Preliminary Ruling in UK Law

Those circumstances would, I think, include a case in which the judgment of the Court of Justice under consideration by this Court in the earlier case had been the subject of further consideration – and consequent interpretation, explanation or qualification—by the Court of Justice in a later judgment.

It is also striking, as the Commissioners have forcefully submitted, that there is no clear statement by the ECJ, whether in FII or any subsequent case, that the former settled jurisprudence has been changed by the formulation of the San Giorgio principle in paragraph 205 of the ECJ's judgment in FII, and that, in cases of overpayment as much as cases of premature payment, the San Giorgio principle requires the recipient to pay compensation for the time value of the wrongful retention of tax when it was not lawfully due.

In view of those doubts and difficulties and the importance and financial implications of the issue, it seems plainly desirable that there should be a reference to the ECJ for a preliminary ruling on the issue. The Judge himself (in paragraph 125) considered whether to refer the question to the ECJ for a further preliminary ruling.

Customs & Excise seek a reference for a preliminary ruling if they are unsuccessful on this appeal. In Kobler v Austria [2004] 2 WLR 976, the Court of Justice held that in special circumstances a state can be liable if the final court of appeal in a member state declines to refer a question of the interpretation of the EC treaties to the Court of Justice, and takes a wrong view of the EC law. This may lead to national courts taking a more restrictive view of acte clair in the future.

The Court of Justice has held that the national court's obligation is to interpret domestic legislation, so far as possible, in the light of the wording and the purpose of a directive in order to achieve the result pursued by the directive and thereby comply with Community obligations: see Marleasing S.A. v La Commercial Internacional de Alimenation SA at para 8. It is sometimes also referred to as the principle of conforming interpretation.

In case it assists the Court of Justice, it is my opinion that, for the reasons I explained in Vibe, the correct answer to the question is that the applicant must prove that a significant proportion of the relevant class of persons rely upon the trade mark (as opposed to any other trade marks which may also be present) as indicating the origin of the goods.

It falls to the Judge, in the first place by way of preliminary ruling, and indeed on an application for separate trials if such is made (see the opinion of my noble and learned friend Lord Cross of Chelsea) to estimate the respective and relative weight of these two factors and only to allow the evidence to be put before the jury if he is satisfied that the answer to the first question is clearly positive, and on the assumption, which is likely, that the second question must be similarly answered, that on a combination of the two the interests of justice clearly require that the evidence be admitted.