Keywords
Summary

Keywords

1 . PRELIMINARY QUESTIONS - REFERENCE TO THE COURT - QUESTIONS OF INTERPRETATION - OBLIGATION TO REFER A MATTER TO THE COURT - PURPOSE - SCOPE - CRITERIA

( EEC TREATY , ART . 177 , THIRD PARAGRAPH )

2 . PRELIMINARY QUESTIONS - REFERENCE TO THE COURT - QUESTIONS OF INTERPRETATION - EXISTENCE - DETERMINATION - DISCRETION OF NATIONAL COURT - REFERENCE TO THE COURT OF JUSTICE BY THE NATIONAL COURT OF ITS OWN MOTION - PERMISSIBILITY

( EEC TREATY , ART . 177 )

3 . PRELIMINARY QUESTIONS - REFERENCE TO THE COURT - QUESTIONS OF INTERPRETATION - OBLIGATION TO REFER A MATTER TO THE COURT - LIMITS - RELEVANCE OF QUESTIONS - CONCEPT - APPRAISAL BY NATIONAL COURT OF LAST INSTANCE .

( EEC TREATY , ART . 177 , THIRD PARAGRAPH )

4 . PRELIMINARY QUESTIONS - REFERENCE TO THE COURT - QUESTIONS OF INTERPRETATION - OBLIGATION TO REFER A MATTER TO THE COURT - ABSENCE - CONDITIONS - PREVIOUS INTERPRETATION BY THE COURT ON THE POINT OF LAW AT ISSUE - EFFECTS - RIGHT OF ANY NATIONAL COURT TO REFER A MATTER TO THE COURT OF JUSTICE

( EEC TREATY ART . 177 , THIRD PARAGRAPH )

5 . PRELIMINARY QUESTIONS - REFERENCE TO THE COURT - QUESTIONS OF INTERPRETATION - OBLIGATION TO REFER A MATTER TO THE COURT - ABSENCE - CONDITIONS - ABSENCE OF REASONABLE DOUBT - CRITERIA

( EEC TREATY , ART . 177 , THIRD PARAGRAPH )

Summary

1 . THE OBLIGATION TO REFER TO THE COURT OF JUSTICE QUESTIONS CONCERNING THE INTERPRETATION OF THE EEC TREATY AND OF MEASURES ADOPTED BY THE COMMUNITY INSTITUTIONS WHICH THE THIRD PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY IMPOSES ON NATIONAL COURTS AND TRIBUNALS AGAINST WHOSE DECISIONS THERE IS NO JUDICIAL REMEDY UNDER NATIONAL LAW IS BASED ON COOPERATION , ESTABLISHED WITH A VIEW TO ENSURING THE PROPER APPLICATION AND UNIFORM INTERPRETATION OF COMMUNITY LAW IN ALL THE MEMBER STATES , BETWEEN NATIONAL COURTS , IN THEIR CAPACITY AS COURTS RESPONSIBLE FOR THE APPLICATION OF COMMUNITY LAW , AND THE COURT OF JUSTICE . MORE PARTICULARLY , THE AFORESAID PROVISION SEEKS TO PREVENT THE OCCURRENCE WITHIN THE COMMUNITY OF DIVERGENCES IN JUDICIAL DECISIONS ON QUESTIONS OF COMMUNITY LAW . THE SCOPE OF THAT OBLIGATION MUST THEREFORE BE ASSESSED , IN VIEW OF THOSE OBJECTIVES , BY REFERENCE TO THE POWERS OF THE NATIONAL COURTS , ON THE ONE HAND , AND THOSE OF THE COURT OF JUSTICE , ON THE OTHER .

2 . ARTICLE 177 OF THE EEC TREATY DOES NOT CONSTITUTE A MEANS OF REDRESS AVAILABLE TO THE PARTIES TO A CASE PENDING BEFORE A NATIONAL COURT OR TRIBUNAL . THEREFORE THE MERE FACT THAT A PARTY CONTENDS THAT THE DISPUTE GIVES RISE TO A QUESTION CONCERNING THE INTERPRETATION OF COMMUNITY LAW DOES NOT MEAN THAT THE COURT OR TRIBUNAL CONCERNED IS COMPELLED TO CONSIDER THAT A QUESTION HAS BEEN RAISED WITHIN THE MEANING OF THAT ARTICLE . ON THE OTHER HAND , A NATIONAL COURT OR TRIBUNAL MAY , IN AN APPROPRIATE CASE , REFER A MATTER TO THE COURT OF JUSTICE OF ITS OWN MOTION .

