C-231/89
ECLI:EU:C:1990:276
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GMURZYNSKA-BSCHER
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 3 July 1990 *
Mr President, prerogatives of the national courts in Members of the Court, matters concerning preliminary rulings must be respected.
1. The question concerning the interpre- 4. However, in my opinion, that decision tation of the Common Customs Tariff does not resolve the issue of principle which which the Bundesfinanzhof has raised is is now submitted to the Court. Obviously going to lead the Court to give a ruling on the division of jurisdiction between the a difficulty similar to that which has arisen national court, which alone has jurisdiction in the Dzodzi case: 1 to what extent has the to determine the relevance of the questions Court jurisdiction to interpret a Community and the need for them, and this Court provision solely in order to enable the prevents the Court from reviewing the national court to apply national law which national court's findings in that respect. The contains a reference to Community law? Court is bound, however, to consider whether its own jurisdiction enables it to answer a question put to it.
2. In the present case the difficulty is as follows: before importing a work of art from the Netherlands into the Federal 5. It is as well to recall the purpose of the Republic of Germany Mrs Gmurzynska preliminary ruling procedure: requested a tariff classification notice for the purposes of German tax law in relation to import turnover tax. The national law 'Article 177 is essential for the preservation refers to the nomenclature of the Common of the Community character of the law Customs Tariff for the purposes of granting established by the Treaty and has the object exemptions or deductions in such matters. of ensuring that in all circumstances this law is the same in all States of the Community.' 3
3. In fact the problem is not entirely new to the Court since the Thomasdünger case 2 also That object of the preliminary ruling concerned the interpretation of the procedure — to ensure the uniformity of Common Customs Tariff for the purposes Community law — obviously concerns only of applying national law. The Advocate the scope of Community law as defined by General in that case concluded firmly in his Community law itself and by itself alone. Opinion that the Court had no jurisdiction, but the Court consented to answer the question and clearly intimated that the 6. The fact that national legislation incor- * Original language: French. porates a reference to Community law 1 — On which I am also delivering my Opinion today (judgment of 18 October 1990 in Joined Cases C-297/88 3 — Judgment in Case 166/73 Rheitinmühlen-Dmseldorf v and C-197/89 [1990] ECR I-3763, at p. I-3778). Einfuhr-lind Vorrtttstelle fur Getreide und Futtermittel 2 — Judgment of 26 September 1985 [1985] ECR 3001. [1974] ECR 33, at p. 38, paragraph 2, my emphasis.
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OPINION OF MR DARMON —CASE C-231/89
cannot extend the scope ratione materine (ii) Similarly, is it possible to contemplate and ratione personae of the latter. It is a even as a matter of principle a unilateral and independent operation which, reference to determine the validity of whilst referring to a particular substantive Community provisions to which provision of Community origin, does not national law has referred unilaterally affect in any way the scope of Community and independently? law as such.
(iii) Finally, and above all, what would be 7. In such a case the interpretation of the authority of the Court's judgment? Community law is in no sense intended to In that respect, apart from the attitude ensure that its effects are the same, that is to which the particular national court say that its substance is uniform within its would foreseeably adopt after field of application. It is an operation sui requesting a ruling, which is simply a generis intended to assist the national court matter of fact, would national courts be in implementing national law alone, outside legally bound by the terms of this the scope of Community law. Court's judgment when applying national, and only national, law?
8. Let me stress that the unity of the Community legal system is unaffected by Those important questions show the serious situations outside its scope, whatever the difficulties which would arise were this substance of the rules governing them. There Court to engage in a vaguely defined form is no Community law outside its scope: what of collaboration, outside the framework and thus matters for its correct application is its precise objectives of the preliminary ruling uniformity as regards the persons and procedure. In other words, the Court's role subject-matter it governs, as defined by it. would be to deliver opinions or consul- Whether the definitions which it adopts in tations of the kind which an expert lawyer is that respect can be unilaterally used to sometimes required to provide a court govern a particular aspect of national rules trying a matter involving the application of cannot extend the scope of Community law foreign law. That is not this Court's task in and, in consequence, the jurisdiction of the preliminary rulings. 4 Court.
10. True, the Court may hesitate to adopt 9. Nevertheless, I should like to mention that analysis for purely practical reasons, briefly some questions which would arise in such as those stressed by the Commission, the present case from extending the object which nevertheless admitted at the hearing of the preliminary ruling procedure: that 'theoretical reasons could argue against jurisdiction'.
4 — 'The truly original innovation of the Rome Treaties was to establish, as regards the application of Community law, a (i) Is it conceivable that national courts direct relationship between judicial powers in the form of a relationship which is much more than simple consultation: it against whose decisions no appeal lies is a relationship on the basis of jurisdiction and powers', in should be required to make a reference P. Pescatore: Le droit de l'intégration 1972, A. W. Sijthoff- Leiden, Institut universitaire des hautes études interna- in cases similar to the present? tionales, Geneva, my emphasis.
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GMURZYNSKA-BSCHER
11. I am aware that my proposal leads to a Community law poses no greater potential result which is at first sight surprising: the threat to the uniformity of Community law national court cannot ask this Court for than the fact that the Community legal interpretation in the present case whereas it system allows the national court, except in could if it had to apply the same text, albeit cases in which it gives judgment from which as pan of the Common Customs Tariff. there is no appeal, to interpret Community Does not such a solution in addition involve law directly. risks as regards the uniform application of Community law? 13. One last observation which is pertinent in the present case: would it not be odd 20 12. I have given much thought to that point years after the establishment of the customs and am convinced that it is a fallacious union for the Court to interpret the problem which gives rise to a fallacious Common Customs Tariff for the purpose of answer. My proposal is confined to recog- judgment in an action arising from the nizing that the national court is the sole importation of goods from one Member arbiter of the rules which it has to apply as State into another, even if it is, as in the part of national law. The fact that the present case, for the purpose of applying tax substance of those rules is borrowed from law and not customs duties?
14. In consequence I propose that the Court inform the Bundesfinanzhof that it has no jurisdiction to answer the questions contained in the order of 6 June 1989.
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