CELEX: 61999CC0306
Language: en
Date: 2001-11-15 00:00:00
Title: Opinion of Mr Advocate General Jacobs delivered on 15 November 2001. # Banque internationale pour l'Afrique occidentale SA (BIAO) v Finanzamt für Großunternehmen in Hamburg. # Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. # Fourth Directive 78/660/EEC - Annual accounts of certain types of companies - Jurisdiction of the Court to interpret Community law in a context where it is not directly applicable - Provisions for risk under a loan guarantee - Taking into account of the individual situation of the debtor and of its State of establishment - Date on which the risk may or must be evaluated and entered on the balance sheet. # Case C-306/99.

OPINION OF ADVOCATE GENERALJACOBS delivered on 15 November 2001 (1)
         Case C-306/99 Banque Internationale pour l'Afrique Occidentale SA (BIAO)vFinanzamt für Großunternehmen in Hamburg
            ()
            
      
         
      1.  This reference by the Finanzgericht (Finance Court), Hamburg, raises an important question about the scope of the jurisdiction
      of the Court of Justice to rule on questions referred by national courts and provides the Court with the opportunity to reconsider
      its decisions in  
       Leur-Bloem  
      
         			(2)
         		 and  
       Giloy . 
      
         			(3)
         		
      2.  The referring court puts a number of detailed questions about the interpretation of certain technical provisions of the Fourth
      Company Law Directive on company accounts. 
      
         			(4)
         		  Those questions arise however in proceedings which concern the accounting treatment for tax purposes ─ not covered by the
      Directive ─ of a provision in the balance sheet of a trader which is outside the scope of the Directive.  The provisions of
      the Directive are therefore relevant only by virtue of a number of complex references and assumptions under national law.
      
      3.  The main proceedings concern the tax assessment for 1989 of the Hamburg branch of a French bank.  Neither branches nor banks
      are within the scope of the Fourth Directive.  The amount of tax payable depends on the correct valuation of a provision made
      in the balance sheet dated 31 December 1989.  The national legal context which determines the trader's taxable income is essentially
      as follows:
      
      
      ─
         German trade tax law refers (subject to specific trade tax provisions) to German corporation and income tax law; 
      
      
      
      ─
         German corporation tax law refers (subject to specific corporation tax provisions) to German income tax law; 
      
      
      
      ─
         German income tax law refers (subject to specific income tax provisions) to the  
         commercial law principles of proper accounting; 
      
      
      
      ─
         that concept is assumed to refer to the rules on accounting of the Commercial Code applicable to all traders; 
      
      
      
      ─
         certain of those rules are assumed to have transposed the provisions of the Fourth Directive at issue into national law, not
         only as regards those traders to which the Directive applies, but also for all other traders. 
      
      
      
      4.  In my view the question arises ─ and the national court has expressly referred three questions concerning admissibility ─
      whether in that context the Court has jurisdiction to interpret provisions of the Fourth Directive.
       The questions referred
      
      5.  The questions referred by the Finanzgericht, Hamburg, are as follows: 
      I.  Jurisdiction of the Court of Justice to give a preliminary ruling Does the Court of Justice have jurisdiction in the procedure for preliminary rulings under Article 177 of the EC Treaty (old
      version) (Article 234 EC in the version in force from 1 May 1999 under the Treaty of Amsterdam of 2 October 1997 (new version))
      to interpret the Fourth Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain types of companies
      (OJ 1978 L 222, p. 11,  
      the Directive) not only where there is doubt as to the application in conformity with the Directive of the national commercial law on accounts
      of capital companies (in this case, Paragraph 264 et seq. of the German Handelsgesetzbuch (Commercial Code,  
      the HGB)), but also:
      
      1.  where elements of the Directive were taken over when it was transposed into the national commercial accounting law applicable
      to all traders (in this case Paragraph 238 et seq. of the HGB), even though for them the  
      true and fair view requirement set out in the preamble to and Article 2 of the Directive was not adopted in the wording of the legislation (unlike
      in the case of capital companies, Paragraphs 264(2) and 289(1) of the HGB);
      
      2.  where national tax law (in this case the first sentence of Paragraph 5(1) of the German Einkommensteuergesetz (Income Tax
      Law,  
      the EStG) in conjunction with Paragraph 8(1) of the German Körperschaftsteuergesetz (Corporation Tax Law,  
      the KStG) and Paragraph 7 of the German Gewerbesteuergesetz (Trade Tax Law,  
      the GewStG)) assumes that the commercial law principles of proper accounting are applicable for ascertaining the profits of traders
      who draw up balance sheets, and
      (a) where these are regulated in the provisions for all traders (Paragraph 238 et seq. of the HGB) harmonised (by the Directive)
      or
      
      (b) where the specific accounting provisions for capital companies (Paragraph 264 et seq. of the HGB) apply;
      
      
      3.  where national tax law refers in another connection to concepts or criteria from commercial accounting law?
      II.  Balance-sheet treatment of loan risks
      
      
      1.  Where foreign loans have been granted, is a country risk (foreign currency risk or transfer risk) to be included in the balance
      sheet as a value adjustment ─ as on the  
      Assets side by means of writing down of foreign debts (Articles 19 and 39(1)(b) and (c) of the Directive, Paragraph 253(3) and (4)
      of the HGB) ─ also on the  
      Liabilities side by means of provisions (Article 20(1) of the Directive, first sentence of Paragraph 249(1) of the HGB) for off-balance-sheet
      contingent liabilities under guarantees for foreign debts due to third parties (Article 14 of the Directive, Paragraph 251
      of the HGB;   
      risk subparticipation agreement)?
      
      2.  Is it compatible with the requirement of separate valuation of balance sheet items (Article 31(1)(e) of the Directive, Paragraph
      252(1)(3) of the HGB), instead of taking risks into account purely by individual value adjustments or provisions, alternatively
      to take them into account by means of globalised value adjustments or provisions, even if a loan default is not preponderantly
      probable in the individual case:
      (a) May a creditworthiness risk which is not acute but merely latent be covered by a global value adjustment, not only in the
      form of writing down a debt but also by means of a provision for a contingent (guarantee) liability?
      
      (b) May a not preponderantly probable country risk be taken into account by means of a country-related globalised value adjustment
      (globalised individual value adjustment), not only in the form of writing down a debt but also by means of a provision for
      a contingent (guarantee) liability?
      
