Finding Light in the Darkness: On the Actual Application of the acte clair Doctrine

Summary:

The objective of this article is twofold. First, it is to make the acte clair doctrine more operational by identifying a range of situations that, according to the CILFIT case-law, preclude acte clair, as well as some that do not have this effect. Secondly, the objective is to examine the extent to which national courts respect this case-law.

The article first analyses the scope of the acte clair doctrine and the situations where there is either no duty to refer or where there is a duty which is not subject to the CILFIT reservation. The article then restates the conditions for acte clair that the Court of Justice laid down in the CILFIT ruling. Based on this the article identifies situations that preclude acte clair due to a divergence of opinions. Furthermore, the article examines the situation when a legal issue pending before a national court is also pending before another body.

In turn the article also discusses the problems flowing from the multilingual character of European Union (EU).