National Courts' Duty to Refer EU Law Questions to ECJ: Analysis of Practices, Study notes of Law

Download National Courts' Duty to Refer EU Law Questions to ECJ: Analysis of Practices and more Study notes Law in PDF only on Docsity! Directorate-General for Library, Research and Documentation RESEARCH NOTE Application of the Cilfit case-law by national courts or tribunals against whose decisions there is no judicial remedy under national law […] Subject: Examination of how the Cilfit case-law (judgment of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335) is applied by national courts or tribunals against whose decisions there is no judicial remedy under national law and, in particular, how they interpret the concept of ‘any reasonable doubt’. […] May 2019 […] 5 SUMMARY I. INTRODUCTION 1. The purpose of this research note is to answer the question of how the national courts or tribunals of the 28 Member States against whose decisions there is no judicial remedy under national law apply the ‘Cilfit case-law’, which is to say that arising from the judgment of 6 October 1982, Cilfit and Others, 283/81 (‘the judgment in Cilfit’) and, in particular, how they interpret the concept of ‘any reasonable doubt’. 2. In that case-law, 1 the Court established several exceptions to the obligation to refer currently laid down in the third paragraph of Article 267 TFEU. 2 More particularly, it held that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court, unless it has established: − that the question raised is irrelevant; or − that the provision of EU law in question has already been interpreted by the court; or − that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. 3. In the more than 36 years that have passed since the judgment in Cilfit was delivered, the courts of the vast majority of Member States, in particular those against whose decisions there is no judicial remedy under national law (‘the courts adjudicating at last instance’ 3), have regularly and frequently referred to that judgment 4 in order to justify 1 See judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 21; of 9 September 2015, X and van Dijk, C-72/14 and C-197/14, EU:C:2015:564, paragraph 55; of 9 September 2015, Ferreira da Silva e Brito and Others, C-160/14, EU:C:2015:565, paragraph 38; and of 4 October 2018, Commission v France (advance payment of tax), C-416/17, EU:C:2018:811, paragraph 110. 2 In accordance with which, ‘where any such [question requesting an interpretation or assessment of validity] is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court’. It will be noted that the judgment in Cilfit was given in relation to one of the precursors to that provision, namely the third paragraph of Article 177 of the EEC Treaty. 3 To quote the form of words used by the Court: see, for example, the judgment of 15 March 2017, Aquino, C-3/16, EU:C:2017:209, paragraph 34. 4 Or, as the case may be, the criteria flowing from it, without actually referring to it expressly: this is 6 their decision either to bring a matter before the Court or indeed not to bring a matter before it. 4. However, it is also true that, in an admittedly small number of Member States, the judgment in Cilfit and the criteria it lays down appear to be cited in a relatively low number of cases, and these are not only Member States which joined the European Union in the recent rounds of accessions, such as Croatia and Malta, but also States which are long-standing EU members, such as Luxembourg. It goes without saying that, in those Member States as in others, the absence of any explicit reference to the judgment in Cilfit or to the criteria it lays down does not necessarily mean that those criteria are not used implicitly by the national courts. Their silence nonetheless makes it more difficult to assess how they apply the Cilfit case-law, including the ‘any reasonable doubt’ test. 5. The research for this note has focused mainly on the case-law of the supreme court(s) of each Member State. Nevertheless, to the extent that the lower courts are to be regarded as courts adjudicating at last instance, their case-law too has been taken into account, in particular where it is useful for examining the concept of ‘any reasonable doubt’. Where appropriate, the research has also looked at decisions in which a constitutional or supreme court has given a ruling on whether or not a court adjudicating at last instance has complied with the obligations arising from the Cilfit case-law. In some Member States, after all, the legal interpretation given in that judgment has also been used as a benchmark for reviewing the legality, or indeed the constitutionality, of decisions given by courts adjudicating at last instance. 6. As stated above, the exceptions to the obligation to refer established by the Court in the judgment in Cilfit are threefold: (i) the irrelevance of the question raised; 5 (ii) the existence of an ‘acte éclairé’; 6 and (iii) the existence of an ‘acte clair’, which arises where the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. true, in particular, of the Conseil d’État (Council of State) and the Cour de cassation (Court of Cassation, France). 