CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ CONSTITUTIONAL REVIEW AND THE PRELIMINARY RULING PROCEDURE … In this context the CCC conceives its role as a guarantor of constitutionality, not as a supervisor of the EU law enforcement. Still, the breach of the obligation under art. 267 TFEU may in certain circumstances equal to the breach of the Czech Charter. 28 The CCC also recalls the fact that the preliminary ruling procedure is available to national courts which have a broad discretion whether to refer the case to the CJEU. In their considerations they should bear in mind the costs for the parties especially in terms of the prolongation of the procedure. 29 2.2.2 Non-referral and breach of Czech constitutional rules: revised criteria Based on the general considerations on the nature of the procedure as well as the role of the constitutional review, the CCC formulated three types of conditions under which the non-referral to the CJEU by courts of last instance would breach Czech constitutional rules and the relevant provisions of the Czech Charter. They include: • Insufficient justification This concerns the situation when the party of the proceedings proposes to initiate the preliminary ruling procedure, however, the national court does not react to it at all or absolutely insufficiently or its justification is incomprehensible. 30 • Acte éclairé doctrine In this regard the CCC evaluates the case-law of the CJEU asserting that at the beginning the CJEU required a full material equivalence of cases (with referral to Da Costa case 31 ), later it abandoned this requirement and relaxed the criteria for the obligatory referral (with referral to CIFLIT 32 ). According to the CCC the national court will breach acte éclairé doctrine if it intentionally 33 deviates from the settled interpretation of the CJEU. 34 Such an intention will be deduced from the persuasiveness of the justification of the decision as well as the way how it dealt with the submissions of the parties. 28 Art. 36 para 1 of the Czech Charter (right to fair trial) or art. 38 para 1 of the Charter (right to once statutory judge), cf. para 22 of the decision. 29 Cf. para 23 of the decision. 30 Cf. para 24 of the decision. The CCC also refers to the case-law of the European Court of Human Rights according to which a failure to initiate the preliminary ruling procedure may equal to the breach of art. 6 of the Convention. 31 28 to 30/62 Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration , ECLI:EU:C:1963:6. Actually the CCC incorrectly uses the number of the case and formally refers to case 26/62 Van Gend en Loos ECLI:EU:C:1963:1. 32 CILFIT , point 14, „ The same effect, as regards the limits set to the obligation laid down by the third paragraph of Article 177 [now art. 267 TFEU, added by the author], may be produced where previous decisions of the Court have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical. ” 33 For example in a similar context the German Federal Constitutional Court uses the term „ deliberately “; see Order of 06 July 2010 – 2 BvR 2661/06, para 90. Available here: https://www.bundesverfassungsgericht.de/ SharedDocs/Entscheidungen/EN/2010/07/rs20100706_2bvr266106en.html. 34 There the CCC also refers to the decision of the German Constitutional Court, BVerfGE 82, 159). See para 25 of the CCC decision.

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