      
      3.  Is it permitted or required to ascertain the country risk on the basis of one's own connections, experience and information,
      or of knowledge in the sector or by using rating tables, or by a combination of those methods, or by a different estimation?
      
      4.  May a risk be taken into account even if
      (a) it already existed when the basic transaction was entered into, and
      
      (b) it is many times greater than the profit or earnings to be made from it (in this case, a guarantee fee for a period of less
      than one year)?
      
      
      5.  Are the country risk and the creditworthiness risk to be taken into account, if necessary, alongside each other for the same
      loan by means of a value adjustment or a provision, whether as a single amount or as separate amounts?
      
      6.  Is a combination of provisions for risk also permissible if one risk is ascertained individually and the other risk globally?
      
      7.  Is double provision for a risk properly avoided by the fact that, after one risk has been taken into account, only the loan
      amount arithmetically reduced thereby is then used as the basis of assessment of the remaining other risk?
      III.  Value clarification
      
      
      1.  Must not only increases but also decreases in risks be taken into account as value clarification, going beyond the wording
      of Article 31(1)(c)(bb) of the Directive (first clause of Paragraph 253(1)(4) of the HGB)?
      
      2.  Does a loan repayment between the balance-sheet date and the date on which the balance sheet is drawn up constitute a (retrospectively)
      value-clarifying fact and not merely a value-influencing fact which has effect only in the year of repayment?
      
      3.  For value clarifications of risks which are of relatively slight importance for the undertaking concerned, instead of the
      period up to the signature of the balance sheet or the establishment of the annual accounts, may the date on which valuation
      of the relevant balance-sheet item is completed be taken?
      
       The Fourth Company Law Directive
      
      6.  The Fourth Directive initially 
      
         			(5)
         		 required implementation in Germany with regard to three types of company:   
       die Aktiengesellschaft  (public company limited by shares),  
       die Kommanditgesellschaft auf Aktien  (a form of public company whose directors are personally liable for their debts) and  
       die Gesellschaft mit beschränkter Haftung  (private company limited by shares). 
      
         			(6)
         		  Germany is not required to implement the Directive with regard to other traders including branches of companies incorporated
      in other Member States. 
      
         			(7)
         		  The Directive does not therefore apply to the present case.
      
      7.  Moreover the Fourth Directive does not apply to banks and other financial institutions, 
      
         			(8)
         		 which are governed by a subsequent co-ordinating directive, Directive 86/635, 
      
         			(9)
         		 not implemented in Germany at the material time. 
      
         			(10)
         		  Pursuant to Directive 86/635, certain provisions of the Fourth Directive, including those at issue in the present case,
      are to apply to banks and other financial institutions except where Directive 86/635 provides otherwise. 
      
         			(11)
         		  Branches of financial institutions are not within the scope of Directive 86/635, 
      
         			(12)
         		 although pursuant to Directive 89/117, 
      
         			(13)
         		 which required implementation by 1 January 1991, 
      
         			(14)
         		 they must publish the accounts of their financial institution. 
      
         			(15)
         		  Branches may not be required to publish accounts relating to their own activities. 
      
         			(16)
         		
      8.  The fourth recital in the preamble to the Fourth Directive states:Whereas annual accounts must give a true and fair view of a company's assets and liabilities, financial position and profit
      or loss ....
      
      9.  Article 2(3) provides:The annual accounts shall give a true and fair view of the company's assets, liabilities, financial position and profit or
      loss.
      
      10.  The Court has stated that compliance with the principle of the true and fair view is the primary objective of the Fourth Directive. 
      
         			(17)
         		
      11.  The Directive contains rules on  
       inter alia  the accounting treatment of commitments by way of guarantee (Article 14), the value adjustment of balance sheet items (Articles
      19 and 39(1)(b) and (c)), provisions for liabilities and charges (Articles 20(1) and 42), the separate valuation of balance
      sheet items (Article 31(1)(e)) and the valuation of post-balance-sheet-date liabilities and losses (Article 31(1)(c)(bb)).
       Some or all of the matters covered by those rules are at issue in the main proceedings, although the extent to which they
      will resolve those proceedings is disputed.
       The national legislation on accounts and the first question on jurisdiction
      
      12.  The referring court explains in the order for reference that German legislation requiring traders to draw up accounts is divided
      into provisions applicable to all traders, thus including branches of companies (apparently including banks) incorporated
      in other States, and those applicable solely to capital companies.
      
      13.  Those provisions are to be found in Book III of the Handelsgesetzbuch (Commercial Code;   
      HGB) which implements the Fourth Directive in such a way that certain elements are incorporated in Section 1 (Paragraphs 238
      to 263), applicable to all traders, and other elements in Section 2 (Paragraphs 264 to 335), applicable specifically to capital
      companies.
      
      14.  The  
      true and fair view requirement in the preamble to and Article 2 of the Directive is not reproduced verbatim in Section 1 of Book III of the
      HGB, applicable to all traders.
      
      15.  Paragraph 238(1) provides in so far as relevant:Every trader shall keep accounts recording his business transactions and the state of his assets in accordance with the principles
      of proper accounting.  The accounts must be such as to give a competent third party within a reasonable time an overview of
      the situation of the undertaking.
      
      16.  Paragraph 239(2) provides:The accounting entries and the other records required must be done in a complete, correct, timely and orderly manner.
      
      17.  Paragraph 242(1) provides in so far as relevant:A trader must at the start of his business and at the end of each trading year draw up accounts (opening balance, balance
      sheet) showing his assets and his liabilities.
      
      18.  Paragraph 243(1) and (2) provides: 
      (1) The annual accounts must be drawn up in accordance with the principles of proper accounting.
      
      (2) They must be clear.
      
      
      19.  The referring court states that even though the  
      true and fair view requirement has not been adopted verbatim, the provisions applying to all traders are to be understood as meaning that under
      the first sentence of Paragraph 242(1) the balance sheet must give a correct picture of the assets and liabilities.
      
      20.  The special provisions for the annual accounts of capital companies commence with Paragraph 264 of the HGB and explicitly
      adopt the  
      true and fair view requirement.
      
      21.  Paragraph 264(2) provides:The annual accounts of a capital company must, observing the principles of proper accounting, give a true and fair view (
       ein den tatsächlichen Verhältnissen entsprechendes Bild ) of the company's assets, financial situation and profit or loss.  If particular circumstances have the result that the annual
      accounts do not give a true and fair view within the meaning of the first sentence, then additional information is to be provided
      in the notes on the accounts.
      