5 See also judgment of 6 October 1982, Cilfit and Others 283/81, EU:C:1982:335, paragraph 10. 6 See also judgment of 6 October 1982, Cilfit and Others 283/81, EU:C:1982:335, paragraphs 13 and 14. 7 7. In many Member States, the first two exceptions are employed far more frequently than the third. Nevertheless, this research note will concentrate on how the courts adjudicating at last instance apply the latter exception. In that regard, this note will set out the interpretation which those courts have had occasion to give to the concept of ‘any reasonable doubt’ (part II) and of the conditions attached to that test under the Cilfit case-law (part III). Next, it will identify some of the additional criteria employed by those courts, which is to say criteria that do not expressly flow from the judgment in Cilfit as conditions attached to the ‘any reasonable doubt’ test (part IV), and these too will provide a basis for offering some reflections on the discretion available to those courts in the implementation of the Cilfit case-law (part V). Finally, it will analyse the impact on the interpretation of the concept of ‘any reasonable doubt’ of the review by constitutional courts of the way in which ordinary courts adjudicating at last instance fulfil their obligations under Article 267 TFEU (part VI). II. INTERPRETATION OF THE CONCEPT OF ‘ANY REASONABLE DOUBT’ 8. As regards the third exception to the obligation to refer laid down in the third paragraph of Article 267 TFEU, whereby courts adjudicating at last instance are relieved of their obligation to bring a matter before the Court where they find that ‘the correct application of Community law is so obvious as to leave no scope for any reasonable doubt’, the courts in most Member States have struggled to come up with any precise or explicit criteria by which to circumscribe or define the scope of the concept of ‘any reasonable doubt’. 9. Indeed, the vast majority of the legal systems are characterised by the absence of any structured, generic or principled approach to the reasonable doubt test. There is no generic definition or clear and unambiguous interpretation of the concept of ‘any reasonable doubt’ or of its counterpart, the ‘acte clair’. Rather, these concepts are applied on a case-by-case basis, not to say in a mechanical, simplistic or stereotypical fashion. It seems useful to note here that, although the national courts normally use the two concepts interchangeably, the case-law examined for the purposes of this research note shows that they refer to ‘acte clair’ far more often than they do to ‘any reasonable doubt’. That preference for the ‘acte clair’ concept, which is more concise and, therefore, 10 administrative chamber of the Riigikohus (Supreme Court, Estonia) has invoked ‘serious’ doubts as grounds for its obligation to refer a matter to the Court; however, it has never used this as justification for a refusal to refer a matter to the Court. 16. In France, the Conseil d’État (Council of State) and the Cour de cassation (Court of Cassation) frequently refer, among other turns of phrase, to the ‘serious difficulty’ of interpreting or assessing the validity of a rule of EU law, or the ‘serious controversy’ raised by the dispute. As regards ‘serious difficulty’, while those courts use that phrase as grounds for both referring a matter to the Court 11 and refusing to do so, 12 the latter scenario could be interpreted as going somewhat beyond the threshold of doubt behind the concept of ‘any reasonable doubt’ within the meaning of the Cilfit case-law. 17. The degree of complexity of the question raised is sometimes taken into account too, although in support of different conclusions. While, for the House of Lords (United Kingdom), there is no ‘acte clair’ where the interpretation of a provision requires extensive reasoning, the Verwaltungsgerichtshof (Administrative Court, Austria) has stated on several occasions that the need to resolve complex points of law does not in itself entail an obligation to refer a case to the Court. 18. Unfortunately, the foregoing overview of national case-law does not appear to allow any firm conclusions to be drawn as to how to interpret the concept of ‘any reasonable doubt’ as such. It does, however, highlight the piecemeal nature of both the attempts to define or reformulate that concept and the use of any such definitions or reformulations. In any event, the courts adjudicating at last instance, whether using the ‘any reasonable doubt’ test or some other benchmark, be it similar or otherwise, often merely refer to it without specifying in any further detail the criteria against which it is to be applied on a case-by-case basis. 11 Almost always in the case of the Conseil d’État (Council of State) and along with other forms of words in the case of the Cour de cassation (Court of Cassation). 12 Only in matters involving an assessment as to the validity of a provision of EU law, in the case of the Conseil d’État (Council of State), and more broadly in the case of the Cour de cassation (Court of Cassation). 