Análisis de resultados del software

In the Dior case,362 _{the Court of Justice seemed to support the proposition that the}

duty of cooperation applies notwithstanding the absence of specific inter-institutional arrangements. In this case, the Court was asked to give a preliminary ruling on the interpretation of Article 50 of TRIPs which, following Opinion 1/94 on the WTO Agreement, was concluded by the Community and its Member States under joint competence.363

Article 50 TRIPs concerns provisional measures for the protection of intellectual property rights. Although the Court had already had an opportunity to establish its jurisdiction on this provision in a previous ruling in the Hermès case,364 _this

jurisdiction was nonetheless disputed in the present instance on the ground that the national court’s reference concerned the application of Article 50 TRIPs to an area (industrial design) where the Community had not yet legislated, in contrast to the situation at issue in Hermès (trade marks). Allegedly therefore, the national court was asking the Court of Justice to interpret a provision of a mixed agreement which, in this particular instance, applied to a situation falling outside the scope of Community law.

Relying on the fact that TRIPs was concluded by the Community and the Member States under joined competences, the Court held that where a case is brought before it in accordance with the provisions of the Treaty, it has jurisdiction to define the

361 _{E.g. Arrangement between the Council and the Commission concerning participation in} international negotiations on raw materials (so-called “Proba 20”), reproduced in Völker and Steenbergen (1985: 48). Further: Neuwahl (1996: 678ff).

362 _{Joined Cases C-300/98 Parfums Christian Dior SA v Tuk Consultancy and C-392/98 Assco Gerüste}

GmbH, Rob van Dijk and Wilhelm Layher GmbH Co. KG, Layer BV. 363 _{OJ 1994 L336/1.}

obligations which the Community has thereby assumed and, for that purpose, to interpret TRIPs. It added that, in particular, it has jurisdiction to interpret Article 50 of TRIPs in order to meet the needs of Member States’ courts when they are called upon to apply national rules with a view to ordering provisional measures for the protection of rights arising under Community legislation falling within the scope of TRIPs.

Elaborating on what it had already held in Hermès, the Court opined that “where a provision such as Article 50 TRIPS can apply both to situations falling within the scope of national law and to situations falling within that of Community law, as is the case in the field of trade marks, [it] has jurisdiction to interpret such provision in order to forestall future differences of interpretation”.365 _{It added that “[i]n that regard, the}

Member States and the Community institutions have an obligation of close cooperation in fulfilling the commitments undertaken by them under joint competence when they concluded the WTO agreement, including TRIPs” (emphasis added).366 _{Such an “obligation of close cooperation” requires the judicial bodies of the}

Member States and the Community, “for practical and legal reasons”, to give a

uniform interpretation to Article 50 TRIPs, for it constitutes “a procedural provision which should be applied in the same way in every situation falling within its scope and is capable of applying both to situations covered by national law and to situation covered by Community law.”

For the purposes of the present analysis, the Dior ruling is significant for at least two reasons. First, the Court’s pronouncement suggests that the duty of cooperation need

not be formalised in an inter-institutional agreement such as the FAO Arrangement to apply and generate legal consequences. The Dior formulation of the duty of cooperation suggests that it binds, in itself, both Community institutions and Member States, without being conditional upon further “mise en oeuvre”.367 _{It thus applies}

directly. In casu, the Court considered that it concerns and indeed binds the

jurisdictions of the Member States and Community, respectively. Both levels of jurisdiction are, together with the political authorities of the Member States and the Community, respectively, equally involved in ensuring the fulfilment of the

365 _{Para. 35, which refers to Hermès, particularly paras 28-29 and 32-33.} 366 _{Para. 38.}

“commitments undertaken by the Member States and the Community under joint competence”.368 _{As such they are bound by the same obligation of cooperation.}369 _In

this regard, the Court’s verdict echoes Advocate General Tesauro’s Opinion in the

Hermès case. He suggested that the interpretation the Court is called upon to give represents its contribution to the fulfilment of the duty of cooperation between institutions and Member States.370

