C-99/00

LYCKESKOG

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 21 February 2002 1

Introduction of Article 234 EC defines in the following terms the obligation to refer to the Court the questions mentioned in the first para- 1. By order of 9 March 2000, the Hovrätt graph of that article: för Västra Sverige (Court of Appeal for Western Sweden, hereinafter the 'Hovrätt') referred four questions to the Court of Justice for a preliminary ruling under Article 234 EC. The first two concern that provision, specifically the third paragraph thereof, and turn, respectively, on the 'Where any such question is raised in a case concept of a national court or tribunal pending before a court or tribunal of a required to make a reference for a pre- Member State against whose decisions liminary ruling and on the scope of that there is no judicial remedy under national obligation. The other two questions, which law, that court or tribunal shall bring the are subordinate, relate rather to the inter- matter before the Court of Justice.' pretation of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty (hereinafter 'Regulation No 918/83'). 2 Swedish law

Legal framework 3. The ordinary Swedish courts, with juris- diction in civil and criminal matters, com- The preliminary ruling procedure prise Tingsrätter (District Courts), Hov- rätter (Courts of Appeal, six in all for the whole country) and the Högsta Domstol Community law (Supreme Court). As a rule, a declaration of admissibility (leave to appeal) is needed for a judgment or a final decision of a Court of 2. As regards Community law, I would Appeal, delivered on appeal against a merely point out that the third paragraph judgment handed down by a Tingsrätt, to be reviewed by the Supreme Court except where the case is brought in the Supreme 1 — Original language: Irahan. Court by the Public Prosecutor acting in the 2 —OJ 1983 L 105, p. 1. public interest.

The system of reliefs from, customs duty 5. Review of the case under Paragraphs 1 to 3 of Chapter 58 of the Rättegångsbalk is an extraordinary remedy whereby judicial d e c i s i o n s m a y be c h a l l e n g e d . Paragraph 10(2) states that a review may The Community regulations be requested when new facts or new evidence are produced which would prob- ably have led to a different outcome had they been known before the judgment was given. 8. As regards the substance of the main proceedings, the applicable section of Regulation No 918/83 is that determining the specific cases eligible for relief from Common Customs Tariff duties. In view of 6. Under Paragraph 11 of Chapter 54, the fact that in certain well-defined circum- leave to appeal may be limited to a specific stances, where by virtue of the special aspect of the case where review of that conditions under which goods are imported aspect is of particular importance for the the usual need to protect the economy is

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absent, such taxation is not justified (sec- (c) "personal property" means any prop- ond recital in the preamble), the Council erty intended for the personal use of the decided to set out 'those cases in which, persons concerned or for meeting their owing to special circumstances, relief from household needs. import or export duties shall be granted respectively when goods are put into free circulation or are exported from the Com- munity' (Article 1(1)).

The following, in particular, shall con- stitute "personal property":

9. To begin with, therefore, Article 1(2) of the Regulation gives a number of defini- tions; in particular, it provides that for the purposes of the Regulation:

Article 45(2) states that for the purposes of 11. Article 47 provides that the relief paragraph 1: referred to in Article 45 is to be granted up to a total value of ECU 175 per traveller. 3Member States may reduce the value and/or the quantities of goods allowed to enter duty-free if they are '(a) "personal luggage" means the whole of imported by certain categories of persons: the luggage which a traveller is in a persons residing in the frontier zone, fron- position to submit to the customs tier workers, or the crews of cross-border authorities on his arrival in the Com- means of transport. munity, as well as any luggage sub- mitted to this same authority at a later date, provided that evidence can be produced to prove that it was regis- tered, at the time of the traveller's departure, as accompanied luggage with the company which transported it into the Community from the third The Swedish regulations country of departure.

12. The total value of ECU 175 mentioned in Article 47 of Regulation No 918/83 was calculated by the Generaltullstyrelse (the Swedish Board of Customs) and sub- sequently by the Tullverket to be equivalent to SEK 1 700. 4A decision of the local (b) "imports of a non-commercial nature" customs authorities set the permitted duty- means imports which: 3 — As amended by Article 1 of Council Regulation (EC) No 35J/94 of 14 February 1994 amending Regulation (EEC) No 918/83 setting up a Community system of reliefs from customs duty (OJ 1994 L 46, p. 5). 4 _ Tullverkets Författningssamling 1996:36, 1998:34 and — are of an occasional nature, and 1999:47.

free quantity for private imports of rice at of rice, was stopped at the Swedish border 20 kg per person. as he came out of the green customs channel at Svinesund and summoned to appear before the Tingsrätt (District Court) in Strömstad on a charge of attempting to smuggle 460 kg of rice, worth SEK 3 564. The charge was based on Paragraphs 1 and 8 of the Law on smuggling and on Chapter 23, Paragraph 1, of the Criminal 13. Under Paragraph 1 of the Varusmuggl- Code. ingslag (Law on smuggling, 1960:418), anyone who, without notifying the proper authorities, imports into the Kingdom, or exports, goods for which customs duty, other taxes or charges are payable to the State or which it is prohibited by statutory or constitutional provisions to import or export is, if the act is intentional, to be sentenced to a fine or a maximum of two years' imprisonment for smuggling. Under Paragraph 8 of that Law, attempted 15. In the hearing before the Tingsrätt, the smuggling falls under Chapter 23 of the defendant admitted the facts but disputed Brottsbalk (Criminal Code), pursuant to liability for smuggling on the ground that which anyone who has commenced a the rice was intended for his own and his certain crime without bringing it to com- family's consumption. He explained, in pletion is, in the cases expressly provided particular, that he had had to go to for, to be convicted of attempted crime, Norway with his wife for other reasons provided there is a risk that the act would and had found out before the journey that lead to the completion of the crime or such it was permissible to import goods into risk was averted only as a result of Sweden to a maximum value of SEK 1 700 fortuitous circumstances. per person. He had therefore taken the opportunity offered by the journey to purchase 25 bags of rice, of 20 kg each, for a total amount of NKR 3 400, paying about NKR 145 per bag compared with the SEK 240 that he would have paid in Sweden at the current market price in that State. Contesting the charge of smuggling, the defendant pointed out that his wife is of Asian origin, that they have three children Facts, procedure and questions living at home, that the family consumes at least 25 kg of rice per month and that they are often visited by a grown-up daughter and her family, who also eat a large amount of rice. He therefore estimates that the quantity of rice in question, which was 14. On 7 April 1998, Kenny Lyckeskog marked for consumption by November (hereinafter 'Mr Lyckeskog' or 'the defend- 2000, would have been sufficient for ant'), on his way from Norway with 500 kg approximately one and a half years.

