C-244/80

MARIELLA NOVELLO, Magliano Alfieri,

on the interpretation of Articles 177 and 95 of the EEC Treaty,

T H E COURT

composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans and U. Everling, Judges,

Advocate General: Sir Gordon Slynn Registrar: A. Van Houtte

gives the following

The order making the reference and "The duty of the Court of Justice under the observations submitted pursuant to Article 177 of the EEC Treaty is to Article 20 of the Protocol on the Statute supply all courts in the Community with of the Court of Justice of the EEC may- the information on the interpretation of be summarized as follows : Community law which is necessary to enable them to settle genuine disputes which are brought before them. A situation in which the Court was obliged by the expedient of arrangements like I — Facts and w r i t t e n p r o c e d u r e those described above to give rulings would jeopardize the whole system of legal remedies available to private individuals to enable them to protect By an order of 6 June 1979 the Pretura themselves against tax provisions which di Bra stayed the proceedings between are contrary to the Treaty." Mr Foglia and Mrs Novello in which the French tax arrangements applying to liqueur wines were called in question and Following that judgment the defendant referred to the Court of Justice for a in the main action contended before the preliminary ruling questions on the national court that in that judgment the interpretation of Articles 92 and 95 of Court of Justice had considered that it the EEC Treaty. was in a position to appraise the facts of the specific case submitted to the Pretore di Bra for the purpose of defining its own jurisdiction under Article 177 of In its judgment of 11 March 1980 the Treaty establishing the European {Foglia, Case 104/79, [1980] ECR 745) Economic Community with a view to the the Court of Justice replied to the subsequent exercise of its own powers of Pretore di Bra that it had no jurisdiction interpretation. to give a ruling on the questions submitted by the national court. The defendant concluded that the Court of Justice had directly arrogated to itself In its judgment the Court found that the the discretionary powers of the Italian parties to the main action were court in relation to the appraisal of the concerned "to obtain a ruling that the actual substance of the action — powers French tax system is invalid for liqueur which were conferred upon the latter by wines by the expedient of proceedings the rules of the judicial system in force. before an Italian court between two As a principal conclusion the defendant private individuals who are in agreement accordingly put forward as its main as to the result to be attained and who submission a formal objection that the have inserted a clause in their contract in Law of 14 October 1957 on the rati- order to induce the Italian court to give fication and implementation of the a ruling on the point", and concluded Treaty establishing the European Econ- that: omic Community and the Law of 13

By an order of 18 October which was registered at the Court on 5 November 3. Within the framework of the criteria 1980 the Pretore di Bra stayed the for interpretation of Article 177 of proceedings and referred the following the EEC Treaty is there within the questions to the Court of Justice for a legal order of the Community a preliminary ruling: general principle which requires or permits the national courts before which proceedings are instituted wherein questions of interpretation " 1 . What interpretation must be placed of Community law arise also upon Article 177 of the EEC Treaty involving national provisions, which with regard to the power of may pertain to legal systems other appraisal of the Court of Justice in than that of the court in question, to relation to the wording of requests order the joinder in the proceedings for interpretative rulings submitted of the authorities of the Member to it and in particular in relation to State concerned before submitting a their function in the context of the reference for a preliminary ruling to main action? More particularly, what the Court of Justice? are the respective powers of the Court of Justice and of the courts which refer questions for a pre- liminary ruling, having regard above 4. At all events, wherever a question of all to the powers possessed by the interpretation is raised before or by latter under their various national the national courts in proceedings legal systems, in relation to the between private persons which evaluation of all the matters of fact directly concerns the individual and of law relevant to the disputes as rights of nationals or traders of one to the substance and of the questions of the Member States, do such raised therein, above all when the individual rights under substantive claim in the main action is for a Community law obtain a degree of declaratory judgment? protection which is different from and at all events less than that which the same individual rights might obtain if the administrations of the 2. If the Court of Justice in connection Member States whose laws form the with a reference for a preliminary subject-matter of the requests for ruling declares for any reason interpretation in relation to their whatever that it does not have compatibility with the EEC Treaty jurisdiction to give a ruling on the were represented and entered an

