61972J0062

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1 . PRELIMINARY QUESTIONS - PROCEDURE - NATURE - PARTIES - CONCEPT - LAWS

( EEC TREATY, ART . 177; PROTOCOL ON THE STATUTE OF THE EEC COURT, ART . 20 )

2 . PRELIMINARY QUESTIONS - COSTS - RECOVERY - EXPENSES NECESSARILY INCURRED BY THE PARTIES - RECOVERABILITY - NATIONAL LAW - APPLICATION

( RULES OF PROCEDURE, ART . 103 ( 1 ))

1 . PROCEEDINGS INSTITUTED UNDER ARTICLE 177 ARE NON-CONTENTIOUS AND ARE IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, AS THE PARTIES TO THE MAIN ACTION ARE MERELY INVITED TO STATE THEIR CASE WITHIN THE LEGAL LIMITS LAID DOWN BY THE NATIONAL COURT .

BY THE EXPRESSION " PARTIES ", ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE EEC COURT REFERS TO THE PARTIES TO THE ACTION PENDING BEFORE THE NATIONAL COURT .

2 . IN VIEW OF THE ESSENTIAL DIFFERENCE BETWEEN CONTENTIOUS PROCEEDINGS AND PROCEEDINGS UNDER ARTICLE 177 OF THE TREATY, ONE CANNOT, WITHOUT EXPRESS PROVISION, EXTEND TO THE LATTER PROCEEDINGS RULES LAID DOWN SOLELY FOR CONTENTIOUS PROCEEDINGS .

THE RECOVERY OF COSTS AND THE RECOVERABILITY OF EXPENSES NECESSARILY INCURRED BY THE PARTIES TO THE MAIN ACTION FOR THE PURPOSES OF AN APPLICATION FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ARE NOT COVERED BY ARTICLE 103 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT .

THE RECOVERY OF THOSE COSTS AND THE RECOVERABILITY OF THOSE EXPENSES ARE GOVERNED BY THE PROVISIONS OF NATIONAL LAW APPLICABLE TO THE MAIN ACTION .

IN CASE 62/72

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

PAUS G . BOLLMANN, HAMBURG,

AND

HAUPTZOLLAMT HAMBURG - WALTERSHOF,

ON THE INTERPRETATION OF THE PROVISIONS OF THE RULES OF PROCEDURE OF THE COURT RELATING TO COSTS,

1 BY ORDER DATED 8 AUGUST 1972, FILED AT THE COURT ON 11 SEPTEMBER 1972, THE BUNDESFINANZHOF HAS SUBMITTED TO THE COURT A QUESTION ON WHETHER THE PROCEDURE FOR RECOVERY OF COSTS AND THE RECOVERABILITY OF EXPENSES, IN PARTICULAR LAWYERS' FEES, NECESSARILY INCURRED IN AN APPLICATION FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY, ARE MATTERS OF COMMUNITY LAW OR DOMESTIC LAW .

2 THE QUESTION POSED CONCERNS THE INTERPRETATION OF ARTICLE 103 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT, WHICH CONSTITUTES ONE OF THE ACTS REFERRED TO IN ARTICLE 177 ( B ) OF THE TREATY .

3 UNDER THE TERMS OF ARTICLE 103 ( 1 ), THE PROVISIONS OF ARTICLES 44 ET SEQ . OF THE SAID RULES " SHALL APPLY ", AFTER THE WRITTEN STATEMENTS OF CASE OR WRITTEN OBSERVATIONS PROVIDED FOR IN ARTICLE 20 OF THE EEC STATUTE HAVE BEEN LODGED, TO PROCEEDINGS BROUGHT UNDER ARTICLE 177 .