16. The Tingsrätt, having stated that there Tingsrätt had wrongly introduced an inter- was no reason to call into question the mediate concept, namely non-commercial defendant's statement that the rice was for use, between personal use and commercial his own and his family's consumption, use; and had set a different duty-free limit found that the rice was contained in the accordingly. However, Regulation defendant's personal luggage within the No 918/83 merely states a maximum meaning of Article 45 of Regulation amount — ECU 175 — and stipulates No 918/83 inasmuch as it had been carried that the goods must be intended for the in his private car. As regards the condition family's personal use. The Swedish auth- laid down in that article that 'the nature orities could not therefore set limits of their and quantity of such goods should not be own lower than the limits laid down in the such as might indicate that they are being Regulation or introduce a concept of non- imported for commercial reasons', the commercial use. Tingsrätt took the view that it should be construed as meaning that the nature and quantity of the goods ought not, objectively seen, to be such as to raise doubts as to the nature of the import. That is precisely the approach which underlies the decision taken by the local customs authorities to set the standard duty-free quantity for private imports of rice at 20 kg per person. In view of the large scale of rice imports from Norway and the need to avoid 18. Faced with a case which involved the uncertainty, the court found it essential interpretation of provisions of Community and also advisable for the customs auth- law, the Hovrätt first raised the question, in orities to set a certain quantity, below the the order for reference, whether it should maximum quantity which would otherwise be regarded as a court of last instance in the apply, as free of duty. The Tingsrätt there- present case and whether, as such, it is fore took the view that the fact that the rice required to refer a question to the Court of was not intended to be resold — and was Justice for a preliminary ruling under the therefore intended for non-commercial third paragraph of Article 234 EC. The use — was not sufficient to discharge the Hovrätt itself considered that the answer defendant from liability. It therefore sen- should be in the affirmative inasmuch as tenced him to a fine for attempted smuggl- under Swedish law leave to appeal to the ing and ordered that the rice be confiscated. Supreme Court is granted only on the conditions laid down in Paragraph 10 of Chapter 54 of the Rättegångsbalk and explained above (in point 3 et seq.), that is to say only where the point of law is so complex that there is an interest in estab- lishing a precedent for the uniform inter- pretation of the law or where the Hovrätt makes an entirely erroneous determination on the point of law. According to the order 17. The defendant appealed against that for reference, a minor error in the inter- judgment and asked for the conviction to pretation or application of Community law be quashed and the decision to confiscate does not in itself constitute grounds for the rice to be annulled. He claimed that the leave to appeal.

20. In the light of those considerations, the Hovrätt therefore decided to refer the following questions to the Court for a preliminary ruling: 3. Under Article 45(1) of Council Regu- lation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty, goods '1. Is a national court or tribunal which in contained in the personal luggage of practice is the last instance in a case, travellers coming from a third country are, subject to Articles 46 to 49 of the regulation, to be admitted free of 5 - Case 283/81 CILFIT v Ministry ofHealth[1982] 3415. import duties, provided that such

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imports are of a non-commercial judicial practice precluded the Högsta nature. Does this mean that the nature Domstolen from raising a question for and quantity of the goods should, on preliminary ruling in the course of a an objective view, not be such as to procedure for granting leave to appeal raise doubts about the nature of the against a decision of the Hovrätt. The import? Or may regard be had to the Hovrätt replied that that possibility was individual's lifestyle and habits? not precluded, although the question had not so far been considered in the case-law.

4. What is the legal significance of a national authority's provisions which indicate the duty-free quantity of a Legal analysis certain product — to which Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Commu- nity system of reliefs from customs duty is applicable — normally to be admitted?' The first question

23. By its first question the Hovrätt asks whether, in the situation described above, it 21. In the course of the procedure before can be regarded as a court of last instance the Court, the Danish, Finnish, Swedish and whether it is therefore required to refer and United Kingdom Governments and the a question to the Court of Justice for a Commission submitted observations. I shall preliminary ruling under the third para- give an account of their views as I examine graph of Article 234 EC. the questions one by one in the order in which they are put in the order for reference.

25. The Danish Government considered prior case-law of the Court of Justice may that it should be answered in the affirm- generally be regarded as cases where leave ative, since otherwise the aims pursued by to appeal must be granted, so that in the the third paragraph of Article 234 EC subsequent proceedings the Supreme Court might be jeopardised. In its view, national will itself, if necessary, have to make the courts or tribunals whose decisions may be reference for a preliminary ruling. The reviewed only after leave to appeal has Finnish Government observes that this is been granted are to be regarded as courts of precisely what happens in Finland and in last instance within the meaning of that fact, according to expert legal opinion, the provision. Supreme Court could decide to make a reference for a preliminary ruling when the request for leave to appeal was first con- sidered. The Finnish Government also argues that, if the Court of Appeal were to be regarded likewise as a court of last instance, there would be a risk that not one but two courts would be required to refer a question for a preliminary ruling in the same case. 26. The Finnish and Swedish Governments take the opposite view, primarily on the basis of the formal reference to courts of last instance in the third paragraph of Article 234 EC. They consider that the mere fact that the decisions of Hovrätter are open to review is sufficient to exclude those courts from the scope of the provision in question, inasmuch as the fact that leave to appeal is required limits but does not preclude the possibility of review by the 27. The United Kingdom Government, too, higher court. They also point out that if the points out that the mere fact that leave to purpose of Article 234 is to prevent the appeal is required in order for a case to be emergence of a body of national case-law reviewed by the Supreme Court is not that is not in accord with Community law, sufficient to make the Court of Appeal a then, in the Swedish judicial system, the court of last resort within the meaning of task of ensuring uniformity in the judg- the third paragraph of Article 234 EC. If ments handed down by the courts must be the particular purpose of that provision is regarded as a matter for the Supreme to prevent the emergence in a Member Court, not for the courts of appeal. The State of a body of national case-law that is two governments add that the answer they not in accord with Community law, achieve- suggest presents no risk for the uniformity ment of this objective will be fully ensured of Community law, first, because the courts if the court or tribunal which has the final of appeal may in any case refer a question decision on leave to appeal bears the to the Court of Justice for a preliminary obligation to seek a preliminary ruling. ruling, and that alone reduces the risk of Extending the scope of the analysis to other distortion, but above all because cases legal systems, including the English system, where a question of interpretation of Com- the United Kingdom maintains that that munity law is raised and where there is no applies in circumstances where the court or

