C-472/99
ECLI:EU:C:2001:413
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CLEAN CAR AUTOSERVICE
OPINION O F ADVOCATE GENERAL GEELHOED delivered on 12 July 2001 1
I — Facts of the case, relevant legislation be for the national court to decide as to the and questions referred costs of the reference'.
1. The Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna) (Aus- tria) has sought from the Court under Article 234 EC a ruling as to how Arti- 3. In its judgment in Case C-350/96, 3the cle 104(5) of the Rules of Procedure of the Court answered questions referred for a Court of Justice (hereinafter 'the Rules of preliminary ruling by the Austrian Verwal- Procedure') is to be interpreted where a tungsgerichtshof (Administrative Court) in Member State has not laid down any proceedings between Clean Car Autoser- special national provisions on the award vice GesmbH (hereinafter 'the claimant') of the costs entailed by a reference for a and the Landeshauptmann von Wien preliminary ruling, but instead awards the (Prime Minister of Vienna Land), who successful party a lump-sum reimburse- had rejected an application by the claimant ment of expenses which is based on to register a trade on the ground that it had national proceedings and is not sufficient appointed as manager a person who did not to cover the actual costs incurred in making reside in Austria. In paragraph 2 of the a reference for a preliminary ruling to the operative part of the judgment, the Court Court. held:
2. The first paragraph of Article 104(5) of the Rules of Procedure, in the codified 'Article 48 of the Treaty precludes a Mem- version of 6 March 1999, 2reads: '[i]t shall ber State from providing that the owner of an undertaking exercising a trade on the territory of that State may not appoint as 1 — Original language: Dutch. manager a person not resident there'. 2 — OJ 1999 C 65, p. 1. Following the amendments to the Rules of Procedure of 16 May 2000 (OJ 2000 L 122, p. 43), Article 104(5) is now Article 104(6). The new numbering is used below. 3 — Clean Car Autoservice [1998] ECR I-2521.
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4. In paragraph 44 of the judgment in Case 7. In proceedings before the Verwaltungs- C-350/96 the Court held, with regard to gerichtshof the successful party is entitled costs: to reimbursement of its expenses only in so far as this is provided for in Paragraphs 47 to 60 of the VwGG. In the event that Paragraphs 47 to 60 of the VwGG contain no specific rules, Paragraph 58 of the VwGG provides that each party is to bear 'Since these proceedings are, for the parties its own costs. The VwGG contains rules on to the main proceedings, a step in the certain fixed legal costs and other expenses action pending before the national court, attracting a lump-sum reimbursement the decision on costs is a matter for that defined in greater detail in the Decree. It court'. was on that basis that the claimant was awarded the sum of ATS 12 860. The VwGG and the Decree contain no specific rules on costs incurred in connection with references for a preliminary ruling to the Court of Justice. 5. By judgment of the Verwaltungsgericht- shof of 24 June 1998, the national decision was annulled on the ground that it was unlawful and the claimant was awarded ATS 12 860 by way of reimbursement of expenses. 8. By application lodged at the Landesger- icht für Zivilrechtssachen Wien on 18 Feb- ruary 1999, the claimant claimed from the City of Vienna and the Republic of Austria (hereinafter 'the defendants') payment of compensation on account of State liability 6. It appears from the documents before in the sum of ATS 60 000 together with the Court that the decision of the Verwal- interest of 5% from 8 May 1998, that is to tungsgerichtshof on the apportionment of say the costs it had incurred in the course of costs was based on the 1985 Verwaltungs- the reference for a preliminary ruling which gerichtshofgesetz (Law on the Administra- led to the Court's judgment in Case tive Court) (VwGG) 4and the 1994 Ver- C-350/96. In a supplementary pleading of ordnung des Bundeskanzlers über die 17 May 1999, the claimant relied in sup- Pauschalierung der Aufwandersätze im Ver- port of its claim on the doctrine of State fahren vor dem Verwaltungsgerichtshof 5 liability for infringement of Community (Decree of the Federal Chancellor concern- law. ing the lump-sum determination of amounts to be reimbursed in respect of expenses incurred in proceedings before the Verwaltungsgerichtshof (hereinafter 'the Decree'). 9. Then, by order of 26 November 1999, 4 — BGBl. 1985/10. lodged at the Court Registry on 9 Decem- 5 — BGBl. 1994/416. ber 1999, the Landesgericht für Zivilrechts-
