1. Introduction

On Thursday, 26 June 2025, AG Ćapeta delivered her Opinion in Remling. Remling is a preliminary reference of the Dutch Council of State, functioning as a last instance court, which submitted a single question to the CJEU. It essentially asked whether Article 267, para. 3 TFEU, read in light of Art. 47 para. 2 CFR precludes a national rule that allows a last instance court to reject an appeal with summary reasoning, without specifying which of the three CILFIT exceptions (not relevant questions, acte clair, and acte éclairé) applies, after a question on the interpretation of EU law had been raised (para. 18).

This contribution comments on the AG’s Opinion. It proceeds as follows. First, the background of the reference is introduced. Second, the AG’s substantive analysis is considered, based on the structure adopted in the Opinion. The novel approach of the AG regarding the case law on the obligation to refer is addressed. Subsequently, the distinction between the two different sources of the duty to state reasons is outlined. Next, the AG’s considerations regarding the compatibility of summary reasoning rules with the duty to state reasons are examined. Some concluding remarks complete the piece.

2. Background of the case

A third-country national, who was refused a certificate of lawful residence by a Dutch authority, appealed to the Council of State, requesting a reference be made to the CJEU. The first instance court had rejected his challenge and the request for a reference (para. 3-8). The Council of State considers the request an acte éclairé. It is thus poised to reject the appeal with a summary statement of reasons.

Summary rulings are allowed under Dutch law (Art. 91 (2) Vreemdelingenwet), and lead to a decision stating only that the argumentation put forward by the applicant is not enough to overturn the lower court’s decision. According to the summary of the request in Remling, pp. 4-5, para. 2 and 6, the Council of State only endorses the outcome of the proceedings before the lower court, and not necessarily the reasoning behind it. Two conditions apply. First, the operative part of the judgment of the lower court is to be preserved. Second, the case does not raise questions of broader importance. The Council of State does not rule summarily if it considers itself obliged to refer (para. 12-15).

The Council of State was uncertain whether this national rule was compatible with para. 51 of Consorzio, which stated that if a last instance court considers that it is not obliged to refer, its statement of reasons “must show either that the question of EU law raised is irrelevant […] or that the interpretation of the EU law provision concerned is based on the Court’s case-law or […] that the interpretation of EU law was so obvious […] as to leave no scope for any reasonable doubt.”

The procedure before the CJEU was suspended until the delivery of the judgment in KUBERA (para. 20). During the hearing, the Dutch government informed the Court that in a substantial number of cases, the Council of State uses statements of reasons with supplementary wording (footnote 41).

3. Analysis of AG Ćapeta`s Opinion

a) The obligation to refer back under the spotlight

Instead of directly focusing on the duty to state reasons, the AG reexamines the case law on the obligation to refer. She explains that a last instance court does not have the obligation to refer if a question of EU law is not raised, under Art. 267 para. 3 TFEU. The last instance court should consider a question raised, if it is relevant and requires interpretation (para. 27). The CILFIT conditions thus become situations where the national court considers that an EU question has not been ‘raised’ (the quotation marks being used by the AG herself) and thus situations that fall outside the scope of the obligation to refer (para. 28).

The AG distinguishes between the three CILFIT situations, stating that irrelevant questions fall outside the jurisdiction of the CJEU (para. 30). The acte clair and acte éclairé situations are considered to be scenarios where no reasonable doubt exists as to the correct application of EU law (para. 31). These situations still require that no different interpretation of the same rule can be conceived in other member states. For the acte éclairé, the only interpretation of a rule mandated by the case law should lead to a specific outcome, i.e., in the present case, the refusal of the certificate (para. 33). For the acte clair, the AG stressed that the relevant restrictive case law is a call to last instance courts to decide attentively and on their own on whether to refer, taking into account the consequences of the decision for the uniformity of EU law (para. 34-36).

The obligation to state reasons adds to the obligation to refer (para. 37, 38). The duty to state reasons does not simply require the identification of the CILFIT situation but also explaining why the situation applies (para. 40).

This AG’s conclusion in this part —that mentioning a CILFIT exception needs to be accompanied by further reasoning —appears uncontroversial and can be derived from Consorzio, para. 51. However, the same cannot be said regarding the preliminary remarks on the obligation to refer. Indeed, two of the AG’s observations contrast with the current understanding of the CILFIT exceptions after Consorzio. The first one relates to the proposal that a CILFIT scenario falls beyond the scope of the obligation to refer, rather than being an exception to the rule. The second is the assumption that the existence of a doubt regarding the interpretation of a rule of EU law is related to how this rule is applied.

The AG used three cases to support her first observation, CILFIT, IATA and ELFAA, and Consorzio (footnote 14). However, CILFIT, para. 8-11, examined the notion of a “question raised” in relation to the irrelevance scenario only and drew a stark contrast to the other two scenarios (Cecchetti L. in this blog). IATA and ELFAA, para. 28-29, concerns questions of validity. Indeed, a last instance court should not consider itself bound by the duty to refer, even if the parties request it to do so, if it is poised to maintain the validity of the EU act. But this is not relevant to the CILFIT scenarios. Finally, Consorzio, para. 54, uses the notion of “question raised” to make a point about the fact that it is only for the national courts to refer questions to the CJEU, and thus the parties cannot influence the determination and formulation of the questions referred.