28. The Commission's analysis is more detailed, in that it attempts to explore both possible answers to the question with a view to obtaining a better idea of their implications. Assuming, first, that the 29. If, on the other hand, it is assumed that answer is in the affirmative, the Commis- the answer is in the negative, the Commis- sion concedes that the need to seek leave to sion observes that there is a real, albeit appeal means that there is nevertheless a conditional and uncertain, possibility of possibility of reviewing the case. However, obtaining leave to appeal and it must if in practice the proportion of cases in therefore be concluded that there is provi- which leave is granted is too low because of sion for a remedy within the meaning of the the difficulty of obtaining a review and if third paragraph of Article 234 EC. The leave is not granted as of right because it is Commission recognises that on this subject to certain conditions, it must be assumption it remains uncertain which concluded that there is in fact no effective court is under an obligation to refer, but right of appeal. If this conclusion is considers that the answer must be sought accepted, the Hovrätt, like all courts or tribunals whose decisions are open to review only after leave to appeal has been 6 — Case C-337/95 Parfums Christian Dior [1997] ECR I-6013, granted, would be under the obligation paragraph 30.

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entail differences in the application of is open to the parties to bring an ordinary Community law. According to that view, action having the same subject-matter, in order to guarantee the useful effect of the prompted the German court to ask the third paragraph of Article 234 EC, the Court whether it was under a duty to refer obligation laid down in that provision must the question for a preliminary ruling. The apply to any court handing down a final Court stated that 'in the context of decision, irrespective of its position in the Article 177, whose purpose is to ensure hierarchy of the national legal system. that Community law is interpreted and applied in a uniform manner in all the Member States, the particular objective of the third paragraph is to prevent a body of national case-law not in accord with the rules of Community law from coming into 33. The case-law of the Court of Justice existence in any Member State. The quickly gravitated towards the second requirements arising from that purpose view. Already in the famous case of Costa are observed as regards summary and v ENEL, a reference for a preliminary urgent proceedings, such as the proceedings ruling from the Giudice Conciliatore di in the present case, relating to interim Milano, the court of first and sole instance measures, where an ordinary main action, by reason of the sum of money at issue, the permitting the re-examination of any ques- Court stated obiter dictum that under tion of law provisionally decided in the Article 177 of the EEC Treaty (now summary proceedings, must be instituted, Article 234 EC) 'national courts against either in all circumstances or when the whose decisions, as in the present case, unsuccessful party so requires. In these there is no judicial remedy must refer the circumstances the specific objective under- matter to the Court of Justice so that a lying the third paragraph of Article 177 is preliminary ruling may be given upon the preserved by reason of the fact that the "interpretation of the Treaty" whenever a obligation to refer preliminary questions to question of interpretation is raised before the Court applies within the context of the them'. 7 main action'. 8

before the courts or tribunals belonging to urgent. In fact, as we know, that possibility a jurisdictional system different from that was considered in Parfums Christian Dior, under which the interlocutory proceedings which I have already mentioned, where, are conducted, provided that it is still albeit in another context and for reasons possible to refer to the Court under which I need not go into here, it was a Article 177 any questions of Community matter of choosing between the national law that are raised'. 9 supreme court (the Hoge Raad) and the Benelux Court of Justice. In its judgment in that case, cited above, the Court held that both courts must be regarded as courts of last instance and are therefore under an 36. It seems to be clear, therefore, that the obligation to refer to the Court of Justice Court's principal concern is to preserve the for a preliminary ruling under the third objective of the provision in question, paragraph of Article 177. However, should characterised by the need to 'prevent a one of them have brought the matter before body of national case-law not in accord the Court already, it also explained that with the rules of Community law from 'that obligation loses its purpose and is thus coming into existence in any Member emptied of its substance when the question State', which might jeopardise the uniform raised is substantially the same as a ques- interpretation and application of Commu- tion which has already been the subject of a nity law. Precisely for that reason, how- preliminary ruling in the same national ever, the objective must be protected not in proceedings' (paragraph 31). In his a formal and abstract manner but having Opinion in that case, Advocate General regard to whether or not the decision at Jacobs had pointed out for his part that the issue is final, because it is essential to requirements of the third paragraph of prevent the national courts from ruling on Article 177 will be satisfied provided that questions of Community law without refer- the Court of Justice has given a ruling at ring to the Court of Justice in cases where some stage in the proceedings before the there is no other instance that can do so national court takes a final decision inas- later. 10 much as 'the rationale of the Treaty provisions is that a court of a Member State whose decisions are final should not decide a question of Community law in the absence of a ruling from this Court. From that perspective, it may make little differ- 37. If that requirement is satisfied, the ence in which proceedings the ruling is problem of determining in what national requested'. 11 proceedings the question is to be referred, in cases where more than one court is in principle entitled to do so, becomes less