3 . IT FOLLOWS FROM THE RELATIONSHIP BETWEEN THE SECOND AND THIRD PARAGRAPHS OF ARTICLE 177 OF THE TREATY THAT THE COURTS OR TRIBUNALS REFERRED TO IN THE THIRD PARAGRAPH HAVE THE SAME DISCRETION AS ANY OTHER NATIONAL COURT OR TRIBUNAL TO ASCERTAIN WHETHER A DECISION ON A QUESTION OF COMMUNITY LAW IS NECESSARY TO ENABLE THEM TO GIVE JUDGMENT . ACCORDINGLY , THOSE COURTS OR TRIBUNALS ARE NOT OBLIGED TO REFER TO THE COURT OF JUSTICE A QUESTION CONCERNING THE INTERPRETATION OF COMMUNITY LAW RAISED BEFORE THEM IF THAT QUESTION IS NOT RELEVANT , THAT IS TO SAY , IF THE ANSWER TO THAT QUESTION , REGARDLESS OF WHAT IT MAY BE , CAN IN NO WAY AFFECT THE OUTCOME OF THE CASE . IF , HOWEVER , THOSE COURTS OR TRIBUNALS CONSIDER THAT RECOURSE TO COMMUNITY LAW IS NECESSARY TO ENABLE THEM TO DECIDE A CASE , ARTICLE 177 IMPOSES AN OBLIGATION ON THEM TO REFER TO THE COURT OF JUSTICE ANY QUESTION OF INTERPRETATION WHICH MAY ARISE .

4 . ALTHOUGH THE THIRD PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY UNRESERVEDLY REQUIRES NATIONAL COURTS OR TRIBUNALS AGAINST WHOSE DECISIONS THERE IS NO JUDICIAL REMEDY UNDER NATIONAL LAW TO REFER TO THE COURT EVERY QUESTION OF INTERPRETATION RAISED BEFORE THEM , THE AUTHORITY OF AN INTERPRETATION ALREADY GIVEN BY THE COURT MAY HOWEVER DEPRIVE THE OBLIGATION OF ITS PURPOSE AND THUS EMPTY IT OF ITS SUBSTANCE . SUCH IS THE CASE ESPECIALLY WHEN THE QUESTION RAISED IS MATERIALLY IDENTICAL WITH A QUESTION WHICH HAS ALREADY BEEN THE SUBJECT OF A PRELIMINARY RULING IN A SIMILAR CASE OR WHERE PREVIOUS DECISIONS OF THE COURT HAVE ALREADY DEALT WITH THE POINT OF LAW IN QUESTION , IRRESPECTIVE OF THE NATURE OF THE PROCEEDINGS WHICH LED TO THOSE DECISIONS , EVEN THOUGH THE QUESTIONS AT ISSUE ARE NOT STRICTLY IDENTICAL . HOWEVER , IT MUST NOT BE FORGOTTEN THAT IN ALL SUCH CIRCUMSTANCES NATIONAL COURTS AND TRIBUNALS , INCLUDING THOSE REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 177 , REMAIN ENTIRELY AT LIBERTY TO BRING A MATTER BEFORE THE COURT OF JUSTICE IF THEY CONSIDER IT APPROPRIATE TO DO SO .

5 . THE THIRD PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY IS TO BE INTERPRETED AS MEANING THAT A COURT OR TRIBUNAL AGAINST WHOSE DECISIONS THERE IS NO JUDICIAL REMEDY UNDER NATIONAL LAW IS REQUIRED , WHERE A QUESTION OF COMMUNITY LAW IS RAISED BEFORE IT , TO COMPLY WITH ITS OBLIGATION TO BRING THE MATTER BEFORE THE COURT OF JUSTICE , UNLESS IT HAS ESTABLISHED THAT THE CORRECT APPLICATION OF COMMUNITY LAW IS SO OBVIOUS AS TO LEAVE NO SCOPE FOR ANY REASONABLE DOUBT . THE EXISTENCE OF SUCH A POSSIBILITY MUST BE ASSESSED IN THE LIGHT OF THE SPECIFIC CHARACTERISTICS OF COMMUNITY LAW , THE PARTICULAR DIFFICULTIES TO WHICH ITS INTERPRETATION GIVES RISE AND THE RISK OF DIVERGENCES IN JUDICIAL DECISIONS WITHIN THE COMMUNITY .