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The European Court of Justice, More than a Teleological Court

Published online by Cambridge University Press:  27 October 2017

Albertina Albors Llorens
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Extract

The judgments of the Community judicature are often subject to intense scrutiny by the media and by academic writers. The European Court of Justice, in particular, is regularly accused of being by and large an “activist” court, namely a court that construes EC law in the light of the objective the judges are trying to pursue. In particular, it is argued that the European Court uses the teleological method of interpretation to enhance the effectiveness of Community law at the expense of the written legal texts. Several studies have been published on the supposed “activist” role of the European Court and as many (or more) have been written in defence of the Court. The common denominator of all these works is that they are selective.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 2 , 1999 , pp. 373 - 398
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 1999

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References

1 See Rasmussen, H., On the Law and Policy of the European Court of Justice, (The Hague, Martinus Nijhoff, 1986)Google Scholar; Rasmussen, H., “Between Self-restraint and Activism: A Judicial Policy for the European Court of Justice” 13 (1988) ELRev., 28 Google Scholar; Neill, Sir P., “The European Court of Justice: a Case-study in Judicial Activism” Memorandum presented before the House of Lords Select Committee on the European Communities, 18th Report, (1994–95) Session 218; Hartley, T., “The European Court, Judicial Objectivity and the Constitution of the European Union” 112 (1996) LQR, 95 Google Scholar.

2 Most of these studies have taken the form of a direct response to the former. Thus, see Capelleti, M., “Is the European Court Running Wild?” 12 (1987) ELRev, 3 Google Scholar, and Weiler, J.H.H., “The Court of Justice on Trial” 24 (1987) CMLRev, 555 Google Scholar, on Rasmussen, above n 1; see Lord Howe of Aberavon “Euro-Justice: Yes or No?” 21 (1996) ELRev, 187, and Edward, D., “Judicial Activism: Myth or Reality?” in Campbell, A.I. and Voyatzi, M. (eds) Legal Reasoning and Judicial Interpretation of European Law: Essays in honour of Lord Mackenzie-Stuart (London, Trenton Publishing, 1996) on Neill, above n 1Google Scholar; Arnull, A., “The European Court and Judicial Objectivity: A Reply to Professor Hartley” 112 (1996) LQR, 411 Google Scholar on Hartley, above n 1. More generally, see Slynn, Lord, “The Court of Justice of the European Communities” 33 (1984) ICLQ, 409; Tridimas, T., “The Court of Justice and Judicial Activism” 21 (1996) ELRev, 199 Google Scholar.

3 On the selective nature of studies on activism, see Tridimas, above n 2 at 200.

4 Neill, above n 1 at 218 using in a wider sense the expression coined by Bebr, G., “ Francovich v. Italy, Bonifaci v. Italy “ 29 (1992) CMLRev, 557, 572Google Scholar.

5 Tridimas, above n 2 at 210.

6 The body of preliminary rulings, and especially the early ones, seems a suitable field of research for two reasons: first, as Judge Kutscher put it because “the interpretation of Community law by the Court is done very largely in the context of references for preliminary rulings” (“Methods of interpretation as seen by a judge at the Court of Justice”, Judicial and Academic Conference, 27–28 September 1976, I-5, at I-13; on the importance of the system of preliminary rulings, see also the proposal of the European Court on “The Future of the Judicial System of the European Union”, May 1999, at 22); secondly as the Court has itself acknowledged, because it has been through the co-operation between national courts and the European Court inherent to that system, “that the essential characteristics of the Community legal order have been identified”, Report of the Court of Justice on certain aspects of application of the Treaty on European Union, Annual Report, Court of Justice of the European Communities, 1995, 19.

7 See among others, Chevallier, R.M., “Methods and Reasoning of the European Court of Justice in its interpretation of EC law” 2 (1964–65) CMLRev, 21 Google Scholar; Mann, C., The Function of Judicial Decision in European Economic Integration (The Hague, Nijhoff, 1972) Chapter IVCrossRefGoogle Scholar; Kutscher, above n 6; Hamson C.J., “Methods of Interpretation. A Critical Assessment of the Results”, and Dumon F., “The Case-law of the Community. A Critical Examination of the Methods of Interpretation” (Judicial and Academic Conference, 27–28 September 1976, above n 6 at II-3 and III-3 respectively); Mackenzie-Stuart, Lord, The European Communities and the Rule of Law (London, Stevens, 1977) at 71–80 Google Scholar; Usher, J.A., “The Interpretation of EC law by the European Court of Justice” 11–12 (1977) The Law Teacher, 162 CrossRefGoogle Scholar; Mertens de Wilmars, J., “Reflexions sur les Méthodes d’Interprétation de la Cour de Justice des Communautés Européennes” 22 (1986) CDE, 5 Google Scholar; Schermers, H.G., Judicial Protection in the European Communities 5th ed. (The Hague, Kluwer, 1992) 11 et seq Google Scholar; Weatherill, S. and Beaumont, P., EC Law (Harmondsworth, Penguin, 1995), 166–122.Google Scholar

