AG Bobek’s opinion on the duty of national courts of last instance to request a preliminary ruling

The AG focused exclusively on the first question referred, which relates to the interpretation of the third paragraph of Article 267 of the Treaty on Functioning of the European Union (TFEU), which sets the duty, for national courts of last instance, to refer a case to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

AG Bobek analyzed existing case-law on this topic, including the CJEU’s decision in the CILFIT case (C-283/81), where the CJEU identified three exceptions to the duty to refer of courts of last instance:

  • the question asked is not relevant, i.e. the answer to that question cannot affect the outcome of the case’;
  • a precedent has already been established by the Court (also referred to as “acte éclairé”);
  • the relevant provision of EU law is so clear that there is no reasonable doubt as to the manner in which the question raised is to be resolved (also referred to as “acte clair”).

The AG challenged the criteria and noted that requesting courts to make references in all cases where reasonable doubt exists leads to a significant increase in the number of requests for preliminary rulings, which is difficult to be administered by the CJEU.

Source KPMG



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