CYIL vol. 10 (2019)

VÁCLAV STEHLÍK CYIL 10 ȍ2019Ȏ decision-making. Although there were suggestions to reconsider the admissibility of the questions raised by national courts, 3 the CJEU has not shown much comprehension in this regard. It accentuates the competence of national courts to decide whether the preliminary ruling procedure is necessary for the case and refuses to decide only in a very limited set of cases. 4 In CILFIT 5 the CJEU formulated conditions under which national courts of last instance will not be obliged to initiate the procedure, yet, the conditions are rather strict and not easily to satisfy. National courts may have a varying motivation why (not) to initiate the procedure and their decision may be strongly influenced by the parties of the dispute and their arguments put forward in the procedure. However, it does not mean that the (non-)referral would be fully in hands of national courts since art. 267 TFEU clearly sets up the EU law-based obligation of courts of last instance to initiate the procedure unless the interpretation is clear ( acte clair ) or has been already clarified ( acte éclairé ) by the CJEU ( CILFIT criteria). The failure of the national court of last instance to initiate the procedure violates the EU law and may establish the state liability for damages. 6 Aside the consequences predicted by the EU law the refusal of the obligatory referral may cause a clash with the national constitutional rules. Namely in some Member States the breach of such an obligation may equal to the breach of the right to fair judicial process or to statutory judge. This is also the case in the Czech legal order as was decided by the Czech Constitutional Court (further referred as “CCC”) in Pfizer. 7 Accordingly the Czech courts of last instance must properly justify why they do not refer a case to the CJEU, especially in situations when the parties of the case call for it. Although the Czech supreme courts – namely Czech Supreme Court and Czech Supreme Administrative Court 8 – approved the CILFIT conditions quite early after the Czech accession to the EU, the real justification of non-referrals vis-à-vis the individual CILFIT criteria has varied and the rights of parties might be compromised. 9 As a consequence, Pfizer case was a reaction to the deficient reasoning in relation to CILFIT criteria. The CCC required that the Czech courts of last instance should clearly base their decisions on conditions formulated by the CJEU in CILFIT . A non-referral in cases where the conditions were not met would equal to the breach of the right to one’s statutory judge as guaranteed in Article 38 of the Czech Charter of Fundamental Rights and 3 See f.e. the proposal of AG in C-338/95 Wiener S.I. GmbH v Hauptzollamt Emmerich , ECLI:EU:C:1997:352 to exclude from the CJEU competence questions of minor importance. The Opinion will be referred to later in the paper. 4 Such as for example hypothetical questions or questions evidently not relating to the case, see 244/80 Foglia v Novello , ECLI:EU:C:1981:302, para 21 or C-83/91 Wienand Meilicke v ADV/ORGA F. A. Meyer AG , ECLI:EU:C:1992:332, para 25. 5 283/81 Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health [1982] ECLI:EU:C:1982:335. 6 See C-224/01 Gerhard Köbler v Republik Österreich , ECLI:EU:C:2003:513. 7 Judgment of the Constitutional Court II. ÚS 1009/08 delivered on December 9, 2014, in case Pfizer ; for a commentary on the case see STEHLÍK, Václav. The obligatory preliminary ruling procedure and its enforcement in the Czech and Slovak legal order. UWM Law Review , no. 3, 2011, p. 6-25. 8 Pfizer case actually concerned the failure to properly ground the decision to refer by Supreme Administrative Court. 9 See STEHLÍK, Václav. Application of CILFIT Criteria by Czech Supreme Courts, Czech Yearbook of Public & Private International Law , 2017, p. 577-588.

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