appearance before either the national judgment against her by a direct request court or the Court of Justice? for a declaratory ruling dictates the specific classification of the type of dispute or proceedings and the equally 5. Must Article 95 of the EEC Treaty specific classification of the questions of be interpreted as meaning that the law which arise independently on the prohibition on the imposition of occasion of the proceedings, as well as internal taxation, differentiated the specific determination of the type of according to the origin and prov- ruling which must be given by the court enance of a product, encompasses seized of the main action. situations such as that of the French provisions on the taxation of liqueur wines which are described in detail Ultimately, the present case has been in Case 104/79?" consigned to a specific category through the action of the defendant from the first stages of the procedure in which there In the statement of reasons on which the emerged clearly the fundamental import- order making the reference is based the ance not so much of the proceedings or Pretore di Bra explains that, with regard of the dispute as of the questions of fact to circumstances of fact in the case : and of law which, if the arguments of the defendant had been upheld, would have been resolved in particular in the "It must be emphasized that this action declaratory ruling." comprises a procedure which further- more is not uncommon in the Italian legal system, in which the defendant, in The Pretore di Bra then proceeds to contesting the claim of a plaintiff for a consider the judgment of the Court of ruling against him, proceeds not only to Justice of 11 March 1980 and finds that request the dismissal of the plaintiff's it contains three assertions: claim but also submits a claim, which is to a certain degree independent, for a — The implied assumption that Article declaratory ruling in relation to the 177 of the Treaty confers upon the particular legal situation in that case and Court of Justice jurisdiction to assess in general. the substance of the case and supervisory powers over the actions It is superfluous to point out that in this of the national court. case that course was adopted as early as the initial hearing on entry of — The statement that the case in which appearance, with the evident purpose of it was decided to make a reference is emphasizing what was, or was intended artificial. to be, the procedure to be adopted by the defendant for the purposes, inter alia, of the decision of the court on costs. — Finally a statement indicating an This is the legal point of view which intention to ensure that in the course must be adopted in this case in order of proceedings for an interpretation properly to approach and resolve both under Article 177 questions of in- the dispute and the points of fact and of terpretation may not be submitted law which arise in relation to that entailing a decision, positive or dispute, according to the claims or negative, on provisions, actions or arguments of the parties. In other words, practices of a Member State other the very fact that the defendant counters than those of the court making the the claim submitted by the plaintiff for reference.

After examining the judgment of the Emilio Cappelli and Paolo De Caterini, Court of Justice of 11 March 1980 of the Rome Bar, by Mrs Novello, and the arguments advanced by the represented by Giovanni Motzo, of the defendant in the main action in support Rome Bar, and by Maurilio Fratino, of of his objection of unconstitutionality, the Turin Bar, by the Government of the the Pretore di Bra concludes that: French Republic, represented by Thierry Le Roy, acting as Agent, by the Danish "There are good grounds for Government, represented by Mr considering, on the basis of the meaning Lachmann, acting as Agent, and by and scope of the judgment of the Court the Commission of the European of Justice, that the interpretation and Communities represented by its Legal application of Article 177 which was Adviser Antonio Abate, acting as Agent. effected in this case entails the exercise of powers relating to the substance of the On hearing the report of the Judge- case by the court charged with interpret- Rapporteur and the views of the ation and of an implied supervision of Advocate General the Court decided to the exercise of the discretionary powers open the oral procedure without any which the court making the reference preparatory inquiry. enjoys independently under its own national legal system and which are conferred upon it under the Constitution." II — W r i t t e n o b s e r v a t i o n s sub- m i t t e d to the C o u r t and that: /. Observations of the Commission "The judgment of the Court of Justice entails the creation, albeit indirectly, if not of a clear obstacle at any rate of According to the Commission this serious difficulties in enforcing the second order for reference by the defendant's procedural claim for a Pretore di Bra sets in relief a series of declaratory judgment; these difficulties, matters of procedural law specific to the which limit the rights of the defence, Italian legal system which, if they had also infringe rights guaranteed under the been brought to the attention of the Constitution." Court in the course of Case 104/79 would certainly have led to the delivery of a different judgment. Nevertheless, before referring the matter to the Italian Constitutional Court, the Pretore di Bra considered that, in order According to the Commission there now to obtain "an accurate and clear appears to be no doubt that in the course assessment of the scope and meaning of of the procedure before the national the judgment of the Court of Justice of court it has emerged that there is a 11 March 1980", it was preferable to conflict of interest between the parties in refer to the Court the questions set out the main action the scope of which is above. entirely new.

