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OPINION OF ADVOCATE GENERAL

WAHL

delivered on 13 May 2015 (1)

Joined Cases C-72/14 and C-197/14

X

(Request for a preliminary ruling from the Gerechtshof te ’s-Hertogenbosch (Netherlands))

and

T.A. van Dijk

(Request for a preliminary ruling from the Hoge Raad (Netherlands))

(Social security for migrant workers — Applicable legislation — Regulation (EEC) No 1408/71 — Articles 6 and 7 — Rhine boatmen — E 101 certificate — Mutual recognition — Article 267(3) TFEU — Doctrine of acte clair)





1.        The preliminary ruling procedure has been operational for more than half a century, yet still it continues to puzzle. As illustrated by the cases under consideration, questions relating to that procedure often materialise as a side-issue to a substantive question of EU law.

2.        The substantive issue in these joined cases, which turn upon the interpretation of Regulation (EEC) No 1408/71, (2) is essentially the same: are the ‘Rhine Agreements’ (3) applicable in the main proceedings because of EU law or independently of it? This issue has arisen following the Dutch authorities’ refusal to recognise certain social security certificates (E 101 certificates) issued by the Luxembourgish authorities pursuant to Regulation No 1408/71, arguably in error. There is some disagreement between the referring courts as to whether it is open to the Dutch authorities to do so.

3.        The Gerechtshof te ’s-Hertogenbosch decided to request a ruling from the Court on this matter. That decision prompted the Hoge Raad to do the same. The Hoge Raad has, however, attempted to kill two birds with one stone and to question the Court on the extent of its obligations under Article 267(3) TFEU. It specifically wishes to know whether the fact that a lower court within its area of jurisdiction disagrees with it precludes it from taking the view that the answer to the question raised in the proceedings before it is so obvious as to leave no scope for any reasonable doubt. The Court is therefore once more invited to clarify its famous acte clair doctrine.

4.        On the substance, for the reasons set out below, I do not think that E 101 certificates issued in error in a situation covered by the Rhine Agreements have any binding effect. And on the procedural issue, a difference of opinion between a court of last instance and a lower court within the same Member State ought not, in my view, to exclude recourse to the acte clair doctrine.

I –  Legal framework

5.        Article 6 of Regulation No 1408/71 (‘Social security conventions replaced by this Regulation’) provides:

‘Subject to the provisions of Articles 7, 8 and 46(4) this Regulation shall, as regards persons and matters which it covers, replace the provisions of any social security convention binding either;

(a)      two or more Member States exclusively, or

(b)      at least two Member States and one or more other States, where settlement of the cases concerned does not involve any institution of one of the latter States.’

6.        Notwithstanding Article 6 of Regulation No 1408/71, however, the provisions of the Agreements of 27 July 1950 and 30 November 1979 concerning social security for Rhine boatmen are to continue to apply, pursuant to Article 7(2)(a) of that regulation (‘International provisions not affected by this Regulation’).

II –  Facts, procedures and the questions referred

7.        In 2006 and part of 2007 respectively, Messrs X and van Dijk, nationals and residents of the Netherlands, worked aboard waterborne vessels operating commercially on the Rhine (albeit not exclusively on that river).

8.        In Case C-72/14 concerning Mr X, the vessel was registered in the Netherlands as a Rhine navigation vessel with a Netherlands-based company as its owner. No mention was originally made in that registration under the heading ‘Operator’. In 2006, the Luxembourgish authorities issued AAAA, a Luxembourg-based company which employed Mr X, with an operating certificate. In 2007, that company was indicated as the operator of the vessel under the Dutch registration. (4)

9.        As for Mr van Dijk, from 1 January to 30 June 2007 he worked for a shipping company established in Luxembourg.

10.      In both cases, the competent Luxembourgish authority issued E 101 certificates, according to which Messrs X and van Dijk, respectively, were subject to the social security legislation of Luxembourg. However, those certificates were not recognised by the Dutch authorities, who considered Messrs X and van Dijk to be subject instead to Dutch social security legislation and liable to pay Dutch social security contributions, on the basis that the two men were supposedly Rhine boatmen. The Dutch authorities issued both men with tax assessments, which they subsequently challenged.

11.      In Case C-72/14, Mr X brought proceedings before the Rechtbank Breda, after which he brought an appeal against the judgment at first instance before the Gerechtshof te ’s-Hertogenbosch. Entertaining doubts as to the interpretation of Regulation No 1408/71, that court decided on 7 February 2014 to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      In [the judgment in FTS, C-202/97, EU:C:2000:75], the Court of Justice ruled that an E 101 certificate, issued by the competent institution of a Member State, is binding on the social security institutions of other Member States, even if the content of that certificate is incorrect. Does that decision also apply to cases such as that at issue here, where the designation rules of [Regulation No 1408/71] do not apply?

(2)      Is it of significance for the answer to that question that it was not the intention of the competent institution to issue an E 101 certificate, yet for administrative reasons it consciously and deliberately used documents which, judging by their format and content, appear to be E 101 certificates, while the interested party believed, and was also reasonably entitled to believe, that he had received such a certificate?’

12.      In Case C-197/14, Mr van Dijk initially brought proceedings before the Rechtbank te ’s-Gravenhage, followed by an appeal before the Gerechtshof te ’s-Gravenhage. He then lodged an appeal in cassation before the Hoge Raad against the judgment of the Gerechtshof, which was also the subject of a cross-appeal in cassation brought by the Staatssecretaris van Financiën (State Secretary for Finance). In the wake of the decision to refer questions for a preliminary ruling in Case C-72/14, the Hoge Raad decided on 28 March 2014 to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      Is the Hoge Raad, as the highest national court, required, because of a question referred for a preliminary ruling by a lower national court, to refer a question to the Court of Justice for a preliminary ruling or must it await the answer to that question referred by the lower national court, even if it takes the view that the correct application of EU law on the matter to be decided by it is so obvious as to leave no scope for any reasonable doubt as to how that question must be answered?

