The Preliminary Reference Procedure and Questions of International and National Law

Transcription

1 The Preliminary Reference Procedure and Questions of International and National Law Morten Broberg* I. Introduction It is common ground that whilst the European Court of Justice 1 is the authoritative arbiter on the construction of Community law, it is not the primary enforcer thereof. Instead, the founding fathers of the Community opted for a system whereby enforcement of Community law was left, in the first place, to the Member State courts. Such a decentralized system of enforcement entails a risk of heterogeneous application of the law. In order to counter this, Article 234 of the EC Treaty 2 provides for a scheme whereby the national courts may and sometimes must refer questions on Community law to the European Court of Justice for an authoritative and binding preliminary ruling, for the purposes of deciding a given main action. The importance of this preliminary ruling procedure within the Community s legal order is difficult to overstate; not least when it comes to the operation of the internal market. 3 Article 234 only vests in the European Court of Justice jurisdiction to rule on Community law that applies in the main action before the referring national * Consulting Senior Researcher, Danish Institute for International Studies and Associate Professor, University of Copenhagen, Faculty of Law. The author would like to thank Dr Niels Fenger and Dr Rass Holdgaard for their comments and discussions regarding the topic of this article. Also, the author would like to thank Steven Harris who did this translation. The usual disclaimer applies. 1 In order to make it clear to the reader when I refer to the Court of Justice of the European Community and when to a national court, the former is generally referred to as the European Court of Justice (and only rarely as the Court or the Court of Justice ). References to national courts are generally made to the national court or to the referring court. 2 Article 234 is by far the most important preliminary ruling procedure, but not the only one. Particular mention may also be made of Article 68 of the EC Treaty and Article 35 of the EU Treaty. 3 In this context the European Court of Justice itself has expressed the view that [t]he preliminary ruling procedure is the veritable cornerstone... since it plays a fundamental role in ensuring that the law established by the Treaties retains its Community character with a view to guaranteeing that that law has the same effect in all circumstances in all the Member States of the European Union cf Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union, published in the European Court of Justice s 1995 Annual Report, at 6 7.

2 Preliminary Questions of International and National Law 363 court. 4 The question therefore arises to what extent the European Court of Justice is competent to answer a question where a national court makes a reference even though no Community act stricto sensu applies in the main action. This question is particularly relevant in two situations: The first such situation is where a national court considers the interpretation of a Community act to be relevant to its deciding the main action even though the act does not apply directly in that action. Typically, only national law applies in the main action meaning that a reference to the European Court of Justice will appear to be concerned with national law rather than Community law. Nevertheless, where a national court has chosen to refer such a question of interpretation to the European Court of Justice the latter has been willing to answer the question in a number of instances. The second of the two situations arises where the preliminary reference concerns international law. Article 234 does not give the European Court of Justice competence to answer preliminary references on the interpretation or validity of international law as such. Nevertheless, in a number of references the European Court of Justice has considered itself competent to rule on the interpretation of international agreements. 5 This chapter first of all sets out to identify and categorize those instances where the European Court of Justice considers itself to be competent in the two situations set out above (Sections II and III respectively). In Section IV I critically evaluate the findings made in the two previous sections, and in Section VI round the article off with some reflections upon what the European Court of Justice s approach to each of the two situations tells us about the way it perceives its function in the Community and to what extent the distinctions drawn in the case law are justified. II. Application of National Law in the Main Action If a national court refers a question on a Community act that does not apply in the main action the European Court of Justice, as a clear main rule, will refuse to answer the question. 6 In a limited number of situations Community law may nevertheless prove to be of considerable importance for deciding the action and 4 Cf Case C-390/99 Canal Satélite Digital [2002] ECR I-607, para 24. See also Case C-212/04 Adeneker [2006] ECR I-6057, para 103; Case C-424/97 Haim [2000] ECR I-5123, paras 55 56; Case C-19/00 SIAC Construction [2001] ECR I-7725, para 30; Case 54/72 F.O.R. [1973] ECR 193, para 8; Case 152/79 Lee [1980] ECR 1495, para 11; Case C-269/89 Bonfatti [1990] ECR I-4169, para 8 and Case C-309/96 Annibaldi [1997] ECR I-7493, paras 13 and It should be observed that there is an important difference between the two situations. Whilst the first situation concerns references where non-community law is to be applied in the main action, the second situation primarily concerns references regarding international agreements that are considered to be part of Community law. 6 Cf for example Case C-309/96 Annibaldi [1997] ECR 7493, paras 13 and 24; and Case C-302/06 Koval sky [2007] ECR I-11.

