Judgment of the Court of 16 December 1981. - Pasquale Foglia v Mariella Novello. - Reference for a preliminary ruling: Pretura di Bra - Italy. - Tax arrangements applying to liqueur wines. - Case 244/80.



European Court reports 1981 Page 03045

Swedish special edition Page 00243

Finnish special edition Page 00251

Spanish special edition Page 00819



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . PRELIMINARY QUESTIONS - JURISDICTION OF NATIONAL COURT - ASSESSMENT OF NEED TO OBTAIN AN ANSWER - EXCLUSIVE APPLICATION OF COMMUNITY LAW

( EEC TREATY , ART . 177 )

2 . PRELIMINARY QUESTIONS - JURISDICTION OF COURT OF JUSTICE - LIMITS - QUESTIONS SUBMITTED WITHIN THE FRAMEWORK OF PROCEDURAL DEVICES ARRANGED BY THE PARTIES - EXAMINATION BY THE COURT OF JUSTICE OF ITS OWN JURISDICTION

( EEC TREATY , ART . 177 )

3 . MEMBER STATES - APPLICATION OF COMMUNITY LAW BY A NATIONAL COURT - ACTION RELATING TO COMPATIBILITY OF COMMUNITY LAW WITH THE LEGISLATION OF ANOTHER MEMBER STATE - POSSIBILITY OF TAKING PROCEEDINGS AGAINST THE MEMBER STATE CONCERNED - APPRAISAL ON BASIS OF THE LAWS OF THE STATE IN WHICH THE COURT IS SITUATED AND OF INTERNATIONAL LAW

4 . PRELIMINARY QUESTIONS - JURISDICTION OF THE COURT OF JUSTICE - QUESTION DESIGNED TO ALLOW THE NATIONAL COURT TO DETERMINE WHETHER LEGISLATIVE PROVISIONS OF ANOTHER MEMBER STATE ARE IN ACCORDANCE WITH COMMUNITY LAW - PARTIES TO THE NATIONAL PROCEEDINGS - SPECIAL CARE TO BE TAKEN BY THE COURT OF JUSTICE

( EEC TREATY , ART . 177 )

5 . PRELIMINARY QUESTIONS - JURISDICTION OF THE COURT OF JUSTICE - CONDITIONS FOR EXERCISE - NATURE AND OBJECTIVE OF PROCEEDINGS BEFORE NATIONAL COURTS - NO EFFECT

( EEC TREATY , ART . 177 )

Summary

1 . ACCORDING TO THE INTENDED ROLE OF ARTICLE 177 OF THE EEC TREATY IT IS FOR THE NATIONAL COURT - BY REASON OF THE FACT THAT IT IS SEIZED OF THE SUBSTANCE OF THE DISPUTE AND THAT IT MUST BEAR THE RESPONSIBILITY FOR THE DECISION TO BE TAKEN - TO ASSESS , HAVING REGARD TO THE FACTS OF THE CASE , THE NEED TO OBTAIN A PRELIMINARY RULING TO ENABLE IT TO GIVE JUDGMENT . IN EXERCISING THAT POWER OF APPRAISAL THE NATIONAL COURT , IN COLLABORATION WITH THE COURT OF JUSTICE , FULFILS A DUTY ENTRUSTED TO THEM BOTH OF ENSURING THAT IN THE INTERPRETATION AND APPLICATION OF THE TREATY THE LAW IS OBSERVED . ACCORDINGLY THE PROBLEMS WHICH MAY BE ENTAILED IN THE EXERCISE OF ITS POWER OF APPRAISAL BY THE NATIONAL COURT AND THE RELATIONS WHICH IT MAINTAINS WITHIN THE FRAMEWORK OF ARTICLE 177 WITH THE COURT OF JUSTICE ARE GOVERNED EXCLUSIVELY BY THE PROVISIONS OF COMMUNITY LAW .

2 . THE DUTY ASSIGNED TO THE COURT BY ARTICLE 177 IS NOT THAT OF DELIVERING ADVISORY OPINIONS ON GENERAL OR HYPOTHETICAL QUESTIONS BUT OF ASSISTING IN THE ADMINISTRATION OF JUSTICE IN THE MEMBER STATES . IT ACCORDINGLY DOES NOT HAVE JURISDICTION TO REPLY TO QUESTIONS OF INTERPRETATION WHICH ARE SUBMITTED TO IT WITHIN THE FRAMEWORK OF PROCEDURAL DEVICES ARRANGED BY THE PARTIES IN ORDER TO INDUCE THE COURT TO GIVE ITS VIEWS ON CERTAIN PROBLEMS OF COMMUNITY LAW WHICH DO NOT CORRESPOND TO AN OBJECTIVE REQUIRE- MENT INHERENT IN THE RESOLUTION OF A DISPUTE . A DECLARATION BY THE COURT THAT IT HAS NO JURISDICTION IN SUCH CIRCUMSTANCES DOES NOT IN ANY WAY TRESPASS UPON THE PREROGATIVES OF THE NATIONAL COURT BUT MAKES IT POSSIBLE TO PREVENT THE APPLICATION OF THE PROCEDURE UNDER ARTICLE 177 FOR PURPOSES OTHER THAN THOSE APPROPRIATE FOR IT .

FURTHERMORE , WHILST THE COURT OF JUSTICE MUST BE ABLE TO PLACE AS MUCH RELIANCE AS POSSIBLE UPON THE ASSESSMENT BY THE NATIONAL COURT OF THE EXTENT TO WHICH THE QUESTIONS SUBMITTED ARE ESSENTIAL , IT MUST BE IN A POSITION TO MAKE ANY ASSESSMENT INHERENT IN THE PERFORMANCE OF ITS OWN DUTIES , IN PARTICULAR IN ORDER TO CHECK , AS ALL COURTS MUST , WHETHER IT HAS JURISDICTION .

