CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

APPLICATION OF CILFIT CRITERIA BY CZECH SUPREME COURTS

4. Concluding summary of the analysis and further considerations The SAC accepted the principles of the CILFIT case, namely acte clair doctrine , three years after Czech accession to the EU. 70 The SC did so several months later. 71 The case-law of the preceding period had certain limits. These were given not so much by a reluctance to apply the EU law, including the CILFIT criteria, but simply by the flow of the procedure. This is obvious from the decision-making of both the SAC 72 and the SC 73 that refused to directly apply the EU law to disputes that had arisen in the period prior to accession of the Czech Republic to the EU. Besides, the SAC was a new court constituted in 2003, i.e. close before the accession of the Czech Republic to the EU. Therefore, its agenda, including EU law, came up more gradually. In any case, both the SAC 74 and the SC 75 accepted a certain impact of the EU law even before the accession of the Czech Republic to the EU. As far as the acte clair doctrine is concerned, it was evident that it is widely applied by the SAC; however, the seemingly strictly formulated conditions stipulated by the CJEU are often simplified. This mainly concerns comparison of various language versions of disputed provisions of the EU law – when the SAC applies it, it does so only with a sample of several repeated versions. Similarly, the SC relatively frequently compares language versions of disputed EU rules. Exceptionally, it refers to a high number of language versions, however, in most cases it does so in relation only to several languages; in particular, Slovak, English, German, French or Spanish. For sure with respect to the language proximity, the Slovak version is a natural comparator; a similar assertion could be valid for the use of Polish version; interestingly, it was actually not used in the analysed decisions. Comparison with other languages mentioned above could have been expected. Primarily English, French, or German, are most frequently used in the legislative process and also as working languages of the EU institutions. 76 In our opinion, a comparison of several basic languages is fully sufficient for the fulfilment of the CILFIT criteria. It is neither realistic nor effective to formally refer to all official languages. It might even make the text of the court decision confusing. If a less usual language version does not really help to unveil the meaning of the contested provision, a simple inclusion thereof does not make much sense. Besides, if a specific interpretation appears only in one less frequent language, it is disputable whether it could justify a non-referral. The requirement to work with the case-law of courts of other Member States is not fulfilled by the SAC, except in occasional decisions. Reference to case-law of courts of other Member States by the SC is also rather sporadic and not complex. Likewise, in the context of act clair doctrine reference to the CJEU case-law is not frequent. Actually, the acte clair doctrine is somewhat unclear at this point. The CJEU requires respect for its own case-law, however, the disputed issue should not have been resolved yet; otherwise it would be an acte éclairé . Thus, under the acte clair doctrine national courts would refer to the case-law 70 Judgment of 14 June 2007, 1 As 39/2006-55. 71 See Resolution of 11 February 2008, 29 Odo 164/2006. 72 Judgement of 2 April 2009, 7 As 39/2008-113. 73 Judgement of 23 May 2007, 29 Odo 1128/2005. 74 The SAC gave its opinion on obligation to initiate the preliminary ruling concerning the facts and legal status prior to accession of the Czech Republic to EU, in Judgement of 10 April 2009, 2 Afs 93/2008-920. 75 See case C-302/04 Ynos. 76 E.G. as working languages of the EU Commission.

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