CYIL vol. 8 (2017)

VÁCLAV STEHLÍK CYIL 8 ȍ2017Ȏ concerning some aspects of the issue while the full clarification would be missing. This is done by Czech supreme courts with a varying intensity. Although it may appear that the supreme courts are not fully attentive of the CILFIT criteria, we think that it is quite a realistic reflection of the CILFIT decision . At least simply due to numerous accessions to the European Union since the CILFIT case was delivered, the assumed knowledge of all or most official languages and interpretation trends of the CJEU and courts of the Member States is a mere fiction. This fact, however, should not deter parties of the proceedings from pointing out a specific language difference or court practice, which the SAC would then have to deal with or eventually submit for the preliminary ruling. The acte éclairé doctrine appears in case-law of the SAC to a lesser extent. Interestingly, the existence of CJEU case-law dealing with the same or similar issue does not automatically result into a non-submission of a preliminary ruling request. Therefore, we can encounter cases where the primary aim of request for a preliminary ruling is to assure the proper interpretation of EU law, although the answer is indicated in the existing CJEU case-law. 77 Briefly summarised, similar considerations are applicable also to the SC. Finally, the case-law of Czech supreme courts can be evaluated from a less formalistic perspective. The raison être of the CILFIT criteria is to ensure that the EU law is applied correctly at the national level and the role of the CJEU in ensuring correct interpretation and review of validity of the EU law is not neglected. Examination of the formal fulfilment of the individual CILFIT criteria is not purposeless, as they should serve this aim. However, on the other hand, it is only indicative of the quality of EU law application by national courts. It does not by itself guarantee or exclude a proper application on their side. Any formal fulfilment of such criteria does not evidence that the EU law is being applied properly. Likewise, we cannot overestimate non-fulfilment of all formal criteria in specific cases. A more generalised assessment of case-law shows that both courts respect the EU law without and overt and intentional disregard thereof. In this respect, it may to be added that non-submission of a preliminary ruling can become subject to a constitutional review . As apparent from the conclusions of the Czech Constitutional Court in the Pfizer case, 78 courts of last instance (this case concerned the SAC) need to cope with their obligation to initiate the preliminary ruling procedure and, as the case may be, properly justify any non-submission of questions to the CJEU in line with the conditions stipulated in CILFIT. When failing to do so, they violate the right of the party concerned to its statutory judge as guaranteed in Article 38 of the Czech Charter of Fundamental Rights and Freedoms. 79 With respect to the principle vigilantibus iura it is up to parties of the proceedings to enforce their rights in this way.

77 Resolution of 28 April 2011, 1 Afs 103/2010-68, or Resolution of 18 December 2013, 1 Afs 6/2013-46. 78 Judgment of the Constitutional Court of 8 January 2009, II. ÚS 1009/08. 79 For more see STEHLÍK, V., The obligatory preliminary ruling procedure and its enforcement in the Czech and Slovak legal order, UWM Law Review , Poland, pp. 6-25, available on line: http://lawforensics.org/wp-content/ uploads/2011/12/UWM-LR-Vol.-3.pdf.

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