3 . IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW , THE POSSIBILITY OF TAKING PROCEEDINGS BEFORE A NATIONAL COURT AGAINST A MEMBER STATE OTHER THAN THAT IN WHICH THAT COURT IS SITUATED , WHOSE LEGISLATION IS THE SUB- JECT OF A DISAGREEMENT AS TO WHETHER IT IS COMPATIBLE WITH COMMUNITY LAW , DEPENDS ON THE PROCEDURAL LAW OF THE STATE IN WHICH THE COURT IS SITUATED AND ON THE PRINCIPLES OF INTERNATIONAL LAW .

4 . IN THE CASE OF PRELIMINARY QUESTIONS INTENDED TO PERMIT THE NATIONAL COURT TO DETERMINE WHETHER PROVISIONS LAID DOWN BY LAW OR REGULATION IN ANOTHER MEMBER STATE ARE IN ACCORDANCE WITH COMMUNITY LAW THE DEGREE OF LEGAL PROTECTION MAY NOT DIFFER ACCORDING TO WHETHER SUCH QUESTIONS ARE RAISED IN PROCEEDINGS BETWEEN INDIVIDUALS OR IN AN ACTION TO WHICH THE STATE WHOSE LEGISLATION IS CALLED IN QUESTION IS A PARTY , BUT IN THE FIRST CASE THE COURT OF JUSTICE MUST TAKE SPECIAL CARE TO ENSURE THAT THE PROCEDURE UNDER ARTICLE 177 OF THE EEC TREATY IS NOT EMPLOYED FOR PURPOSES WHICH WERE NOT INTENDED BY THE TREATY .

5 . THE CONDITIONS IN WHICH THE COURT OF JUSTICE PERFORMS ITS DUTIES UNDER ARTICLE 177 OF THE EEC TREATY ARE INDEPENDENT OF THE NATURE AND OBJECTIVE OF PROCEEDINGS BROUGHT BEFORE THE NATIONAL COURTS . ARTICLE 177 REFERS TO THE ' ' JUDGMENT ' ' TO BE GIVEN BY THE NATIONAL COURT WITHOUT LAYING DOWN SPECIAL RULES AS TO WHETHER OR NOT SUCH JUDGMENTS ARE OF A DECLARATORY NATURE .

Parties

IN CASE 244/80

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETURA ( DISTRICT COURT ), BRA , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

PASQUALE FOGLIA , SANTA VITTORIA D ' ALBA ,

AND

MARIELLA NOVELLO , MAGLIANO ALFIERI ,

Subject of the case

ON THE INTERPRETATION OF ARTICLES 177 AND 95 OF THE EEC TREATY ,

Grounds

1 BY AN ORDER OF 18 OCTOBER 1980 WHICH WAS RECEIVED AT THE COURT ON 5 NOVEMBER 1980 THE PRETORE ( DISTRICT MAGISTRATE ), BRA , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FIVE QUESTIONS AS TO THE INTERPRETATION OF ARTICLES 177 AND 95 OF THE TREATY .

2 THAT ORDER WAS MADE WITHIN THE FRAMEWORK OF A CASE PENDING BEFORE THE PRETORE WHICH HAS ALREADY GIVEN RISE TO A FIRST SERIES OF PRELIMINARY QUESTIONS AS TO THE INTERPRETATION OF ARTICLES 92 AND 95 OF THE TREATY AND WHICH FORMED THE SUBJECT-MATTER OF A JUDGMENT OF THE COURT DATED 11 MARCH 1980 ( CASE 104/79 FOGLIA V NOVELLO ( 1980 ) ECR 745 ).

3 IT SHOULD BE RECALLED THAT THE MAIN ACTION CONCERNS THE COSTS INCURRED BY THE PLAINTIFF , MR FOGLIA , A WINE DEALER HAVING HIS PLACE OF BUSINESS AT SANTA VITTORIA D ' ALBA , IN THE PROVINCE OF CUNEO , PIEDMONT , ITALY , IN THE DISPATCH , ON THE INSTRUCTIONS OF THE DEFENDANT , MRS NOVELLO , TO A CONSIGNEE IN MENTON , FRANCE , OF SOME CASES OF ITALIAN LIQUEUR WINE BOUGHT BY THE DEFENDANT .

4 THE FILE ON THE CASE SHOWS THAT THE CONTRACT OF SALE BETWEEN FOGLIA AND NOVELLO STIPULATED THAT NOVELLO SHOULD NOT BE LIABLE FOR ANY DUTIES WHICH WERE CLAIMED BY THE ITALIAN OR FRENCH AUTHORITIES CONTRARY TO THE PROVISIONS ON THE FREE MOVEMENT OF GOODS BETWEEN THE TWO COUNTRIES OR WHICH WERE AT LEAST NOT DUE . FOGLIA ADOPTED A SIMILAR CLAUSE IN HIS CONTRACT WITH THE DANZAS UNDERTAKING TO WHICH HE ENTRUSTED THE TRANSPORT OF THE CASES OF LIQUEUR WINE TO MENTON ; THAT CLAUSE PROVIDED THAT FOGLIA SHOULD NOT BE LIABLE FOR SUCH UNLAWFUL CHARGES OR CHARGES WHICH WERE NOT DUE .

