CYIL vol. 10 (2019)

VÁCLAV STEHLÍK CYIL 10 ȍ2019Ȏ Court. The decision not to refer the case to the CJEU was based on the conviction of the Supreme Court that the issue was an acte clair . 18 Consequently, the CCB lodged a complaint to the Czech Constitutional Court claiming that the ordinary courts – by the refusal to refer the case to the CJEU – breached its right to fair process and the right to one’s statutory judge guaranteed by the Czech Charter, 19 as well as the principle of legitimate expectations and legal certainty. 20 2.2 Decision of the Czech Constitutional Court The CCC split its decision into two parts. In the first part 21 it outlined its general considerations on the preliminary ruling procedure, namely on the obligation of the court of last instance and the acte clair/éclairé doctrine. In the second part 22 the CCC applied general principles on the case concerned. For this paper it is most interesting to focus on the doctrinal issues which will be applicable in subsequent constitutional complains, as well as in proceedings before ordinary courts. 2.2.1 General principles for the doctrine of the CCC Before analysing the very conditions for the obligatory referrals, the CCC outlined the fundamental principles for its conclusions. They reflected both the purpose and nature of the preliminary ruling procedure, as well as its own role in the system of legal remedies including the EU law. First of all, the CCC commented on the nature of 267 TFEU and the role of the dialogue between national courts and the CJEU. It accepted that the CJEU is the only court empowered to authoritatively interpret the EU law and the preliminary ruling procedure is a formal tool to regulate the cooperation. 23 At the same time the CCC referred to the character of the obligation under art. 267 TFEU and concluded that any unconditional obligation would be very difficult to satisfy in practice. According to the CCC the CJEU itself weakened the criteria and, finally, in CILFIT it allowed the court of last instance not to refer the case if the question is not relevant to the case, as well as in acte éclairé and acte clair situations. 24 Further, the CCC focused on the variable role of constitutional courts in the enforcement of the procedure under art. 267 TFEU. The scrutiny whether courts of last instance fulfil the obligation to initiate the procedure is done by the EU institutions through the infringement procedure under art. 258 TFEU 25 as well as through the principle of state liability for the breach of EU law and consequent damages actions. 26 The role of constitutional courts varies in the EU Member States. Some interpret their competence broadly and strictly review the obligations with regard to CILFIT criteria, whereas other courts conceive their competence restrictively and focus only on the breach of constitutionally guaranteed rights. 27

18 Cf. ibid, para 8. 19 Art. 36 para and art. 38 para 1 of the Charter. 20 Art. 1 para 1 of the Constitution.

21 Paras 19-30 of the decision. 22 Paras 31-59 of the decision. 23 Cf. ibid, para 19. 24 Comp, ibid, para. 20. 25 The CCC refers to case C-154/08 Commisison v. Spain , ECLI:EU:C:2009:695. 26 The CCC refers to case C-224/01 Gerhard Köbler v Republik Österreich ECLI:EU:C:2003:513. 27 Cf. ibid, para. 21.

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