General
Article 234(3) (ex Art 177(3)) EC Treaty makes it compulsory for the national court to make a reference if there is no judicial remedy available under national law against the decision of that court. In all other cases, the reference is optional.
Optional reference
National courts which are not caught by Article 234(3) EC Treaty have complete discretion in the manner in which they choose to exercise their right to refer or not to refer. This means that (a) even if any of the parties involved in the case have requested a reference, the national court is under no obligation to make it, and (b) if the national court is willing and feels able to interpret Community law without requiring the assistance of the Court, it may do so. Particularly the last-named option, which is known as the doctrine of acte clair, has been the subject matter of a good deal of controversy.
The term acte clair has been widely misunderstood and misinterpreted. Some believe24that this doctrine arose in the context of compulsory references under Article 234(3) EC Treaty. The error is excusable in a certain sense because (a) it was elaborated by the First Conseil d’Etat (and to a certain extent by the Cour de Cassation), two courts which are caught by Article 234(3), and (b) it is in the context of Article 234(3) that this theory came to prominence (see discussion of the implications of the CILFIT decision, below). However, the acte clair doctrine
22 Case 43/71, Politi v Ministry of Finance of the Italian Republic [1971] ECR 1408.
23 Case 26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, at 22.
24 See, eg, Charlesworth and Cullen, 1995, at 202; Weatherill and Beaumont, 1999, at 260–61.
has enjoyed wider application. It can be described as the theory (which had already been applied to international treaties before the Community treaties were adopted)25according to which there is no need to ask a preliminary ruling from the ECJ if the issue of Community law is so clear as to require no further explanation. In these circumstances, the national court is perfectly capable of applying Community law itself.26
Compulsory reference
In principle, the rule concerning compulsory rulings is clear: if a question of Community law arises before a court against whose decision no further remedies are possible, that court must make the reference. However, two issues have clouded the apparently clear-cut nature of this obligation.
The first is the issue of what constitutes a court ‘against whose decisions there is no judicial remedy under national law’. In its interpretation of this concept, the Court has let itself be guided by the reality of the national court’s jurisdiction rather than by its place in the judicial hierarchy. Thus in Costa v ENEL,27 the reference had emanated from a mere Italian giudice conciliatore.
However, the Court noted that this court had jurisdiction to try a number of disputes involving modest sums in first and last instance. Accordingly, it had to be considered as a court of last resort within the meaning of Article 234(3) (ex Art 177(3)) of the Treaty.28
The position of the English Court of Appeal in this respect is somewhat ambiguous. In principle, it is not a court of last resort since its decisions are capable of review by the House of Lords. However, no application can be made to the House of Lords unless leave for appeal has been obtained from the Court of Appeal. Does this make the latter a court of last resort? The Court of Appeal itself does not consider this to be the case. In Generics (UK) Ltd v Smith, Kline and French Laboratories Ltd,29 it stated unambiguously that the circumstance that leave for appeal to the Law Lords had to be obtained from it did not make it a final appellate court within the meaning of Article 234(3) (ex Art 177(3)) EC Treaty. However, it added the safeguard clause ‘But we have discretion’. Later, the Court of Appeal appeared to banish any doubt on this matter in Chiron Corporation v Murex Diagnistics.30 Here, the Court considered that since it was possible to appeal to the House of Lords against any refusal to grant leave to appeal, this constituted a ‘judicial remedy’ within the meaning of Article 234(3)
25 Steiner and Woods, 2000, p 477.
26 Droit communautaire et droit français, op cit, at 42–43.
27 Case 6/64, Costa v ENEL [1964] ECR 585.
28 Ibid, at 592.
29 [1990] CMLR 416.
30 [1995] AER (EC) 88.
(formerly 177(3)). The Court of Appeal could not, therefore, consider itself as a court of last resort within the meaning of this provision.
The other issue which has introduced a note of ambiguity into the rule contained in Article 234(3) is the understandable reluctance on the part of the national courts of last resort constantly to make references on issues for which the ECJ has already made the position clear ad nauseam. Obviously this is where the acte clair theory once again becomes relevant. At an early stage, the Court gave an indication that it was not inclined to take the strict view and to give some recognition to the acte clair theory. In Da Costa en Schaakte,31the facts of the case and the legal issues involved were very close to those which arose in the Van Gend en Loos case, yet because it arose before the Netherlands Tariefcommissie (Upper Customs Court), against whose decisions no further remedies are possible, this court felt it necessary to make the reference. The Court, sensing the futility of this exercise, stated that although Article 234(3) clearly required courts of last resort to make a reference whenever a question involving the interpretation of Community law arose, it would be without purpose to make a reference where the ECJ had already made an interpretation on the same issue.32
Any remaining doubts on the Court’s intentions in this regard were swept away by the CILFIT decision.33Here, the Corte di Cassazione (Supreme Court) of Italy had specifically asked the ECJ to give a ruling on the question whether courts of final resort needed to make the reference in all circumstances. The Court replied that such courts had to comply with their obligation to refer:
... unless it has established that the question raised is irrelevant or that the Community provision in question had already been interpreted by the Court, or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt.
However, the Court also warned that the existence of this opportunity to bypass the Court of Justice had to be assessed in the light of the specific characteristics of Community law, the particular difficulties raised by its interpretation, and the risk of disparities in the case law as between the Member States.
The CILFIT decision has given rise to a great deal of comment and debate, both inside and outside the courts. In the vast majority of cases, the decision was welcomed, although some have sought to cast doubt on the question whether in fact the Court has incorporated the acte clair theory into its case
31 Cases 28, 29 and 30/62 [1963] ECR 31.
32 Ibid, at 38.
33 Case 283/81, CILFIT v Ministro della Sanità [1982] ECR 3415.
law.34 It appears to the present writer, however, that such fine points of distinction owe more to academic fastidiousness than to practical reality.