8 De Montesquieu, M., The Spirit of Laws (London, 1766) Vol. 1 Book XI Chapter 6, 182 (translated by Nugent, T.)Google Scholar

9 Those methods are used by British and continental courts alike. For the approach to statutory interpretation in the United Kingdom, see Allen, C.K., Law in the Making, 482–530, 7th ed. (Oxford, Oxford University Press, 1964)Google Scholar; Williams, G., Learning the Law, Chapter 7, 11th ed. (London, Stevens, 1982)Google Scholar. For a very useful comparison with continental judicial tech niques, see Manchester, C., Salter, D., Moodie, P. and Lynch, B., Exploring the Law: The Dynamics of Precedent and Statutory Interpretation (London, Sweet & Maxwell, 1996), 70–76 Google Scholar.

10 In the Common Law tradition, great emphasis has been placed on this method. Thus, if a legal text has a clear meaning, then the judge has to abide by it (see i.e., Lord Diplock in Duport Steels Ltd. v. Sirs [1980] 1 W.L.R., at 157 and Lord Lester, “English Judges as Law Makers” (1993) PL, 269, 272–275.

11 Thus, English courts were allowed a degree of flexibility with the so-called “golden rule” of statutory interpretation. That rule sets out that adherence to the ordinary meaning of the words may be forgone in order to avoid absurdity (See per Lord Parker, Adler v. George [1964] 2 QB 7, at 9–10 amongst others).

12 See the Opinion of Advocate General Mayrás in Case 67/79 Fellinger v. Bundesanstalt für Arbeit [1980] ECR, 535, 550 where he explained that the European Court: “… May not substitute its discretion for that of the Community legislature; when the meaning of the legislation is clear it has to be applied with that meaning, even if the solution prescribed may be thought to be unsatisfactory. That is not to say, however, that the literal construction of a pro vision must always be accepted. If such a construction were to lead to a nonsensical result in regard to a situation which the Court believed the provision was intended to cover, certain doubts might properly be entertained in regard to it “ (emphasis added). A good example within the scope of the present study is the judgment in Case 62/72 Bollman v. Hza. Hamburg Waltershof [1973] ECR 269. The national court asked whether Articles 73 and 74 of the Rules of Procedure (which refer to costs in contentious proceedings) applied to proceedings under Article 234 EC. A literal interpretation of Article 103(1) RP would mean that they did. The Court, however, decided that those provisions could not apply to Article 234 EC proceedings in view of the essential differences between the latter (which are non-contentious proceedings) and contentious proceedings (see points 4 and 5 of the judgment). See also Case 28/75 Baupla v. Oberfinanzdirektion Köln [1975] ECR 989.

13 Allen, above n 9 at 506; see also Lord Lester, above n 10 at 274.

14 See below, section II.C.

15 Thus see: Weatherill and Beaumont, above n 7 at 167–168; Kutscher, above n 6 at I-17 to I-21; Schermers, above n 7 at 11–15; Lord Mackenzie-Stuart, above n 7 at 71–78; Tridimas, above n 2 at 203–204; Mertens de Wilmars, above n 7 at 16 and Arnull, A., “Interpretation and Precedent in European Community Law” in European Community Law in the English Courts (Oxford, Clarendon Press, 1998), 116–117 Google Scholar.

16 Case 29/69 [1969] ECR 424.

17 See Kutscher, above n 6 at I-20. The approach of the European Court here seems to follow a sound interpretative principle emanating from the national legal systems that in the case of obscurity of legislation, words should not be interpreted to the detriment of the individual (see Allen, above n 9 at 487). For more examples of this approach, see Case 19/67 Sociale Verzekerings Bank v. Van der Vecht [1967] ECR 345. The Court has also decided, however, that “if one or more of the texts involved may have to be interpreted in a manner at variance with the natural and usual meaning of the words” it is preferable to solve the interpretative problem without giving preference to any of the texts involved. See Case 80/76 Kerry Milk v. MAF [1977] ECR 425, para 11.

18 Case 30/77 [1977] ECR 1999.

19 O.J. 1964, No. 850/64, 117.

20 Case 30/77, above n 18 at para. 34 of the judgment.

21 Ibid, at para. 35 of the judgment. See also Usher, J.A., “How Fundamental is Public Policy?” 2 (1977) ELRev, 449, 452–453Google Scholar and Wyatt, D., “Annotation on Case 30/77” 15 (1977) CMLRev, 221 Google Scholar.

