If You Love Somebody Set Them Free: On The Court Of Justice’S Revision Of The Acte Clair Doctrine

Abstract

In its 2021 ruling in Consorzio, the European Court of Justice adopted a more pragmatic approach to its acte clair doctrine. This article analyses this reform and shows that in important respects the Court has eased the requirements for finding a question of EU law to be acte clair. Simultaneously, the Court has introduced a duty for national courts of last instance to give reasons where they are faced with questions of EU law and decide not to make a preliminary reference. The article also considers the Court’s discreet change of approach regarding the application (rather than the interpretation) of EU law by national courts of last instance as reflected in the Consorzio ruling, and argues that there is acte clair where the abstract interpretation of EU law is clear and leaves no scope for any reasonable doubt, even if the national court of last instance entertains doubts as to the correct application of said EU law to the case at hand.