American Express Co. v The Lords Commissioners of Her Majesty’s Treasury.
Date: 2018-02-07
17


It must first be borne in mind that it is solely for the national court hearing the case, which must assume responsibility for the subsequent judicial decision, to determine, with regard to the particular aspects 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 refers to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24).
18


It follows that questions relating to EU law enjoy a presumption of relevance. 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 EU law that is sought bears no relation to the actual 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 (judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25).
19


As regards, first, whether the dispute in the main proceedings is genuine, it must be observed that the action brought by American Express before the referring court seeks review of the legality of the ‘intention and/or obligation’ of the national authority to apply or give effect to the provisions at issue. In that regard, it is apparent from the order for reference that the parties in the main proceedings hold opposing views on the substance of the action. Since the referring court has been called upon to resolve that disagreement and since it considers that there is a real point of contention between the parties in the main proceedings as to the interpretation and validity of the relevant provisions of that directive, it is not obvious that the dispute in the main proceedings is not genuine (see, by analogy, judgments of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraphs 36 and 38, and of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 17).
20


Further, the arguments designed to establish the artificiality of the dispute in the main proceedings, relying on the claim to that there is no act or omission on the part of a national authority the legality of which could be the subject of an action for review, are based on criticism of the admissibility of the action at issue in the main proceedings and of the findings of fact made by the referring court for the purpose of applying criteria laid down by national law. It is not, however, for the Court to call those findings into question since that falls, in the context of the present proceedings, within the jurisdiction of the national courts, or to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and legal proceedings. Those arguments are therefore again not sufficient to rebut the presumption of relevance referred to in paragraph 18 of the present judgment (see, by analogy, judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 26).
22


In that regard, it is sufficient that both the subject matter of the dispute in the main proceedings and the main issues raised for the EU legal order may be understood from the request for a preliminary ruling in order to enable the Member States and other interested parties to submit their observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union and to participate effectively in the proceedings before the Court (see judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 41 and the case-law cited).
24


Accordingly, the order for reference sets out, briefly but precisely, the origin and nature of the dispute in the main proceedings, the resolution of which it regards as dependent on the interpretation and validity of those provisions. It follows that the referring court has adequately defined the factual and legal framework within which it has made its request for an interpretation of EU law so as to enable the Court to provide a useful reply to that request (see, by analogy, judgment of 7 July 2016, Genentech, C‑567/14, EU:C:2016:526, paragraph 27).
25


As regards, further, whether the referring court has adequately set out the reasons why it is uncertain as to the interpretation and validity of the provisions at issue in the main proceedings, it does in fact follow from the spirit of cooperation which must prevail in the operation of the preliminary reference procedure that it is essential that the national court sets out in its order for reference the precise reasons why it considers a reply to its questions concerning the interpretation or validity of certain provisions of EU law to be necessary to enable it to give judgment (see, to that effect, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 24 and the case-law cited).
26


It is therefore important that the national court should set out, in particular, the precise reasons that prompted it to enquire about the interpretation or validity of certain provisions of EU law and set out the grounds of invalidity which, consequently, appear to it capable of being upheld. That requirement is also stated in Article 94(c) of the Rules of Procedure (see, to that effect, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 25 and the case-law cited).
30


Moreover, the opportunity open to individuals to plead the invalidity of an EU act of general application before national courts is not conditional upon that act actually having been the subject of implementing measures adopted pursuant to national law. In that respect, it is sufficient if the national court is called upon to hear a genuine dispute in which the question of the validity of such an act is raised indirectly. That condition is fulfilled in the circumstances of the case in the main proceedings, as is apparent from paragraphs 14, 19, 20, 27 and 28 of the present judgment (see, by analogy, judgments of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 40; of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 29; of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 19; and of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 35).
40


In that regard, it must be borne in mind that, in accordance with the Court’s settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 21 September 2017, Commission v Germany, C‑616/15, EU:C:2017:721, paragraph 43 and the case-law cited).
47


It must therefore be held that it is not expressly stated in the wording of point (b) of the first subparagraph of Article 35(2) of Directive 2015/2366 that the fact that a payment system composed exclusively of payment service providers belonging to a group makes use of a co-branding partner or an agent necessarily entails that that system loses the benefit of the exception laid down in that provision. If, however, the EU legislature had wished to restrict the scope of that provision, so that that would be the case, it could have made express provision to that effect (see, by analogy, judgment of 19 March 2009, Commission v Italy, C‑275/07, EU:C:2009:169, paragraph 99).
51


In that regard, it must be recalled that while a recital in secondary EU legislation may cast light on the interpretation to be given to a legal rule, it cannot in itself constitute such a rule (see, to that effect, judgment of 13 July 1989, Casa Fleischhandel, 215/88, EU:C:1989:331, paragraph 31).
73


As regards the duty to state reasons, it must be recalled that, in accordance with the Court’s settled case-law, although the statement of reasons for an EU measure, which is required by Article 296(2) TFEU, must show clearly and unequivocally the reasoning of the author of the measure in question, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review, it is not required to go into every relevant point of fact and law. In addition, the question whether the duty to state reasons has been satisfied must be assessed with reference not only to the wording of the measure but also to its context and the whole body of legal rules governing the matter in question (judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 70 and the case-law cited).
74


Furthermore, the Court has repeatedly held that if an act of general application discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (judgment of 3 March 2016, Spain v Commission, C‑26/15 P, not published, EU:C:2016:132, paragraph 31 and the case-law cited)
84


It must be recalled that, according to the Court’s settled case-law, the principle of proportionality requires that acts of the EU institutions should be appropriate for attaining the legitimate objectives pursued by the legislation at issue and should not go beyond what is necessary in order to achieve those objectives (judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 67 and the case-law cited).
85


With regard to judicial review of compliance with those conditions the Court has accepted that in the exercise of the powers conferred on it the EU legislature must be allowed a broad discretion in areas in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations. Thus the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 52 and the case-law cited).