22 This legislative approach is found in some of the continental legal traditions but is quite foreign to the Common law tradition. The contrast was vividly described by Lord Denning in Bulmer v. Bollinger (C.A) 2 CMLR [1974] 91, 119: “… The Treaty is quite unlike any of the enactments to which we have become accustomed. The draftsmen of our statutes have striven to express themselves with the utmost exactness. They have tried to foresee all possible circumstances that may arise and to provide for them. They have sacrified style and simplicity. They have foregone brevity. They have become long and involved … How different is this Treaty! It lays down general principles. It expresses its aims and purposes. All in sentences of moderate length and commendable style. But it lacks precision. It uses words and phrases without defining what they mean. An English lawyer would look for an interpretation clause, but he would look in vain. There is none. All the way through the Treaty there are gaps and lacunae”. In a similar vein, see Bingham, Lord in Customs and Excise v. APS Samex [1983] 1 All ER 1042, 1056Google Scholar.

23 The widespread adoption of the qualified majority voting in the Council since the adoption of the Single European Act and the introduction of the co-decision procedure by the Treaty on European Union (see Article 251 EC as amended by the Treaty of Amsterdam) are likely to speed up the legislative process.

24 Case 8/74 [1974] ECR 837.

25 Other examples would include Case 53/81 Levin v. Staatssecretaris van Justitie [1982] ECR 1035 on the definition of worker in Article 39 EC (Article 48); Case 48/69 ICI v. Commission [1972] ECR 619 on the notion of concerted practice in Article 81 EC (ex Article 85) or Case 27/76 United Brands v. Commission [1978] ECR 207 on the notion of dominant position in Article 82 EC (ex Article 86).

26 See Neill, above n 1 at 243. Rasmussen, above n 1 at 26–28, took the view that the activism practised by the Court in that instance was defensible as it fell within the textual limitations of Article 28 EC (Article 26).

27 Case 43/69 [1970] ECR 127.

28 OJ Sp. Ed. 1962 No. 204/62, 87.

29 Article 4(2)(1) Regulation 17.

30 Bilger v. Jehle, above n 27 at para. 5 of the judgment.

31 See Maas, H.H. and Van der Wielden, J.G., “Annotation to Bilger v. Jehle ” 8 (1971) CMLRev, 241, 247Google Scholar. The Court responded to that criticism in later case law by adopting a wider interpretation of the expression in Article 4(2)(1) of Regulation 17. See Case 96/82 IAZ v. Commission [1983] ECR 3369, paras. 32–35 of the judgment and Case 246/86 Belasco v. Commission [1989] ECR 2117 at paras 33–38 of the judgment.

32 Above n 6 at I-21.

33 In the continental systems, courts often use the historical method of interpretation (see Allen, above n 9 at 514; Manchester, Salter, Moodie and Lynch, above n 9 at 74 and Dumon, above n 7 at III-101–102). By contrast, in the Common Law tradition, an intense debate took place on whether or not it was legitimate to have recourse to the historical method. The so-called “exclusionary rule” prevented a judge from looking at the background of the legislation in question, and precluded the use of parliamentary debates as an aid to ascertain the intention of the legislator in cases where the literal meaning of the provision was obscure or ambiguous (See Lord Lester, above n 10 at 273–275; Allen, above n 9 at 510). The rule was finally relaxed in Pepper v. Hart [1993] 1 All ER (HL) 42; see also Oliver, D. “ Pepper v. Hart : A Suitable Case for Reference to Hansard? ” PL (1993), 5 Google Scholar. Limited recourse to travaux pré paratoires in the interpretation of English statutes designed to give effect to a international convention had already been admitted (see Fothergill v. Monarch Airlines [1981] AC (HL) 251; more recently see Sidhu and others v. British Airways [1997] 1 All ER (HL) 193, 202 and Semco Salvage v. Lancer Navigation (“The Nagasaki Spirit”) [1997] 1 All ER (HL) 507).

34 For examples within the scope of this work, see below sections III.B and III.C.

35 For a comprehensive study of the use of the comparative method by the Advocates General and the Court, see Pescatore P., “Le recours, dans la jurisprudence de la Cour de Justice des Communautés Européennes a des normes deduites de la comparison des droits des Etats Membres” (1980) RIDC, 337.

36 Case 17/74 [1974] ECR 1063.

37 Ibid at 1088–89.

38 In “The Birth of European Law at the Crossroads of Legal Traditions” [1991] AJCL (1991), 493, Koopmans T. demonstrates persuasively the strong influence of the different legal traditions of the Member States on the case-law of the European Court.

39 See Case 11/70 Internationale Handelsgesellschaft v. Einfuhr-und-Vorratsstelle Getreide [1970] ECR 1125, para. 4.

40 Ibid. See also Case 3/74 Einfuhr und Vorratsstelle für Getreide und Futtermittel v. Pfüntzenreuter [1974] ECR 589, where the national court had specifically asked whether the term “importation” could be interpreted according to national law. More generally, see Case 283/81 CILFIT v. Ministry of Health [1982] ECR 3415, para. 19.

41 On the importance of this method of interpretation, see the Reply of Professor Dashwood to the question out by Lord Hacking, Evidence taken before the Select Committee on the European Communities, above n 1 at 261.

