Opinion of the Advocate General — ECLI:EU:C:1997:296
Date: 1997-06-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Germany

summary punishment order in the case 
of a foreign worker (for the purposes of 
Articles 48 to 51 of the Treaty on European 
Union) from another Member State of the 
European Union, particularly where this is 
contrary to the custom of the Staatsan­
waltschaft and to the Staatsanwalts own 
usual practice?' 2 
The magistrate further stated in the order for 
reference that he considers himself legally 
bound to sign the application for a punish­
ment order in the form in which that docu­
ment is presented to him by the Public Pros­
ecutor's Office. Accordingly, he is not 
permitted, when endorsing such a document, 
to alter or amplify it. 
Admissibility 
6. Having regard to the subject-matter of the 
question referred, as compared with the 
apparent subject-matter (according to the 
grounds of the order for reference) of the 
main proceedings, the first point to be estab­
lished is the relevance of the question itself 
and, accordingly, the Court's jurisdiction to 
reply. It is all too clear, however, that the 
Public Prosecutor's omission of the courtesy 
title 'Herr ' when referring to the defendant 
in the application for a punishment order is 
not a fact capable of materially affecting the 
outcome of the proceedings initiated against 
that person. 
This is not the first time this problem has 
arisen. On more than one occasion, the 
Court has been asked to give a preliminary 
ruling on questions of doubtful relevance to 
the merits of the case pending before the 
national court. 
7. The Court can now be said to have con­
solidated its position in this regard. 3 Whilst 
respecting the division of jurisdiction 
between the national courts and the Com-
2 — In fact, according to the police report on the defendants' 
alleged misdeeds, it appears that, at the material time at least, 
Mr Grado was unemployed. However, the documents before 
the Court do not contain sufficient information to support 
any disagreement with the magistrate's findings of fact- It is 
obvious, however, that the order for reference is in any event 
intended to refer solely to the alleged discrimination against 
Mr Grado, who is of Italian nationality, while it cannot con­
cern the position of Mr Bashir, the other defendant, since he 
is not a national of a Member State. 
3 — For a more or less exhaustive summary of the case-law on 
this point, see Case C-343/90 Lourenço Dias [1992] ECR 
1-4673, paragraphs 13 to 20. 
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GRADO A N D BASHIR 
munity judicature, which underpins the pre­
liminary ruling mechanism, and without 
impliedly contravening the principle laid 
down in the first judgments to address this 
subject — namely that it is for the national 
court to determine the need for a prelimi­
nary ruling from the Court in order to 
enable it to give judgment in the case pend­
ing before i t 4 — the Court has not hesitated 
to declare that it has no jurisdiction to rule 
on questions which, in its view, manifestly 
bear no relation to the facts of the main 
action or to its purpose. 5 
8. That approach should be fully supported, 
not only because it is vindicated by the 
wording of Article 177 of the Treaty,6 but 
also because it enables the preliminary ruling 
procedure to be retained within the frame­
work necessary for its proper operation, and 
ensuring that it is not employed in a manner 
which commentators have unhesitatingly 
categorized as 'misuse'. 7 
Moreover, it is obviously the correct 
approach to adopt in the present case. As 
indicated above, regardless of whether the 
practice followed by the Tübingen Public 
Prosecutor's Office of omitting (according to 
the order for reference) the courtesy title 
'Herr ' when referring to foreign defendants 
gives rise to any apparent discrimination 
against such persons, it has no bearing at all 
on the subject-matter of the main proceed­
ings in which, as I recall, the magistrate was 
asked to issue a punishment order in respect 
of the defendant who was accused of having 
committed a criminal offence. 
9. I therefore p ropose that the C o u r t declare that it has n o jurisdiction to answer 
the quest ion referred b y the Amtsgericht Reutl ingen, since the interpretat ion of 
C o m m u n i t y law sought manifestly bears no relation to the facts of the main action 
or to its purpose . 
4 — For example Case 83/78 Pigs Marketing Board [1978] 
ECR 2347. 
5 — There are numerous examples. Rather than going back to the 
two Foglia v Novello judgments (Casc 104/79 [1980] ECR 
745 and Case 244/80 [1981] ECR 3045) which, although they 
exhaustively re-trace the reasoning behind the case-law in 
question, are very much a reflection of the specific context in 
which they were delivered, I would instead refer to the order 
of 26 January 1990 in Case C-286/88 falciola [1990] ECR 
1-191 and, similarly, the order of 16 May 1994 in Case 
C-428/93 Monin II [1994] ECR 1-1707, in which the Court 
declined jurisdiction. The principle is illustrated, however, by 
many other judgments: see, for example, Case 126/80 Salonia 
[1981] ECR 1563, Case C-186/90 Durighello [1991] ECR 
1-5773 and Case C-368/89 Crispoltoni [1991] ECR 1-3695. 
6 — I would emphasize {repetita iuvant) the wording of the sec­
ond paragraph: '[w]here such a question is raised before any 
court or tribunal of a Member State, that court or tribunal 
may, if it considers that a decision on the question is necessary 
to enable it to give judgment, request the Court of Justice to 
give a ruling thereon' (emphasis added). 
7 — For a representative view, see Pescatore, ' I l Rinvio Pregiudi­
ziale di cui all'Art. 177 del Trattato CEE e la Coopcrazione 
tra la Corte e i Giudici Nazionali', in / / Foro Italiano, 1986, 
Part V, p. 26 et seq. 
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