3 364 Broberg in some of these situations the European Court of Justice has been ready to rule on preliminary references. Four categories of this type of case may be identified, namely (i) procedural matters, (ii) application of Community law outside the scope of application of Community law, (iii) where national law has been modelled upon Community law, and (iv) in relation to a national prohibition of reverse discrimination within the field of the four freedoms. These four categories are examined in turn (Sections II.A II.D) before I consider whether in these situations Article 234(3) imposes on national courts of last instance a duty to refer (Section II.E). A. Preliminary Rulings on Procedural Questions in the Main Action The first category concerns cases where a question of procedure or of jurisdiction in the main action requires the classification of a Community act. For example, these are situations where the competence of a national administrative authority or court to decide the case in question depends on whether the case is classified as a tax case or as an agricultural case under Community law. In the Bozzetti case an Italian farmer had brought an action before the Pretura di Cremona, with a claim for the repayment of a tax which the Italian authorities had imposed in accordance with a Community regulation. The jurisdiction of the Pretura di Cremona to decide the main action depended on whether the coresponsibility levy in question was to be defined as a tax. The European Court of Justice noted that it was not for it to intervene in order to resolve any questions of jurisdiction which might arise within a national judicial system, but it could give information on Community law which could help the national court solve the problem of jurisdiction with which it was faced. The European Court of Justice answered the preliminary question on this basis. 7 Hence, even if the European Court of Justice does not have jurisdiction to rule on the question of national procedure or jurisdiction, it has nevertheless been willing to give a preliminary interpretation of the Community act in order to help the national court clarify this kind of question. B. Application of Community Law outside Community Law s Scope of Application The second category concerns cases where national law or private contracts state that Community law shall apply, even though the circumstances do not fall within the scope of application of Community law. This situation particularly 7 Case 179/84 Bozetti [1985] ECR 2301, paras See also Case C-446/93 SEIM [1996] ECR I-73, paras 31 33; Joined Cases C-10-22/97 IN.CO.GE 90 et al [1998] I-6307, paras 13 17; and Case C-470/99 Universale-Bau [2002] ECR I-11617, paras

4 Preliminary Questions of International and National Law 365 arises where Member States choose to make their implementing provisions for directives more widely applicable than what is prescribed by the directive in question. In these situations the European Court of Justice has accepted references for making preliminary rulings on Community law rules, even though, strictly speaking, the Community rules do not apply in the actual case. The Leur-Bloem case concerned the interpretation of the definition of a merger in the Community s Merger Directive. However, the case before the referring court concerned a dispute relating to a purely internal transaction involving only Dutch companies. This transaction was not covered by the Merger Directive as such, but the Netherlands had chosen to extend the Directive s scope under Dutch law, so that certain of the Directive s rules also applied to internal mergers. When implementing the Directive s definition of a merger the Dutch authorities had added a provision that was effectively identical to cover such purely internal cases. The Dutch court hearing the main action referred a question to the European Court of Justice on the correct interpretation of the Directive. The European Court of Justice found that it had jurisdiction to interpret Community law even where this did not directly govern the circumstances in the case where, in transposing the provisions of the Directive into domestic law, the national legislator had chosen to apply the same treatment to purely internal situations and to those governed by the Directive, so that it had aligned its domestic legislation with Community law. The European Court of Justice at the same time made it clear that it was decisive that the national court was bound by the European Court of Justice s interpretation of Community law, and that Community law was not merely used as a partial model. 8 In the Gmurzynska case the owner of a German art gallery had bought a work of art in the Netherlands. When importing the work into Germany a turnover tax on importation was payable. The amount of the tax was determined by the German rules and depended on the classification of the work of art. On this point the German rules referred to the Community s nomenclature used in the Common Customs Tariff. In other words, the case had to be decided under German law, but it depended on the correct classification of the work of art under Community law. The European Court of Justice held that, neither according to the wording of Article 234 of the EC Treaty nor the purpose of the procedure introduced by this Article, was it apparent that the Treaty s draftsmen intended to deprive the European Court of Justice of jurisdiction over references for preliminary rulings on questions of Community law provisions in the special instances where a Member State s legislation refers to the content of such provisions in order to determine the provisions that apply to a purely domestic 8 Case C-28/95 Leur-Bloem [1997] ECR I-4161, paras See also Case C-43/00 Andersen og Jensen ApS [2002] ECR I-379, paras 12 and