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sachen Wien referred the following ques- Court did not allow the request to extend tion to the Court for a preliminary ruling: the grounds of the application contained in the supplementary pleading of 17 May 1999, so that the interpretation of that provision is immaterial for that reason also. Furthermore, Article 104(6) of the Rules of 'Where, as in the present case, a Member Procedure is nothing more than a rule State (Austria) has not prescribed any conferring jurisdiction. It does not govern national rules enabling national courts to either whether a right to reimbursement of decide and to award or, as the case may be, costs exists or what the amount of any such to apportion, in relation to the parties to reimbursement should be. The Republic of the proceedings, the costs of a reference for Austria submits further that, in its judg- a preliminary ruling, how is Article 104(5) ment in Case C-350/96, the Court of Justice of the Rules of Procedure of the Court of did not give a ruling on the claimant's costs Justice of the European Communities to be but left that decision to the national court. interpreted?' Since the Verwaltungsgerichtshof has in the meantime awarded the claimant a sum by way of reimbursement of expenses, the reference for a preliminary ruling on the interpretation of Article 104(6) of the Rules of Procedure no longer has any 10. The claimant (Clean Car Autoservice GesmbH), the defendants (the City of purpose. Vienna and the Republic of Austria), the Government of the Republic of Austria and the Commission have submitted written observations. The hearing was held on 12. According to settled case-law, in the 10 May 2001. context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which assumes responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, I I — Admissibility both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. One exceptional 11. The defendants have raised the ques- circumstance relevant here in which the tion of the admissibility of the reference. Court of Justice can refuse to rule on a The City of Vienna submits that there is no question from a national court is where it is connection between the interpretation of quite obvious that the interpretation of Community law requested and the facts or Community law that is sought bears no the subject-matter of the main proceedings. relation to the facts of the main action or its A more detailed interpretation of Arti- purpose. 6 cle 104(6) of the Rules of Procedure is not necessary to enable the national court to give judgment on the claimant's claim for 6 — Sec, most recently, the judgment in Case C-340/99 TNT compensation of 18 February 1999. The Traco [2001] ECR I-4109, paragraphs 30 and 31.
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13. In my view, that is not the case here. It preliminary ruling is inadmissible. Since it is clear from the order for reference that the has been established in this case that the Landesgericht is faced with an actual Austrian authorities have infringed directly dispute on the reimbursement of costs applicable provisions of Community law, incurred in the course of a reference for a the question as to who is to bear the costs preliminary ruling to the Court of Justice. of the reference for a preliminary ruling Since Article 104(6) refers expressly to the should be answered on the basis of the award of such costs, there is a connection principles laid down by the Court of with the main action. The contention that Justice 7and in Austrian law 8concerning that provision merely confers jurisdiction is State liability and in the light of the rules on a matter of substance. The fact that the costs contained in Articles 72 and 73 of the claimant has in the meantime already been Rules of Procedure as interpreted by the awarded a sum by way of reimbursement Court of Justice. of expenses is immaterial, since it has brought the main action precisely in order to contest the grounds for, and the amount of, that award on the basis of Arti- cle 104(6).
16. According to the claimant, the relevant 14. In my opinion, therefore, the reference Austrian provisions on the award and from the Landesgericht is admissible. apportionment of legal costs are not expressly tailored to references for a pre- liminary ruling under Article 234 EC and, in particular, the rules on the lump-sum reimbursement of costs incurred in pro- ceedings before the Verwaltungsgerichtshof do not satisfy the requirements of Arti- cle 104(6) of the Rules of Procedure. It I I I— Substance follows that the national rules on costs are insufficient, since they do not take account of the extra costs entailed by a reference for a preliminary ruling under Article 234 EC. The opposite view, it contends, would render Article 104(6) of the Rules of Pro- A — Submissions of the parties cedure meaningless in cases where the legislation of a Member State does not provide for the reimbursement of the additional costs incurred in the course of 15. The claimant submits to the Court that Article 104(6) of the Rules of Procedure is to be interpreted as meaning that the 7 — Judgment in Joined Cases C-6/90 and C-9/90 Francovich and Others v Italy [1991] ECR I-5357. application of national provisions which, 8 — The plaintiff is referring to Article 23 of the Bundesverfas- like Austrian law, contain no rules on the sungsgesetz (Law on the Federal Constitution) and Para- graph 1 of the Amtshaftungsgesetz (Law on the Liability of award of the costs of a reference for a Officials).