11 III. THE CONDITIONS ATTACHED TO THE ‘ANY REASONABLE DOUBT’ TEST ESTABLISHED BY THE JUDGMENT IN CILFIT 19. It should be recalled that the exception to the obligation to refer on account of the absence of reasonable doubt is one that is framed by a number of conditions. The Court set out some of those conditions in the judgment in Cilfit itself when it noted, in the concluding paragraph of that judgment (paragraph 21), that ‘the existence of such a possibility must be assessed in the light of the specific characteristics of [EU] law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the [European Union]’. 20. Those conditions were further spelled out in paragraphs 16 to 20 of that judgment. 21. In the first place, the Court noted that, before concluding that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt, ‘the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it’ (paragraph 16). 22. The Court went on to state that, ‘however, the existence of such a possibility must be assessed on the basis of the characteristic features of [EU] law and the particular difficulties to which its interpretation gives rise’ (paragraph 17). 23. Thus, ‘to begin with, it must be borne in mind that [EU] legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of [EU] law thus involves a comparison of the different language versions’ (paragraph 18). 24. ‘It must also be borne in mind, even where the different language versions are entirely in accord with one another, that [EU] law uses terminology which is peculiar to it. Furthermore, it must be emphasised that legal concepts do not necessarily have the same meaning in [EU] law and in the law of the various Member States’ (paragraph 19). 25. ‘Finally, every provision of [EU] law must be placed in its context and interpreted in the 12 light of the provisions of [EU] law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied’ (paragraph 20). 26. Thus, it is clear from the judgment in Cilfit that the Court sought to circumscribe the discretion available to courts adjudicating at last instance in establishing the existence of a situation in which it may be concluded that the correct application of EU law is so obvious as to leave no scope for ‘any reasonable doubt’. 27. It would seem, however, that none of the Member States subject the application of the exception based on the absence of reasonable doubt to a prior systematic analysis of all, or even some, of the conditions laid down by the Court in the judgment in Cilfit. The approach adopted by the courts adjudicating at last instance is, on the contrary, more case-based or pragmatic, inasmuch as they often analyse the conditions obtaining in each case that will support the conclusion they intend to reach with respect to the existence or absence of reasonable doubt. 28. As an example of this, it may be noted that, in the Czech Republic, the Ústavní soud (Constitutional Court), after finding that the Nejvyšší soud (Supreme Court) had failed to satisfy some of the conditions arising from the judgment in Cilfit by not comparing language versions or taking into account the specific features of EU law in terms of its terminology and interpretative methods, held that such an omission was excusable, in particular in the light of the fact that the Cilfit criteria cannot be construed absolutely. In Slovenia, on the other hand, the Ustavno sodišče (Constitutional Court) held that the ordinary courts must apply all the criteria arising from the judgment in Cilfit; the Vrhovno sodišče (Supreme Court), however, does not appear to fulfil that obligation often. A. THE NEED FOR THE MATTER TO BE EQUALLY OBVIOUS TO THE COURTS OF THE OTHER MEMBER STATES AND TO THE COURT 29. The general condition laid down in paragraph 16 of the judgment in Cilfit, namely that ‘the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice’, is not often the subject of specific consideration or analysis in the case-law of the Member States. It is true that that condition is sometimes restated in the national courts’ reasoning but, in most cases, 15 35. So far as is relevant, it may be noted that the existence of contradictory decisions given by lower courts in the same Member State has been used to justify the obligation on the part of the courts adjudicating at last instance to refer a matter to the Court; however, this has occurred in only a small number of cases, the majority of which, moreover, predate the judgment in Ferreira da Silva e Brito and Others. 21 B. COMPARAISON OF THE LANGUAGE VERSIONS 36. The general condition examined in the preceding section is later clarified in the conditions laid down in paragraphs 18 to 20 of the judgment in Cilfit. 37. In paragraph 18 of that judgment, the Court recalled the obligation incumbent on courts adjudicating at last instance to take account of the fact that, since EU legislation is drafted in several languages, the interpretation of a provision of EU law involves a comparison of the language versions. 38. In that regard, the courts of the Member States adjudicating at last instance do not appear to fulfil that obligation systematically or even regularly. 