1. Introduction

1.1 Overview

On April 15, 2021, European Court of Justice (CJEU) Advocate General (AG) Michal Bobek presented his Opinion on the case Consorzio Italian Management and Catania Multiservizi1, proposing that the CJEU revisit its “CILFIT” criteria2 – particularly the acte clair doctrine – and replace them with three new cumulative requirements, which, he argued, would better achieve the purpose and scope of Article 267 of the Treaty on the Functioning of the European Union (TFEU).

1.2 The proceeding before the Italian Council of State (Consiglio di Stato)

By judgment no. 1297, delivered March 22, 2017, the Italian Council of State (Consiglio di Stato) referred a first request for preliminary ruling to the CJEU, pursuant to Article 267 TFEU, concerning both the interpretation and validity of certain EU Law provisions3. The particular feature of the proceeding consisted in the fact that the Council of State had already made a preliminary ruling on the same case, defined by the CJEU in its judgment dated April 19, 20184.

In that ruling, the CJEU stated that EU law did not preclude the interpretation provided by Italian law on procurement5. The applicants, however, argued that the CJEU had not taken into account certain aspects of the case in point and argued, for that reason, that the judgment was “unusable for the definition of the case”. The Council of State was therefore asked to make a new referral for preliminary ruling, presenting five “further” questions to the CJEU for examination6.

The Administrative Judge noted that three of these questions (two and in part, another) should be declared clearly unfounded, as they had already been resolved by the judgment issued by the CJEU on April 19, 2018. However, since the two remaining questions raised new issues of contrast with EU Law, they must be qualified as “new” issues, according to the Administrative Judge.

Thus, with its judgment released on July 15, 2019, the Council of State deemed it necessary to refer a second request for preliminary ruling limited to the two new questions, pursuant to the established EU case law that imposes on the Court of last instance the obligation to refer the case back. Before submitting the two questions on the merits, however, the Council of State asked the CJEU a first and preliminary question regarding the actual scope of the provision under art. 267(3) TFEU7.

The Council of State stated that the mandatory nature of the preliminary ruling could not be separated from a regime of “procedural preclusions, considering that a “chain” of preliminary questions would have generated the risk of abuse of trial, making the right to judicial protection and to a swift conclusion of the trial elusive8.

Now, this first and preliminary question regarding the boundaries of the duty provided for by Article 267(3) TFEU, constitutes the heart of Bobek’s Opinion: in fact, the AG does not consider the merits of the two “new” questions, but focuses his attention only on the first question, ranging as far as the identification of a “deeper layer”, with the declared aim of questioning the criteria of the CILFIT case law.