The CJEU’s ruling on the case of

The introduction of the doctrine of Acte Éclaire
in Da Costa1 case held
that if the CJEU has answered a similar question in a previous ruling, national
courts do not have an obligation to refer. In other words, if a national court
is challenged with an issue that is similar to one that has a previous preliminary
ruling, then it may establish its conclusion of a case on the answer the CJEU
has already given to the equivalent question. In such a situation, a court of
last instance is thus allowed, but not obliged, to make a reference.2 The
conditions for the doctrine of Acte Éclaire to apply are considered less strict
compared to that of Acte Clair. This is because the judgement of a national court
is not based on its own interpretation of EU law, but on the effect of
precedent as there have been previous conclusions to cases, although the issue
may only be similar and not identical. Therefore, this ensures that the uniform
application of EU law will not be affected as national courts still refer to
previous preliminary rulings given by CJEU. Whether or not a court decides to
make a reference can be significant in ensuring if uniform application of EU
law would be put at risk if a reference were not made.3 An
example of an inexpedient application of the doctrine of acte éclairé is the
German Federal Finance Court’s (Bundesfinanzhofs)
judgment on the issue of private schools and if they were involved in the
provision of services within the Article 56 TFEU. The court relied upon the CJEU’s
ruling on the case of Belgian State v
René Humbel and Marie-Thérèse Edel4
where the ruling was concerned with school fees regarding State education thus
not providing the right answer for the case. This can affect the interpretation
of EU law in member states as national courts provide the wrong conclusion to
cases. Many academics, including Chalmers state that the performance of
national courts is unbalanced and agree that the CILFIT criteria grants
national courts some leeway for decision-making in a highly distorted manner.5

1 Da Costa en Schaake
NV, Jacob Meijer NV, Hoechst-Holland v. Netherlands Inland Revenue
Administration, Joint Cases 28 to 30-62, ECR 1963

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2  Morten
P Broberg and Niels Fenger, Preliminary References To The European
Court Of Justice (Oxford Univ Press 2014) page 233

3 CILFIT and Lanificio di Gavardo SpA v.
Ministry of Health, Case 283/81, ECR 1982, para 14

4 Case
263/86 Humbel 1988 ECR 5365

5 Chalmers,
D.; Davies, G.; Monti, G., supra note 5, p. 177.

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