January 23
2022
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Trajan Shipley
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5th November 2021
Institutional law Justice & Litigation

FIDE 2021: the preliminary reference procedure

In the third subpanel of Topic 1 on national courts, the FIDE Congress focused on the preliminary reference procedure and some of the challenges currently affecting the cooperation mechanism. In particular, the rapporteurs portrayed the situation when it comes to the CILFIT criteria, as recently reviewed and updated by the Court of Justice in the case of Consorzio Italian Management (C-561/19). 

Michal Bobek highlighted the fact that Consorzio Italian Management is an important ruling given that it codifies the position of the Court in a Grand Chamber judgment, thus providing a robust answer to doubts as to the current status of the CILFIT case-law. He insisted on the fact that, as he pointed out in his Opinion in the said case, the criteria are subjective and allow too much leeway to national courts of last resort, which results in the need for further objective criteria to provide more legal certainty. 

The discussions also developed into the issue of whether national courts or national legislation can restrict the ability of other national courts to make references, a result that Michal Bobek defined as clearly precluded by EU law in any circumstance, although he recognized the fact that there have been attempts of this kind in the past. 

Some considerations were made by the audience as to the need of the Court of Justice to engage more closely with national courts when they make preliminary reference, to which Judge Piçarra, chairing the session, reacted by reminding how important the role of the national judge is in framing a case before the Court of Justice, and how cooperation is based on a reciprocal relation, in which the Court of Justice can also refer questions back to the national court when it has doubts on specific matters of the case. 

The session was followed by the final panel on mutual recognition and mutual trust, in which the discussion focused on the current case-law of the Court of Justice concerning European arrest warrants and rule of law considerations. The two-part test of the LM (C-216/18) judgment was discussed and, although there was a critique coming from some quarters as to the convenience of this strict approach, there was an overall majority of opinions in support of the current case-law. There were also discussions as to the scope of the Court of Justice’s task in interpreting the European Arrest Warrant Framework Decision, to which the rapporteurs agreed in the need for the EU legislator to step in and define some of current issues raised by this instrument, instead of relying solely on the Court of Justice. 

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