Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

In a previous post, I argued that the European Court of Human Rights (ECtHR) held national supreme courts to a higher standard than the Court of Justice of the European Union (CJEU) regarding preliminary references to the CJEU. I suggested this was due to the CJEU’s ruling in the CILFIT case. However, the CJEU has recently proven me wrong.

The CJEU’s decision in Ferreira da Silva marks the first time the Court has declared that a national supreme court violated its obligation to make a preliminary reference under Article 267.3 TFEU. While the CILFIT criteria seemed to give national courts significant discretion, the acte claire doctrine has been meaningfully applied in this case.

The CJEU could not ignore the facts in this case, as the Portuguese Supreme Court had clearly misinterpreted established CJEU case law on business transfers and worker rights. The Portuguese Supreme Court’s interpretation had been previously rejected by the CJEU, clearly contradicting the CILFIT criteria. While all supreme courts likely deviate from Article 267.3 TFEU occasionally due to the broad nature of the CILFIT criteria, the CJEU’s decision to uphold the acte claire doctrine in this instance is notable.

A key factor in Ferreira da Silva appears to be the significant inconsistencies between the courts of different Member States. Although there were internal inconsistencies in Portugal’s interpretation of Directive 2001/23 (concerning worker rights in business transfers), the CJEU emphasized that the crucial element was the combination of conflicting national decisions and conflicting decisions from other Member States that had led to preliminary references.

Furthermore, the Ferreira da Silva case involved a claim for damages against the Portuguese State due to the Supreme Court’s decision that violated Directive 2001/23. The CJEU found the Portuguese law, which only allowed for damages if the original decision was overturned, to be incompatible with the principle of effectiveness as it made it overly difficult to claim damages.

This ruling builds on the precedent set in Traghetti del Mediterraneo, where the CJEU challenged another procedural rule designed to protect courts from damages claims. However, Ferreira da Silva goes even further by not only criticizing a Supreme Court’s application of EU law and its duty to make a reference but also dismantling another layer of protection for national courts against litigants invoking EU law.

This judgment is a positive development for EU law. The situation in some Member States, particularly regarding preliminary references from courts of last instance, had become problematic. Ferreira da Silva demonstrates that the CJEU is willing to take action and send a clear message to national courts. The straightforward facts of the case justify the CJEU’s decision, making it difficult for national judges to argue against a stricter interpretation of Article 267.3 TFEU. This was a strategic and well-timed decision by the Court.

Although not decided by the Grand Chamber, the significance of Ferreira da Silva is evident. The Court merely applied its established case law, which the Grand Chamber has repeatedly confirmed. The presence of Koen Lenaerts on the five-judge chamber further indicates the judgment’s weight and authority.

Barnard & Peers: chapter 10

*This post previously appeared on the Despite our Differences blog

Photo credit: www.lapsi-project.eu