(2)      If the first question is to be answered in the affirmative, are the Netherlands authorities in the area of social security then bound by an E 101 certificate issued by the authorities of another Member State, even where the case involves a Rhine boatman, with the result that the rules on the applicable legislation in Regulation No 1408/71, to which that certificate refers, are not applicable pursuant to Article 7(2)(a) of that regulation?’

13.      In Case C-72/14, written observations were lodged by Mr X, the Netherlands Government, the Czech Government, and by the Commission. In Case C-197/14, written observations were lodged by Mr van Dijk, the Netherlands Government, the German and Greek Governments, and by the Commission.

14.      Cases C-72/14 and C-197/14 were joined on 24 February 2014. On the same date, the Court decided, pursuant to Article 76(2) of the Rules of Procedure, not to hold a hearing.

III –  Analysis

A –    Introductory remarks

15.      The cases under consideration raise two entirely distinct issues. My assessment will therefore be divided in two parts. First, I will address the substantive matter of the mutual recognition and binding effect of E 101 certificates. Only afterwards will I turn to the Hoge Raad’s first question regarding the extent of the doctrine of acte clair.

16.      I acknowledge that the Hoge Raad has asked its second question, concerning the mutual recognition of the E 101 certificates, only in the event that the Court answers its first question to the effect that the Hoge Raad was under an obligation to refer the matter to the Court pursuant to Article 267(3) TFEU. However, providing an answer only to the Hoge Raad’s first question will not assist the Gerechtshof te ’s-Hertogenbosch in resolving the dispute pending before it, and that court remains at liberty to submit a question for a preliminary ruling, notwithstanding the case-law of a superior court. (5) I therefore find it necessary in any case to provide an answer to the substantive social security issue.

B –    The first issue: mutual recognition of the E 101 certificates

1.      Preliminary comments

17.      By Questions 1 and 2 in Case C-72/14 and Question 2 in Case C-197/14 — which I will consider together — the referring courts essentially wish to know whether, on the assumption that the authorities of one Member State have issued an E 101 certificate in error to an insured person, according to which the social security legislation of that Member State is applicable to that person, the authorities of another Member State are required to accord recognition to that certificate, even though the social security legislation applicable to that insured person is coordinated by an instrument of international law listed in Article 7 of Regulation No 1408/71, in casu the Rhine Agreements. Question 2 in Case C-72/14 suggests that the answer might depend on whether the mistaken issue of an E 101 certificate was accidental or deliberate.

18.      Messrs X and van Dijk take the view, as do the Czech Government and the Commission, that an E 101 certificate issued by a Member State in those circumstances binds the authorities of another Member State. Only the Netherlands Government disagrees (the German and Greek Governments do not address this first issue).

19.      As stated in my introduction, it appears that the crux of this first main issue regarding social security is whether the derogation allowed under Article 7 of Regulation No 1408/71 also ‘coordinates’ the social security legislation applicable to insured persons in respect of certain international provisions. Particularly the Commission takes the view that this is the case. This leads the Commission to conclude that as, in its view, the matter falls within the scope of the regulation, the principle of mutual recognition applies as well.

20.      I, for one, do not share that view.

21.      Whether the E 101 certificates must be recognised clearly depends on whether it was at all legally possible to issue them, which in turn depends on whether Regulation No 1408/71 was applicable. Yet, before embarking on this analytical cruise, it is important to make quite clear what the Court has not been asked to rule upon.

22.      First, the Court has not been asked to rule upon which social security legislation is actually applicable to Messrs X and van Dijk — that is to say, to settle the question of whether Luxembourgish or Dutch law is applicable to those persons. This makes sense, as the Rhine Agreements (should they apply) and, in particular, Article 11(2) thereof, are not acts of the EU institutions which the Court has jurisdiction to interpret. (6)

23.      Second, for that same reason, and also in view of the settled case-law according to which it is for the national courts to gather and appraise all relevant facts and apply the law to them, the Court cannot indicate whether Messrs X and van Dijk are in fact Rhine boatmen. Its answer will therefore simply have to be based on the assumption that they are — subject to verification by the referring courts. (7)

24.      With that in mind, the answer to the substantive social security question, in my view, follows from a proper reading of Articles 6 and 7 of Regulation No 1408/71, in conjunction with the Court’s case-law.

2.      Assessment

a)      Applicability of Regulation No 1408/71

25.      It is settled case-law that, in relation to the persons and matters which it covers, and subject to certain provisos, Article 6 of Regulation No 1408/71 replaces the provisions of any social security convention which binds two or more Member States (or between two or more Member States and one or more third States in respect of the internal situation between the Member States). That replacement is mandatory in nature and does not allow of exceptions save for those cases contemplated in the regulation. (8)

26.      Here, Article 7 of Regulation No 1408/71 fleshes out certain of the exceptions mentioned above. Specifically, Article 7(2) states that, notwithstanding Article 6, certain treaties (among which, the Rhine Agreements) ‘shall continue to apply’. It is worth noting that the Court has held that where a provision of an international treaty fulfils the Article 7 requirements, it ‘remains fully applicable notwithstanding the adoption of Regulation No 1408/71 and … continues to be effective in respect of all the situations which it covers’. (9)

27.      The Court has not previously interpreted Article 7(2)(a) of Regulation No 1408/71. Moreover, the body of case-law concerning Article 7(2) of the regulation and, specifically, the joint effect of Articles 6 and 7(2)(c) (10) on bilateral conventions concluded between Member States (11) does not seem to have attached any importance to the fact that Regulation No 1408/71 itself contains the ‘choice of law clauses’ — that issue simply does not appear to have been contentious. Nonetheless, two judgments seem to be of some interest here.

28.      In Grana-Novoa, (12) the Court held that social security conventions concluded between a single Member State and one or more third States fall outwith the scope of Regulation No 1408/71. Now, it would be wrong to read that judgment as meaning, a contrario, that conventions concluded between at least two Member States (and, possibly, one or more non-member States in so far as relations between Member States are concerned) always come within its scope. Indeed, in that ruling the Court made sure to add that the regulation ‘expressly contains certain reservations with regard to its application to conventions concluded between two or more Member States’. (13) Where such a reservation comes into play, I have trouble in seeing any difference between the aforementioned types of convention.