5 THE FIRST ORDER MAKING THE REFERENCE WHICH LED TO THE ABOVE-MENTIONED JUDGMENT OF 11 MARCH 1980 , FOUND THAT THE SUBJECT-MATTER OF THE DISPUTE WAS RESTRICTED EXCLUSIVELY TO THE SUM PAID AS A CONSUMPTION TAX WHEN THE LIQUEUR WINES WERE IMPORTED INTO FRENCH TERRITORY . THE FILE ESTABLISHED THAT THAT TAX WAS PAID BY DANZAS TO THE FRENCH AUTHORITIES , WITHOUT PROTEST OR COMPLAINT ; THAT THE BILL FOR TRANSPORT WHICH DANZAS SUBMITTED TO FOGLIA INCLUDED THE AMOUNT OF THAT TAX AND WAS PAID IN FULL BY THE LATTER ALTHOUGH CONTRARY TO THE CLAUSE EXPRESSLY STIPULATED WITH REGARD TO ' ' UNLAWFUL CHARGES OR CHARGES WHICH WERE NOT DUE ' ' AND THAT MRS NOVELLO REFUSED TO REIMBURSE THE LATTER AMOUNT TO FOGLIA IN RELIANCE ON THE IDENTICAL STIPULATION IN HER CONTRACT .

6 THE PRETORE TOOK THE VIEW THAT THE DEFENCES ADVANCED BY NOVELLO ENTAILED CALLING IN QUESTION THE VALIDITY OF FRENCH LEGISLATION CONCERNING THE CONSUMPTION TAX ON LIQUEUR WINES IN RELATION TO THE EEC TREATY , AND SUBMITTED TO THE COURT A SERIES OF QUESTIONS ON THE INTERPRETATION OF ARTICLE 95 AND , IN THE ALTERNATIVE , OF ARTICLE 92 .

7 IN ITS ABOVE-MENTIONED JUDGMENT OF 11 MARCH 1980 THE COURT RULED THAT IT HAD NO JURISDICTION TO GIVE A RULING ON THE QUESTIONS SUBMITTED BY THE NATIONAL COURT . IN ITS JUDGMENT IT STATED THAT :

' ' THE DUTY OF THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY IS TO SUPPLY ALL COURTS IN THE COMMUNITY WITH THE INFORMATION ON THE INTERPRETATION OF COMMUNITY LAW WHICH IS NECESSARY TO ENABLE THEM TO SETTLE GENUINE DISPUTES WHICH ARE BROUGHT BEFORE THEM . A SITUATION IN WHICH THE COURT WAS OBLIGED BY THE EXPEDIENT OF ARRANGEMENTS LIKE THOSE DESCRIBED ABOVE TO GIVE RULINGS WOULD JEOPARDIZE THE WHOLE SYSTEM OF LEGAL REMEDIES AVAILABLE TO PRIVATE INDIVIDUALS TO ENABLE THEM TO PROTECT THEMSELVES AGAINST TAX PROVISIONS WHICH ARE CONTRARY TO THE TREATY . ' '

8 THE ORDER MAKING THE REFERENCE SHOWS THAT THE JUDGMENT OF THE COURT OF JUSTICE WAS CHALLENGED BY THE DEFENDANT IN THE MAIN ACTION WHO CONSIDERED THAT IN MAKING SUCH AN APPRAISAL THE COURT HAD INTERVENED IN THE DISCRETION RESERVED TO THE ITALIAN COURT . SHE CONSIDERED THAT SUCH AN APPLICATION OF ARTICLE 177 BY THE COURT GAVE RISE AT NATIONAL LEVEL TO A QUESTION OF A CONSTITUTIONAL NATURE . IN THE ALTERNATIVE SHE SUBMITTED A QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 177 OF THE EEC TREATY AND FURTHER REQUESTED THAT THE FRENCH REPUBLIC SHOULD BE JOINED IN THE PROCEEDINGS .

9 WHEN THESE CLAIMS WERE SUBMITTED TO HIM THE PRETORE CONSIDERED THAT IT WAS NECESSARY TO REFER THE MATTER AGAIN TO THE COURT OF JUSTICE AND TO SUBMIT TO IT CERTAIN QUESTIONS ON THE INTERPRETATION OF ARTICLE 177 OF THE TREATY IN ORDER TO OBTAIN A CLEARER AND MORE PRECISE APPRAISAL OF THE SCOPE AND MEANING OF THE JUDGMENT OF 11 MARCH 1980 .

10 SINCE THE PRETORE CONSIDERED THAT A MISUNDERSTANDING MIGHT HAVE ARISEN FROM THE WORDING OF HIS FIRST ORDER HE LAID PARTICULAR EMPHASIS ON A FACTOR WHICH , ACCORDING TO HIM , WAS NOT MADE CLEAR IN THE ORDER . THE DEFENDANT , FROM THE FIRST HEARING AT WHICH SHE APPEARED , IN FACT REFUSED TO RESTRICT HER CASE TO THE MERE REJECTION OF THE PLAINTIFF ' S APPLICATION . THROUGH A PROCEDURE WHICH IS BY NO MEANS UNCOMMON IN THE ITALIAN LEGAL SYSTEM SHE SUBMITTED ' ' A CLAIM , WHICH IS TO A CERTAIN DEGREE INDEPENDENT , FOR A DECLARATORY JUDGMENT IN RELATION TO THE PARTICULAR LEGAL SITUATION IN THAT CASE AND IN GENERAL ' ' .