      22.  Paragraph 289(1) provides in so far as relevant:In the annual report, at least the course of business and the situation of the capital company are to be presented in such
      a way that a true and fair view (
       ein den tatsächlichen Verhältnissen entsprechendes Bild ) is given;  in addition, the risks of future developments must also be mentioned.
      
      23.  The referring court notes that there is a view that the German legislature intended the Fourth Directive to be implemented
      solely by Section 2 of Book III of the HGB.  It is none the less recognised that certain accounting rules, which had previously
      applied to all traders and which were also reflected in the Directive, were included in Section 1 of Book III of the HGB.
       Those rules include the specific provisions of the Directive at issue in the present case. 
      
         			(18)
         		
      24.  The referring court adds that the Court has accordingly held that it has jurisdiction, in the case of a capital company, to
      interpret the Directive in the context of the application in accordance with the Directive of a provision from Section 1 of
      the HGB. 
      
         			(19)
         		  The present case however concerns the application of Section 1 of Book III of the HGB to other traders not within the scope
      of the Fourth Directive but treated by the national legislation in the same way as capital companies.
      
      25.  The national court's first question concerning the Court's jurisdiction to give a preliminary ruling on the interpretation
      of the Fourth Directive arises in that context.  More specifically, it asks whether the Court has jurisdiction where, on implementation
      of the Directive, elements thereof were incorporated into the national commercial accounting law applicable to all traders
      even though for such traders (in contrast to capital companies) the legislation does not impose the  
      true and fair view requirement set out in the preamble to and Article 2 of the Directive.
      
      26.  The referring court considers that the case-law of the Court of Justice so far suggests that the Court has jurisdiction. 
      According to that case-law (
       Leur-Bloem  
      
         			(20)
         		 and  
       Giloy  
      
         			(21)
         		), the Court has jurisdiction in the preliminary ruling procedure to interpret Community law where the situation in question
      is not governed directly by Community law but the national legislature, in transposing a directive into national law, has
      treated purely internal situations in the same way as those governed by the directive, so that it has aligned its domestic
      legislation to Community law.  When making a reference to the Court of Justice, the national court must determine the precise
      scope of the reference by national law to Community law.
       The national tax legislation and the second and third questions on jurisdiction
      
      27.  Paragraph 7 of the Gewerbesteuergesetz (Trade tax law) provides in so far as is relevant:Trading profit is the profit, determined in accordance with the provisions of the Einkommensteuergesetz or the Körperschaftsteuergesetz,
      of a business, which is to be taken into account in calculating the income for the ... period of assessment.
      
      28.  Paragraph 8(1) of the Körperschaftsteuergesetz (Corporation tax law) provides:What constitutes income and how it is to be calculated shall be determined in accordance with the provisions of the Einkommensteuergesetz
      and of the present law.
      
      29.  The first sentence of Paragraph 5(1) of the EStG provides:Traders who are legally required to keep accounting records and regularly draw up accounts or who keep accounting records
      and regularly draw up accounts although not so required shall at the end of the trading year evaluate the assets (first sentence
      of Paragraph 4(1)) in accordance with the commercial law principles of proper accounting.
      
      30.  The referring court explains that under that provision the commercial law  
      principles of proper accounting are decisive where there are no overriding specific fiscal rules concerning the balance sheet.
      
      31.  The referring court continues that, by virtue of the above statutory incorporation by reference, the principles of proper
      accounting apply not only for the income tax of natural persons but also for the bases of assessment of corporation tax for
      capital companies and of trade tax, at issue in the present case.  The reference to principles of proper accounting in the
      first sentence of Paragraph 5(1) of the EStG extends to the principles of proper accounting which are binding in commercial
      law on all traders, as mentioned in the first sentence of Paragraph 238(1) 
      
         			(22)
         		 and in Paragraph 243(1) 
      
         			(23)
         		 of the HGB and as codified in Section 1 of Book III of the HGB.  Those principles comprise, in addition to the formal requirements,
      the rules on the substantive content of the annual accounts and the rules on presentation and valuation, also contained in
      Section 1 of Book III of the HGB. 
      
         			(24)
         		  The principles of proper accounting also therefore apply to the making of provisions and (unless Paragraph 6 of the EStG
      contains any more specific rule, as to which see below 
      
         			(25)
         		) to their valuation.
      
      32.  The national court adds that it is debatable whether or to what extent, in addition to the principles of proper accounting
      which apply to all traders, the  
      true and fair view requirement applies by virtue of the first sentence of Paragraph 5(1) of the EStG.
      
      33.  The national court's second question asks whether the Court has jurisdiction to interpret the Directive where national tax
      law is based on the premiss that the commercial law principles of proper accounting are applicable for calculating the profits
      of traders who draw up balance sheets, and
      (a) those principles are laid down in the provisions for all traders (Section 1 of Book III of the HGB) which are harmonised by
      the law implementing the Directive or
      
      (b) the specific accounting provisions for capital companies (Section 2 of Book III of the HGB) apply.
      
      
      
      34.  With regard to question (a), the referring court considers that the Court has jurisdiction to interpret the Directive in the
      context of the applicability for tax law purposes of the commercial law principles of proper accounting since the provisions
      of Section 1 of Book III of the HGB which apply to all traders (i) are covered by the tax-law reference and (ii) transpose
      elements of the Directive for capital companies and for other traders in the same way.
      
      35.  With regard to question (b), it also appears to consider that the Court has jurisdiction and refers to the reasoning of Advocate
      General Léger in his Opinion in  
       DE + ES Bauunternehmung . 
      
         			(26)
         		
      36.  Finally, the referring court notes in the order for reference that the national legislation on the accounting treatment of
      provisions, at issue in the main proceedings, distinguishes between a provision for loss and a provision for liability.
      
      37.  In the case of a provision for loss, the principles of proper accounting which are applicable by virtue of the first sentence
      of Paragraph 5(1) of the EStG include the principle that provisions must not exceed the amount which is necessary according
      to a reasonable commercial assessment.  That principle is laid down in Paragraph 253(1) of the HGB and in Article 42 of the
      Directive.
      