29.      Moreover, Callemeyn (14) concerned a special situation involving, inter alia, Article 7(1)(b) of Regulation No 1408/71. That provision states that the regulation does not affect the obligations arising from the European Interim Agreements on Social Security of 11 December 1953 concluded between the Member States of the Council of Europe. As that multilateral agreement itself permitted derogations in the event that this was more favourable to those entitled, the Court held the application of Regulation No 1408/71 not to be contrary to Article 7(1)(b) thereof to the extent that this was so. (15) Therefore, at most it was the European Interim Agreements on Social Security that triggered the application of the regulation, and not vice versa.

30.      Yet, in support of its view, the Commission cites Torrekens. (16) In that judgment, the Court stated that the predecessor to Regulation No 1408/71, namely Regulation No 3, (17) ‘continues to apply to the extent to which these conventions do not impede its application’. The Commission infers from this that the Court has supposedly confirmed a principle of the combined application of the rules of Regulation No 1408/71 with those of the applicable international treaties.

31.      However, even assuming that the Court’s reasoning in Torrekens — which concerned an admittedly similar provision of Regulation No 3 — were to extend to Articles 6 and 7 of Regulation No 1408/71, I doubt that this ought to have the effect suggested by the Commission. If an E 101 certificate issued under Regulation No 1408/71 designated a legislation different from that applicable under the Rhine Agreements, those agreements would surely stand in the way of the application of Regulation No 1408/71. Conversely, I fail to see how it would compromise the effet utile of Regulation No 1408/71 if Member States were entitled not to recognise E 101 certificates issued in circumstances governed by a particular social security convention not affected by that regulation.

32.      I am not convinced either by the Commission’s argument that it is solely by virtue of Article 7(2)(a) of Regulation No 1408/71 that the Rhine Agreements are still applicable. Although this is undoubtedly correct from a formal point of view, it amounts, metaphorically speaking, to entering through the door only to exit immediately through the window. In my view, this has much more to do with legislative technique than anything else, and ought not to carry decisive weight.

33.      To demonstrate this last point, an example is in order. If one imagines that, in transnational commercial proceedings, a choice of laws convention, such as the Rome Convention on the law applicable to contractual obligations, (18) is to determine the applicable legislation, this does not mean that once the relevant national legislation has been designated, the general principles of international law continue to apply to the substantive resolution of the underlying dispute. To follow up on that example — only this time using instead Regulation No 593/2008 (19) — the same logic commands that, once a domestic law has been designated by that regulation, this does not in itself trigger the subsequent application of the general principles of EU law in the underlying dispute. Accordingly, the fact that the choice of laws is governed by a regulation is, actually, immaterial.

34.      Lastly, the interpretation which I propose appears to be substantiated by a comparison with the regime established by Regulation No 883/2004 (20) (although that regulation is not applicable ratione temporis). Article 8 of that regulation (‘Relations between this Regulation and other coordination instruments’) amalgamated Articles 6 and 7 of Regulation No 1408/71, yet with one major difference: the multilateral conventions listed in Article 7(1) and (2)(a) and (b) of Regulation No 1408/71 disappeared. Instead, Article 16(1) of Regulation No 883/2004 (‘Exceptions to Articles 11 to 15’) states that two or more Member States, their competent authorities or the bodies designated by those authorities may by common agreement provide for exceptions to Articles 11 to 15 in the interest of certain persons or categories of person. As the Commission notes in its observations, the Member States that are also Contracting Parties to the Rhine Agreements have concluded such an agreement. (21) This legislative evolution indicates that from now on, the coordination brought about by the Rhine Agreements might well fall within the scope of Title II of Regulation No 883/2004 (‘Determination of the legislation applicable’).

35.      However, the Commission argues that the result under Regulation No 883/2004 would have been the same as previously under Regulation No 1408/71. Although one may legitimately question whether Regulation No 883/2004 maintains the status quo or whether it alters the previous regime on this point, I find it telling that the aforementioned Member States did not previously have recourse to Article 17 of Regulation No 1408/71, which is worded in quasi-identical terms to Article 16 of Regulation No 883/2004. That said, should the Court take the view that the regime established in Regulation No 883/2004 merely confirms the status quo, the cases under consideration ought, in view of the line of argument presented below, to be treated in the same way as cases falling within the scope of Title II of Regulation No 1408/71. (22) This would trigger the application of the principles deriving from FTS, (23) and the questions referred (as reformulated) ought in those circumstances to be answered in the affirmative.

36.      Yet, my principal view is still that, on the assumption that Messrs X and van Dijk are Rhine boatmen, they do not fall within the ambit of Regulation No 1408/71.

b)      Consequences for the E 101 certificates

37.      The view which I take on the scope of Regulation No 1408/71 leads me to suggest answering the referring courts to the effect that the E 101 certificates issued by the Luxembourgish authorities and designating the Luxembourgish social security legislation as applicable to Messrs X and van Dijk are devoid of legal effect.

38.      Indeed, this Union is based on the rule of law. The principle of conferral of powers, which forms part of the constitutional structure of the European Union, is of utmost importance. Where an EU institution or agency lacks legal competence, any ‘acts’ which it adopts in that field are devoid of binding effect. The same applies where it is the authorities of the Member States that are responsible for ensuring the practical administration of the EU policy, and where the measures which they take are taken pursuant to EU rules. That is the case here, as the certificates at issue in the present cases were issued by the competent Luxembourg authorities pursuant to Regulation No 1408/71 and Regulation No 574/72, (24) in order to designate the applicable social security legislation.

39.      For the same reason, and in response to Question 2 in Case C-72/14, whether the authority which issued the E 101 certificate did so for reasons of convenience or otherwise seems of no importance to me.

