Stycket

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