Secondly, and following the previous point, the duty of cooperation is used by the Court in Dior to validate its jurisdiction to interpret a provision of a mixed agreement, regardless of the fact that this provision applies outside the context of Community law.371 _{As already suggested in Hermès, the Court considers that such a provision falls}

under its jurisdiction insofar as it is “capable of applying both to situations covered by national law and to situations covered by Community law” (emphasis added). Because of this potential, this provision should be interpreted uniformly,372 _and

368 _{Koutrakos (2002: 38-39 and 49) argues that the Court seeks to articulate the principle of cooperation} between the Community judicature and national courts “as an essential adjunct to the cooperation between the Member States and the Community institutions”.

369 _{Consider in this regard the Court’s judgment in case C-224/01 Gerhard Köbler of 30 September} 2003, which puts additional pressure on the national courts to fulfil their Community law obligation as one of the authorities of a Member State. Non-fulfilment by a national court of its Community obligations could lead to the liability of the Member State to which the national court belongs.

370 _{Tesauro AG had already made this connection in para. 21 of his Opinion in Hermès (Case C-53/96).} He also pointed out that “the absence of centralised interpretation could completely undo the results achieved by the obligation to cooperate in the negotiations and conclusion of the provisions in question”. The AG therefore implicitly considers that the effet utile of the duty of cooperation at the negotiation and conclusion levels may require centralised interpretation by the Court of Justice at the level of implementation.

371 _{In principle, the Court’s jurisdiction under Art. 234 EC is limited to questions of interpretation and} validity of Community law; see e.g. Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen; Case 6/64 Costa v ENEL.

372 _{The Court had already developed a similar approach in relation to preliminary references involving} domestic rules referring to or incorporated provisions of Community law: Case C-222/01 British American Tobacco Manufacturing BV and Hauptzollamt Krefeld, Case C-300/01 Doris Salzmann, Case C-130/95 Giloy v Hauptzollamt Frankfurt am Main-Ost, Case C-28/95 Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2, Case C-297/88 Dzodzi v Belgium, Case C-231/89

Gmurzynska-bscher v Oberfinanzdirektion Köln, Case 166/84 Thomasdunger, Case 384/89 Tomatis and Fulchiron. For reservations on this analogy, see AG Tesauro in his Opinion in Case C-53/96

“[o]nly the Court of Justice acting in cooperation with the courts and tribunals of the Member States pursuant to Article [234] of the Treaty is in a position to ensure such uniform interpretation” (emphasis added).373

As suggested above, the Court’s interpretation represents its self-established contribution to the fulfilment of the duty of cooperation. The Court thereby proposes a wide understanding of such duty. It is envisaged as the duty to forestall any differences of interpretation of the provision concerned, and as a subsequent obligation for the national court to ensure such uniform interpretation, even when dealing with a purely national situation. According to this line of reasoning, the outcome of the duty of cooperation is to ensure unity in the implementation of the provision at stake. The Court’s pre-emptive interpretation thus limits,374 _{if not}

annihilates the margin of manoeuvre of the national court, also where, as in the present instance, the provision is to be applied in the context of national law.375

Indeed, such an authoritative interpretation has consequences in other Member States as well.376 _{The duty of cooperation can therefore be envisaged as ensuring uniformity}

in the application of a provision of a mixed agreement, as soon as this provision is capable of applying at national and Community level.

66).

373 _{Para. 38. Further: Dashwood (2000b: 173-174).}

374 _{On the idea of pre-emptive jurisdiction, although in the context of another procedure, see Plender} (2000: 203).

