1.3.1 How Swedish courts give reasons for non-referral Table 1 (see below) outlines the landscape of judicial reasoning within the PRP from the Swedish courts, distinguishing between different court levels under Article 267 TFEU. Courts adjudicating at last instance are generally required to refer questions to the CJEU and must provide reasons when invoking exceptions to this obligation. These exceptions – based on the CILFIT criteria, irrelevance, acte éclairé, or acte clair – require a clear demonstration of how they apply to the case at hand. In contrast, lower courts, while also obliged to refer in cases involving doubts about the validity of Union law, otherwise enjoy the broadest discretion in deciding whether to refer. Their reasons-giving requirements are less clearly defined, having a lower bar than apex courts. The types of reasoning illustrated in Table 1 range from those firmly rooted in EU law to others that rest on uncertain footing. The following parts evaluate the practice of reasons-giving across each category. 3.2 Irrelevancy Article 267(2) TFEU specifies that lower courts may refer “if it considers that a decision on the question is necessary to enable it to give judgment”. Similarly, under Article 267(3) TFEU and the exceptions developed in the case law of the CJEU, last instance courts are exempted from their obligation to refer if the interpretation of EU law is irrelevant to the outcome of the case. Advocate General Emiliou specifies that “‘necessity’ must be understood as the ability of the issue to influence the outcome of the case (put very simply: who wins, who loses and why).” There is a presumption of relevance for questions referred, although it can be rebutted for those that are hypothetical.s. 41
2.Irrelevance of Union law is frequently cited by Swedish courts as a reason for non-referral. It accounts for 28% of all observations and stands out as the most common justification among courts of last instance, where it comprises 40% of all stated reasons. This ground is fully legitimate under EU law, and the reasons provided do not have to be more complicated than this. Its prevalence suggests that Swedish courts often, in response to a party request, highlight that EU law is irrelevant to the outcome and hence that there is no need for a preliminary ruling. When national courts resolve the case without addressing EU law, referral becomes moot.s. 43
3.There are several commendable examples that demonstrate this approach clearly. For instance: “[t]he issue raised in the case concerning the interpretation of Article 132(1)(m) of the VAT Directive is not relevant to the assessment of the case. There is no reason to request a preliminary ruling”, “[t]he administrative court of appeal considers that the question of EU law is irrelevant to the outcome of the case …”, or “[g]iven the outcome of the case, there are no grounds to examine the request to obtain a preliminary ruling …”.s. 43
4.Although this exemption is valid, it risks becoming an easy escape from the obligation to refer if approached too lightly. Anthony already warned in 1966 that the most convenient way for courts to sidestep the preliminary ruling procedure would be to ‘circuminterpret’ EU law and fall back on national law instead. Hence, there may be some legal gymnastics in play within this category to avoid referral. At the same time, it might also be that the claims of the parties tend to be abundant.s. 43
5.However, not all observations in this category clarify whether the court is applying the intended assessment of irrelevance, i.e. determining that EU law is irrelevant to the outcome – or merely using the term “unnecessary” in a more casual sense, implying that a preliminary ruling is unnecessary even though EU law is still relevant. Craig and de Búrca highlight how “… Article 267 TFEU does not provide that the reference must be necessary, but that a decision on the question is necessary to enable the national court to give judgment”.s. 43
6.The observations belonging to the category of “unnecessary to refer” typically take the form of statements such as: “a preliminary ruling is not necessary to decide the case” or other vague formulations such as: “the administrative court notes in this regard that, while it is indeed possible to request a preliminary ruling …, it considers that the question in the case is not of such a nature that it is necessary to request a preliminary ruling”.s. 43
7.In this instance, EU law may indeed be relevant to the outcome, yet the court’s reasoning does not make that assessment transparent. While such a line of reasoning is uncommon among courts of last instance, it occurs more frequently in lower courts. Nonetheless, courts of last resort tread on thin ice when they assert, for example, that “the interpretative questions in the case do not concern EU law in such a way that the Labour Court is required to request a preliminary ruling”, which is ambiguous. 3.3 Acte éclairé and acte clair Among the more common justifications for non-referral by courts of last instance are the core CILFIT exceptions, particularly acte éclairé and, to a lesser extent, acte clair, alongside irrelevance. This is unsurprising, as apex courts are required to anchor non-referral in one of these three established exceptions. In contrast, lower courts more sporadically rely on existing case law as an explicit reason not to refer, or assert that the interpretation of a Union act is clear.s. 44
