CYIL vol. 10 (2019)

VÁCLAV STEHLÍK CYIL 10 ȍ2019Ȏ What, however, is more disturbing are other assertions of the CCC on the extent of its review vis-à-vis the obligation of ordinary courts to initiate 267 TFEU procedure as will be addressed below. 3.2 Commentary on the CCC’s evaluation of CILFIT criteria Our second note concerns the character of the obligation of national courts to refer questions to the CJEU and the interpretation of its case-law in that regard. The conclusions of the CCC rest on the presumption that the CJEU loosened the originally very strict criteria. This reading of CILFIT , however, is not straight-forward and unequivocal. It was asserted that the CJEU adopted the strict CILFIT criteria in order to force courts of last instance to initiate the procedure. 60 By this decision the CJEU reacted to the previous practice of national courts that breached their obligation under 267 TFEU. Presumably, the message of the CILFIT was that the correct interpretation of the EU law is so difficult that national courts will not be able to do it themselves and only the CJEU is in the position to do so. Arguments on relaxing the criteria based on for example the number of official languages for comparison of the text of the EU law do not sound fully convincing either. Definitely, since the begging of 80s’ the number of EU Member States has increased and it does not seem to be a retreat from the criteria if fewer languages for comparison are used. Actually the CJEU shows the same practice as it itself does not compare all language versions when interpreting the EU law and cannot be made suspicious of improper or relaxed interpretation of EU law. This idea of diminishing the relevance of CILFIT criteria is further substantiated by the CCC with a referral to the comparison of Da Costa versus CILFIT . We still think that CILFIT case is not primarily about revising Da Costa conclusions. Da Costa was simply decided earlier then CILFIT. In principle, Da Costa concerned the same situation 61 as Van Gen den Loos except that the parties of the dispute were not the same. Correspondingly, the CJEU replied to the question of the national court that, if the cases are materially identical, the interpretation given in a previous case is applicable to the latter case and, consequently, the national court is not obliged to initiate the preliminary ruling procedure. The CJEU did not pronounce in Da Costa on situations appearing in CILFIT that concerned the binding force of the interpretation already given in a case that was not materially identical. Consequently, we do not think that CIFLIT would substantially relax Da Costa conclusions. Another supporting argument of the CCC included a referral to the opinion of AG Jacobs in Wiener case. 62 Let us resume that in this case the AG suggested that the preliminary 60 See MANCINI, Federico , KEELING, David. From CILFIT to ERT: The Constitutional Challenge Facing the European Court. Yearbook of European Law , Claredon Press, Oxford 1991, p. 3; BLANCHET, Dominique. L’usage de la théorie de l’acte clair en droit communautaire: une hypothèse de mise en jeu de la responsabilité de l’etat français du fait de la fonction jurisdictionelle? Revue trimestrielle de droit europeén , no. 2, 2001, p. 396-438 ; in Czech literature see BOBEK, Michal. Porušení povinnosti zahájit řízení o předběžné otázce podle čl. 234(3) . Praha: C.H. Beck, 2004. 61 Increase of customs duties before the end of transitional period for the creation of customs union. 62 See AG in C-338/95 Wiener S.I. GmbH v Hauptzollamt Emmerich , ECLI:EU:C:1997:352, point 50; in full: “ More generally, I would suggest that the purpose of Article 177 will best be served when there is a genuine need for uniform application of the law throughout the Community because the question is one of general interest, and that detailed answers to very specific questions will not always promote such uniform application. Such answers may merely provoke further questions. The question raised in a particular case will always, of course, have, a specific application, but it will usually be obvious

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