42 Chevallier, above n 7 at 27, distinguishes between an examination of the “narrow” context, that is the preceding and subsequent sentences or provisions to the one requiring inter pretation, and the “wide” context, which includes the EC Treaty as a whole. Examples of an examination of the context by the Court in both senses are given at 27–30.

43 Case 59/75 [1976] ECR 100. See Schermers, above n 7 at 16 and Kutscher, above n 6 at I-37.

44 See below sections III.B and III.C.

45 Case 51/70 [1971] ECR 121.

46 Ibid. at paras. 6–9.

47 For a list of examples see Schermers G. above n 7 at 17–18 and Usher, J., “Interpretation by Analogy: Contrasting Cases” 3 (1978) ELRev, 387 Google Scholar. For a case where the Court declined to use interpretation by analogy, see Case 150/73 Hollandse Melsuikerfabriek v. Hoofdproduktschap Akkerbouwprodukten [1973] ECR 1633.

48 In the common law tradition, there has been considerable reluctance to accept this method of interpretation, mainly because it is viewed as dangerous and undemocratic. See Herman S., “Quot Judices Tot Sententiae: A Study of English Reaction to Continental Interpretative Techniques” (1981) Legal Studies, 165. On the arguments against teleology, see Devlin, Lord, “Judges and Law makers” 39 (1976) MLR, 1 at 10Google Scholar. The teleological (or purposive) method of interpretation, however, has its defenders. Thus, Lord Denning in Magor and St.Mellors v. Newport Corporation [1950] 2 All ER 1226 at 1236, took the view that purposive interpretation was far from ruled out in the common law tradition, but was rather an extension of the so-called “mischief rule” laid down by the Heydon’s case in the XVIth century (see further, Herman, at 170, and Lord Lester, above n 10 at 272–275). That rule as explained by Williams G., above n 9 at 101, means that the judges will “… look at the common law (i.e. the legal position) before the Act, and the mischief that the statute was intended to remedy; the Act is then to be construed in such a way as to suppress the mischief and advance the remedy”. Lord Denning’s views were strongly criticised on appeal: see per Lord Simmonds, Magor and St. Mellors v. Newport Corporation [1951] 2 All ER (HL) 839 at 841.

49 See Case 43/75 Defrenne v. Sabena [1976] ECR 455.

50 The doctrine of exhaustion of rights in intellectual property cases is a clear example. In view of total silence in the Treaty, the Court had to reconcile two seemingly irreconcilable elements: the exclusivity and territoriality of intellectual property rights and the single market objective of the Treaty. See amongst others, Joined Cases 56 and 58/64 Consten and Grundig v. Commission [1966] ECR 299; Case 78/70 Deustche Gramophon v. Metro [1971] ECR 487 and Case 15/74 Centrafarm v. Sterling Drug [1974] ECR 1147. Another example of gap-filling by the Court is the case law on the locus standi of the European Parliament to bring annulment proceedings. See Case C–302/87 Parliament v. Council [1988] ECR 5615 and Case C–70/88 Parliament v. Council [1990] ECR I–2041.

51 The case-law on direct effect of directives furnishes a good example; see amongst others, Case 41/74 Van Duyn v. Home Office [1974] ECR 1337; Case 148/78 Pubblico Ministero v. Ratti [1979] ECR 1629 and Case 152/84 Marshall v. Southampton and South West Area Health Authority [1986] ECR 723. Likewise, the case law on State liability in damages reflects an intention of the Court to protect individual rights and to ensure the fulfilment by the Member States of their Treaty obligations. See Joined Cases C–6/90 and C–9/90 Francovich and Bonifaci v. Italy [1991] ECR I–5357 and Cases C–46/93 and C–48/93 Brasserie du Pêcheur v. Germany and The Queen v. HM Treasury, ex parte Factortame [1996] ECR I–1029, amongst others.

52 This would certainly be the explanation for two of the most typical examples of teleology: Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1 (hereafter referred to as Van Gend en Loos) and Case 6/64 Costa v. ENEL [1964] ECR 585. See in this respect, Edward, above n 2 at 43–52. Another example in this category is Case 314/85 Foto-Frost v. Hza Lübeck-Ost [1987] ECR 4199.

53 See above n 1.

54 Thus, 186, 92 and 40 decisions in the first, second and third areas have been considered.

55 Case 13/61 [1962] ECR 45.

56 Ibid at 49. In Case 31/68 Chanel v. Cepeha [1970] ECR 403 however, the Court decided otherwise, and suspended judgment by order, when it was notified that an appeal had been lodged against the decision to make a reference. In the Rheinmühlen cases (Case 166/73 [1974] ECR 33 and Case 146/73 [1974] ECR 139), a German court, which had its judgment reversed by a higher court, made a reference to the European Court when the case went back for re consideration. The plaintiff in the national proceedings appealed against the decision to refer. The higher court made, in its turn, a reference to the European Court questioning whether the lower court had an unfettered discretion to refer or was bound on points of law by the judg ment of the superior court. Advocate General Warner had suggested in his “Opinion” that national legislation could not provide for a right of appeal against an order for a reference made by a lower court, if purposeless references were not to be entertained by the Court (at 43). The Court took the view that, although lower national courts had an unfettered discretion to refer, Article 234 EC did not preclude a decision to refer from remaining subject to remedies under national law (at point 3 of the judgment in Case 146/73). As Winter observed (“Note on Cases 146/73 and 166/73 11 [1974]” CMLRev., 216, 217) the Court declined to take the far-reaching view suggested by the Advocate General and adopted instead a view that would ensure the respect for national judicial remedies.