8.A straightforward reason for non-referral is citing existing CJEU case law that addresses the same legal questions or points of law, and applying it to the facts at hand. This approach appeared in 31% of observations for apex courts and 9% for lower courts. National courts are expected to apply the case law of the CJEU and, although they are always welcomed to ask the Court to update its jurisprudence, it makes sense not to refer in these scenarios. However, the level of detail varies. Ideally, courts should explicitly reference the relevant CJEU judgment and explain how it is applied, thereby showing that the CJEU has already provided the answers. The next best approach is to make an implicit reference, that is, to state that relevant CJEU case law exists without specifying which, in relation to the decision not to refer, while subsequently applying CJEU case law elsewhere in the merits. Lastly, in a few observations, national courts state acte éclairé without touching further on the topic, not even implicitly.s. 44
9.Hence, acte éclairé is not always relied upon with the rigour required of courts of last resort, but there are good examples to highlight, such as the following: In total, there were fewer explicit references to CJEU case law by courts of last instance (12 in total), compared to 33 implicit references, and four observations containing no clear reference.s. 44
10.Acte clair is without doubt the CILFIT exception that has generated the most discussion of the three in the literature. When it was introduced, it was warned that it would provide an easy escape route for courts of last instance to avoid asking questions to the CJEU. To mitigate this risk, the CJEU set the threshold very high, making it exceedingly difficult for national apex courts to satisfy. Hence, the exception was slightly reformulated in Consorzio Italian management, but not by much. To conclude that the correct interpretation of Union law is so obvious as to leave no room for any reasonable doubt, apex courts must go through a number of steps. They must assess that the interpretation is “… equally obvious to the other courts or tribunals of last instance of the Member States and to the Court of Justice”, compare language versions, bear in mind that EU law contains autonomous concepts, and consider the context as well as the telos of the provision and Union law as a whole.s. 45
11.When relied upon by the Swedish courts, they seldom make it explicit that they have performed the checklist outlined by the CJEU. In this regard, there were only two cases in which courts of last instance made it clear that they had consulted language versions other than the Swedish one. Hence, the last instance courts should do a better job of communicating that they approach this exception with the required rigour and explain ‘why’ the EU law in question is so obvious beyond any reasonable doubt, viewed through the lens of the CILFIT criteria. As things stand, the results indicate that acte clair is not handled with the diligence needed. At the same time, the courts of last instance rarely rely on acte clair alone: this occurred in only nine cases, not counting the observations comparing language versions. Otherwise, it is used by the two apex courts in combination with references to existing CJEU case law.s. 45
12.The Swedish Supreme Court seems fond of the statement that “the content of Union law is clear or has been clarified”. It is usually possible in these observations to connect the dots through references to CJEU case law in the merits, but the statement itself seems low effort and does not really specify why these two CILFIT exceptions were applicable. In this regard, there is strong reason to endorse Bernitz’s position, who, in light of the legal requirements, has called for the apex courts to abandon this practice and instead “always state in their reasoning the grounds on which they have found the EU legal position to be so clear or clarified that there is no room for reasonable doubt”.s. 46
13.The practice of other courts also includes references to two, or all three, CILFIT exceptions. The Patent and Market Court of Appeal for example, highlights how “EU law is clear or has already been clarified through the case law of the [CJEU]. It is therefore not necessary to request a preliminary ruling in order to decide the case”. The observations combining acte éclairé and acte clair are not problematic per se, although the acte clair doctrine is supposed to represent the last exception when EU law is relevant, and there is no prior judgment from the CJEU. The main issue however, lies in the failure to explicitly reference the CJEU ruling relied upon, to explain how that judgment applies to the case, and to articulate the steps of the acte clair test when concluding that the interpretation of EU law leaves no room for reasonable doubt. To highlight when this is done effectively, “whether the coaching position in question falls within the scope of these provisions can be determined based on the wording of the provisions and the case-law of the [CJEU] …” where the court also compares the Swedish and English language versions, and explicitly references the relevant CJEU judgment.s. 46
