1 BY ORDER DATED 14 AUGUST 1973, FILED AT THE REGISTRY ON 4 SEPTEMBER 1973, THE BUNDESFINANZHOF REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY THE QUESTION WHETHER THE SECOND PARAGRAPH OF ARTICLE 177 GIVES 'TO A COURT OR TRIBUNAL AGAINST WHOSE DECISIONS THERE IS A JUDICIAL REMEDY UNDER NATIONAL LAW A COMPLETELY UNFETTERED RIGHT TO REFER QUESTIONS TO THE COURT OF JUSTICE' OR 'DOES IT LEAVE UNAFFECTED RULES OF DOMESTIC LAW TO THE CONTRARY WHEREBY A COURT IS BOUND ON POINTS OF LAW BY THE JUDGMENTS OF THE COURTS SUPERIOR TO IT'? IT APPEARS FROM THE ORDER THAT THE QUESTION IS PUT IN THE CONTEXT OF PROCEEDINGS DIRECTED AGAINST THE DECISION OF THE HESSISCHES FINANZGERICHT REQUESTING FROM THE COURT AN INTERPRETATION OF THE PROVISIONS OF REGULATION NO 19/62 OF THE COUNCIL ( OJ 1962, P . 933 ) IN ORDER TO BE ABLE TO JUDGE A CASE WHICH HAD BEEN SENT BACK TO IT BY THE APPELLATE COURT, THE BUNDESFINANZHOF, WHICH HAD RESERVED AN EARLIER JUDGMENT OF THE FINANZGERICHT . SINCE THE INTERPRETATION REQUESTED BY THE FINANZGERICHT CONCERNS THE CONFORMITY WITH COMMUNITY LAW OF THE GROUNDS WHICH HAD LED THE BUNDESFINANZHOF TO REVERSE THE EARLIER JUDGMENT OF THE FINANZGERICHT, THE QUESTION ARISES WHETHER PARAGRAPH 126 ( 5 ) OF THE FINANZGERICHTSORDNUNG WHEREBY THE INFERIOR JUDGE IS BOUND BY THE RATIO DECIDENDI OF THE SUPERIOR COURT, DOES NOT PRECLUDE THE LOWER COURT FROM REFERRING A CASE TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING .
2 ARTICLE 177 IS ESSENTIAL FOR THE PRESERVATION OF THE COMMUNITY CHARACTER OF THE LAW ESTABLISHED BY THE TREATY AND HAS THE OBJECT OF ENSURING THAT IN ALL CIRCUMSTANCES THIS LAW IS THE SAME IN ALL STATES OF THE COMMUNITY . WHILST IT THUS AIMS TO AVOID DIVERGENCES IN THE INTERPRETATION OF COMMUNITY LAW WHICH THE NATIONAL COURTS HAVE TO APPLY, IT LIKEWISE TENDS TO ENSURE THIS APPLICATION BY MAKING AVAILABLE TO THE NATIONAL JUDGE A MEANS OF ELIMINATING DIFFICULTIES WHICH MAY BE OCCASIONED BY THE REQUIREMENT OF GIVING COMMUNITY LAW ITS FULL EFFECT WITHIN THE FRAMEWORK OF THE JUDICIAL SYSTEMS OF THE MEMBER STATES . CONSEQUENTLY ANY GAP IN THE SYSTEM SO ORGANIZED COULD UNDERMINE THE EFFECTIVENESS OF THE PROVISIONS OF THE TREATY AND OF THE SECONDARY COMMUNITY LAW . THE PROVISIONS OF ARTICLE 177, WHICH ENABLE EVERY NATIONAL COURT OR TRIBUNAL WITHOUT DISTINCTION TO REFER A CASE TO THE COURT FOR A PRELIMINARY RULING WHEN IT CONSIDERS THAT A DECISION ON THE QUESTION IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT, MUST BE SEEN IN THIS LIGHT .
3 THE PROVISIONS OF ARTICLE 177 ARE ABSOLUTELY BINDING ON THE NATIONAL JUDGE AND, IN SO FAR AS THE SECOND PARAGRAPH IS CONCERNED, ENABLE HIM TO REFER A CASE TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING ON INTERPRETATION OR VALIDITY . THIS ARTICLE GIVEN NATIONAL COURTS THE POWER AND, WHERE APPROPRIATE, IMPOSES ON THEM THE OBLIGATION TO REFER A CASE FOR A PRELIMINARY RULING, AS SOON AS THE JUDGE PERCEIVES EITHER OF HIS OWN MOTION OR AT THE REQUEST OF THE PARTIES THAT THE LITIGATION DEPENDS ON A POINT REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 177 .
4 IT FOLLOWS THAT NATIONAL COURTS HAVE THE WIDEST DISCRETION IN REFERRING MATTERS TO THE COURT OF JUSTICE IF THEY CONSIDER THAT A CASE PENDING BEFORE THEM RAISES QUESTIONS INVOLVING INTERPRETATION, OR CONSIDERATION OF THE VALIDITY, OF PROVISIONS OF COMMUNITY LAW, NECESSITATING A DECISION ON THEIR PART . IT FOLLOWS FROM THESE FACTORS THAT A RULE OF NATIONAL LAW WHEREBY A COURT IS BOUND ON POINTS OF LAW BY THE RULINGS OF A SUPERIOR COURT CANNOT DEPRIVE THE INFERIOR COURTS OF THEIR POWER TO REFER TO THE COURT QUESTIONS OF INTERPRETATION OF COMMUNITY LAW INVOLVING SUCH RULINGS . IT WOULD BE OTHERWISE IF THE QUESTIONS PUT BY THE INFERIOR COURT WERE SUBSTANTIALLY THE SAME AS QUESTIONS ALREADY PUT BY THE SUPERIOR COURT . ON THE OTHER HAND THE INFERIOR COURT MUST BE FREE, IF IT CONSIDERS THAT THE RULING ON LAW MADE BY THE SUPERIOR COURT COULD LEAD IT TO GIVE A JUDGMENT CONTRARY TO COMMUNITY LAW, TO REFER TO THE COURT QUESTIONS WHICH CONCERN IT . IF INFERIOR COURTS WERE BOUND WITHOUT BEING ABLE TO REFER MATTERS TO THE COURT, THE JURISDICTION OF THE LATTER TO GIVE PRELIMINARY RULINGS AND THE APPLICATION OF COMMUNITY LAW AT ALL LEVELS OF THE JUDICIAL SYSTEMS OF THE MEMBER STATES WOULD BE COMPROMISED .
5 THE REPLY MUST THEREFORE BE THAT THE EXISTENCE OF A RULE OF DOMESTIC LAW WHEREBY A COURT IS BOUND ON POINTS OF LAW BY THE RULINGS OF THE COURT SUPERIOR TO IT CANNOT OF ITSELF TAKE AWAY THE POWER PROVIDED FOR BY ARTICLE 177 OF REFERRING CASES TO THE COURT .