40.      I therefore concur with the Netherlands Government that the E 101 certificates issued in the circumstances of the cases under consideration have no binding effect. The judgment in FTS, (25) which also dealt with the refusal of a competent authority of one Member State to recognise an E 101 certificate issued by the authorities of another Member State, does not alter this. There, the disagreement was limited to the issue as to which provision in Title II of Regulation No 1408/71 properly designated the applicable social security legislation for the workers concerned — that is to say, within the scope of the coordination provided under the regulation.

41.      On that basis, I propose that the Court answer Questions 1 and 2 in Case C-72/14 and Question 2 in Case C-197/14 to the effect that, in circumstances where the authorities of one Member State have issued an E 101 certificate to an insured person which designates the social security legislation of that Member State as being applicable to that person, but where the applicable social security legislation properly falls to be coordinated by the Rhine Agreements — a matter which the referring courts are to verify — Article 7(2)(a) of Regulation No 1408/71 is to be interpreted as not requiring the authorities of another Member State to give recognition to that certificate.

c)      Considerations in the alternative

42.      In the event that the Court disagrees with me as regards the scope of Regulation No 1408/71, certain further remarks seem to be called for.

43.      Even if Articles 6 and 7 of Regulation No 1408/71 are to be interpreted as meaning that the primacy (or applicability) of the Rhine Agreements follows from that regulation itself and, consequently, that the regulation is applicable as well, it is open to question what difference this actually makes. Indeed, Article 7 provides that the Rhine Agreements are to continue to apply. In this respect, it is doubtful that the principle of mutual recognition of E 101 certificates, as laid down in FTS, (26) alters this.

44.      To be sure, it cannot be assumed that a certificate issued incorrectly pursuant to Title II of Regulation No 1408/71 should be given automatic recognition where the matter is properly governed by Title I of that regulation (‘General provisions’). Case-law in the wake of FTS has not dealt with such a situation. (27) What the Court has made clear is the default nature of Title II of Regulation No 1408/71. (28) Admittedly, an E 101 certificate, in so far as it establishes a presumption as to the truth of what it states, binds the competent institution of the host Member State. (29) However, the Court has also indicated that the presumption attaching to a certified statement issued by the competent institution of a Member State does not necessarily extend to matters outside the scope of Title II of the regulation (although, admittedly, an E 101 certificate is not usually used for such purposes). (30)

45.      In the cases under consideration, E 101 certificates have been issued by the Luxembourgish competent authorities designating Luxembourgish social security as being applicable to Messrs X and van Dijk. The competent Dutch authorities disagree. The Commission states that, according to the information at its disposal, the Contracting Parties to the Rhine Agreements issue, for practical reasons, E 101 certificates designating the applicable social security legislation, because no form exists for that purpose. (31) However, as the Court must predicate its answer on the assumptions that both men are Rhine boatmen — a matter which the Commission does not contest — and that it does not have competence to resolve disputes between the Contracting Parties relating to the correct interpretation of the Rhine Agreements (see points 22 and 23 above), it can be assumed for the purposes of these proceedings that Title II of Regulation No 1408/71 does not apply. Hence, the Luxembourgish certificates ought to be afforded no more weight than any other certified statement issued by the competent institution of a Member State in respect of a matter falling outwith Title II of the regulation. The possibility that such a statement might, for practical reasons, be draped in the trappings of an E 101 certificate ought not to overshadow this aspect.

46.      In the event that the Court holds the matter to fall within the scope of Regulation No 1408/71, I therefore maintain the answer proposed above in point 41.

C –    The second issue: the limits to the doctrine of acte clair

1.      Preliminary comments

47.      Question 1 in Case C-197/14 raises important issues in respect of the doctrine of acte clair. Given the extensive volume of writing on the subject, that doctrine needs no further introduction. What the Court has been asked to interpret here, specifically, is the requirement that ‘the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice’. (32) The main issue raised by the Hoge Raad is as follows: is it impossible for a court of last instance to have recourse to the acte clair doctrine when a lower-tier court from the same Member State has referred an identical or similar question of EU law to the Court?

48.      The Hoge Raad fears that an affirmative answer to Question 1 in Case C-197/14 would mean that the highest court of a Member State that wishes to set aside the judgment of a lower court because it interprets EU law in a manner different to that lower court would in each case also be bound first to seek the view of the Court on that matter.

49.      Mr van Dijk states that the requirements of the acte clair doctrine are not met in the main proceedings. However, in his view, it suffices for a court of last instance to await the Court’s answer to the request for a preliminary ruling issued by a lower court. The Greek Government and the Commission essentially share his view.

50.      The Netherlands Government posits that the mere fact that a court or tribunal of a Member State might have sought guidance from the Court does not automatically mean that there is ‘reasonable doubt’ within the meaning of case-law. The German Government, essentially in agreement, argues moreover that the quality of the interpretative view taken by the lower court ought to be taken into consideration, and that it would be unacceptable for a manifestly incorrect stance adopted by a lower court to be able to bring the procedural efficiencies gained from the acte clair doctrine to a halt.

51.      From the outset, I would call to mind that the particular objective of Article 267(3) TFEU is to prevent a body of national case-law that is inconsistent with the rules of EU law from coming into existence in any Member State. (33) This is reflected in the wording of Article 267(3) TFEU which, textually speaking, leaves little room for manoeuvre on the part of national courts of last instance.

52.      Nevertheless, the judgment in Cilfit and Others (34) gave national courts of last instance — as the apex courts responsible for the decentralised application of EU law (35) — the possibility, in certain circumstances, of taking upon themselves responsibility for resolving a point of EU law.