ing whether a decision is final and what Court may grant leave to appeal, and to the judicial remedies may prevent it from being judicial systems I mentioned earlier in so. However, I find Advocate General which the court that took the contested Capotorti's observations on the subject in decision is (alone or with others) the court his Opinion in Hoffmann-La Roche, cited that may grant leave to appeal against it. above, highly significant. After pointing out that the concept of judicial remedy differs from one legal system to another, he concludes that appeals by persons other than the parties involved, for example third-party proceedings or an action by the public prosecutor in the interests of the law, and so-called exceptional remedies such as a re-opening of the case, are in principle to be regarded as falling outside that concept and that 'the decisions referred 40. I too, like almost all the other parties to in the third paragraph of Article 177 are which submitted observations in the pres- all those which are final, in the sense that ent proceedings, consider that, even though they do not give rise to any review of the the requirement of leave to appeal limits case on the request of either of the parties the possibility of challenging the decisions either as regards the facts or even only as of the Hovrätter, that possibility regards the law without any fresh facts or undoubtedly exists. I would add that this exceptional conditions being necessary'. 12 is particularly relevant for present purposes since, as the Swedish and Finnish Govern- ments both point out, such a challenge is not an extraordinary or exceptional remedy but 'an appeal in the strict sense of the word', that is to say 'an ordinary action' in the context of the judicial remedies offered by the legal system; this is confirmed 3. Assessment moreover, as the Finnish Government points out, by the fact that decisions of the Hovrätter are regarded as final only after the request for permission to appeal has been refused. Also, the Swedish Gov- ernment itself notes that in some cases (notably criminal cases) even appeal against judgments given by the district courts (Tingsrätter) is subject to permission 39. It seems to me that the ample details being granted by the courts of appeal and elicited so far provide all the information this clearly does not alter the ordinary required for a reply to the question, a nature of the remedy. There is consequently reply — I should add — that, again in my no reason why the uncertainty attending view, is applicable both to the specific the decision on leave to appeal should be Swedish system, in which only the Supreme mentioned in a negative light, that is to say in order to obscure the objective fact that there is nevertheless a possibility of appeal, 12 — See Opinion in Case 107/76 Hoffmann-La Roche, cited and why its positive implications should be above (ECR 957, at 979).

41. However, as we saw earlier, the prob- lem in the present case, as in the similar cases I have just mentioned, is not in fact to 42. It seems to me, however, that the determine which of the courts concerned is proper response to that legitimate and to be formally described as a court of last reasonable concern is not to force decisions instance within the meaning of the third of the Hovrätter into the mould of paragraph of Article 234 EC, but rather to decisions of last instance, nor is it to avoid the risk that deciding that the produce statistics showing how often leave Supreme Court is to be the court of last to appeal is granted or quote arguments instance might jeopardise the oft-quoted that have nothing to do with the matter in purpose of Article 234 EC to 'prevent the hand. On the contrary, the answer is to be emergence of a body of national case-law found in Article 234 EC itself and in the not in accord with the rules of Community nature of the cooperation it establishes law', which might jeopardise the uniform between the Court and the national courts. interpretation and application of Commu- In other words, it must be borne in mind nity law. The real concern is how to achieve that, although it is usually distilled into the that objective in cases such as the present relationship between the Court of Justice one, where the court entitled to grant and the individual referring court, that permission may refuse it, thereby closing cooperation in fact invests the whole of the entire case without giving the Court an the national judicial system at every level. opportunity to rule on any questions of The whole of the judicial system in ques- Community law that might be raised in the tion, not just individual courts, must there- course of the proceedings. Hence the reser- fore be considered in the event of uncer- vations about solutions that carry that risk tainties or difficulties such as those in the and the attempt to find remedies that may present case, in order to determine whether remove it in cases where is it impossible to that system provides instruments capable of avoid a solution of that kind. This was, fulfilling the aims of Article 234 EC. This moreover, clear from the observations of was precisely the line the Court took in almost all those who submitted observa- resolving the issues in Parfums Christian

44. In the light of the foregoing consider- ations and the facts that have emerged during the case, it seems to me that it is now easier to reply to the specific question 43. Turning now to the concern I men- raised in the present case. I should point tioned in the last paragraph, it seems to me out, first, that under its own national law that one thing must be made absolutely the Swedish Supreme Court must grant clear, namely that, in principle, courts such leave to appeal in cases where the uniform as the Swedish Supreme Court, when application of the law in that legal system is functioning as courts of last instance, are at issue. Clearly, a question of interpre- fully bound by the obligation enshrined in tation of Community law falls into that the third paragraph of Article 234 EC category, as the Swedish and Finnish Gov- unless the legal system to which they ernments have both expressly confirmed; belong allows them to avoid that obligation indeed the Finnish Government has even without infringing the provision in ques- reported judicial practice and expert legal tion. That would be the case, for example, opinion to that effect. if, when a question of Community law was raised, such courts were permitted not to seek a preliminary ruling directly but to refer the case back to the lower court for it to do so. In that case, clearly, no problems of compliance with Article 234 EC would arise because, I repeat, what is of interest to Community law is that the aim pursued by that provision be secured, not that it be secured by any particular court. But apart from such cases, the obligation to refer for 45. I should add, next, that in its reply to a a preliminary ruling is absolutely binding question on the subject put to it by the

48. In the light of the foregoing consider- ations, I therefore propose that the reply to the first question should be that a national court or tribunal whose decisions may be challenged subject to examination of a 46. Save in that case, however, the Högsta request for leave to appeal is not in Domstol cannot, as I have said, avoid the principle a court of last instance within obligation to refer to the Court of Justice if the meaning of the third paragraph of a question of Community law is raised in Article 234 EC. proceedings before it, provided of course that the other conditions laid down in the third paragraph of Article 234 EC and in the case-law of the Court are met. It may clearly do so during its examination of the merits of the appeal in cases where it has granted leave to appeal. But it may also do The second question so during its examination of the request for leave to appeal, particularly if it was minded to refuse it. In that case, if the answer given by the Court were to conflict 1. Introduction with the decision of the Hovrätt and the case could not be referred back to that court, the Högsta Domstol would be posi- tively required to grant leave to appeal in order to give effect to the Court's inter- pretation. It would be required to do so 49. By this question, on the assumption because of the obligations to that effect that in the present case it is bound by the arising from Article 234 and because obligation referred to in the third para- Swedish law itself requires the Supreme graph of Article 234 EC, the Hovrätt asks

