C-62/72

1. Proceedings instituted under Article proceedings under Article 177 of the 177 are non-contentious and are in Treaty, one cannot, without express the nature of a step in the action provision, extend to the latter pending before a national court, as proceedings rules laid down solely for the parties to the main action are contentious proceedings. The recovery merely invited to state their case of costs and the recoverability of within the legal limits laid down by expenses necessarily incurred by the the national court. parties to the main action for the purposes of an application for a By the expression 'parties', Article 20 of the Protocol on the Statute of preliminary ruling under Article 177 of the EEC Treaty are not covered by the EEC Court refers to the parties to Article 103 (1) of the Rules of the action pending before the national court. Procedure of the Court. The recovery of those costs and the recoverability of those expenses are governed by the 2. In view of the essential difference provisions of national law applicable between contentious proceedings and to the main action.

In Case 62/72

Application to the Court under Article 177 of the EEC Treaty by the Bundes­ finanzhof for a preliminary ruling in the action pending before that court between

1 — Language of the Case: German.

JUDGMENT OF 1. 3. 1973 — CASE 62/72

PAUL G. BOLLMANN, Hamburg,

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure costs of the revision proceedings against the Hauptzollamt after its withdrawal The facts and procedure may be from the case. When the opposing party summarized as follows: asked for reimbursement of the expenses incurred in the application for a 1. In its judgment of 18 February 1970 preliminary ruling before the Court of in Case 40/69, given at the request of the Justice, the competent national authority Bundesfinanzhof (Federal Fiscal Court) considered that that party had a right to which was acting in revision proceedings recover a hearing fee of 13/10ths, in the case of Bollmann v Hauptzollamt together with postage and travel Hamburg-Oberelbe, the Court of Justice expenses, but that the sum claimed decided 'that as these proceedings are, under the heading of lawyers' fees insofar as the parties to the action are should be reduced, as the revision concerned, in the nature of a step in the proceedings and those before the Court action pending before the Bundesfinanz­ were, in its opinion, part of one and the hof of the Federal Republic of same action. Germany, the decision on costs is The firm of Paul G. Bollmann appealed therefore a matter for that court'. against this decision. Pursuant to this decision, the When the appeal was rejected, the Bundesfinanzhof made an order for the matter was brought before the

BOLLMANN v HAUPTZOLLAMT HAMBURG-WALTERSHOF

JUDGMENT OF 1. 3. 1973 — CASE 62/72

Moreover, Community law does not before the Court must be determined by expressly recognize a legal right to each Member State in accordance with reimbursement of a lawyer or adviser for national law, as national laws are not work undertaken in an application for a uniform in this field and do not all preliminary ruling. Article 73 of the guarantee the right of the lawyer to such Rules of Procedure of the Court only remuneration. deals with the question of such right in In the view of the Bollmann firm, the the case of contentious proceedings. reply to the question posed should be This being the case, in order to reply to that the recoverability of expenses the question posed, it is a matter of necessarily incurred by the parties in an deciding which of those two provisions application for a preliminary ruling — (Article 73 of the said Rules of § 113 No particularly under the heading of 2 of the German Tariff), arising under remuneration of lawyers — must be Community law and national law determined by reference to Community respectively, should be applied, by way law. of analogy, in calculating the In the event that the Court gives a remuneration due to the lawyer. negative reply, it should, in its judgment, Several reasons militate in favour of the enjoin the Member States to enact basic application of the rules of Community national rules providing for appropriate law, in particular: remuneration of lawyers charged with pleading before the Court in an (i) the nature and extent of the work application for a preliminary ruling, and undertaken by the lawyer in the guaranteeing them the possibility of application for a preliminary ruling recovering the amounts of such before the Court, remuneration. It should not be less than (ii) the fact that those proceedings are that laid down in Germany for the subject solely to Community law services of a laywer in preliminary and lie within the jurisdiction of the proceedings before the Federal Constit­ Court alone, utional Court.

BOLLMANN v HAUPTZOLLAMT HAMBURG-WALTERSHOF

follows: those Rules. As Article 103 (1), first 'When, within the framework of paragraph, aforesaid applies only to proceedings under Article 177 of the contentious proceedings before the EEC Treaty, the Court of Justice leaves Court of Justice, the German courts do the decision as to costs to the court not have to apply this provision of requesting the preliminary ruling, must Community law when they make a Article 103 (1), first paragraph, of the decision as to costs.

