ECJ 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.
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.
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.
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.
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.
and ‘the correct application of Community Law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it.
However, the existence of such a possibility must be assessed on the basis of the characteristic features of Community law and the particular difficulties to which its interpretation gives rise.
To begin with, it must be borne in mind that Community legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions.’
Citations:
C-283/81, [1982] ECR I-03415, [1983] 1 CMLR 472, [1982] EUECJ R-283/81, [1982] ECR 3415
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Cited by:
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The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Cited – OB v Aventis Pasteur SA HL 11-Jun-2008
The claimant had been vaccinated with a HIB vaccine. He was severely injured and it was said that the vaccine was the cause, and a claim made under the 1987 Act. Originally the claim was made against a UK company, but it should have been against . .
Cited – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .
Cited – ZO (Somalia) and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 28-Jul-2010
The Directive gave certain rights to asylum applicants. The claimants had applied for asylum, and on failing in their applications, renwewed them, claiming the rights under the Directive again. The respondent said that the rights applied only on a . .
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(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Applied – Russell and Others v Transocean International Resources Ltd and Others SC 7-Dec-2011
russell_transocean
The appellants worked on various shifts for the defendants in off-shore oil-fields. They were given on-shore rest breaks, which the employers said should count toward their holiday entitlements.
Held: The Court dismissed the employees’ appeal . .
Cited – X v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
Cited – HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
Cited – PMS International Group Plc v Magmatic Ltd SC 9-Mar-2016
Overall Impression of Design is a Judgment
The respondent had alleged infringement of its registered design in the ‘Trunki’, a ride-on children’s suitcase. At first instance, the judge had held that the surface decorations were to be ignored. On appeal it had been held that the judge had . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.
Constitutional
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Updated: 03 February 2022; Ref: scu.133336