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Preliminary References, Admissibility and the Transposition Period: Joined Cases C-261/07 and C-299/07

By Bartolus

Now here's an interesting judgment on preliminary references that takes a liberal approach to their admissibility. It also makes clear that national courts must refrain from taking any decision likely to compromise the objective of a directive during the transposition period.

The Court of Justice held in its judgment in Joined Cases C-261/07 and C-299/07 VTB-VAB NV v Total Belgium NV and Galatea BVBA v Sanoma Magazines Belgium NV that a preliminary reference on the interpretation of a directive is admissible when the question is posed before the expiry of the time for transposition of the directive in question.

The substance of the case need not detain us. It concerns a rather recondite point on the meaning of Directive 2005/29/EC, the unfair commercial practices directive.

The point concerning the admissibility of the preliminary reference was the following: The national court decided to refer the question of interpretation of the directive on May 24th 2007 while the deadline for transposition of the directive was December 12th 2007. One of the parties to the main proceedings submitted that the preliminary reference was inadmissible as a consequence.

The Court of Justice disagreed. It held that the preliminary reference was indeed admissible.

The Court recalled its traditional case-law according to which it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, 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 of Justice. Consequently, where the questions submitted concern the interpretation of EU law, the Court of Justice is bound, in principle, to give a ruling (Case C?379/98 PreussenElektra, paragraph 38; Case C?18/01 Korhonen and Others, paragraph 19; and Case C?295/05 Asemfo, paragraph 30).

Preliminary references are presumed to be relevant. That presumption may be rebutted only in exceptional cases such as where it is quite obvious that the interpretation which is sought of the provisions of EU law referred to in the questions bears no relation to the actual facts of the main action or to its purpose (Case C?415/93 Bosman, paragraph 61, and Case C?212/06 Gouvernement de la Communauté française et gouvernement wallon, paragraph 29).

The Court of Justice examined whether, in this case, the question referred was patently irrelevant. It held it was clear that it was not.

The Court recalled that not only the national provisions specifically intended to transpose a directive but also, from the date of that directive?s entry into force, the pre-existing national provisions capable of ensuring that the national law is consistent with it must be considered to fall within the scope of that directive (Case C?81/05 Cordero Alonso, paragraph 29).

Both at the time of the main proceedings and at the time when the decision to refer was adopted, the pre-existing provisions of national law were regarded by the national authorities as being capable of ensuring transposition of the Directive from the date of its entry into force, that is to say, from June 12th 2005, and, accordingly, as falling within its scope.

Then the Court of Justice neatly extended to national courts the obligation to refrain from taking decisions contrary to the directive during the time laid down for transposition.

The Court recalled its case-law that during the period prescribed for transposition of a directive, the member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive (Case C?129/96 Inter-Environnement Wallonie, paragraph 45; Case C?14/02 ATRAL, paragraph 58; and Case C?144/04 Mangold, paragraph 67).

It then continued to the effect that all the authorities of the member States concerned, including the national courts, have such an obligation to refrain from taking measures. It follows that, from the date upon which a directive has entered into force, the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive (Case C?212/04 Adeneler and Others, paragraphs 122 and 123).

For a previous post on when the Court of Justice will decline to answer a preliminary reference, see here.

Full post as published by EU Law Blog on May 04, 2009 (boomark / email).