Justice. As, because of this, the scope of C — Observations presented by the Article 69 (1) is restricted to contentious Commission of the European proceedings, any application of that Communities provision to applications for preliminary rulings, even by way of analogy, is After raising the question whether impossible. Community rules exist relating to costs The same consideration obtains in in an application for a preliminary respect of Article 74 of the Rules of ruling, the Commission observes that 'Procedure, as that provision only applies such proceedings have special features: in proceedings in which the Court is they arise from a main action pending competent to rule on the merits as well before a national court and are only as on costs. brought to a close by the judgment of In the view of the German Government, that court. For this reason, in an a negative reply should be given to the application for a preliminary ruling court requesting a preliminary ruling in before the Court, there are no 'parties'

but merely persons concerned, 'entitled' previously stated, rely, in respect of an to present observations, as the term application for a preliminary ruling, on 'party' contained in Article 20 of the Articles 73 and 74 of the Rules of Protocol on the Statute of the Court and Procedure, as those Articles deal only in Article 103 (1) of the Rules of with contentious proceedings. Procedure of the Court refers only to the Therefore, in the absence of any parties to the main action. provision of Community law, one must It follows from this that there are no look to the provisions of national law Communtiy rules relating to costs in an governing the main action and to the application for a preliminary ruling jurisdiction of the national authorities before the Court: the basic reason for for the answer to the question relating to remuneration of the lawyer or adviser the recoverability of such expenses. arises in the main action and the Court Further, in the event of the Court of Justice leaves the decision as to the contributing for its part, within the costs of that action to the jurisdiction of framework of an application for a the national court. preliminary ruling, to the decision of the It is true that Community law contains national court as to costs, it would be the principle that the remuneration of a obliged to rely on the applicable rules of national law and would thus be lawyer or adviser forms part of the expenses recoverable, insofar as they are encroaching on the jurisdiction of the national courts. expenses necessarily incurred (Article 73 of the Rules of Procedure of the Court). The Commission suggests therefore that But this same law does not lay down the reply to the question posed should provisions making it possible to decide be that the procedure for the recovery of what are the expenses recoverable under costs incurred in an application for a the heading of such remuneration. This preliminary ruling and the determination implies in the case in question that, even of the recoverability of expenses supposing that Articles 73 and 74 of the necessarily incurred, particularly remun­ Rules of Procedure are applicable by eration of lawyers, are governed by way of analogy, it must first be decided national law and fall within the what the remuneration is to which the jurisdiction of the national authorities, lawyer or adviser is entitled. In any within the framework of the main event, one cannot, for the reasons action.

4 Proceedings instituted under Article 177 are non-contentious and are in the nature of a step in the action pending before a national court, as the parties to the main action are merely invited to state their case within the legal limits laid down by the national court.

By the expression 'parties', Article 20 of the Protocol on the Statute of the EEC Court refers to the parties to the action pending before the national court.

5 On the other hand, Articles 69 to 75 of the Rules of Procedure refer to costs in contentious proceedings.

The proceedings referred to by those provisions are distinguished by the presence of parties, and are closed by a judgment or order of the Court which decides definitively the dispute which gave rise to the proceedings.

Article 73 of the Rules of Procedure also refers to expenses incurred in such proceedings when defining the recoverability of 'expenses necessarily incurred by the parties'.

Article 74 is restricted to settling the procedure for the recovery of those expenses.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the firm of Paul G. Bollmann, the Government of the Federal Republic of Germany and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 177 and 188; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 73, 74 and 103;

THE COURT,

in answer to the question referred to it by the Bundesfinanzhof of the Federal Republic of Germany by a decision of that court dated 8 August 1972, hereby rules:

The recovery of costs and the recoverability of expenses necessarily incurred by the parties to the main action for the purposes of an ap­ plication for a preliminary ruling under Article 177 of the EEC Treaty are not covered by Article 103 (1) of the Rules of Procedure of the Court.

BOLLMANN v HAUPTZOLLAMT HAMBURG-WALTERSHOF

Registrar President

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 6 FEBRUARY 1973 1

Mr President, After the preliminary ruling was given, Members of the Court, the Hauptzollamt Hamburg-Oberelbe (one of the parties in the case), withdrew In Case 40/69 (the well-known Turkey its application for revision. All the Bundesfinanzhof had to do therefore Tails Case), involving proceedings before the Bundesfinanzhof in Munich, the was to make an order in respect of the Court of Justice gave a preliminary costs of the proceedings. This was done ruling on 18 February 1970 (Recueil by a decision of 29 April 1970 whereby 1970, p. 69). Its ruling on costs, the Hauptzollamt must bear the costs of following its constant line in earlier the revision proceedings. A further cases, was that 'the costs incurred by the decision of 21 July 1970 specified Commission of the European Communi­ furthermore that the Hauptzollamt must ties and the Government of the German also bear the costs of the proceedings Federal Republic, which submitted their before the Court of Justice of the observations to the Court, cannot be European Communities. reimbursed. With regard to the parties in On the basis of these facts, the Bollmann the case, the proceedings before this firm, respondent in the revision Court are in the nature of a step in the proceedings before the Bundesfinanzhof, proceedings pending in the Bundesfin­ requested that expenses to be recovered anzhof. It is for that court therefore to by them be fixed in such a way that, in make its own order as to costs.' respect of the proceedings before the