61978J0093

1 . REFERENCES FOR A PRELIMINARY RULING - RESPECTIVE POWERS OF THE COURT AND OF THE NATIONAL COURTS - DIVISION BY THE TREATY - MANDATORY NATURE

( EEC TREATY , ARTICLE 177 )

2 . EEC - ADMISSION OF NEW MEMBER STATES - CONDITIONS FOR ADMISSION - DEFINITION BY THE AUTORITIES REFERRED TO IN THE TREATY

( EEC TREATY , ARTICLE 237 )

1 . THE DIVISION OF POWERS BETWEEN THE COURT OF JUSTICE AND THE COURTS OF THE MEMBER STATES PROVIDED FOR IN ARTICLE 177 OF THE EEC TREATY IS MANDATORY ; IT CANNOT BE ALTERED , NOR CAN THE EXERCISE OF THOSE POWERS BE IMPEDED , IN PARTICULAR BY AGREEMENTS BETWEEN PRIVATE PERSONS TENDING TO COMPEL THE COURTS OF THE MEMBER STATES TO REQUEST A PRELIMINARY RULING , BY DEPRIVING THEM OF THE INDEPENDENT EXERCISE OF THE DISCRETION WHICH THEY ARE GIVEN BY THE SECOND PARAGRAPH OF ARTICLE 177 .

2 . ARTICLE 237 OF THE EEC TREATY LAYS DOWN A PRECISE PROCEDURE ENCOMPASSED WITHIN WELL-DEFINED LIMITS FOR THE ADMISSION OF NEW MEMBER STATES , DURING WHICH THE CONDITIONS OF ACCESSION ARE TO BE DRAWN UP BY THE AUTHORITIES INDICATED IN THE ARTICLE ITSELF ; THUS THE LEGAL CONDITIONS FOR SUCH ACCESSION REMAIN TO BE DEFINED WITHIN THE CONTEXT OF THAT PROCEDURE WITHOUT ITS BEING POSSIBLE TO DETERMINE THE CONTEXT JUDICIALLY IN ADVANCE .

IN CASE 93/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE AMTSGERICHT ESSEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

LOTHAR MATTHEUS , MERCHANT , WINDECK/OPPERZAU ,

AND

DOEGO FRUCHTIMPORT UND TIEFKUHLKOST EG , DORTMUND ,

ON THE INTERPRETATION OF ARTICLE 237 OF THE EEC TREATY ,

1BY ORDER OF 23 MARCH 1978 , RECEIVED AT THE COURT ON 14 APRIL 1978 , THE AMTSGERICHT ESSEN REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING IN PURSUANCE OF ARTICLE 177 OF THE TREATY THREE QUESTIONS ON THE INTERPRETATION OF ARTICLE 237 OF THE TREATY WHICH ARE DESIGNED TO FIND OUT WHETHER THE ACCESSION OF SPAIN , PORTUGAL AND GREECE TO THE EUROPEAN COMMUNITIES FOR REASONS BASED ON COMMUNITY LAW IS NOT POSSIBLE IN THE FORESEEABLE FUTURE .

2THESE QUESTIONS ARISE OUT OF AN AGREEMENT UNDER THE TERMS OF WHICH THE CONTRACTING PARTY MATTHEUS UNDERTOOK TO PRODUCE FOR THE DOEGO UNDERTAKING MARKET STUDIES IN RESPECT OF CERTAIN AGRICULTURAL PRODUCTS FOR SPAIN AND PORTUGAL .

THE CLAUSES AT THE END OF THAT AGREEMENT WERE WORDED AS FOLLOWS :

' ' THIS AGREEMENT IS DEFINITIVELY CONCLUDED FOR A PERIOD OF FIVE YEARS . IF THE SAID ACCESSION SHOULD IN FACT OR IN LAW PROVE TO BE IMPRACTICABLE , THE PRINCIPAL ( DOEGO ) SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT . THE DECISIVE FACTOR IN DETERMINING WHETHER THE SAID ACCESSION IS PRACTICABLE IN LAW SHALL BE A DECISION OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES . IN THE EVENT OF A JUSTIFIED TERMINATION OF THIS AGREEMENT THE AGENT SHALL LOSE HIS RIGHT TO REPAYMENT OF HIS EXPENSES .

THE COURTS IN ESSEN SHALL HAVE JURISDICTION IN MATTERS ARISING OUT OF THIS AGREEMENT . ' '

3WHEN DOEGO TERMINATED THE AGREEMENT IN RELIANCE ON THE PROVISION FOR TERMINATION IN THE ABOVE-MENTIONED CLAUSE MATTHEUS SUED DOEGO IN THE AMTSGERICHT FOR REPAYMENT OF HIS EXPENSES .

THAT COURT THEREUPON REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE :

' ' ( A ) IS ARTICLE 237 OF THE EEC TREATY , EITHER STANDING ALONE OR IN CONJUNCTION WITH OTHER PROVISIONS OF THE EEC TREATY , TO BE INTERPRETED AS MEANING THAT IT CONTAINS SUBSTANTIVE LEGAL LIMITS ON THE ACCESSION OF THIRD COUNTRIES TO THE EUROPEAN COMMUNITIES OVER AND ABOVE THE FORMAL CONDITIONS LAID DOWN IN ARTICLE 237?