whether it may nevertheless decline to seek Community legislation to new fields and a preliminary ruling where it considers, as the great increase in the volume of legis- it does in the present case, that the ques- lation has led inevitably also to an increase tions of Community law raised in the case in references to the Court for a preliminary pending before it are 'clear' — even if, the ruling. However, as the Advocate General Hovrätt adds in an obvious allusion to the observed, excessive resort to such refer- judgment in CILFIT, the conditions laid ences is likely to prejudice the quality, the down in that judgment are not met, in coherence, and even the accessibility of particular if the questions are not covered Community case-law, and may therefore by the doctrine of acte clair or acte éclairé. even be counter-productive to the aim, pursued by Article 234 EC, of ensuring the uniform application of Community law throughout the Union. By contrast, to limit the obligation to refer would not necess- arily jeopardise the certainty of the law but might even promote it; it would also have the advantage of lightening the Court's 2. Observations of the parties case-load and reducing the length of pro- ceedings. On those grounds and on the premiss that the Court's function under Article 234 EC is not so much to ensure that Community law is correctly applied whenever a question relating to that law is raised in a national court as to ensure that 50. Only the Danish Government and the it is applied uniformly throughout the Commission expressed views on this ques- Community, Advocate General Jacobs pro- tion and both took the opportunity pres- posed that references be limited to cases ented by the general and summary nature where 'there is a genuine need for uniform of the question itself to suggest a more or application of the law throughout the less radical review of the judgment in Community because the question is one of CILFIT. general interest' (paragraph 50). Since the national courts have become increasingly familiar with Community law and there is now a considerable body of case-law on the subject to which they can refer indepen- dently, it is possible, according to Advocate General Jacobs, to envisage self-restraint in 51. The Danish Government would like the the matter of references for a preliminary Court to reconsider that judgment, both on ruling, either on the part of those national principle and on practical grounds, courts, possibly on the basis of guidelines especially as it is now almost 20 years drawn up by the Court, or by the Court, since it was given. To that end, it concurs which could 'exercise self-restraint and ... fully with the views expressed by Advocate limit itself to more general issues of inter- General Jacobs in his Opinion in Wiener, 13 pretation' (paragraph 45). Thus, without in which he observed that the expansion of essentially calling into question the judg- ment in CILFIT, the Advocate General concluded that the conditions laid down in 13 — Paragraph 60 of the Opinion in Case C-338/95 Wiener v that case 'should apply only in cases where Hauptzollamt Emmerich [1997] I-6495.

a reference is truly appropriate to achieve of Justice' (judgment in CILFIT, the objectives of Article 177, namely when paragraph 16). That criterion, according there is a general question and where there to the Danish Government, implies the is a genuine need for uniform interpre- absence not of any 'reasonable doubt' but tation' (paragraph 64). of any doubt at all. Lastly, citing once again Advocate General Jacobs' Opinion in Wiener (paragraph 65), the Danish Gov- ernment suggests that the Court should also abandon the other criterion laid down in the judgment in CILFIT, according to which the national court or tribunal must be convinced that the answer to the ques- tion of interpretation is obvious, in view of the difficulty of comparing the various language versions of a Community provi- 52. Agreeing with that view, the Danish sion. Government also points out that a similar conclusion was reached by the group of experts set up by the Commission in the autumn of 1999 to reflect on the future of the judicial system of the European Com- munities. In its closing report, 14 the group likewise recommended, on the one hand, that national courts should be encouraged to apply Community law more frequently 53. The Commission, for its part, does not themselves and, on the other, that the consider that there is any need to call into obligation imposed on courts of last question the conditions laid down by the instance should be limited to cases where Court in CILFIT, except for the require- 'the question is of sufficient importance to ment that the interpretation of Community Community law' and where, after examin- law must be 'so obvious' as to leave no ation by the lower courts, there is still a scope for any reasonable doubt on the 'reasonable doubt' as to the solution. In the subject. It points out in that connection Danish Government's opinion, the Court that, under Article 104(3) of the Rules of should adopt those criteria in preference to Procedure of the Court as recently the excessively restrictive criteria adopted amended, 15 the Court may give its decision in CILFIT, both in general and in relation on a reference for a preliminary ruling by to the definitions of those criteria devel- reasoned order not merely, as originally oped in its judgment in that case. That provided, where 'a question referred to the applies in particular to the statement that Court for a preliminary ruling is (mani- the national court may refrain from refer- festly) identical to a question on which the ring the question to the Court of Justice if it Court has already ruled' but also 'where is convinced that the correct interpretation the answer to such a question may be of Community law is obvious and that 'the clearly deduced from existing case-law or matter is equally obvious to the courts of where the answer to the question admits of the other Member States and to the Court no reasonable doubt'. The fact that the last

55. Before assessing the various views on the subject, it seems to me advisable to 54. As regards the present case, having recall briefly but in greater detail the emphasised that derogations from the prin- relevant terms of the judgment in CILFIT ciples established by the Treaty must be and the context in which that judgment interpreted strictly, the Commission was given. observes that the referring court has not explained how and in what sense the question of interpretation of Community law 'obviously' arises in the case at issue. In any event, that court must abide by the principle that the answer must leave no scope for any reasonable doubt, having 56. As you know, that judgment was the regard to the different language versions, outcome of pressure from conflicting terminology and legal concepts, and to the demands between which it sought to objectives of Community law and its state achieve a reasonable balance, although, as of evolution. Only if those conditions are the present case confirms, it did not ulti- satisfied may the national court or tribunal mately succeed in reconciling the opposing refrain from submitting the question to the views. On the one hand, in the light of the Court and take upon itself the responsibil- practical considerations mentioned earlier, ity for resolving it, according to the judg- there was a need to avoid a plethora of ment in CILFIT; however, the fulfilment of references for a preliminary ruling possibly those conditions must be assessed in a arising from the fact that the use of the manner which permits of objective verifi- term 'question' in Article 234 EC implies cation, in order to ensure that the purpose the existence of an interpretative doubt, or of Article 234 is not circumvented. The reliance on the well-known principle in Commission therefore proposes that the claris non fit interpretatio or the doctrine of