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a reference for a preliminary ruling made as settled case-law of the Court to the effect a step in the action before the national that any discrimination between the rules court. on the recovery of costs entailed by a reference for a preliminary ruling under Article 234 EC and the rules on costs entailed by a comparable procedural step under national law is to be avoided. 17. Such an interpretation would, in the claimant's submission, also be contrary to Articles 72 and 73 of the Rules of Proce- dure, according to which expenses necessa- rily incurred by the parties for the purpose of the proceedings, in particular the remu- neration of agents, advisers or lawyers, are to be regarded as recoverable costs. Fur- B — Assessment thermore, the application of the Austrian provisions alone would disregard the rele- vant principles laid down by the Court in regard to the amount of recoverable costs. 20. It should first be noted that the refer- ence from the national court is confined to the question of the interpretation of Arti- cle 104(6) of the Rules of Procedure. How- ever, the issue raised, as also described in 18. The defendants and the Austrian Gov- the observations submitted, warrants a ernment propose that the Court interpret more detailed reply. The question under- Article 104(6) of the Rules of Procedure as lying the reference for a preliminary ruling meaning that reimbursement of the costs of is essentially to what extent Community a reference for a preliminary ruling should law requires Member States to confer on be governed by the national law applicable the successful party in the main action a in the main action, and that that provision right to reimbursement of the additional in no way requires the Member State to costs incurred by him in a reference for a enact rules entitling the successful party to preliminary ruling within the meaning of reimbursement of the costs actually incur- Article 234 EC. An interpretation of the red in the course of a reference for a Rules of Procedure is not sufficient to preliminary ruling. answer that question, which concerns the procedural autonomy enjoyed by Member States. Regard must also be had, therefore, to the case-law of the Court of Justice which limits that autonomy.
19. The Commission points out that, in accordance with the wording of Arti- cle 104(6) of the Rules of Procedure, the decision on the costs of a reference for a preliminary ruling is left to the national 21. On the other hand, the Court's answer court. In making that decision, however, to the question referred by the Landesge- the national court must take account of the richt must, in my view, remain within the
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framework defined by the reference. Pro- State liability for infringement of Commu- cedural law and a claim for reimbursement nity law. of the additional costs entailed by a refer- ence for a preliminary ruling must not immediately be treated in the same way as liability law and a claim for compensation for the damage caused to an individual as a result of the fact that a Member State has infringed a directly applicable provision of Community law. It is of course conceivable 22. The Court addressed the question as to that such claims might overlap, inasmuch who should be ordered to pay the costs of as the claim for reimbursement of addi- proceedings in the first case referred to it tional costs forms part of a broader action under Article 17710of the EEC Treaty (now for damages brought against the State for Article 234 EC). The solution preferred infringement of directly applicable provi- by Advocate General Lagrange in his sions of Community law. At the hearing the Opinion in that case was that each party claimant pointed out that the national should bear its own costs.
However, the proceedings related primarily to the claim Court decided that, '[w]ith regard to the for reimbursement of legal costs and only parties, the proceedings in this case are a step in the main action pending before the secondarily — in the event that the court Court of Appeal of The Hague. The does not allow the claim for full reimburse- decision as to costs is therefore a matter ment of the costs — to a claim for com- for that court'. 11 Since then, the Court has
pensation. In my view, however under- consistently held in proceedings under standable the alternative claim may be Article 234 EC that the decision on costs and however interesting a decision from is a matter for the referring court, since the the Court on that claim may be, the present preliminary reference procedure is to be reference for a preliminary ruling can be regarded as a step in the main action. That confined to those aspects of the case which formula has in the meantime been codified relate to matters of procedural law and the in the present Article 104(6) of the Rules of Court need not give a ruling on the doctrine Procedure. of State liability. There is nothing in the
documents before the Court to show that the claimant, as well as seeking reimburse- ment of its legal costs, has also brought claims for damages against the Austrian State in connection with the judgment in Case C-350/96. 9 Even more important is the fact that the order for reference con- 23. It also follows from the Court's settled tains no indication that the referring court case-law that, in the absence of provisions requires a more detailed interpretation of of Community law, the national court must the case-law on the principles governing base its decision on the apportionment of legal costs on national legislation.
