European Union Law ( EU Law) - Response of academia to Acte Clair
The notion of acte clair itself has received a mixed response from academics. The general agreement appears to be that the ECJ's support of acte clair in CILFIT (1982) was correct. Regarding the requirements that must be met before national courts can use the concept, opinions are diverse. The CILFIT decision would make it possible for national judges to explain away any hesitation they might have about requesting a preliminary ruling. Only the requirement that the various language versions be compared had any teeth among the considerations that national courts had to make before determining that the meaning of a provision of [Union] legislation was clear. Overall, CILFIT would allow national courts to make their own decisions about [Union] law, to put it briefly. The Use and Abuse of Article 177 EEC, A Arnull (1989), 52 MLR 622 Professor Rasmussen, on the other side, is possibly the CILFIT commentator who is the most harshly critical (1982). Although he agrees with the ECJ's decision to permit national courts of last resort to resolve issues of EU law on their own, he thinks the CILFIT (1982) criteria are so strict that the opinion, as a whole, accomplishes the opposite of what the Court said it meant to do. He stated in a piece from 1984: According to the author, CILFIT indicates something entirely different from what it initially seems to imply. The true approach differs from the one that is initially presented. Not incorporating an acte clair notion into [Union] legislation is the real goal of CILFIT. Its purpose is to caution national judiciaries when they encounter issues with the interpretation and application of [Union] law. The European Court's Acte Clair Strategy in CILFIT (1984), 9 ELR 242 by H. Rasmussen In order to make acte clair more widely accessible, he reiterated his critique in 2000 and urged the ECJ to revise the CILFIT (1982) judgment: The current problems facing the Court of Justice are their own doing. I'm referring to the submission straightjacket that the Court in CILFIT constructed. This decision served as a magnet, pulling a lot of cases to the Court that were frequently unnecessary. The ECJ should modify CILFIT's submission requirements to lessen the requirements that it places on the obligation of national courts to use [Article 267]. "Remedying the Crumbling EC Judicial System" by H. Rasmussen, 2000, 37 CMLR 1071
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