European Union Law( EU Law) - Acte clair, and mandatory references
The correct application of [Union] legislation may be so evident as to leave no room for any reasonable doubt as to how the matter addressed is to be answered, according to the ECJ in CILFIT (1982). A national "court of last resort" would thereafter have the option of declining to use the Article 267 procedure. Acte clair, or "clear act," is a notion derived from French law that refers to a choice not to obtain a ruling because a clause is "so evident as to leave no opportunity for reasonable doubt." However, the ECJ made it very explicit in CILFIT (1982) that acte clair must be employed with extreme caution: The national court or tribunal must be persuaded that the issue is equally evident to the courts of the other Member States and to the Court of Justice before it may conclude that such is the case. The national court or tribunal may choose not to refer the issue to the Court of Justice and assume control over its resolution only if those requirements are met. In the beginning, it is important to keep in mind that diverse language versions of [Union] legislation are equally authentic. Therefore, a comparison of the various language versions is necessary in order to comprehend a provision of [Union] legislation. Even when the various language versions are perfectly consistent with one another, it is important to keep in mind that [Union] law uses terminology specific to it. Furthermore, it must be emphasized that legal terms used in [Union] law and the laws of the individual Member States do not always have the same meanings. Finally, each provision of [Union] legislation must be considered in the context of all other provisions, with due consideration for their goals and the stage of development at the time the provision in question is to be put into practice. In X & Van Dijk (Cases C-72, 197/14) [2016] 1 CMLR 27, the Dutch Supreme Court asked the European Court of Justice (ECJ) whether it was permitted to treat the interpretation of a provision of EU law as acte clair (which it was inclined to do), despite the fact that a lower court had, coincidentally, requested a preliminary ruling on the same provision (albeit in a different case) and did not view the matter as acte According to the ECJ, CILFIT provided the national court of last resort "sole duty" for deciding whether or not EU law was correctly applied in a way that left no room for any conceivable room for debate. Therefore, it followed that the decision about whether the in question piece of EU legislation was acte clair should be made by the national court of last resort "alone" and "independently." The top court of a Member State is permitted to draw the conclusion that the case at hand includes an acte clair based on its consideration of the facts and in accordance with the standards outlined in the judgment in CILFIT, despite the fact that a lower court had asked for a decision. The European Court of Justice (ECJ) reaffirmed that, generally speaking, "the fact that other national courts or tribunals have given contradictory decisions is not a conclusive factor capable of triggering the obligation" set forth in Article 267 in Ferreira da Silva e Brito & Others v. Portugal (Case C-160/14) [2016] 1 CMLR 26. This case was decided on the same day as X & Van Dijk (3). A national court of last resort "may take the view that, even though the lower courts have interpreted a provision of EU law in a particular way, the interpretation that it proposes to give of that provision, which is different from the interpretation espoused by the lower courts, is so obvious that there is no reasonable doubt," the Court continued. However, the ECJ found that under Article 267, the Portuguese Supreme Court ought to have addressed the issue of how to interpret the words "transfer of an undertaking" in Directive 2001/23 to the ECJ in the instance at hand (3). The "conflicting lines of case law at the national level" and "the fact that that idea frequently gives rise to issues of interpretation in the various Member States" were to blame for this. Intermodal Transports (Case C-495/03) [2005] ECR I-8151, where the Court stated that the national court or tribunal must "in particular" be convinced that the other Member States' national courts and the ECJ itself would find the matter "equally obvious," emphasized the instruction not to abuse acte clair.
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