57 Case 13/61 above n 55 at 53.

58 Van Gend en Loos above n 52

59 Ibid at 38. For other examples see, Case 20/67 Tivoli v. Hza. Würzburg [1968] ECR 199; Case 28/70 Witt v. Hza Lüneburg [1970] ECR 1021.

60 Case 56/65 [1966] ECR 235.

61 Ibid at 247–48. On the difficulties in drawing a line between interpretation and application, see Mashaw, J.L., “Annotation on Case 56/65” 4 (1966) CMLRev, 232, 232Google Scholar.

62 See Case 26/68 Sécurité Sociale du Nord de la France v. Torrenkens [1969] ECR 125, 134. The Court continued this approach, even amidst calls urging the Court not to answer questions imprecisely formulated; see Case 10/71 Ministère Public Luxembourg v. Muller [1971] ECR 723 and the observations made to that judgment by Geelhoed “Annotation on Case 10/71” 9 (1972) CMLRev, 481 at 484. More recently, the Court has refused to answer questions where the national court has failed to define adequately the legal and factual background to the case; see e.g. Joined Cases C-320–322/90 Telemarsicabruzzo v. Circostel [1993] ECR I-393.

63 Case 44/65 [1965] ECR 965. See also Case 13/67 Becher v. Hza. Munchen-Landsßergerstraße [1968] ECR 187 and Case 5/72 Grassi v. Italian Finance Administration [1972] ECR 443.

64 In the same vein, see the observations made by Advocate General Dutheillet de Lamothe in his Opinion in Case 6/71 Rheinmühlen v. Einfuhr-und Vorratsstelle Getreide [1971] ECR 823, 852.

65 Joined Cases 28, 29 and 20/62 [1963] ECR 31.

66 Ibid at 38.

67 The judgment of the Court was welcomed by the academic writers as furthering the involvement of highest national courts in upholding Community law; see Samkalden, J. “Annotation on Da Costa ” 1 (1963–64) CMLRev, 213, 215–217Google Scholar.

68 Case 100/63 [1964] ECR 565. See also Case 24/64 Dingemans v. Sociale Verzeringsbank [1964] ECR 647.

69 Ibid at 572. In a later case, Case 33/65 Dekker [1965] ECR 901 the Court held that it was not entitled to interpret national law.

70 See also Case 80/71 Merluzzi v. Caisse Maladie Paris [1972] ECR 175.

71 Case 6/64 [1964] ECR 585.

72 Case 26/62 above n 52 at 11.

73 Case 6/64 above n 71 at 593.

74 Ibid at 602. AG Lagrange, was undoubtedly guided by considerations of practicality and common sense so that the time an energy of the Court could be used to solve real problems faced by the national judiciaries and so that abuses of procedure could be avoided. See also the “Opinion” of AG Roemer in Case 10/69 Portelange v. Marchant [1969] ECR 309, 320.

75 In a judgment delivered shortly afterwards, Case 20/64 Albatros v. Sopeco [1965] ECR 29, the Court adopted an identical approach. Some authors began to prompt the Court to examine the relevance of questions submitted by national courts in order to avoid both a flood of preliminary references and a straining of the wording of Article 234 EC; see Amphoux J., “Article 177 CEE et Régime Français du Pétrole” CDE (1965), 61, 68.

76 See further Brinkhorst, L.J., “Annotation on Salgoil” 6 CMLRev (1969), 478, 482Google Scholar and the “Opinion” of AG Roemer in Case 28/68 Sécurité Sociale du Nord de la France v. Torrenkens [1969] ECR 125, 139. For later examples where the Court did examine the relevancy of a question see Case 126/80 Salonia v. Poidomani [1981] ECR 1563, para. 6 and Case C–286/88 Falciola [1990] ECR I-191. See, for an excellent study on the changing approach of the Court, Barnard, C. and Sharpston, E., “The Changing Face of Article 177 References” 34 (1997) CMLRev, 1113 Google Scholar.

77 Case 13/68 [1968] ECR 453.

78 Ibid at 459.

79 Thus, in Case 10/69 Portelange v. Marchant [1969] ECR 309, AG Roemer urged the Court to apply the Salgoil principle (in a wider sense) to a question on the interpretation of Article 81 EC (ex Article 85). The Court refused to do so and went on to provide a ruling (See in particular at paras. 6–7 of the judgment).