The Commission recalls in any case the consequences of an interpretation of risk, which according to it, would exist Article 95 which would mean that the if national courts, which are bound French charge was unlawful were to settle even questions of principle, matters of relative indifference to him were allowed themselves to interpret since even if he were unsuccessful in the Community law. Such a situation would main action he would obtain a refund bring about an irremedial alteration in from his carrier of what he had paid. the unity of case-law and thus of Community law, the uniformity of its On the other hand it is incorrect to interpretation, its applicability and conclude, as did the Advocate General in primacy and would furthermore weaken Case 104/79, that this attitude in the the individual rights of persons course of the reference for a preliminary concerned. ruling corresponds to a "neutral" attitude in the procedure in the main In addition the Commission emphasizes action. that any ruling by the Court of Justice that it does not have jurisdiction would In law Mr Foglia's attitude in the inevitably cast doubts on the judgments procedure for the preliminary ruling was hitherto delivered in similar proceedings furthermore based on the conviction that and would undermine the authority of the procedure before the Court of Justice that case-law. was one relating exclusively to questions of law, without parties, in the course of With regard to the interpretation of which observations are put forward Article 95 the Commission continues to which must be as far removed as possible hold the views which it put forward in from the specific facts. Case 104/79 and in addition refers to the judgments of 27 February 1980 With regard to the fact that the carrier concerning the tax arrangements was not called as a party, the plaintiff in applying to spirits. the main action states that the decision of the Pretore to consider the question of interpretation as a preliminary to any 2. Observations of Mr Foglia, the plaintiff possible application in the case was in the main action without a certain logic since, if the answer to the preliminary question of interpretation had been that the tax was The plaintiff in the main action begins by lawful, such action would have proved recalling the previous history of the case pointless. in order to show the existence of a genuine dispute between the parties to the main action. This dispute relates to The plaintiff then considers the first the payment of a sum of LIT 148 300 question submitted by the Pretore di Bra which represents the sum paid to the concerning the powers of the Court of French customs authorities by Mr Justice to appraise questions which are Foglia's carriers, payment of which he submitted to it. requested from Mrs Novello. According to Foglia it is impossible to In the course of that action Foglia never arrive at a firm decision purely on the contended before the Pretura di Bra that basis of the wording of Article 177. the French charge was unlawful. It was Nevertheless there can be no doubt that only in the proceedings for a preliminary the system is inspired by the principle ruling that Foglia maintained that the that the two procedures are as far as

possible independent of one another. It is lished between the Court of Justice for the Court of Justice to interpret and the national courts. Community law and for the national court to distinguish the specific individual issues to be resolved on the basis of that law and to assess in each 2. The fact that the course adopted by case whether it is appropriate (or the Court will lead it, under pressure essential if it is sitting as a court of last from the intervening Member States, instance) for it to obtain an interpre- to reconsider in increasingly greater tation by the Court of Justice. detail the appraisals by the national courts of the relevance of the question, that is, to appraise the In support of the discretion of the genuineness of the original dispute. national court in appraising the relevance According to the plaintiff in the main of any preliminary questions Foglia also action, in addition to the objective relies upon the practice of the national difficulties and risks of unfortunate courts, in particular in France and Italy, misunderstandings which such a the unanimity of academic writers and of course would entail, it would be the previous decisions of the Court of contrary to the principle of the Justice, the latest being its judgment of specialization of courts and fail to 14 February 1980 (Case 53/79 ONPTS take account of the inconvenience and [1980] ECR 273). technical difficulties which any such appraisals by the Court of Justice would cause for the court making the reference and which will be difficult According to the plaintiff in the main to integrate with the actual national action the interpretation hitherto placed procedure. According to the plaintiff upon Article 177 by the Court of Justice in the main action reconsideration of has made it possible: the relevance of the question at Community level merely allows the file to be returned to the national 1. To make the national courts the court so that it may bring out such principal agents of the application of relevance more clearly. Owing to the Community law; general principle of the definitive nature of nullity in procedural law it is in fact impossible simply to base the invalidity of the preliminary question 2. To involve private individuals, who on its irrelevance. have been enabled by Article 177 to assert their own interests directly at Community level.

