CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ CONSTITUTIONAL REVIEW AND THE PRELIMINARY RULING PROCEDURE … ruling procedure should serve the uniform application of the EU law in Member States, it should concern questions of general interest and “ detailed answers to very specific questions will not always promote such uniform application .” 63 However, the authority of this opinion does not seem to be convincing as this suggestion of AG was not reflected in the subsequent decision. The CJEU did not refuse to answer questions of “minor” importance and gave a judgment on the case. Simply said the CJEU refused such a limitation of competence of national courts to refer questions and did not create any certiorari based on importance of the case and all-EU impact of the envisaged interpretation. Thus, the assertion of the CCC that “ it is not of any considerable significance to ask for the interpretation of the EU law in cases which are unique and lack a more general impact on the EU legal order ” 64 does not seem to fit in the position of the CJEU. We suppose that the willingness of the CJEU to decide even minor cases can be influenced by its historical experience. We might find seemingly unimportant cases where the CJEU formulated ground principles for the application of the EU law. 65 Next, such a message to national courts could lead to lower number of cases and possibly to a significant evasion of the obligation to initiate the procedure; this could finally lead to diverging application of the EU law even in more significant issues. National courts would be obliged to interpret a new condition ( significance of the case ); this condition is rather vague and could be strongly dependent on the (narrow) perspective of national courts. Nevertheless, it should be emphasised that the obligation to refer questions to the CJEU is set up independently by the EU law, and in this respect the evaluations and conclusions of the CCC are just obiter dictum of the case. The ordinary courts will be bound by the interpretation of the CJEU and not considerations of the CCC. The only relevance of the relaxed approach of the CCC concerns the intensity of review of the obligation to initiate the preliminary ruling procedure by the CCC as a breach of Czech constitutional law. The probable envisaged effect of the decision is the decreased intensity of scrutiny by the CCC to apply the CILFIT criteria as they were confirmed in Pfizer . Whether it would reduce the number of constitutional complaints on the breach of the 267 TFEU is hardly to predict. The CCC uses various vague and unclear conditions the interpretation of which will be most expectedly tested by the parties. This would concern for example the term (evident) doubts , intentional deviation from the settled interpretation , unequivocally indefensible interpretation or significance of the issue . It seems likely that the unsuccessful parties would employ in their defence also the constitutional complain even though with a prospect of less probable success. 4. Evaluation and concluding remarks It is hard to estimate the real effects of the decision but it is possible to draw several interim conclusions the validity of which should be verified in judicial practice. First of all, the CCC proclamation on the relaxed conditions for the initiation of the preliminary ruling procedure would probably not lead to dramatically lower number of whether it also has a general significance going beyond the particular instance. The Court’s function under Article 177, in my view, is not merely to give the national court the correct answer in a given case, but to give rulings of general significance .” 63 Cf. decision, para 30. 64 Ibid. 65 Most evidently it was the legendary case 6/64 Costa v. E.N.E.L . ECLI:EU:C:1964:66 which concerned a very small amount of money; despite this in Costa the CJEU formulated the principle of primacy of EU law.

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