5 366 Broberg matter in the Member State in question. On this basis the European Court of Justice gave a preliminary ruling. 9 Where in this situation the European Court of Justice has taken jurisdiction it has generally emphasized the importance of avoiding the risk of differences of interpretation of Community law even where it is not directly applicable. 10 In this connection it is not necessary for there to be a verbatim implementation of the Community law provisions in the national law or contract. 11 On the other hand, there is a requirement that the national law provisions which are applicable in the main action should in fact be based on the Community law provisions for which interpretation is requested. If this is not the case, the European Court of Justice s interpretation of the Community law provisions will not be relevant to the application of the national rules, and the European Court of Justice will deny that it has jurisdiction to give a ruling. 12 The European Court of Justice has adopted the same approach as the one set out above where the application of Community rules outside the scope of their application is based on an agreement under contract law. In the Federconsorzi case the Italian intervention authority entered into a contract by public tender with Federconsorzi to undertake interventions in the olive oil sector. The contract contained a provision that the contractor shall be liable... for any losses for which he is responsible to the amount stipulated by the Community legislation in force. There was thus a direct application of Community rules, but this was outside the scope of their application under Community law. The national court referred a question to the European Court of Justice as to how the Community rules determined the value of the stolen goods. The European Court of Justice noted that, for the Community s legal order, there was a clear interest in all Community law provisions being interpreted uniformly, regardless of the circumstances under which a provision might be applied, in order to forestall future differences of interpretation. Since the 9 Case C-231/89 Gmurzynska [1990] ECR I See also Case C-1/99 Kofisa Italia [2001] ECR I-207 concerning the application of Italian customs law which the Italian authorities apparently had based on the Community Customs Code (ie a regulation). In this case the European Court of Justice held that it had jurisdiction to give a preliminary ruling on the question referred, noting that its jurisdiction could not be called in question merely because the competent administrative authorities in the case were other than those which decided in customs cases. 10 Case C-447/04 Autohaus Ostermann GmbH v VAV Versicherungs AG [2005] ECR I-10407, paras 19 20; Case C-222/01 British American Tobacco Manufacturing [2004] ECR I-4683, paras 39 42; Case C-130/95 Giloy [1997] ECR I-4291, para 28; Case C-247/97 Schoonbroodt [1998] ECR I-8095, paras 13 16; and Case C-267/99 Adam [2001] ECR I-7467, paras (but compare with the Opinion of Advocate General Tizzano in the same case, paras 22 35). 11 Case C-306/99 BIAO [2003] ECR I-1, paras 19, 30, and Case C-2/97 IP [1998] ECR I-8597, paras This approach to some extent is mirrored in the European Court of Justice s Opinion 1/91, [1991] ECR I-6079, paras 13 29, where it observed that the fact that the provisions of the EEA Agreement and the corresponding Community provisions were identically worded did not mean that they must necessarily be interpreted identically. What was important was the wording in combination with the objectives of the provisions in question.

6 Preliminary Questions of International and National Law 367 contractual term in the main action referred to the Community rules with a view to establishing the parties financial liabilities, the European Court of Justice could interpret these rules by giving a preliminary ruling. However, at the same time the European Court of Justice made clear that its jurisdiction was limited to a review of the Community rules in question. It was therefore neither possible to consider the scheme of the contract nor the provisions of national law which could determine the extent of the contractual obligations. 13 In brief, the European Court of Justice has shown itself willing to give a preliminary interpretation of specific Community acts in order to avoid the risk of differences of interpretation of Community law even where it is not directly applicable. C. National Law has been Modelled upon Community Law The third category of situations includes those cases where, other than in the context of an obligation under Community law to implement or enforce a Community act in national law, a Member State has chosen to model purely national legislation upon Community law provisions. While the situation discussed in Section II.B above concerns cases where the Community rules are given a wider application than required under Community law, in this third situation the link to Community law is much weaker. Here the Community rules have only been used as a model or source of inspiration for the national rules. Often it will be made clear in the national legislation s travaux préparatoires that the rules must be interpreted in the light of their Community law model. This practice is particularly widespread in relation to the Member States competition rules, 14 but it also exists in other areas. 15 In principle Community law does not even apply indirectly here, so that an interpretation of Community law will only have limited significance for the correct solution to the main action. There has been some debate about whether the European Court of Justice can and should give preliminary rulings on such questions. On the one hand there is not, formally, any application of Community law in the main action. Community law is merely one among several aids to interpretation. Moreover, 13 Case C-88/91 Federconsorzi [1992] ECR I-4035, paras Likewise, the new Member States, prior to their accession to the EU, have largely modelled their competition laws on the Community s competition rules. The fact that this copying took place prior to accession can hardly, in itself, be assumed to have general significance for whether the European Court of Justice will consider itself to have jurisdiction if a national court in one of these Member States were to refer a question in relation to the national competition rules. 15 For example the Brussels Convention (which has now almost entirely been replaced by Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, generally known as the Brussels I Regulation) lays down rules on the choice of forum whereby in civil cases it is decided which courts of a Member State have jurisdiction. The United Kingdom, which consists of different jurisdictions (England & Wales, Scotland, and Northern Ireland), has in part copied these rules in its national legislation.

