At the end of 2021, the Court of Justice of the EU (“CJEU”) delivered a number of judgments on the importance of the preliminary reference procedure and the possibility and obligation of national courts to refer preliminary questions to the CJEU.
Article 267 TFEU generally obliges national courts to refer questions concerning the application or interpretation of European Union law to the CJEU. In the CILFIT judgment of 1982, the CJEU made two general exceptions to this obligation; if the question has already been answered by the CJEU (acte éclairé) or if its correct application may be so obvious as to leave no scope for any reasonable doubt (acte clair), a national court of last instance is relieved from its obligation to refer questions for a preliminary ruling.
On 6 October 2021, the CJEU particularly specified the acte clair exception. The CJEU states with regard to the acte clair that the national court must be convinced that the matter would be equally obvious to the CJEU and other courts of last instance of other Member States. The fact that a provision may be interpreted in different ways is not sufficient for the view to be taken that there is reasonable doubt as to the correct interpretation of a provision. On the other hand, the existence of diverging lines of case-law among the courts of a Member States or between Member States is a relevant factor to determine the existence of reasonable doubt.
The CJEU emphasises the autonomous responsibility of a court of last instance to determine whether and, if so, when a reference for a preliminary ruling must and can be made during national proceedings. According to the CJEU, the decision not to make a reference – whether or not at the request of a litigant – must include a statement of reasons that shows that one of the exceptions applies.
In the IS judgment, the CJEU also touched upon the autonomy of lower national courts in preliminary ruling proceedings. The CJEU ruled that the decision of a lower court to make a preliminary reference cannot be declared unlawful by a higher court on the ground that the questions raised are not relevant and necessary to the resolution of the dispute. The CJEU emphasises that it has exclusive jurisdiction to rule on the admissibility of questions referred for a preliminary ruling. The CJEU reiterates that the principle of primacy of European Union law generally requires the referring court to disregard a decision given by a supreme court if the lower court considers that that decision undermines the (effectiveness of the) preliminary ruling procedure.
The importance and purpose of the preliminary ruling procedure was further emphasised in Poland/PL Holdings Sàrl. In this case, the CJEU ruled on the application and interpretation of European law in arbitration cases. The case concerned a bilateral investment treaty between two EU Member States, which included a clause stipulating that any disputes were to be settled by arbitration.
The CJEU first held that the Member States concerned excluded disputes on the interpretation and application of European law from the jurisdiction of their own national courts – and thus from the European legal order – by concluding such an investment treaty. Relying on the 2018 Achmea judgment, the CJEU particularly ruled that such a clause prevents the possibility of a preliminary ruling procedure which constitutes a cornerstone of EU law. The CJEU held that the efficiency and effectiveness of European law cannot be guaranteed this way, and that therefore, such an arbitration clause is invalid.
In Poland/PL Holdings, the CJEU even went a step further by concluding that – based on the principles of the primacy of European Union law and loyal cooperation – Member States are obliged to ensure that disputes involving European law do not fall outside the European legal order. If such disputes are brought before an arbitral tribunal, the Member State must (actively) challenge the jurisdiction of that tribunal.