C-291/96
ECLI:EU:C:1997:296
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GRADO AND BASHIR
OPINION OF ADVOCATE GENERAL TESAURO delivered on 12 June 1997 *
1. By this reference for a preliminary ruling, 3. The material events took place in 1996, the Amtsgericht (Local Court), Reutlingen, when the Tübingen Public Prosecutor's asks the Court to rule on the interpretation Office was initiating criminal proceedings of Article 6 of the EC Treaty, in order to against Mr Grado (an Italian national) and determine whether failure on the part of the Mr Bashir (a national of a non-member Public Prosecutor's Office to use a courtesy country), who were accused of leaving, with- title when referring to the defendant in out justification, the scene of damage which criminal proceedings constitutes a breach of they had caused to the vehicle of a third the principle of non-discrimination laid party. down in that provision.
By letter of 9 April 1996, the Public Prosecu- tor's Office applied in the person of the Pub- lic Prosecutor in charge of Section 35 to the The legislative context, the facts and the Amtsgericht Reudingen for an order finding question referred the defendants guilty as accused. To be more precise, it applied for a punishment order to be issued
'against 2. Paragraph 407 of the Strafprozeßordnung (German Code of Criminal Procedure; here- inafter 'the Code') provides that when bring- 1. Martino Grado (...) ing a criminal action, the Public Prosecutor's Office may, if it considers inter partes pro- ceedings unnecessary, submit a written appli- 2. Shahid Bashir (...)'. cation requesting the magistrate concerned to issue a specific punishment order. Pursu- ant to Paragraph 408 of the Code, the mag- 4. The magistrate of the Amtsgericht Reut- istrate may thereafter set a trial date only if lingen refused to sign and date the applica- he considers that legal arguments preclude tion, on the view that it contravened both him from meeting that request; otherwise, he the German Constitution ' and the prohibi- must endorse the application by affixing his tion of discrimination on grounds of nation- signature and the date thereto, thus trans- ality laid down in Article 6 of the Treaty. In forming the document into a punishment particular, the magistrate took exception to order similar in effect to a judgment.
1 — In particular, Articles 1 and 3(3), which enshrine the right to protection of human dignity and the right to equal treat- * Original language: Italian. ment.
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O P I N I O N O F MR TESAURO — CASE C-291/96
the Public Prosecutor's failure to use the The magistrate further stated in the order for courtesy title 'Herr' (Mr) when referring to reference that he considers himself legally either defendant. bound to sign the application for a punish- ment order in the form in which that docu- ment is presented to him by the Public Pros- ecutor's Office. Accordingly, he is not The Public Prosecutor contested the magis- permitted, when endorsing such a document, trate's refusal before the Landgericht to alter or amplify it. (Regional Court), Tübingen, which approved the way in which the document at issue was framed and further held that the magistrate of the Amtsgericht was not legally entitled to Admissibility prevent the proceedings from continuing.
6. Having regard to the subject-matter of the question referred, as compared with the 5. The Amtsgericht Reutlingen decided, apparent subject-matter (according to the however, to stay the proceedings anew and grounds of the order for reference) of the to refer (this time) to the Court of Justice for main proceedings, the first point to be estab- a preliminary ruling on the following ques- lished is the relevance of the question itself tion: and, accordingly, the Court's jurisdiction to reply. It is all too clear, however, that the Public Prosecutor's omission of the courtesy 'Is it compatible with European Community title 'Herr' when referring to the defendant law or is it contrary to the prohibition on in the application for a punishment order is discrimination laid down in Article 6 of the not a fact capable of materially affecting the Treaty on European Union for a Staatsan- outcome of the proceedings initiated against walt (Public Prosecutor) expressly to refuse that person. to use the courtesy tide "Herr" in an appli- cation, which he has drafted and subse- quently placed before the court for signature, This is not the first time this problem has for a summary punishment order in the case arisen. O n more than one occasion, the of a foreign worker (for the purposes of Court has been asked to give a preliminary Articles 48 to 51 of the Treaty on European ruling on questions of doubtful relevance to Union) from another Member State of the European Union, particularly where this is the merits of the case pending before the contrary to the custom of the Staatsan- national court. waltschaft and to the Staatsanwalts own usual practice?' 2 7. The Court can now be said to have con- solidated its position in this regard. 3 Whilst 2 — In fact, according to the police report on the defendants' respecting the division of jurisdiction alleged misdeeds, it appears that, at the material time at least, between the national courts and the Com- Mr Grado was unemployed. However, the documents before the Court do not contain sufficient information to support any disagreement with the magistrate's findings of fact- It is obvious, however, that the order for reference is in any event intended to refer solely to the alleged discrimination against Mr Grado, who is of Italian nationality, while it cannot con- 3 — For a more or less exhaustive summary of the case-law on cern the position of Mr Bashir, the other defendant, since he this point, see Case C-343/90 Lourenço Dias [1992] ECR is not a national of a Member State. 1-4673, paragraphs 13 to 20.
