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In the Da Costa and CILFIT decisions, CJEU developed what is known as the acte éclairé or ‘clarified
act’ (R) and the acte clair or the ‘clear act’ (R) doctrine are the first and second
exemptions. This doctrine sets out the criteria under which national courts are
not obliged to make a preliminary reference to the CJEU. National courts do not
have to refer if there exists previous case law addressing a similar case and circumstance,
such as, if a case arises that evident has quite similar facts to a previously
decided case; the CJEU expects the national court to apply the outcome of the
previous case to this new case and provide a plausible explanation for doing
so. The second exemption is also known as the acte clair and applies in
situations where courts of last instance are not obligated to refer if there is
no reasonable doubt about the interpretation of the provision since it is clear
and apparent. As identified in the CILFIT case, the Ministry of Health resisted
the reference stating that the solution was so obvious that it excluded any
possibility of doubt as to the interpretation of the regulation, hence, no
requirement for a reference. The third exemption entails that the preliminary
ruling of the CJEU will not have any effect on the overall ruling of the case before
the national Member State court.

 

The discussion of whether the
doctrine of acte éclairé prevents the preliminary reference procedure from
promoting uniformity stems from the expansion that came about since the Da Costa
case as, it could be argued, the doctrine gives increasing discretion to
national courts of last instance. The obligation of the courts of last instance
is released if they attempt to interpret the same Community law provisions
under what they call similar circumstances (R). It can be said that; this notion
of a similar reference can be misleading as it may provide a potential loophole
and may lead to a false conclusion. In turn, references were not made to the
CJEU in cases where a provision of similar content of another Community rule
was interpreted. It is submitted that, this method can become a threat to the
uniformity of Community law if the courts of last instance interpret a
provision by similarity with a preliminary interpreting another provision, or
by ignoring the preliminary ruling and interpreting the provision in their own
way (R). It is unlikely that Da Costa intended to provide such wide discretion
to national courts. However, acte éclairé does not give national courts the
power to interpret EU law (as acte clair does), it just gives them the power to
apply previous rulings to the CJEU.

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