CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ APPLICATION OF CILFIT CRITERIA BY CZECH SUPREME COURTS The first cases, 9 issued three years after the accession of the Czech Republic to the EU, dealt with the entitlement to lodge an action against an environmental impact assessment of a highway construction. Pursuant to the Aarhus Convention, the public concerned has the right to ask a judicial review of certain decisions adopted in the proceedings. In addition, a similar right is guaranteed by an EU Directive. 10 In the proceedings before the SAC, a party proposed to initiate a preliminary ruling procedure, under which the CJEU would analyse the respective provision of the Directive. In this case, the SAC explicitly approved the CILFIT decision of the CJEU stating that: “the court has no obligation to submit preliminary ruling in case of “acte clair”, i.e. when the interpretation of the European law is without any doubt fully obvious and clear (not only to the applying court, but also to the other courts in other Member States and to the Court of Justice), even with respect to specifics of Community law interpretation (comparison of language versions, special terminology of the Community law, characteristic interpretation methods).” The SAC subsequently analysed the EU Directive, in particular, it compared the language versions and found it obvious that the Directive left a broad margin of appreciation for the Member States as far as the phase of proceedings where the review will be allowed. In this respect, the SAC compared English, German, French, Slovak and Polish language versions. In the SAC’s opinion: “a clear conclusion can be made that even the Court of Justice of the European Community could not interpret the contested provisions differently from the SAC” . In the SAC’s opinion, it was not necessary to initiate the preliminary ruling procedure. Afterwards, the SAC applied almost identical reasoning in similar cases relating to the environment. 11 Anyway, the above-mentioned decision is a pioneering case where the SAC unambiguously approved the CILFIT doctrine. 2.2 Comparison of language versions The Supreme Administrative Court applies the obligation to compare the language versions in a varying manner. In the area of environment, except the Aarhus Convention and related EU law regulation, the SAC applied the acte clair doctrine, e.g. in the context of registration of electrical equipment manufacturers. 12 In its judgment it summarized the CILFIT doctrine and – without further analysis – stated that the conditions for not initiating preliminary ruling were fulfilled, this conclusion being confirmed by the individual language versions of the additional provision of the EU Directive. In particular, the SAC mentioned the English, German, French, Polish and Slovak versions. Another decision 13 concerned a discharge of waste water from an industrial facility. The dispute focused on the definition of the term “waste water” also with respect to the EU Directive. The SAC compared the language versions of this term, in particular, the German, English, French and Polish ones, deducing that it covers all premises of the industrial facility, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, OJ L 124, 17.5.2005, p. 1-3. 9 Judgement of 14 June 2007, 1 As 39/2006–55, and Judgement of 26 June 2007, 4 As 70/2006-72. 10 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175, 5.7.1985, pp. 40-48. 11 For instance, see Judgement of 28 June 2007, 5 As 53/2006 - 46; Judgement of 29 August 2007, 1 As 13/2007-63. 12 Judgement of 26 August 2010, 1 As 17/2010-294. 13 Judgement of 27 May 2011, As 49/2010-82.

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