Recent developments in the ‘acte clair’ case law of the EU Court of Justice: towards a more flexible approach

This article examines the acte clair doctrine in light of the recent rulings of the Court of Justice of the European Union in Ferreira da Silva and X and van Dijk. It first analyses the earlier case law on acte clair, disclosing inconsistencies in the application of its requirements. Then, it offers a critical review of Ferreira da Silva and X and van Dijk.

It claims that the Cilfit criteria, although often quoted in judgments and doctrine, have been applied neither consistently nor truly rigidly by the Court. Instead, a more flexible approach to acte clair requirements is taking shape, while the Court is simultaneously reminding national courts that its discretion on preliminary reference issues is not unlimited. Finally, the article criticizes Ferreira da Silva and X and van Dijk for missing the opportunity to further clarify the normative content and the legal status of the Cilfit criteria.