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munity judicature, which underpins the pre- work necessary for its proper operation, and liminary ruling mechanism, and without ensuring that it is not employed in a manner impliedly contravening the principle laid which commentators have unhesitatingly down in the first judgments to address this categorized as 'misuse'. 7 subject — namely that it is for the national court to determine the need for a prelimi- nary ruling from the Court in order to enable it to give judgment in the case pend- ing before i t 4 — the Court has not hesitated Moreover, it is obviously the correct to declare that it has no jurisdiction to rule approach to adopt in the present case. As on questions which, in its view, manifestly indicated above, regardless of whether the bear no relation to the facts of the main practice followed by the Tübingen Public action or to its purpose. 5 Prosecutor's Office of omitting (according to the order for reference) the courtesy title 'Herr' when referring to foreign defendants gives rise to any apparent discrimination against such persons, it has no bearing at all 8. That approach should be fully supported, on the subject-matter of the main proceed- not only because it is vindicated by the ings in which, as I recall, the magistrate was wording of Article 177 of the Treaty, 6 but asked to issue a punishment order in respect also because it enables the preliminary ruling of the defendant who was accused of having procedure to be retained within the frame- committed a criminal offence.
9. I therefore p r o p o s e that the C o u r t declare that it has n o jurisdiction to answer the question referred b y the Amtsgericht Reutlingen, since the interpretation of C o m m u n i t y law s o u g h t manifestly bears n o relation t o the facts of the main action or t o its p u r p o s e .
4 — For example Case 83/78 Pigs Marketing Board [1978] 6 — I would emphasize {repetita iuvant) the wording of the sec- ECR 2347. ond paragraph: '[w]here such a question is raised before any 5 — There are numerous examples. Rather than going back to the court or tribunal of a Member State, that court or tribunal two Foglia v Novello judgments (Casc 104/79 [1980] ECR may, if it considers that a decision on the question is necessary 745 and Case 244/80 [1981] ECR 3045) which, although they to enable it to give judgment, request the Court of Justice to exhaustively re-trace the reasoning behind the case-law in give a ruling thereon' (emphasis added). question, are very much a reflection of the specific context in 7 — For a representative view, see Pescatore, ' I lRinvio Pregiudi- which they were delivered, I would instead refer to the order ziale di cui all'Art. 177 del Trattato CEE e la Coopcrazione of 26 January 1990 in Case C-286/88 falciola [1990] ECR tra la Corte e i Giudici Nazionali', in / / Foro Italiano, 1986, 1-191 and, similarly, the order of 16 May 1994 in Case Part V, p. 26 et seq. C-428/93 Monin II [1994] ECR 1-1707, in which the Court declined jurisdiction. The principle is illustrated, however, by many other judgments: see, for example, Case 126/80 Salonia [1981] ECR 1563, Case C-186/90 Durighello [1991] ECR 1-5773 and Case C-368/89 Crispoltoni [1991] ECR 1-3695.
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