Failure to submit a question to the Court of Justice for preliminary ruling by a national court constitutes an infringement of EU law due to the non-performance of obligations of a Member State
In its recent landmark judgment in the case European Commission v French Republic (C-416/17) dated 8 October 2018 in the procedure under Article 258 of the Treaty on the Functioning of the EU (“TFEU”) the Court of Justice confirmed that in the case when national courts deciding at last instance do not submit a question to the Court of Justice for preliminary ruling in accordance with Article 267(3) TFEU, this constitutes an infringement of EU law by the Member State due to non-performance of obligations.
As established by Delhomme and Larripa, with this judgment the Court of Justice brought together its decisions in cases European Commission v Spain and Ferreira da Silva, which individually establish, on one hand, the possibility of determining Member State’s liability for the failure to fulfil obligations in the case of decision of the Supreme Court of this State, and on the other hand, the possibility to find a breach of the obligation under Article 267(3) TFEU in the case of decision of Member State’s Supreme Court to reject the submission of a question to the Court of Justice for preliminary ruling. According to existing case law, the duty to submit a question regarding the interpretation of EU law to the Court of Justice is primarily aimed at preventing in any Member State the formation of national case law that would not be in accordance with the rules of EU law. With the judgment in question, the Court of Justice clearly takes the position that the infringement of the obligations under Article 267(3) TFEU by the court deciding at last instance actually constitutes the failure to fulfil obligations by the Member State in which the national court has acted this way, for which liability of the Member State may be established under the procedure from Article 258 TFEU.
In the judgment, the Court of Justice points out that in accordance with the acte clair doctrine from case Cilfit (C-283/81) the national court deciding at last instance has the duty to refer the matter to the Court of Justice pursuant to Article 267(3) when it has been asked a question regarding the interpretation of TFEU, and is free of this obligation only when it establishes that the question is not relevant before the court, that the Court of Justice has already answered the question or that the correct application of EU law is so obvious that it admits of no reasonable doubt. In the reasons of the judgment the Court of Justice indicates also that the determination of absence of reasonable doubt in relation to the correct application of EU law on the side of national courts will be assessed very restrictively, which potentially may function as pressure on national courts to send almost automatically the questions of the correct application of EU law to the Court of Justice for preliminary ruling.
With the judgment in the case European Commission v French Republic, the Court of Justice definitely made an important step towards strengthening the legal remedies in the European legal order, which has been happening also due to the autonomy of national courts in assessing the correct application of EU law.
 Delhomme V and L Larripa (2018) “C-416/17 Commission v France: failure of a Member State to fulfil its obligations under Article 267(3) TFEU”. Available at http://europeanlawblog.eu/2018/11/22/c-416-17-commission-v-france-failure-of-a-member-state-to-fulfil-its-obligations-under-article-2673-tfeu/ (22 November 2018).