80 Case 10/65 [1965] ECR 469.

81 Ibid at 473.

82 Case 61/65 [1966] ECR 261.

83 On multilingualism, see above section II.A.

84 See Haardt, , “Annotation on Vaasen ” 4 (1966) CMLRev, 440 at 441Google Scholar, who pointed out that there was a significant degree of public control over the body and that recourse to it was made compulsory by law. He pointed out that the body “had very little in common with an arbitral tribunal”. This view is confirmed by the decision of the Court in Case 102/81 Nordsee v. Reederei Mond [1982] ECR 1095, where the Court took the view that a German arbitration tribunal did not qualify to make a reference to the Court. The main differences between the two cases were firstly that in Nordsee recourse to the arbitral tribunal was not compulsory and secondly there was no involvement of the public authorities in the arbitration procedure (see the judgment in Nordsee at paras 11–12).

85 Case 22/67 [1967] ECR 321.

86 Ibid at 329.

87 Other examples of this approach include Case 11/67 Office National des Pensions v. Couture [1967] ECR 379.

88 The Court normally groups the questions which are clearly related to each other; see Sociale Verzekerings Bank v. Van der Vecht above n 17; Case 28/67 Molkerei-Zentrale Westfalen v. Hza. Padeborn [1968] ECR 143; Case 25/67 Eierkontor v. Hza.Saarbrücken [1968] ECR 207; Case 25/67 Fink-Frucht v. Hza. München [1968] ECR 223; Case 4/68 Schwarzwaldmich v. Einfuhr-und Vorratsstelle [1968] ECR 377; Case 30/70 Scheer v. Einfuhr-und Vorrtatsstelle für Getreide und Futtermittel [1970] ECR 1197.

89 This occurs when the answer to a series of questions is requested in the event that the answer to the first question is in the affirmative. If the Court answers the first question in the negative, it will not then entertain gratuitous interpretations of EC law. See Case 7/67 Wöhrmann v. Hza. Bad Reichenhall [1968] ECR 177; Case 14/70 Bakels v. Oberfinanzdirektion München [1970] ECR 1001. A particularly good example is the decision of the Court in Case 82/71 Publico Ministero Italiano v. Sail [1972] ECR 119. In that case, the Pretore di Bari asked five questions, of which the Court only answered the third question, given that a negative answer to that question rendered an answer to the other questions unnecessary.

90 Case 101/63 [1964] ECR 195.

91 This is the corresponding provision to Article 220 (ex Article 164) in the EC Treaty.

92 Wagner v. Fohrmann, above n 90 at 205. He also acknowledged, however, that a decision on that point was not necessary in the case.

93 Ibid at 199–200. A few years later, a similar submission was put forward by the Dutch Government in Case 23/68 Klomp v. Inspecktie der Belastingen [1969] ECR 43. Again in that case, it proved not to be necessary for the Court to deal with its jurisdiction to deliver interpretative rulings in the framework of the ECSC Treaty.

94 Case C–221/88 [1990] ECR I–495.

95 Ibid at para. 9 of the judgment.

96 Case 16/65 [1965] ECR 877.

97 The non-formalistic approach of the Court to preliminary references is constantly present in its early case-law; (see Costa v. ENEL, above n 52 at 593). Another illustrative exam ple is Case 5/67 Beus v. Hza. München [1968] ECR 83, where the Court re-opened the oral procedure and considered on its own motion the validity of a regulation, after the applicant in the national proceedings raised the point following a detailed explanation by the Commission.

98 Schwarze v. Einfuhr-und Vorratsstelle Getreide above n 96 at 886.

99 Case 314/85 [1987] ECR 4199.

100 See Neill, above n 1 at 239–240.

101 Case 18/72 [1972] ECR 1163 (hereafter referred to as Granaria). See also Case 120/75 Riemer v. Hza. Lübeck-West [1976] ECR 1003.

102 OJ, English Special Edition 1967, 33.

103 Granaria above n 101 at para. 6.

104 Ibid at paras. 7–8.

105 Thus, the Court acknowledged that the Common Customs Tariff was based on the Brussels Nomenclature and that therefore, the Explanatory Notes to that Nomenclature although non-binding, represented a valid aid to interpretation: see Case 14/70 Bakels v. Oberfinanzirektion München [1970] ECR 1001; Case 21/71 Brosersen v. Einfuhr-und Vorratsstelle Getreide [1971] ECR 1069; Case 128/73 Past & Co. v. Hza. Freiburg [1973] ECR 1277; Case 22/76 Import Gadgets v. L.A.M.P. [1976] ECR 1371; Case 106/75 Merkur v. Hza. Hamburg-Jonas [1976] ECR 531. Additional Notes to the Common Customs Tariff decided by the Council, however, became part of the heading to which they refer and they had the same binding effect (see Case 38/75 Nederlandse Spoorwegen v. Inspecteur der Invoerrechten en Accijnzen [1975] ECR 1439, para. 10 and Case 62/77 Carlsen Verlag v. Oberfinanzdirektion Köln [1977] ECR 2343).

