Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA.
Date: 2021-10-06
In that context, it should be recalled that the preliminary ruling procedure provided for in Article 267 TFEU, which is the keystone of the judicial system established by the Treaties, sets up a dialogue between one court and another, specifically between the Court of Justice and the courts of the Member States, having the object of securing uniform interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (see, to that effect, Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 176 and the case-law cited, and judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 37).
In the context of that cooperation, the Court of Justice provides national courts, in their capacity as courts responsible for the application of EU law (see, to that effect, judgment of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 7), with the points of interpretation of EU law which they need in order to decide the disputes before them (see, to that effect, judgments of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 37, and of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 23).
In addition, it should be recalled that where there is no judicial remedy under national law against the decisions of a national court or tribunal, that court or tribunal is in principle obliged to make a reference to the Court of Justice within the meaning of the third indent of Article 267 TFEU where a question concerning the interpretation of EU law is raised before it (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 42 and the case-law cited).
According to the Court’s settled case-law, a national court or tribunal against whose decisions there is no judicial remedy under national law cannot be relieved of that obligation unless it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (see, to that effect, judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 21; of 15 September 2005, Intermodal Transports, C‑495/03, EU:C:2005:552, paragraph 33; and of 4 October 2018, Commission v France (Advance payment), C‑416/17, EU:C:2018:811, paragraph 110).
In that regard, it is appropriate to recall, in the first place, that it follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts and tribunals referred to in the third paragraph have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of EU law is necessary to enable them to give judgment. Accordingly, those courts and tribunals are not obliged to refer to the Court of Justice a question concerning the interpretation of EU law that has been raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case (judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 10; of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 26; and of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 43).
In proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts or tribunals and the Court of Justice, the national court or tribunal alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is  solely for the national court or tribunal before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions which it submits to the Court (judgments of 26 May 2011, Stichting Natuur en Milieu and Others, C‑165/09 to C‑167/09, EU:C:2011:348, paragraph 47 and the case-law cited; of 9 September 2015, X and van Dijk, C‑72/14 and C‑197/14, EU:C:2015:564, paragraph 57; and of 12 May 2021, Altenrhein Luftfahrt, C‑70/20, EU:C:2021:379, paragraph 25).
In the second place, it should be noted that the authority of an interpretation already provided by the Court under Article 267 TFEU may deprive the obligation laid down in the third paragraph of Article 267 TFEU of its purpose and thus empty it of its substance, especially where the question raised is materially identical to  a question that has already been the subject of a preliminary ruling in a similar case, or, a fortiori, in the same national proceedings, or where established case-law of the Court already resolves the point of law in question, irrespective of the nature of the proceedings which led to that case-law, even if the issues in dispute are not strictly identical (see, to that effect, judgments of 27 March 1963, Da Costa and Others, 28/62 to 30/62, EU:C:1963:6, p. 38; of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraphs 13 and 14; of 4 November 1997, Parfums Christian Dior, C‑337/95, EU:C:1997:517, paragraph 29, and of 2 April 2009, Pedro IV Servicios, C‑260/07, EU:C:2009:215, paragraph 36).
It must be borne in mind nonetheless that, even when there is case-law of the Court resolving the point of law at issue, national courts and tribunals retain the broadest power to bring a matter before the Court if they consider it appropriate to do so, and the fact that the provisions whose interpretation is sought have already been interpreted by the Court does not deprive the Court of jurisdiction to give a further ruling (judgments of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 32 and the case-law cited, and of 3 March 2020, Tesco-Global Áruházak, C‑323/18, EU:C:2020:140, paragraph 46).
Similarly, the authority of a preliminary ruling does not preclude the national court or tribunal to which it is addressed from taking the view that it is necessary to make a further reference to the Court before giving judgment in the main proceedings (judgment of 6 March 2003, Kaba, C‑466/00, EU:C:2003:127, paragraph 39 and the case-law cited). A national court or tribunal of last instance must make such a reference when it encounters difficulties in understanding the scope of the judgment of the Court.
In the third place, it should be recalled that, in addition to the situations set out in paragraph 36 above, it follows from the Court’s settled case-law that a national court or tribunal against whose decisions there is no judicial remedy under national law may also refrain from referring to the Court a question concerning the interpretation of EU law and take upon itself the responsibility for resolving it where the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (see, to that effect, judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraphs 16 and 21, and of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 38).
Before concluding that such is the case, the national court or tribunal of last instance must be convinced that the matter would be  equally obvious to the other courts or tribunals of last instance of the Member States and to the Court of Justice (see, to that effect, judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 16; of 15 September 2005, Intermodal Transports, C‑495/03, EU:C:2005:552, paragraph 39; of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 42; and of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 48).
In addition, the question whether the possibility referred to in paragraph 39 above exists must be assessed on the basis of the characteristic features of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the European Union (judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 17, and of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 39 and the case-law cited).
To begin with it must be borne in mind that EU legislation is drafted in several languages and that the different language versions are all equally authentic (judgment of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 18).
According to the Court’s settled case-law, one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all languages of the European Union (see, inter alia, judgment of 24 March 2021, A, C‑950/19, EU:C:2021:230, paragraph 37 and the case-law cited).
It must also be borne in mind that EU law uses terminology which is peculiar to it and legal concepts that do not necessarily have the same meaning as the corresponding concepts that may exist in the law of the Member States (see, to that effect, judgment of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 19).
