Further, and Ferriera da Silva[1], the CJEU seemed to

Further, it can be said that, although in theory the acte clair doctrine is stringent, the
Court has been very lenient in applying the different conditions. More recently
in X and Van Dijk and Ferriera da Silva1,
the CJEU seemed to accept a more flexible version of the doctrine where some
doubt is still permitted as the Counseil D’Etat, the highest French Court, did
not feel obligated to confer with the CJEU when a provision failed to support
the applicant’s claims. As a result of occurrences much like this, it can be
said that flexibility can negatively affect and pose possible risks for
uniformity in EU law. The CJEU are giving national courts of last instance a
greater degree of flexibility in their duty to refer and enhancing the
cooperative element of the preliminary reference procedure, but as is evident
with the strict CILFIT criteria the
CJEU clearly recognise that the risk of exemption abuse was high. With strict
criteria, the CJEU attempt to ensure that national courts are kept in place and
that they do not underestimate the CJEU’s authority.


It is apparent from the developments of Da Costa to CILFIT that the act eclair doctrine has expanded which could
potentially lead to national courts applying inappropriate previous rulings to
questions at CJEU. The doctrine is essentially a system based on precedent that
allows CJEU rulings to have authority across Member States and is an effective
way to reduce the caseload of the CJEU. This exemption does not require the
national court to interpret EU matters by themselves, unlike acte éclairé, they will still make use
of CJEU authority in some way by referring to their previous rulings. By
national courts all referring to CJEU authority, uniformity is promoted as a
result. Nevertheless, the CJEU themselves are not bound by their previous
rulings, as part of their role is to make rulings that are keeping up with the
evolution of EU law, meaning that the rulings they give can be inconsistent and
not reflect their current opinion on the matter. Therefore, national courts may
be applying an outdated opinion to a case. Also, if rulings are inconsistent,
it is an inconvenience for national courts to choose which they should apply;
it can be said that inconsistency and uniformity cannot co-exist. Acte clair has given national courts a
role in upholding the Community law as primary actors and not just as
implementers. However, national courts have loosely applied the doctrine
meaning this trust they have been given has been abused, therefore preventing
the preliminary reference procedure in adjudicating as it originally should

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It can be argued that the third exemption of irrelevancy promotes
the uniform application of the of EU law as seen in the case of Bakker v Austria (R) (the right to
practice ones’ profession). Where the questions referred are irrelevant or
hypothetical such as Meilicke (R) the
consistency of interpretation of EU law is not put at risk. It can be said that
if advice from the national courts do not have an impact, then it wastes both
the national courts and the CJEU’s time, weakens the whole purpose of the
preliminary reference procedure which is to ensure that it establishes the
co-operate relationship between the EU and the national courts as well as to
ensure EU law is interpreted the same way in all Member State courts. The
ruling in CILFIT reflect the various
roles of the national courts and the CJEU and the strict criteria that the CJEU
has ascribed to the application of acte
clair would hardly ever allow the exemption to be used, therefore,
promoting uniformity as a result. There may also be disagreements between lower
courts and upper courts yet the upper court still calls the issue act eclair.

The CJEU had actually said that this is not a misuse of the exemption, but it
can be argued that this is not a misuse of the exemption, but it allows too
much flexibility for national courts that decisions may not be applied uniformly.

It is submitted that there has been an increasing competence of EU law since EU
law finds itself becoming more and more relevant to individuals and matters of
EU law might not be totally and directly relevant to a case’s outcome, it might
possibly have some relevance. It is difficult to tell whether a preliminary
ruling will affect a case’s outcome until the ruling is actually given. One can
question whether national courts deal with this difficulty appropriately as it
can be difficult to regulate the use of the exemptions or the CILFIT criteria in fact.


Another crucial aspect to discuss
is that of state liability in preserving the uniformity of the application of
EU law as introduced by Francovich and
Bonifaci v Italy 1991 (R). Following from this principle, a State is
liable for failing to implement a directive and as a result this has caused
damage to the individual. Since the CJEU’s judgement on Köbler v Austria (2003)2
and more recently Traghetti del
Mediterranoeo SpA v Italy (2006) individuals can take proceedings for state
liability to acquire reimbursements for damages in cases where courts of last
instance have made wrongful decisions resulting in the infringement of EU law.

It can be submitted that as a result of Köbler’s
ruling this will serve as a warning to courts so that exemptions are used
properly and so that they make references when necessary thereby preserving the
uniformity that the procedure is intended to promote. The possibility of state
liability may encourage exemptions to be only used when appropriate thereby not
threatening uniformity.

1 Joined
Cases C-72/14 and C-197/14 X & van Dijk 2016 1 CMLR 27

Case C?224/01 Gerhard Köbler v Republik
Österreich 2003.