz observation seems logical.
Nonetheless, for courts that by and large comply with their duty to refer, such as the Civil and Tax Chamber of the Dutch Supreme Court, this pronouncement is largely reflective of their actual practice (see the speech of President De Groot during FIDE 2021). Interviews with judges of the Tax Chamber of the Dutch Supreme Court also revealed that judges examine different language versions as well as French or German literature. One Dutch example is the Dutch Council of State’s decision not to refer questions about the meaning of the term ‘expire’ (of visas or residence documents) in the Dublin Regulation. Instead, the Council itself examined the English, German and French language versions, with reference to CILFIT, to determine the concept’s meaning (para. 4.3). In sum, Consorzio’s refinement of the examination of language versions will play out differently across the EU and even within single Member States given the wide variety in courts’ approaches to CILFIT.
Fewer questions on the application of EU law?
Cecchetti rightly points out a point I overlooked in my first reading of Consorzio, namely the modification of the wording of the acte clair doctrine. The French, Italian, German, Spanish, Portuguese, and Romanian language versions refer to the ‘correct interpretation of EU law’ instead of the ‘correct application’ of EU law regarding the application of the acte clair doctrine. The original Italian language version of the judgment refers to ‘interpretazione corretta’. By contrast, the English version uses both concepts interchangeably (contrast paras. 33, 39, 66 with paras. 47-49). Ironically, in a judgment in which the examination of language versions plays such a central role, the Court of Justice itself is far from careful in the use of words. What’s more, at the time of writing this piece (7 December 2021), the Dutch version has still not been published even though the judgment was rendered two months ago already. As mentioned before, the Court should have pinpointed alleged relaxations more explicitly.
The question remains whether a change of the CILFIT-requirements will have an impact on the ground. Will it really affect the -in the words of Arnull– willingness of national courts to refer? This is very much an empirical question as to how the “Law in the books” turns out to be the “Law in action”. Even though I did not examine the causal or statistical relationship by the employment of CILFIT and the eagerness (or reluctance) to refer, it is fair to say that national courts entertain more than just legal motives in their decision-making. This holds true for both decisions not to refer (even though the matter is not clair) as well as decisions to refer in case of an acte clair. Judges of the Dutch Council of State are quite open in admitting that the Council adopts a pragmatic reading of CILFIT. It considers whether a reference is worth the effort in the light of the importance of the underlying question, the delays for the pending and other cases as well as the consequences of a referral for the parties. The Council, for instance, did not refer questions about the intensity of review of the credibility assessment of asylum claims even though the matter was far from clear as it acknowledged itself as well. The UK Supreme Court adopted a similar approach in a child abduction case.
By contrast, courts sometimes refer questions that are clair. This is also (implicitly) acknowledged by Sanchez-Graells in his comment. He points to some courts that ‘excessively’ refer sometimes ‘easy’ questions without taking responsibility themselves. Rather they ‘pass the hot potato to the CJEU’ when they consider that national law or practice is inconsistent with EU law. Sanchez-Graells argues that the reference of the Italian Council of State in Corsorzio fits this category and is actually legally unnecessary and poorly drafted. In my book, I discuss several examples of references of courts seeking support or an alibi from the Court of Justice, such as Chakroun on family reunification or the Spanish consumer law reference in Aziz. Courts also use the Court of Justice as ‘a transnational arbiter’ to ensure the uniformity of EU law. The Tax Chamber of the Dutch Supreme Court has referred several “easy” custom classification cases that were answered by the ECJ in a three-judge chamber formation without AG Opinion. Rather than classifying a good on its own, the Tax Chamber of the Dutch Supreme Court wanted the Court of Justice to pronounce itself on the matter so that ‘the whole of Europe knows where we stand’. The UK Supreme Court adopted similar reasoning in a copyrights case. The previous examples thus raise questions about the extent to which Consorzio’s refinements will actually have an impact on national courts. It seems that this will only happen when the new framework is being enforced more forcefully by the Commission or national courts, otherwise, courts will likely continue as before. This brings me to the third point.
From a duty to provide reasons to an individual right?
I agree with Gentile and Bonelli that Consorzio can potentially be ‘at the epicentre of a remarkable evolution’ with respect to the duty of the highest courts to provide a statement of reasons in case they decide not to refer. Even though the Court of Justice appears to merely ‘catch-up’ with the Dhahbi case law of the ECtHR, specific EU law enforcement mechanisms such as state liability, primacy and infringement proceedings might make the Court’s pronouncement more effective than the ECHR duty.
The Court of Justice clearly links the preliminary ruling procedure with Article 47 of the Charter of Fundamental Rights, as it has done first in Rosneft. Several posts touch upon the question of whether the Court subjectivizes Article 267 TFEU and provides an individual right to a reference. I think that this postulation is slightly exaggerated. The duty to provide reasons should in my view primarily be seen as a way to strengthen (national and European) enforcement of the obligation to refer, as Arzoz also argues. Such a view is further confirmed by the paragraph in which the Court emphasises that the national court ‘must take upon themselves, independently and with all the requisite attention, the responsibility for determining whether the case before them involves one of the situations in which they may refrain from referring to the Court a question concerning the interpretation of EU law that has been raised before them’ (para. 50; see also para. 53).
Another empirical question is whether the duty to provide reasons is likely to have a measurable effect on national courts eagerness to refer? As mentioned before, much depends on the willingness of the Commission and national courts to enforce the duty, as Claassen also argued. The quantitative evidence in the Court of Justice’s annual reports provides a mixed bag. The several EU Member States that already have a constitutional duty, such as Austria and Germany, are relatively extensive referrers, while relatively few references come from Spain. The Netherlands frequently tops the charts but does not have such a duty. It thus seems that other factors, such as knowledge about EU law, the (professional) attitude of judges or the litigation culture, better account for the actual decision to refer of courts and, thus, quantitative differences. Nonetheless, there has been an improvement, both in quantitative as well as qualitative terms, in the way in which Dutch (administrative) courts have provided arguments for refusals to refer in the last decade. It is obviously difficult to verify whether the Strasbourg jurisprudence has been an important driver behind this, but it has certainly not been without effect. Even courts in the UK have generally been quite open in providing reasons in such instances.
All in all, this short analysis illustrates one thing: it is not clair what effects Consorzio will have on actual legal practice. Only the future will tell.
Posted by Jasper Krommendijk
Jasper Krommendijk is associate professor of international and European law, Radboud University, Nijmegen, the Netherlands. He is also director of the Research Centre for State and Law (SteR). Jasper’s research is focused on the impact of international and European law at the domestic level: how can the ‘law in the books’ be translated into ‘law-in-action’? He has a specific interest in human rights and effective judicial protection. Most of his research has been empirical and interdisciplinary in nature, grounded in both law as well as IR. Jasper worked on a project (2017-21) called ‘It takes two to tango. The preliminary reference dance between the Court of Justice of the European Union and national courts’ funded with a VENI-grant by the Netherlands Organisation for Scientific Research (NWO). His recent monograph National Courts and Preliminary References to the Court of Justice was published with Edward Elgar in November 2021.
Suggested citations: J. Krommendijk, “Cilfit 2.0: will it matter on the ground? Some empirical reflections”, REALaw.blog, available at https://realaw.blog/2022/01/13/924/.