5. Ingeniería de requerimientos
5.2. Proceso de elicitación
General
It was almost inevitable that questions of national law and national procedures should from time to time arise before the Court in the context of the preliminary rulings procedure, if only because of the conscious policy of constantly and increasingly integrating the Community legal order into those of the Member States. Three issues arise in this context. What is the position of the Court when an appeal is made against the decision to refer? Can the ECJ involve itself in national law? Has the Court any control over the manner and circumstances in which the domestic courts make a reference?
Appeals against decisions to refer
Not all the parties involved in a dispute see the possibility of a reference for a preliminary ruling as an undiluted blessing, and sometimes appeals are lodged against decisions by national courts to make the reference. What should be the attitude of the Court of Justice if that happens? From the very outset, the Court’s position has been one of non-involvement. The issue arose for the first time in the Bosch case.9 Both the defendants and the French government, intervening, were of the opinion that the request made to the ECJ by the national court warranted a preliminary ruling, because an appeal had been made for annulment of the order under which the request was made. This opinion stemmed from their interpretation of Article 234 (ex Art 177) of the Treaty, according to which such a request could only be granted if the order or decision under which it was made had become res judicata. The Court held that not only was such an interpretation at odds with the letter of Article 234 (ex Art 177) of the Treaty; it also failed to recognise that the law applicable to the referring court and Community law were systems of law which were totally distinct and different.10 The jurisdiction of the Court of Justice was therefore entirely purely a factor of the existence of a request, and it did not behove the Court to examine whether or not that particular decision had become res judicata.
It soon appeared, however, that the very nature of the relationship between national law and Community law made such a sharp distinction between the two legal orders hard to maintain, or even to justify. In the Chanel case,11 a similar problem to that which had arisen in Bosch was visited upon the ECJ, in
9 Case 13/61, De Geus en Uitdenborgerd v Bosch en Van Rijn [1962] ECR 45.
10 Ibid, at 50.
11 Case 31/68, Chanel v Cepeha Handelsmaatschappij [1970] ECR 403.
that an appeal was lodged against the decision by the Rotterdam Arrondissementsbank (district court) to make a reference under Article 234 (ex Art 177). However, on this occasion the appeal was made after the request for a preliminary ruling had been received by the ECJ. In addition, the national court informed the ECJ that as a result of the appeal, the enforcement of the decision to refer had been suspended. The Court of Justice decided that in view of the circumstances of the case, and in view of the communication made by the national court, a decision in this case would be postponed until the appeal in question had been settled.12 This appeal succeeded, and the request for a preliminary ruling annulled by the Court of Appeal. Accordingly, the Chanel case was removed from the cause list of the ECJ.
Exactly what these circumstances of the case were was never clarified by the Court. At first sight, these circumstances do not differ by much from the facts underlying the Bosch case. The impression is created that the Court had in fact abandoned the strict separation approach which it had proclaimed in Bosch; at the very least this approach became much harder to justify as a result of the Chanel judgment.13
Courts bound by a higher authority
A further problem which can arise in this regard is the question whether a domestic court which is bound by a decision issued by a higher judicial body may still make a reference. This was the bone of contention in the Rheinmühlen case.14 Here, a decision from a lower fiscal court had been appealed before the German Bundesfinanzhof (Federal Fiscal Court). The latter, after having made a reference for a preliminary ruling, set aside the lower court’s decision, and referred the matter back to the latter for a final ruling. The lower court was dissatisfied with the Federal Court’s ruling, and decided to request a preliminary ruling itself. This resulted in the ECJ being asked to rule on the question whether the lower court had the right to make a reference. The Court replied in the affirmative. The objective of the preliminary rulings procedure was to obtain that Community law has the same effects in all EC Member States.
Therefore a lower court must remain free to make a reference to the ECJ if it considers that the dispute before them gives rise to issues requiring clarification, and that the higher court’s ruling would bring it into conflict with Community law. The position would be different only if the questions referred by the lower court were essentially the same as those asked by the higher court.15
12 Case 31/68, Chanel v Cepeha Handelsmaatschappij [1970] ECR 403 at 405–06.
13 Maresceau, 1978, at 106–07.
14 Case 166/73, Rheinmühlen v Einfuhr- und Vorratstelle [1974] ECR 33.
15 Ibid, at 38–39.
The ECJ and national law
As for the question whether the Court may interpret questions of national law, the answer is, in principle, in the negative. The Court is only authorised to issue rulings on matters of Community law. If it is asked to interpret domestic law, it will reword the question in such a manner as to give a broadly framed reply which is not country-specific. Here again, however, the separation between national law and Community law is sometimes hard to maintain in practice. Let us take the example of the Deserbais case.16The reply given by the Court to the French court was that:
Article 30 [now Art 28] et seq of the Treaty must be interpreted as precluding a Member State from applying national legislation making the right to use the trade name of a type of cheese subject to the observance of a minimum fat content to products of the same type imported from another Member State when those products have been lawfully manufactured and marketed under that name in that Member State and consumers are provided with proper information.17
Given that the reference emanated from a French court, could anyone entertain the slightest doubt that the Court is interpreting French law in the light of Community law? Yet in Costa v ENEL,18the Court had specifically ruled that the decision by the Court ‘should (not) be given by the Court ... on the validity of an Italian Law in relation to the Treaty’. However generally the manner in which preliminary rulings are worded, the Court can very often simply not avoid doing exactly that.
The ECJ and international law
Can the ECJ interpret international law through the mechanism of Article 234 (ex Art 177) EC Treaty? The answer to this question is yes, but only in relation to those agreements to which the Community has become a party through an act of its institutions.19 As has already been noted earlier (see above, p 97), the Court recently ruled20 that it had jurisdiction to interpret a provision in the TRIPS Agreement (Agreement on Trade-related Aspects of Intellectual Property), more particularly Article 50 thereof, which had been implemented by Article 99 of Regulation 40/94 on the Community Trade Mark.21
16 Case 286/86, Ministère Public v Deserbais [1988] ECR 4907.
17 Ibid, at 4926.
18 Case 6/64, Costa v ENEL [1964] ECR 585 at 597.
19 Case 181/73, Haegeman v Belgium [1974] ECR 449.
20 Case C-53/96, Hermès International v FHT Marketing Choice [1998] ECR I-3603.
21 OJ 1994 L11.
Formulation of the reference
It has already been noted (above, p 148) that the Court is sometimes moved to reword the preliminary reference in such a way as to avoid involving itself in issues of national law. However, this rewording will not affect the contents of the reference itself. The Court cannot examine whether or not the reference is relevant in the context of the proceedings before the referring national court.22 Nor can the ECJ bring any judgment to bear on the reasons which prompted the national court to make the reference, or the importance which the national court attaches to the reference for the purpose of the proceedings before it.23