In its judgment in Bollmann the Court held that, 9 — Counsel for the claimant have calculated the total amount recoverable by way of costs incurred in the reference to the Court for a preliminary ruling in Case C-350/96 to be no less than ATS 435 761 (EUR 31 668). Of that, the 10 — Judgment in Case 13/61 De Geus en Uitdenbogerd [1962] Landesgericht has — provisionally — been asked to order ECR 45. the defendants to pay ATS 60 000. 11 — De Geus en Uitdenbogerd, p. 54.
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as Community law then stood, the recovery counsel in the preliminary reference proce- of costs and the recoverability of expenses dure. Article 73 of the Rules of Procedure necessarily incurred by the parties to the defines the term 'recoverable costs', but main action were governed by the provi- that provision is relevant only where the sions of national law applicable to that Court itself decides on costs. As stated, in action. 12 The Community legislature has the case of a reference for a preliminary enacted as little legislation on the award of ruling under Article 234 EC, that decision costs incurred in the course of the main has to be made by the national court in the action and the reference for a preliminary main action. ruling as it has, for example, on preclusion or limitation periods or amounts of com- pensation.
24. In the light of that case-law and the wording of Article 104(6) of the Rules of Procedure, it is, in my view, clear that the decision on the apportionment of the additional costs incurred in a reference for a preliminary ruling must be made by the national court in the context of the main action and on the basis of national proce- 26. Under Community law, however, dural law. The question whether there is Member States do not have complete free- any entitlement to reimbursement of all dom in deciding on the award of the costs expenses must in principle be determined of a reference for a preliminary ruling on the basis of that national law. under Article 234 EC. According to settled case-law, in the absence of relevant Com- munity rules, it is for the national legal order of each Member State to lay down the rules governing proceedings designed to ensure the protection of the rights which 25. The claimant's submission regarding individuals acquire through the direct effect Articles 72 and 73 of the Rules of Proce- of Community law. However, the national dure is immaterial in this respect. Arti- legislature is bound by two general princi- cle 72 of the Rules of Procedure enshrines ples of Community law aimed at ensuring the principle that proceedings before the that the national legal order provides Court of Justice are to be free of charge, individuals with the means necessary to except for a few specified expenses. This assert the rights they enjoy under Commu- case, however, relates not to costs charged nity law. The first principle states that an by the Court but to the legal costs incurred action for infringement of Community law by the claimant in connection with its legal must not be treated less favourably than similar actions based on national law (principle of equivalence). According to 12 —Judgment in Case 62/72 Bollmann v Hauptzollamt Ham- the second principle, national provisions burg-Waltershof [1973] ECR 269, paragraph 6. must not make it impossible in practice to
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exercise the rights conferred by Community the fact that additional costs were thus law (principle of effectiveness). 13 In my incurred is not in my view sufficient reason view, this case-law can also be applied to to assume that the exercise of the Commu- national proceedings relating to the award nity right was thereby made impossible or of legal costs. excessively difficult.
27. The Court leaves it exclusively to the 29. In assessing whether the principle of national court to determine whether the equivalence has been observed, the national preconditions laid down by Community court must consider whether, under Aus- law have been fulfilled in a particular case. trian law, the rules governing the costs of However, in order to assist the national references for preliminary rulings to the court in exercising that jurisdiction, the Court of Justice are less favourable than Court can make available to it other those applicable to comparable national criteria providing objective guidance on procedures. There are two issues involved the application and interpretation of those here. First, the court has to consider what is two principles. the appropriate point of comparison, in other words with which national procedure the reference for a preliminary ruling under Article 234 EC is to be compared. In so doing, the national court must examine the 28. In this case, the examination to be essential characteristics of both proce- carried out by the national court can, in my dures. 14 It must also determine whether view, be confined to the principle of the rules on the reimbursement of the costs equivalence. It is impossible to determine of a reference for a preliminary ruling are to what extent rules providing for the less favourable than those applicable to a lump-sum reimbursement of legal costs comparable national procedure. This must might infringe the principle of effectiveness, also be determined by reference to the which the Court has developed primarily in special features of the provisions con- connection with the establishment of time- cerned. 15 limits for bringing actions under national law. For that it would have to be proved that — in this case — the rules on costs make it impossible or excessively difficult to exercise freedom of movement for work- 30. The fact that it can be difficult to select ers. In this case, however, the national court an appropriate point of comparison in a has already annulled the domestic provi- particular case is clear from the differing sion found to be in breach of Article 39 EC. views of the parties as to how to determine Even though it needed to make a reference which national procedure is comparable for a preliminary ruling in order to do so,
14 — See judgment in Case C-326/96 Levez v Jennings [1998] 13 — See, most recently, judgments in Case C-78/98 Preston and ECR I-7835, paragraphs 39 and 43, and Preston, para- Others v Wolverhampton Healthcare NHS Trust and graph 49. Others [2000] ECR I-3201, paragraph 31, and Joined 15 — See judgment in Joined Cases C-430/93 and C-431/93 Van Cases C-52/99 and C-53/99 Office national des pensions Schijnael and Van Veen v Stichting Pensioenfonds voor (ONP) v Cantarono and Vignane [2001] ECR I-1395, Fysiotherapeuten [1995] ECR I-4705, paragraph 19, and paragraph 21. Levez, paragraph 44.