      38.  The position is different however in the case of a provision for liability.  As indicated above, 
      
         			(27)
         		 the principles of proper accounting are applicable pursuant to the first sentence of Paragraph 5(1) of the EStG only where
      there are no specific overriding fiscal rules.  The EStG contains such specific rules 
      
         			(28)
         		 governing the valuation of a provision for liability.  In essence, they also require a reasonable commercial assessment to
      be made.  According to the referring court, case-law recognises that in the context of those rules also recourse must be had
      to the principles of proper accounting.
      
      39.  In its third question the national court asks whether the Court has jurisdiction to interpret the Directive where national
      tax law refers in another connection (namely other than by way of the first sentence of Paragraph 5(1) of the EStG) to concepts
      or criteria from commercial accounting law.
       The jurisdiction of the Court
      
      40.  The issue of jurisdiction has been the subject of full argument by all those presenting observations ─ in writing by the Finanzamt
      für Großunternehmen in Hamburg (the defendant in the main proceedings), the German Government and the Commission and at the
      hearing by the German Government and the Commission.
      
      41.  In essence, the German Government and the Commission concur in the view that the Court has jurisdiction on the basis of  
       Leur-Bloem  
      
         			(29)
         		 and  
       Giloy , 
      
         			(30)
         		 discussed further below.  The Finanzamt für Großunternehmen in Hamburg, on the other hand, submits that interpretation of
      the Fourth Directive is irrelevant to resolution of the dispute.  Member States have sole competence to determine the extent
      to which provisions are deductible for tax purposes.  The reference to accounting principles in Paragraph 5(1) of the EStG
      was first inserted into the EStG in 1934;  that version is still in force today.  In any event neither the Fourth Directive
      nor German commercial law prescribes how the acquisition costs of provisions are to be valued. 
      
         			(31)
         		  For that reason, the link between commercial and fiscal accounts does not resolve any dispute as to such valuation.  The
      specific rules in the EStG for the evaluation of provisions 
      
         			(32)
         		 lay down an autonomous criterion for national fiscal purposes;  that autonomy remains even where in the result that criterion
      substantially or totally coincides with commercial law principles.
      
      42.  The question whether the Court is competent to interpret provisions of national legislation which in effect apply Community
      legislation to situations to which that Community legislation is not required to be applied as a matter of Community law has
      been considered most fully in  
       Leur-Bloem  and  
       Giloy .
      43.  
      
      In
         
        Leur-Bloem  the Court was asked to interpret the term  
      exchange of shares in Article 2(d) of the Merger Directive. 
      
         			(33)
         		  The purpose of that directive is to remove tax obstacles to intra-Community mergers, divisions, transfers of assets and
      share exchanges.  The directive applies only to  
      exchanges of shares in which companies from two or more Member States are involved. 
      
         			(34)
         		  The transaction in issue in the main proceedings did not involve companies from different Member States but was purely internal
      to the Netherlands and hence not within the material scope of the Directive.  The referring court however was of the opinion
      that the Netherlands legislature intended that the national legislation concerning internal and intra-Community share mergers
      should be given the same interpretation.  It reached that conclusion on the basis of the wording of the respective provisions,
      which was the same for domestic and intra-Community transactions, and their legislative history, in particular a statement
      in the Explanatory Memorandum of the State Secretary for Finance to the effect that, although Community law did not formally
      require domestic share mergers to benefit from the same conditions as intra-Community mergers, it was desirable with a view
      to the achievement of the single market that the treatment of the two categories of transaction should be the same.
      
      
      
      
      
      44.  The Court stated as follows:  According to settled case-law, the procedure provided for in Article 177 of the Treaty is a means of cooperation between the
      Court of Justice and national courts.  It follows that it is for the national courts alone which are seised of the case and
      are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need
      for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put
      to the Court (see, in particular, the judgments in Joined Cases C-297/88 and C-197/89  
       Dzodzi  [1990] ECR I-3763, paragraphs 33 and 34, and in Case C-231/89  
       Gmurzynska -
       Bscher  [1990] ECR I-4003, paragraphs 18 and 19).  Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the
      Court is, in principle, obliged to give a ruling (see  
       Dzodzi  and  
       Gmurzynska -
       Bscher , cited above, paragraphs 35 and 20 respectively).  Neither the wording of Article 177 nor the aim of the procedure established
      by that article indicates that the Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary
      ruling on a Community provision where the domestic law of a Member State refers to that Community provision in order to determine
      the rules applicable to a situation which is purely internal to that State (see  
       Dzodzi   and  
       Gmurzynska -
       Bscher , cited above, paragraphs 36 and 25 respectively).  A reference by a national court can be rejected only if it appears that the procedure laid down by Article 177 of the Treaty
      has been misused and a ruling from the Court elicited by means of a contrived dispute, or it is obvious that Community law
      cannot apply, either directly or indirectly, to the circumstances of the case referred to the Court (see, to this effect,
       
       Dzodzi  and  
       Gmurzynska -
       Bscher , cited above, paragraphs 40 and 23).  Applying that case-law, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning
      Community provisions in situations where the facts of the cases being considered by the national courts were outside the scope
      of Community law but where those provisions had been rendered applicable either by domestic law or merely by virtue of terms
      in a contract (see, as regards the application of Community law by domestic law,  
       Dzodzi  and  
       Gmurzynska -
       Bscher , cited above;  Case 166/84  
       Thomasdünger   [1985] ECR 3001;   Case C-384/89  
       Tomatis and Fulchiron  [1991] ECR I-127 and, as regards the application of Community law by the effect of contractual provisions, Case C-88/91 
      
       Federconsorzi  [1992] ECR I-4035 and Case C-73/89  
       Fournier  [1992] ECR I-5621, all those cases being hereinafter referred to as  
      the  
       Dzodzi  line of cases).  In those cases, the provisions of domestic law and the relevant contractual terms, which incorporated Community provisions,
      clearly did not limit application of the latter.  On the other hand, in its judgment in Case C-346/93  
       Kleinwort Benson  [1995] ECR I-615, the Court held that it had no jurisdiction to give a preliminary ruling on the Convention of 27 September
      1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1972 L 299, p. 32, hereinafter 
      
      the Convention). 
      
