The CILFIT Criteria Clarified and Extended for National Courts of Last Resort Under Art. 267 TFEU

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 265-274 | (Table of Contents) I. Introduction. - II. Context: two preliminary references and the need to prove relevance. - III. The Advocate General opinion. - IV. The nature and scope of art. 267 TFEU. - IV.1. The uniformity of EU law. - IV.2. The tension between power and obligation. - IV.3. CILFIT confirmed and tweaked. - IV.4. A new requirement: giving reasons. - IV.5. The obligation to refer where a matter is raised late in proceedings. - V. Conclusion. | (Abstract) A significant judgment of the Grand Chamber of the CJEU was handed down in case C-561/19 Consorzio Italian Management e Catania Multiservizi and Catania Multiservizi ECLI:ECLI:EU:C:2021:799 (CIM) in October 2021 on the scope of discretion of national courts of last resort when deciding to make a preliminary reference under art. 267 TFEU. Despite the invitation of the Advocate General, the Court shored up the (almost) 40-year-old CILFIT (case 283/81 CILFIT v Ministero della Sanità ECLI:EU:C:1982:335) test, giving clarification as to the aims of art. 267 TFEU and setting down an obligation to give reasons when not referring as a means of containing national court discretion by increasing transparency. The Court, by retaining the CILFIT test while tweaking it and adding a requirement to give reasons for refusal to refer, chose partnership and judicial cooperation with national apex courts while increasing transparency for decision-making thereby favouring the existing vision of the relationship with courts of last resort as one of direct cooperation.

Keywords

• preliminary reference
• national courts of last resort
• cilfit
• acte clair
• giving reasons
• obligation to refer