Keywords

Summary



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 .