On the one hand the Advocate General, The plaintiff in the main action then in declaring that the parties to the action examines the second question and considers before the national court are not at odds that, since the national court must at all as to the interpretation of the provision events settle the case, it must itself interpret in question and deducing therefrom that and apply Community law if the Court of there is no question for interpretation, Justice declares that it has no jurisdiction. has not only confused the position of the The argument in favour of such a parties in the main proceedings with conclusion is further strengthened by the their position in the context of the fact that the Pretore is not sitting as a court procedure for a preliminary ruling but of last instance. also loses sight of the fact that the essential matter in the procedure for a preliminary ruling under Article 177 is not the position or the conduct of the With regard to calling as a party the State parties but the view taken by the national whose legislation is at issue, this is court. rendered difficult by the obstacles which arise in general in calling foreign States as parties and probably runs contrary to the On the other hand with regard to the principle of the sovereignty of States. risk which the Advocate General perceives of jeopardizing the procedural guarantees which must be enjoyed by the Member States whose legislation is called Finally, having replied to the fourth in question, the plaintiff in the main question of the Pretore di Bra to the effect action considers that it is primarily that individuals' personal rights deserve the private persons who have legally same degree of protection whether or not protected interests against the national the authorities who are responsible for the authorities and not the reverse. Further- provisions at issue are parties to the more he does not find that there was this proceedings, the plaintiff in the main same concern to conserve procedural action refers with regard to the interpre- guarantees in a case which is identical to tation of Article 95 of the EEC Treaty to the present proceedings and in which the his observations in Case 104/79. Court of Justice delivered a ruling on a preliminary question submitted by an Italian court concerning French legis- lation (judgment of 4 February 1965, 3. Observations of Mrs Novello, the Case 20/64 Albatros [1975] ECR 29). defendant in the main action

time prevented an individual's personal point of relevance to an additional and rights under Community law receiving in subsequent review. future definitive protection by activating the judicial procedures of Italian law. It has also affected relationships which came into being within the framework of national law for which it was envisaged that the Court of Justice might be made responsible in part for their protection. In the context of that review the Court of Justice saw fit to decide that a case pending before the national court must be considered artificial whenever the parties choose to propose to the latter court (rather than to the Court of Justice) a similar or even identical solution for the interpretation of the According to Mrs Novello the reasons provisions of the Treaty. Mrs Novello advanced by the Advocate General and considers that, even if the Court of the Court of Justice in Case 104/79, Justice were acknowledged to possess maintaining that the dispute is of an arti- power to review the relevance of the ficial nature, conceal the wish of the question of interpretation, the judicial Court, whenever proceedings are concept of the questions of interpretation instituted by the Commission under is in no way based on concurrence, Article 169 against Member States for rather on the divergence, of opinion of failure to fulfil their obligations and the parties and further, and much more whenever preliminary questions raised by important, the judicial concept of dispute the courts of other Member States are is quite different from that of the also involved, to preclude an interpret- question of interpretation. ation having a negative effect for the Member State arraigned.

The defendant in the main action hopes real examination of the facts and that the judgment of the Court of Justice accordingly it does not in any way will establish that such protection does trespass upon the jurisdiction of the not vary in degree and intensity national court. depending on whether, in proceedings before the national courts and in proceedings before the Court of Justice, With regard to the possibility of the authorities of the Member States the summoning a foreign State before a provisions of whose law forms the national court the French Government subject-matter of requests for an in- emphasizes first of all that proceedings terpretation as to its compatibility with such as those where two private the EEC Treaty are present and have individuals call in question a French law entered appearance from the outset. before an Italian court and request the latter on that ground to refer the action to the Court of Justice is, according to it, liable to infringe the rights of defence of Finally, with regard to Article 95, the the French State. That is on the one defendant in the main action also refers hand because the parties have not to what she stated in Case 104/79. employed the procedures available under French law and on the other because the French Government has not been represented before the Italian court and 4. Observations of the French Govern- has been unable to present argument as ment an actual party in the proceedings before the Court of Justice.

FOGLIA v NOVELLO

complete independence the need to replying, without thereby coming to a resort to the procedure under Article 177 decision on the facts of the case, where, of the EEC Treaty, the Court of Justice as in this case, the file shows that the has on the other hand exclusive case could or should be brought before jurisdiction in defining the questions to the courts of the State whose legislation which it is empowered to reply. is at issue.