375 _{The Court thus seems to confirm the connection between the duty of cooperation and the} constitutional principle of loyal cooperation, discussed above. It builds upon the well established judicial cooperation based on Article 10 EC and aimed at ensuring the effectiveness of Community law and the integrity of the EC legal order (Case 14/83 Van Colson and Kaman v Land Nordhrein- Westfalen, Case 79/83 Dorit Harz v Deutsch Tradax GmbH, Case C-106/89 Marleasing SA v La Comercial Internacionale de Alimentacion SA, Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd and others, Case 811/79 ArieteSpA v Amministrazione delle finanze dello Stato) and based on uniform application (Case C-99/00 Kenny Roland Lyckeskog). For a thorough analysis on the role of the Court of Justice influence on the national judicial systems, see Dougan (2002, 2004).

376 _{Cases 28-30/62 Da Costa en Schaake NV, Jacob Meijer NV and Hoechst-Holland NV v Nederlandse}

Belastingadministratie, Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health. Further: Trabucchi (1974) and Rasmussen (1984).

Given the far-reaching implications of the Court’s interpretation for the Member States’ judicial authorities, the distinction between provisions that are “capable of applying both to situations covered by national law and to situations covered by Community law”377 _{and those which are not capable of this double application}

becomes crucial.378 _{The word “capable” suggests that the dual application of the}

provision is not necessary in actual terms, but needs only be potential for the Court to require and give a uniform interpretation.379 _{Uniform application of the provisions of a}

mixed agreement is not necessarily connected to the exclusive competence of the Community. A provision falling under non–exclusive Community competence may also have to be applied uniformly, irrespective of the fact that it relates to an area which is not actually, but only potentially covered by Community law. It however leaves open the question of whether the Court has jurisdiction to interpret the provisions of the agreement that do not fall under the category of Community potential competence.

Furthermore, the Dior conception of the duty of cooperation, applied at the judicial level, might have an impact on how this duty is to be envisaged more generally.380

The Court considers that in certain instances, the provisions of a mixed agreement shall apply uniformly throughout the Community even where they concern an area not yet covered by Community rules. It could be argued that as a result, other national authorities might also be expected to ensure the same level of harmony in the implementation of the provisions of a mixed agreement meeting the same conditions,

377 _{The French version of the ruling uses an expression that seems more open than the English phrase} “capable of applying”: “lorsqu’une disposition… peut trouver à s’appliquer aussi bien à des situations relevant du droit national qu’à des situations relevant du droit communautaire… la Cour est compétente pour l’interpréter afin d'éviter des divergences d'interprétation futures” (emphasis added). 378 _{In this regard, see the Opinion of Tizzano AG of 29 June 2004 in case C-245/02 Anheuser – Bush}

Inc. v Budejovický Budvar, narodní podnik (paras 110-115), and judgment of the Court of 16 November 2004 (para. 41).

379 _{This scenario had already been envisaged by Dashwood (2000b: 173-174). Indeed, AG Tesauro in}

Hermès talks of “potential competences”, namely areas where the Community has competence but the latter has not yet been exercised, meaning that it remains vested on the Member States.

380 _{The duty of cooperation binds all the Member State’s authorities. There is no reason why the duty} should have a different application depending on the national authority involved, i.e. judicial, legislative or executive.

e.g. provisions “capable of applying both to situations covered by national law and to situations covered by Community law”.

More generally, the Dior formula of the duty of cooperation further supports the proposition that such a duty involves obligations of a legal nature. Indeed, it is noticeable that the Court does not use the word “duty” at all in the Dior case, but refers to “obligation”, thereby consolidating the legally binding character of cooperation already hinted at in the case law.381 _{Arguably, the duty of cooperation is}

also strengthened by the Court’s use of the expression “close cooperation”, in contrast to cooperation tout court.

To sum up, it appears that the duty of cooperation potentially entails far–reaching legal obligations for the institutions of the Community and for the Member States authorities, above all the courts. This duty can be articulated in various ways, being for instance specified in an inter-institutional arrangement, or be relied upon as such to ensure harmonious fulfilment of the commitments undertaken under joint competences. It can even involve uniform interpretation of these commitments by the courts, if they are capable of having national and Community applications.382 _Having

determined the legal nature of the duty of cooperation, its scope of application should be examined. The next section will argue that it is potentially wide.