Op-Ed: “Celebrating CILFIT while changing course, albeit slightly and subtly” by Jasper Krommendijk
The Grand Chamber of the Court of Justice decided not to revisit CILFIT (283/81) in its much awaited judgment in Consorzio Italian Management e Catania Multiservizi (C-561/19). It thus did not heed the fervent call of Advocate General (AG) Bobek for ‘a major paradigm shift’ and a change of the ‘utterly unfeasible’ CILFIT−criteria (see also this News Alert). The Court rather ‘reasserted’ CILFIT and recalled its previous case law.
At first sight it seems that the Court of Justice has completely ignored the Opinion of AG Bobek. A closer look at the judgment, nonetheless, reveals that the Court of Justice relaxed the requirements for the CILFIT assessment in two ways even though it left the exceptions as such untouched. The judgment is also noteworthy for the acceptance of a duty for the highest courts to provide reasons for their decisions not to refer on the basis of Article 47 of the Charter.
No revision of the CILFIT−exceptions, but a relaxation of its requirements
The Court of Justice did not replace CILFIT with a new test such as the one proposed by Bobek. The AB had proposed a duty to refer only in relation to a ‘general issue of interpretation of EU law’. The Court of Justice stuck to the age-old CILFIT−exceptions for two good reasons. First, the disadvantage of a new test is, as Bobek himself also acknowledged, that ‘one unicorn [is] replaced immediately by another’ (Opinion, point 149). In other words, the vague, open and subjective CILFIT−requirements would be replaced by similarly ambiguous concepts like ‘general issue’ or ‘reasonably’. Second, a complete overhaul of CILFIT in times of rule of law backsliding could also send a wrong signal to courts in various Member States that question important doctrines of EU law (see here and here) or abuse CILFIT and especially the acte clair exception of ‘reasonable doubt’ (see also the Research note on application of CILFIT by the highest national courts). The implicit message would be that national courts receive (even) more room to go their own way without proper recourse to the EU legal framework.
Rather than changing the CILFIT−exceptions, the Court of Justice opted for two subtle refinements and relaxations of the burdensome requirements for national courts to establish an acte clair. This shows that CILFIT is flexible enough to accommodate changes so that the theory better reflects actual practice. This is to be applauded. Firstly, the Court of Justice made clear that national courts are not required to examine and compare all authentic language versions of EU law even though they cannot confine themselves to one version only (paragraphs 43-44). This unequivocal and unsurprising acknowledgment makes joking assertions during university lectures as to the near impossibility for national courts to study all 24 language versions hopefully a thing of the past. A highest court only has to take account of the divergences between language versions ‘of which it is aware, in particular when those divergences are set out by the parties and are verified’ (paragraph 44).
Secondly, in a quite puzzling and vague paragraph the Court of Justice determined: ‘the mere fact that a provision of EU law may be interpreted in another way or several other ways, in so far as none of them seem sufficiently plausible to the national court or tribunal concerned, in particular with regard to the context and the purpose of that provision as well as the system of rules of which it forms part, is not sufficient for the view to be taken that there is a reasonable doubt as to the correct interpretation of that provision’ (paragraph 48). It is particularly noteworthy that the Court of Justice subsequently mandated the national courts to ‘have regard’ to the objective of the preliminary ruling procedure in their assessment, namely the uniform interpretation of EU law (paragraph 49). It should be recalled that uniformity played a central role in the Opinion of AG Bobek, who had tried to encourage the Court of Justice to go back to the Hoffmann-Laroche (107/76) approach informing the duty to refer, namely preventing divergent lines of national case law (see especially point 180 of the Opinion, mentioning uniformity four times). These two paragraphs close the debate following the Court’s judgments in X and Van Dijk (Joined Cases C‑72/14 and C‑197/14) and Ferreira da Silva (C-160/14) as to whether the CILFIT−requirements are relaxed in favour of the less stringent approach in X and Van Dijk.
