The impact of EU expansion on the Preliminary Rulings Procedure

In CILFIT (case 283/81), the European Court of Justice (ECJ) endorsed the use of the acte clair doctrine – the notion that national courts of “last resort” may decide to refrain from seeking a preliminary ruling under Article 234 (3) EC. The Court also stipulated a list of factors – the CILFIT criteria – that should be satisfied before the doctrine may be properly invoked. One criterion is that the national court “must be convinced that the matter is equally obvious to the courts of the other Member States” (emphasis added). In 1982, there were nine “other” Member States; in 2008, there are 26. Another criterion requires courts to bear in mind that Community legislation is “drafted in several languages”. There were seven official languages in 1982; there are now 22 (23 if Irish is included). The CILFIT criteria were difficult to satisfy in 1982; they have become increasingly more difficult as EU membership has expanded; they are, it is submitted, practically impossible to satisfy in any meaningful sense in 2008. The CILFIT criteria should therefore be re-written. As EU membership has expanded (and looks set for further expansion in the not too distant future), various reform proposals concerning the preliminary rulings procedure have been formulated, the central idea being to change the “judicial architecture” to allow the ECJ to cope with its ever increasing workload. The most notable of these is (by default, given that it is the only one that has actually been implemented): the insertion of the present Article 225 (3) EC by the Treaty of Amsterdam, conferring limited jurisdiction for dealing with preliminary rulings on the Court of First Instance (CFI). More specifically, the CFI is authorised to deal with preliminary rulings in as yet unspecified ‘specific areas’. The time has come to bring Article 225 (3) EC into effect, with the free movement of goods being selected as the first ‘specific area’.