5.

Of the arguments which have just been summarized, the last ones — that is to say those based on the case-law of the Court — seem to me to be of the least significance. The fact is that the question which has been placed before the Court by the Finanzgericht Hamburg is a wholly novel one. It is only today that the Court is called upon to tackle the question expressly; the observations which the Court has made in the past in this connection when determining completely different issues and which therefore took the form of obiter dicta (which, moreover, if I am not mistaken, are intentionally ambiguous) for that very reason cast very little light on the matter. In any event it is certain that those dicta —and a fortiori the proposals with regard to legislative policy which the Court was considering 12 years ago — do not commit the Court in the slightest. On the other hand, as I have said, the arguments based on the wording of Article 177 are solid ones. Nevertheless, they also lead to such dangerous and anomalous results as to overshadow the undeniable uneasiness which one feels in rejecting them. In short, I agree with the writers who maintain that a literal interpretation of Article 177 gives rise to consequences which are ‘undesirable’, ‘improper’ or liable to create ‘grave problems’; and since the authors of the Treaty could not have overlooked those consequences, I, too, consider that the ‘elliptical’ wording of Article 177 is attributable to a singular but not impossible oversight on their part (Tomuschat, Die gerichtliche Vorabentscheidung nach den Verträgen über die europäischen Gemeinschaften, Cologne, 1964, pp. 57 et seq.; Schumann, ‘Deutsche Richter und Gerichtshof der europäischen Gemeinschaften’, in Zeitschrift für Zivilprozeß, 1965, pp. 119 et seq.; Bebr, ‘Examen en validité au titre de l'article 177 du traité CEE et cohésion juridique de la Communauté’, in Cahiers de droit européen, 1975, p. 384; Hartley, The foundations of European Community law, Oxford, 1981, p. 265; Brown and Jacobs, The Court of Justice of the European Communities, London, 1983, pp. 154 et seq.; Schermers, Judicial protection in the European Communities, Deventer, 1983, p. 232; Boulouis, Droit institutionnel des Communautés européennes, Paris, 1984, p. 213). The theory which I am asking the Court to reject gives rise to at least four anomalies. The first and perhaps the most striking of them is a paradox: according to the theory, inferior courts have a power — that of reviewing the validity of acts — which the third paragraph of Article 177 expressly removes from courts of last instance (Bebr, loc. cit.; Teichini, ‘Le pronunzie sulla validità degli atti comunitari secondo la giurisprudenza della corte di giustizia’, in Diritto comunitario e degli scambi internazionali, 1978, p. 257). However, it is the second anomaly which is decisive — the contradiction to which such a power would give rise in the context of the system for reviewing the legality of Community acts. As we know, Articles 173 and 174 confer that role on the Court alone; it is not apparent why this exclusive jurisdiction should no longer obtain when the involvement of the Court of Justice is brought about not by the party concerned but by a national court. Admittedly, the mediating role of the national court is far from being restricted to simply passing on the papers and hence it narrows the area within which the Court is called upon to carry out its task; in the space which it leaves the Court, however, it does not change the nature of that task. In other words, as Bebr observes, the assessment of the validity of Community acts by way of preliminary ruling remains a ‘contrôle constitutionnel’, albeit ‘larvé’ (covert). But that is not all. This contradiction is not only logically unjustifiable. It has weighty institutional consequences in so far as it detracts from the principle laid down by Article 189, according to which measures adopted by the institutions must be applied uniformly throughout the territory of the Community. That principle has a dual aim: that of securing legal certainty and — which is equally, if not more, crucial — of guaranteeing the legal cohesion of the Community. Consequently, consciously or unconsciously, the national court which extends its mediation to the extent of declaring that a Community rule is invalid introduces a subversive factor within the system; to put it more plainly, its judgment opens a breach in the foundation on which the structure created by the Treaty of Rome is based. It may be objected that this observation applies equally to judgments which interpret a Community measure incorrectly or simply differently from the way in which it has been construed in other judgments of national courts and hence it is inferred that the end result is to treat the whole of the second paragraph of Article 177 as if it had never been written. But the criticism does not hold good. To interpret a rule invariably also assumes an intention to apply it. A court which takes such a step without the cooperation of the Court of Justice and, as it may well do, comes to wrong or even absurd results will therefore damage a whole series of interests, including interests of a Community nature; however, it is certain that such a court will not come into conflict with Article 189 or, at least, will not damage the essential core of the rule laid down by Article 189. In contrast, a declaration that a provision is invalid will inevitably cause it not to be applied; hence in that case the nucleus of the rule laid down by Article 189 is certainly undermined. Certainly and I would add, in many cases, irremediably. As we have seen, the Verwaltungsgericht Frankfurt and some academic writers deny this on the grounds that, in the first place, the provision in question is not declared to be inapplicable in general and abstract terms but simply within the context of a dispute, and, secondly, an appeal will invariably lie against the relevant judgment. But that argument