The new format of the acte clair doctrine and its consequences

Introduction:

The act clair doctrine, introduced in EU law by the Court of Justice of the EU in its landmark CILFIT judgment, is one of those rare issues on which almost everyone agrees to disagree. Some have vilified it, others have praised it, but none have treated it with indifference.

As is well known, Article 267 TFEU confers jurisdiction on the Court to give preliminary rulings concerning both the interpretation of the Treaties and acts of the institutions, bodies, offices or agencies of the Union and the validity of those acts. The third paragraph of that Article provides that a national court or tribunal is obliged to make a reference if there is no judicial remedy under national law against its decisions. In 1982 the Court introduced an exception to that obligation, which became known as the acte clair doctrine, according to which national courts of last instance may refrain from making a preliminary reference to the Court when the “correct application of EU law is so obvious as to leave no scope for any reasonable doubt”.

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This article will develop as follows. After a brief reminder of the CILFIT version of the acte clair doctrine (section 2), its new format, as it results from the Court’s judgments in X and Van Dijk and Ferreira da Silva e Brito, will be examined in some detail (section 3). Section 4 will consider the consequences of the newly recalibrated acte clair doctrine and the adequacy of the EU system of remedies to prevent and sanction its possible abuses. The article also puts forward a number of propositions with a view to invigorating  the efficiency of the existing control mechanisms (section 5).

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