53.      At first sight, the conditions attaching to the doctrine of acte clair are not for the fainthearted. The main requirement that ‘the correct application of [EU] law [be] so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved’ is not worded loosely. Moreover, that requirement is doubly qualified. First, the national court of last instance ‘must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice’. Second, regard must be had to the characteristic features of EU law. (36) This led one commentator, not long after the birth of the doctrine of acte clair, to declare that it was ‘uniquely narrow’, a ‘tactical move’ and a tool ‘to enhance and strengthen the [Court’s] control’. (37)

54.      Even from within the Court, the terms in which the judgment in Cilfit and Others (38) was phrased have been described as ‘blurred’. (39) Yet wider criticism has also been raised in respect of the obligation to refer as such, which frames the doctrine of acte clair and in the light of which that doctrine ought to be understood. For instance, Advocate General Jacobs famously suggested, in a case raising the question as to whether certain women’s garments were to be classified for customs purposes as pyjamas, to radically reform that obligation by recourse to greater exercise, on the part of the Court, of self-restraint. (40) Advocate General Ruiz-Jarabo Colomer went so far as to compare the obligation to refer to the legend of Sisyphos. (41) By contrast, although recognising that the acte clair criteria were not infallible, Advocate General Tizzano advocated maintaining that doctrine as it is. (42)

55.      From a broader perspective, many misgivings about the black letter-obligation to refer have luckily been removed with time. To proceed in a chronological order, even long before Cilfit and Others, (43) the Court was quick to clarify that Article 267(3) TFEU had its limits. In Da Costa and Others, referring in particular to situations which are ‘materially identical with a question which has already been the subject of a preliminary ruling in a similar case’, the Court held that the authority of its rulings ‘may deprive the obligation [to refer] of its purpose and thus empty it of its substance’, (44) thus recognising the legal value of precedent. However, that is not the only judgment prior to Cilfit and Others to embody a sensible reading of that obligation. (45)

56.      Moreover, as we all know, when Advocate General Capotorti warned the Court a few years later against watering down the obligation to refer by recognising, as a matter of EU law, a doctrine of acte clair, (46) the Court disagreed.

57.      One last case (47) also bears witness to the fact that the obligation to refer has been tempered — some might say eroded — slowly but surely over time. In Intermodal Transports, the Court confirmed that the fact that administrative authorities might take a different view regarding the proper approach to be adopted in a case pending before a court of last instance does not rule out the possibility of relying on the doctrine of acte clair. (48)

58.      Admittedly, however, the Court has not been as flexible when it comes to reviewing the validity of acts adopted by the EU institutions. In spite of the strong views of its Advocate General, the Court held in Gaston Schul that the reasons which may absolve a national court of last instance of its duty under Article 267(3) TFEU do not extend to questions relating to the validity of EU acts. (49) This was so even though the Court had, in a previous case, held analogous provisions of a comparable piece of EU legislation to be invalid.

59.      Having thus set the stage, I will now examine the issue put to the Court by the Hoge Raad.

2.      Assessment

a)      Is acte clair excluded where a lower-tier court within the same Member State has asked the Court to rule upon a similar question?

60.      Given the recalibration over time of the obligation to refer under Article 267(3) TFEU, as recalled above, I wonder if it would not be appropriate, at this point in time, for the Court to bring a measure of clarity, so to speak, to the doctrine of acte clair.

61.      Personally, I take the firm view that a national court of last instance is not precluded from relying on the doctrine of acte clair merely because a lower-tier court from the same Member State has referred a question on an identical or similar issue to the Court of Justice. Three underlying premisses explain why this is so.

62.      First, structurally speaking, times have changed radically since Cilfit and Others was handed down. In 1982, the European Economic Communities consisted of 10 Member States with 7 official working languages. In the year 2015, however, the EU is a more sophisticated union, with over 28 legal systems, 24 official working languages, much wider fields of competence and, as a clear innovation brought about by the Treaty of Lisbon, a greater emphasis on the role of national (supreme) courts under Article 19(2) TEU. If one were to adhere to a rigid reading of the case-law, coming across a ‘true’ acte clair situation would, at best, seem just as likely as encountering a unicorn.

63.      Second, the system of checks and balances relating to Article 267(3) TFEU has also evolved. The Commission acknowledges a duty to oversee the way in which national courts of last instance make use of the acte clair doctrine. (50) Moreover, Cilfit and Others was handed down almost a decade before the judgment in Francovich and Others. (51)Köbler (52) was a good 20 years away. Nowadays, the Court (53) — and the European Court of Human Rights (‘the ECtHR’) (54) — are regularly seised of proceedings relating to an alleged failure to refer under Article 267(3) TFEU. 

64.      Third, the simple truth is that national courts of last instance do not, in practice, exclude having recourse to the acte clair doctrine (explicitly or implicitly), even when the decisions appealed against — or a minority of the adjudicating formation — express differences of opinion. (55) In the light of this, I would think it unwise for the Court to police the narrowest of interpretations of the scope of the conditions attaching to that doctrine. To do so would seem in contradiction both with reality and with the spirit of cooperation which characterises the relationship between the Court of Justice and the national (supreme) courts.

65.      Returning to the matter under consideration, the Court has not been asked to clarify the concepts of ‘doubt’ (let alone ‘reasonable doubt’) or ‘obviousness’. It is clear from the tenor of the order for reference in Case C-197/14 that the Hoge Raad does not have any doubt as to the approach to adopt in the proceedings pending before it. (56) The Court has simply been asked to clarify whether the fact that a lower court expresses doubt effectively means that a court of last instance must, by way of consequence, also be in doubt. At least, the effect of the lower court’s hesitations would be that the court of last instance could no longer assume responsibility for resolving a point of EU law itself.

66.      However, as Advocate General Stix-Hackl has previously stated, the obviousness of a correct interpretation is not generally contradicted by the fact that a provision can be read in two ways. (57)

67.      The expression ‘the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice’, as I understand it, ought to be seen in the same light as the other qualifying factors listed by the Court in Cilfit and Others (see point 53 above). Hence, that requirement cannot be understood in absolute terms. Rather, it should be understood as meaning that the judges of final appeal ruling upon the matter must be convinced, in their minds, that other judges would agree with them. As I see it, the circumstances mentioned in paragraphs 16 to 20 of the judgment in Cilfit and Others constitute a ‘tool kit’ for determining whether or not there might be any reasonable doubt. They are to be seen as warning signs rather than strict criteria and, read fairly, amount to no more than common sense. (58) So, unlike certain commentators, (59) I find myself unable to read Cilfit and Others as stating that reasonable doubt can be measured objectively merely by pointing to differences of interpretative opinion among members of the judiciary. Indeed, Cilfit and Others concerned a situation where a national court of last instance asked the Court whether it was at all conceivable for there not to be an obligation to refer an unresolved question of EU law to the Court of Justice. Having answered that question in the affirmative on the point of principle, the Court then attempted to draft the conditions attaching thereto in such a manner as to prevent judicial disagreement from arising. On the other hand, Cilfit and Others is silent as to the inferences to be drawn if judicial disagreement actually arises, as in the cases under consideration.