39. It is true that examples of decisions in which such a linguistic comparison is carried out can be found in several Member States, namely Austria, 22 Belgium, 23 Spain, 24 Estonia, 25 Greece, 26 Lithuania, 27 the Netherlands, 28 Poland, 29 the Czech 21 The Nejvyšší správní soud (Supreme Administrative Court, Czech Republic; more recently, however, the relevance of that criterion has been rejected by the Ústavní soud (Constitutional Court, Czech Republic), in the light particular of the judgment in Ferreira da Silva e Brito and Others), the Bundesverfassungsgericht (Federal Constitutional Court, Germany) and the House of Lords (United Kingdom). The only recent case identified comes from the College van beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands); however, it appears to be an isolated case. 22 In one case, the Oberster Gerichtshof (Supreme Court) referred to the English and French versions of the legislation in question. 23 Only the Cour de cassation (Court of Cassation) appears to carry out such a comparison, in connection in particular with the versions in the three official national languages (Dutch, French and German) and the English version, as well as, occasionally, the Italian and Spanish versions. 24 The Tribunal Supremo (Supreme Court) has on occasion taken account of the English and French versions; more exceptionally, the German, Italian, Portuguese and Dutch versions too. 25 The Riigikohus (Supreme Court) sometimes examines the English, French, German and Finnish versions. 26 The Areios Pagos (Court of Cassation) and the Symvoulio tis Epikrateias (Council of State) sometimes compare the English, French and German versions. 27 In one judgment, the Lietuvos Aukščiausiasis Teismas (Supreme Court) took into account all the language versions other than Hungarian and Irish. However, it will be noted that the point of uncertainty concerned a single conjunction (where the Lithuanian version had used ‘and’, all the 16 Republic, 30 the United Kingdom 31 and Slovenia. 32 However, even in those Member States, language versions do not appear to be compared as a matter of course and, where the courts adjudicating at last instance do carry out such a comparison, they usually do so in relation to a limited number of language versions, quite often English, French and German. C. THE TERMINOLOGICAL PECULIARITIES OF EU LAW 40. In paragraph 19 of the judgment in Cilfit, the Court noted that EU law uses terminology which is peculiar to it, with the result that it contains legal concepts which do not necessarily have the same meaning in the various national legal systems. 41. None of the decisions consulted for the purposes of the present research note appear to address matters of terminology, at least not directly. These are analysed, at most, indirectly, as part of the comparison of language versions, in the form of a classification of the interpreted term as simple (Supreme Court (United Kingdom)) or technical (Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania)). D. THE CONTEXTUAL, SCHEMATIC, TELEOLOGICAL AND DYNAMIC INTERPRETATION OF EU LAW 42. Finally, in paragraph 20 of the judgment in Cilfit, the Court held that every provision of EU law must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. 43. As with the other conditions, the case-law of the Member States does not routinely make other versions had used ‘or’), which probably explains the large number of versions compared. As a general rule, it is more usually the English and French versions that are compared. 28 There are examples from several Netherlands courts adjudicating at last instance. Such a comparison, which does not appear to be common, usually takes account of the English and French versions. 29 This has been true of the ordinary (i.e. non-administrative) courts, such as the Sąd Najwyższy (Supreme Court), which have taken into account the English, French, German, Italian, and Czech versions, and the Sąd Apelacyjny Katowice (Court of Appeal, Katowice), which is the only court to say that it has taken account of all the language versions. 30 The versions most commonly examined by the Nejvyšší správní soud (Supreme Administrative Court) and the Nejvyšší soud (Supreme Court) appear to be English, French, German, Slovakian and, where appropriate, Spanish. 31 The Supreme Court has occasionally compared the French, German, Spanish and Dutch versions. 32 The Vrhovno sodišče (Supreme Court) has compared, inter alia, the English, French and German versions. 17 reference to the interpretative methods set out in the judgment in Cilfit. Moreover, the courts adjudicating at last instance that use those methods do not do so as a matter of course. 44. Thus, references are sometimes made to the objective and scheme of the act of EU law in question, 33 to the other provisions of that act and/or to other acts of EU law, 34 including the preparatory texts or other soft law measures, 35 and even to previous versions of the legislation at issue. 