OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 29 NOVEMBER 1973 (*1)

Mr President,

Members of the Court,

The Gesellschaft für Getreidehandel mbH of Düsseldorf (formerly the Gesellschaft fur Getreidehandel AG) made an application on 31 August 1973 for interpretation of a judgment pursuant to Article 40 of the Protocol on the Statute of the Court of Justice of the European Economic Community.

Under the terms of this application the Court is requested to interpret the Judgment of 14 July 1967 in cases 5, 7 and 13 to 24/66 (Firma E. Kampffmeyer and 13 other applicants v Commission of the EEC, Rec. 1967, p. 332) ‘as regards the scope of its legal force’ and, more particularly, to state whether:

1.‘that Judgment, as well as the Judgment of 1 July 1965 (Joined Cases 106 and 107/63), in so far as they affirm that the conditions necessary for the adoption of the protective measure decided upon by the Federal Republic of Germany and approved by the Commission by Decision of 3 October 1963 were not fulfilled, and,

2.the principles enunciated by the Court of Justice regarding the degree of care which must be shown by the Commission and the Governments of the Member States in adopting protective measures pursuant to Article 22 of Regulation No 19/62 of the Council,

have binding effect with respect to the German courts in proceedings for damages instituted by the applicant on the grounds for the same facts against the national authorities charged, within the Federal Republic, with the organization of the market.’

The Commission of the European Communities submitted a number of observations on this application, especially with regard to its admissibility.

I would make the following remarks on these observations, without going into the facts of the case which, in the same way as the content of the Judgment of 14 July 1967, is known to the Court from that earlier case and from the pleadings exchanged during the present proceedings.

1.No comment is necessary as to the Commission's statement that the Judgment in Joined Cases 106 and 107/63 of 1 July 1965 (Firma Alfred Topfer KG and Firma Getreide-Import-Gesellschaft v Commission of the EEC, Rec. 1965, p. 548) is also named in the application for interpretation, that the applicant company was not involved in those proceedings (unlike Joined Cases 5, 7 and 13 to 24/66) and that accordingly the application for interpretation is inadmissible, in so far as it relates to the Judgment in Joined Cases 106 and 107/63. In fact, as the applicant made clear during the oral procedure, an interpretation of Judgment 5, 7 and 13 to 24/66 alone is requested. Reference was made to Judgment 106 and 107/63 only because the Court of Justice had referred to it in its Judgment of 14 July 1967.

2.The Commission is further in doubt as to whether sufficient regard was paid to the condition contained in Article 102 (1) of the Rules of Procedure, according to which an application for interpretation should state the passages in the judgment, the interpretation of which is sought.

I must say that this approach strikes me as being somewhat formalistic. It is in fact clear from the overall content of the application for interpretation which parts of Judgment 5, 7 and 13 to 24/66 are to be interpreted, these being the section of the Judgment which forms the first three paragraphs of page 354 of Volume XIII of the German edition of the Recueil. This was moreover confirmed during the course of the oral procedure.

Accordingly, Article 102 of the Rules of Procedure cannot be turned to the applicant's disadvantage.

The chief problem in the present case is that of determining where the limits on proceedings under Article 40 of the Protocol on the Statute of the Court of Justice for the interpretation of judgments lie. Do they amount merely to an attempt at elucidation of what the Court of Justice has held in judgment on a concrete case, what its intention was in that case, or can the procedure also be used to establish who, apart from the parties to the proceedings, may be affected by the findings of the Court of Justice, and to whom the legal force of the decision of the Court and the grounds upon which it is based extend?

In effect, according to the applicant's express statements made during the oral procedure, only the last problem mentioned above arises. The findings of the Court of Justice in its Judgment of 14 July 1967, that Article 22 of Regulation No 19 had been wrongfully applied (non-existence of the conditions required for the adoption of protective measures) and that the Commission had been guilty of a breach of duty in relation to the adoption of such protective measures, leave no doubt, as the applicant has emphasized, as to the meaning of these findings in relation to the application to be judged by the Court of Justice. In the applicant's view, the only point at issue is whether they are also binding upon a national court before which an action for damages has been brought against the Federal Government, based on the same facts. Accordingly it must be considered whether proceedings under Article 40 of the Protocol on the Statute of the Court of Justice of the EEC can also serve the purpose of deciding the ‘scope’ in this sense of the legal effect of a judgment.

I have strong reservations about adopting such a view of the meaning and purpose of the procedure for the interpretation of judgments.

If a parallel can be discerned in the interpretation of legal provisions, the purpose of which is to ascertain the intentions of the legislator, then, in the case of the interpretation of a judgment, it is appropriate to think of it as a clarification of what the Court of Justice wished to say in a concrete case. Viewed in this way, there can be no doubt that it is not a question of the interpretation of a judgment if the limits of its legal force are to be determined. The Court of Justice is not empowered to do this; a judgment contains no statements on this subject. The extent of the legal effects of a judgment are to be ascertained rather by an interpretation of the Community law which regulates the matter, either expressly or implicitly, and which forms the basis of the Court's decisions. A clarification of this sort can therefore more usefully be sought by way of proceedings under Article 177 of the EEC Treaty, that is to say in the context of a provision which embraces acts of the Court of Justice and also allows a discussion — as has been shown in other cases — of problems relating to the scope of Community law.

Moreover, it seems to me that the case law of the Court already enshrines this view, according to the Opinion of Mr Advocate-General Roemer in Case 70/63A (High Authority of the ECSC v Umberto Collotti and the Court of justice of the European Communities, Rec. 1965, p. 373). The following quotation is taken from that Judgment (p. 380): ‘According to this provision’ (i.e. Article 40) ‘only those applications for interpretation are admissible which are based not upon disputes regarding the possible effects of the judgment at issue on cases other than that in which it was pronounced, but upon such obscurity or ambiguity as affects the meaning and scope of the judgment itself in so far as it decides the matter at issue.’

In my opinion this dictum should be upheld. It cannot be objected that this would deprive the word ‘scope’ in Article 40 of the Protocol on the Statute of the Court of Justice of its significance. In fact, even according to the narrow interpretation which I propose for the abovementioned provision, the concept retains its full meaning. One only has to think of proceedings joined by several applicants or defendants, or in which a series of provisions is at issue and in which, when judgment has been given, it may not be clear to which of the parties or provisions at issue certain statements of the Court of Justice refer. One can also cite the example of proceedings in which a large number of points is at issue, which are not all decided definitively at the same time, and where accordingly there can be some doubt as to the determination of the scope of an interlocutory judgment. In all these cases there is certainly some point in enquiring as to the ‘scope’ of a judgment in the context of the application for interpretation, as I understand it. They show that it is by no means necessary to refer the word ‘scope’ so to speak to the external effects of a judgment, thereby justifying the question whether a judgment is such that its effect extends beyond the parties to the proceedings.

All the foregoing reflections bring me to the conclusion that the application for interpretation made by the Gesellschaft fur Getreidehandel, precisely because it is concerned only with the last-mentioned effects, does not fall within the ambit of Article 40 and must accordingly be dismissed as inadmissible.

My opinion is therefore clear. It follows at once that there is no need to consider further the content of the application. If the question is raised in the context of national proceedings, the competent national court can itself request the Court of Justice for the requisite clarification pursuant to Article 177 of the EEC Treaty.

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(*1) Translated from the German.