Mathias Längst.
Date: 2005-06-30
25. In that regard, it must be pointed out that, according to the settled case-law of the Court, it follows from Article 234 EC that national courts or tribunals may refer a question to the Court only if there is a case pending before them and if they are called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see, in particular, the orders in Case 138/80 Borker  [1980] ECR 1975, paragraph 4, Case 318/85 Greis Unterweger  [1986] ECR 955, paragraph 4, and Holto , cited above, paragraph 17).
30. In that regard it must be pointed out that it is clear from the settled case-law of the Court that the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them (see, in particular, Cases C-83/91 Meilicke [1992] ECR I‑4871, paragraph 22, and C-380/01 Schneider [2004] ECR I‑1389, paragraph 20).
31. In the context of that cooperation, it is solely for the national court, 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 a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is, in principle, bound to give a ruling ( Schneider , cited above, paragraph 21 and the case-law cited therein).
32. Nevertheless, the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Schneider , cited above, paragraph 22).
33. The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions ( Schneider , cited above, paragraph 23).
37. To give a useful answer to that question, it must be pointed out that, in paragraph 34 of the order in Gründerzentrum , the Court held that Directive 69/335 must be interpreted as meaning that charges constitute taxes for the purposes of that directive where they are payable for the drawing up of a notarially attested act recording a transaction covered by that directive, under a system where the notaries are civil servants and the charges are paid in part to the public authority which employs them and used for the financing of its official business, such as the system in force in the jurisdiction of the Oberlandesgericht Karlsruhe.
41. As regards, secondly, the fact that notaries employed as civil servants and practising in the jurisdiction of the Oberlandesgericht Stuttgart are themselves owed the charges in question, unlike their colleagues in the  jurisdiction of the Oberlandesgericht Karlsruhe, it must be pointed out, as the Advocate General does at point 40 of his Opinion, that it is settled case-law that charges of notaries who are civil servants for transactions covered by Directive 69/335 constitute taxes within the meaning of the directive, where those charges are, at least in part, paid to the public authority which employs them and are used to finance that authority’s official business (see, in particular, Cases C‑56/98 Modelo I  [1999] ECR I‑6427, paragraph 23; C‑19/99 Modelo II  [2000] ECR I‑7213, paragraph 23, and the order in Gründerzentrum , paragraph 34).
42. It is clear from that case-law that it is not so much the identity of the person collecting payment or of the person to whom the payment is initially due that determines the categorisation of the charges as taxes for the purposes of Directive 69/335, as the identity of the final recipient. Thus, in Modelo I , Modelo II  and Gründerzentrum , cited above, the charges were first made by notaries who were civil servants, and then transferred to the public authority which employed them. It is that transfer and the use of those charges or part of them which determine how those charges are categorised in relation to Directive 69/335.
43. It must be stated that, in the main action, whilst it is true that notaries employed as civil servants are owed the charges in question, they are nevertheless required to transfer part of those charges to the public authority which employs them and which uses those monies for the financing of its official business.