The court states that courts of last instance must give adequate reasons for their decision not to refer a question for a preliminary ruling, even in the absence of an express request from the parties.
In its recent judgment of 24 March 2026 (Case C-767/23), the Court of Justice of the European Union (CJEU) examines an issue of considerable practical relevance for the functioning of the national judicial systems of the Member States and, in particular, for the Spanish cassation system. In this ruling, which completes and reinforces the line initiated in its judgment of 15 October 2025, KUBERA (case C-144/23), the court specifies the scope of the duty of national courts of last instance when they decide not to refer a question for a preliminary ruling under Article 267 of the Treaty on the Functioning of the EU (TFEU).
The ruling does not introduce substantive modifications to the traditional doctrine of the three exceptions that allow the national court of last instance to refrain from referring a question for a preliminary ruling (known as “Cilfit exceptions”): (i) the lack of relevance of the question, (ii) that the provision of EU law has already been interpreted by the CJEU –acte éclairé– and (iii) that the correct interpretation of said law is so obvious that it leaves no room for any reasonable doubt –acte clair-; doctrine established early on by the CJEU in the Cilfit judgment of 6 October 1982 (case C-283/81) and subsequently developed in the judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (case C 561/19). However, it does significantly strengthen the requirements arising from the duty to state reasons, by specifying the cases in which such a duty is enforceable and the intensity with which it must be complied with in each case, depending on the concurrent exception.
The dispute in the main proceedings fell within the scope of foreign nationals’ law and arose from the refusal to grant a residence permit to a third-country national who already had a residence permit in another Member State. Following the dismissal of the administrative appeal and the subsequent rejection of the claim by the court of first instance, the applicant lodged an appeal before the Administrative Division of the Council of State of the Netherlands, which has jurisdiction to rule at last instance in that matter. In such appeal, the applicant challenged the interpretation of the case law of the CJEU adopted by the lower court and criticized court for failing to make a reference for a preliminary ruling, despite the existence of divergent national case-law. In addition, he expressly requested the appellate court to make a request for a preliminary ruling.
Considering that the answer to the questions referred was clearly deduced from the case-law of the CJEU and that, therefore, one of the Cilfit exceptions was present, the Dutch court of last instance considered that it could rule on the appeal without referring a question for a preliminary ruling and that it could do so, moreover, by means of an abbreviated reasoning, in accordance with national procedural rules, which allows in these cases a succinct justification in the interests of the sound administration of justice.
However, the Council of State of the Netherlands questioned whether the possibility of providing a summary statement of reasons is compatible with Article 267 TFEU where one of the parties to the proceedings has requested a referral for a preliminary ruling and, if so, whether, despite the possibility provided for in the national legislation to use a succinct statement of reasons, it had to set out in detail the reasons why it considered that it was not obliged to make such a referral, specifying, in particular, which of the three Cilfit exceptions was applicable.
On the basis of the characterization of the preliminary ruling procedure as the cornerstone of the EU judicial system, the CJEU recalls that courts whose decisions are not subject to further appeal are, in principle, required to refer a question for a preliminary ruling when a question concerning the interpretation or validity of EU law is raised before them (as we have anticipated, exemption from that obligation is only possible when one of the three Cilfit exceptions is present). The Court also states that the assessment of those exceptions is a matter for the national court and that this assessment entails an obligation to state reasons that cannot be fulfilled in a merely formal manner.
That obligation (and here lies one of the most relevant aspects of the ruling) persists even when none of the parties has expressly requested a question to be referred for a preliminary ruling, it being sufficient that they have invoked EU law. It also applies where, even in the absence of such invocation by the parties, the national court has the power or the duty to raise of its own motion the application of mandatory provision of EU law. Admittedly, this latter scenario is likely to arise less frequently in practice and, moreover, compliance with this obligation by the national courts will be difficult to monitor and, where appropriate, to challenge (for example, in Spain, by means of an action for annulment or remedy of constitutional protection), especially where EU law has not even been invoked. In addition, the judgment clarifies the required standard of reasoning in each case. The court accepts that this may be concise where the question of EU law is manifestly irrelevant to the resolution of the dispute. Likewise, a mere reference to the case-law of the CJEU may be sufficient where there is a “strict material identity” between the question referred and one already resolved by a preliminary ruling (acte éclairé). However, where such substantive identity is lacking, a more elaborate justification will be necessary to explain why the case-law cited is applicable to the case at hand. Similarly, where a court of last instance considers that the correct interpretation of EU law is so obvious that it leaves no room for any reasonable doubt (acte clair), a merely conclusory assertion to that effect will not suffice. The court must set out the reasons underpinning that conclusion, taking into account the particular difficulties inherent in interpreting EU law and the risk of divergent interpretations within the Union.
The judgment also clarifies that the obligation to state reasons may be deemed to have been fulfilled where the court of last instance expressly endorses the reasoning of the lower court, provided that the latter has adequately set out the reasons why it considered one of the Cilfit exceptions to be applicable. Apart from that situation, the national court whose decisions are not subject to domestic appeal is not relieved of the duty to justify, in a specific and concrete manner, the refusal to refer the question for a preliminary ruling.
Returning to the Spanish context and from a practical perspective, this decision should imply a greater argumentative effort on the part of the Supreme Court – or, at least, its externalization to the parties – when rejecting the need to engage in dialogue with the CJEU, both at the stage of admission of appeals and at the merits stage; especially since, in general, the lower courts omit any express reference to the Cilfit criteria when declaring the inadmissibility of the reference for a preliminary ruling when its approach is requested by the parties. When this lack of reasoning occurs, the Supreme Court will hardly be able to rely on the prior reasoning of the court a quo, and will, in most cases, need to provide its own reasoning in the terms required by the CJEU.
It does not seem reasonable to expect this doctrine to bring about a radical shift in judicial practice; its impact should be rather limited. However, although it is true that the absence of an express reference to the Cilfit conditions in the orders rejecting the inadmissibility of appeals or in the judgments resolving them does not necessarily imply that the Admission Division of the Supreme Court have carried out a superficial analysis or have not debated the fulfilment of those requirements, it now appears necessary to articulate, in a concrete and specific manner, the reasons why recourse to the preliminary ruling procedure is dispensed with whenever EU law is at issue.
The judgment thus completes and reinforces the line initiated by KUBERA, narrowing the scope for automatic or stereotyped refusals. In any event, this doctrine should not lead the parties to relax their procedural strategy, since the specific invocation of EU law -and, in particular, the express request to refer a question for a preliminary ruling- continues to be the scenario in which the requirement to state reasons is most obvious and, above all, most easily controllable through the mechanisms available in Spanish law (motion for annulment of proceedings or remedy of constitutional protection before the Constitutional Court) or at European level (European Court of Human Rights).
