In its Judgment in Doc Generici, C-452/14, EU:C:2015:644, the Court of Justice of the EU (CJEU) was requested to interpret certain provisions of the EU framework for the evaluation of medicinal products by the Italian Consiglio di Stato. Beyond the technical details of the case concerning medicinal product evaluation, I find the Doc Generici case interesting because it presents a very strange question concerning the obligation to refer issues for preliminary ruling to CJEU under Art 267 TFEU.
Presented with contradictory interpretations of the relevant EU rules on medicinal product evaluation, the Consiglio di Stato decided to stay proceedings and to refer some questions to the CJEU for a preliminary ruling (C-452/14, para 27). This would seem to accord to the ordinary working of Art 267 TFEU, according to which second paragraph "any court or tribunal of a Member State [confronted with an issue regarding the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union] may, if it considers that a decision on the question is necessary to enable it to give judgment, request the [CJEU] to give a ruling thereon."
This clause in Art 267.II TFEU is generally understood as an enabling mechanism and, as far as I am aware, there is no controversy about the possibility for domestic courts to avail themselves of the preliminary ruling mechanism--which is, in any case, subjected to a check by the CJEU, which can reject the reference on several grounds (including the fact that such interpretation is already available to the referring court by means of previous case law of the CJEU). Thus, nothing out of the ordinary seemed to take place in Doc Generici and the referral by Consiglio di Stato could hardly be interpreted as a procedural anomaly.
However, the Consiglio di Stato does not seem worried about whether it is allowed to refer the questions for preliminary ruling, but about whether it is obliged to do so. In that regard, in Doc Generici, the Consiglio di Stato asked the CJEU whether '[i]n the circumstances in the present proceedings, may or must, as held by this court [ie the Consiglio di Stato itself], the question be referred to the Court of Justice?'.
In my view, given the Consiglio di Stato's willingness to refer the questions on the substantive EU law provisions for interpretation, the further question whether it could or had to do so seems quite superficial and legally irrelevant. The controversy about the obligation to refer questions generally arises when the would-be referring court does not intend to ask the CJEU to provide a preliminary ruling, in which case the extent to which the clause in Art 267.III TFEU forces it to do so can be controversial.
Under Art 267.III TFEU, "[w]here any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court" (emphasis added). This has given raise to a significant body of case law, including the relatively recent developments as to the liability in which the Member State incurs when its highest courts fail to comply with Art 267.III TFEU. In any case, though, as mentioned, this is only controversial when there is no referral.
In Doc Generici, the question of the Consiglio di Stato on whether it was obliged to refer the questions for interpretation under Art 267.III TFEU, or whether it was simply doing so out of a discretionary measure under Art 267.II TFEU, seems to respond to some argument of the parties in the case at hand (which domestic law implications exceed my imagination), but it is irrelevant from the perspective of EU law.
In fact, the answer given by the CJEU in paras 42-45 could not be more inane, as it simply reiterates the existing doctrine that
In accordance with the third paragraph of Article 267 TFEU, a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the provision of EU law in question has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (see, inter alia, judgments in Cilfit and Others, 283/81, EU:C:1982:335, paragraph 21, and Boxus and Others, C-128/09 to C-131/09, C-134/09 and C-135/09, EU:C:2011:667, paragraph 31) (C-452/14, para 43).
After that reminder, the CJEU simply proceeds to stress that the Consiglio di Stato was right in considering itself obliged to refer the question because
it is clear from the explanations provided by the Consiglio di Stato that it considers that it is obliged to make a reference to the Court of Justice for a preliminary ruling. Indeed, it is of the view that the dispute in the main proceedings raises a question of interpretation of EU law which is relevant and novel and the answer to which is not so clear as to leave no scope for any reasonable doubt as to the solution (C-452/14, para 44, emphasis added).
However, this is quite empty or circular reasoning, not least because the circumstances of the case the CJEU refers to are 'internal' to the decision of the Consiglio di Stato--ie the referring court is the one that assesses whether the question is useful and is not covered by the doctrine of acte claire. Under EU law, the CJEU would only second-guess such a judgment of a would-be referring court when there is no referral, and only when the non-referring domestic court incurred in a "manifest infringement" of the applicable EU law.
Thus, in a scenario where the domestic highest court decides to refer, the CJEU is hardly ever going to answer in a way that determines that the referral was not mandatory under 263.III TFEU, even if it eventually decides not to answer the specific questions referred for interpretation. Not least, because even if it was not mandatory, it was in any case possible, so the CJEU need not worry about how the question got to its docket--it need only be concerned when a question that had to be referred is not.
Overall, then, the issue of the obligation or mere possibility for a referral to the CJEU by the Consiglio di Stato in Doc Generici seems the result of an unnecessary domestic imbroglio concerning the effects of such a referral and, in my view, simply serves to strengthen the point that, when in (reasonable) doubt, highest domestic courts must refer questions for preliminary ruling to the CJEU. I am still curious as to the background reasons why the Consiglio di Stato felt the need to justify that it had to refer the issues to the CJEU. If any Italian reader would tell us in the comments, I would remain much obliged.