36 45. However, and as is also true of the other conditions relating to ‘any reasonable doubt’ laid down in the judgment in Cilfit, the case-law analysed shows that the courts adjudicating at last instance do not use the interpretative methods referred to by the Court as a matter of course. At most, they rely on one or other of those methods, depending on the particular circumstances of each case, sometimes in combination with other criteria relating to the ‘any reasonable doubt’ test established in the judgment in Cilfit, or even in conjunction with additional, more extensive criteria. 33 This is true of the Cour de cassation (Court of Cassation, Belgium); the Tribunal Supremo (Supreme Court, Spain); the Conseil d’État (Council of State, France); the Areios Pagos (Court of Cassation, Greece) and the Symvoulio tis Epikrateias (Council of State, Greece); the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania); several Netherlands courts adjudicating at last instance; the Vrhovno sodišče (Supreme Court, Slovenia); in the Czech Republic, the Nejvyšší soud (Supreme Court) and the Nejvyšší správní soud (Supreme Administrative Court); and, in Romania, the Curtea de Apel (Court of Appeal), Bucharest. 34 An approach taken by the Cour constitutionnelle (Constitutional Court) and the Cour de cassation (Court of Cassation, Belgium), the Riigikohus (Supreme Court, Estonia), the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia) and the Areios Pagos (Court of Cassation, Greece). 35 This is true, for example of the Cour constitutionnelle (Constitutional Court) and the Cour de cassation (Court of Cassation, Belgium), when referring, respectively, to the calculation methods established by the European Banking Authority and in the Virgós-Schmit report; the Tribunal Supremo (Supreme Court, Spain), when referring to a Commission report on the implementation of a framework decision; the Supreme Court (Ireland), when citing the Schlosser report; the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), when referring to the Commission’s evaluation of the transposition of the directive in question in Slovakian law; the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic), when citing the explanatory notes of the Commission and the World Customs Organisation on the combined nomenclature; and the Vrhovno sodišče (Supreme Court, Slovenia), when referring to a Commission communication. 36 The Raad van State (Council of State, Netherlands) and the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic). 20 the absence of any need to make a reference in connection with EU law: for example, because the interpretation of a provision of a directive is clear in the light of the national legislation, 42 or because the provision of national law at issue is an ‘acte clair’. 43 53. The objectives of the reference for a preliminary ruling procedure itself are sometimes relied on in support of certain additional criteria used by the national courts. Thus, in the light of the fact that the purpose of the preliminary ruling procedure is to guarantee the uniform application of EU law, the Anotato Dikastirio Kyprou (Supreme Court, Cyprus) considered it necessary to make a reference to the Court whenever the case raised questions of interpretation of general interest. Also taking as its basis the objective as to the uniform application of EU law, the Ústavní soud (Constitutional Court, Czech Republic) established the criterion of the ‘importance of the point of law in terms of the unity, coherence and development of EU law’, whereby a reference to the Court could be dismissed in ‘unique situations’ having no general implications for the legal system of the European Union. Similarly, in France, the Cour de cassation (Court of Cassation) has occasionally been able to justify a reference for a preliminary ruling seeking an interpretation of a provision of EU law on the further ground that a uniform interpretation of the provision at issue was required. 54. According to the wording of some decisions adopted by the courts adjudicating at last instance in Portugal, the brevity or concision of a rule of EU law is a factor to be taken into account in the assessment of the obligation to refer. In that regard, although the case-law does not expressly say as much, that criterion appears to be based on the rationale that a concise rule is clearer and easier to interpret. 55. A refusal to refer a matter to the Court may also be based on the division of jurisdiction between the Court and the national courts. Thus, by relying on the proposition that it falls to the former to interpret EU law and to the latter to apply it in any particular case, some courts have taken the view that there is no need to make a reference to the Court where the question which arises relates not to the interpretation of EU law, but to its 42 Be it the national legislation transposing the directive (Varhoven administrativen sad (Supreme Administrative Court, Bulgaria)) or a national law in the area covered by the directive (Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)). 43 The Cour administrative (Higher Administrative Court, Luxembourg) justified such a classification of a national provision as an ‘acte clair’ on the basis not only of the wording thereof, but also, and above all, by reference to the requirements of, inter alia, the ‘wirtschaftliche Betrachtungsweise’, which corresponds to the principles of economic realism. 