JUDGMENT OF 16. 12. 1981 — CASE 244/80

3 It should be recalled that the main action concerns the costs incurred by the plaintiff, Mr Foglia, a wine dealer having his place of business at Santa Vittoria d'Alba, in the Province of Cuneo, Piedmont, Italy, in the dispatch, on the instructions of the defendant, Mrs Novello, to a consignee in Menton, France, of some cases of Italian liqueur wine bought by the defendant.

4 The file on the case shows that the contract of sale between Foglia and Novello stipulated that Novello should not be liable for any duties which were claimed by the Italian or French authorities contrary to the provisions on the free movement of goods between the two countries or which were at least not due. Foglia adopted a similar clause in his contract with the Danzas undertaking to which he entrusted the transport of the cases of liqueur wine to Menton; that clause provided that Foglia should not be liable for such unlawful charges or charges which were not due.

5 The first order making the reference which led to the above-mentioned judgment of 11 March 1980, found that the subject-matter of the dispute was restricted exclusively to the sum paid as a consumption tax when the liqueur wines were imported into French territory. The file established that that tax was paid by Danzas to the French authorities, without protest or complaint; that the bill for transport which Danzas submitted to Foglia included the amount of that tax and was paid in full by the latter although contrary to the clause expressly stipulated with regard to "unlawful charges or charges which were not due" and that Mrs Novello refused to reimburse the latter amount to Foglia in reliance on the identical stipulation in her contract.

9 When these claims were submitted to him the Pretore considered that it was necessary to refer the matter again to the Court of Justice and to submit to it certain questions on the interpretation of Article 177 of the Treaty in order to obtain a clearer and more precise appraisal of the scope and meaning of the judgment of 11 March 1980.

10 Since the Pretore considered that a misunderstanding might have arisen from the wording of his first order he laid particular emphasis on a factor which, according to him, was not made clear in the order. The defendant, from the first hearing at which she appeared, in fact refused to restrict her case to the mere rejection of the plaintiff's application. Through a procedure which is by no means uncommon in the Italian legal system she submitted "a claim, which is to a certain degree independent, for a declaratory judgment in relation to the particular legal situation in that case and in general".

JUDGMENT OF 16. 12. 1981 — CASE 244/80

11 For these reasons the Pretore, Bra, decided to refer the matter again to the Court and submitted the following questions :

"1. "What interpretation must be placed upon Article 177 of the EEC Treaty with regard to the power of appraisal of the Court of Justice in relation to the wording of requests for interpretative rulings submitted to it and in particular in relation to their function in the context of the main action? More particularly, what are the respective powers of the Court of Justice and of the courts which refer questions for a preliminary ruling, having regard above all to the powers possessed by the latter under their various national legal systems, in relation to the evaluation of all the matters of fact and of law relevant to the disputes as to the substance and of the questions raised therein, above all when the claim in the main action is for a declaratory judgment?

5. Must Article 95 of the EEC Treaty be interpreted as meaning that the prohibition of the imposition of internal taxation, differentiated according to the origin and provenance of a product, encompasses situations such as that of the French provisions on the taxation of liqueur wines which are described in detail in Case 104/79?"

T h e first, t h i r d a n d f o u r t h q u e s t i o n s

12 In his first question the Pretore requested clarification of the limits of the power of appraisal reserved by the Treaty to the national court on the one hand and the Court of Justice on the other with regard to the wording of references for a preliminary ruling and of the appraisal of the circumstances of fact and of law in the main action, in particular where the national court is requested to give a declaratory judgment.

1 3 The third and fourth questions concern more particularly the case in which questions of interpretation are submitted in order to permit the court to resolve disputes concerning the compatibility with Community law of national legislation enacted either by the State in which the court is situated or, as in this case, by another Member State. In that connection the question is raised

— Whether, where the legislation of one Member State is called in question before the courts of another Member State, there is within the Community legal order a general principle which requires or permits the court before which such a dispute is brought to order the joinder in the proceedings of the authorities of the Member State concerned before submitting a reference for a preliminary ruling to the Court of Justice;

18 It must in fact be emphasized that the duty assigned to the Court by Article 177 is not that of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States. It accordingly does not have jurisdiction to reply to questions of

FOGLIA v NOVELLO

interpretation which are submitted to it within the framework of procedural devices arranged by the parties in order to induce the Court to give its views on certain problems of Community law which do not correspond to an objective requirement inherent in the resolution of a dispute. A declaration by the Court that is has no jurisdiction in such circumstances does not in any way trespass upon the prerogatives of the national court but makes it possible to prevent the application of the procedure under Article 177 for purposes other than those appropriate for it.