The AG recognises that this definition of the notion “question raised” does not entirely match the CJEU`s language (footnote 16). The Court (and AG Ćapeta in para. 47 and 49) uses the three CILFIT scenarios to state that the last instance courts are relieved of their obligation to refer. KUBERA, para. 47, 49, 63-64,also clarified which cases fall outside the scope of Art. 267 para. 3 TFEU. These are the scenarios in Aquino and Consorzio, where the application of a national rule of a purely procedural nature prevents the examination of a case in its substance. A contrario, other instances of admissible claims on EU law might be considered cases where a question has been raised. AG Bobek in Consorzio, para. 23, and AG Emiliou in KUBERA, para. 106-107, 123, 129-130, also understood the way a question of EU law is raised differently.

The AG is right to point out that the irrelevant question scenario does not fit well as a CILFIT exception (Cecchetti L. and Gallo D., pp. 50-51, Maher I., p. 270). Nonetheless, whether a question is raised or not is better construed in relation to whether the dispute is of purely national law (except Ullens de Schooten cases, and questions of interpretation regarding the scope of an EU rule), whether the issue is indeed a question of (obvious or not) interpretation and not of application in light of the factual circumstances, and how can a question of EU law be brought to the attention of the last instance court. This final consideration attracts attention, as last instance courts are not required to raise on their own motion any possible issue of interpretation; however, litigants do not have the right to request a reference be made. As such, the obligation to consider referring is tied to whether last instance courts acquire knowledge of an issue of interpretation, with or without an explicit request for a reference by the parties.

The assumption that an issue of interpretation is tied to how an EU rule is applied takes one back to Consorzio. Indeed, AG Bobek in Consorzio, para. 149, explained the dangers of confusing uniform interpretation with uniform application, i.e. uniformity of outcomes. The judgment in Consorzio has been interpreted in literature as an endorsement of the AG’s position in favour of a distinction between interpretation and application (Broberg and Fenger, pp. 733-736). Indeed, it is the national courts that are entrusted with the legal classification of the facts in the given case. They may refer issues of application to the CJEU. Still, given that the CJEU does not formally have jurisdiction to adjudicate cases pending in national proceedings, the duty to refer should not cover questions of application. In the words of Broberg and Fenger, the lack of a distinction would “make it practically impossible to delimit the duty to refer”, opening a new Pandora’s box, decades after the start of the discussions revolving around CILFIT.

b) The justifications for the duty to state reasons

The AG identifies two sources of law for the duty to state reasons: Art. 267 para. 3 TFEU, and Art. 47 para. 2 CFR, each with its own rationale. The former serves the EU public interest objective of the uniformity of EU law. It is a purely objective obligation and does not confer any right to the parties (para. 43-47). The duty to state reasons under Art. 267 para. 3 TFEU aims to encourage last instance courts to consider their duty to refer seriously, thereby avoiding liability claims based on the Köbler case law (para. 48-51). 

Art. 47 para. 2 CFR corresponds to Art. 6 para. 1 ECHR and serves the objective of allowing the party to understand why the last instance court did not refer to the CJEU (para. 52-55). For the AG, this obligation to state reasons under the Charter is not connected to an explicit request for a reference being submitted by a party (para. 56-58). Under Art. 47 para. 2 CFR, a party has the individual right to receive a motivated decision. The AG recognizes that, depending on these different rationales, different requirements for the statement of reasons might be applied (para. 61).

The AG is correct in explaining that, under EU law, the duty to state reasons stems from two distinct provisions with two distinct rationales. Nonetheless, it is argued that this part of the Opinion has the following pitfalls. First, it does not explain how the public interest rationale of Art. 267 para. 3 TFEU relates to the principle of effectiveness. Second, it seems to misread the rationale behind Art. 47 para. 2 CFR.

As the AG noted, the duty to state reasons reinforces the obligation to refer, as last instance courts need to consider referring, and if not, justify their decision. In KUBERA, para. 62, the duty to state reasons directly “follows from the system established by Art. 267 TFEU”. The duty thus becomes corollary to the obligation to refer and serves the effectiveness of Art. 267 para. 3 TFEU, which ensures the absence of divergent case law among the member states (KUBERA, para. 35, CILFIT, para. 7, Hoffmann-Laroche, para. 5, and the Opinion, para. 26). Moreover, the duty to state reasons is a double-edged sword. As the AG noted, it might make it easier for the last instance court not to commit a manifest breach of a rule of law under Köbler. Still, it may also facilitate the enforcement of the obligation to refer, either through infringement proceedings or compensation claims, as it clearly demonstrates how the last instance court erred in law. The duty thus directly contributes to the effectiveness of Art. 267 para. 3 TFEU.