21 application. 44 56. In some Member States, the courts adjudicating at last instance may refrain from making a reference because of the way in which the parties have formulated the proposed question for a preliminary ruling, for example where the question is imprecise with respect to the provisions of which an interpretation would be sought, 45 where it is liable to infringe the national rules of procedure, 46 or where it seeks to obtain an assessment of the compatibility of a national law with EU law, 47 which is also linked to the idea of the division of jurisdiction between the Court and the national courts. 57. Finally, a number of courts justify their decision not to refer a matter to the Court on grounds of the need to avoid delays to the proceedings pending at national level. 48 This argument, however, is usually relied on for the sake of completeness. Moreover, the desire not to overburden the Court is also sometimes cited as a reason for not referring a matter to the Court for a preliminary ruling. 49 44 Such as the Symvoulio tis Epikrateias (Council of State, Greece), the Qorti tal-Appell (Court of Appeal, Malta) and the Înalta Curte de Casație şi Justiție (High Court of Cassation and Justice, Romania). 45 This practice has been adopted by the Ústavní soud (Constitutional Court, Czech Republic), the Tribunal Supremo (Supreme Court, Spain) and the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic). 46 For example, the Cour de cassation (Court of Cassation, Luxembourg) turned down a proposal for a question to be referred for a preliminary ruling because it sought to challenge the assessment of the facts, which assessment falls to the courts hearing the substance of the case. The Qorti tal-Appell (Court of Appeal, Malta), meanwhile, turned down a proposal for a question to be referred for a preliminary ruling because the reference should have been made at the time when the contested provision was interpreted, that is to say at second instance. Since it was acting at third instance, it was bound, under the national legislation, to adopt the same interpretation as that given at second instance. Finally, in Romania, the Curtea de Apel (Court of Appeal) of Constanța cited the impossibility of making a reference for a preliminary ruling after the hearing had come to an end and at the deliberation stage. 47 The Anotato Dikastirio Kyprou (Supreme Court, Cyprus) and the Curtea Constituțională (Constitutional Court, Romania). 48 The Ústavní soud (Constitutional Court, Czech Republic), the Supreme Court (Ireland), the Legfelsőbb Bíróság (Supreme Court, Hungary), the Qorti tal- Appell (Court of Appeal, Malta) and the Supreme Court (United Kingdom). 49 The Ústavní soud (Constitutional Court, Czech Republic), the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania) and the Cour administrative (Higher Administrative Court, Luxembourg). 22 V. THE DISCRETION ENJOYED BY THE NATIONAL COURTS IN IMLPEMENTING THE CILFIT CASE-LAW 58. The Court has had occasion to make it clear, in relation to the Cilfit case-law, that it is for the national court or tribunal alone to determine whether the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and to decide, as a result, to refrain from referring to the Court a question concerning the interpretation of EU law which has been raised before it 50 and to take upon itself the responsibility for resolving it. 51 It follows therefrom that it is for the national courts alone against whose decisions there is no judicial remedy under national law to take upon themselves independently the responsibility for determining whether the case before them involves an ‘acte clair’. 52 59. In the light of that case-law, some national courts adjudicating at last instance have said that the Court’s intention was to confer on them a relatively broad discretion to assess the existence or absence of any reasonable doubt. For example, the Ústavní soud (Constitutional Court, Czech Republic) has expressly stated that, according to many legal commentators, it is almost impossible to meet the requirements of the ‘acte clair’ theory established in the judgment in Cilfit and that, in the light of the Court’s case-law, the courts adjudicating at last instance have a broad discretion in that regard. The Court’s approach to the obligations arising from the third paragraph of Article 267 TFEU has also been dubbed ‘liberal’ by the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland). 60. Be the views expressed by the national courts themselves what they may, an examination of the case-law of the courts adjudicating at last instance (in particular the examination carried out by legal commentators) supports the conclusion that a significant number of Member States are resistant to, or hesitant about, the prospect of making a reference to the Court, or, in any event, that the obligation to refer is the subject of a predominantly liberal interpretation which sometimes leads to a lax use of 50 Judgment of 9 September 2015, Ferreira da Silva e Brito and Others C-160/14, EU:C:2015:565, paragraph 40 and the case-law cited. 