7 368 Broberg the risk that a lack of a preliminary ruling will give rise to a practice that is unsustainable in situations regulated by Community law is less pronounced in the situations covered by the present category than in the situations described in Section II.B regarding cases of direct application of Community law outside the scope of Community law. On the other hand, the European Court of Justice s interpretation of Community law where this law has served as a model for national law will undoubtedly often be highly relevant for the actual decision in the main action. Up until the mid 1990s the European Court of Justice accepted references of questions related to such national rules, without attaching any conditions to the referring national court s subsequent application of the preliminary ruling. 16 However, since the mid 1990s the European Court of Justice has qualified this practice and has refused to consider preliminary questions in cases where the national legislator has not determined, with binding effect for the national courts, that the relevant national provisions must be interpreted in the same way as the Community rule which forms the basis of the reference for a preliminary ruling. In the Kleinwort Benson case an English court made a reference for a preliminary ruling on the interpretation of the Brussels Convention. The United Kingdom consists of three jurisdictions (England & Wales, Scotland, and Northern Ireland), and there is therefore a need for rules within the United Kingdom for the allocation of jurisdiction between the different legal systems. Upon the implementation in the United Kingdom of the Brussels Convention, on the allocation of jurisdiction between the different Member States national courts, it was therefore decided at the same time to establish rules on the internal allocation of jurisdictions between the different UK legal systems. In the Kleinwort Benson case a dispute arose between a party in England and a party in Scotland. The dispute was brought before an English court, but the Scottish party argued that the case should be dealt with by a Scottish court. The English court found that a decision of the issue depended on the scope of application of two of the provisions in the British legislation. These provisions had essentially the same wording as two provisions in the Brussels Convention. At the time when the case was heard the European Court of Justice had not yet given its interpretation of these two provisions of the Convention, and the English court therefore referred a question to the European Court of Justice for a preliminary ruling on the correct interpretation. The European Court of Justice refused to answer the question: the UK legislation did not make a direct and unconditional renvoi to Community law, so as to incorporate it into the domestic UK legal order. On the contrary, the legislation merely used the Convention as a model and only partially reproduced the provisions of the Convention. Even though a 16 Case 166/84 Thomasdünger [1985] ECR 3001, para 11 and Case C-73/89 Fournier [1992] I-5621, paras (which concerned an agreement between private parties).

8 Preliminary Questions of International and National Law 369 number of the Convention s provisions were reproduced word for word, other provisions of the British legislation departed from the wording of the corresponding provisions in the Convention. In addition to this, the UK legislation expressly gave the authorities powers to make amendments which were designed to produce divergence between the provisions of the law on the internal UK legal systems and the corresponding provisions in the Convention, as interpreted by the European Court of Justice. Finally, the UK legislation did not absolutely and unconditionally bind the national courts to apply the European Court of Justice s interpretations of the Convention when deciding on cases brought before them. The national courts were thus only required to have regard to the European Court of Justice s case law. On this basis the European Court of Justice found that the referring national court was free to decide whether the Court of Justice s interpretations should apply under the national law which was modelled on the Convention. The European Court of Justice found that this meant that it did not have jurisdiction to give a preliminary ruling on the question. 17 Hence, in the Kleinwort Benson case the European Court of Justice based its refusal to give a preliminary ruling on the three following grounds: First, there was no direct and unconditional reference to Community law. Next, according to the relevant provisions, the British authorities had powers to make amendments which could lead to the national rules diverging from the Community rules. Third, the UK law did not absolutely and unconditionally bind the national courts to use the European Court of Justice s interpretations when deciding the main action. Subsequent practice has shown that the first of these three grounds is not applied strictly. Thus, it is not a requirement that there should be complete identity between the wording of the Community provisions and the wording of the provisions which only apply to national circumstances. 18 The second of the grounds which the European Court of Justice put forward in the Kleinwort Benson case does not seem to be well suited for distinguishing cases where the Court of Justice does not have jurisdiction. Here the European Court of Justice pointed out that, according to the UK rules, the British authorities had powers to make amendments which could lead to the national 17 Case C-346/93 Kleinwort Benson [1995] ECR I-615, paras Case C-306/99 BIAO [2003] ECR I-1, paras 19, 30, 81, and 91 94, where it was sufficient that the national legislator had wanted cases falling outside the scope of application of Community law to be treated in the same way as cases within the scope of application of Community law. As already referred to in Section II.B, the European Court of Justice does not demand there to be absolute identity in the wording of the provisions in relation to cases where the Community rule in question is to be interpreted in order for the referring national court to decide a dispute concerning a national implementing provision in a situation where the underlying Community rule does not apply.