      In
         
         Kleinwort Benson , the Court observed, in paragraph 19, that, unlike the situation in the  
       Dzodzi  line of cases, the provisions of the Convention which the Court was asked to interpret had not been rendered applicable as
      such by the law of the contracting State concerned.  In paragraph 16 of its judgment in  
       Kleinwort Benson  the Court pointed out that the Act of Parliament in question took the Convention only as a model and only partially reproduced
      its terms.  It went on to note, in paragraph 18, that express provision was made in the Act for the authorities of the contracting
      State concerned to adopt modifications  
      designed to produce divergence between provisions of the Act and the corresponding provisions of the Convention.  Furthermore, the Act also made an express
      distinction between the provisions applicable to Community situations and those applicable to domestic situations.  In the
      first case, in interpreting the relevant provisions of the Act, the national courts were bound by the case-law of the Court
      on the Convention, whereas in the second case they had only to take account of it, so that they could set it aside.  However, this is not the situation in the present case.  The national court considers that the concept of  
      merger by exchange of shares, taken in its Community context, needs to be interpreted in order to resolve the dispute before it, that this concept is
      contained in the Directive, that it has been incorporated into the domestic Law transposing it and that it has been extended
      to similar, purely internal, situations.  In those circumstances, where in regulating internal situations, domestic legislation adopts the same solutions as those adopted
      in Community law in order, in particular, to avoid discrimination against foreign nationals or, as in the case before the
      national court, any distortion of competition, it is clearly in the Community interest that, in order to forestall future
      differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective
      of the circumstances in which they are to apply (see, to this effect, the judgment in  
       Dzodzi , cited above, paragraph 37).  In such a case, and pursuant to the allocation of judicial functions between national courts and the Court of Justice under
      Article 177, it is for the national court alone to assess the precise scope of that reference to Community law, the jurisdiction
      of the Court being confined to considering provisions of Community law only (
       Dzodzi and Federconsorzi , cited above, paragraphs 41 to 42 and paragraph 10 respectively).  Consideration of the limits which the national legislature
      may have placed on the application of Community law to purely internal situations is a matter for domestic law and consequently
      falls within the exclusive jurisdiction of the courts of the Member State (
       Dzodzi , cited above, paragraph 42 and the judgment in Case C-73/89  
       Fournier  [1992] ECR I-5621, paragraph 23).  It follows from all the foregoing considerations that the answer to the first question must be that the Court of Justice has
      jurisdiction under Article 177 of the Treaty to interpret Community law where the situation in question is not governed directly
      by Community law but the national legislature, in transposing the provisions of a directive into domestic law, has chosen
      to apply the same treatment to purely internal situations and to those governed by the directive, so that it has aligned its
      domestic legislation to Community law .
       
      
         			(35)
         		45.  
      
      In
         
        Giloy  the Court was asked to interpret a provision of the Customs Code. 
      
         			(36)
         		  The main proceedings however were concerned not with import duties but with VAT, to which the Code was made applicable by
      the German Turnover Tax Law, which laid down a general rule that the provisions on customs duties were to apply  
       mutatis mutandis  to VAT on imports.
      
      
      
      
      
      46.  The Court repeated paragraphs 24 to 29 of its judgment in  
       Leur-Bloem  (the first six paragraphs of the extract set out above). 
      
         			(37)
         		  It then continued:  In the present case, nothing in the file suggests that the main proceedings will not be settled by application of rules of
      Community law.  Indeed, the file indicates that the provisions of domestic law in question apply without distinction to situations governed
      by domestic law and to situations governed by Community law, and sometimes to both simultaneously.  In German domestic law,
      those provisions must be interpreted and applied uniformly, whether the applicable law is domestic law or Community law. 
      For the purposes of their application to situations governed by Community law, the provisions in question are to be interpreted
      and applied in accordance with Article 244 of the Code.  Consequently, German law requires that the domestic provisions in
      question should always be applied in accordance with that article.  In those circumstances, where, in regulating internal situations, domestic legislation adopts the same solutions as those
      adopted in Community law so as to provide for one single procedure in comparable situations, it is clearly in the Community
      interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law
      should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, to this effect, the judgment
      in  
       Dzodzi , cited above, paragraph 37).  It follows from all the foregoing that the Court has jurisdiction to rule on the questions submitted to it . 
      
         			(38)
         		
      47.  In the present case the Court has been given what the Commission described at the hearing as a golden opportunity to reconsider
      its decisions in  
       Leur-Bloem  and  
       Giloy :  the national court has explicitly asked whether it has jurisdiction to rule in an analogous context.  The Court, which
      has decided to hear the present case in plenary formation, should to my mind make good use of that opportunity and resist
      any temptation to avoid grasping the nettle of admissibility.
      
      48.  Admittedly the Court has assumed jurisdiction to interpret Community legislation applied by national legislation to situations
      beyond the scope of the Community legislation in several judgments 
      
         			(39)
         		 since the decisions in  
       Leur-Bloem  and  
       Giloy .  Those decisions may be thought therefore to have been affirmed and may thus appear to have coalesced into consistent case-law.
       That consistency however is to my mind more apparent than real.   
       Schoonbroodt  was a judgment of the First Chamber and  
       Adam  of the Second Chamber;  in both cases the judgment merely referred to the earlier decisions as authority for the Court's
      assumption of jurisdiction without questioning their merits.  In  
       DE + ES Bauunternehmung  the Fifth Chamber did not consider the issue at all, simply ruling on the substance.  Only in  
       Kofisa  did the Court explore the question whether it had jurisdiction.  That case however was also decided by a chamber (again the
      Fifth Chamber), which may well have felt bound by the earlier rulings.  The judgment moreover largely recites dicta from 
      
       Giloy ;  to the extent that it seeks to grapple with the question, it limits itself to reiterating arguments which had been persuasively
      demonstrated by Advocate General Ruiz-Jarabo Colomer to be unconvincing, while ignoring altogether the powerful arguments
      against jurisdiction.  Similarly the judgment in  
       Adam  makes no reference to the thoughtful and compelling analysis of Advocate General Tizzano, who concluded that the Court had
      no jurisdiction.
      
      49.  Even apart from the above reservations, I do not consider that it is correct to read total consistency in the Court's case-law.
       It must not be forgotten that in  
       Kleinwort Benson  the Court concluded that it did not have jurisdiction to interpret the Brussels Convention in circumstances where, rather
      than having been rendered applicable as such by national law, that Convention had been taken as a model and only partially
      reproduced.  It is clear from the judgment of the Court that it considered two features of the national legislation at issue
      to be insuperable obstacles to its assuming jurisdiction:  first, the legislation contained no  
      direct and unconditional  
       renvoi  to provisions of Community law so as to incorporate them into the domestic legal order 
      
         			(40)
         		 and, second, it did not require the national courts to decide disputes before them  
      by applying absolutely and unconditionally the interpretation provided by the Court. 
      