( B)WHAT ARE THOSE LIMITS?

( C)IS THEREFORE THE ACCESSION OF SPAIN , PORTUGAL AND GREECE TO THE EUROPEAN COMMUNITIES FOR REASONS BASED ON COMMUNITY LAW NOT POSSIBLE IN THE FORESEEABLE FUTURE?

' '

PROCEDURE

4IN THE WORDS OF THE FIRST PARAGRAPH OF ARTICLE 177 OF THE TREATY : ' ' THE COURT OF JUSTICE SHALL HAVE JURISDICTION TO GIVE PRELIMINARY RULINGS CONCERNING . . . ( A ) THE INTERPRETATION OF THE TREATY ; . . . ' '

ACCORDING TO THE SECOND PARAGRAPH OF THAT ARTICLE : ' ' WHERE SUCH A QUESTION IS RAISED BEFORE ANY COURT OR TRIBUNAL OF A MEMBER STATE , THAT COURT OR TRIBUNAL MAY , IF IT CONSIDERS THAT A DECISION ON THE QUESTION IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT , REQUEST THE COURT OF JUSTICE TO GIVE A RULING THEREON ' ' .

6THE DIVISION OF POWERS THUS EFFECTED IS MANDATORY ; IT CANNOT BE ALTERED , NOR CAN THE EXERCISE OF THOSE POWERS BE IMPEDED , IN PARTICULAR BY AGREEMENTS BETWEEN PRIVATE PERSONS TENDING TO COMPEL THE COURTS OF THE MEMBER STATES TO REQUEST A PRELIMINARY RULING BY DEPRIVING THEM OF THE INDEPENDENT EXERCISE OF THE DISCRETION WHICH THEY ARE GIVEN BY THE SECOND PARAGRAPH OF ARTICLE 177 .

6THE FACTS IN THESE PROCEEDINGS RAISE THE QUESTION WHETHER A CLAUSE SUCH AS THE ONE CONTAINED IN THE CONTRACT BETWEEN THE PARTIES TO THE MAIN ACTION , WHICH HAS GIVEN RISE TO THIS REFERENCE FOR A PRELIMINARY RULING AND WHICH MAKES THE LEGALITY OF THE TERMINATION OF THE CONTRACT DEPENDENT UPON A RULING OF THE COURT OF JUSTICE IS NOT VOID AS BEING INCOMPATIBLE WITH THE ABOVE-MENTIONED PROVISIONS .

HOWEVER , NO SUCH QUESTION HAS BEEN RAISED BY THE NATIONAL COURT AND IN VIEW OF WHAT FOLLOWS IT IS UNNECESSARY FOR THE COURT TO GIVE A RULING OF ITS OWN MOTION ON THIS MATTER .

THE QUESTIONS REFERRED TO THE COURT

7AS PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 237 OF THE EEC TREATY : ' ' ANY EUROPEAN STATE MAY APPLY TO BECOME A MEMBER OF THE COMMUNITY . IT SHALL ADDRESS ITS APPLICATION TO THE COUNCIL , WHICH SHALL ACT UNANIMOUSLY , AFTER OBTAINING THE OPINION OF THE COMMISSION ' ' .

THE SECOND PARAGRAPH OF THE ARTICLE READS : ' ' THE CONDITIONS OF ADMISSION AND THE ADJUSTMENTS TO THIS TREATY NECESSITATED THEREBY SHALL BE THE SUBJECT OF AN AGREEMENT BETWEEN THE MEMBER STATES AND THE APPLICANT STATE . THIS AGREEMENT SHALL BE SUBMITTED FOR RATIFICATION BY ALL THE CONTRACTING STATES IN ACCORDANCE WITH THEIR RESPECTIVE CONSTITUTIONAL REQUIREMENTS ' ' .

THESE PROVISIONS LAY DOWN A PRECISE PROCEDURE ENCOMPASSED WITHIN WELL- DEFINED LIMITS FOR THE ADMISSION OF NEW MEMBER STATES , DURING WHICH THE CONDITIONS OF ACCESSION ARE TO BE DRAWN UP BY THE AUTHORITIES INDICATED IN THE ARTICLE ITSELF .

THUS THE LEGAL CONDITIONS FOR SUCH ACCESSION REMAIN TO BE DEFINED IN THE CONTEXT OF THAT PROCEDURE WITHOUT ITS BEING POSSIBLE TO DETERMINE THE CONTENT JUDICIALLY IN ADVANCE .

THEREFORE THE COURT OF JUSTICE CANNOT IN PROCEEDINGS PURSUANT TO ARTICLE 177 GIVE A RULING ON THE FORM OR SUBJECT-MATTER OF THE CONDITIONS WHICH MIGHT BE ADOPTED .

IT MUST ACCORDINGLY DECLARE THAT IT HAS NO JURISDICTION TO ANSWER THE QUESTIONS REFERRED TO IT BY THE AMTSGERICHT .

COSTS

9THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE AMTSGERICHT ESSEN BY AN ORDER OF 23 MARCH 1978 , HEREBY RULES :

THE COURT OF JUSTICE HAS NO JURISDICTION TO GIVE A RULING ON THE QUESTIONS REFERRED TO IT BY THE NATIONAL COURT .