By Elisabet Ruiz Cairó
In two recent preliminary rulings, the ECJ elaborated on the applicability of the acte clair doctrine. In these judgments, the Court seems to be looking for a new balance between the adoption of a strict approach towards national judges who are unwilling to make preliminary references and maintaining a cooperative relationship with national courts, effectively relaxing the conditions under the Cilfit doctrine.
Although Article 267 TFEU established a duty for national supreme courts to refer to the ECJ, the acte clair doctrine, mentioned for the first time in Cilfit, is an exception to this general rule. Indeed, in this landmark judgment the Court stated that ‘the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved’ (paragraph 16).
However, not only must the application of EU law be obvious to the national judge, but there are additional conditions that must be fulfilled. The national judge must also be satisfied that other national courts and the ECJ would also consider the matter to be an obvious one. Furthermore, the national court must take into account the particularities of EU law and the different interpretations to which it gives rise. These strict conditions require a teleological interpretation of the previous case-law and the judgments of the ECJ must be checked in all the different languages.
Therefore, there has been widespread criticism of the conditions required by Cilfit. In Gaston Schul, Advocate General Colomer stated that ‘the proposed test was unviable at the time it was formulated, but, in the reality of 2005, it seems preposterous’ (paragraph 52).
What is striking is that, although in theory the formulation of the acte clair doctrine by the ECJ is extremely strict, in practice the Court has been very flexible when applying the different criteria. Some authors have noted that this broad approach has led to a sort of ‘judicial rebelliousness’ from national judges and that the Court has done nothing about it. This was also mentioned by AG Colomer:
‘The fact that there is absolutely no possibility of adopting the Cilfit approach helps to explain why, on the few occasions when it has subsequently relied on that judgment, the Court has restricted itself to reminding the referring court of the case-law and to stating merely that the correct application of Community law is so obvious as to ‘leave no scope for any reasonable doubt’’ (paragraph 53 in Gaston Schul).
However, in two recent preliminary rulings, the Court has had the opportunity to clarify its previous case law.
The Court confirms its traditional approach in the Case of X
The question here is whether a national supreme court which considers that the application of EU law is so obvious as to leave no scope for any reasonable doubt has a duty to refer to the ECJ a preliminary question when there is a lower national court that has made a reference to the Court in a similar case and with the same legal issue. Can a national supreme court still state that the application of EU law is obvious when a lower court is not sure about how to apply the law?
The Court establishes that ‘that fact alone does not preclude the supreme court of a Member State from concluding (…) that the case before it involves an ‘acte clair’’ (paragraph 60). Therefore, according to the ECJ, the national supreme court ‘might decide to refrain from making a reference to the Court and resolve the question raised before it on its own’ and it is not required ‘to wait until the Court of Justice has given an answer to the question referred for a preliminary ruling by the lower court’ (paragraph 61).
This ruling is not striking in itself as it does not bring anything new. The Court is only confirming its flexible approach towards the acte clair doctrine and reaffirming its will to keep a cooperative relationship with national supreme courts. However, the interest of this ruling derives from the context in which it was delivered.
A move towards a stricter interpretation of the Cilfit conditions
On the same day the ECJ delivered another preliminary ruling in the case of Ferreira da Silva where the outcome was very different. Although more details on this case can be found here, it is important to note that the ECJ stated for the first time that a supreme court had breached its duty to make a preliminary reference under article 267.3 TFEU, finding that the acte clair doctrine cannot be applied in this case. How can these two different outcomes be explained?
Of course, both judgments refer to very different situations and they have to be read accordingly. In Ferreira da Silva the Court accepts that simply because lower courts have interpreted a provision of EU law in a particular way does not preclude a national supreme court from considering that the interpretation of that provision in a different way is so obvious that there is no reasonable doubt (paragraph 42). This statement is therefore quite similar to the reasoning of the Court in X.
However, in Ferreira da Silva the Court also notes that ‘the question as to how the concept of a ‘transfer of a business’ should be interpreted has given rise to a great deal of uncertainty on the part of many national courts and tribunals’ which ‘shows not only that there are difficulties of interpretation, but also that there is a risk of divergences in judicial decisions within the European Union’ (paragraph 43). As a consequence, the fact that there are frequently difficulties when interpreting a particular expression in various Member States and that there are conflicting lines of case-law implies that ‘a national court or tribunal against whose decisions there is no judicial remedy under national law must comply with its obligation to make a reference to the Court, in order to avert the risk of an incorrect interpretation of EU law’ (paragraph 44).
As one can appreciate, the facts were thus very different. In X, the divergence takes place only between a national lower court and the national supreme court of a Member State whereas in Ferreira da Silva there is a large degree of uncertainty among national courts in general.
Nevertheless, delivering different preliminary rulings on the same day can also be a signal to make it clear that, although the Court is not willing to abandon its cooperative strategy towards national courts, it is ready to take some steps to avoid the abusive use of the acte clair doctrine that many national courts were making and which is contrary to the uniformity of EU law that the ECJ pursues through the preliminary ruling mechanism. An example of this abuse is Katsarou v Greek State. The Greek Conseil d’Etat considered that a refusal to recognise a law degree was not contrary to EU law because education was an exclusive competence of the Member States. According to the Court, Article 165 TFEU neutralized the provisions of the Treaty on the free movement of persons and the case law on mutual recognition. It therefore considered that the interpretation of EU law was acte clair and it was not necessary to make a preliminary reference, but the ruling contrasts with all the case law of the ECJ in that area.
However, as AG Wahl notes in his opinion in X, adopting a very narrow approach to the conditions attached to the acte clair doctrine, ‘would seem in contradiction both with reality and with the spirit of cooperation which characterises the relationship between the Court of Justice and the national (supreme) courts’ (paragraph 64). The ECJ might have opted for a ‘middle of the road’ approach in an attempt to balance both interests.
To conclude, it will be interesting to see whether Ferreira da Silva was an exceptional ruling or whether there is a new line of case-law developing concerning the duty to ask for preliminary rulings by national supreme courts. The second option seems more likely and probably more appropriate; however, a strong hierarchy between the ECJ and national courts should be avoided, as this was not the original purpose of the preliminary ruling procedure.