51 Judgment of 9 September 2015, X and van Dijk, C-72/14 and C-197/14, EU:C:2015:564, paragraph 58. 52 Judgment of 9 September 2015, X and van Dijk, C-72/14 and C-197/14, EU:C:2015:564, paragraph 59. 25 there has been a conscious or inadequately reasoned deviation from the interpretation of the provision of EU law given by the Court. 65. Consequently, case-law established by the constitutional courts in relation to compliance by the ordinary courts with the constitutional requirements attached to the concept of ‘any reasonable doubt’ within the meaning of the Cilfit case-law appears to be somewhat exceptional. One such exception is Spain, where the Tribunal Constitucional (Constitutional Court) has interpreted the right to a fair trial as meaning that, where a court adjudicating at last instance intends not to apply a national rule which it considers to be incompatible with EU law, it may refrain from referring the matter to the Court where it considers that the interpretation of that law ‘objectively, clearly and conclusively’ raises ‘no doubts’. 66. Finally, it may be noted that a constitutional court’s review of the way in which the ordinary courts adjudicating at last instance fulfil their obligations under the third paragraph of Article 267 TFEU has occasionally prompted the constitutional court to ask, or even direct, an ordinary court to refer a matter to the Court for a preliminary ruling. 61 67. Consequently, it seems possible to conclude that the constitutional review of the way in which the ordinary courts adjudicating at last instance fulfil their obligations under Article 267 TFEU, as interpreted by the Cilfit case-law, has a relatively limited impact on the interpretation of the concept of ‘any reasonable doubt’. VII. CONCLUSION 68. It may be concluded from the analysis of the case-law of courts adjudicating at last instance that, generally speaking, in most Member States, the Cilfit case-law is frequently cited to justify either referring a matter to the Court or not referring a matter to the Court. States which do not have a constitutional court (such as Sweden) or in which that court does not review the decisions of the ordinary courts (such as Lithuania). 61 This has been done by the Tribunal Constitucional (Constitutional Court, Spain), the Ustavno sodišče (Constitutional Court, Slovenia) and the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic). 26 69. As regards, more particularly, the exception to the obligation to refer linked to the existence of an ‘acte clair’, the case-law of the vast majority of the Member States has not established any criteria by which to circumscribe or define the scope of the concept of ‘any reasonable doubt’. Instead, the approach taken by the courts adjudicating at last instance in this regard is simply to find that the provision of EU law in question is clear and/or its interpretation or application in the case in question leaves no scope for any reasonable doubt, without specifying in any further detail the reasons for that finding. 70. It is true that, in several Member States, there are decisions which appear to make some attempt to clarify the concept of ‘any reasonable doubt’. Where that approach does exist, however, it is heavily case-based and does not therefore support any conclusion as to the existence in a particular Member State of an interpretation having general application. 71. The same conclusion applies to the conditions attached to the ‘any reasonable doubt’ test which the Court set out in the judgment in Cilfit. First, those conditions are not analysed as a matter of course, some of them seeming to be taken into account only in very exceptional situations. Other conditions, such as, for example, a comparison of the language versions and the schematic or teleological interpretation of EU law, are analysed more often but, once again, not to such an extent as to warrant the view that they are commonly and routinely addressed by the courts adjudicating at last instance. 72. Moreover, the case-law of some Member States contains evidence of additional criteria which do not expressly flow from the Cilfit case-law but are taken into account, often in combination with conditions linked to the ‘any reasonable doubt’ test, as the basis for concluding whether or not there is any reasonable doubt or, more generally, for deciding whether a reference should be made to the Court. Moreover, other decisions use additional criteria which flow from the judgment in Cilfit but do not relate to the conditions attached to the ‘any reasonable doubt’ test. That is the case, in particular, with the ‘acte éclairé’ criterion, which, in several Member States, is often used interchangeably with the condition as to the existence of an ‘acte clair’. 73. In the light of all the foregoing, it seems possible to conclude that many courts adjudicating at last instance make generous use of the discretion which they enjoy under the Cilfit case-law as regards the obligation to refer imposed on them, in principle, by 27 the third paragraph of Article 267. […]