9 370 Broberg rules diverging from the Community rules. However, vis-à-vis Community law, national legislators always have this competence outside the scope of application of Community law. 19 It would give rise to considerable legal uncertainty if the European Court of Justice s jurisdiction were dependent on whether, in a given case, the national legislator had stated that it was prepared to make such amendments. It is therefore irrelevant both whether the legislator can amend the national law and whether the legislator has expressed a willingness to amend the national law at some point. Unsurprisingly, the second of the grounds on which the refusal in Kleinwort Benson was based has not been found to be significant in the subsequent practice of the European Court of Justice. On the other hand, the third ground given in the Kleinwort Benson case, that there can only be a reference for a preliminary ruling if the national courts have an absolute and unconditional obligation to apply the European Court of Justice s interpretation of Community rules, has been maintained in subsequent cases. 20 At the same time, however, the European Court of Justice seems to presume that a national court will regard itself as bound to follow the European Court of Justice s interpretation of the Community rules. Only if it is clear that this presumption is unsupported will the European Court of Justice refuse to give a preliminary ruling. 21 In Autorità Garante della Concorrenza e del Mercato v Ente tabacchi italiani an Italian court requested the interpretation of Article 81 of the EC Treaty and of the general principles of Community law. The main action concerned the application of Italian competition law which was to be interpreted on the basis of the principles of Community competition law. In its intervention before the European Court of Justice the Commission argued that the preliminary questions should be declared inadmissible because the Italian law did not specify that 19 Cf G Betlem, Case note to Case C-346/93, Kleinwort Benson Ltd v City of Glasgow District Council, [1995] ECR I-615, (1996) CML Rev 137, See for example Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987, paras 21 22; and Case C-306/99 BIAO [2003] ECR I-1, para 93. This approach is in line with the European Court of Justice s Opinion 1/91, [1991] ECR I-6079, para 61, where the Court of Justice observed that it would be unacceptable if the preliminary rulings which it was supposed to give to EFTA State courts were to be purely advisory and without any binding effects. Such a situation would change the nature of the function of the Court of Justice as it is conceived by the EEC Treaty, namely that of a court whose judgments are binding. 21 The precise contents of this condition are not fully apparent. In this context it is important to point to the distinction between on the one hand the ruling as such and on the other hand the ruling s ratio. The ruling and its operative part only bind the referring national court, but the ruling equally provides an authoritative ex tunc interpretation of the relevant Community law measure. Whenever a Member State court (etc) is to apply that Community law measure this national court (etc) is obliged to apply the interpretation (ie the ratio) laid down by the European Court of Justice. The question is, however, whether this obligation also applies to Member State courts that are to apply national legal measures that have been modelled upon Community law measures. Based on the ruling in Kleinwort Benson it is submitted that in this situation only the referring national court is bound by the preliminary ruling whereas the binding effect of the ruling s ratio cannot, solely on the basis of Community law, be extended to other national courts in their application of national law.

10 Preliminary Questions of International and National Law 371 the national courts must apply the interpretations of the European Court of Justice absolutely and unconditionally. In assessing whether it had jurisdiction to give a preliminary ruling in the case, the European Court of Justice noted that, in accordance with its established practice, it did have jurisdiction to give preliminary rulings on Community law in cases where national law refers to it. At the same time, the European Court of Justice noted that there was no suggestion in the wording of the relevant Italian provision, the order for reference, or the other documents before the Court of Justice that the reference to Community law in that provision was subject to any condition whatsoever. There was thus nothing to suggest that the national court would not consider itself bound to apply the European Court of Justice s interpretation of Community rules, so the European Court of Justice answered the questions. 22 It thus appears from the above that what is decisive is whether the national legislator has (1) decided to deal with situations outside the scope of application of Community law in the same way as situations which fall under Community law, and (2) whether the national courts may be presumed to be obliged to apply the European Court of Justice s interpretations of Community rules. In practice this means that there is no real difference between the situations discussed above in Section II.B and the situations dealt with in this section. 23 D. Internal Situations The fourth and final category of situations, where the European Court of Justice has been willing to answer preliminary references even though no Community act applies in the main action, concerns cases where, according to the law of a Member State, the protection of its citizens may not be weaker in situations which are not governed by Community law than in situations which are so governed. In such cases the national courts may therefore want clarification as to what rights Community law would have allowed the parties if there had been the necessary cross-border element. In the Guimont case a criminal prosecution was brought against Jean-Pierre Guimont for possessing, with a view to selling or offering for sale, Emmenthal cheese with deceptive labelling. Guimont s defence was that the French 22 Case C-280/06 Autorità Garante della Concorrenza e del Mercato [2007] ECR I-10893, paras See also Case C-170/03 Feron [2005] ECR I-2299, paras It seems only natural that the considerations set out in Section II.B in relation to national law also apply to international agreements that are modelled on Community rules, but where there is no right to make a reference for a preliminary ruling regarding the international agreement. There are thus strong arguments that a national court should be able to refer a question on the interpretation of provisions in the Brussels Convention (or in the Brussels I Regulation) where the main action concerns the application of the parallel provisions in the Lugano Convention; provided that the referring national court is obliged to apply the European Court of Justice s interpretation of the Community provisions. Contrast however with J Hill, International Commercial Disputes in English Courts, (Hart Publishing 2005), 58 et seq.