fails to take account of the fact that numerous Community provisions (relating to competition, State aid and anti-dumping procedures and also in situations such as the one with which the Court is now dealing) are individual in nature, that is to say, they are addressed to one or more specific persons. It also overlooks the fact that it is never certain that an appeal will be brought by the relevant national authority. In effect, as a Spanish jurist, who infers from this interesting consequences with regard to the weakness of our system of indirect administration, points out, there is nothing to guarantee that that national authority will identify its own interest with that of the Community (Peláez Marón, ‘Ambito de la apreciación prejudicial de validez de los actos comunitarios’, in Revista de las instituciones europeas, 1985, p. 758). I mentioned four anomalies. The last two are practical in nature but no less important for all that. First of all, to review the validity of Community measures is a delicate task necessitating perfect knowledge of the relevant provisions, which are often drafted in an unpalatable, even esoteric jargon, or of economic data to which there is no ready access (the example given in one learned article is ‘was there a surplus of apples or of mushrooms in the Community, at a certain date?’). Therefore, what is involved is a task for which the national court is ill equipped or, in any case, very much less well equipped than the Court of Justice (Koopmans, ‘The technique of the preliminary question — A view from the Court of Justice’, in TMC Asser Instituut, Article 177: Experiences and Problems, North-Holland, 1987, p. 330). Secondly, the national court could never put temporal limits on the effects of the judgment by which it declares a measure to be invalid, as the Court of Justice can do on the basis of the very well-known line of cases which extended to preliminary rulings the rule laid down in Article 174. Consequently, to allow the national court to review Community measures would fail to resolve the economic problems which that extension is intended to obviate, which would have potentially disruptive consequences on the functioning of the common market. If all those observations are correct, the conclusion of which I have given advance notice is not irrefutable, but certainly reasonable and, in any event, more satisfying than the opposite view. I shall reduce it to a straightforward proposition: a national court which has doubts about the validity of a Community provision must stay the proceedings and refer the matter to the Court (see, in addition to the sources quoted, Ehle, ‘Inzidenter Rechtsschutz gegen Handlungen der europäischen Gemeinschaftsorgane’, in Monatsschrift für deutsches Recht, 1964, p. 720; Constantinesco, Das Recht der europäischen Gemeinschaften, I, Baden-Baden, 1977, p. 827; Daig, ‘Artikel 177’, in Kommentar zum EWG-Vertrag, 3rd Edition, II, 1983, p. 395; Donner, ‘Les rapports entre la compétence de la Cour de justice des Communautés européennes et les tribunaux internes’, in Recueil des cours de l'Académie de droit international de La Haye, 1965, p. 39; Plouvier, Les décisions de la Cour de justice des Communautés européennes et leurs effets juridiques, Brussels, 1975, p. 252; Waelbroeck, ‘Commentaire à l'article 177’, in Le droit de la Communauté économique européenne, X, Brussels, 1983, p. 209). On the other hand, there is nothing to oblige the national court to refer a matter to the Court of Justice where one party is asking it not to apply a measure and the national court considers that its arguments should be dismissed. In such a case, the option given to the national court by the second paragraph of Article 177 becomes fully operative; and this fact, which means that the national court's role is not reduced to merely ‘passing on the papers’, mitigates the uneasiness which I mentioned at the beginning of Section 4. After all, the solution that I am proposing does not conflict head-on with the wording of the provision but simply means that the expression ‘such a question’ should be understood in a narrow sense; that is to say in the sense of a question in regard to which the national court is inclined to come down in favour of validity. I would add a few words to defend my solution from any attempt to limit its scope. For instance, a ready answer can be found to the suggestion that the national court may not have authority to declare the Community measure in question invalid but certainly has jurisdiction to annul the relevant national implementing measure, since, as a rule, the two measures are too closely linked to be amenable to separate assessment. Indeed, the case at present before the Court bears this out. It is clear from a combination of the second subparagraph of Article 5 (2) and Article 10 of Regulation No 1697/79 that the decision on the post-clearance recovery of import duties is to be taken by means of a special procedure at Community level, if the Finanzgericht had definitively declared inapplicable the corresponding decision of Hauptzollamt Lübeck-Ost, the three-year period laid down for the recovery of duties in Article 2 of Regulation No 1697/79 might have expired in the course of proceedings before the appeal court. Equally unacceptable is the view, put forward by some writers, that the national court may declare a Community measure inapplicable at least when the measure is ‘clairement illégal’ (Couzinet, op. cit., p. 662). This must be rejected in the light of previous decisions of the Court of Justice. In particular, in its judgment in the Granaria case, cited above, the Court stated that every measure must be presumed to be valid so long as the Court has not made a finding that it is invalid, and it can be inferred from the judgment of 13 May 1981 in Case 66/80 International Chemical Corporation [1981] ECR 1191, that for a measure to be manifestly unlawful there must already have been a declaration to that effect by the Court of Justice.