Finally, every provision of EU law must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied (judgment of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 20, and of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 49).
It should  be observed, in the fourth place, that national courts or tribunals against whose decisions there is no judicial remedy under national law must take upon themselves, independently and with all the requisite attention, the responsibility for determining whether the case before them involves one of the situations in which they may refrain from referring to the Court a question concerning the interpretation of EU law that has been raised before them  (see, to that effect, judgments of 15 September 2005, Intermodal Transports, C‑495/03, EU:C:2005:552, paragraph 37 and the case-law cited; of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 40; and of 9 September 2015, X and van Dijk, C‑72/14 and C‑197/14, EU:C:2015:564, paragraphs 58 and 59).
In that regard, it should be borne in mind that the system of direct cooperation between the Court of Justice and the national courts, established by Article 267 TFEU, is completely independent of any initiative by the parties (see, to that effect, judgments of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 28 and the case-law cited, and of 3 June 2021, Bankia, C‑910/19, EU:C:2021:433, paragraph 22). The latter cannot deprive the national courts of their independence in exercising the discretion referred to in paragraph 50 above, in particular by compelling them to make a reference for  a preliminary ruling (see, to that effect, judgment of 22 November 1978, Mattheus, 93/78, EU:C:1978:206, paragraph 5).
The system established by Article 267 TFEU therefore does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Thus, the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of EU law does not mean that the court or tribunal concerned is compelled to consider that such a question has been raised within the meaning of Article 267 TFEU (judgment of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 9).
It follows that the determination and formulation of the questions to be put to the Court devolve upon the national court or tribunal alone and that the parties to the main proceedings may not change their tenor (see, to that effect, judgment of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 29 and the case-law cited).
Moreover, it is for the national court or tribunal alone to decide at what stage in the proceedings it is appropriate to refer a question to the Court of Justice for a preliminary ruling (see, to that effect, judgment of 17 July 2008, Coleman, C‑303/06, EU:C:2008:415, paragraph 29 and the case-law cited), with the latter having no jurisdiction, however, to hear a reference for a preliminary ruling when, at the time it is made, the procedure before the referring court or tribunal has already been concluded (judgment of 13 April 2000, Lehtonen and Castors Braine, C‑176/96, EU:C:2000:201, paragraph 19).
In that regard, it must be recalled that a national court or tribunal of last instance may refrain from referring a question to the Court of Justice for a preliminary ruling on grounds of inadmissibility specific to the procedure before that court or tribunal, subject to compliance with the principles of equivalence and effectiveness (see, to that effect, judgments of 14 December 1995, van Schijndel and van Veen, C‑430/93 and C‑431/93, EU:C:1995:441, paragraph 17, and of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 56).
The principle of equivalence requires that all the rules applicable to actions apply without distinction to actions alleging infringement of EU law and to similar actions alleging infringement of national law (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 50 and the case-law cited).
As regards the principle of effectiveness, national procedural rules must not be such as to render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order. In that regard, account should be taken of the role of those provisions in the procedure, its  progress and special features, viewed as a whole, before the various national instances. In that context, it is appropriate to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraphs 52 and 53, and the case-law cited).
The Court has thus held that national procedural rules according to which the subject matter of the dispute is determined by the pleas in law put forward at the point in time at which the action was brought are consistent with the principle of effectiveness in so far as they ensure proper conduct of proceedings by, in particular, protecting them from the delays inherent in examination of new pleas (see, to that effect, judgment of 14 December 1995, van Schijndel and van Veen, C‑430/93 and C‑431/93, EU:C:1995:441, paragraph 21).
If, in accordance with the procedural rules of the Member State concerned which observe the principles of equivalence and effectiveness, the pleas in law raised before a court or tribunal referred to in the third paragraph of Article 267 TFEU must be declared inadmissible, a request for a preliminary ruling cannot be regarded as necessary and relevant for that court or tribunal to be able to give judgment (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 44).
In that regard, it should be recalled that, according to the Court’s settled case-law, in the context of the cooperation between the Court of Justice and the national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure of which the national court is presumed to be aware (judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 21 and the case-law cited). Moreover, those requirements are set out in the Court’s recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1).
Thus, it is essential, as is stated in Article 94(c) of the Rules of Procedure that the request for a preliminary ruling itself contain a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings (see, to that effect, judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 22 and the case-law cited).
In the present case, it should be stated that, by this request for a preliminary ruling, the referring court has failed to remedy the lacuna  established by the Court in paragraph 23 of its judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, (C‑152/17, EU:C:2018:264), in so far as, in breach of Article 94(c) of the Rules of Procedure, it still fails to state with the requisite precision and clarity the reasons why it considers that the interpretation of Article 3  TEU as well as Article 26 and Article 101(1)(e)  TFEU is necessary or useful for the purpose of resolving the dispute in the main proceedings or the relationship between EU law and the national legislation applicable to those proceedings. Neither does the referring court specify the reasons which prompted it to inquire about the interpretation of the other provisions and measures mentioned in the second and third questions referred, including, in particular, the European Social Charter, which the Court, moreover, has no jurisdiction to interpret (see, to that effect, judgment of 5 February 2015, Nisttahuz Poclava, C‑117/14, EU:C:2015:60, paragraph 43), but  merely sets out, in essence, the questions of the applicants in the main proceedings in that regard,  as is apparent from paragraph 20 above, without giving  its own assessment.