11 372 Broberg provisions were contrary to the EC Treaty s provisions on the free movement of goods. On the face of it this argument did not seem strong, since the facts in the main action seemed to concern a situation which, according to the practice of the European Court of Justice, would only be covered by the provisions of the Treaty if there were a link to imported goods, and this was not the situation in this case. Nevertheless the European Court of Justice considered that it had jurisdiction to give a ruling. A ruling could be useful to the national court where the national law required that a domestic producer should have the same rights as those which a producer from another Member State would be able to rely on in a corresponding situation. 24 The Salzmann case also concerned a reference for a preliminary ruling where all the elements of the main action concerned a single Member State. The European Court of Justice stated that there is a presumption that questions submitted by national courts are relevant. Only in exceptional circumstances can the European Court of Justice refrain from giving a preliminary ruling. Such exceptional circumstances did not exist if under national law a national citizen should have the same rights as those on which a citizen of another Member State could rely under Community law in an equivalent situation. In the case in question, the Austrian court considered that Austrian citizens could claim such equal treatment. Thus a preliminary ruling could be given. 25 In a consistent line of rulings beginning as early as 1990 the European Court of Justice seems to have made it a general rule to accept references relating to the four Treaty-based freedoms, even where the actual case before the national court does not concern a situation with links to other Member States. 26 More surprisingly, in this situation the European Court of Justice does not appear to require the referring court to substantiate or even merely state that national law contains a principle of equal treatment. Rather, the European Court of Justice will limit itself to observing that a ruling on the question referred may in fact affect the decision in the main action if there is such principle of equal treatment, and that the mere possibility of this is sufficient to warrant a full examination of the referred questions Case C-448/98 Guimont [2000] ECR I-10663, paras See likewise Case C-281/98 Angonese [2000] ECR I-4139, paras Case C-300/01 Salzmann [2003] ECR I-4899, paras The first judgment appears to be Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I Taking a broader perspective, it would seem arguable that (at least more recently) this development is part of a wider transformation of the European Union where all Union citizens shall have the same rights under Community law. Indeed this argument was advanced in Case C-212/06 Government of the French Community and Walloon Government v Flemish Government, Judgment of 1 April 2008, para 39, but was turned down by the European Court of Justice. See also the Opinion of the Advocate General in the latter case at paras Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, in particular para 13; Joined Cases C-515/99, C-524/99, and C /99 Reisch [2002] ECR I-2157, paras 21 26; Case C-6/01 Anomar [2003] I-8621, paras 35 42; Case C-239/02 Douwe Egberts [2004] ECR I-7007, para 58; Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941,

12 Preliminary Questions of International and National Law 373 E. Duty of Courts of Last Instance to Refer Questions on the Application of National Law As shown above the European Court of Justice has been willing to give preliminary rulings on the interpretation of Community law, also where such an interpretation was to apply to matters falling outside the scope of Community law. Under Article 234(3) a national court of last instance has an obligation to make a reference where a decision on a question of interpretation of Community law is necessary to enable the national court to give judgment in the main action. Inevitably, this prompts the question whether the obligation to refer also applies where the preliminary question concerns the application of national law in the main action? Some legal theorists have answered this in the affirmative, and in this connection have referred to the fact that the reasoning behind the obligation to make a reference consideration for the correct statement of the law by national courts of last instance and the uniform application of Community law in all Member States applies equally in this situation. Also, the more formal consideration, that since in this situation the competence to put and to have answered questions by preliminary rulings directly follows from Article 234, the consequence must be that the obligations provided for in this provision must apply correspondingly. 28 Against this it has been argued that the obligation to make a reference under Article 234 can only apply where there is an obligation to apply Community law. It has also been argued that the aim of extending the right to make references to cases where national legislation copies Community rules outside their scope of application has only been to assist the national courts. It would therefore be inappropriate from the point of view of legal policy, and it would exceed the powers of the European Court of Justice to supplement this right to make a reference with an obligation to make a preliminary reference in situations where a dispute concerning the national rule cannot be appealed to a higher national court. 29 paras 28 30; and Joined Cases C-94/04 and C-202/04 Cipolla [2006] ECR I-11421, para 30. In Case C-71/02 Herbert Karner [2004] ECR I-3025, paras 18 22, the European Court of Justice came to the same conclusion but also included substantive considerations of the scope of application of Article 28 of the EC Treaty. See also Case C-9/02 De Laysteyrie du Saillant [2004] ECR I- 2409, para 41; Case C-250/03 Mauri [2005] ECR I-1267, para 21; Case C-471/04 Keller Holding [2006] ECR I-2107, paras 22 24; Case C-380/05 Centro Europa 7 [2008] ECR I-349, paras 69-70; and Case C-212/06 Government of the French Community and Walloon Government v Flemish Government, Judgment of 1 April 2008, para 40. Contrast this, however, with the somewhat older Case C-284/96 Tabouillot [1997] ECR I-7471, paras Cf G Gaja, The Growing Variety of Procedures concerning Preliminary Rulings in D O Keeffe and A Bavasso (eds), Judicial Review in European Union Law, Vol I, 143, 148; and M Delgado and N Munoa, Case note on Dzodzi and Gmursynska-Bescher (1992) CML Rev 152 (at 158). 29 Cf T Tridimas, Knocking on Heaven s Door: Fragmentation, efficiency and defiance in the preliminary reference procedure (2003) CML Rev 1, 36 et seq.