11 FOR THESE REASONS THE PRETORE , BRA , DECIDED TO REFER THE MATTER AGAIN TO THE COURT AND SUBMITTED THE FOLLOWING QUESTIONS :

' ' 1 . WHAT INTERPRETATION MUST BE PLACED UPON ARTICLE 177 OF THE EEC TREATY WITH REGARD TO THE POWER OF APPRAISAL OF THE COURT OF JUSTICE IN RELATION TO THE WORDING OF REQUESTS FOR INTERPRETATIVE RULINGS SUBMITTED TO IT AND IN PARTICULAR IN RELATION TO THEIR FUNCTION IN THE CONTEXT OF THE MAIN ACTION? MORE PARTICULARLY , WHAT ARE THE RESPECTIVE POWERS OF THE COURT OF JUSTICE AND OF THE COURTS WHICH REFER QUESTIONS FOR A PRELIMINARY RULING , HAVING REGARD ABOVE ALL TO THE POWERS POSSESSED BY THE LATTER UNDER THEIR VARIOUS NATIONAL LEGAL SYSTEMS , IN RELATION TO THE EVALUATION OF ALL THE MATTERS OF FACT AND OF LAW RELEVANT TO THE DISPUTES AS TO THE SUBSTANCE AND OF THE QUESTIONS RAISED THEREIN , ABOVE ALL WHEN THE CLAIM IN THE MAIN ACTION IS FOR A DECLARATORY JUDGMENT?

2.IF THE COURT OF JUSTICE IN CONNECTION WITH A REFERENCE FOR A PRELIMINARY RULING DECLARES FOR ANY REASON WHATEVER THAT IT DOES NOT HAVE JURISDICTION TO GIVE A RULING ON THE QUESTIONS SUBMITTED TO IT , MAY THE COURT REFERRING THE QUESTIONS , WHICH IS BOUND UNDER ITS OWN NATIONAL LEGAL SYSTEM TO ADMINISTER JUSTICE TO THE PARTIES , ALSO UNDERTAKE THE INTERPRETATION OF COMMUNITY LAW , AND IF SO WITHIN WHAT LIMITS AND ACCORDING TO WHAT CRITERIA , OR MUST IT INSTEAD GIVE A RULING EXCLUSIVELY IN TERMS OF NATIONAL LAW?

3.WITHIN THE FRAMEWORK OF THE CRITERIA FOR INTERPRETATION OF ARTICLE 177 OF THE EEC TREATY IS THERE WITHIN THE LEGAL ORDER OF THE COMMUNITY A GENERAL PRINCIPLE WHICH REQUIRES OR PERMITS THE NATIONAL COURTS BEFORE WHICH PROCEEDINGS ARE INSTITUTED WHEREIN QUESTIONS OF INTERPRETATION OF COMMUNITY LAW ARISE ALSO INVOLVING NATIONAL PROVISIONS , WHICH MAY PERTAIN TO LEGAL SYSTEMS OTHER THAN THAT OF THE COURT IN QUESTION , TO ORDER THE JOINDER IN THE PROCEEDINGS OF THE AUTHORITIES OF THE MEMBER STATE CONCERNED BEFORE SUBMITTING A REFERENCE FOR A PRELIMINARY RULING TO THE COURT OF JUSTICE?

4.AT ALL EVENTS , WHEREVER A QUESTION OF INTERPRETATION IS RAISED BEFORE OR BY THE NATIONAL COURTS IN PROCEEDINGS BETWEEN PRIVATE PERSONS WHICH DIRECTLY CONCERNS THE INDIVIDUAL RIGHTS OF NATIONALS OR TRADERS OF ONE OF THE MEMBER STATES , DO SUCH INDIVIDUAL RIGHTS UNDER SUBSTANTIVE COMMUNITY LAW OBTAIN A DEGREE OF PROTECTION WHICH IS DIFFERENT FROM AND AT ALL EVENTS LESS THAN THAT WHICH THE SAME INDIVIDUAL RIGHTS MIGHT OBTAIN IF THE ADMINISTRATIONS OF THE MEMBER STATES WHOSE LAWS FORM THE SUBJECT-MATTER OF THE REQUESTS FOR INTERPRETATION IN RELATION TO THEIR COMPATIBILITY WHICH THE EEC TREATY WERE REPRESENTED AND ENTERED AN APPEARANCE BEFORE EITHER THE NATIONAL COURT OR THE COURT OF JUSTICE?

5.MUST ARTICLE 95 OF THE EEC TREATY BE INTERPRETED AS MEANING THAT THE PROHIBITION OF THE IMPOSITION OF INTERNAL TAXATION , DIFFERENTIATED ACCORDING TO THE ORIGIN AND PROVENANCE OF A PRODUCT , ENCOMPASSES SITUATIONS SUCH AS THAT OF THE FRENCH PROVISIONS ON THE TAXATION OF LIQUEUR WINES WHICH ARE DESCRIBED IN DETAIL IN CASE 104/79?

' '

THE FIRST , THIRD AND FOURTH QUESTIONS

12 IN HIS FIRST QUESTION THE PRETORE REQUESTED CLARIFICATION OF THE LIMITS OF THE POWER OF APPRAISAL RESERVED BY THE TREATY TO THE NATIONAL COURT ON THE ONE HAND AND THE COURT OF JUSTICE ON THE OTHER WITH REGARD TO THE WORDING OF REFERENCES FOR A PRELIMINARY RULING AND OF THE APPRAISAL OF THE CIRCUMSTANCES OF FACT AND OF LAW IN THE MAIN ACTION , IN PARTICULAR WHERE THE NATIONAL COURT IS REQUESTED TO GIVE A DECLARATORY JUDGMENT .

