European Union Law ( EU Law) - Acte clair and British courts
Acte clair was enthusiastically backed by Lord Denning MR in Bulmer v. Bollinger (1974): "The English court may assume the point is pretty obvious and free from question." In that case, the Treaty only needs to be applied, and the English court is responsible for doing so. In a similar vein, Lord Diplock stated in Garland v. BREL [1979] 1 WLR 754 in the House of Lords that a reference would not be necessary when there was a "considerable and consistent line of case law" making the solution "obvious and inescapable." However, Lord Bingham MR in the Court of Appeal stated in Commissioners of Customs & Excise Commissioners v. Samex [1983] 1 All ER 1042 that national courts should be conscious of the distinctions between national and EU legislation, of the pitfalls if they got it wrong, and of the paramount need for uniform interpretation throughout the EU. According to Lord Bingham MR "We understand the proper course of action for a national court (other than a final court of appeal) to be quite clear; if the facts have been established and the [Union] law issue is material to the court's ultimate decision, the appropriate course is typically to refer the issue to the ECJ unless the national court can do so with absolute certainty." The national court must take into account the distinction between national and [EU] law, the challenges that a national court faces when stepping into uncharted territory, the need for consistent interpretation across the [Union], and the significant advantages that the ECJ enjoys when interpreting [EU law]. The acte clair theory is crucial in eliminating time-consuming, pointless demands. It can, however, be abused, as was the case in R v. Chief Constable of Sussex, ex parte International Trader's Ferry Ltd [1998] 3 WLR 1260, where the House of Lords declined to request guidance on the interpretation of the words "measures" and "public policy" in Articles 35 and 36. The ITF case received a negative response from academics: ITF is by no means a perfect example of how the courts have carried out their responsibility to apply [Union] law. Even while it is likely that the outcome is the right one, it is impossible to know for sure. The case has at least three moot points. There is a strong case that a reference should have been made despite the House of Lords' obvious unwillingness to use the preliminary [rulings] procedure to ask the Court of Justice for clarification. Police, Protest, and Free Trade by E. Baker (2000) Black LR 95 The same issue was raised by Erika Szyszczak, who stated that it was "surprising that the House of Lords did not make a [Article 267] reference" in her article "Fundamental Values in the House of Lords" (2000, 25 ELR 443). Abbey National plc v. OFT [2009] UKSC 6; [2009] 3 WLR 1215 is a more recent instance of the UK Supreme Court acting with "palpable reluctance" while using the preliminary rulings procedure, despite being required to do so in Article 267's third paragraph. Even though all five judges agreed that the matter should not be sent to the ECJ, only one—Lord Mance—actually gave the CILFIT requirements any consideration. He came to the conclusion that the chance of the contested clause having a different meaning in other versions of the law was "extremely remote" and that it was unlikely that the ECJ or the courts of the other Member States would disagree with the Supreme Court's interpretation. Lord Walker, on the other hand, merely said, "We should accept the case as acte clair." Although the situation was not acte clair, Lord Phillips argued that it should not be addressed because "it would not be proper." Again, the academic response was unfavorable. The Supreme Court came to a different decision than the High Court judge and the three judges in the Court of Appeal did, according to Paul Davies, who drew attention to this. In Davies' article, "Bank charges in the Supreme Court," published in 2010's 69 CLJ, he referred to the Supreme Court's decision on the acte clair point as "dubious" since "four experienced judges [in the High Court and the Court of Appeal] disagreed with the Supreme Court's interpretation." There are several additional instances where the UK Supreme Court reached a decision without first getting a preliminary ruling and which concerned a disputed topic of EU law. Consider if the Supreme Court acted in conformity with Article 267(3) when you learn about them later. Jivraj v Hashwani [2011] UKSC 40; [2011] 1 WLR 1872; X v Mid-Sussex Citizens Advice Bureau [2012] UKSC 59; [2013] 1 All ER 1038; and North & Others v Dumfries & Galloway Council [2013] UKSC 45. Russell & Others v Transocean International Resources Ltd [2011] UKSC 57 (see Chapter 17); Russell & Others v Transo (all discussed in Chapter 18). Magmatic Ltd v. PMS International [2016] UKSC 12; [2016] 4 is a relatively recent case. The UK Supreme Court determined that the point of EU law at issue in All ER 1027, sometimes known as the "Trunki" case, was acte clair. The UK Supreme Court and the Trunki case: Missed Opportunities, Mysteries, and Misunderstood attracted criticism for not requesting a preliminary ruling, according to Sara Ashby (Ashby, S, "The UK Supreme Court and the Trunki case: Missed Opportunities, Mysteries, and Misunderstood" (2016) 38 EIPR 527).
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