IN ORDER TO BE ABLE TO REPLY TO THE QUESTION POSED THEREFORE, IT IS APPROPRIATE TO EXAMINE WHETHER, BY THIS REFERENCE, THE PROVISIONS OF THE RULES OF PROCEDURE WHICH DEAL WITH COSTS, PARTICULARLY THOSE OF ARTICLES 73 AND 74 CONCERNING EXPENSES REGARDED AS RECOVERABLE, AND THEIR RECOVERY, ARE BY ARTICLE 103 ( 1 ) RENDERED APPLICABLE TO SUCH PROCEEDINGS .

4 PROCEEDINGS INSTITUTED UNDER ARTICLE 177 ARE NON-CONTENTIOUS AND ARE IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, AS THE PARTIES TO THE MAIN ACTION ARE MERELY INVITED TO STATE THEIR CASE WITHIN THE LEGAL LIMITS LAID DOWN BY THE NATIONAL COURT .

BY THE EXPRESSION " PARTIES ", ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE EEC COURT REFERS TO THE PARTIES TO THE ACTION PENDING BEFORE THE NATIONAL COURT .

5 ON THE OTHER HAND, ARTICLES 69 TO 75 OF THE RULES OF PROCEDURE REFER TO COSTS IN CONTENTIOUS PROCEEDINGS .

THE PROCEEDINGS REFERRED TO BY THOSE PROVISIONS ARE DISTINGUISHED BY THE PRESENCE OF PARTIES, AND ARE CLOSED BY A JUDGMENT OR ORDER OF THE COURT WHICH DECIDES DEFINITIVELY THE DISPUTE WHICH GAVE RISE TO THE PROCEEDINGS .

ARTICLE 73 OF THE RULES OF PROCEDURE ALSO REFERS TO EXPENSES INCURRED IN SUCH PROCEEDINGS WHEN DEFINING THE RECOVERABILITY OF " EXPENSES NECESSARILY INCURRED BY THE PARTIES ".

ARTICLE 74 IS RESTRICTED TO SETTLING THE PROCEDURE FOR THE RECOVERY OF THOSE EXPENSES .

IN VIEW OF THE ESSENTIAL DIFFERENCE BETWEEN CONTENTIOUS PROCEEDINGS AND PROCEEDINGS UNDER ARTICLE 177 OF THE TREATY, ONE CANNOT, WITHOUT EXPRESS PROVISION, EXTEND TO THE LATTER PROCEEDINGS THE RULES LAID DOWN SOLELY FOR CONTENTIOUS PROCEEDINGS .

6 IN THE PRESENT STATE OF COMMUNITY LAW, THEREFORE, IT MUST BE CONCLUDED THAT THE RECOVERY OF COSTS AND THE RECOVERABILITY OF EXPENSES NECESSARILY INCURRED BY THE PARTIES TO THE MAIN ACTION FOR THE PURPOSES OF AN APPLICATION FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ARE GOVERNED BY THE PROVISIONS OF NATIONAL LAW APPLICABLE TO THE SAID PROCEEDINGS .

IN THESE CIRCUMSTANCES, IT DEVOLVES ON THE COMPETENT NATIONAL COURTS TO CONSIDER, IN THE CONTEXT OF THEIR NATIONAL LAW, THE EXTENT TO WHICH MATTERS INCIDENTAL TO AN APPLICATION FOR A PRELIMINARY RULING SHOULD BE TAKEN INTO ACCOUNT .

7 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT,

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESFINANZHOF OF THE FEDERAL REPUBLIC OF GERMANY BY A DECISION OF THAT COURT DATED 8 AUGUST 1972, HEREBY RULES :

THE RECOVERY OF COSTS AND THE RECOVERABILITY OF EXPENSES NECESSARILY INCURRED BY THE PARTIES TO THE MAIN ACTION FOR THE PURPOSES OF AN APPLICATION FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ARE NOT COVERED BY ARTICLE 103 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT . THE RECOVERY OF THOSE COSTS AND THE RECOVERABILITY OF THOSE EXPENSES ARE GOVERNED BY THE PROVISIONS OF NATIONAL LAW APPLICABLE TO THE MAIN ACTION .