13 THE THIRD AND FOURTH QUESTIONS CONCERN MORE PARTICULARLY THE CASE IN WHICH QUESTIONS OF INTERPRETATION ARE SUBMITTED IN ORDER TO PERMIT THE COURT TO RESOLVE DISPUTES CONCERNING THE COMPATIBILITY WITH COMMUNITY LAW OF NATIONAL LEGISLATION ENACTED EITHER BY THE STATE IN WHICH THE COURT IS SITUATED OR , AS IN THIS CASE , BY ANOTHER MEMBER STATE . IN THAT CONNECTION THE QUESTION IS RAISED

- WHETHER , WHERE THE LEGISLATION OF ONE MEMBER STATE IS CALLED IN QUESTION BEFORE THE COURTS OF ANOTHER MEMBER STATE , THERE IS WITHIN THE COMMUNITY LEGAL ORDER A GENERAL PRINCIPLE WHICH REQUIRES OR PERMITS THE COURT BEFORE WHICH SUCH A DISPUTE IS BROUGHT TO ORDER THE JOINDER IN THE PROCEEDINGS OF THE AUTHORITIES OF THE MEMBER STATE CONCERNED BEFORE SUBMITTING A REFERENCE FOR A PRELIMINARY RULING TO THE COURT OF JUSTICE ;

- WHETHER THE DEGREE OF PROTECTION FOR INDIVIDUALS IN PROCEEDINGS UNDER ARTICLE 177 DIFFERS DEPENDING ON WHETHER THAT ISSUE IS RAISED WITHIN THE FRAMEWORK OF PROCEEDINGS BETWEEN PRIVATE PERSONS OR IN PROCEEDINGS TO WHICH THE ADMINISTRATION OF THE STATE WHOSE LEGISLATION IS CALLED IN QUESTION IS A PARTY .

14 WITH REGARD TO THE FIRST QUESTION IT SHOULD BE RECALLED , AS THE COURT HAS HAD OCCASION TO EMPHASIZE IN VERY VARIED CONTEXTS , THAT ARTICLE 177 IS BASED ON COOPERATION WHICH ENTAILS A DIVISION OF DUTIES BETWEEN THE NATIONAL COURTS AND THE COURT OF JUSTICE IN THE INTEREST OF THE PROPER APPLICATION AND UNIFORM INTERPRETATION OF COMMUNITY LAW THROUGHOUT ALL THE MEMBER STATES .

15 WITH THIS IN VIEW IT IS FOR THE NATIONAL COURT - BY REASON OF THE FACT THAT IT IS SEIZED OF THE SUBSTANCE OF THE DISPUTE AND THAT IT MUST BEAR THE RESPONSIBILITY FOR THE DECISION TO BE TAKEN - TO ASSESS , HAVING REGARD TO THE FACTS OF THE CASE , THE NEED TO OBTAIN A PRELIMINARY RULING TO ENABLE IT TO GIVE JUDGMENT .

16 IN EXERCISING THAT POWER OF APPRAISAL THE NATIONAL COURT , IN COLLABORATION WITH THE COURT OF JUSTICE , FULFILS A DUTY ENTRUSTED TO THEM BOTH OF ENSURING THAT IN THE INTERPRETATION AND APPLICATION OF THE TREATY THE LAW IS OBSERVED . ACCORDINGLY THE PROBLEMS WHICH MAY BE ENTAILED IN THE EXERCISE OF ITS POWER OF APPRAISAL BY THE NATIONAL COURT AND THE RELATIONS WHICH IT MAINTAINS WITHIN THE FRAMEWORK OF ARTICLE 177 WITH THE COURT OF JUSTICE ARE GOVERNED EXCLUSIVELY BY THE PROVISIONS OF COMMUNITY LAW .

17 IN ORDER THAT THE COURT OF JUSTICE MAY PERFORM ITS TASK IN ACCORDANCE WITH THE TREATY IT IS ESSENTIAL FOR NATIONAL COURTS TO EXPLAIN , WHEN THE REASONS DO NOT EMERGE BEYOND ANY DOUBT FROM THE FILE , WHY THEY CONSIDER THAT A REPLY TO THEIR QUESTIONS IS NECESSARY TO ENABLE THEM TO GIVE JUDGMENT .

18 IT MUST IN FACT BE EMPHASIZED THAT THE DUTY ASSIGNED TO THE COURT BY ARTICLE 177 IS NOT THAT OF DELIVERING ADVISORY OPINIONS ON GENERAL OR HYPOTHETICAL QUESTIONS BUT OF ASSISTING IN THE ADMINISTRATION OF JUSTICE IN THE MEMBER STATES . IT ACCORDINGLY DOES NOT HAVE JURISDICTION TO REPLY TO QUESTIONS OF INTERPRETATION WHICH ARE SUBMITTED TO IT WITHIN THE FRAMEWORK OF PROCEDURAL DEVICES ARRANGED BY THE PARTIES IN ORDER TO INDUCE THE COURT TO GIVE ITS VIEWS ON CERTAIN PROBLEMS OF COMMUNITY LAW WHICH DO NOT CORRESPOND TO AN OBJECTIVE REQUIREMENT INHERENT IN THE RESOLUTION OF A DISPUTE . A DECLARATION BY THE COURT THAT IS HAS NO JURISDICTION IN SUCH CIRCUMSTANCES DOES NOT IN ANY WAY TRESPASS UPON THE PREROGATIVES OF THE NATIONAL COURT BUT MAKES IT POSSIBLE TO PREVENT THE APPLICATION OF THE PROCEDURE UNDER ARTICLE 177 FOR PURPOSES OTHER THAN THOSE APPROPRIATE FOR IT .

