Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (283/81)

C —Observations of the Danish Government

After describing the objective of Article 177 and the way in which it operates the Danish Government expresses the view that the third paragraph of that article “cannot be understood as meaning that a national court against whose decisions there is no judicial remedy must refer to the Court of Justice any question concerning the interpretation or validity of a provision of Community law merely because the parties wish it to do so”.Such an approach would transform that article into a remedy available to private individuals, which is by no means the purpose of that provision.It is clear from the Court's judgment of 22 November 1978 in Case 93/78 Mattheus ([1978] ECR 2203) that “national courts are under an obligation to determine whether it is necessary to make a reference to the Court of Justice of the European Communities”. Accordingly, it is for the national court to decide whether a doubt really exists which justifies referring a question to the Court of Justice for a preliminary ruling; that view is supported by the Court's judgment of 16 December 1981 in Case 244/80 Foglia v Novello ([1981] ECR 3045).Next, the Danish Government, like the Italian Government, maintains that the decisions of the Court, in particular the Da Costa en Schaake judgment cited above, reaffirm that the obligation to make a reference to the Court of Justice for a preliminary ruling, as provided for by the third paragraph of Article 177, is not an absolute one.The Danish Government observes that even where there are no previous decisions by the Court, the national court may none the less decide a point directly, without requesting a preliminary ruling, if the provision of Community law at issue does not give rise to any difficulties of interpretation.With regard to the theory of the acte clair, the Danish Government recalls that the Commission, in reply to Written Question No 608/78 (Official Journal 1979, C 28 pp. 8 and 9) stated that the courts “may decline to make a reference and decide the matter themselves in cases where such questions are perfectlystraightforward and the answer is obvious to any lawyer with a modicum of experience”.The Danish Government informs the Court that the above criterion is also applied by the Danish courts, including courts of last instance.It observes that, in its opinion, “a theoretical interpretative doubt does not in itself justify systematic recourse to the procedure for obtaining a preliminary ruling. For that, there must be a genuine interpretative doubt”.If, however, the acte clair test is to be adopted it must be applied with caution and the national supreme court must take a number of factors into account, especially as the provisions of Community law are drafted in several languages and the aim of Article 177 is to ensure the uniform application of Community law. In conclusion, therefore, that national court may not, on its own authority, set aside a Community measure which it regards as unlawful; similarly, it may not discard an interpretation previously adopted by the Court of Justice.The Danish Government therefore proposes that the Court should give the following answer to the question referred to it:“National courts against whose decisions there is no judicial remedy are under an obligation to refer to the Court of Justice of the European Communities for a preliminary ruling questions on the validity or interpretation of Community law if they consider that a decision on the question is necessary to enable them to give judgment in a particular case. It is neither necessary nor sufficient, for the purposes of that obligation, for a party to make a request to that effect. However, a court against whose decisions there is no judicial remedy and whose authority is such that its decisions are capable of constituting precedents must, for reasons based on the need to apply Community law in a uniform manner, avoid resolving such questions itself wherever possible”.