The Unwritten Exceptions to the Duty to Refer After Consorzio Italian Management II: ‘CILFIT Strategy’ 2.0 and its Loopholes

The unwritten exceptions to the duty to refer upon last instance national courts, most notably the so-called ‘acte clair doctrine’ forged in the well-known CILFIT ruling, lie at the core of the multilevel composite judicial architecture of the EU. Taking in due consideration the copious literature in this regard, our article examines the current state of EU law in relation to the unwritten exceptions to the duty to refer enshrined in Article 267(3) TFEU and its major issues. The relevance and topicality of the analysis result from developments brought about by the Grand Chamber in Consorzio Italian Management II, which will be the point of reference for the future doctrinal reflection on the dialogue between last instance national courts and the ECJ. We contend that, by updating and partially reshaping the CILFIT conditions, the ECJ has to some extent updated the judicial rationale underlying that judgment: strengthening the ECJ’s judicial control over last instance national courts’ practice while – at the very same time – loosening its reins on these courts in some respects. Indeed, in today’s Union, the Court seems to have accepted the idea that, in the context of Article 267 TFEU, its authority can only be successfully performed if to some extent shared with last instance national judges, whose role as enforcer of EU law has been enhanced along with the responsibilities attached to it. One might thus wonder whether this strategy will be as successful as its ‘predecessor’ (i.e., CILFIT).