CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

APPLICATION OF CILFIT CRITERIA BY CZECH SUPREME COURTS

3.3 Contextual analysis, interpretation with respect to case-law and other sources

A fine example in this regard is a decision that concerned the enforcement proceedings. 57 It was disputable whether an execution of the decision imposing a penalty in an administrative procedure can be subordinated to the execution of civil and commercial matters based on the Regulation Brussels I. 58 In this case, the SC relied on the analysis of a number of various sources . This included case-law of the CJEU, opinion of the Advocate General, and Czech expert literature, but also reports generated by expert committees dealing with the specification of civil and commercial disputes. 59 A rather extensive analysis of whether the contested provision of the EU Regulation is acte clair primarily consisted in contextual analysis without involving comparison of language versions. In another remarkable decision 60 on enforcement proceedings the SC referred to the CILFIT criteria and subsequently analysed the impact of the Regulation Brussels I on proceedings initiated prior to it coming into effect. Actually, there existed two different opinions inside the SC on the issue concerned. According to the first decision of the SC, 61 the contested EU Regulation is applicable to enforcement procedure initiated after the accession of the Czech Republic to the EU, on condition that the execution concerns the court’s decision issued prior to it. However, according to another (later) decision of the SC, 62 the term proceedings under the EU Regulation covers not only the execution procedure, but also the preceding procedure, in which the enforcement order was issued. The SC conducted a contextual analysis of the individual provisions of the EU Regulation, referring to the English version of the challenged article. It concluded that the interpretation and correct application of the article were absolutely obvious ( acte clair ) and the interpretation accepted in the previous decision 63 was not correct. In the end, it did not find a reason for submitting the case to the CJEU. The case is unique as the CILFIT criteria were formally used by the SC for unification and correction of its own case-law. However, regrettably the SC made just a limited analysis of the contested article of the EU Regulation (eventually several articles thereof ) and had recourse only to the English version. Similarly, it did not work with CJEU case-law or courts of other Member States. In principle, the SC made more or less its own interpretation of the EU Regulation, without a sufficient use of the CILFIT criteria. 3.4 Acte clair in medical services: an example of a balanced interpretation The acte clair doctrine was finely used in the area of financing the healthcare provided by midwives. 64 The party of the proceedings objected that the Czech regulations were inconsistent 57 Resolution of the SC of 11 May 2012, 28 Nd 153/2012. 58 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12, 16. 1. 2001, p. 1-23. 59 The Jenard Report on Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Brussels 1968 and Schlosser Report, dealing with accession of the United Kingdom, Ireland and Denmark to EC and Brussels Convention. 60 Resolution of the Grand Chamber of the SC of 14 July 2010, 31 Cdo 2325/2008.

61 Resolution of the SC of 31. 8. 2006, 25 Nd 56/2006. 62 Resolution of the SC of 18. 4. 2007, 20 Cdo 710/2006. 63 See Resolution of 31 August 2006, 25 Nd 56/2006. 64 Resolution of 20 July 2011, 28 Cdo 2334/2010.

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