In the 1982 judgment ‘CILFIT’ (Srl CILFIT and Lanificio di Gavardo SpA v Ministry of
Health) the Court of Justice of the European Union (CJEU) introduced the controversial ‘acte
clair’ doctrine, granting national courts the discretion to independently interpret EU law and
refrain from referring the case to the CJEU in certain ‘clear’ cases.
Intended as a means of alleviating the burden on the CJEU, the doctrine also favored a
division of EU law between the Union and national level(s). In the following decades, the
acte clair doctrine developed a life of its own on the many domestic levels of the EU Member
States. Frequently, unclear and contentious legal situations were dealt with by domestic
courts without involving the CJEU, often to the frustration of individual legal actors.
With the judgment ‘CIM II’ (Consorzio Italian Management and Catania Multiservizi SpA
v Rete Ferroviaria Italiana SpA) in 2021, the CJEU aligns the acte clair doctrine with the
Member States’ domestic practice on the one hand and further attempts to introduce more
transparency and control over the seemingly chaotic domestic behavior on the other. By
requiring national courts to e.g., provide reasons to justify the rejection of a request for a
preliminary reference, the CJEU unequivocally calls the domestic courts for a more stringent
compliance and seemingly improves individual legal actors’ prospect to successfully invoke
a violation of their (procedural) rights.
While the innovations may appear promising at first glance, a closer examination reveals
their lack of enforceability and tendency to further promote the fragmentation and
politicization of EU law at the national level(s): The conditions for claiming damages within
the context of state liability are rarely met, and such claims are often decided by the same
courts responsible for violating the obligation to refer in the first place. The European
Commission’s infringement procedure under Article 258 TFEU, by design cannot be
regarded as an effective conceptual remedy. Consequently, even as of CIM II, the European
Court of Human Rights remains the only present reliable redress mechanism for disgruntled
individuals. However, CIM II also widens the loophole for ‘renegade’ courts to evade scrutiny
from the European Court of Human Rights, thus creating an unprecedented opportunity for
abuse and further fragmentation, particularly at the expense of the legal position of individual
legal actors.