13 374 Broberg In the view of the present author it is in the nature of things that Community law cannot impose obligations outside its scope of application. Hence a national court of last instance is not obliged to make a preliminary reference in situations like the ones set out above. It is, however, reasonable to assume that a national court of last instance can be required to ask whether a given circumstance falls inside or outside the scope of Community law where this is unclear. III. Application of International Law Agreements in the Main Action I have considered above the question as to when references may be made in relation to the application of national law in the main action. I now turn to the seemingly parallel question as to when preliminary references may be made in relation to the application of international agreements in the main action. Instinctively it would seem natural to consider the two situations as symmetrical around an axis formed by Community law. This is not the case, however. The four categories examined above in Section II concerned preliminary references on the interpretation of Community law that would not apply, stricto sensu, in the main action. In contrast, the categories examined below concern references on the interpretation of international law measures that are to apply in the main action. These international law measures are part of Community law and it is for this reason that the European Court of Justice is competent to consider them as part of a preliminary reference. 30 Hence, whilst at first glance the two situations may appear quite similar, in reality they are rather different. In what follows I seek to establish when the European Court of Justice is competent to interpret international agreements. Based on the case law of the European Court of Justice it is possible to identify four categories of international legal measures that the Court has considered itself competent to interpret as part of a preliminary reference. In Section III.A agreements between the Community and third countries are examined. In Section III.B so-called mixed agreements are considered. Acts of organs set up by an international agreement to which the Community is party are the subject of Section III.C. In Section III.D I turn to international agreements to which the Community is not party, but which nevertheless are an integral part of Community law. Additionally, in Section III.E there is an examination of the European Court of Justice s approach to provisions of international law that do not qualify as Community law, but that may affect the validity of Community law. 30 To complete the picture, the Member States have also entered into a number of agreements which do not qualify as acts of the institutions of the Community within the meaning of Article 234(1)(b), but which vest in the European Court of Justice jurisdiction to give preliminary rulings on the correct interpretation of the agreement.

14 Preliminary Questions of International and National Law 375 A. Agreements between the Community and Third Countries Agreements between the Community and third countries constitute part of the Community s legal basis. The requirement for uniform interpretation and application of Community law therefore also exists in this context. On this basis the European Court of Justice has established that such agreements must be regarded as acts of the institutions of the Community in accordance with Article 234(1)(b), and the European Court of Justice can therefore give preliminary rulings on the interpretation of such agreements. In the Haegeman case the European Court of Justice was asked to interpret some of the provisions in the Agreement of Association with Greece, before Greece joined the Community. The European Court of Justice found that the Association Agreement had been entered into by the Council in accordance with those provisions of the EEC Treaty which today are found in the EC Treaty s Articles 228 and 238. There was therefore an act of a Community institution within the meaning of Article 234(1)(b). Furthermore, from the date of entry into force of the Agreement, its terms were an integral part of Community law. The European Court of Justice therefore had jurisdiction to give preliminary rulings on the interpretation of the Agreement. 31 In the Kupferberg case a German court referred a question concerning the correct interpretation of a free trade agreement between the Community and Portugal, before Portugal became a Member State. The European Court of Justice stated that the obligations which flowed from such an agreement bound the Member States not only in relation to the third country concerned, but also in relation to the Community, which had taken on responsibility for the correct implementation of the agreement. The European Court of Justice also stated that, due to the Community law character of the provisions in question, they must be given uniform effect throughout the Community. It was therefore within the jurisdiction of the European Court of Justice to interpret the provisions. 32 Correspondingly, in connection with a preliminary ruling, the European Court of Justice must be able to declare invalid a Community legal act whereby such an agreement is entered into, for example because the Community lacks the competence to enter into the agreement. In such a case the agreement will not be applicable in the Community. 33 The European Court of Justice s jurisdiction to interpret a provision in an international agreement does not depend on whether the provision has direct effect. Where this is not the case the European Court of Justice often examines 31 Case 181/73 Haegeman [1974] ECR 449, paras Case 104/81 Kupferberg [1982] ECR 3641, paras Cf R Holdgaard, Principles of Reception of International Law in Community Law in P Eeckhout and T Tridimas (eds), Yearbook of European Law 2006, 263, 271 et seq. See also Joined Cases C-317/04 and C-318/04 Parliament v Council and Commission [2006] ECR I-4721, paras