19 FURTHERMORE , IT SHOULD BE POINTED OUT THAT , WHILST THE COURT OF JUSTICE MUST BE ABLE TO PLACE AS MUCH RELIANCE AS POSSIBLE UPON THE ASSESSMENT BY THE NATIONAL COURT OF THE EXTENT TO WHICH THE QUESTIONS SUBMITTED ARE ESSENTIAL , IT MUST BE IN A POSITION TO MAKE ANY ASSESSMENT INHERENT IN THE PERFORMANCE OF ITS OWN DUTIES IN PARTICULAR ORDER TO CHECK , AS ALL COURTS MUST , WHETHER IT HAS JURISDICTION . THUS THE COURT , TAKING INTO ACCOUNT THE REPERCUSSIONS OF ITS DECISIONS IN THIS MATTER , MUST HAVE REGARD , IN EXERCISING THE JURISDICTION CONFERRED UPON IT BY ARTICLE 177 , NOT ONLY TO THE INTERESTS OF THE PARTIES TO THE PROCEEDINGS BUT ALSO TO THOSE OF THE COMMUNITY AND OF THE MEMBER STATES . ACCORDINGLY IT CANNOT , WITHOUT DISREGARDING THE DUTIES ASSIGNED TO IT , REMAIN INDIFFERENT TO THE ASSESSMENTS MADE BY THE COURTS OF THE MEMBER STATES IN THE EXCEPTIONAL CASES IN WHICH SUCH ASSESSMENTS MAY AFFECT THE PROPER WORKING OF THE PROCEDURE LAID DOWN BY ARTICLE 177 .

20 WHILST THE SPIRIT OF COOPERATION WHICH MUST GOVERN THE PERFORMANCE OF THE DUTIES ASSIGNED BY ARTICLE 177 TO THE NATIONAL COURTS ON THE ONE HAND AND THE COURT OF JUSTICE ON THE OTHER REQUIRES THE LATTER TO HAVE REGARD TO THE NATIONAL COURT ' S PROPER RESPONSIBILITIES , IT IMPLIES AT THE SAME TIME THAT THE NATIONAL COURT , IN THE USE WHICH IT MAKES OF THE FACILITIES PROVIDED BY ARTICLE 177 , SHOULD HAVE REGARD TO THE PROPER FUNCTION OF THE COURT OF JUSTICE IN THIS FIELD .

21 THE REPLY TO THE FIRST QUESTION MUST ACCORDINGLY BE THAT WHILST , ACCORDING TO THE INTENDED ROLE OF ARTICLE 177 , AN ASSESSMENT OF THE NEED TO OBTAIN AN ANSWER TO THE QUESTIONS OF INTERPRETATION RAISED , REGARD BEING HAD TO THE CIRCUMSTANCES OF FACT AND OF LAW INVOLVED IN THE MAIN ACTION , IS A MATTER FOR THE NATIONAL COURT IT IS NEVERTHELESS FOR THE COURT OF JUSTICE , IN ORDER TO CONFIRM ITS OWN JURISDICTION , TO EXAMINE , WHERE NECESSARY , THE CONDITIONS IN WHICH THE CASE HAS BEEN REFERRED TO IT BY THE NATIONAL COURT .

22 AS THE PRETORE HAS PROPERLY INDICATED IN HIS THIRD AND FOURTH QUESTIONS , SPECIAL PROBLEMS MAY ARISE CONCERNING THE APPLICATION OF ARTICLE 177 WHEN QUESTIONS OF INTERPRETATION ARE SUBMITTED BY THE NATIONAL COURT IN ORDER TO ENABLE IT TO ETABLISH WHETHER THE LEGISLATIVE PROVISIONS OF A MEMBER STATE ARE IN ACCORDANCE WITH COMMUNITY LAW . IN THIS CONNECTION THE PRETORE HAS INDICATED TWO DISTINCT CATEGORIES OF PROBLEMS .

23 THE THIRD QUESTION CONCERNS CIRCUMSTANCES IN WHICH , IN PROCEEDINGS BETWEEN INDIVIDUALS BEFORE A COURT OF A MEMBER STATE , A DISPUTE ARISES AS TO THE COMPATIBILITY WITH COMMUNITY LAW OF THE LEGISLATION OF A MEMBER STATE OTHER THAN THAT OF THE STATE IN WHICH THAT COURT IS SITUATED . THE PRETORE HAS SUBMITTED IN THIS CONNECTION THE QUESTION WHETHER IN SUCH A CASE THE MEMBER STATE WHOSE LEGISLATION IS AT ISSUE MAY BE JOINED IN THE PROCEEDINGS INSTITUTED BEFORE THE COURT IN QUESTION .

24 THE REPLY ON THIS POINT MUST BE THAT IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW IN THE MATTER , THE POSSIBILITY OF TAKING PROCEEDINGS BEFORE A NATIONAL COURT AGAINST A MEMBER STATE OTHER THAN THAT IN WHICH THAT COURT IS SITUATED DEPENDS BOTH ON THE LAWS OF THE LATTER AND ON THE PRINCIPLES OF INTERNATIONAL LAW .

25 IN THE FOURTH QUESTION THE PRETORE HAS ASKED WHETHER THE PROTECTION PROVIDED FOR INDIVIDUALS BY THE PROCEDURE UNDER ARTICLE 177 IS DIFFERENT , OR INDEED DIMINISHED , WHEN SUCH A QUESTION IS RAISED IN PROCEEDINGS BETWEEN INDIVIDUALS AS OPPOSED TO PROCEEDINGS BETWEEN AN INDIVIDUAL AND THE ADMINISTRATION .

26 IN ANSWER TO THE QUESTION THUS RAISED IT MUST BE EMPHASIZED THAT ALL INDIVIDUALS WHOSE RIGHTS ARE INFRINGED BY MEASURES ADOPTED BY A MEMBER STATE WHICH ARE CONTRARY TO COMMUNITY LAW MUST HAVE THE OPPORTUNITY TO SEEK THE PROTECTION OF A COURT POSSESSED OF JURISDICTION AND THAT SUCH A COURT , FOR ITS PART , MUST BE FREE TO OBTAIN INFORMATION AS TO THE SCOPE OF THE RELEVANT PROVISIONS OF COMMUNITY LAW BY MEANS OF A PROCEDURE UNDER ARTICLE 177 . IN PRINCIPLE THE DEGREE OF PROTECTION AFFORDED BY THE COURTS THEREFORE MUST NOT DIFFER ACCORDING TO WHETHER SUCH A QUESTION IS RAISED IN PROCEEDINGS BETWEEN INDIVIDUALS OR IN AN ACTION TO WHICH THE STATE WHOSE LEGISLATION IS CHALLENGED IS A PARTY IN ONE FORM OR ANOTHER .

