Case C-326/95


Banco de Fomento e Exterior SA
v
Amândio Maurício Martins Pechim and Others


(Reference for a preliminary rulingfrom the Tribunal Cível da Comarca, Lisbon)

«(Reference for a preliminary ruling – Inadmissibility)»

Order of the Court, 13 March 1996
    

Summary of the Order

Preliminary rulings – Admissibility – Questions not relating to specific technical points, submitted without providing any explanation of the factual and legislative context

(EC Treaty, Art. 177; EC Statute of the Court of Justice, Art. 20)

In order to reach an interpretation of Community law which will be of use to the national court, it is essential that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based.The information provided in orders for reference must not only enable the Court usefully to reply but also enable the Governments of the Member States and other interested parties to submit observations pursuant to Article 20 of the Statute of the Court. It is the Court's duty to ensure that the opportunity to do so is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties.The requirement for the national court to define the factual and legislative context of the questions it is asking is less pressing where the questions relate to specific technical points and enable the Court to give a useful reply even where the national court has not given an exhaustive description of the legal and factual situation.None the less, a request from a national court is manifestly inadmissible where the order for reference does not contain any indication by the national court of the factual and legal situation in the case before it or of the reasons why it considers that the answers to the questions referred to the Court for a preliminary ruling are necessary in order to settle the dispute.







ORDER OF THE COURT
13 March 1996 (1)


((Reference for a preliminary ruling – Inadmissibility))

In Case C-326/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunal Cível da Comarca de Lisboa for a preliminary ruling in the proceedings pending before that court between

Banco de Fomento e Exterior SA

and

Amândio Maurício Martins Pechim, Maria da Luz Lima Barros Raposo Pechim, Confecções Têxteis de Vouzela, Ld.ª (CTV),

on the interpretation of Articles 59, 90 and 92 of the EC Treaty,



THE COURT,



composed of: G.C. Rodríguez Iglesias, President, C.N. Kakouris, D.A.O. Edward, J.-P. Puissochet and G. Hirsch (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler, J.C. Moitinho de Almeida (Rapporteur), P.J.G. Kapteyn, C. Gulmann, J.L. Murray, P. Jann, H. Ragnemalm, L. Sevón and M. Wathelet, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: R. Grass,

after hearing the Opinion of the Advocate General, makes the following



Order



1
By an undated decision, received at the Court on 16 October 1995, the Tribunal Cível da Comarca de Lisboa (Local Civil Court, Lisbon) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a number of questions raised by Mr and Mrs Pechim and by Confecções Têxteis de Vouzela, Ld.ª, the defendants in the main proceedings, on the interpretation of Articles 59, 90 and 92 of the EC Treaty.

2
The Banco de Fomento e Exterior SA ( BFE) brought an action before the national court to enforce a debt against the defendants in the main proceedings.

3
It is apparent from the case file forwarded by the national court that, according to the defendants in the main proceedings, the procedure followed by the BFE is irregular on the ground that Decree-law No 41957 of 13 November 1958 ( Diario do Governo , Second Semester 1958, p. 558), which confers numerous advantages on the BFE, in particular the power to proceed to recover debts in accordance with the enforcement procedure provided for in fiscal matters and, to that end, to treat as enforceable the certificate of the debt extracted from the bank's books, is incompatible with the Community rules on freedom to provide services and on competition law. They therefore proposed that the national court should refer the following questions to the Court of Justice for a preliminary ruling:

1.
Must the BFE be regarded as an undertaking and in particular a public undertaking within the meaning of Articles 90 and 92 of the Treaty of Rome?

2.
May the advantage which the BFE enjoys over its competitors be considered to be State aid within the meaning of Article 92 of the Treaty of Rome?

3.
Must such advantages be taken to be restrictions on the freedom to provide services within the Community, within the meaning of Article 59 of the Treaty of Rome?

4.
Do Articles 59, 90(1), and 92(1) of the Treaty of Rome have direct effect and may they be relied upon by a party which is the subject of enforcement proceedings in the present case?

5.
Do the rules contained in the Treaty of Rome take precedence over and negate any conflicting provisions of national law?

4
In its order for reference, the national court decided to suspend the proceedings pending consideration of the questions which the defendants in the main proceedings had suggested should be referred to the Court for a preliminary ruling.

5
The second paragraph of Article 177 of the EC Treaty provides that where such a question is raised before a 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.

6
It is settled case-law that in order to reach an interpretation of Community law which will be of use to the national court, it is essential that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, in particular, the judgment in Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others v Circostel [1993] ECR I-393, paragraph 6, and the orders in Case C-157/92 Pretore di Genova v Banchero [1993] ECR I-1085, paragraph 4, Case C-378/93 La Pyramide [1994] ECR I-3999, paragraph 14, and Case C-458/93 Saddik [1995] ECR I-511, paragraph 12).

7
Moreover, the information provided and the questions raised in orders for reference must not only be such as to enable the Court usefully to reply but also such as to give the Governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the EC Statute of the Court of Justice. It is the Court's duty to ensure that the opportunity to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties (judgment in Joined Cases 141/81, 142/81 and 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6, and the order in Saddik , cited above, paragraph 13).

8
The Court has indeed acknowledged that the requirement for the national court to define the factual and legislative context of the questions it is asking is less pressing where the questions relate to specific technical points and enable the Court to give a useful reply even where the national court has not given an exhaustive description of the legal and factual situation (Case C-316/93 Vaneetveld [1994] ECR I-763, paragraph 13).

9
However, that is not the case here.

10
The order for reference contains no indication which meets the abovementioned requirements.

11
Thus, the order for reference contains no indication by the national court of the factual and legal situation in the case before it or of the reasons why it considers that the answers to the questions specified by the defendants in the main proceedings are necessary in order to settle the dispute. The factual and legislative context can be established only by analysing the submissions of the parties to the main proceedings.

12
It must therefore be held, pursuant to Article 92 of the Rules of Procedure, that the questions referred to the Court for a preliminary ruling are manifestly inadmissible.


Costs

13
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

hereby orders:

The request for a preliminary ruling submitted by the Tribunal Cível da Comarca de Lisboa is inadmissible.

Luxembourg, 13 March 1996.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1 –
Language of the case: Portuguese.