Too late to seek Article 177 reference to ECJ after final judgment

Patrick McNamara (applicant) v An Bord Pleanala (respondent) and the County Council of the County of Kildare, the County Council of the County of Dublin and Others (notice parties).

Judicial Review - Planning - Appeal from refusal of planning permission for dump successful - Application for judicial review - Judgment in substantive hearing delivered - Application for order for reference to the Court of Justice - Preliminary issue - Whether application maintainable under Article 177(3) where final judgment on issues already given - Treaty of Rome 1957, Article 177(3).

The High Court (before Mr Justice Barr); judgment delivered 31 July 1996.

IN interpreting Article 177, it will be observed that it provides the Court of Justice with jurisdiction to give preliminary rulings for the benefit of national courts within the European Union on matters pertaining to the interpretation of the Treaty of Rome as amended and other specified aspects of European law. The use of the word "preliminary" implies that the national court which receives such a ruling from the European Court has not completed its function by delivering final judgment, but will do so, inter alia, in the light of the ruling received from the Court of Justice. Paragraph 3 of Article 177 relates to a question raised in a case pending before a national court. When a court has delivered final judgment, the case which was before it is no longer pending.

The purpose of the Article is to provide a consultative procedure where by national courts may obtain rulings on matter of European law from the Court of Justice. The purpose of such rulings is to guide national courts of the European Union on matters of European law in cases pending before such courts. Once final judgment has been delivered, the case has been decided. The national court has then no further function in the matter.

The High Court so held in deciding that the court, having delivered final judgment, had no longer any function in the matter, and in dismissing the application.

James O'Reilly SC, Edward Walsh BL and Alice Doyle BL for the applicant; Michael M. Collins SC for the respondent; James Gallagher SC and Patrick Butler BL for the notice parties.

MR JUSTICE BARR said that the applicant had applied by notice of motion for, inter alia, the following relief:

(a) An order of reference to the Court of Justice of the European Union under Article 177(3) of the Treaty of Rome on questions concerning the interpretation of community law as set forth in the exhibit in the affidavit grounding the application.

(b) A stay on the judgment and order of the High Court delivered on 10 May 1996.

(c) A stay on the order of the respondent under reference PL.09.091910 (Co Kildare, Planning Register Reference No PPR 92/942) dated 29 July 1994.

Mr Justice Barr said then set out briefly the background chronology of events leading up to the application. The applicant was the chairman of the Kill Residents Group, a body which was opposed to the establishment and operation of a major domestic refuse dump near the village of Kill, Co Kildare, by the local authorities which serve the greater Dublin area. Planning permission for the dump was refused by Kildare County Council but on appeal to the respondent permission was granted subject to certain conditions. The applicant applied and was granted permission to proceed by way of judicial review on certain specified grounds for, inter alia, an order quashing the planning permission for the dump granted by the respondent. The substantive hearing came on before Mr Justice Barr at which all interested parties were represented and he delivered reserved judgment on 10 May 1996. Subsequently, on 16 May following, he ruled on the costs of the proceedings in an ex tempore judgment.

The next step was a motion on notice brought by the applicant in which he invited this court to certify a particular point arising out of the substantive judgment for appeal to the Supreme Court on the ground that the point in question was one of exceptional public importance. Mr Justice Barr refused the application, being satisfied that the particular issue had been already determined by the Supreme Court.

Mr Justice Barr said that the application now before the court was made by counsel on behalf of the applicant seeking an order of reference to the Court of Justice of the European Communities of certain questions concerning the interpretation of Community law. Mr Justice Barr said that the relief sought by the applicant raised a crucial preliminary issue which was fundamental to the outcome of the motion i.e. whether the application was maintainable under Article 177(3), the court having delivered its final judgment on the issues raised in the proceedings before it.

Mr Justice Barr then set out the law. Article 177(3) as amended provides that the Court of Justice will have jurisdiction to give preliminary rulings concerning the interpretation of the Treaty, the validity and interpretation of acts of the institutions of the Community and the interpretation of the statutes of bodies established by an Act of the Council, where those statutes so provide. The article then provides that:

" ... where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

"Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decision there is no judicial remedy under national law, the court or tribunal shall bring the matter before the Court of Justice."

