Final Courts’ Obligations To Cry Questions: The Cjeu Clarifies Cilfit

Daniel Sarmiento, Professor of European Union Law at the University Complutense of Madrid*

Last calendar week I published a post service on Schipani v Italy, where I suggested that the Strasbourg courtroom (the European Court of Human Rights) was becoming much stricter alongside national supreme courts’ duties to brand preliminary references to the Grand Duchy of Luxembourg courtroom (the CJEU) than the CJEU itself. I pointed at this paradox alongside a reference to CILFIT, hinting that this judgment had in all likelihood been a root of judicial rebelliousness together with that the Court of Justice was non doing much nearly it.

I am really happy to say that the Court of Justice has immediately proved me wrong.

In a landmark judgment delivered inwards the illustration of Ferreira da Silva, that Court, for the really showtime fourth dimension inwards history, stated that a supreme courtroom had breached its duty to brand a preliminary reference nether article 267.3 TFEU. After many years inwards which CILFIT seemed to live an opened upwards invitation to national courts of lastly instance to do every bit they saw lucifer when deciding whether to brand a reference or not, the acte claire doctrine has finally taken a bite.

I must acknowledge that the facts of the illustration made it hard for the Court to attain a dissimilar outcome. The Portuguese Supreme Court had clearly misapplied a long-standing case-law of the Court of Justice on transfers of problem organisation together with acquired rights of workers, using a criteria of interpretation that had been openly rejected past times the Court inwards the past. In this regard, the Portuguese Supreme Court had evidently non complied alongside the CILFIT criteria. But, every bit you lot all know, the CILFIT criteria are so wide and, at the same time, so exhaustive together with hard to comply with, that possibly all Supreme Courts of the European Union possess got every immediately together with and so breached Article 267.3 TFEU. So why has the Court of Justice immediately decided to larn a strict guardian of the acte claire doctrine?

The triggering constituent inwards Ferreira Silva seems to live the fact that at that spot had been rigid contradictions betwixt the courts of dissimilar Member States. It appears that at that spot were also considerable contradictions inwards the interpretation of Directive 2001/23 (concerning the rights of workers when a problem organisation is transferred) inwards Portugal amid showtime instance courts, but the Court of Justice stated that such circumstance was non plenty to entail a breach of Article 267.3 TFEU. What seems to live of import for the Court is the combination of national conflicting decisions and other conflicting decisions amid other Member US that possess got resulted inwards preliminary references to the Court. In the Court’s ain words:

“43. However, so far every bit the expanse nether consideration inwards the acquaint illustration is concerned together with every bit is clear from paragraphs 24 to 27 of this judgment, the inquiry every bit to how the concept of a ‘transfer of a business’ should live interpreted has given rising to a slap-up bargain of dubiousness on the business office of many national courts together with tribunals which, every bit a consequence, possess got institute it necessary to brand a reference to the Court of Justice. That dubiousness shows non entirely that at that spot are difficulties of interpretation, but also that at that spot is a peril of divergences inwards judicial decisions inside the European Union.

44. It follows that, inwards circumstances such every bit those of the illustration earlier the referring court, which are characterised both past times conflicting lines of case-law at national degree regarding the concept of a ‘transfer of a business’ inside the pregnant of Directive 2001/23 together with past times the fact that that concept oftentimes gives rising to difficulties of interpretation inwards the diverse Member States, a national courtroom or tribunal against whose decisions at that spot is no judicial remedy nether national police delineate must comply alongside its obligation to brand a reference to the Court, inwards club to avert the peril of an wrong interpretation of European Union law.”

Another interesting seem of the illustration is that the primary proceedings concerned an activity for damages against the Portuguese State, every bit a outcome of the judgment of the Supreme Court that breached Directive 2001/23. In this regard, the Court of Justice was faced alongside Portuguese damages law, according to which an activity for damages against the State can entirely live inadmissible if the conclusion that caused the loss or impairment has non been laid upwards aside. According to the Court, this requirement makes it also hard to claim damages together with thence breaches the regulation of effectiveness.

Following the precedent of Traghetti del Mediterraneo, the Court has taken the adventure to strike out to a greater extent than or less other burdensome procedural dominion whose primary problem is to maintain the courts rubber from damages actions. But inwards Ferreira da Silva the Court has gone fifty-fifty further: it has non entirely challenged a Supreme Court for the means inwards which it has handled European Union Law together with its duty to brand a reference, but it has also, all inwards 1 decision, removed to a greater extent than or less other brick inwards the wall that protect national courts from intrusive (but sometimes rightful) litigants invoking European Union Law.

I believe this is really practiced tidings together with this judgment should live welcome past times all European Union lawyers. The province of affairs inwards to a greater extent than or less Member States, peculiarly inwards courts of lastly instance treatment requests to brand references, had larn troublesome. Every European Union lawyer alongside sense inwards the bar knows this. In Ferreira da Silva it seems that the Court has finally taken measures together with it has sent a clear message to its national counterparts. The facts of the illustration decease far tardily for the Court to justifiy this decision, so national judges tin hardly complain for having to larn by alongside also stringent an interpretation of Article 267.3 TFEU. The Court has made a wise motion together with has chosen the right illustration to do it.

Ferreira da Silva was non rendered past times the Grand Chamber, but possibly that makes sense. After all, the Court has only implemented its previous consolidated case-law, which had been reaffirmed many times past times the Grand Chamber. And furthermore, seeing Koen Lenaerts sitting inwards this five-judge sleeping room is a sign that the judgment tin live every bit practiced together with solid every bit a Grand Chamber decision.

Barnard & Peers: chapter 10

*This post service previously appeared on the Despite our Differences blog

Photo credit: www.lapsi-project.eu

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