Joined Cases C-222/05 to C-225/05, van der Weerd and Others

>> Community law does not require national court to raise of its own motion a plea alleging infringement of Community legislation

>> neither the principle of equivalence nor the principle of effectiveness require it to do so.


Just returned from holiday, so I have some catching up to do. In this and subsequent posts, I will discuss the most interesting cases of the last four weeks.

In Joined Cases C-222/05 to C-225/05, the Dutch College van Beroep voor het bedrijfsleven (‘CBb’) referred a couple of questions to the Court of Justice concerning Directive 85/511/EEC.

In February 2001, following a finding of foot-and-mouth disease, the Director of the national cattle and meat inspection service (‘the RVV’), decided that all biungulate animals on the appellants’ holdings were to be treated as under suspicion of being infected by foot-and-mouth disease, since a case of foot-and-mouth disease had been ascertained in the vicinity of these holdings.

The appellants contested this decision. The CBb rejected all of their pleas, but pointed out that, in related cases before it which gave rise to the judgment of the Court in
Case C-28/05 Dokter and Others [2006], the validity of similar decisions had been challenged on the basis of different pleas in law, which had not been raised by the appellants in the main proceedings.

Those pleas in law could also have an influence on the resolution of the current disputes in the main proceedings. However, because those pleas were not raised before it, the national rules of procedure prevented their being taken into account.

Article 8:69 of the General Administrative Law Act act provides that the court is to give its ruling solely on the basis of the issues which are put before it.

Although paragraph 2 of that Article states that the court is to supplement the pleas in law of its own motion, that provision means, however, that the court is to put the objections made by the applicant against the contested administrative measure into legal form.

A distinction falls to be made between that duty to supplement those pleas in law of the court’s own motion and the analysis which the court is required to make on its own initiative.

Such an analysis is required only in cases involving the application of rules relating to the powers of administrative bodies and those of the court itself, and provisions as to admissibility.

The CBb, however, was uncertain as to whether Community law required it to take into consideration arguments based on that law which had not been put forward by the appellants in the main proceedings. The question arose whether a national procedural provision which meant that the court could not examine pleas in law which went beyond the ambit of the dispute rendered the exercise of rights conferred by Community law virtually impossible or excessively difficult.

The CBb therefore referred several questions to the Court of Justice, asking inter alia whether Community law required the courts of their own motion to conduct an examination of grounds which were outside the terms of the dispute, by reference to criteria based on Directive 85/511.

The Court of Justice first of all reiterated that in the absence of Community rules in the field, it was for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derived from Community law, provided that the principles of equivalence and effectiveness were observed. (See, inter alia,
Joined Cases C-430/93 and C-431/93 Van Schijndel and van Veen [1995]
and Case C-129/00 Commission v Italy [2003]).

The Court held that the provisions of Directive 85/511 which were at issue could not be considered as being equivalent to the national rules of public policy referred to above. As a result, the application of the principle of equivalence did not mean, as regards the present cases, that the national court was obliged to conduct of its own motion an examination of the validity of the administrative measures in question by having regard to criteria based on Directive 85/511.

As regards the principle of effectiveness, the Court reiterated that each case which raised the question whether a national procedural provision rendered the exercise of rights conferred by the Community legal order on individuals impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances.

In that context, it was necessary to take into consideration, where relevant, the principles which lied at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see, inter alia,
Case C-312/93 Peterbroeck [1995]
).

The Court pointed out that in van Schijndel and van Veen, it had held that the principle of effectiveness did not preclude a national provision which prevented national courts from raising of their own motion an issue as to whether the provisions of Community law had been infringed, where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions had based his claim.

In the present case, the CBb had indicated that the procedure followed before it did not differ, in that regard, from the procedure at issue in Van Schijndel and van Veen.

The Court therefore held that to examine of the court’s own motion issues not put forward by the appellants in the main proceedings would go beyond the ambit of the dispute as put before it.

Those two procedures differed only in so far as, in the present case, the CBb was not ruling as a court of last instance, as in that judgment, but as a court of first and last instance. However, that matter alone did not place the parties to the main proceedings in a special situation which was capable of calling into question the principles referred to.

Accordingly, it could not lead to a different conclusion from that reached by the Court in Van Schijndel and van Veen. Since the appellants in the main proceedings had had a genuine opportunity to raise pleas based on Directive 85/511, the principle of effectiveness did not require the national court to examine of its own motion a plea based on that directive.


Text of judgment