27 NEVERTHELESS , AS THE COURT HAS STATED IN ITS REPLY SET OUT ABOVE TO THE FIRST QUESTION IT IS FOR THE COURT OF JUSTICE TO APPRAISE THE CONDITIONS IN WHICH A CASE IS REFERRED TO IT BY A NATIONAL COURT IN ORDER TO CONFIRM THAT IT HAS JURISDICTION . IN THAT CONNECTION THE QUESTION WHETHER THE PROCEEDINGS ARE BETWEEN INDIVIDUALS OR ARE DIRECTED AGAINST THE STATE WHOSE LEGISLATION IS CALLED IN QUESTION IS NOT IN ALL CIRCUMSTANCES IRRELEVANT .

28 ON THE ONE HAND IT MUST BE POINTED OUT THAT THE COURT BEFORE WHICH , IN THE COURSE OF PROCEEDINGS BETWEEN INDIVIDUALS , AN ISSUE CONCERNING THE COMPATIBILITY WITH COMMUNITY LAW OF LEGISLATION OF ANOTHER MEMBER STATE IS BROUGHT IS NOT NECESSARILY IN A POSITION TO PROVIDE FOR SUCH INDIVIDUALS EFFECTIVE PROTECTION IN RELATION TO SUCH LEGISLATION .

29 ON THE OTHER HAND , REGARD BEING HAD TO THE INDEPENDENCE GENERALLY ENSURED FOR THE PARTIES BY THE LEGAL SYSTEMS OF THE MEMBER STATES IN THE FIELD OF CONTRACT , THE POSSIBILITY ARISES THAT THE CONDUCT OF THE PARTIES MAY BE SUCH AS TO MAKE IT IMPOSSIBLE FOR THE STATE CONCERNED TO ARRANGE FOR AN APPROPRIATE DEFENCE OF ITS INTERESTS BY CAUSING THE QUESTION OF THE INVALIDITY OF ITS LEGISLATION TO BE DECIDED BY A COURT OF ANOTHER MEMBER STATE . ACCORDINGLY , IN SUCH PROCEDURAL SITUATIONS IT IS IMPOSSIBLE TO EXCLUDE THE RISK THAT THE PROCEDURE UNDER ARTICLE 177 MAY BE DIVERTED BY THE PARTIES FROM THE PURPOSES FOR WHICH IT WAS LAID DOWN BY THE TREATY .

30 THE FOREGOING CONSIDERATIONS AS A WHOLE SHOW THAT THE COURT OF JUSTICE FOR ITS PART MUST DISPLAY SPECIAL VIGILANCE WHEN , IN THE COURSE OF PROCEEDINGS BETWEEN INDIVIDUALS , A QUESTION IS REFERRED TO IT WITH A VIEW TO PERMITTING THE NATIONAL COURT TO DECIDE WHETHER THE LEGISLATION OF ANOTHER MEMBER STATE IS IN ACCORDANCE WITH COMMUNITY LAW .

31 THE REPLY TO THE FOURTH QUESTION MUST ACCORDINGLY BE THAT IN THE CASE OF PRELIMINARY QUESTIONS INTENDED TO PERMIT THE NATIONAL COURT TO DETERMINE WHETHER PROVISIONS LAID DOWN BY LAW OR REGULATION IN ANOTHER MEMBER STATE ARE IN ACCORDANCE WITH COMMUNITY LAW THE DEGREE OF LEGAL PROTECTION MAY NOT DIFFER ACCORDING TO WHETHER SUCH QUESTIONS ARE RAISED IN PROCEEDINGS BETWEEN INDIVIDUALS OR IN AN ACTION TO WHICH THE STATE WHOSE LEGISLATION IS CALLED IN QUESTION IS A PARTY , BUT THAT IN THE FIRST CASE THE COURT OF JUSTICE MUST TAKE SPECIAL CARE TO ENSURE THAT THE PROCEDURE UNDER ARTICLE 177 IS NOT EMPLOYED FOR PURPOSES WHICH WERE NOT INTENDED BY THE TREATY .

THE FIFTH QUESTION

32 IN THE FIFTH QUESTION THE PRETORE , BRA , REPEATS IN ABBREVIATED FORM THE FIRST QUESTION SUBMITTED IN HIS FIRST ORDER CONCERNING THE INTERPRETATION OF ARTICLE 95 OF THE TREATY . IN ITS ABOVE-MENTIONED JUDGMENT OF 11 MARCH 1980 THE COURT OF JUSTICE FOUND THAT THE PARTIES TOOK THE SAME VIEW AS TO THE LAWFULNESS OF THE FRENCH LEGISLATION AT ISSUE AND IN REALITY SOUGHT TO OBTAIN BY THE DEVICE OF A SPECIAL CLAUSE INSERTED IN THEIR CONTRACT A RULING BY AN ITALIAN COURT THAT THE FRENCH LEGISLATION WAS UNLAWFUL ALTHOUGH FRENCH LAW PROVIDED APPROPRIATE REMEDIES . THE COURT OF JUSTICE CONCLUDED THAT TO REPLY TO THE QUESTIONS SUBMITTED IN SUCH CIRCUMSTANCES WOULD BE TO EXCEED THE DUTY ENTRUSTED TO IT BY ARTICLE 177 OF THE TREATY , WHICH IS TO SUPPLY ALL COURTS IN THE COMMUNITY WITH THE INFORMATION ON THE INTERPRETATION OF COMMUNITY LAW WHICH IS NECESSARY TO ENABLE THEM TO SETTLE GENUINE DISPUTES WHICH ARE BROUGHT BEFORE THEM . IT ACCORDINGLY DECLARED THAT IT HAD NO JURISDICTION TO GIVE A RULING ON THE QUESTIONS RAISED .