The two refinements seem to leave sufficient scope for a more proactive and more independent and good faith interpretation of EU law by national courts. It allows for a pragmatic reading of CILFIT as adopted by some national courts. Some judges of the Dutch Council of State are, for example, of the opinion that there is no need to refer when the answer to the question is ‘75–80 per cent clair’ or when it is ‘sufficiently, albeit not entirely but to a considerable extent, clair or éclairé’ (see here). In a Dublin Regulation case, the Dutch Council of State, for example, interpreted the term ‘expiration’ in Article 12(4) on its own even though there was no (established) case law of the Court of Justice. It applied different interpretation methods in line with the CILFIT−requirements in a structured and transparent way, including the examination of different language versions. Consorzio Italian Management e Catania Multiservizi seems to leave room for such a good faith interpretation of EU law whereby a national court is not using CILFIT as a fig leaf to avoid a reference. It is positive that the Court of Justice gives a little more room to national courts as co-interpreters of EU law. This reflects the maturity of the EU legal order and is also logical in the light of the rapidly growing workload of the Court of Justice.
Enforcement of the referral duty: A duty to provide reasons
While the Court of Justice relaxed the burdensome CILFIT−requirements, it at the same time expanded its arsenal to enforce the obligation to refer. It now unequivocally accepted for the first time the obligation for the highest courts to provide reasons in line with the CILFIT−exceptions for their decisions not to refer on the basis of Article 267 TFEU and Article 47 of the Charter (see earlier and more implicitly AFNE (C-379/15), paragraphs 51-52). It is surprising that the Court of Justice (as well as AG Bobek) did not explicitly refer to the burgeoning case law of the European Court of Human Rights (ECtHR) in relation to Article 6 ECHR on the right to a fair trial following Dhahbi (17120/09; for an overview, see here). The ECtHR has by now established violations of this provision for the failure of the highest courts to provide reasons for their decisions not to refer at least five times (the most recent judgment is Bio Farmland Betriebs v Romania (43639/17, see also the News Alert). The move of the Court of Justice is thus not surprising, also in the light of the tradition in several Member States (for a discussion by Lacchi, see here). Nonetheless, one should not forget that the acceptance of a duty to provide reasons is not an uncontroversial step, especially because the Court of Justice refrained from adopting such a duty in Aquino (C-3/16). Ironically, the Court of Justice and AG Bobek themselves provided little reasons for their interpretation.
The increased focus on strengthening the enforcement of the Article 267 TFEU framework is logical and much warranted in the light of the already mentioned creative (ab)use of CILFIT. It fits into the verticalization of the interaction between national courts and the Court of Justice, moving away from the cooperative horizontal depiction of this ‘partnership’ or dialogue. Earlier the Court of Justice made clear that it does not shy away from giving a rap over the knuckles in the context of an infringement procedure on the basis of Article 258 TFEU as in Commission v France (C-416/17). A duty to provide reasons is also a welcomed addition to the largely theoretical possibility of infringement action and the little used and often unsuccessful state liability procedures in relation to omissions to refer as accepted in Köbler (C-224/01).
No engagement with the interpretation vs application dichotomy
A last point to be noted is that the Court of Justice did not engage with the dichotomy of interpretation vs application and the suggestion of AG Bobek to alleviate the obligation to refer in relation to more factual questions about the correct application of EU law in individual cases (Opinion, points 96-98). The rationale behind Bobek’s proposal is understandable. It reflects AG Jacobs’ call for ‘self-restraint’ in his Opinion in Wiener (C-338/95). He cautioned against national courts referring ever more for ‘further clarification’ when the facts of the cases (slightly) differ from the cases in which the Court of Justice had answered similar questions. As attractive as it may sound, bringing this dichotomy into the CILFIT−mix is unworkable. It is nearly impossible to distinguish between interpretation and application. This distinction is already difficult for the Court of Justice to handle, let alone national courts. The Court of Justice frequently goes beyond its interpretative task and moves into the domain of the national judge, namely application of the interpretation to the dispute (cf. Bobek in point 149). In a recent (forthcoming) study of 25 Court of Justice judgments in 2020-21 following references of Dutch courts, I even found that the Court went beyond this division of tasks in 12 cases by engaging in varying degrees with the facts of the dispute or the applicable national legal framework (cf. Zglinski).
The question is also whether it is even desirable to make a sharp distinction in this field. Interpretation of the law is often only possible in the lights of the facts of the case. What is more, national courts could also have valid reasons, other than purely legal ones, for referring more factual questions about the application of established case law (for a more extensive discussion see my forthcoming monograph).
Jasper Krommendijk is Associate Professor of International and European law and Director of the Research Centre for State and Law (SteR) at the Faculty of Law, Radboud University. He is author of ‘National Courts and Preliminary References to the Court of Justice’, Elgar, 2021. This monograph will be published Open Access late October 2021.