         			(41)
         		
      50.   Kleinwort Benson  was not mentioned by the Court in  
       Schoonbroodt .  It was distinguished in  
       Kofisa  ─ and indeed in  
       Leur-Bloem  and  
       Giloy  ─ on the grounds that in  
       Kleinwort Benson  the national legislation at issue provided for amendment  
      designed to produce divergence between that legislation and the corresponding provisions of the Convention and that the national courts were not bound by
      the case-law of the Court on the Convention.  However, it seems to me that a national legislature will always be able to amend
      domestic legislation which goes beyond the required implementation of a directive, whether or not it is expressly empowered
      to do so in the legislation itself.  As for the binding effect on national courts deciding disputes arising under such legislation
      of decisions of the Court on the parallel Community legislation, the parties submitting oral observations in the present case
      were unable to put forward a satisfactory explanation of the position of the German courts, despite having been expressly
      asked by the Court to focus on that issue at the hearing.  That the matter is controversial seems corroborated by the recent
      judgment of the Bundesfinanzhof, referred to by the Commission at the hearing, 
      
         			(42)
         		 in which that court ─ against whose decisions no appeal lies ─ took the view that in such a case it was not obliged to seek
      a preliminary ruling from the Court on the interpretation of the Community legislation since it was the application of national
      law that was at issue.
      
      51.  Even however if it is assumed that the principle laid down in  
       Leur-Bloem  and  
       Giloy  has the gravitas of consistent case-law, the present case to my mind well illustrates the problems to which that case-law
      gives rise.
      
      52.  In matters of interpretation, the context is, as the Court has generally recognised, of supreme importance.
      
      53.  The Court is being asked to interpret highly technical provisions of the Fourth Directive, enacted by the Community legislature
      with a view to mandatory disclosure of accounts by (at the material time) companies excluding their branches and excluding
      banks. 
      
         			(43)
         		  Those provisions are implemented in Germany in legislation requiring all traders, thus including branches of banks established
      in another Member State, to prepare and publish accounts in accordance with certain requirements.  Those requirements do not
      explicitly require the accounts of traders other than companies to give a true and fair view of their financial position;
       the Fourth Directive and other German implementing provisions require companies' accounts so to do.  German tax legislation
      requires traders to evaluate their assets for fiscal purposes in accordance with the commercial law principles of proper accounting.
       However, it admits of important exceptions to the application of those principles. 
      
         			(44)
         		
      54.  There appears to be no consensus as to whether those principles of proper accounting include, with regard to non-corporate
      traders, the principle that the accounts should give a true and fair view of a non-corporate trader's financial position.
       The referring court states ─ although the Finanzamt disputes ─ that those principles include the legislative requirements
      with which all traders are required to comply when they draw up commercial accounts.
      
      55.  Moreover the Finanzamt disputes the referring court's view that the reference to the principles of proper accounting is a
      sufficient link with the legislation implementing the Fourth Directive, pointing out that that reference pre-dated the Directive
      by several decades;  it appears also from the Commission's observations at the hearing that the Bundesfinanzhof is of the
      view that in the present type of case the link with Community law is not sufficient to justify a reference to this Court. 
      
         			(45)
         		  The Finanzamt also states that in its view the Directive does not in any event resolve the substantive issue before the
      national court.  Finally, the national tax legislation lays down its own rules for valuing a provision in the accounts for
      a liability;  national case-law apparently recognises that in applying those rules recourse must be had to the principles
      of proper accounting;  that case-law however has not been fully explained to the Court.
      
      56.  The context in which the provisions at issue apply to the dispute which gave rise to the main proceedings is thus manifestly
      distant ─ at several removes ─ from that envisaged by the Fourth Directive.  That Directive is based on Article 54(3)(g) of
      the EC Treaty (now Article 44(2)(g) EC), which ─ in the context of companies' rights of establishment ─ empowers the Council
      and the Commission to coordinate  
      the safeguards which, for the protection of the interests of members and others, are required by Member States of companies
      or firms ... with a view to making such safeguards equivalent throughout the Community.  The preamble to the Directive repeats the theme of the protection of members and third parties 
      
         			(46)
         		 by mandatory disclosure of comparable information. 
      
         			(47)
         		  The Directive does not seek to regulate the content and presentation of national tax returns, and legislation governing
      tax returns may, as I shall suggest, 
      
         			(48)
         		 have very different aims from legislation on accounting for the purpose of company accounts.
      
      57.  It seems to me moreover that similar difficulties are likely to arise wherever a directive is transposed by national law outside
      its intended context:  it will be necessary to examine, for example, whether the directive is transposed in its entirety,
      to scrutinise the national legislative context and to consider whether the ruling of the Court of Justice will be binding
      on national courts as a matter of national law.  That exercise will frequently require the Court to take a view on questions
      of national law which may well be ─ as in the present case ─ both complex and controversial.
      
      58.  It is now open to the Court to reconsider the conclusion it reached in  
       Leur-Bloem  and  
       Giloy  ─ or at the very least to reconsider the scope of that conclusion ─ in the light of the present case;  the factors mentioned
      above in my view show that such an exercise is necessary.  Since the arguments against the assumption of jurisdiction by the
      Court in this type of case are fully set out in my Opinion in  
       Leur-Bloem  and  
       Giloy , and cogently reinforced in the Opinion of Advocate General Ruiz-Jarabo Colomer in  
       Kofisa , 
      
         			(49)
         		 I will not reiterate them in this Opinion.  I would however note that in my view the present case brings into sharper focus
      some of the arguments against jurisdiction there set out.  In particular I would mention the following points.
      
      59.  First, it is difficult to see how it serves the purpose of Article 234 EC, which confers jurisdiction on the Court to give
      preliminary rulings concerning the validity and interpretation of acts of the institutions of the Community, for the Court
      to interpret Community provisions in so far as they are taken over by national legislation and applied to a situation manifestly
      outside the scope of those provisions and hence beyond their intended reach.  For the Court to assume such jurisdiction looks
      dangerously like taking on tasks not imposed by the Treaties, particularly in fields such as direct taxation which might be
      regarded as for the time being within the competence of the Member States.
      
