Opinion of the Advocate General — ECLI:EU:C:2008:294
Date: 2008-05-22
Language of the case: Hungarian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary of the Judgment 1. Preliminary rulings – Reference to the Court – National court or tribunal for the purposes of Article 234 EC – Definition (Art. 234 EC) 2. Preliminary rulings – Admissibility – Limits (Art. 234 EC) 3. Preliminary rulings – Reference to the Court – Obligation to refer (Art. 234, third para., EC) 4. Preliminary rulings – Reference to the Court – Jurisdiction of the national courts (Art. 234 EC) 5. Freedom of movement for persons – Freedom of establishment (Arts 43 EC and 48 EC) 1. A court hearing an appeal against a decision of a lower court, responsible for maintaining the commercial register, rejecting an application for amendment of information entered in that register, must be classified as a court or tribunal which is entitled to make a reference for a preliminary ruling under Article 234 EC, regardless of the fact that neither the decision of the lower court nor the consideration of the appeal by the referring court takes place in the context of inter partes proceedings. Where a court responsible for maintaining a register makes an administrative decision without being required to resolve a legal dispute, it cannot be regarded as exercising a judicial function. In contrast, a court hearing an appeal which has been brought against a decision of a lower court responsible for maintaining a register, rejecting such an application, and which seeks the setting aside of that decision, which allegedly adversely affects the rights of the applicant, is called upon to give judgment in a dispute and is exercising a judicial function. Accordingly, in such a case, the appellate court must, in principle, be regarded as a court or tribunal within the meaning of Article 234 EC, with jurisdiction to refer a question to the Court for a preliminary ruling (see paras 57‑59, 63, operative part 1) 2. There is a presumption of relevance in favour of questions on the interpretation of Community law referred by a national court, and it is a matter for the national court to define, and not for the Court to verify, in which factual and legislative context they operate. The Court declines to rule on a reference for a preliminary ruling from a national court only where it is quite obvious that the interpretation of Community law that is sought is unrelated to the actual facts of the main action or to its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. The presumption of relevance is not rebutted by the fact that, in the case of a reference for a preliminary ruling on the question whether a court is to be classified as a court or tribunal against whose decisions there is no judicial remedy under national law, within the meaning of the third paragraph of Article 234 EC, the court has already submitted its reference to the Court. It would be contrary to the spirit of cooperation which must guide all relations between national courts and the Court of Justice, and contrary also to the requirements of procedural economy, to require a national court first to seek a preliminary ruling on the sole question whether that court is one of those referred to in the third paragraph of Article 234 EC, before, where appropriate, having to formulate – not until then and by a second reference for a preliminary ruling – questions concerning the provisions of Community law relating to the substance of the dispute before it. Nor is that presumption of relevance rebutted where uncertainty exists as to whether the dispute is hypothetical. Such uncertainty exists where the evidence at the Court’s disposal for the purpose of ruling on the possible incompatibility with Article 234 EC of a national rule governing appeals against a decision making a reference to the Court does not permit it to be found that that decision was not and can no longer be appealed against and now accordingly has the authority of res judicata, in which case the question of that incompatibility would in fact be hypothetical. (see paras 67, 70, 73, 83‑86) 3. A court whose decisions in disputes may be appealed on points of law, cannot be classified as a court or tribunal against whose decisions there is no judicial remedy under national law, within the meaning of the third paragraph of Article 234 EC, even though the procedural system under which the dispute is to be decided imposes restrictions with regard to the nature of the pleas which may be raised before such a court which must allege a breach of law. Such restrictions, just as the lack of suspensory effect of the appeal on a point of law, do not have the effect of depriving the parties in a case before a court whose decisions are amenable to such an appeal on a point of law of the possibility of exercising effectively their right to appeal the decision handed down by that court in a dispute. Those restrictions or that lack of suspensory effect do not mean therefore that that court must be classified as a court handing down a decision against which there is no judicial remedy. (see paras 77-79, operative part 2) 4. Where rules of national law apply relating to the right of appeal against an order for reference, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, the second paragraph of Article 234 EC is to be interpreted as meaning that the jurisdiction conferred on any national court or tribunal by that provision of the Treaty to make a reference to the Court for a preliminary ruling cannot be called into question by the application of those rules where they permit the appellate court to vary the order for reference, to set aside the reference and to order the referring court to resume the domestic law proceedings. Although Article 234 EC