Thread by @DanielSarmiento

The @EUCourtPress has clarified the CILFIT criteria in today's ruling in Consorzio Italian Management (C-561/19). The press release evidences that the Court is trying to move the case-law forward, but the judgment is in fact quite modest. Here's a preliminary view:

First, I should start by saying that the CIM judgment makes an effort in being pedagogical and provides a good overview of where the case-law stands on the tricky issue of the duty to refer ex 267 TFEU. It's good that the Court makes these efforts, particularly in Grand Chamber.

Second, the real novelties come down to four: 1) Judges don't have to consult all the linguistic versions of the interpreted rule (see paragraph 48), but certainly more than one.

2) Divergent rulings among different courts are a very strong presumption of a reasonable doubt that should lead the Court to make the reference (see paragraph 49).

3) The national court of last instance has a duty to reason a decision not to make a reference (paragraph 51). And here's a very important point: the Court introduces art. 47 of the Charter, in an implicit hint to Strasbourg's art. 6 interpretation on preliminary references.

4) The mere fact that a provision of EU law may be interpreted in several ways is not sufficient for the national court of last instance to conclude that there is a reasonable doubt as to the correct interpretation of that provision (paragraph 48).

In sum, not much of a revolution. The highlight is, in my view, the introduction of Art. 47 of the Charter as a means of interpretation of Art, 267 TFEU, something that had been argued for a while and which puts the case-law more in line with national constitutional case-law.

But in my view, the most salient feature is the strong rebuke of AG Bobek's Opinion, a very fine piece of legal literature in which the Court was given a way forward. That way forward implied changing the subjective approach of the current case-law into a more objective one.

The Court, as expected, preferred to lightly turn its CILFIT criteria into more practical criteria based on the national court's subjective appreciation, but certainly not a more objective approach and, as a result, not prone to external review.

This means that problems will persist and the remedies available to parties (infringement proceedings; State liability under Köbler, or constitutional complaints) will carry on as the sole (and rather dysfunctional) means to fix breaches of 267(3) TFEU.

It might be disappointing, but at least the Court is moving forward. This judgment is better than no clarification whatsoever, which was an option and was finally discarded. The case-law evolves generally in this way, through subtle moves that might seem frustrating at first.

It is now up to national courts to prove that these criteria are more functional after the clarifications in CIM. If not, the Court might have to move forward once again. But unfortunately it will not have the support of AG Bobek to guide it through the process.

AG Bobek, as is well known, is leaving the Court tomorrow. This thread is also a tribute to him and to his outstanding contribution to EU Law during his time at the Court. His Opinion in CIM is good proof of it.