33 IN HIS SECOND ORDER MAKING A REFERENCE TO THE COURT THE PRETORE HAS SPECIALLY EMPHASIZED THAT THE DEFENDANT HAD REQUESTED HIM TO DELIVER A DECLARATORY JUDGMENT . IN THIS CONNECTION IS MUST BE POINTED OUT THAT THE CONDITIONS IN WHICH THE COURT OF JUSTICE PERFORMS ITS DUTIES IN THIS FIELD ARE INDEPENDENT OF THE NATURE AND OBJECTIVE OF PROCEEDINGS BROUGHT BEFORE THE NATIONAL COURTS . ARTICLE 177 REFERS TO THE ' ' JUDGMENT ' ' TO BE GIVEN BY THE NATIONAL COURT WITHOUT LAYING DOWN SPECIAL RULES IN TERMS OF THE NATURE OF SUCH JUDGMENTS .

34 THE CIRCUMSTANCE REFERRED TO BY THE NATIONAL COURT IN ITS SECOND ORDER FOR REFERENCE DOES NOT APPEAR TO CONSTITUTE A NEW FACT WHICH WOULD JUSTIFY THE COURT OF JUSTICE IN MAKING A FRESH APPRAISAL OF ITS JURISDICTION . IT IS THEREFORE FOR THE PRETORE , WITHIN THE FRAMEWORK OF THE COLLABORATION BETWEEN A NATIONAL COURT AND THE COURT OF JUSTICE TO ASCERTAIN IN THE LIGHT OF THE FOREGOING CONSIDERATIONS WHETHER THERE IS ANY NEED TO OBTAIN AN ANSWER FROM THE COURT OF JUSTICE TO THE FIFTH QUESTION AND , IF SO , TO INDICATE TO THE COURT ANY NEW FACTOR WHICH MIGHT JUSTIFY IT IN TAKING A DIFFERENT VIEW OF ITS JURISDICTION .

THE SECOND QUESTION

35 HAVING REGARD TO THE FOREGOING IT IS UNNECESSARY TO REPLY TO THE SECOND QUESTION .

Decision on costs

36 THE COSTS INCURRED BY THE FRENCH GOVERNMENT , THE DANISH GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE PRETORE , BRA , BY ORDER OF 18 OCTOBER 1980 , HEREBY RULES :

1 . ACCORDING TO THE INTENDED ROLE OF ARTICLE 177 , AN ASSESSMENT OF THE NEED TO OBTAIN AN ANSWER TO THE QUESTIONS OF INTERPRETATION RAISED , REGARD BEING HAD TO THE CIRCUMSTANCES OF FACT AND OF LAW INVOLVED IN THE MAIN ACTION , IS A MATTER FOR THE NATIONAL COURT ; IT IS NEVERTHELESS FOR THE COURT OF JUSTICE , IN ORDER TO CONFIRM ITS OWN JURISDICTION , TO EXAMINE , WHERE NECESSARY , THE CONDITIONS IN WHICH THE CASE HAS BEEN REFERRED TO IT BY THE NATIONAL COURT .

2 . IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW , THE POSSIBILITY OF TAKING PROCEEDINGS BEFORE A NATIONAL COURT AGAINST A MEMBER STATE OTHER THAN THAT IN WHICH THAT COURT IS SITUATED DEPENDS BOTH ON THE PROCEDURAL LAW OF THE LATTER AND ON THE PRINCIPLES OF INTERNATIONAL LAW .

3 . IN THE CASE OF QUESTIONS INTENDED TO PERMIT THE NATIONAL COURT TO DETERMINE WHETHER PROVISIONS LAID DOWN BY LAW OR REGULATION IN ANOTHER MEMBER STATE ARE IN ACCORDANCE WITH COMMUNITY LAW THE DEGREE OF LEGAL PROTECTION MAY NOT DIFFER ACCORDING TO WHETHER SUCH QUESTIONS ARE RAISED IN PROCEEDINGS BETWEEN INDIVIDUALS OR IN AN ACTION TO WHICH THE STATE WHOSE LEGISLATION IS CALLED IN QUESTION IS A PARTY , BUT IN THE FIRST CASE THE COURT OF JUSTICE MUST TAKE SPECIAL CARE TO ENSURE THAT THE PROCEDURE UNDER ARTICLE 177 IS NOT EMPLOYED FOR PURPOSES WHICH WERE NOT INTENDED BY THE TREATY .

4 . THE CIRCUMSTANCE REFERRED TO BY THE PRETORE , BRA , IN HIS SECOND ORDER FOR REFERENCE DOES NOT APPEAR TO CONSTITUTE A NEW FACT WHICH WOULD JUSTIFY THE COURT OF JUSTICE IN MAKING A FRESH APPRAISAL OF ITS JURISDICTION AND IT IS THEREFORE FOR THE PRETORE , WITHIN THE FRAMEWORK OF THE COLLABORATION BETWEEN A NATIONAL COURT AND THE COURT OF JUSTICE , TO ASCERTAIN IN THE LIGHT OF THE FOREGOING CONSIDERATIONS WHETHER THERE IS ANY NEED TO OBTAIN AN ANSWER FROM THE COURT OF JUSTICE TO THE FIFTH QUESTION AND , IF SO , TO INDICATE TO THE COURT ANY NEW FACTOR WHICH MIGHT JUSTIFY IT IN TAKING A DIFFERENT VIEW OF ITS JURISDICTION .