CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ APPLICATION OF CILFIT CRITERIA BY CZECH SUPREME COURTS must have recourse to systematic interpretation and, as the case may be, also to historical interpretation. In this respect, there is an interesting case 23 that concerned a detention of a person for the purpose of expatriation pursuant to the Czech law on residence of foreigners 24 and the EU Directive (the “Return Directive). 25 The dispute was about the interpretation of the term “ illegality ” in this context. According to the SAC, this term needs to be interpreted autonomously based on lingual meaning. For these purposes, it used English, French and German versions. It then conducted a systematic analysis of the term “illegality” in the context of the Return Directive, stating that “teleological and systematic interpretation stemming from the literal interpretation, as well as from the interpretation made by the European Court for Human Rights concerning Article 5 of the Treaty, unambiguously supports fulfilment of conditions for the application of a direct effect of Article 15(2) of the Return Directive, without a duty to submit the matter to the EU Court of Justice.” In the area of customs duties, the acte clair doctrine was applied, for instance, in the decision on transit of goods 26 where the SAC, besides comparison of several language versions, 27 used the historical interpretation and reflected changes in legal regulation. It then concluded that the questions need not be raised before the CJEU. Similarly, historical and contextual analysis of the EU law was significant in the decision relating to international bus transport control; 28 in this decision the SAC also conducted quite a precise analysis, including a reference to the proposed change of legal regulation. 29 Notably, in several cases, the SAC referred to traveaux preparatoire , which supported interpretation of the acts concerned. 30 2.4 Reference to case-law of courts from other Member States Another condition for the application of the acte clair doctrine is that the interpretation of the EU law must be obvious also to the courts of other Member States. In this respect, a significant case is, for instance, a decision relating to customs classification of goods (namely electric scooters) imported to the Czech Republic. 31 There the SAC considered preliminary ruling procedure concerning the interpretation of “ misconduct of administrative bodies ” when classifying the goods in the customs tariff nomenclature. In its interpretation of the term, the SAC referred to the case-law of courts in Belgium ( Cour de cassation ), France ( Cour de cassation or Cour d´appel ) and UK ( London Tribunal Centre with a reference to a precedent of High Court of Justice ). It analysed this case-law fairly profoundly, 23 Judgement of 1 November 2012, 9 As 111/2012-34. 24 Act No. 326/1999 Coll. on residence of foreign citizens in the territory of the Czech Republic. 25 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24. 12. 2008, p. 98-107. 26 Judgement of 19 January 2010, 1Afs 114/2009-141 27 Referring to English, German, Italian, French, Polish and Slovak version. 28 Judgement of 25 November 2008, 6 As 12/2007-147. 29 Besides, the SAC also applied comparison of language versions, in particular, English, French, German and Spanish versions. 30 Judgements of 1 February 2017, 9 As 87/2016-29 and of 27 February 2015, 7 As 256/2014-27. 31 Judgement of 30 July 2008, 1 Afs 27/2008-96.

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