106 Case 149/73 [1973] ECR 1587.

107 Ibid at para. 3

108 Ibid.

109 Case 35/75 [1975] ECR 1205.

110 Cases 69 and 70/76 [1977] ECR 231. See also Joined Cases 98 and 99/75 Carstens Keramik v. Oberfinanzdirektion Frankfurt-am-Main [1976] ECR 241.

111 Case 23/77 [1977] ECR 1985.

112 Ibid at para. 3.

113 For an example where the Court use contextual interpretation in a “wider” sense (above n 42), see Case 86/76 Gervais-Danone v. Hza. München-Mitte [1977] ECR 619.

114 Ibid at paras 5–8 of the judgment.

115 See below section II.B. There is also evidence in this area of the use by the Court of general interpretative principles common to other areas. For example, in Bakels v. Oberfinanzdirektion München above n 105, the Court was asked whether explanatory notes issued by national authorities could have a binding effect. The Court answered in the negative on the grounds that uniformity in the interpretation of Community law should be preserved (see above, section II.C.).

116 For an example of teleological interpretation, see Case 1/77 Bosch v. Hza. Hildesheim [1977] ECR 1473, para. 4.

117 See Title II, Part III EC Treaty.

118 Joined Cases 38 and 39/71 [1972] ECR 1.

119 Regulation 1009/67 (O.J. No.1, Sp. Ed. 1967 p.304).

120 Joined Cases 38 and 39/71, above n 118 at para. 18.

121 Ibid at para. 19.

122 Ibid at paras. 21–22. For a similar approach, see Case 5/72 Grassi v. Italian Finance Administration above n 63 at para. 5; Case 17/72 Getreidehandel v. Einfuhr-und Vorratsstelle Getreide [1972] ECR 1071 (hereafter referred to as Getreidehandel ); Case 124/73 Kampffmeyer v. Einfuhr-und-Vorratsstelle für Getreide und Futtermitel [1973] ECR 1395, paras. 4–5, and Case 36/77 AIMA v. Greco [1977] ECR 2059.

123 Case 126/73 [1973] ECR 1419.

124 See Regulation No. 19, above.

125 Regulation No. 22 (OJ 1962, No 30) is the basic regulation on the common organisation of the market in poultrymeat.

126 Case 126/73 above n 123 at para. 4.

127 For a case of successful use of interpretation by analogy in this area, see Case 64/74 Reich v. Hza. Landau [1975] ECR 261.

128 Case 190/73 [1974] ECR 1123.

129 Regulation 234/68 OJ [1968] L 55/1.

130 Officer van Justitie v. Van Haaster, above n 128 at para. 5.

131 Ibid at para. 12.

132 Ibid at paras 15–18.

133 Above n 42.

134 For further examples of a similar approach, see Case 31/74 Galli [1975] ECR 47 and Case 84/76 Collic v. Forma [1977] ECR 361. Sometimes neither the wording nor the context were helpful, as the Court acknowledged in Case 125/76 Cremer v. Bundesanstalt für Landwirtschaftliche Marktordnung [1977] ECR 1593 the national court asked, inter alia two questions on the interpretation of three regulations on the grant of export refunds on exports of feeding stuffs. The Court explained at para. 13 of the judgment that: “[A]lthough the provisions of the regulations referred to by the national court are difficult to understand from the point of view of their wording and context, they may be satisfactorily explained having regard to the objectives of the system of export refunds…” In those cases, a teleological interpretation was the only option. At paras 16–18 the Court answered another question posed by the national court just by using almost exclusively the literal method of interpretation.

135 See Case 27/72 Aimer v. Einfuhr-und Vorratsstelle Getreide [1972] ECR 1091.

136 See the judgment of the Court in Case 31/70 Getreide-und Futtermittel Handelsgesellschaft v. Hza Hamburg-Altona [1970] ECR 1055 and compare with the more adventurous “Opinion” of the Advocate General at 1072.

137 In some cases of legislative silence, the Court followed a teleological interpretation and then made sure that the interpretation did not run contrary to the wording of the provision of question; see Case 6/77 Schouten v. Hoofdprodukstchap voor Akkerbouwprodkten [1977] ECR 1291.

138 Case 61/72 [1973] ECR 301 (hereafter referred to as Mij PPW)

139 Regulation No. 1009/67 (OJ L 308/1) and Regulation No. 1373/70 (OJ L 158/1).

140 Mij PPW, above n 138 at 310–311.

141 This approach is reminiscent of the one taken by the Court in the case law on national remedies for breaches of EC rights. See Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral v. Landwirtschaftksammer für das Saarland [1976] ECR 1989, 1997.