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with the reference for a preliminary ruling. 32. The claimant also argues that the The Republic of Austria (as defendant) take Austrian rules on legal costs infringe the the view — as does the Commission — principle of equivalence, since in certain that a reference from the Verwaltungsger- cases they provide for the reimbursement of ichtshof to the Court of Justice for a the legal costs of a reference for a pre- preliminary ruling under Article 234 EC is liminary ruling under Article 234 EC and clearly comparable with the national pro- in other cases not. In my opinion, that view cedure whereby the Verwaltungsgericht- is not tenable. The principle of equivalence shof — by way of a step in the main does not require Member States to apply in action — makes an application to the respect of all national proceedings the same Verfassungsgerichtshof (Constitutional rules on the reimbursement of the costs of Court) in the course of legislative review references for a preliminary ruling to the proceedings. The claimant, on the other Court of Justice. hand, considers that the comparison should be based on the situation in which the Oberster Gerichtshof (Supreme Court) seeks a ruling from the Court of Justice under Article 234 EC on the interpretation of Community law.
31. The parties agree, however, that the Austrian rules on legal costs are compli- 33. In my view, application of the principle cated. At the hearing, an agent for the of equivalence depends primarily on the Republic of Austria (as defendant) nature of the action governed by national explained that Austrian law contains var- law. For each particular action, it is neces- ious provisions on the award of legal costs, sary to establish as a point of comparison a the application of which depends on the national procedure representing a step in type of action involved and the court before the main action which is comparable to the which it has been brought. In administra- preliminary reference procedure before the tive appeal proceedings, for example, each Court of Justice. It must then be deter- party must in principle pay its own costs. In mined, on the basis of the relevant proce- proceedings before the Verwaltungsgericht- dural law, whether the rules on legal costs shof, however, different rules apply, which applicable to references for a preliminary do provide for the reimbursement of costs ruling to the Court of Justice are less but only to a limited extent, that is to say favourable than those applicable to the on a lump-sum basis. In civil cases in which comparable national procedure. If, under the claim is not contested (non-contentious the rules applicable to the comparable proceedings), again, each party must in national procedure, each party bears its principle pay its own costs. In civil cases in own costs, those rules can also be applied which the claim is disputed, on the other to the costs incurred in references for a hand, the general rule under Austrian law is preliminary ruling to the Court of Justice. If that the court may order the unsuccessful the successful party in the main action can party to pay the full costs of the proceed- claim from the unsuccessful party the ings. additional legal costs associated with the
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comparable national procedural step, the ment of expenses incurred in the national same must also apply to the costs incurred procedure may not take into account the in a reference for a preliminary ruling additional costs — such as higher travel under Article 234 EC. and subsistence costs — which proceed- ings before the Court of Justice may entail.
34. Where national law provides for the lump-sum reimbursement of expenses, the 35. As I said earlier, however, it is for the national court must, in my view, when national court, in the light of the circum- examining whether the relevant procedures stances relevant to the case, to make a final are equivalent, bear in mind that the ruling on whether the principle of equiva- criteria governing the lump-sum reimburse- lence has been observed.
IV — Conclusion
36. In view of the foregoing, I propose that the Court answer the question from the Landesgericht für Zivilrechtssachen Wien as follows:
Where a national court decides on the costs of a reference for a preliminary ruling under Article 104(6) of the Rules of Procedure of the Court of Justice of the European Communities, that decision must not be less favourable than would be a decision on costs in a comparable national procedure representing a step in the main action.
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