Massam Dzodzi v Belgian State.
Date: 1990-10-18
18 It must be observed that the circumstances relied upon by the Commission and the Belgian State in order to show that the situation is a purely internal one relate to the substance of the questions submitted by the national courts . Consequently, whilst they may be relevant for the purpose of answering those questions, they are not relevant in determining whether the Court has jurisdiction to rule on the requests for preliminary rulings ( judgment in Case 180/83 Moser v Land Baden-Wuerttemberg [1984] ECR 2539, paragraph 10 ).
23 As the Court has previously held, however, Community legislation on the free movement of workers does not apply to cases which have no factor linking them with any of the situations governed by Community law ( judgment in Joined Cases 35 and 36/82 Morson and Jhanjan v Netherlands [1982] ECR 3723, paragraph 16 ).
33 The procedure provided for in Article 177 of the Treaty is therefore an instrument for cooperation between the Court of Justice and the national courts, whereby the Court of Justice provides the national courts with the criteria for the interpretation of Community law which they need in order to dispose of the disputes which they are called upon to resolve .
34 It follows that it is solely for the national courts before which the dispute has been brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court .
35 Accordingly, since the questions submitted by the national courts concern the interpretation of a provision of Community law, the Court is, in principle, obliged to give a ruling .
36 It does not appear either from the wording of Article 177 or from the aim of the procedure introduced by that article that the authors of the Treaty intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision in the specific case where the national law of a Member State refers to the content of that provision in order to determine rules applicable to a situation which is purely internal to that State .
37 On the contrary, it is manifestly in the interest of the Community legal order that, in order to forestall future differences of interpretation, every Community provision should be given a uniform interpretation irrespective of the circumstances in which it is to be applied .
39 Consequently, in accordance with the division of judicial tasks between the national courts and the Court of Justice pursuant to Article 177, the Court gives its preliminary ruling without, in principle, having to look into the circumstances in which the national courts were prompted to submit the questions and envisage applying the provision of Community law which they have asked the Court to interpret .
40 The matter would be different only if it were apparent either that the procedure provided for in Article 177 had been diverted from its true purpose and sought in fact to lead the Court to give a ruling by means of a contrived dispute, or that the provision of Community law referred to the Court for interpretation was manifestly incapable of applying .
41 Where Community law is made applicable by national provisions, it is for the national court alone to assess the precise scope of that reference to Community law . If it takes the view that the content of a provision of Community law is applicable, by virtue of that reference, to the purely internal situation underlying the dispute brought before it, the national court is entitled to request the Court for a preliminary ruling on the terms laid down by the provisions of Article 177 as a whole, as they have been interpreted in the case-law of the Court of Justice .
42 Nevertheless, the jurisdiction of the Court is confined to considering provisions of Community law only . In its reply to the national court, the Court of Justice cannot take account of the general scheme of the provisions of domestic law which, while referring to Community law, define the extent of that reference . Consideration of the limits which the national legislature may have placed on the application of Community law to purely internal situations, to which it is applicable only through the operation of the national legislation, is a matter for domestic law and hence falls within the exclusive jurisdiction of the courts of the Member State .
57 Article 8 provides that any person covered by the directive "shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration ".
58 That provision defines the decisions referred to by the directive as "acts of the administration" and imposes upon the Member States the obligation to make available to any person affected by such acts the same legal remedies as are available to nationals in respect of acts of the administration . Accordingly, a Member State cannot, without being in breach of the obligation imposed by Article 8, organize, for persons covered by the directive, legal remedies governed by special procedures affording lesser safeguards than those pertaining to remedies available to nationals in respect of acts of the administration ( judgment in Case 98/79 Pecastaing v Belgium [1980] ECR 691, paragraph 10 ).
59 It follows that if, in a Member State, the administrative courts are not empowered to grant a stay of execution of an administrative decision or interim protective measures with regard to the execution of such a decision, but such power is vested in the ordinary courts, that State is obliged to permit persons covered by the directive to apply to those courts on the same terms as nationals . It must nevertheless be emphasized that such rights depend essentially on the organization of the courts and the division of the jurisdiction of judicial bodies in the various Member States, since the only obligation imposed upon the Member States by Article 8 is to grant to persons protected under Community law rights of appeal which are not less favourable than those available to nationals of the State concerned against acts of the administration ( judgment in Pecastaing v Belgium, cited above, paragraph 11 ).
62 The object of Article 9(1 ) of Directive 64/221 is to ensure a minimum procedural safeguard for persons affected by a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory . That provision, which applies only where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, provides for the intervention of a competent authority other than the authority empowered to take the decision . Save in cases of urgency, the administrative authority may not take its decision until an opinion has been obtained from that consultative body . In proceedings before that body the person concerned must enjoy such rights of defence and of assistance or representation as the domestic law of that country provides for .
64 That authority must deliver an opinion which, as is evident from the objectives of the system provided for by the directive, must be duly notified to the person concerned ( judgment in Joined Cases 115 and 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665, paragraph 18 ).
65 The directive does not specify how the competent authority referred to in Article 9 is appointed . It does not require that authority to be a court or to be composed of members of the judiciary . Nor does it require the members of the competent authority to be appointed for a specific period . The essential requirement is, first, that it should be clearly established that the authority is to perform its duties in absolute independence and is not to be directly or indirectly subject, in the exercise of its duties, to any control by the authority empowered to take the measures provided for in the directive ( judgment in Adoui and Cornuaille, cited above, paragraph 16 ) and, secondly, that the authority should follow a procedure enabling the person concerned, on the terms laid down by the directive, to put forward his arguments in defence .
66 Although there is no provision empowering the authority in question to take interim protective decisions in connection with the right of residence, it must none the less be observed that, under Article 9 of the directive as interpreted by the Court ( judgment in Pecastaing v Belgium, cited above, paragraph 18 ), once the matter has been brought before that authority, an expulsion order covered by Article 9 may not be executed, save in cases of urgency, before the opinion of that consultative body has been obtained and notified to the person concerned . It must further be noted that the order may not be enforced in breach of the right of that person to stay in the territory for the time necessary to avail himself of the remedies accorded to him under Article 8 of the directive ( judgment in Pecastaing v Belgium, cited above, paragraph 12 ).
68 It must be emphasized that, contrary to the assertions of Mrs Dzodzi, that interpretation of Article 9 of the directive is not incompatible with any general principle of Community law enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or Article 14 of the International Covenant on Civil and Political Rights of 19 December 1966 ( United Nations Treaty Series, Vol . 999, p . 171 ); none of the stipulations of those agreements can, according to their very wording, be interpreted as requiring the implementation of an appeal procedure having the features described by the Cour d' appel, Brussels .