58. Such was the background to the judg- ment in CILFIT. First of all, therefore, it sought to address the need to avoid super- fluous references that would have placed an undue burden on the Court's activities and jeopardised the efficient performance of the task entrusted to it under Article 234 EC. 57. That divergence, which had been very To that end, it was considered advisable, evident during the first few years when the despite the strict wording of the third EC Treaty was applied, lessened with the paragraph of that provision, to leave the passage of time and did not surface again in national courts of last instance a measure practice until the CILFIT case. That does of discretion in determining whether the not mean that all had been well in the reference is really necessary. Consequently, interim; on the contrary, national judicial as I have already noted, the Court admitted practice was far from consistent and in that the obligation to submit a question of some instances openly flouted the obli- Community law for a preliminary ruling gation imposed under the third paragraph might be limited in cases where the court or of Article 234 EC. The Court for its part tribunal has established that 'the question appeared gradually to temper the rigid raised is irrelevant or that the Community attitude it had initially adopted, for a provision in question has already been variety of reasons there is no need to go interpreted by the Court 16 or that the into here, except to observe that one, though not the only one, was the steady and rapid increase in the number and 16 — The Court had already ruled, in this connection, that complexity of references for a preliminary 'although the last paragraph of Article 177 unreservedly requires national courts or tribunals against whose ruling. Also, the idea that Article 234 EC decisions there is no judicial remedy under national law to refer to the Court every question of interpretation raised entailed not subordination but cooperation before them, the authority of an interpretation under between the Court and the national Article 177 already given by the Court mav deprive chat obligation of its purpose and thus empty it of its substance. courts — an idea that was somewhat Such is the case especially when the question raised is materially identical with a question which has already been vague at first but was gradually developed the subject of a preliminary ruling i n a similar case' in the Community case-law as a genuinely (judgment in Joined Cases 28/62 to 30/62 Da Costa [ 1963] ECR 31). See also the judgment in Parfums Christian Dior, bilateral arrangement applicable through- cited above, paragrapli 29.

correct application of Community law is so different language versions are all equally obvious as to leave no scope for any authentic: the interpretation of a provision reasonable doubt'. 17 of Community law thus involves a comparison of the different language ver- sions. It must also be borne in mind, even where the different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. Furthermore, it must be emphasised that legal concepts do not necessarily have the same meaning in 59. However, precisely with reference to Community law and in the law of the that last condition the Court introduced a various Member States. Finally, every number of precautions designed to limit the provision of Community law must be discretion exercised by the national courts placed in its context and interpreted in the and thus, despite the loopholes that the light of the provisions of Community law judgment in CILFIT opens up, to secure the as a whole, regard being had to the objec- fundamental objective of Article 234 EC of tives thereof and to its state of evolution at ensuring that Community law is interpreted the date on which the provision in question and applied in a uniform manner in all the is to be applied' (paragraphs 18 to 20). Member States and in particular, as regards the third paragraph of that provision, to 'prevent the occurrence within the Com- munity of divergences in judicial decisions on questions of Community law'. 18 While recognising that 'the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved', it therefore warns that 4. Assessment 'before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice' (paragraph 16). Not just that, but 'the existence of such a possibility must be assessed in the light of the specific char- acteristics of Community law, the particu- 60. Turning now to the present case, I must lar difficulties to which its interpretation first repeat that the order for reference is so gives rise and the risk of divergences in brief on the subject that it is not easy to judicial decisions within the Community' understand the Hovrätt's question. It is (paragraph 21). In particular, 'it must be nevertheless more or less clear from the borne in mind that Community legislation context that it was contemplating the third is drafted in several languages and that the of the three conditions laid down in CILFIT. The i n t e r p r e t a t i o n of Article 45(1) of Regulation No 918/83 is 17 — CILFIT, paragraph 21. undoubtedly relevant to the outcome of the I8 — CILFIT, paragraph 7. case pending before the Swedish court and

the Court has, moreover, produced no concerned to emphasise is that the Hovrätt case-law on the provision in question. 19 seems to be proposing as it were an extra limb or qualification of the third condition laid down in CILFIT, suggesting a version that is more limited and I would say more 'subjective', in that it is based simply on the national court's conviction that it is in a 61. However, this does not amount to position to resolve a question indepen- anything because the Hovrätt is in fact dently in so far as it presents no problems asking whether there is an obligation to of interpretation and the answer is there- refer to the Court under the third para- fore 'clear'. graph of Article 234 EC on a question of Community law that is 'clear', being at pains however to explain that that would not be so in cases — such as those covered by the doctrine of acte clair for example — where, according to the case-law of the Court, a court of last instance may refrain 63. These observations alone justify the from requesting a preliminary ruling. Thus strong doubts that would be raised, were there is clearly a reference to CILFIT but the question to be answered in the affirm- the case considered by the Hovrätt, as it ative. These doubts arise, generally, from itself says, differs from the case mentioned the fact that such an answer would appreci- in CILFIT, where the answer is 'so obvious ably extend the measure of discretion as to leave no scope for any reasonable accorded to the national courts and con- doubt as to the manner in which the sequently reduce the scope of the obligation question raised is to be resolved'. In that to refer imposed on courts of last instance case, quite simply, the answer to the under the third paragraph of Article 234 question is 'clear'. EC. But they also arise, more specifically, from the fact that it would be tantamount to introducing, in a completely arbitrary way, a strong element of uncertainty and subjectivity, and consequently confusion, into the application of that provision. 62. I propose to leave aside for the moment the perfectly correct point made by the Commission that the question is extremely general and is not reasoned, and also the fact that, as we shall see later, the questions of substance raised in the order for refer- ence do not in fact appear to be as 'clear' as the order makes out. The point I am 64. To justify and strengthen those doubts, I think it is advisable to point out that the principle of the obligation on courts of last 19 — The Court has so far ruled on the interpretation of instance to refer questions for a preliminary Regulation No 918/83 in Case C-247/97- Schomibruodt ruling is not the outcome of an extempore [1998] ECU I-8095, with reference to the definition of 'standard tanks' in Article 112(2)(c), and in Case C-394/97 decision by the Court but is set out directly Hammen |1999) ECU I-3599, with reference to restric- tions on imports of alcoholic drinks, on the basis of the in precise and formal terms in the Treaty duration of the journcy. and is thus, by its aims and implications,

one of the fundamental and essential prin- the problem precludes any such solution ciples, I would say almost a structural because in practice the application of the principle, of the Community legal system. provision objectively encourages —· nor Needless to say, therefore, any derogation could it be otherwise — a measure of from that principle must be interpreted 'flexibility' and may consequently leave an strictly. Precisely on that assumption, even larger loophole than the courts moreover, it has recently been authori- intended for possible avoidance of the tatively stated that, since the judgment in obligation to refer. The fact that that does CILFIT, it would be difficult for the Court not always happen or does not always lead to apply the principle less strictly and still to any significant developments does not remain true to the letter and spirit of the mean that all is well in practice but rather Treaty. 20 that the avoidance often remains unde- tected or is considered to be relatively

