EuGH C‑767/23: Stricter duty to explain when top courts refuse to refer to the ECJ
With its judgment of 24 March 2026 in case C‑767/23 (A. M. v Staatssecretaris van Justitie en Veiligheid), the Court of Justice of the European Union (CJEU) has significantly tightened the duty of last‑instance national courts to explain why they do not make a preliminary reference under Article 267(3) TFEU. The key question is how detailed the reasoning must be when a supreme court decides an EU‑law question on its own instead of asking the CJEU.
Background: Dutch immigration law and “motivation sommaire”
The case arises from Dutch immigration law: a Moroccan national, A. M., applied for a residence permit in the Netherlands, even though he already held a residence permit in Spain. After his action was dismissed at first instance, he appealed to the Afdeling bestuursrechtspraak van de Raad van State (the Dutch Council of State’s Administrative Jurisdiction Division), invoking a derived right of residence based on Article 20 TFEU and the CJEU’s Chavez‑Vilchez case law. At the same time, he argued that the lower court should have referred questions to the CJEU in view of diverging national case law, and he again requested a reference on appeal.
Under Dutch law (Article 91(2) of the Vreemdelingenwet 2000), the Afdeling may dismiss an appeal with only a very brief reasoning (“motivation sommaire”) where the alleged error cannot lead to annulment and there is no general interest in a more detailed explanation. The referring court wanted to know whether, as a matter of EU law, it may also dispose of EU‑law issues with such a short reasoning, without expressly indicating which of the three well‑known Cilfit exceptions it relies on.
Legal framework: Article 267 TFEU, Article 47 CFR and the Cilfit exceptions
The CJEU recalls that the preliminary ruling procedure under Article 267 TFEU is the “keystone” of the EU system of judicial protection, ensuring the uniform interpretation of EU law across all Member States. Courts against whose decisions there is no judicial remedy under national law are, in principle, required to refer questions of EU‑law interpretation to the CJEU.
They may refrain from doing so only if one of the three Cilfit exceptions applies:
- the EU‑law question is not relevant for deciding the case,
- the relevant provision has already been interpreted by the CJEU (acte éclairé), or
- the correct interpretation is so obvious that there is no reasonable doubt (acte clair).
This framework was recently refined in Consorzio Italian Management (C‑561/19) and KUBERA (C‑144/23). In C‑767/23, the Grand Chamber makes clear that these principles also entail a specific duty for last‑instance courts to give reasons when they choose not to refer.
Core holding: Concrete and specific reasoning is required
The CJEU stresses that a last‑instance court must not only examine internally whether a Cilfit exception applies, but must also explain this outwardly in a “specific and concrete” way. It is not enough to rely on a national provision allowing short reasoning or simply to state that the statutory conditions for a summary decision are met.
In particular, the CJEU requires:
- The reasoning must show whether the EU‑law question is considered irrelevant, already answered by existing CJEU case law, or so obvious that no reasonable doubt exists.
- Where the court relies on earlier CJEU judgments, a concise reference may be sufficient if the questions are identical; where it argues by analogy, a bit more explanation may be needed.
- If the court invokes obviousness (acte clair), a more detailed explanation will usually be necessary, showing why any reasonable court – including other supreme courts and the CJEU itself – would see the issue as beyond doubt.
The CJEU accepts that a supreme court may, in principle, refer to the reasoning of a lower court, provided that this reasoning itself clearly shows which Cilfit exception is being applied and the supreme court makes this adoption visible. It also confirms that courts may dismiss references for purely procedural reasons (for example, if the appeal is inadmissible), as already recognised in Aquino and Consorzio Italian Management, so long as national procedures respect the principles of equivalence and effectiveness.
Relationship with the ECtHR: Baydar and Gondert
The CJEU explicitly compares its approach with the case law of the European Court of Human Rights (ECtHR) on brief reasoning. In Baydar v. the Netherlands and more recently Gondert v. Germany, the ECtHR held that a short statement that there is no need to request a preliminary ruling may satisfy Article 6(1) ECHR, provided the party had an opportunity to present arguments.
The CJEU acknowledges this, but deliberately goes further: while the ECHR does not grant a subjective right to a reference, EU law – given the structural importance of the preliminary ruling procedure – requires a substantively reviewable explanation as to why a Cilfit exception applies. Therefore, it is not enough under EU law for a national court to rely only on considerations of procedural economy or on generic national filter criteria.
Practical impact for national supreme courts
The judgment in C‑767/23 has immediate consequences for supreme and constitutional courts across the EU:
- Documentation burden: Courts now have to record more clearly why they abstain from making a reference and which specific Cilfit category they are applying.
- Revision of templates: Standardised short‑form formulas such as “no question of EU law requiring clarification” will need to be revised to include explicit references to relevance, existing CJEU case law, or obviousness.
- Stronger effective judicial protection: Parties will have better grounds to challenge breaches of Article 267(3) TFEU and, where available, to explore state liability or reopening of proceedings.
In practice, strategic litigation before last‑instance courts can now focus more directly on the duty to provide reasons for not referring – particularly in areas like migration, consumer protection, data protection and State aid, where the judicial dialogue with the CJEU is especially intense.
Assessment and outlook
With C‑767/23, the CJEU tightens the reins on how national courts apply the Cilfit doctrine in day‑to‑day practice. The ruling fits into a broader line of cases, starting from Consorzio Italian Management and KUBERA, that recalibrate the role of last‑instance courts as “gatekeepers” to Luxembourg.
Rather than relying on bare considerations of procedural economy, the CJEU demands a transparent minimum level of reasoning that secures genuine court‑to‑court dialogue and strengthens effective judicial protection under Article 47 of the Charter of Fundamental Rights. Going forward, it will be harder for supreme courts to “silently” dispose of EU‑law issues without openly explaining how they view their room for manoeuvre under the preliminary ruling mechanism.
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