The rationale of the statement of reasons under Art. 47 para. 2 CFR has been explained in Trade Agency, para. 53, and aims to allow a party to understand why they lost a case and to bring an appeal against a judgment. AG Emiliou in KUBERA, para. 129, explains that a national court is not required to answer all the arguments put forward by the parties. Furthermore, the existence of a claim and the way this claim is argued is determinative of the need to explicitly state reasons for the ECHR (Wallishauser v. Austria, para. 85). As such, the idea of acknowledging a substantive right that is independent of the parties’ behaviour seems misplaced. Finally, the possibility of challenging the refusal to refer was not addressed by the AG. One could envisage an argument based on state liability claims under Köbler as a means of redress, which requires justification of the original decision.

c) Summary reasoning and the duty to state reasons

In Remling, the AG clarifies that summary reasoning has a national public interest objective, as it enables the proper management of the Council of State’s workload while maximizing legal protection through an open appeals system. For the AG, this counterbalances the public interest objective of Art. 267 para. 3 TFEU and allows summary reasonings not to contain any justification for applying CILFIT (para. 62-67).

Contrary to this, the lack of reasoning would negate the rationale of Art. 47 para. 2 CFR. As such, some reasoning must exist, albeit implicit, depending on the circumstances of each case (para. 68-73). According to the AG, implicit reasoning is allowed in situations similar to Baydar, where the circumstances of the case showcase that the decision was not arbitrary, and Harisch, where the last instance court endorses a judgment of a lower court which rejected a request for a referral, also endorsing the reasoning of that judgment (para. 74-76). The AG transposes the ECtHR case law to the case at hand. Since the national rule only enables but does not oblige the Council of State to refer, it is not contrary to Art. 47 para. 2 CFR. However, the last instance court must decide, based on the circumstances, if it embraces the outcome and reasoning of the lower instance court, and therefore it can decide only with summary reasoning, or if it makes a different assessment leading to the same outcome, in which case summary reasoning is not enough (para. 79-81). The Opinion defers to the Council of State to decide if, in the specific case, summary reasoning was enough.

If Harisch were applicable in the case at hand, the conclusion would have been reasonable. Yet, the Council of State explained that it does not necessarily endorse the reasoning of the lower court, nor does its summary reasoning indicate whether it agrees with the reasoning of that court. Two further comments relate to the Opinion`s concluding part.

The Opinion considers that Art. 267 para. 3 TFEU contains a public interest objective. This notwithstanding, if the duty to state reasons is based on the principle of effectiveness, as has been argued here, the national rule will need to give way to this structural general principle (Courage, para. 36). KUBERA considered that filtering mechanisms for granting leave to appeal are only compatible with EU law, when the last instance court considers whether it is obliged to refer, and, in its decision rejecting the request for leave, explains why a CILFIT exception is applicable. This obligation to state reasons did not allow for implicit reasoning. Granted, the Slovenian Supreme Court in KUBERA did not adopt the outcome of the proceedings before the lower court but instead decided whether the case was of objective importance to be considered on its merits.

The Opinion also calls for aligning the case law with Baydar. Baydar relates to a similar rule regarding appeals in cassation, which are declared inadmissible, as having no prospects of success, after a partial examination of the appeal. It preceded Consorzio and KUBERA. In Baydar, para. 50, the ECtHR accepted that there is no violation of Art. 6 para. 1 ECHR when a claim is either declared inadmissible or dismissed with summary reasoning, provided the decision is not arbitrary. However, Baydar also refers, in the preceding para. 49, to Aquino, and the rules of inadmissibility, to justify its stance under EU law. It is thus possible that, in the thinking of the ECtHR, inadmissibility and rejection with summary reasoning offer no prospects of success and thus do not alter the outcome of the dispute, thereby respecting the right to a fair trial. Contrary to this, EU law focuses on the correct application of CILFIT, not the appellant’s overall prospects of success.

4. Conclusion

Considering its conclusion, the Opinion can be read as one that reduces the requirements for last instance courts and preserves the national procedural rule on summary reasoning. It is submitted that, on the matter of national rules which provide for no reasoning, the Rubicon was crossed with KUBERA, and the emergence of effectiveness, which reduces the margins for implicit reasoning. Simultaneously, the AG’s decision to revisit CILFIT, specifically the notion of “question raised” and the blurring of the line between application and interpretation, may lead to further difficulties for the last instance courts in excusing themselves from the obligation to refer. This is coupled with the need to protect the corresponding right under Art. 47 para. 2 CFR, which is not dependent upon a request for a reference by a party. Finally, the AG does not explore the possibility of a conform interpretation of the national rule based on the information provided by the Dutch government (summary reasoning with supplementary statements).

All in all, the Opinion repeats that irrelevant questions can hardly be exceptions to the duty to refer and explains the two different sources of the duty to state reasons. The latter is a welcome addition to KUBERA. However, even though it attempts to mitigate the disturbance to the delicate balance in the member states’ system of justice, it still does not avoid asking for the moon from last instance courts.

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Posted by ALEXANDROS LYMPIKIS, PhD researcher, Institute for European Law, KU Leuven