In brief, national courts “against whose decisions there is no judicial remedy under national law” are not bound by the duty to refer to the CoJ a preliminary question on the interpretation of EU law, if the answer to the question is wholly plain.
Yet, when is something wholly plain? The formal answer of the CoJ is that this is so whenever the correct application of [EU] law is so obvious that there is no scope “for any reasonable doubt as to the manner in which the question raised is to be resolved”. The competent national court “must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice”.

In a Union with 28 Member States and 24 official languages these criteria, when taken literally and applied strictly, render the Acte Clair doctrine virtually meaningless. Chances that all courts will have no doubt on a given interpretation would seem to be extremely small or, as the (Swedish) Advocate General (AG) Wahl recently opined in the joined cases of X and van Dijk (C-72/14 and C-197/14), “just as likely as encountering a unicorn.”

Hence, it may come as no surprise that the CoJ has been called upon to bring clarity to the Acte Claire doctrine. The most recent request to do so has been made by the Dutch Supreme Court in the afore-mentioned cases of X and van Dijk. In brief, these are two very similar social security cases, one pending before a lower Dutch court, the other before the Supreme Court. The lower court started a preliminary ruling procedure asking the CoJ a quite specific social security question. To the Supreme Court the answer to this question was plain, but it did ask the CoJ whether the referral by the lower court implied that there was no Acte Clair situation. Should the Supreme Court wait for the answer of the CoJ to the preliminary question of the lower court, even though the Supreme Court has no doubt as to what that answer should or will be?

In the view of AG Wahl, in a situation such as the one at hand, a national court of last instance does not have to wait. If such a national court is sure enough of its own interpretation to take upon itself the responsibility for resolving a point of EU law without the aid of the Court of Justice, it ought to be legally entitled to do so. If that interpretation would turn out to be incorrect, the Commission could initiate an infringement procedure or the affected individual could hold a Member State liable in damages for breaches of EU law caused by highest courts, as the CoJ recognized in Köbler.

Certainly, from the perspective of procedural economy and the swift administration of justice, much can be said for this. Why demand from highest courts to stay proceedings when the outcome of a preliminary proceeding is all too obvious? One may add that such courts are under a duty – which is imposed on them by the European Court of Human Rights (!) (Vergauwen case) – to given reasons as to why they do not give in to requests to make preliminary requests.

Yet, allowing national courts acting at last instance not to refer an interpretative preliminary question when they, “in their minds”, are convinced of the proper answer is risky. The uniform interpretation of EU law – the key aim of the preliminary ruling procedure – is at stake. Today, we have far more Member States, and thus far more courts acting at last instance, than we had at the time of the CILFIT-ruling. The risk of divergent interpretations has increased, and the correction mechanisms for wrong interpretations by highest courts are unlikely to be effective. We all know that it is extremely difficult for individuals to claim “Köbler- damages” and that the Commission is not eager to commence infringements proceedings against stakes for judicial breaches of EU law.

The CoJ depends on, and should ensure a good relationship with national supreme courts, constitutional courts or other courts acting at last instance, but it is well advised to think at least twice before giving the interpretative freedom the AG has in mind. The Acte Clair doctrine serves procedural efficiency, but may undermine one of the core features of EU law: its uniform meaning and application.