The Use and Abuse of Article 177 EEC
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02618.x |
| Author | Anthony Arnull |
| Published date | 01 September 1989 |
| Date | 01 September 1989 |
THE USE
AND
ABUSE
OF
ARTICLE
177
EEC
THE
purpose
of
this essay is to examine the effect of the seminal
decision
of
the European Court of Justice in the
CILFIT
case on the
practice
of
the English courts in requesting preliminary rulings under
Article
177
of
the EEC Treaty.
The discussion is divided into two parts. In the first part, the scope
of the duty imposed on national courts
of
last resort by the third para-
graph of Article
177
is
examined. The leading case on this issue is
CILFIT
v.
Ministry
of
Health,’
although the European Court’s
remarks there may also be germane to the exercise by inferior
national courts
of
their discretion in deciding whether to make a
reference. The second part of the discussion is concerned with the
effect the
CILFIT
decision has produced on the extent to which Eng-
lish courts are prepared to make use
of
the facility which Article
177
provides.
I. ARTICLE
177
AND
NATIONAL
COURTS
OF
LAST RESORT
Article
177
is in the following terms:
“The Court of Justice shall have jurisdiction to give preliminary
rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation
of
acts of the institutions
of
the Community;
(c) the interpretation of the statutes of bodies established by
an act
of
the Council, where those statutes
so
provide.
Where such a question
is
raised before any court
or
tribunal
of
a
Member State, that court or tribunal may, if it considers that a
decision on the question is necessary to enable it to give judg-
ment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a
court or tribunal
of
a Member State against whose decisions
there is no judicial remedy under national law, that court or tri-
bunal shall bring the matter before the Court
of
Justice.”
The purpose
of
this procedure, which is essentially co-operative
rather than hierarchical, is to ensure that EEC law is interpreted and
applied in a uniform manner throughout the Community.*
It will be seen that a distinction is drawn between courts and tri-
bunals “against whose decisions there is no judicial remedy under
national law” (hereafter “national courts
of
last resort”), which are
.
’
Case283/81[1982] E.C.R. 3415.
See
e.g.
Case
166173
Rheinmiihleti
[
19741
E.C.R.
33.
622
SEE. 19891
USE
AND
ABUSE
OF
ARTICLE
177
EEC
623
covered by the third paragraph
of
the Article; and other national
courts and tribunals, which are subject to the second paragraph.
While the latter enjoy complete discretion in deciding whether or not
to refer to the European Court questions
of
Community law which
they need to decide in order to give j~dgment,~ the former are
obliged to bring such questions before the European Court.
Whether the obligation imposed on national courts
of
last resort by
Article
177(3)
was an absolute one was for a long time open to ques-
tion.
A
common sense view might suggest that it would be futile to
require such courts to refer points which were obvious or which had
been
resolved
by
previous decisions
of
the European Court. On the
other hand, what may seem obvious
to
one
lawyer
may
be far from
obvious to another and previous decisions of the European Court are
invariably open to interpretation. It might perhaps be desirable, in
the interests.
of
the uniform application of Community law, for
Article
177(3)
to be interpreted as imposing on national courts
of
last
resort an
absolute
obligation.
The scope
of
Article
177(3)
was first considered by the European
Court in
da Costa en Schaake?
where a reference was made by the
Tariefcommissie, a Dutch administrative court having final jufisdic-
tion in revenue cases, in circumstances which were virtually identical
to those
of
a case it had referred just over a month beforehand,
van
Gend en
Loos.’
By the time the Court came to deliver judgment in
da
Costa,
it had already given its ruling in
van Gend en.Loos.
Rather
than simply repeat its earlier ruling or, as the Commission had sug-
gested, dismiss.the later reference on the basis that the point it raised
had already been dealt with, the Court proferred guidance on the
scope of the duty laid down in Article
177(3).
It stated that:
“
.
.
.
the authority
of
an interpretation under Article
177
already given by the Court may deprive the obligation [laid down
in Article
177(3)]
of
its purpose and thus empty it
of
its sub-
stance. 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.”6
The Court proceeded to repeat its ruling in
van Gend en
Loos,
to
which the Tariefcommissie was expressly referred.
Thus, at a very early stage in the development
of
the Community,
the European Court accepted that Article
177(3)
was not to be inter-
preted literally. It should be noted, however, that the circumstances
in which the duty laid down in that paragraph would not apply were
strictly limited. Only previous rulings
of
the court delivered under
A
discretion which cannot be fettered
by
the decisions of superior national courts:
Joined Cases28-30/62 [1963] E.C.R. 31.
(19631 E.C.R. 31,38.
Rheinmiihlen.
note
2
above.
’
Case 26/62 [1963] E.C.R.
1.
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