5.

At this juncture, the decisive test in identifying the courts which are bound by the obligation referred to in the third paragraph of Article 177 is whether the decision to be taken by a court at the conclusion of the proceedings is or is not final. As we have seen, the provision refers in terms to decisions against which ‘there is no judicial remedy under national law’. How are those words to be interpreted? Here again, a literal interpretation must be eschewed. In the first place there is more than one conception of judicial remedy and it differs from one legal system to another: it can be extended to mean any type of appeal, any appropriate means of securing a review of the case, or it can be restricted so as to distinguish the appeal from the remedy, using the words ‘judicial remedy’ exclusively for that channel of appeal which, in the end, serves to produce a final decision in law. Secondly, there are channels of appeal which can be used by third persons and not by the parties involved: for example, third-party proceedings or, under certain legal systems, an action by the public prosecutor in the interests of the law. Finally, in some legal systems, there are so-called exceptional means of redress, in particular, a re-opening of the case on the discovery of new facts. This, in my view, suffices to show that a literal interpretation would, on this point, leave many questions unanswered. Bearing in mind the established trend of legal opinion, I feel justified in making the initial statement that appeals by persons other than the parties involved and exceptional remedies such as a re-opening of the case are, in principle, regarded as falling outside the concept of judicial remedy referred to in the third paragraph of Article 177. Moreover, it is generally recognized that this concept does not include an appeal, either; and this is because, after judgment at appeal court level, there is usually available to the parties a third level of proceedings, even though it is confined to examination of questions of law, namely the supreme court. In view of this, and recognizing the need for an interpretation which is based on the spirit and not on the letter of the provision, I feel justified in concluding that the decisions referred to in the third paragraph of Article 177 are all those which are final in the sense that they do not give rise to any review of the case on the request of either of the parties either as regards the facts or even only as regards the law without any fresh facts or exceptional conditions being necessary. There can, accordingly, be no doubt that the supreme courts whose decisions are final in the sense described are among the courts under a duty to seek a preliminary ruling but, consistently with what I said earlier, so are all those lower courts which are likewise competent to give a final decision. This viewpoint must now be applied to interlocutory proceedings. As the result of my earlier excursion into comparative law, I am convinced that of the features common to those procedures in the various Member States, despite their differences on other major aspects, one of fundamental importance is the fact that all interlocutory proceedings are without prejudice to ordinary proceedings, on the same facts and legal problems, which must conclude with a judgment formally superseding the interim measure, whether it confirms the measure or declares it to be without validity or effect. Only after the conclusion of ordinary proceedings will there be a definite decision at supreme court or equivalent level and it will therefore be at that level that the duty referred to in the third paragraph of Article 177 will undoubtedly apply. But until the stage of the ‘main’ proceedings is concluded, there will at all times exist only an interim measure subject to the form of judicial review constituted by the main action and by means of which review it is possible to correct any mistake in the interpretation of the Community provision which the court hearing interlocutory proceedings may have made. As we have seen, the main action may be instituted either on the initiative of one of. the parties or be imposed by law (or possibly by the court hearing interlocutory proceedings), and in certain cases the interim measure is adopted in connexion with a main action which is already pending, while in other cases this action is instituted after the interlocutory decision. These possible differences do not, in my view, affect the basic consideration, which is the provisional nature of the interim measure and the availability of a remedy and of a method of procedure which can amend it. This means that in a case where the main action is already pending or where it constitutes a necessary development of the interlocutory procedure, the provisional character of the interim measure emerges more clearly; in such cases, it is even easier to understand the absurdity of comparing the position of the court in interlocutory proceedings with that of a final court of appeal. On the other hand, where the main action is a stage which may follow the interlocutory procedure and it comes before another court, it performs a function similar to that of a channel of appeal but essentially represents something more in that it provides for the facts and the law to be examined in depth for the first time after the summary consideration given in interlocutory proceedings (and this also applies in legal systems under which an interim measure is per se subject to appeals which, however, retain the character of interlocutory findings). Finally, if the main action, even when it must be instituted by one of the parties, takes place before the same court as that hearing the interlocutory proceedings it is, as the German Government has rightly pointed out in this case, possible to refer to the two proceedings as being in essence one and the same, even though in nature there is a formal difference between them. In those circumstances, the passage from the summary to the main proceedings is substantially the same as having recourse to a domestic means of judicial review of the decision which concluded the summary proceedings. These considerations convince me that the courts before which interlocutory proceedings are pending are under no obligation to refer to this Court for a preliminary ruling on questions of Community law, a decision on which is necessary to enable it to give judgment; as I stated earlier, they have a right to refer the matter to the Court but are under no duty to do so. I ought to add that this conclusion holds good regardless of the level of the court hearing the interlocutory proceedings; under some legal systems (including, as stated earlier, that in Germany) there is provision for an appeal to a court of first instance against an order issued by that court and then to appeal against its decision, still within the context of the interlocutory procedure, as occurred in the present case; under other systems an appeal lies forthwith to a court of appeal; and, on the other hand, in some States all interlocutory proceedings take place at the same level. These differences in no way affect the basic feature, emphasized above, which is common to interlocutory proceedings, namely that proceedings for re-examination or review of the case are available if not obligatory. Therefore, the conclusion reached regarding Article 177 of the Treaty of Rome remains unchanged.