142 Case 40/69 [1970] ECR 69.

143 Case 34/70 [1970] ECR 1233.

144 Ibid at para. 10. This approach appears repeatedly in the framework of the case law concerning free movement of goods, persons and services. See above n 21 and accompanying text.

145 Case 6/71 above n 64.

146 See also Case 2/77 Hoffmann’s Stärkefabriken v. Hza. Bielefeld [1977] ECR 1375. For two examples where the Court found a breach of the principle and went on to declare the relevant regulations illegal, see Joined Cases 117/76 and 16/77 Ruckdeschel & Co. v. Hza. Hamburg-St.Annen [1977] ECR 1753 (hereafter referred to as Ruckdeschel), and Joined Cases 124/76 and 20/77 Moulins et Huileries de Pont-à-Mousson v. ONIC [1977] ECR 1795 (here after referred to as Moulins).

147 Ibid at para. 4 of the judgment. For a study of the application of the principle of equality to agricultural law, see Tridimas, T., “The Application of the Principle of Equality as a General Principle of Community Law” in The Principle of Equality in EC law, Dashwood, A. and O’Leary, S. (eds) (London, Sweet & Maxwell, 1997), 214, 220–223Google Scholar.

148 Case 11/70 above n 39.

149 Ibid at paras 14–16.

150 Case 78/74 [1975] ECR 421.

151 The Court soon placed limits to that principle by explaining that economic operators should not be allowed to make a speculative profit out of contingencies in the system put in place by the agricultural regulations; See Case 2/75 Einfuhr-und Vorratsstelle für Getreide und Futtermittel v. Mackprang [1975] ECR 607 and Case 113/75 Frecatessi v. Administrazione delle Finanze dello Stato [1976] ECR 983.

152 Case 1/73 [1973] ECR 723.

153 See also Case 143/73 Sopad v. Forma and Firs [1973] ECR 1433.

154 Case 6/75 [1976] ECR 45.

155 In that case, the Court recognised that national rules on state liability should apply to this situation, at para. 9. The Opinion of Advocate General Reischl at 62 was more far-reaching and even seemed to anticipate the Court’s decision in Francovich and Bonifaci v. Italy above n 51. In the same vein, see his Opinion in Case 52/76 Benedetti v. Munari [1977] ECR 163, 192 where he highlighted first, the silence of the Treaty on state liability for breaches of EC law and secondly, the wide discrepancies between the national laws on compensation.

156 See above section II.C.

157 See Case 34/70, above n 51; Case 39/70 Fleischkontor v. Hza Hamburg [1971] ECR 49, para. 5; Case 49/71 Hagen v. Einfuhr-und Vorratsstelle Getreide [1972] ECR 23, para. 6; Case 118/76 Balkan-Import-Export v. Hza. Berlin-Packhof [1977] ECR 1177, para. 6 and the annotation to that case by Timion, J., “No Exemption from Monetary Compensatory Amounts on Grounds of Natural Justice” 3 (1978) ELRev, 39 Google Scholar.

158 See Case 131/76 Grosoli [1973] ECR 1555; Case 142/73 Mathes & Schurr [1973] ECR 1575; Joined Cases 178, 179, 180/73 Belgium and Luxembourg [1974] ECR 383; Case 31/74 Galli [1975] ECR 47; Joined Cases 89/74, 18 and 19/75 Procureur Général, Cour d’Appeal Bordeaux v. Arnaud [1975] ECR 1023.

159 Getreidehandel above n 122; Grassi v. Italian Finance Administration above n 63; Case 154/73 Becher v. Hza. Emden [1974] ECR 19; Case 78/74 Deuka v. Einfuhr-und Vorratsstelle Getreide [1975] ECR 421; Case 55/75 Balkan-Import v. Hza. Berlin-Packhof [1976] ECR 19 and Case 29/77 Roquette Frères v. French State [1977] ECR 185.

160 For examples of cases where Community regulations were held to be illegal, see Case 9/75 Efem v. Hza. Lüneburg [1976] ECR 361 and Ruckdeschel and Moulins above n 146.

161 This approach has changed since, see Barnard, and Shapston, , above n 76 at 1119–1141, and the Guidance on References by National Courts for Preliminary Rulings (1997) 1 CMLR, 78 Google Scholar. The main reason behind this change of direction seems to be a practical one: the need to curtail the number of references brought before the Court, see Barnard and Sharpston at 1157–1162. On future prospects of the system of preliminary rulings, see the Chapter IV, point 3 of the recent paper presented by the European Court, The Future of the Judicial System of the European Union (May 1999). In view of the ever-increasing number of references, the Court has presented three options that could be contemplated to reduce the number of references: option I would be a limitation of the national courts empowered to refer; option II would be the introduction of a filtering system and option III would be the conferral on the Court of First Instance of jurisdiction in preliminary ruling proceedings.

162 See above n 90 and accompanying text.

163 See above n 76 and accompanying text.

164 See above n 99 and accompanying text.

165 See above n 155 and accompanying text.

166 See above n 74 and n 155.