14.The main area identified for improvement is the tendency to rely on generalised statements that fail to explain how the CILFIT criteria were applied in the specific case. Superficial, checkbox-style references to the acte éclairé or acte clair exceptions do not meet the legal requirement as set out in Consorzio Italian Management, to demonstrate their applicability.s. 46
15.However, it is not only courts adjudicating at last instance that explain nonreferral by reference to existing CJEU judgments or to the clarity of Union law beyond any reasonable doubt. Lower courts, which are not bound by the same strict standards, also do so. Broberg and Fenger warn against setting the bar too high with them leaning into the CILFIT criteria, designed for courts at last instance. There are a few examples in which lower courts explicitly reference CILFIT, but the main issue does not appear to be that lower courts are setting the bar at the same level as courts of last instance. There are not many examples where the lower and intermediate courts explicitly address the test established by the CJEU for acte clair, with only three observations comparing language versions out of 44. A typical reasoning establishes that “the administrative court finds that the meaning of Union law regarding the issue of R&D services, as governed by Directive 2004/18/EG, is not so unclear as to warrant a request for a preliminary ruling …”.s. 47
16.It would be good practice also for lower courts to explain how the interpretation of EU law leaves no room for reasonable doubt. Without requesting a preliminary ruling, they risk misapplying EU law. In this way, concluding acte clair without communicating how that conclusion was reached is suspect, and can be perceived as arbitrary in light of well-argued requests from the parties to the contrary. 3.4 EU Law is valid An additional point of interest concerns what is largely missing from the general trends observed. The landscape of reasoning shows that nearly all observations concern the interpretation of EU law, while issues of validity are almost completely absent. All national courts have an obligation to refer, when doubting the validity of Union law, and it may therefore be expected that such issues are referred and, as a result, do not appear in the non-referral data. At the same time, it is legally acceptable for national courts to disagree with the parties when deeming EU law to be valid, and applying it without a reference.s. 47
17.In the dataset, there are two observations in which courts explicitly decline to refer while providing reasons to the validity of Union law, while there are five cases in total in which parties challenged the validity of Union law. An example from the first type is reflected well with reference to Foto-Frost and IATA and ELFAA, in which the national court concludes that: By contrast, another observation, though legally acceptable in its reference to CJEU case law, appears to conflate the facultative approach to questions of interpretation and the obligation for questions of validity. It states that: “according to Article 267 … the administrative court may request a preliminary ruling from the [CJEU] if it is necessary in order to assess the validity of the Commission’s decision”. The applicant had clearly specified that it challenged the validity of the Commission’s decision, whereas the national court appears to approach the matter as one of interpretation.s. 48
18.Two main takeaways follow. First, there may at times be a fine line between questions of interpretation and validity. Second, observations addressing validity are rare when compared to the overall range of reasons provided for nonreferral. 3.5 Other reasoning not clearly anchored in Article 267 TFEU While the previous categories represent legitimate grounds for non-referral, albeit sometimes reflecting weak reasoning, the “other” category includes typologies that are questionable per se, even when the specific reasoning may be extensive. These observations come mostly from lower courts, which account for 58% of the reasons provided by them, compared to 18% for courts of last instance.s. 48
19.The dominant sub-category is the vague assertion that the court “finds no reason to refer”, appearing in 199 observations, of which 195 originate from lower courts. This typically involves uninformative statements such as “the administrative court of appeal finds no reason to request a preliminary ruling”.s. 48
