CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ CONSTITUTIONAL REVIEW AND THE PRELIMINARY RULING PROCEDURE … 0 although the CJEU had not yet decided on a similar interpretative problem, the national court transgressed its discretion and – without referring the case to the CJEU – it itself interpreted the issue in a way which is unequivocally indefensible. According to the CCC the decision on the unequivocally indefensible character of the interpretation is to a great extent individualised and, thus, may lead to quite a detailed scrutiny of the application or interpretation of EU law by the CCC. Still, even in those cases the goal of the CCC is not to search for the correct application of the EU law or set up authoritatively its interpretation as this is the role of the CJEU. The CCC exclusively decides if the application of the EU law by ordinary courts was not arbitrary or indefensible; 46 0 finally, the CCC set up an additional limit of the obligation to refer, namely the criterion of significance of the issue. 47 It is not necessary to refer questions if the issue is of minor significance for the unity, coherence and developments of the EU law. Although this criterion was not formulated in CILFIT , the CCC deduces it from the purpose of the preliminary ruling procedure. 48 Thus, the CCC does not see any sense in referring questions in unique cases or in cases without a generalised impact on the EU legal order. 49 The ordinary court must explain in its decision why the issue is not significant for the EU legal order and does not refer the case; otherwise it would potentially breach the Czech Charter and the subsequent constitutional complaint might be successful. 2.2.3 CCC not a court under art. 267 TFEU in individual constitutional complaints In the light of these deliberations as an obiter dictum the CCC added that it itself should not refer questions to the CJEU under art. 267 TFEU. This conclusion is based on the fact that when applying the EU law the CCC will either find out that there was the breach of the Czech Charter 50 and will annul the decision of ordinary court or it would exclude that the interpretation of the EU law was arbitrary and will respect the interpretation chosen by ordinary court even though it might deem that a different interpretation would be more fitting. The CCC emphasised that this conclusion concerns only individual constitutional complaints and proper application of acte clair doctrine and it does not automatically apply to other proceedings before it. 51 48 There the CCC refers to CJEU decision in 107/ 76 Hoffman-La Roche , ECLI:EU:C:1977:89 where the CJEU formulates as the purpose of art 267 TFEU (at that time art. 177) the uniform application of UE law in all Member States. In full it states: “ In the context of Article 177, whose purpose is to ensure that Community law is interpreted and applied in a uniform manner in all the Member States, the particular objective of the third paragraph is to prevent a body of national case-law not in accord with the rules of Community law from coming into existence in any Member State. ” 49 There the CCC refers to the opinion of AG Jacobs in C-338/95 Wiener S.I. GmbH v Hauptzollamt Emmerich , ECLI:EU:C:1997:352. 50 Art. 36 para 1 or 38 para 1 of the Czech Charter, or potentially also art. 47 of the EU Charter. 51 See para 29 of the judgment. For general comments on the possible reference of preliminary questions by CCC see HAMUĽÁK, Ondrej. The Czech Constitutional Court and the Question of an Active Use of the Preliminary Ruling Procedure. In Somssich, R. Central and Eastern European Countries after and before the Accession , Volume 2. Budapest: Faculty of Law, ELTE, 2011, p. 121-128. 46 See para 28 of the judgment. 47 See ibid, para 30.

123