      60.  It is clear from what has been said above that the aims and the material and personal scope of the Fourth Directive are radically
      different from those of the fiscal legislation at issue in the main proceedings.  That difference of context brings me to
      my second point, namely that the present case perfectly illustrates the principle that apparently identical provisions may
      have different meanings in different contexts.  Company law rules regulating company accounts ─ now harmonised at Community
      level ─ seek to protect shareholders and third parties (for example, actual and potential creditors and employees) by the
      mandatory disclosure of prescribed information.  National rules concerning the drawing up of accounts for fiscal purposes
      seek on the other hand to enhance and protect State revenue.  The two contexts are thus manifestly different;  indeed in several
      Member States wholly separate accounts are drawn up for tax purposes and company accounts purposes.
      
      61.  Third, the referring court will not as a matter of Community law be bound by the Court's judgment, which will thus inevitably
      be (again as a matter of Community law) purely advisory.  Such a consequence clearly alters the function of the Court as envisaged
      in the Treaty. 
      
         			(50)
         		  It also raises questions concerning the proper allocation of judicial resources. 
      
         			(51)
         		
      62.  Fourth, the jurisdiction of the Court, far from being conferred by the Treaty, would be wholly dependent on national law,
      in the present case by way of a series of references the precise scope of which appears to be a matter of some debate at national
      level.  That tenuous connection perfectly illustrates that the possible relevance of Community law in such a context is itself
      a matter of national law, which may well be controversial.
      
      63.  Fifth, the present case demonstrates that the Community interest may, when invoked as a justification for the assumption of
      jurisdiction by the Court in analogous cases, prove to be a two-edged sword.  The Court stressed in  
       Leur-Bloem  and  
       Giloy  that it was  
      clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts
      taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply. 
      
         			(52)
         		  In cannot however be in the Community interest for the Court's jurisdiction in any given case to depend solely on national
      law or for the Court to give a ruling which the national court to which it is directed is not bound to apply.
      
      64.  Finally, the points addressed above together with the observations submitted by the parties in the present case illustrate
      that the criterion laid down by the Court in  
       Leur-Bloem   and  
       Giloy  lacks legal certainty.  The Commission stated at the hearing that there was much uncertainty about the circumstances in which
      the Court would or would not have jurisdiction in this type of case and asked the Court to resolve that uncertainty by reaffirming
      its ruling in  
       Leur-Bloem .  Given however that it is precisely that ruling which has led to such uncertainty, I cannot see how a simple affirmation
      of that judgment would help.
      
      65.  I thus remain persuaded that the objections to the Court's assuming jurisdiction to interpret provisions of Community legislation
      which apply by virtue of national law to persons or situations not within the scope of the Community legislation in question
      are compelling.  Those objections, it may be added, seem sufficiently forceful even without considering the further practical
      difficulties to which the assumption of jurisdiction in such cases would certainly give rise, such as for example the greater
      difficulty of deciding the issues, the significant increase in the Court's case-load and the consequential drain on limited
      judicial resources.
      
      66.  It may additionally be noted that the objections discussed above are reinforced by legal scholars:  the decisions of the Court
      in  
       Leur-Bloem  and  
       Giloy  have generally been critically received by commentators. 
      
         			(53)
         		
      67.  In my view therefore the Court should take the opportunity proffered by the present case to reverse its rulings in  
       Leur-Bloem  and  
       Giloy  (and the associated case-law) in which it assumed jurisdiction to interpret provisions of Community legislation which apply
      by virtue of national law to persons or situations not within the scope of the Community legislation in question.
      
      68.  If however the Court were not convinced of the need to go so far as to reverse those decisions, there is an alternative approach
      which would in my view, if not resolve, at least mitigate the difficulties which the earlier rulings entail.  That alternative
      would be for the Court to affirm the criteria which it laid down in  
       Kleinwort Benson  
      
         			(54)
         		 (and then passed over in the later cases), namely that, in order for the Court to be able to assume jurisdiction, the national
      legislation at issue must both contain a  
      direct and unconditional  
       renvoi  to provisions of Community law and require the national courts to decide disputes before them by applying  
      absolutely and unconditionally the interpretation provided to them by the Court.  That solution, it may be noted, was the approach preferred by Advocate
      General Ruiz-Jarabo Colomer in  
       Kofisa . 
      
         			(55)
         		
      69.  That approach too would of course mean that the present case was inadmissible, since neither condition applies.  But even
      if the Court were to choose to affirm its rulings in  
       Leur-Bloem  and  
       Giloy , it is to my mind doubtful, in the light of the uncertainty as to their scope and as to the relevance in the present case
      of the Directive in national law, whether those rulings would in any event apply to the present case.
      
      70.  It might be thought that there is consequently no need to reconsider  
       Leur-Bloem  and  
       Giloy  but that the present case could rather be distinguished from the earlier ones.  In my view however a failure by the Court
      unequivocally to resolve the issue now will continue to generate uncertainty in future cases.  Moreover the present case shows
      ─ again for the reasons discussed above ─ that there are good reasons to reconsider the earlier rulings.
        Conclusion
      
      71.  I accordingly conclude that the correct response to the questions referred by the Finanzgericht, Hamburg, would be for the
      Court to rule that it has no jurisdiction to interpret provisions of Community legislation which apply by virtue of national
      law to persons or situations not within the scope of those provisions.
      
       1 –
         
           Original language: English.
      
      2 –
         
         Case C-28/95 [1997] ECR I-4161.
      
      3 –
         
         Case C-130/95 [1997] ECR I-4291.
      
      4 –
         
         Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain
            types of companies, OJ 1978 L 222, p. 11.
         
      
      5 –
         
         It was subsequently ─ and after the events giving rise to the main proceedings ─ amended by Council Directive 90/605/EEC of
            8 November 1990 amending Directive 78/660/EEC on annual accounts and Directive 83/349/EEC on consolidated accounts as regards
            the scope of those Directives (OJ 1990 L 317, p. 60) so as to bring within its scope certain other entities including the
             
             GmbH & Co KG , a limited partnership between a private company and its members.
         
      
      6 –
         
         Article 1(1).
      
      7 –
         
         Although it must now require such branches to disclose the accounting documents of their company  
            drawn up, audited and disclosed pursuant to the law of the Member State by which the company is governed in accordance with  
             inter alia  the Fourth Directive:  see the Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements
            in respect of branches opened in a Member State by certain types of company governed by the law of another State, OJ 1989
            L 395, p. 36.  The Directive required implementation with effect from 1 January 1993 (Article 16(2)) and is hence on that
            ground alone irrelevant to the present case.
         