15 376 Broberg whether the provision could be relevant to the decision in the main action. If not, a preliminary ruling will be superfluous to the referring national court s decision in the main action, and on this basis the European Court of Justice will refuse to make a substantive ruling on the question referred. 34 On the other hand, if a ruling is relevant for deciding the dispute in the main action, the European Court of Justice will give a ruling, even if the provision does not have direct effect. 35 B. Mixed Agreements A mixed agreement is an international agreement which both the Community and the Member States have competence to enter into, and where the Community and the Member States have decided internally to exercise this competence together. Mixed agreements thus stand in contrast to agreements which fall entirely outside the competence of the Community, and agreements which are entirely within the exclusive competence of the Community. 36 In a number of cases questions have been referred to the European Court of Justice for preliminary rulings on the interpretation of provisions in mixed agreements. The practice which has arisen in connection with this is far from clear and it does not appear, on the face of it, to be coherent. 37 However, it seems to be accepted that the question whether the European Court of Justice can interpret a mixed agreement in connection with a reference for a preliminary ruling cannot be answered generally for the agreement in question, but requires an analysis of the jurisdiction in relation to the agreement s specific provision of which interpretation is required. 38 In determining when the European Court of Justice considers itself to have jurisdiction to interpret provisions in mixed agreements, it is appropriate to distinguish between four situations: Interpretation of provisions which belong to the Community s exclusive competence. Interpretation of provisions in areas where the Community has competence, but where this competence is not exclusive, and where the Community has legislated in the area to which the provision under consideration applies. 34 Joined Cases 21 24/72 International Fruit Company [1972] ECR 1219, paras 3, 8, and Case C-89/99 Schieving-Nijstad vof [2001] ECR I-5851, paras On this, see further R Holdgaard, External Relations Law of the European Community Legal Reasoning and Legal Discourses (Kluwer Law International, 2008) For a fine illustration of this, see P Koutrakos, The Interpretation of Mixed Agreements under the Preliminary Reference Procedure (2002) European Foreign Affairs Review 25. See also A Dashwood, Preliminary Rulings on the Interpretation of Mixed Agreements in D O Keeffe and A Bavasso (eds), Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley, Vol 1, ; and J Heliskoski, The Jurisdiction of the European Court of Justice to Give Preliminary Rulings on the Interpretation of Mixed Agreements (2000) Nordic Journal of International Law It is notable that the European Court of Justice s jurisdiction to interpret international agreements is not co-extensive with the Community s competence to enter into treaties.

16 Preliminary Questions of International and National Law 377 Interpretation of provisions in areas where the Community has competence, but where this competence is not exclusive, and where the Community has not legislated in the area to which the provision under consideration applies. Interpretation of provisions which fall outside the area of the Community s competence. In the first situation, where a provision in a mixed agreement falls within the Community s exclusive competence, the European Court of Justice has jurisdiction to interpret the provision in a preliminary ruling. The European Court of Justice also has jurisdiction in the second situation, 39 and this jurisdiction is not dependent upon whether the Court of Justice s interpretation is to be used for the application of Community rules or national rules. In support of this, the European Court of Justice has emphasized that it is in the Community s interest that provisions in mixed agreements should be interpreted uniformly, regardless of whether they apply in situations governed by national law or by Community law. The Hermès case concerned the interpretation of a provision in the TRIPS Agreement on trade-related aspects of intellectual property rights. The TRIPS Agreement is contained in an annex to the WTO Agreement, which is a mixed agreement. In this case several Member States argued that the European Court of Justice lacked jurisdiction to give a preliminary ruling. It was pointed out that the European Court of Justice had itself previously held that, among other things, the specific provision in the TRIPS Agreement which the European Court of Justice was called upon to interpret primarily fell within the competence of the Member States. The European Court of Justice considered that it had jurisdiction to give a ruling since Community legislation had been issued in the area. The enforcement of these Community measures was the responsibility of the authorities of the Member States, using national legal systems and national procedural rules. When Member States authorities enforce Community measures, they are obliged to comply with the provision of the TRIPS Agreement which the national court had referred to the European Court of Justice for interpretation. Since the provision could be relevant for the enforcement of Community rules, the European Court of Justice had jurisdiction to interpret it. That the actual case did not concern the enforcement of Community rules did not alter this fact. First, it was up to the national court to decide whether a preliminary ruling was necessary. Next it was in the Community s interest that there should be uniform interpretation of the provision, regardless of whether it was applicable in a situation covered by national law or a situation covered by Community law Case C-89/99 Schieving-Nijstad vof [2001] ECR I-5851, para Case C-53/96 Hermès [1998] ECR I-3603, paras J Heliskoski, The Jurisdiction of the European Court of Justice to Give Preliminary Rulings on the Interpretation of Mixed Agreements (2001) Nordic Journal of International Law 395, 404 et seq, assumes correspondingly that in the Hermès case the European Court of Justice only decided on the possibility of interpreting an