20.On its own, this type of reasoning offers little insight beyond acknowledging that a party requested a referral. It fails to explain why the court declined to refer, leaving both parties and the public to guess at the reasoning behind the decision. Yet, consulting the judgments as a whole, several observations include implicit reasoning elsewhere in the merits, which helps clarify the decision not to refer. The less common category “in light of the above, no reason to refer” is similar in that judges conclude that there is no reason to refer in light of what has been stated already in the case. In some observations, the limited – close to nothing – explanation may be understandable when party requests are vague, lack specific questions or arguments for why referral is necessary. However, the point should be made that judges ought to be transparent and briefly explain why no referral was needed even when party engagement is low. Moreover, this group also includes cases where requests were well-substantiated. Generally, this type of reasoning warrants criticism.s. 49
21.Even courts of last instance rely on this approach in four observations,“finding no reason to refer”. Although rare, the Land and Environmental Court of Appeal and the Migration Court of Appeal for example states that “… there are no grounds to request a preliminary ruling from the [CJEU]”, “… there is no reason to request a preliminary ruling from the [CJEU]”, without offering further explanations. I consider these to fall short of the standard expected from courts adjudicating at last instance.s. 49
22.Another form of reasoning is the hybrid of “no such question raised + no doubts/unnecessary”, which can be located at all court levels. Article 267 TFEU provides that “[w]here such a question [interpretation of the treaties, or interpretation or validity of EU acts] is raised before [a national court] …”, then that court may request a preliminary ruling, or for courts of last instance, shall request a preliminary ruling. AG Ćapeta interprets the notion of a question being raised as equivalent to its relevance to the outcome of the case. However, a more common approach is to divide it into two steps, first, whether EU law has been raised, either by the court or by the parties, and second, whether it is relevant to the outcome of the case. Generally, this category consists of observations that are difficult to grasp and share common characteristic, justifying their treatment as a separate category.s. 49
23.The formulations are vague, such as “… the case has not given rise to any question that casts doubt on the interpretation of Union law and would necessitate a preliminary ruling in order to decide the matter”. Such phrasing is muddled and unclear and it seems to be a standard formula copied across judgments. Further confusion arises when “no question raised” is combined with assertions that the interpretation of EU law is beyond any reasonable doubt. Either a question of EU law is raised, or it is not – there is no middle ground in which no question is raised and that there is simultaneously no unclarity for the question of Union law.s. 49
24.Lower- and intermediate courts also found the reason not to refer within the national legal system, mostly by pointing to conclusions from apex courts that these had previously opted not to refer. As an example: “in light of the Supreme Administrative Court’s position in the judgment HFD 2014 ref. 14, the administrative court of appeal finds no grounds to request a preliminary ruling …”. Although this practice makes sense from a national judicial hierarchy perspective, it is important to remember that, in matters of EU law, the CJEU is the court to follow. National courts must make independent decisions on whether to refer, regardless of the position of apex courts. It is a better practice to reference the specific reasoning provided by the court of last instance, for example the same CJEU case-law, rather than simply stating that referral is unnecessary based on a higher court’s decision. This is reflected in the following observation: “[A]lthough it is the CJEU and not the Administrative Supreme Court that serves as the ultimate interpreter of EU law, the Court of Appeal’s position is that the CJEU’s case law [referenced by the Swedish Supreme Court] … was sufficiently clear …”.s. 50
25.Moreover, there are 13 cases where no reason is provided at all after requests from parties. While the initial reaction may be one of concern over arbitrariness, it should be noted that courts of last instance do not have to refer, based on strictly formal “grounds of inadmissibility specific to the procedure before that national court or tribunal, subject to compliance with the principles of equivalence and effectiveness”. The four observations from the apex courts either dismiss the case, or remand it to the lower court. These seem not to raise too much concern, but for clarity, it would be advisable to explicitly reject the party claim for referral as is done in other similar observations.s. 50
26.There are also a few cases where lower courts limit the reasoning to state that they have no duty to refer and that the EU law in question needs no clarification from the CJEU. For example, This line of reasoning is problematic. The direct actions available for individuals are limited and it is notoriously difficult to be granted standing under Article 263(4) TFEU. Hence, the idea is that national courts, and the PRP, provide an indirect route to Luxembourg in the “complete system of legal remedies”. If this route is cut off by national courts along the lines of reasoning above, it signals potential issues for effective judicial protection.s. 50