WRITTEN QUESTION P-1191/00

by Timothy Kirkhope (PPE-DE) to the Commission

(10 April 2000)

Subject: The beer tie

Nearly 700 cases have been brought against the Inntrepreneur Pub Company regarding the validity of the obligations imposed upon their tenants of public houses to buy beer from a supplier nominated by them (the beer tie). Many tenants believe that this beer tie infringes the EC rule of competition under Article 81 (ex Article 85) of the EC Treaty of Rome.

One case, Crehan v Courage, was referred to the European Court of Justice by the Court of Appeal in the United Kingdom but two others have been refused leave to appeal by the House of Lords.

Can the Commission confirm whether there are provisions in Article 234 (ex Article 177) of the EC Treaty of Rome whereby a question that is raised before a national court against whose decision there is no judicial remedy under national law can be brought before the European Court of Justice?

Answer given by Mr Prodi on behalf of the Commission

(23 May 2000)

The Commission must point out at the outset that Article 234 (ex Article 177) of the EC Treaty confers jurisdiction on the Court of justice to give preliminary rulings on the interpretation of Community law and on the validity of acts of the institutions of the Community. The second subparagraph of Article 234 makes it clear that only the courts or tribunals of a Member State may request the Court of justice to give such rulings. Thus, the parties to the domestic proceedings may not themselves address questions to the Court of justice, as the question submitted by the Honourable Member would seem to imply, but must convince the domestic court of the need to refer a question to the Court of justice. When the domestic court is a court of last resort, against whose decision there is no remedy, that court must, according to Article 234 third subparagraph, bring the matter before the Court of justice.

It follows from the scheme and wording of Article 234 that only a domestic court which is still seised of a dispute can refer a question to the Court of justice. When the domestic court is no longer seised of a dispute, such as when the case settles or when a court of last resort has given a final ruling, the Court of justice cannot assume competence to give a ruling on the matter and the parties cannot refer a question to it.

Under English law, no appeal can be made to the House of Lords, the highest court in the United Kingdom, as of right. According to Section 1 of the Administration of Justice (Appeals) Act 1934(1) an appeal can be made to the House of Lords only if leave of the Court of Appeal or leave of the House of Lords is obtained first. In practice, therefore, the situation may occur where both the Court of Appeal and the House of Lords refuse leave to appeal to the House of Lords. The judgment of the Court of Appeal against which leave was sought to appeal thus becomes final and no other court can be seised of that dispute between the parties. As the Honourable Member may be aware, a similar situation prevails in Finland(2).

The Commission has received a number of complaints which allege in effect that Section 1 of the Administration of Justice (Appeals) Act 1934 is contrary to Article 234 of the Treaty. All of the complaints to date concern cases dealing with the beer tie. They are currently under investigation.

(1) 24 & 25 Geo 5 c 40.

(2) Sixteenth Annual Report on monitoring the application of Community law, 1998, submitted by the Commission on 9 July 1999 (OJ C 354, 7.12.1999, pp 1 to 185).