Disunity despite the Acte Clair Doctrine (Essay Sample)

The acte Clair doctrine
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Introduction.
The acte doctrine, which was implemented in Cilft (C-283/31) provides that in agreement with Article 267 TFEU, that national courts of the last instances have a duty to refer to the ECJ in occasions where questions regarding the interpretation of EU law shows certainty and that it leaves no scope for any reasonable doubt. The acte Clair doctrine is a set of rules that aims at establishing a transparent system of legal solutions in the EU as well as ensuring legal unity in the region. Despite the rules looking very clear they tend to leave national courts with a significant level of discretion. After all, whether a case presented before a national jurisdiction of the instance is beyond reasonable doubt or not it is upon these national courts to make ruling on the issue bestowed upon they judicial powers.
Not only is a national judge required to apply the EU laws but he/she should also be convinced that the ECJ and other national courts would also consider an issue to be obvious as he/she perceives it to be. Particularities and different interpretations of EU ought to taken into account by national courts. What strikes is the fact that despite the apparent ECJ strict theoretical formulation of acte Clair doctrine, its practical application in various areas has been very relaxed and flexible. This flexible implementation of this principle has resulted to widespread of the requirements of the acte Clair doctrine.[CITATION CJE15 \l 1033 (CJEU rules in Joined Cases C-72/14 and C-197/14 X (Migrant workers – Social security – E 101 certificate – Probative value), 2015)]
In the Joined Cases C-72/14 and C-197/14, both Messer X and Van Dijk had been issued with E 101 certificates by the competent Luxembourgish authority and were subjected to Luxembourg social security legislation. However, the E 101 certificate was not recognized by the Dutch authorities, and Van Dijk and Messer X were considered as subjects and, therefore, were liable for paying Dutch social security contributions. It was because both were Rhine boatmen. The two men, however, challenged the move by the Dutch authorities to issue them with tax assessments. The matter of substance surrounding the Joined Cases C-72/14 and C-197/14 X is centered on the application of Regulation (EEC) No 1408/71, The question before the court is to explain whether the ‘Rhine agreements' is applicable in main proceedings in the EU law. This issue emerged when the Dutch authorities failed to acknowledge particular social security certificates (E 101 certificates) that were arguably in error that had been published by the Luxembourgish officials. Disagreements emerged in the courts in where these cases were referred on whether it was justified for the Dutch officials to do so.[X v Inspecteur van Rijksbelastingdienst (C-72/14) and T. A. van Dijk v Staatssecretaris van Financiën (C-197/14)] [Weber , T. (2015, September 22). Shining a light on the acte clair. United Kingdom..]
Advocate General Wahl opinion notes.
Advocate General Wahl in his opinion notes states the reasons why he does not think that E 101 certificates argued to be in error by the Dutch authority and issued to in an environment that is covered by the Rhine Agreements hold any binding effect. Under the procedural issue, Wahl is in the opinion that a difference of view between a lower court and a court of the last instance in the same member state should not prevent the national jurisdiction recourse to the acte Clair doctrine. He thinks that the two cases under consideration raise two different issues. Thus, Wahl divides his assessment of the cases into two parts. First, Wahl discusses the substantive aspect of the mutual acceptance and binding effect of the E 101 certificates. And secondly, the question asked by Hoge Raad pertaining the extent of the doctrine of acte chair. He asserts that the issues that needed clarity in both cases laid on the ability of the courts to know which social security legislation where applicable to a member of another states that had been issued with an E 101 certificate even when the social security legislation that are applicable to that person were listed in an international law instrument upheld in Article 7 of Regulation No 1408/71. On the applicability of Regulation No, 1408/71 Wahl notes that both courts did not interpret Article 7(2) (a) of Regulation No 14071 as well as the body of case law in pertaining Article 7(2) of the regulation. The commission's view does not convince him that the Rhine Agreements are still applicable due to the virtue aspect of Article 7(2) of Regulation No 1408/71. He acknowledges that the EU is based on the rule of law, and the principle of conferral of powers that constitutes a significant part of the constitutional structure of EU is vital. He warns that when an EU institution lacks legal competence, the actions that it adopts are usually devoid of binding effect. He argues that the same case tends to apply to the state members who are bestowed with the responsibility of ensuring the implementation of the European Union Policy. He argues that the present cases are linked to this since the certificate in this cases were issued by the competent Luxemburg authorities according to Regulation No 574/72, 24 and Regulation No 1408/71.[Cairó, R. E. (2015, September 23). Joined cases C-72/14 and C-197/14 X and case C-160/14 Ferreira da Silva: is the ECJ reversing its position on the acte clair doctrine?]
In assessing the doctrine of acte Clair, Wahl centers his arguments on the main issue that was raised by Hoge Raad when the court sort to know if it was possible for a tribunal to resort to the acte doctrine whereby the lower court has referred the same question about European Union law to the ECJ. He is in the firm view that the national court of the last instance should not be prevented from depending on the doctrine of acte Clair just because a lower court in the same state has posted a similar question to the court of justice. He outlines three reasons behind his reasoning. First, he bases his opinion on the growing European community. The EU community when it stated it had only ten members with seven official languages, but now it is a very sophisticated union with twenty-eight members and twenty-four official languages with a definite innovation based on the Lisbon Treaty that primarily advocates on the role of national courts under Article 19(2) TEU. To that end, encountering a real acte Clair situation is very rare. Secondly, he bases his reasoning on checks and balance of the Article 267(3) TFEU. The Commission now demands a duty in overseeing how national courts of the last instance refer to the acte Clair doctrine. And finally, the fact that national courts of the last instance do not prevent having recourse to the acte doctrine even when appealed against distinct differences of views. He also states that in occasions where the national court of the last instance is certain of its interpretation and wants to take responsibility for solving an issue without referring to the court of justice it ought to be allowed to do so
In light to Advocate General Wahl notes in his opinion in the Joined Cases C-72/14 and C-197/14 X it is quite clear that the adoption of a narrow implementation of the principles attached to the acte clair doctrine tend to contradict with reality as well as the spirit of cooperation that shapes the relationship between the national supreme court and the Court of justice. For instance, the expression that national court ought to be convinced that the case before its jurisdiction is equally obvious both to the Court of Justice and to the national courts of other nations is somehow not well elaborated. It should be seen in the same light as with other qualifying factors that are listed in the Clifit and others by the Court of Justice. Circumstances of the judgment in C