AG Proposes Paradigm Shift Regarding the Duty to Refer for National Last Instance Courts
28 April 2021
2018-Max_Planck_Herr_Wahl_1355_black white_Zuschnitt.jpg Thomas Wahl

In his opinion dated 15 April 2021 in Case C-561/19 (Consorzio Italian Management and Catania MultiserviziSpA/Rete Ferroviaria Italiana SpA), Advocate General (AG) Bobek proposed that the CJEU revisit its case law on exceptions from the duty borne by national last-instance courts to refer questions on the interpretation of Union acts to the CJEU (Art. 267 TFEU). The exceptions were established in the CILFIT judgment of 6 October 1982 (C-283/81); they are widely known as the “acte éclairé” and “acte clair” doctrine. AG Bobek stated that the current approach relies too heavily on the subjectivity of the national judge and should be replaced by a more objective imperative of securing uniform interpretation of EU law across the EU. According to his opinion, national courts of last instance have a duty to refer a case for a preliminary ruling on the interpretation of EU law, provided that the following three cumulative requirements are met:

  • The case raises a general issue of interpretation of EU law;
  • EU law can be reasonably interpreted in more than one possible way;
  • The way in which EU law should be interpreted cannot be inferred from existing CJEU case law or from a single, clear enough judgment of the Court.

If just one of these requirements is not met, the national court of last instance is relieved of the duty to refer. AG Bobek indicated that the CJEU should strive for a paradigm shift (away from its CILFIT concept) in order to keep the system of preliminary ruling procedures feasible and warranted.

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EU European Court of Justice (ECJ)


2018-Max_Planck_Herr_Wahl_1355_black white_Zuschnitt.jpg
Thomas Wahl

Max Planck Institute for the Study of Crime, Security and Law (MPI CSL)

Public Law Department

Senior Researcher