68.      In this sense, it seems less important to me whether potential disagreement might come from a judge from another Member State or a judge from the same Member State. After all, the Court has highlighted ‘the risk of divergences in judicial decisions within the Community’, (60) which — given the particular aim of Article 267(3) TFEU to prevent a body of national case-law not in accord with the rules of EU law from coming into existence in any Member State — would, a priori, include the intra-State scenario. A different view would, in fact, make little sense in respect of Member States with different legal systems applicable in their constituent parts, such as the United Kingdom. In addition, although they are admittedly not treated alike in the context of Article 267 TFEU, it seems desirable to adopt a coherent approach in the relationship between national courts of a lower rank and courts of last instance: if a lower court is not bound by the ruling of a national court of last instance which the former deems to be incompatible with EU law, (61) why ought the latter then to be bound by a difference of opinion expressed by a lower court?

69.      So in essence, my view boils down to this: if a national court of last instance is sure enough of its own interpretation to take upon itself the responsibility (and possibly the blame) for resolving a point of EU law without the aid of the Court of Justice, it ought to be legally entitled to do so. But, in such a situation, there is a fly in the ointment: the prospect that legal action might be taken against the Member State of the court of last instance for failure to refer and/or incorrect application of EU law. That is a risk which that court must assume alone. (62)

b)      Is there an obligation to await the outcome of the lower court’s request for a preliminary ruling?

70.      Now, although I do not think that the doubt expressed by a lower court within the same Member State rules out the prospect of an acte clair, the Hoge Raad’s Question 1, as it is framed, mentions the possibility that it might itself be required to refer a question to the Court, or that it might have to await the outcome of an independent set of preliminary ruling proceedings already triggered by a request made by a lower court concerning — I would assume — essentially the same point of EU law.

71.      Such a situation presents certain particularities. Of course, the court of last instance might still take the view, despite the request for a preliminary ruling made by the lower court, that there is no reasonable doubt as to the correct approach, and that there is no need to wait patiently for a decision from the Court on the matter, which may take a considerable amount of time. I can understand such a view.

72.      Still, it is open to question whether, in such circumstances, the duty for national courts of last instance to act in sincere cooperation with the Court of Justice, as enshrined in Article 4(3) TEU, might nevertheless require the court of last instance to await the Court’s decision. For, even though it would be a rare event for a sensible application of the acte clair doctrine to be viewed differently from Luxembourg, that risk cannot be ruled out entirely.

73.      Yet the duty of sincere cooperation does not provide a clear legal basis from which I can deduce such an obligation to await the outcome of the proceedings before the Court. After all, the question put by the lower court might, for instance, patently fall outside the scope of the Court’s jurisdiction, or be declared manifestly inadmissible, for example, for failing to satisfy the minimum requirements set out in the Rules of Procedure. The dispute might also be settled amicably during the procedure before the Court. Therefore, to require the court of last instance to stay the proceedings would clearly risk compromising procedural efficiency as well as the swift administration of justice. That said, however, I would not, given the judgment in Köbler, rule out the possibility that it might, on occasion, be wiser to await the Court’s judgment.

IV –  Conclusion

74.      In the light of the foregoing, I propose that the Court respond as follows to the questions referred by the Gerechtshof te ’s-Hertogenbosch and Hoge Raad (Netherlands):

–        In circumstances where the authorities of a Member State have issued an E 101 certificate to an insured person which designates the social security legislation of that Member State as being applicable to that person, but where the applicable social security legislation properly falls to be coordinated by the Agreement concerning social security for Rhine boatmen, dated 27 July 1950, revised on 13 February 1961, and subsequently revised on 30 November 1979 (a matter for the referring courts to verify), Article 7(2)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community is to be interpreted as not requiring the authorities of another Member State to accord recognition to that certificate.

–        A national court of last instance which takes the view that the correct application of EU law to a matter on which it is called upon to rule is so obvious as to leave no scope for any reasonable doubt is not required, under Article 267(3) TFEU, to refer a question to the Court of Justice for a preliminary ruling merely because a lower-tier court from the same Member State has requested a preliminary ruling on the same point of EU law.

1 – Original language: English.

2 – Council Regulation of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416), as amended.

3 – Agreement concerning social security for Rhine boatmen, dated 27 July 1950, revised on 13 February 1961, and subsequently revised on 30 November 1979.

4 – The order for reference in Case C-72/14 refers both to an entity named ‘AAA’ and ‘AAAA’; it appears to be a simple mistake.

5 – See, to that effect, the judgment in Elchinov, C-173/09, EU:C:2010:581, paragraph 27 and case-law cited.

6 – See, inter alia, the judgment in Torrekens, 28/68, EU:C:1969:17, paragraph 6; cf. the judgment in Brusse, 101/83, EU:C:1984:187, paragraph 11. However, the Commission argues that Messrs X and van Dijk are subject to Luxembourgish legislation, irrespective of whether that assessment is based on the Rhine Agreements or Regulation No 1408/71.

7 – The Gerechtshof te ’s-Hertogenbosch takes the view that Mr X is a Rhine boatman. The Hoge Raad does not indicate its view in respect of Mr van Dijk.

8 – See the judgment in Balazs and Casa Judeţeană de Pensii Cluj, C-401/13 and C-432/13, EU:C:2015:26, paragraph 34 and case-law cited.

9 – See the judgment in Hoorn, C-305/92, EU:C:1994:175, paragraph 10.

