How to Make a Unicorn or ‘There Never was an “Acte Clair” in EU Law’: Some Remarks about Case C-561/19 Consorzio Italian Management

Abstract

In its judgment in Consorzio Italian Management, the Court of Justice has gone some way to solving the riddle that since the beginning of European integration has remained one of the most important and widely discussed doctrines of EU law: one that concerns the obligation of national courts of last instance to refer questions of interpretation of EU law for a preliminary ruling to the Court. The doctrine in question concerns exceptions to this obligation, solidified four decades ago in the landmark CILFIT ruling. More specifically, one exception to the obligation of national courts of last instance to make a reference is found in situations where the meaning of a provision of EU law is clear beyond reasonable doubt. This contribution discusses whether and how the Court’s ruling in Consorzio Italian Management adjusts and recalibrates this particular exception, which despite the name it was usually referred to – ‘acte clair’ – still remains unclear. To explain what, if anything, changes after Consorzio Italian Management, the discussion will go back to the origins of the doctrine of ‘acte clair’, initially pronounced in CILFIT.

Keywords: preliminary ruling procedure, Article 267(3) TFEU, national courts of last instance, obligation to refer, exceptions, CILFIT, ‘acte clair’.

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Suggested citation: D Petrić, ‘How to Make a Unicorn or “There Never Was an ‘Acte Clair’ in EU Law”: Some Remarks about Case C-561/19 Consorzio Italian Management’ (2021) 17 CYELP 307.