does not preclude a decision of a court making a reference to the Court from remaining subject to the remedies normally available under national law, nevertheless the outcome of such an appeal cannot limit the jurisdiction conferred by Article 234 EC on that court to make a reference to the Court if it considers that a case pending before it raises questions on the interpretation of provisions of Community law necessitating a ruling by the Court. In a situation where a case is pending, for the second time, before a court sitting at the first instance after a judgment originally delivered by that court has been quashed by a supreme court, the court at first instance remains free to refer questions to the Court pursuant to Article 234 EC, regardless of the existence of a rule of national law whereby a court is bound on points of law by the rulings of a superior court. Where rules of national law apply which relate to the right of appeal against a decision making a reference for a preliminary ruling, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, the autonomous jurisdiction which Article 234 EC confers on the referring court to make a reference to the Court would be called into question, if – by varying the order for reference, by setting it aside and by ordering the referring court to resume the proceedings – the appellate court could prevent the referring court from exercising the right, conferred on it by the EC Treaty, to make a reference to the Court. In accordance with Article 234 EC, the assessment of the relevance and necessity of the question referred for a preliminary ruling is, in principle, the responsibility of the referring court alone, subject to the limited verification made by the Court. Thus, it is for the referring court to draw the proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it. It follows that, in a situation where an appeal may be brought against the decision by the referring court to make an order for reference, the Court must – also in the interests of clarity and legal certainty – abide by the decision to make a reference for a preliminary ruling, which must have its full effect so long as it has not been revoked or amended by the referring court, such revocation or amendment being matters on which that court alone is able to take a decision. (see paras 93-98, operative part 3) 5. As Community law now stands, Articles 43 EC and 48 EC are to be interpreted as not precluding legislation of a Member State under which a company incorporated under the law of that Member State may not transfer its seat to another Member State whilst retaining its status as a company governed by the law of the Member State of incorporation. In accordance with Article 48 EC, in the absence of a uniform Community law definition of the companies which may enjoy the right of establishment on the basis of a single connecting factor determining the national law applicable to a company, the question whether Article 43 EC applies to a company which seeks to rely on the fundamental freedom enshrined in that article – like the question whether a natural person is a national of a Member State, and hence entitled to enjoy that freedom – is a preliminary matter which, as Community law now stands, can only be resolved by the applicable national law. In consequence, the question whether the company is faced with a restriction on the freedom of establishment, within the meaning of Article 43 EC, can arise only if it has been established, in the light of the conditions laid down in Article 48 EC, that the company actually has a right to that freedom. Thus a Member State has the power to define both the connecting factor required of a company if it is to be regarded as incorporated under the law of that Member State and, as such, capable of enjoying the right of establishment, and that required if the company is to be able subsequently to maintain that status. That power includes the possibility for that Member State not to permit a company governed by its law to retain that status if the company intends to reorganise itself in another Member State by moving its seat to the territory of the latter, thereby breaking the connecting factor required under the national law of the Member State of incorporation. Moreover, the legislation and agreements in the field of company law envisaged in Articles 44(2)(g) EC and 293 EC have not as yet addressed the differences between the legislation of the various Member States concerning the place of connection of the companies and thus have not yet brought an end to them. Although certain regulations, such as Regulation No 2137/85 on the European Economic Interest Grouping, Regulation No 2157/2001 on the Statute for a European company and Regulation No 1435/2003 on the Statute for a European Cooperative Society, adopted on the basis of Article 308 EC, in fact lay down a set of rules under which it is possible for the new legal entities which they establish to transfer their registered office (siège statutaire) and, accordingly, also their real seat (siège réel) – both of which must, in effect, be situated in the same Member State – to another Member State without it being compulsory to wind up the original legal person or to create a new legal person, such a transfer nevertheless necessarily entails a change as regards the national law applicable to the entity making such a transfer. Where the company merely wishes to transfer its real seat from one Member State to another, while remaining a company governed by national law, hence without any change as to the national law applicable, the application mutatis mutandis of those regulations cannot in any event lead to the predicted result in such circumstances. (see paras 109-110, 114-115, 117, 119, operative part 4)