10 – Article 7(2)(c) of Regulation No 1408/71 states that, notwithstanding Article 6, ‘certain provisions of social security conventions entered into by the Member States before the date of application of this Regulation provided that they are more favourable to the beneficiaries or if they arise from specific historical circumstances and their effect is limited in time if these provisions are listed in Annex III’, are to continue to apply.

11 – See, inter alia, the judgments in Walder, 82/72, EU:C:1973:62; Rönfeldt, C-227/89, EU:C:1991:52; Hoorn, C-305/92, EU:C:1994:175; Thévenon, C-475/93, EU:C:1995:371; Naranjo Arjona and Others, C-31/96 to C-33/96, EU:C:1997:475; Gómez Rodríguez, C-113/96, EU:C:1998:203; Thelen, C-75/99, EU:C:2000:608; Kaske, C-277/99, EU:C:2002:74; Martínez Domínguez and Others, C-471/99, EU:C:2002:523; Habeltand Others, C-396/05, C-419/05 and C-450/05, EU:C:2007:810; Landtová, C-399/09, EU:C:2011:415; Wencel, C-589/10, EU:C:2013:303; and Balazs and Casa Judeţeană de Pensii Cluj, C-401/13 and C-432/13, EU:C:2015:26.

12 – C-23/92, EU:C:1993:339, paragraphs 23 to 25.

13 – Ibid., paragraph 25 (emphasis added). See also Walder, 82/72, EU:C:1973:62, paragraphs 6 and 9.

14 – 187/73, EU:C:1974:57.

15 – Ibid., paragraphs 18 to 21, confirmed in the judgment in Frascogna, 157/84, EU:C:1985:243, paragraph 13.

16 – 28/68, EU:C:1969:17.

17 – Council Regulation (EEC) No 3 of 25 September 1958 concerning social security for migrant workers (Journal officiel 1964, p. 561).

18 – Opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1).

19 – Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6).

20 – Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1; corrigendum OJ 2004 L 200, p. 1). That regulation repealed and replaced Regulation No 1408/71 with effect from the date of application of Regulation No 883/2004 (1 May 2010).

21 – Derogation Agreement of 23 December 2010 concerning the legislation applicable to Rhine boatmen, adopted pursuant to Article 16(1) of Regulation No 883/2004.

22 – In the judgment in Brusse, 101/83, EU:C:1984:187, the Court held that a worker derived rights under Regulation No 1408/71 in respect of a bilateral agreement concluded under Article 17 thereof.

23 – C-202/97, EU:C:2000:75.

24 – Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons, to self-employed persons and to their families moving within the Community (OJ, English Special Edition 1972(I) p. 159), as amended.

25 – C-202/97, EU:C:2000:75.

26 – C-202/97, EU:C:2000:75.

27 – See the judgments in Banks and Others, C-178/97, EU:C:2000:169; Herbosch Kiere, C-2/05, EU:C:2006:69; and Format Urządzenia i Montaże Przemysłowe, C-115/11, EU:C:2012:606.

28 – See, to that effect, the judgment in Bouman, C-114/13, EU:C:2015:81, paragraph 35 and case-law cited.

29 – See, inter alia, FTS, C-202/97, EU:C:2000:75, paragraph 53.

30 – See, to that effect, the judgment in Bouman, C-114/13, EU:C:2015:81, paragraphs 25 to 27. In that case, the Commission also argued in vain that the document under consideration had binding effect; see the Opinion of Advocate General Szpunar in Bouman, C-114/13, EU:C:2014:123, point 28. See also the judgment in Adanez-Vega, C-372/02, EU:C:2004:705, paragraph 48, cf. paragraph 36.

31 – Obviously, that statement cannot be verified by the Court. However, it has not escaped my attention that the Administrative Centre for the Social Security of Rhine Boatmen has issued certain standard forms under the regime set up under the Rhine Agreements. Those forms are annexed, inter alia, to Resolution No 2 of 2 March 1989; Resolution No 3 of 13 October 1989; and No 5 of 27 March 1990 (replaced by Resolution No 7 of 26 June 2007). All these forms and resolutions can be downloaded from the website of the Central Commission for the Navigation of the Rhine (http://www.ccr-zkr.org).

32 – Judgment in Cilfit and Others, 283/81, EU:C:1982:335, paragraph 16.

33 – See, inter alia, the judgments in Hoffmann-Laroche, 107/76, EU:C:1977:89, paragraph 5, and Pedro IV Servicios, C-260/07, EU:C:2009:215, paragraph 32.

34 – 283/81, EU:C:1982:335.

35 – See, to that effect, the judgment in Parfums Christian Dior, C-337/95, EU:C:1997:517, paragraph 25, and Opinion 1/09, EU:C:2011:123, paragraphs 84 to 85.

36 – Which are, according to the Court: linguistic diversity in the legal texts; the use of special terminology; and particular methods of interpretation; see Cilfit and Others, 283/81, EU:C:1982:335, paragraphs 16 to 20.

37 – See Rasmussen, H., ‘The European Court’s Acte Clair Strategy in C.I.L.F.I.T. Or: Acte Clair, of Course! But What does it Mean?’, 9 EL Rev. (1984), pp. 242 and 243.

38 – 283/81, EU:C:1982:335.

39 – See the Opinion of Advocate General Stix-Hackl in Intermodal Transports, C-495/03, EU:C:2005:215, point 84. Former judge Edward used the expression ‘not ideal’; see Edward, D., ‘CILFIT and Foto-Frost in their Historical and Procedural Context’, in Maduro, M., and Azoulai, L. (eds.): The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty 2010, Hart, 2010, p. 179.

40 – See the Opinion of Advocate General Jacobs in Wiener SI, C-338/95, EU:C:1997:352 and, in particular, points 18 to 21.

41 – See the Opinion of Advocate General Ruiz-Jarabo Colomer in Gaston Schul Douane-expediteur, C-461/03, EU:C:2005:415, points 2 to 4.

42 – See the Opinion of Advocate General Tizzano in Lyckeskog, C-99/00, EU:C:2002:108, points 60 to 76 and, in particular, point 65.

43 – 283/81, EU:C:1982:335.