      
      8 –
         
         Article 1(2). 
      
      9 –
         
         Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial
            institutions, OJ 1986 L 372, p. 1.
         
      
      10 –
         
         Directive 86/635 required implementation by 31 December 1990.  It was implemented in Germany by the Bankbilanzrichtlinie-Gesetz
            of 30 November 1990,  
             Bundesgesetzblatt  I, p. 2570 and the Verordnung über die Rechnungslegung der Kreditinstitute (RechKredV) of 10 February 1992,  
             Bundesgesetzblatt  I, p. 203.
         
      
      11 –
         
         Article 1(1) of Directive 86/635.
      
      12 –
         
         Article 2(1).
      
      13 –
         
         Council Directive 89/117/EEC of 13 February 1989 on the obligations of branches established in a Member State of credit institutions
            and financial institutions having their head offices outside that Member State regarding the publication of annual accounting
            documents, 1989 OJ L 44, p. 40. 
         
      
      14 –
         
         Article 6(1).  Directive 89/117 was implemented in Germany by the RechKredV, cited in note 10.
      
      15 –
         
         Article 2(1).
      
      16 –
         
         Article 2(3).
      
      17 –
         
         Case C-234/94  
             Tomberger  [1996] ECR I-3133, paragraph 17 of the judgment.
         
      
      18 –
         
         Referred to in paragraph 11 above and covered in Section 1 of Book III of the HGB by Paragraphs 251 (Article 14), 253(3) and
            (4) (Articles 19 and 39(1)(b) and (c)), 249(1) (Article 20(1)), 253(1)(4) (Article 31(1)(c)(bb)) and 252(1)(3) (Article 31(1)(e)).
         
      
      19 –
         
         . Tomberger , cited in note 17.  In fact the HGB is mentioned in neither the question referred nor the judgment;  both refer directly
            to the relevant provisions of the Fourth Directive.
         
      
      20 –
         
         Cited in note 2.
      
      21 –
         
         Cited in note 3.
      
      22 –
         
         Set out in paragraph 15 above.
      
      23 –
         
         Set out in paragraph 18 above.
      
      24 –
         
         Paragraphs 246 to 256.
      
      25 –
         
         Paragraph 38.
      
      26 –
         
         Case C-275/97 [1999] ECR I-5331, paragraph 26 et seq.  The judgment of the Court was delivered after the Finanzgericht Hamburg
            had made the reference in the present case.  See further paragraph 48 below.
         
      
      27 –
         
         See paragraph 30 above.
      
      28 –
         
         The national court explains that those specific rules are to be found in Paragraph 6(1)(3) in conjunction with indents 1 and
            2 of the EStG, which has specific application thereto under Paragraph 5(5) (now Paragraph 5(6)) of the EStG, applied by analogy.
            
         
      
      29 –
         
         Cited in note 2.
      
      30 –
         
         Cited in note 3.
      
      31 –
         
         . DE + ES Bauunternehmung , cited in note 26.
         
      
      32 –
         
         See note 28.
      
      33 –
         
         Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers
            of assets, and exchanges of shares concerning companies of different Member States, OJ 1990 L 225, p. 1
         
      
      34 –
         
         Article 1.
      
      35 –
         
         Paragraphs 24 to 34 of the judgment.
      
      36 –
         
         Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, OJ 1992 L 302, p. 1.
      
      37 –
         
         The equivalent paragraphs are numbered 20 to 25 in the judgment in  
             Giloy .
         
      
      38 –
         
         Paragraphs 26 to 29 of the judgment.
      
      39 –
         
         Case C-247/97  
             Schoonbroodt  [1998] ECR I-8095,  
             DE + ES Bauunternehmung , cited in note 26;  Case C-1/99  
             Kofisa Italia  [2001] ECR I-207, and Case C-267/99  
             Adam , judgment delivered on 11 October 2001. 
         
      
      40 –
         
         Paragraph 16 of the judgment.
      
      41 –
         
         Paragraph 20 of the judgment.
      
      42 –
         
         Decision of 28 March 2000, VIII R 77/96, BFHE 191, p. 339..
      
      43 –
         
         Although banks were subsequently made subject to many equivalent requirements by virtue of Directive 86/635 (cited in note
            9), it appears that that directive had not been implemented in Germany at the time of the events giving rise to the main proceedings:
             see note 10.
         
      
      44 –
         
         See paragraph 38 above.
      
      45 –
         
         Decision cited in note 42.
      
      46 –
         
         Recital 1.
      
      47 –
         
         Recitals 3, 4, 5 and 6.
      
      48 –
         
         See paragraph 60 below.
      
      49 –
         
         See also the Opinions of Advocate General Tesauro in  
             Kleinwort Benson  and Advocate General Tizzano in  
             Adam , together with the earlier Opinions of Advocate General Mancini in Case 166/84  
             Thomasdünger  [1985] ECR 3001 and Advocate General Darmon in Joined Cases C-297/88 and C-197/89  
             Dzodzi  [1990] ECR I-3763. 
         
      
      50 –
         
         See Opinion 1/91 [1991] ECR I-6079, paragraph 61.
      
      51 –
         
         See further paragraph 65 below.
      
      52 –
         
         Paragraph 32 of the judgment in  
             Leur-Bloem  and paragraph 28 of the judgment in  
             Giloy .
         
      
      53 –
         
         See for example Anthony Arnull,  
             The European Union and its Court of Justice  (1999), pp. 53-56;  Hjalte Rasmussen,  
            Remedying the crumbling EC judicial system, 37  
             Common Market Law Review  1071, at pp. 1082-3 (2000);  G. Tesauro,  
             Diritto Comunitario  (2001), pp. 275-7 and Peter Oliver,  
            La recevabilité des questions préjudicielles:  la jurisprudence des années 1990, [2000]  
             Cahiers de droit européen  15, at pp. 35-38.
         
      
      54 –
         
         See paragraphs 16 and 20 of the judgment.
      
      55 –
         
         Cited in note 39, paragraphs 38, 50 and 51 of the Opinion.  See however my objections to the  
             Kleinwort Benson  approach, set out in my Opinion in  
             Leur-Bloem  and  
             Giloy  at paragraphs 67 to 74.