Pretore di Salò v Persons unknown.
Date: 1987-06-11
7 IT MUST BE OBSERVED THAT THE PRETORI ARE JUDGES WHO, IN PROCEEDINGS SUCH AS THOSE IN WHICH THE QUESTIONS REFERRED TO THE COURT IN THIS CASE WERE RAISED, COMBINE THE FUNCTIONS OF A PUBLIC PROSECUTOR AND AN EXAMINING MAGISTRATE . THE COURT HAS JURISDICTION TO REPLY TO A REQUEST FOR A PRELIMINARY RULING IF THAT REQUEST EMANATES FROM A COURT OR TRIBUNAL WHICH HAS ACTED IN THE GENERAL FRAMEWORK OF ITS TASK OF JUDGING, INDEPENDENTLY AND IN ACCORDANCE WITH THE LAW, CASES COMING WITHIN THE JURISDICTION CONFERRED ON IT BY LAW, EVEN THOUGH CERTAIN FUNCTIONS OF THAT COURT OR TRIBUNAL IN THE PROCEEDINGS WHICH GAVE RISE TO THE REFERENCE FOR A PRELIMINARY RULING ARE NOT, STRICTLY SPEAKING, OF A JUDICIAL NATURE .
10 IT MUST BE POINTED OUT FIRST THAT, AS THE COURT DECIDED IN ITS JUDGMENT OF 10 MARCH 1981 ( JOINED CASES 36 AND 71/80 IRISH CREAMERY MILK SUPPLIERS' ASSOCIATION V IRELAND (( 1981 )) ECR 735 ), IF THE INTERPRETATION OF COMMUNITY LAW IS TO BE OF USE TO THE NATIONAL COURT, IT IS ESSENTIAL TO DEFINE THE LEGAL CONTEXT IN WHICH THE INTERPRETATION REQUESTED SHOULD BE PLACED . IN THAT PERSPECTIVE, IT MIGHT BE CONVENIENT IN CERTAIN CIRCUMSTANCES FOR THE FACTS OF THE CASE TO BE ESTABLISHED AND FOR QUESTIONS OF PURELY NATIONAL LAW TO BE SETTLED AT THE TIME WHEN THE REFERENCE IS MADE TO THE COURT OF JUSTICE SO AS TO ENABLE THE LATTER TO TAKE COGNIZANCE OF ALL THE MATTERS OF FACT AND LAW WHICH MAY BE RELEVANT TO THE INTERPRETATION OF COMMUNITY LAW WHICH IT IS CALLED UPON TO GIVE .
11 HOWEVER, AS THE COURT HAS ALREADY HELD ( SEE THE SAME JUDGMENT AND, MOST RECENTLY, THE JUDGMENT OF 20 JULY 1984 IN CASE 72/83 CAMPUS OIL V MINISTER FOR INDUSTRY AND ENERGY (( 1984 )) ECR 2727 ), THOSE CONSIDERATIONS DO NOT IN ANY WAY RESTRICT THE DISCRETION OF THE NATIONAL COURT, WHICH ALONE HAS A DIRECT KNOWLEDGE OF THE FACTS OF THE CASE AND OF THE ARGUMENTS OF THE PARTIES, WHICH WILL HAVE TO TAKE RESPONSIBILITY FOR GIVING JUDGMENT IN THE CASE AND WHICH IS THEREFORE IN THE BEST POSITION TO APPRECIATE AT WHAT STAGE OF THE PROCEEDINGS IT REQUIRES A PRELIMINARY RULING FROM THE COURT OF JUSTICE . THE DECISION AT WHAT STAGE IN PROCEEDINGS A QUESTION SHOULD BE REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING IS THEREFORE DICTATED BY CONSIDERATIONS OF PROCEDURAL ECONOMY AND EFFICIENCY TO BE WEIGHED ONLY BY THE NATIONAL COURT AND NOT BY THE COURT OF JUSTICE .
15 AS THE COURT HAS CONSISTENTLY HELD, IT MAY NOT, IN PROCEEDINGS UNDER ARTICLE 177 OF THE EEC TREATY, RULE ON THE CONFORMITY OF NATIONAL MEASURES WITH COMMUNITY LAW ( SEE, MOST RECENTLY, THE JUDGMENT OF 9 OCTOBER 1984 IN JOINED CASES 91 AND 127/83 HEINEKEN BROUWERIJEN V INSPECTEURS DER VENNOOTSCHAPSBELASTING (( 1984 )) ECR 3435 ).
19 IN THAT REGARD, THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 26 FEBRUARY 1986 IN CASE 152/84 MARSHALL V SOUTHAMPTON AND SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY ( TEACHING ) (( 1986 )) ECR 723 AT P . 737 ) THAT "A DIRECTIVE MAY NOT OF ITSELF IMPOSE OBLIGATIONS ON AN INDIVIDUAL AND THAT A PROVISION OF A DIRECTIVE MAY NOT BE RELIED UPON AS SUCH AGAINST SUCH A PERSON ". A DIRECTIVE WHICH HAS NOT BEEN TRANSPOSED INTO THE INTERNAL LEGAL ORDER OF A MEMBER STATE MAY NOT THEREFORE GIVE RISE TO OBLIGATIONS ON INDIVIDUALS EITHER IN REGARD TO OTHER INDIVIDUALS OR, A FORTIORI, IN REGARD TO THE STATE ITSELF .
20 CONSEQUENTLY, THE REPLY TO THE SECOND QUESTION MUST BE THAT COUNCIL DIRECTIVE 78/659 OF 18 JULY 1978 CANNOT, OF ITSELF AND INDEPENDENTLY OF A NATIONAL LAW ADOPTED BY A MEMBER STATE FOR ITS IMPLEMENTATION, HAVE THE EFFECT OF DETERMINING OR AGGRAVATING THE LIABILITY IN CRIMINAL LAW OF PERSONS WHO ACT IN CONTRAVENTION OF THE PROVISIONS OF THAT DIRECTIVE .