44 – 28/62 to 30/62, EU:C:1963:6, p. 38.

45 – In Hoffmann-Laroche, 107/76, EU:C:1977:89, paragraphs 5 and 6, the Court confirmed that the obligation to refer a question for a preliminary ruling does not apply to a court of last instance in interlocutory proceedings, provided that it is open to the parties to settle the dispute in proceedings on the substance and during the course of which a reference to the Court may be made. See also the judgment in Morson and Jhanjan, 35/82 and 36/82, EU:C:1982:368, paragraphs 9 and 10.

46 – See the Opinion of Advocate General Capotorti in Cilfit and Others, 283/81, EU:C:1982:267, and, in particular, point 4.

47 – However, mention ought also to be made of the judgment in Parfums Christian Dior, C-337/95, EU:C:1997:517, paragraph 30. In that case, the Court held that a national court of last instance which is required, under international law, to refer a question of legal interpretation to a court set up for that purpose (in casu the Benelux Court), is absolved from its duty to refer a question for a preliminary ruling under Article 267(3) TFEU, provided that the international court is itself obliged to refer a question to the Court of Justice under that provision and that it actually does so.

48 – C-495/03, EU:C:2005:552, paragraph 35.

49 – See the judgment in Gaston Schul Douane-expediteur, C-461/03, EU:C:2005:742, paragraph 19.

50 – See Lenaerts, K., Maselis, I., and Gutman, K. (Nowak, J., ed.): EU Procedural Law, 1st ed., Oxford, 2014, p. 102, citing an answer given by Commission President Thorn on 25 July 1983 to a parliamentary question (OJ 1983 C 268, p. 25), and the well-known infringement action brought by the Commission against the Kingdom of Sweden concerning the arguable failure of the Högsta Domstolen (Supreme Court, Sweden) to comply with Article 267(3) TFEU (reasoned opinion 2003/2161, C(2004) 3899, 13 October 2004). See also, to that effect, the Opinion of Advocate General Tizzano in Lyckeskog, C-99/00, EU:C:2002:108, point 65.

51 – C-6/90 and C-9/90, EU:C:1991:428.

52 – C-224/01, EU:C:2003:513. That judgment explicitly refers to the duty to refer under Article 267(3) TFEU, see paragraph 55.

53 – See, implicitly, the judgment in Commission v Spain, C-154/08, EU:C:2009:695, paragraphs 64 to 66 (see also paragraph 126) and, to that effect, Opinion 1/09, EU:C:2011:123, paragraphs 84 to 87. For a current example, see Ferreira da Silva e Brito and Others, C-160/14, pending.

54 – The ECtHR has stated, on a number of occasions, that ‘national courts against whose decisions there is no remedy under national law, which refuse to refer to the Court of Justice a preliminary question on the interpretation of EU law that has been raised before them, are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the Court of Justice. They are thus required to indicate the reasons why they have found that the question is irrelevant, that the EU law provision in question has already been interpreted by the Court of Justice, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt’, see, inter alia, Vergauwen and Others v. Belgium (dec.), no. 4832/04, § 90, 10 April 2012, and case-law cited (unofficial translation).

55 – See, inter alia, the decisions of the House of Lords (United Kingdom) in Regina v London Boroughs Transport Committee [1992] 1 CMLR 5, in particular at [45]; the Court of Appeal (England and Wales) (United Kingdom) in Mighell v Reading& Another [1998] EWCA Civ 1465, at [35]; the House of Lords in Three Rivers DV v Bank of England (No 3) [2000] 3 CMLR 205; the Högsta Domstolen (Supreme Court) (Sweden) in NJA [2004] 735; the Vestre Landsret (Western High Court) (Denmark), acting as court of last instance in UfR [2007] 54 (overturned extraordinarily by the Højesteret (Supreme Court) (Denmark) in UfR [2011] 539 following the judgment in Mickelsson and Roos, C-142/05, EU:C:2009:336); the Supreme Court (United Kingdom) in The Office of Fair Trading v National plc & Others [2009] UKSC 6, in particular at [49]; and the Portuguese decisions at the heart of Ferreira da Silva e Brito and Others, C-160/14, pending.

56 – The Hoge Raad refers to its own case-law, specifically a judgment of 11 October 2013, No 12/04012, ECLI:NL:HR:2013:CA0827, in which it held that no significance could be attached to an E 101 certificate issued in respect of a Rhine boatman. Mr van Dijk also mentions a judgment of the Hoge Raad of 9 December 2011, No 10/03927, ECLI:NL:HR:2011:BQ2938, with a supposedly similar outcome in respect of an E 106 certificate.

57 – See the Opinion of Advocate General Stix-Hackl in Intermodal Transports, C-495/03, EU:C:2005:215, point 110.

58 – Concurring, see Edward, D., op.cit., p. 178.

59 – See, in particular, Broberg, M., and Fenger, N., Preliminary References to the European Court of Justice, 2nd ed., 2014, Oxford, pp. 240 to 246.

60 – See the judgment in Intermodal Transports, C-495/03, EU:C:2005:552, paragraph 33. Emphasis added.

61 – Judgment in Elchinov, C-173/09, EU:C:2010:581, paragraph 27 and case-law cited.

62 – See, to that effect, the judgment in Intermodal Transports, C-495/03, EU:C:2005:552, paragraph 37. Recent examples of national decisions in the wake of a refusal of a court of last instance to refer a question to the Court of Justice are the judgment of 3 January 2014 of the Sofiysky gradski sad (Municipal Court of Sofia) (Bulgaria) in Pretsiz 2 EOOD v Bulgarian State, Case No 1782/2013; the judgment of 21 November 2013 of the Ustavno sodišče Republike Slovenije (Constitutional Court) (Slovenia), ECLI:SI:USRS:2013:Up.1056.11; the decision of 19 May 2014 of the Alkotmánybíróság (Constitutional Court) (Hungary), Case No 3165/2014; and the order of 28 August 2014 of the Bundesverfassungsgericht (Constitutional Court) (Germany), Case No 2 BvR 2639/09.