65. However, I must say that, apart from way. 21However, the objective difficulties the fact that the nature and scope of the associated with the application of the proposed derogation from the principle is judgment in CILFIT should in themselves not clear in the present case, such a militate against introducing any further derogation appears to be neither useful element of uncertainty and ambiguity on nor necessary in any way. Not only that: all the subject and, above all, abandoning a the risks attending it are patently obvious. line of interpretation based on assessment The judgment in CILFIT sought to provide criteria that are as objective as possible for a coherent and responsible set of indi- a line that leaves room for subjective, not to cations that would give reasonably bal- say arbitrary, assessments by the national anced guidance to the national courts. courts. I do not think it is any exaggeration However, I do not believe the Court was to say that any other course would lead to a under the illusion that it had thereby gradual erosion of the unity and uniformity identified secure and definitive, not to say of Community law and ultimately under- infallible, criteria for the purpose of defin- mine its primacy. ing the obligation referred to in the third paragraph of Article 234 EC.

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66. That being said, I might consider my duced after the proposals in question and analysis to be complete except that a few go some way towards meeting the concerns more words remain to be said about the expressed in that, as practice is already arguments advanced by Denmark, and to tending to show, they enable a number of some extent also by the Commission, on the less 'difficult' questions to be resolved the need to review the judgment in CILFIT. by means of simpler and shorter pro- As I have already noted at some length, the cedures. Danish Government, recalling the concerns expressed by Advocate General Jacobs and repeated in the report of the reflection group on the future of the judicial system of the European Communities, cited above, openly asks in its written observations for a relaxation of the CILFIT criteria, which it 68. On the other hand, I also believe that considers to be too strict and therefore those concerns ought not to be exagger- unlikely to avoid the risk of a plethora of ated, especially when we consider the references for a preliminary ruling. In general context and the problems almost particular, it revives the idea of limiting all courts now have to face. The sum total the obligation imposed on courts of last of references for a preliminary ruling is still instance under Article 234 EC to cases relatively modest compared with the large where 'the question is of sufficient import- and growing number of cases where a ance to Community law and where there is question of Community law is raised in still a reasonable doubt as to the solution'. the national courts and even more so if we consider the large number of courts with authority to refer and of cases brought before those courts. However, those con- cerns seem to me to be quite off the mark when they relate, as in the present case, to courts of last instance, because the number of references for a preliminary ruling made by those courts has always been and still is very small, both in absolute terms and in proportion to the total number of such references. 22

it might bring would be really too small to consider the proposals on their merits. The justify the negative implications and the criterion that the question of Community risks involved in those proposals. One has law referred for a preliminary ruling must . only to think of the danger of making it be 'sufficiently important' seems to me, as even more difficult for those concerned to even its supporters recognise at least to obtain an order for reference from courts some extent, so vague and uncertain that it which, as experience shows, are not noted is all too easy to imagine how it may offer for their willingness to support such an opening to those fond of litigation and requests and already have (or assume) a above all leave too great a measure of sufficient measure of independence. Not discretion to the national courts (and only might it limit the protection afforded remember that we are speaking here of to individuals by the courts, it would courts of last instance). I should add that I inevitably affect the uniform interpretation also find it hard to understand what is, in and application of Community law. The my view, the most serious motive under- Court itself has frequently noted that the lying the proposal, namely the idea that it is preliminary ruling procedure is the real not the duty of the Court to ensure that keystone securing the Community char- Community law is applied correctly in acter of the law established by the Treaties particular cases but merely to see that it is because it preserves its unity and enables it applied uniformly. I wonder whether it is to produce the same effects throughout the possible to separate correct application Union while at the same time ensuring that from uniform interpretation, that is to say individuals are effectively protected by the whether it is possible to imagine correct courts. 2 3 Thus the Court may well application of Community law in a specific encounter problems, now or in the future, case without uniform interpretation of that as a result of the influx of references for a law being given, or required, beforehand. preliminary ruling but I am nevertheless firmly convinced that practical and con- tingent requirements, however legitimate and understandable they may be, cannot be satisfied to the detriment of the principles and coherence of the system, still less by inducing the Court to abdicate the respon- sibilities conferred on it by the Treaty.

sort of additional requirement imposed by pean Commission, reached the same con- the Court to relieve the court of the clusion despite the more open position it obligation to refer. On the contrary, it is a has taken in the present case. The Com- qualification of 'reasonable doubt', mission observed that the advantages of the intended to emphasise that the doubt must proposals as far as the Court's workload really exist and must not be merely sub- was concerned were very slight, whereas

73. In the present case, as I said, the Commission took the opposite view, namely that it was advisable to relax the strict criterion set in CILFIT that it must be obvious that there is a reasonable doubt, a view based inter alia on the recent amend- ments to Article 104(3) of the Rules of Procedure of the Court, which covers cases where the Court may give its decision on a 72. I have already said more than once that in my view that measure of discretion is sufficient and it would be dangerous to 25 — In the 'Additional Commission contribution to the Inter- extend it further. What I want to emphasise governmental Conference on institutional reform, Reform

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reference for a preliminary ruling by rea- to be followed in replying to it. 2 6It is soned order (see point 53 above). In therefore obvious that the prerequisites and particular, the Commission points out that purposes of the third paragraph of the Court may also avail itself of that Article 234 EC and Article 104(3) of the option in cases where 'the answer to such a Rules of Procedure are, and must be, question may be clearly deduced from completely different, so that one cannot existing case-law or where the answer to be cited for the purposes of the other and the question admits of no reasonable vice versa. doubt'. The fact that that passage does not adopt the whole of the CILFIT for- mula, notably the statement that the cor- rect application of Community law must be 'so obvious' as to leave no scope for any reasonable doubt, could support the pro- posal that the national courts should be accorded a greater measure of discretion.