Mr Justice Barr said that in the light of the wording of Article 177 he was satisfied that a ruling of the Court of Justice, being for the benefit of a national court, must be made while the case in question is pending before the latter, i.e. prior to its final judgment.

Furthermore, he said that the objective of Article 177 bears out that interpretation. He said that it was universally accepted and had not been challenged by counsel for the applicant, that the purpose of the Article is to provide a consultative procedure whereby national courts may obtain rulings on matter of European law from the Court of Justice. It is not an appeal procedure but is consultative only. Once final judgment has been delivered, the case has been decided. Mr Justice Barr said that the national court has then no further function in the matter and that the time for advice by the Court of Justice had manifestly gone. He said that all of the judicial authorities relating to the interpretation of Article 177 had emanated from questions referred to the Court of Justice while the cases in question were pending in the national courts. Counsel for the applicant was unable to refer to any case where a ruling on foot of the Article was sought by a national court pursuant to an application made to it after final judgment in that case. Counsel for the applicant relied on two judgments of the Court of Justice i.e. Case C-312/93, Peterbroeck [1995] ECR 1-4599 and Case C-431/93, Van Schijndel and van Veen [1995] ECR 1-477. In each, a ruling was sought by a national court relating to a case pending before it. Mr Justice Barr said that, accordingly, the preliminary issue raised on this motion was not before the court in either case and the judgments of the Court of Justice were irrelevant to that issue.

Mr Justice Barr said that on examining the judgment given in Irish Creamery Milk Suppliers Association v Ireland [1981] ECR 735, which referred to the objective of Article 177, it was evident that the Court of Justice in interpreting its role under Article 177 perceived that its function is to make rulings on European law for the benefit of national courts before which particular cases are pending. The reference to the establishment of a framework for "close co-operation between the national courts and the Court of Justice" necessarily implied that the rulings from the Court of Justice pursuant to applications under Article 177 are intended for the benefit of national courts in connection with the preparation of final judgments in case before such courts. The time for "close co-operation" between the Court of Justice and a national court has passed once final judgment has been delivered by the latter. Likewise, Mr Justice Barr said that the reference to the "stage in the proceedings" presupposes that the case is still pending before the national court and that its final judgment has not been delivered. Once that has happened, the final stage in the proceedings is completed and the question of a reference to the European Court thereafter could not arise.

Mr Justice Barr then referred to CILFIT v Ministry of Health [1982] ECR 3415 which, he said, emphasised that the objective of Article 177 is to provide machinery whereby rulings on European law may be obtained by national courts from the Courts of Justice to assist the former in deciding an issue or issues of European law raised in the particular case before it. He said that this necessarily implied that the advice of the European Court is given prior to judgment by the national court.

Mr Justice Barr said that the Supreme Court has also adopted a similar interpretation in SPUC v Grogan [1989] IR 752 where it was held, inter alia, that where the court of a member state refers a question pursuant to Article 177 of the Treaty of Rome for a preliminary ruling by the Court of Justice of the European Communities both the stage of the action at which the reference is made and what steps, if any, other than a final determination of the action, the courts of the member states may make pending the determination are matter for the national courts to be considered in accordance with national law.

Mr Justice Barr said that it was open to the applicant to request this court at the substantive hearing to seek a ruling from the Court of Justice under Article 177 on the point of European law at issue, or alternatively, at least to seek liberty to make such an application if this court was disposed to hold against him on the point in question. In fact the matter of seeking a ruling from the Court of Justice under Article 177 was not raised on the applicant's behalf in any shape or form prior to final judgment in this case.

Mr Justice Barr was satisfied that in all the circumstances it was now too late for the applicant to seek to invoke Article 177 and that this court, having delivered final judgment, had no longer any function in the matter. He said that in the premises it was unnecessary to address other arguments advanced at the hearing.

Solicitors: Wilkinson & Price (Kildare) For the applicants; TTL Overand McCarron & Gibbons (Dublin) for the respondent; Adrian P. O'Gorman for the notice parties.