The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others.
Date: 1991-10-04
12 As the Court held in the judgment in Pardini (Case 338/85 Pardini v Ministero del commercio con l' estero [1988] ECR 2041, paragraph 11), a national court or tribunal is not empowered to bring a matter before the Court by way of a reference for a preliminary ruling under Article 177 of the Treaty unless a dispute is pending before it in the context of which it is called upon to give a decision which could take into account the preliminary ruling. Conversely, the Court of Justice has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the court making it has already been terminated.
15 In this regard, it is sufficient to observe that the circumstances referred to by SPUC go to the substance of the national court' s questions. Consequently, whilst they may be taken into account in answering those questions, they are not relevant in determining whether the Court has jurisdiction to rule on the request for a preliminary ruling (see the judgment in Case 180/83 Moser v Land Baden-Wuerttemberg [1984] ECR 2539). As a result, it is necessary to proceed to examine the national court' s questions.
First question
18 It must be held that termination of pregnancy, as lawfully practised in several Member States, is a medical activity which is normally provided for remuneration and may be carried out as part of a professional activity. In any event, the Court has already held in the judgment in Luisi and Carbone (Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 16) that medical activities fall within the scope of Article 60 of the Treaty.
20 Whatever the merits of those arguments on the moral plane, they cannot influence the answer to the national court' s first question. It is not for the Court to substitute its assessment for that of the legislature in those Member States where the activities in question are practised legally.
29 It is sufficient to observe, as far as that argument is concerned, that Article 62, which is complementary to Article 59, cannot prohibit restrictions which do not fall within the scope of Article 59.
31 According to, inter alia, the judgment of 18 June 1991 in Elliniki Radiophonia Tileorasi (Case C-260/89 Elliniki Radiophonia Tileorasi v Dimotiki Etairia Pliroforissis [1991] ECR I-2951, paragraph 42), where national legislation falls within the field of application of Community law the Court, when requested to give a preliminary ruling, must provide the national court with all the elements of interpretation which are necessary in order to enable it to assess the compatibility of that legislation with the fundamental rights - as laid down in particular in the European Convention on Human Rights - the observance of which the Court ensures. However, the Court has no such jurisdiction with regard to national legislation lying outside the scope of Community law. In view of the facts of the case and of the conclusions which the Court has reached above with regard to the scope of Articles 59 and 62 of the Treaty, that would appear to be true of the prohibition at issue before the national court.