Case C-160/14 Ferreira da Silva and others – a more lenient approach towards the acte clair doctrine?

By Iliya Tsikalov

In its preliminary ruling given on September 9th 2015 pursuant to a reference by the Court of First Instance, Lisbon (Varas Civeis de Lisboa)[1] the Court of Justice of the European Union (CJEU) elaborated on the notion of ”transfer of a business” in light of Directive 2001/23 and in that respect also dwelled on the obligation of the Portuguese Supreme Court to refer the question to the CJEU for a preliminary ruling.

The Court of First Instance, Lisbon (Varas Civeis de Lisboa) referred the question for a preliminary ruling to the CJEU as a result of an action against the Portuguese State brought by the claimants since the  Portuguese Supreme Court deemed the legal issue in question to be sufficiently clear and it decided that there was no need to refer the matter to the CJEU even though it was a court of last instance.[2] In that respect the CJEU deliberated on the acte clair doctrine which in essence is the exeption to the obligation contained in Article 267 (3) TFEU on the condition that the ”correct interpretation of EU law must be so obvious as to leave no scope for any reasonable doubt”.[3]

However, it is up to the national court to decide whether the said interpretation of EU law is beyond reasonable doubt. In addition, until the Ferreira de Silva case the the court also had to make sure that the matter is equally clear in the courts of the other MSs  as already affirmed by the CJEU in the Cilfit doctrine.[4] Of course, this approach would prove in practice rather impossible bearing in mind the different language versions of EU legislation as well as the not so feasible consulting case-law and practice of the courts of the other Member States on the matter.

The Ferreira de Silva case eases in that regard the above-mentioned stringent requirement and notes that the fact that other courts had given contradictory decisions is not decisive in triggering the obligation to refer the question.[5] However, the notion ”transfer of a business” was considered very controversial and has given rise to a great deal of uncertainty not just in Portugal, but also in many other Member States. For this reason, the CJEU decided that the acte clair doctrine does not hold and the court of last instance (Portuguese Supreme Court) was under an obligation to refer a question.[6]

As the CJEU notes in paragraph 43 of its judgment: ”However, so far as the area under consideration in the present case is concerned and as is clear from paragraphs 24 to 27 of this judgment, the question as to how the concept of a ‘transfer of a business’ should be interpreted has given rise to a great deal of uncertainty on the part of many national courts and tribunals which, as a consequence, have found it necessary to make a reference to the Court of Justice. That uncertainty shows not only that there are difficulties of interpretation, but also that there is a risk of divergences in judicial decisions within the European Union. ”[7]

It goes without saying that even though Ferreira de Silva case could be seen as a more lenient approach towards the relaxing of the acte clair doctrine[8] the CJEU will always strive for uniform and correct interpretation of EU law in order to avoid divergences in judicial decisions as well as different and conflicting application of EU law.

By giving guidance on the circumstances in which a national court of last instance is obliged to make a reference to the CJEU with the Ferreira de Silva case one may assert that there is a need to occasionally check the case-law and practice of other courts of the Member States when a given term gives rise to uncertainty which ultimately bears the risk of different interpretation. One way to do this would be using appropriate sources of information like, for instance, legal databases which are pretty resourceful in terms of legislation and case-law of other Member States and other courts respectively. Thus, when several judgments of different courts of various Member States are examined one could draw a certain conclusion concerning a given legal issue and how it was approached by the different courts. Such databases can prove to be valuable solutions since they contain information for various Member States and as such are also ideal for comparative purposes.

[1]    Case C – 160/14, João Filipe Ferreira da Silva e Brito and Others v Estado português, CJEU

[2]    TFEU, Article 267 (3)

[3]    Thomas Weber, ”Shining a light on the acte clair”, Leiden Law Blog

      available at: <>

[4]    ibid

[5]    ibid

[6]    Thomas Weber, ”Shining a light on the acte clair”, Leiden Law Blog

      available at: <>

[7]   Case C – 160/14, João Filipe Ferreira da Silva e Brito and Others v Estado português, CJEU, Paragraph 43

[8]    Elisabeth Ruiz Cairo, ”Joined cases C-72/14 and C-197/14 X and case C-160/14 Ferreira da Silva: is the ECJ reversing its position on the acte clair doctrine?”, European Law Blog       available at: <>

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