JUDGMENT OF 16. 12. 1981 — CASE 244/80

circumstances of fact and of law involved in the main action, is a matter for the national court it is nevertheless for the Court of Justice, in order to confirm its own jurisdiction, to examine, where necessary, the conditions in which the case has been referred to it by the national court.

22 As the Pretore has properly indicated in his third and fourth questions, special problems may arise concerning the application of Article 177 when questions of interpretation are submitted by the national court in order to enable it to etablish whether the legislative provisions of a Member State are in accordance with Community law. In this connection the Pretore has indicated two distinct categories of problems.

23 The third question concerns circumstances in which, in proceedings between individuals before a court of a Member State, a dispute arises as to the compatibility with Community law of the legislation of a Member State other than that of the State in which that court is situated. The Pretore has submitted in this connection the question whether in such a case the Member State whose legislation is at issue may be joined in the proceedings instituted before the court in question.

24 The reply on this point must be that in the absence of provisions of Community law in the matter, the possibility of taking proceedings before a national court against a Member State other than that in which that court is situated depends both on the laws of the latter and on the principles of inter- national law.

25 In the fourth question the Pretore has asked whether the protection provided for individuals by the procedure under Article 177 is different, or indeed diminished, when such a question is raised in proceedings between individuals as opposed to proceedings between an individual and the administration.

30 The foregoing considerations as a whole show that the Court of Justice for its part must display special vigilance when, in the course of proceedings between individuals, a question is referred to it with a view to permitting the national court to decide whether the legislation of another Member State is in accordance with Community law.

JUDGMENT OF 16. 12. 1981 — CASE 244/80

31 The reply to the fourth question must accordingly be that in the case of preliminary questions intended to permit the national court to determine whether provisions laid down by law or regulation in another Member State are in accordance with Community law the degree of legal protection may not differ according to whether such questions are raised in proceedings between individuals or in an action to which the State whose legislation is called in question is a party, but that in the first case the Court of Justice must take special care to ensure that the procedure under Article 177 is not employed for purposes which were not intended by the Treaty.

T h e fifth q u e s t i o n

FOGLIA v NOVELLO

34 The circumstance referred to by the national court in its second order for reference does not appear to constitute a new fact which would justify the Court of Justice in making a fresh appraisal of its jurisdiction. It is therefore for the Pretore, within the framework of the collaboration between a national court and the Court of Justice to ascertain in the light of the foregoing considerations whether there is any need to obtain an answer from the Court of Justice to the fifth question and, if so, to indicate to the Court any new factor which might justify it in taking a different view of its jurisdiction.

The second question

35 Having regard to the foregoing it is unnecessary to reply to the second question.

Costs

36 The costs incurred by the French Government, the Danish Government and the Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court the decision on costs is a matter for that court.

3. In the case of questions intended to permit the national court to determine whether provisions laid down by law or regulation in another Member State are in accordance with Community law the degree of legal protection may not differ according to whether such questions are raised in proceedings between individuals or in an action to which the State whose legislation is called in question is a party, but in the first case the Court of Justice must take special care to ensure that the procedure under Article 177 is not employed for purposes which were not intended by the Treaty.

4. The circumstance referred to by the Pretore, Bra, in his second order for reference does not appear to constitute a new fact which would justify the Court of Justice in making a fresh appraisal of its jurisdiction and it is therefore for the Pretore, within the framework of the collaboration between a national court and the Court of Justice, to ascertain in the light of the foregoing considerations whether there is any need to obtain an answer from the Court of Justice to the fifth question and, if so, to indicate to the Court any new factor which might justify it in taking a different view of its jurisdiction.

Mertens de Wilmars Bosco Touffait Due Pescatore

Mackenzie Stuart O'Keeffe Koopmans Everling

Delivered in open court in Luxembourg on 16 December 1981.

A. Van Houtte J. Mertens de Wilmars Registrar President