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Dolores Utrilla
15th April 2021
Human Rights Institutional law Justice & Litigation

AG Bobek advises the Court of Justice to revisit its CILFIT case law on the duty to make references for preliminary rulings

Advocate General (AG) Bobek has just delivered his Opinion in Consorzio Italian Management e Catania Multiservizi (C-561/19), a Grand Chamber case stemming from a request for a preliminary ruling from the Italian Council of State (Consiglio di Stato) on (i) the scope of the duty to make references for preliminary rulings on the interpretation of EU law, and (ii) the interpretation of the principle of equal treatment, the freedom to conduct a business, and workers’ rights under the TFEU, the Charter, the European Social Charter, and the 1989 Community Charter of the Fundamental Rights of Workers.

In accordance with the Court’s request, AG Bobek’s Opinion focuses exclusively on the first question raised by the referring court, suggesting that the Court of Justice revisit its CILFIT and Others case law (C-283/81). According to the Opinion, the duty to refer under the third paragraph of Article 267 TFEU and the exceptions to it should be interpreted in a way that reflects the needs of the current EU law judicial system, and so that they can then be realistically applied and enforced.

More specifically, the Opinion advises that the Court of Justice rule as follows:

‘Under the third paragraph of Article 267 TFEU, a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law is to refer the case to the Court of Justice, provided that, first, that case raises a general issue of interpretation of EU law, which may, second, be reasonably interpreted in more than one possible way and, third, the way in which the EU law at issue is to be interpreted cannot be inferred from the existing case-law of the Court of Justice. Should such a national court or tribunal, before which an issue of interpretation of EU law has been raised, decide not to submit a request for a preliminary ruling pursuant to that provision, it is obliged to state adequate reasons to explain which of the three conditions is not met and why’.

The Opinion is available here.


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