CYIL vol. 8 (2017)

VÁCLAV STEHLÍK CYIL 8 ȍ2017Ȏ with the EU Directive. 65 According to the SC’s analysis, this Directive, however, does not apply to financing the health care system, but only to the elimination of discrimination among national care providers and providers from other EU Member States. The SC made quite a balanced argumentation. In its assessment it conducted a detailed comparison of the purpose of the Directive and its legal basis in primary law (freedom to settle and provide services). It also employed several language versions and pointed to the inaccuracy of the Czech terminology used in the Directive in comparison to the English, German, French and Slovak versions. The contested Directive did not relate to financing healthcare provided by midwives. The primary purpose of the EU law was to safeguard the recognition of qualification and prohibition of discrimination based on citizenship during the performance of the midwives’ job in other Member States. The SC supported its considerations with the established case-law of the CJEU and with references to both foreign and (Czech) legal doctrine. It then concluded that it was an acte clair question and it had no duty to initiate the preliminary ruling procedure. This decision constitutes a balanced application of the acte clair doctrine, well supported by arguments, while fully respecting conditions stipulated by the CJEU (perhaps except for The SC approved the acte éclairé doctrine, for instance, in a case relating to interpretation of the Second Directive, 67 the purpose of which is to ensure the minimum level of equality of protection of the shareholders and creditors of public limited corporations. This decision of the SC is based on the fact that the contested issue had already been dealt with in a previous case of the CJEU. 68 The SC referred to already existing CJEU case-law also in other decisions. 69 In general, the number of decisions where the SC would refer to the acte éclairé doctrine is not as high as in the case of the acte clair doctrine and the cases often repeat without much added value. referral to foreign case-law). 66 3.5 Acte éclairé doctrine 65 Resp. from the Council Directive 80/155/EEC of 21 January 1980 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action relating to the taking up and pursuit of the activities of midwives, OJ L 33, 11. 2. 1980, p. 8-12, stipulating an obligation of a Member state to include midwives in the public health insurance system. 66 The activities of midwives in the context of the acte clair doctrine also appears in other cases, e.g. in two Resolutions of 21 September 2011, 28 Cdo 5072/2009 and 28 Cdo 851/2011 or in Judgements of 15 June 2016, 30 Cdo 3598/2014 and file ref. 30 Cdo 5027/2014. 67 Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, OJ L 26, 31. 1. 1977, p. 1-13. 68 In particular, the SC refers to case C-373/97 Dionysios Diamantis ECR [2000] I-1705. 69 Compare, for instance, the SC’s Resolution of 17 July 2012, 28 Nd 195/2012 in the context of consumer contracts, Resolution of 13 March 2013, 28 Nd 276/2012 in the context of determining jurisdiction of courts or Resolution of 28 August 2012, 23 Cdo 462/2012 in the context of trademarks, Resolution of 19 May 2015, 29 ICdo 23/2015, insolvency procedure.

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