The Jurisprudence of Small Steps (La jurisprudence des petits pas)

The Consorzio Italian Management, Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA (hereinafter, ‘Consorzio’) judgment has rightly attracted significant academic attention. While the facts of the case were uncontroversial, the preliminary reference of the Italian Council of State offered to the CJEU the opportunity to revisit its CILFIT case-law. Or at least Advocate General Bobek thought so. In his Opinion on the case, he boldly proposed a new test to guide courts of last resort in deciding when to refer or not under Article 267(3) TFEU. The starting point for this proposal was a well-established finding: the CILFIT case-law is often abused and disregarded by last instance national courts. In turn, these courts have, voluntarily or not, adversely impacted the uniform interpretation and application of EU law. Hence, according to AG Bobek, Consorzio offered the perfect opportunity for the CJEU to rethink CILFIT and create clearer guidance for national courts of last instance on how to approach the duty to refer in the preliminary ruling procedure.

In the final judgment, the Court has not followed the proposal presented by AG Bobek. At first sight, Consorzio might look like a (partially) missed opportunity. Yet, at a closer look, the decision in Consorzio suggests that the CJEU is conscious of the limits of the CILFIT doctrine. Previous CJEU’s judgments have already partially supplemented the instances in which the CILFIT jurisprudence can be triggered. Consorzio joins this line of jurisprudence by bringing both continuity and a (apparently modest, but potentially ground-breaking) change to the CILFIT requirements.

We observe continuity in so far as the CJEU has essentially confirmed its established jurisprudence on the circumstances in which the duty of national courts against whose decisions there is no remedy will not apply. By contrast, we identify change concerning the renewed role of Article 47 of the Charter in conjunction with the duty of courts of last instance to submit preliminary ruling questions under Article 267 TFEU. Consorzio is an instance of jurisprudence des petits pas: through apparently small changes, the CJEU is in reality raising the bar of the correct and uniform application of EU law.

In the next paragraphs, we focus on the change introduced by Consorzio and especially the central role of Article 47 of the Charter of Fundamental Rights in that judgment.