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OPINION OF MR TIZZANO — CASE C-99/00

of low-priced goods as personal luggage. goods, beyond which reliefs will not be However, in order to determine whether granted. On the contrary, the national the system of reliefs applies in such cases it authorities must determine case by case is necessary to establish whether the goods whether the conditions for granting relief are being imported for commercial pur- under the Regulation are met. poses or are intended for the personal use of the travellers or their families. To that end, it is necessary to consider in each case not just the nature and quantity of the goods that are being imported but also the lifestyle and habits of the traveller because that is what determines whether or not the import is deemed to be of a commercial nature. 81. As we have already seen, Article 45(1) of Regulation No 918/83 allows goods contained in the personal luggage of travellers coming from a third country to be admitted free of import duties, subject to Articles 46 to 49, provided such imports are of a non-commercial nature. Thus, the relief is subject to two conditions, which 79. The Swedish Government for its part are cumulative: the goods must be con- considers that in order to determine tained in the traveller's personal luggage whether the import is of a non-commercial and the import must be of a non-commer- n a t u r e w i t h i n t h e m e a n i n g of cial nature. The limits on duty-free imports Article 45(2)(b) of Regulation No 918/83, are laid down in Articles 46 and 47. In all the facts of the case must be taken into respect of certain categories of goods — account, including the nature and quantity tobacco products, alcoholic beverages, per- of the goods that are being imported and fumes and toilet waters — Article 46 the economic and personal circumstances limits the relief to certain quantities per of the traveller. The import must also be of traveller, while in respect of other goods an occasional nature. Article 47 limits it to a total value, set at ECU 175 per traveller. It follows that, within those limits, provided that the two conditions laid down in Article 45(1) are met, there is in principle nothing to prevent the import of a considerable quantity of low-priced goods.

the aforesaid relief, the nature and quantity import is of a commercial nature, especially of the goods are relevant for the purpose of as the nature and quantity of the goods are determining the nature of the import. To mentioned in Article 45(2)(b) only in so far that end, I think the proper starting-point is as they might indicate that the goods are the definition provided in Article 45(2)(b), being imported for commercial reasons. under which 'imports of a non-commercial nature' means imports which are of an occasional nature and consist exclusively of goods for the personal use of the travellers or their families, or of goods intended as presents, and their nature and quantity should not be such as might indicate that 84. I agree with almost all the parties who they are being imported for commercial have expressed a view on the subject that, reasons. The provision thus refers to a on the contrary, all the criteria mentioned mixture of objective and subjective factors. in the provision in question must be taken The occasional nature of the import and into account, including the subjective crite- the nature and quantity of the goods fall ria, namely that the goods must be for the into the first category, while the require- personal use of the travellers or their ments that the goods must be for the families and must not be imported for personal use of the travellers or their commercial reasons. In other words, I families and must not be imported foi- consider that the actual circumstances must commercial reasons fall into the second. be examined in each case and, in particular, regard must be had to the traveller's life- style and habits in determining whether the goods are for the personal use of the traveller or his family.

The fourth question case by case whether the conditions for granting relief are satisfied. As evidence that its view is correct, the Swedish Gov- ernment cites case-law in which the Court held, likewise with regard to questions of customs duties and exemption, that 'in the 86. By its fourth question, the Swedish area in question Member States are left court seeks to ascertain the legal signifi- with only the restricted power given to cance of national administrative rules them' by the provisions of the Community determining the quantity of a certain prod- act in question (in that case Directive uct, to which Regulation No 918/83 is 69/169 28 which — like Regulation applicable, normally to be admitted duty- No 918/83 which is the subject of inter- free. pretation in the present case — does not provide for the possibility of laying down quantitative limits for goods which are not expressly listed in the act itself). On that premiss, the Court held that a national provision laying down a quantitative limit for certain goods to be admitted free of duty in terms such as to raise an absolute 87. In that connection, the Finnish Govern- presumption that the importation has a ment has observed that Regulation commercial character was unlawful. 29 The No 918/83 seeks to establish a single com- Swedish Government infers from that case- prehensive Community system of reliefs from customs duties. It does not give law, a contrario, that Member States may Member States the right to impose quanti- adopt non-binding provisions laying down tative restrictions or to establish absolute quantities of goods that may be admitted and irrebuttable presumptions with respect free of duty, on the understanding that the to certain products. National provisions of traveller has a chance to prove that an this kind are in breach of Community law, import of goods exceeding that limit is not whereas non-binding acts containing of a commercial nature and that the value instructions for the customs authorities, of the import is within the limit of ECU 175 giving indicative quantities above which laid down in Article 47 of the Regulation. imports would be presumed to be of a non-commercial nature, are not.

89. The Commission expressed the same on reliefs from customs duties designed, in view, while also pointing out that it was accordance with the requirements of the not clear in the present case whether or not Customs Union, to eliminate differences in the Swedish provisions were binding. How- the aim, scope and conditions for the ever it observed that that was a matter for application of the reliefs contained in these the national court to determine, bearing in conventions, and to enable all those con- mind that the provisions in question were cerned to enjoy the same advantages lawful only if they were not binding. throughout the Community' (fourth recital in the preamble). Consequently, while it is legitimate to allow any Member State to issue 'instructions' or 'recommendations' to customs officers, laying down quantitative limits not provided for in the Regulation, even if such instructions or recommen- dations are not binding, that must not 90. As we have just seen, all the parties jeopardise in practice the uniform appli- who expressed a view on the subject agreed cation of the Community system of reliefs that Member States cannot adopt binding from customs duty. provisions laying down quantitative limits on duty-free imports or even an absolute presumption that an import is of a com- mercial nature because of the quantity of goods imported. At most, the customs authorities may issue administrative instructions indicating the quantity of cer- tain goods that may be admitted free of duty, on the understanding that the traveller may prove that a larger quantity is not being imported for commercial reasons.

Conclusion

95. In conclusion, I propose that the Court give the following answers to the questions referred by the Hovrätt för Västra Sverige:

(1) The third paragraph of Article 234 EC must be interpreted as meaning that a national court or tribunal whose decisions may be challenged subject to

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examination of a request for leave to appeal is not in principle a court of last instance within the meaning of the third paragraph of Article 234 EC.

(4) Article 45 of Regulation No 918/83 precludes national administrative measures or practices resulting in the imposition of binding quantitative limits on reliefs from customs duty or raising an absolute presumption that imports are of a commercial nature by reason of the quantity of goods imported. I - 4875