98
Monika Kirilova Kirova
understanding is identical in every language. Such a duty could prove to
be very demanding, potentially discouraging national courts from using
their freedom to decide cases independently from CJEU. Consequently,
the narrow scope of liberty provided to national courts implies that the
CJEU has declared itself as the sole creator and interpreter of European
Union law.
Although the CJEU has gradually tried to impose its superiority in the
initial relationship of cooperation, the national courts seem unwilling
to entirely accept this. According to Broberg (2008: 1396), the doctrine
of Acte Clair has been used more than expected. For instance, the EU
Commission brought proceedings against Sweden because the Swedish
courts failed to comply with their obligation to refer in several cases.
Consequently, it may be that the CILFIT criteria has been used so often
that it has led to a divergence in the meaning of European Union law
across Member States, as noted by Tridimas (2003: 47).
Furthermore, Kenny (2012: 448) argues that in Abbey National, the UK
Supreme Court modified the CILFIT criteria by accepting a unanimous
decision to allow an appeal; meaning that the matter is now clear. Such
an endeavour could be perceived as inimical to the notion of the CJEU’s
superiority, because the national court altered the doctrine without consulting the CJEU. From a national court’s perspective, the Acte Clair
doctrine has been used more as a way of escaping from the preliminary ruling procedure than as a tool of emphasizing CJEU’s superiority. Drawn together, even though the CJEU is the court which expressly
shapes the relationship with national courts, the latter have found ways
to modify the boundaries of this relationship.
Köbler - The CJEU’s New Method of Establishing Superiority
The relationship between national courts and CJEU has been in a state
of constant development, as exemplified by the analysis above. It has