Article 177 references to the European Court.

• Jurisdiction: United States
• Date: 22 September 1999
• Author: Shifrin, Vladimir

1. INTRODUCTION

   In many ways the most important aspect of the work of the European Court of Justice (ECJ or Court of Justice) is its jurisdiction to give "preliminary rulings" under Article 177 of the Treaty of Rome(1). Disputes involving Community law never come directly before the Court of Justice, but rather before the courts and tribunals of the Member States. Treaty provisions enable the Court of Justice to rule on questions of Community law, which arise in such litigation.(2) The system of "preliminary rulings" has proved a particularly effective means of securing rights claimed under Community law.(3) The term "preliminary ruling" is somewhat of a misnomer. The ruling is requested and given in the course of proceedings before the national court.(4) It is therefore an interlocutory ruling, a step in the proceeding before the national court.(5) The effect is that any question of Community law in an issue before a national court may be authoritatively determined by the Court of Justice. A national court is in all cases entitled, and in some cases, required to make a reference to the Court; and the Court is the final arbiter on matters of Community law, though the case is heard in a national forum.(6) The need for a system of preliminary rulings can be seen most clearly in relation to questions of validity of Community legislation.(7) For a national court to declare Community legislation invalid would lead to intolerable confusion.(8) Furthermore, a similar line of reasoning may apply equally well to questions of interpretation. The applicability of Community law in a particular case depends as much upon its interpretation as upon its validity.(9) A narrow interpretation of legislation could be tantamount to holding it invalid, or the actual validity may depend on strict construction.(10) Thus, uniform interpretation of Community law is necessary for uniform application of Community law.(11) Without uniform application, Community law would be liable to fragment and become overlaid by various national legal systems.(12)

   This article will examine the implications for Article 177(3) references in light of the holding and analysis by the Court of Justice in Parfums Christian Dior SA & Parfumes Christian Dior BV v. Evora BV.(13) This case re-examined what constitutes a national court whose decisions are final for the purpose of Article 177(3) and solidified the circumstances when such a court must refer to the ECJ for a preliminary ruling. However, in not following the opinion of the Advocate General the ECJ missed an opportunity to finally overrule a loophole in the review process first established in CILFIT & Lannificio di Gavardo Spa v. Ministry of Health.(14)

2. CASE DESCRIPTION

   1. Summary of Facts

      Dior(15) commenced proceedings against Evore,(16) on the grounds of trademark infringement. Dior put forth two claims: (1) that the marks have been used in breach of its exclusive right to use the marks in respect to the same goods in violation of Article 13A of the Uniform Benelux Law on Trademarks; or, (2) that the marks have been used in circumstances liable to cause damage by impairing the prestige and image of the marks.(17) Dior further claimed that Evora infringed on its copyright regarding bottles and packaging used for its goods.(18) Dior sought an order that Evora "should desist and continue to desist from making any use of Dior picture trade marks, and from any publication or reproduction of Diors' products.(19)

   2. Procedural History in the Netherlands

      The Arrondissementsrechtbank Haarlem (District Court) upheld Dior's claim and issued an injunction ordering Evora to desist and to continue to desist from using any of Dior's trademarks in "catalogues, brochures, advertisement or otherwise, in a manner not conforming to Dior's customary manner of

      advertising.'"(20) The injunction was set aside on appeal to the Gerechtshof (Regional Court of Appeals), against which Dior took the matter to Hoge Raad (Supreme Court).(21) In some circumstances requiring interpretation of Benelux Law, the Hoge Raad is required to refer questions to the Benelux Court for a preliminary ruling.(22) Hoge Raad decided that questions on the interpretation of the Uniform Benelux Law on Trade Marks should be referred to the Benelux Court, and questions on Community law should be refereed to the Court of Justice, and therefore stayed proceeding.(23) The Benelux Court also stayed its proceedings before it on the grounds that replies to questions submitted to the Court of Justice will effect its own response.(24)

      The Court of Justice faced the following procedural question: in proceedings relating to interpretation of Uniform Benelux Law on Trade Marks and interpretation of Council Directive 89/104/EEC(25), is the highest national court or the Benelux Court to be regarded as the court against whose decisions there is no remedy under national law and which is therefore required to refer to the Court of Justice for a preliminary ruling under Article 177.(26)

   3. Opinion of Mr. Advocate General Jacobs

      The Advocate General first noted that the appeal in the present case is in the context of an interlocutory proceeding.(27) Therefore, neither court is obliged to refer to the Court of Justice, provided that each party is entitled to continue proceedings on the substance of the case, and any question decided in the interlocutory proceeding may be the subject of a future reference to the Court.(28) However, the Advocate General thought it might be useful to complete the analyses.(29) He opinioned that interlocutory proceedings before the Benelux Court are a step in the proceedings before a national court; the answer given by the Benelux Court is binding on the referring national court; therefore, the Benelux Court is obligated to refer to the Court of Justice when the question presented depends on interpretation of Community law.(30) The only exception the Advocate General envisioned to a mandatory Article 177 reference centers on a lower court, in the same proceeding, already having made reference on the same question.(31) Simply, a court of a Member State "whose decisions are final should not decide a question of Community law" without a ruling from the Court of Justice.(32) The requirements of Article 177(3) will be satisfied so long as the Court of Justice gives a ruling at some stage of the case.(33)

   4. Court's Holding and Analysis

      The court held that both the Benelux Court and the Hoge Raad are courts "against whose decisions there is no remedy under national law."(34) Therefore, both must make a reference to the Court of Justice under Article 177(3), when interpreting Uniform Benelux Law on Trade Marks in light of First Council Directive to approximate the laws of Member States relating to trade marks.(35) However, this obligation is not required when the question is substantially the same as one that has already been the subject of a preliminary ruling in the same national proceeding.(36)

      In starting the analysis on the issue, the Court of Justice first examined whether a supranational court may refer questions for a preliminary ruling, and if so, whether there are circumstances when...