OPINION OF MR ADVOCATE GENERAL MAYRAS

DELIVERED ON 26 OCTOBER 1978 ( 1 )

Mr President

Members of the Court,

This request for a preliminary ruling in which no Member State and no institution other than the Commission has shown any interest will not take up very much of the Court's time.

By an agreement dated 1 August 1977 the plaintiff in the main action undertook to prepare, for a financial consideration, on behalf of a fruit importer, the defendant in the main action, a series of market surveys of various agricultural products in Spain and Portugal. These surveys were to be ready at the date of accession of those States and, as everyone knows, such accession has not yet taken place.

The penultimate paragraph of that agreement provided that it should be for a period of five years and that, if the accession of those countries should in fact or in law prove to be impracticable, the defendant should have the right to terminate the agreement without having to indemnify the plaintiff. It was a term of the contract that ‘The decisive factor in determining whether the said accession is practicable in law shall be a decision of the Court of Justice of the European Communities’.

By a letter of 29 January 1978 the applicant called upon the defendant to reimburse the expenses which he had incurred. On 31 January 1978 the defendant refused to comply with this request: the latter at the same time terminated the agreement on the ground that the accession of Greece, Spain and Portugal was in law impossible having regard to the existing wording of the texts.

This action may have been completely fabricated in order to get the Court ‘to say what the law is’ on a problem which is certainly of very great interest indeed to traders but which is only loosely connected with the disputed agreement. Furthermore, since the Court has formally invited the Commission to deliver its written opinion on the compatibility of clauses such as the one in the last (it is in fact the penultimate) paragraph of the disputed agreement with Community public policy and since questions were raised again on this point during the oral arguments, the possibility cannot be ruled out that the Court should hold that private persons cannot by means of an arbitration clause establish a jurisdiction which is conferred on the Court only under the conditions laid down in Article 177 of the EEC Treaty. This jurisdiction cannot be automatically activated even in the case of national courts against whose decisions there is no judicial remedy under national law. As far as concerns the courts or tribunals referred to in the second paragraph of Article 177, they must consider that a decision of the Court of Justice is necessary to enable them to give judgment; in other words a national court cannot abstain from showing ‘discernment’ before availing itself of the right which it is granted by Article 177, otherwise it may be in a breach of its own national public policy and also of Community public policy.

In this case the court of first instance which brings this matter before the Court of Justice does so ‘at the request of the parties’ and it might be thought that, when it did so, it considered that it was bound by the clause providing that the question whether the accession is impracticable in law should be determined by the Court of Justice.

The Director of the Legal Department of the Commission has nevertheless pointed out, it seems to me rightly, that it was doubtful whether that form of words amounted to an arbitration clause: although it contains a clear reference to the procedure under Article 177, it certainly does not mean that the Court would have to determine all the questions which might arise out of the agreement. By using this clause the parties have simply agreed on the procedure to be followed without in any way binding the national court. Moreover the latter has interpreted this form of words as a mere suggestion; although it brings the matter before the Court ‘at the request of the parties’ — a formula moreover which is frequently used in orders referring questions to the Court for a preliminary ruling — it clearly refers to the second paragraph of Article 177 of the Treaty and it also states why a ruling of the Court of Justice is necessary in its view to enable it to give judgment. Consequently it was on the strength of its own reflexions that it decided to have recourse to the procedure under Article 177.

The Court has even acknowledged itself duly seized of matters brought before it by certain Italian courts on the basis solely of claims made by the applicant without any preliminary discussion between the parties, the drafting of the questions referred to the Court being the handiwork of the applicant alone.

However, I shall not consider this preliminary point further. In the first place because it would amount to involving ourselves in the interpretation of the contract and in an evaluation of how seriously the dispute is to be taken by the national court and in the view it forms of the powers and obligations derived from Article 177. Such an examination may fall within the scope of national appellate courts or courts of last instance.

In the second place because in any event the Court does not seem to me to have jurisdiction to answer the ‘quaestio juris’ referred to it.

The object of the first two questions is to obtain a ruling from the Court as to the substantive, not the formal, conditions which Article 237 of the EEC Treaty either standing alone or in conjunction with other provisions of the Treaty, lays down for accession of new European States to the European Economic Community. The European Coal and Steel Community and the European Atomic Energy Community must be left out of the discussion since the reference is based on Article 177 of the Treaty establishing the European Economic Community.

Moreover the reply sought is conditional in particular, according to Article 237 of the EEC Treaty, upon adjustments to the basic provisions of the Treaty, which will have to be the subject of hard bargaining of a mainly political nature.

Even if the accession of the States in question is in law possible — and for my part I have no doubt that it is — yet this can in fact only be achieved, as Article 237 expressly provides, by compliance with specific formal conditions: the Council must act unanimously after consulting the Commission; an agreement must then be concluded between the Member States and the applicant State or States and, finally, this agreement must be submitted for ratification by all the Contracting States in accordance with their respective constitutional requirements.

Consequently, even if the questions raised entail the interpretation of the basic provisions of the Treaty, such an interpretation must of necessity first find expression in other Community instruments, international and national. Contrary to what has been provided for in the context of the ‘minor amendment’ dealt with in Article 95 of the ECSC Treaty, or in the context of Article 228 of the EEC Treaty the Court neither must nor can be officially consulted. Thus the existing basic legal conditions for the accession of new Member States to the European Communities can be defined only within the framework of the procedure laid down for this purpose by Article 237 of the EEC Treaty, Article 205 of the EAEC Treaty and Article 98 of the ECSC Treaty. A judicial interpretation under Article 177 of the EEC Treaty is on a different level.

The third question, .unlike the first two, does not arise on the ‘initiative’ of the parties but is put by the national court of its own motion. It is concerned with the question whether the accession of Spain, Portugal und Greece (although none of the ‘market surveys’ ordered covers this country) is not possible in the foreseeable future for reasons based on Community law. This question, as the Commission and the defendant in the main action submit, concerns, not the interpretation of the Treaty, but its application and it no more falls within the Court's jurisdiction than do the first two.

I am of the opinion that you should rule that the Court of Justice has no jurisdiction under Article 177 of the EEC Treaty to give a ruling on the basic legal limits placed on the accession of non-member European States to the European Economic Community.

( 1 ) Translated from the French.