CJEC, 5th chamber, June 11, 1987, No 14-86

The court (fifth chamber)

1 By order of 13 january 1986, which was received at the court on 21 january 1986, the pretore de salo referred to the court for a preliminary ruling under article 177 of the eec treaty a question on the interpretation of council directive 78-659 of 18 july 1978 on the quality of fresh waters needing protection or improvement in order to support fish life (official journal l 222, p. 1).

2 Those questions were raised in criminal proceedings against persons unknown concerning certain offences contrary to a number of legislative provisions relating to the protection of waters.

3 The proceedings were initiated following a report submitted by an anglers' association as a result of the death of many fish in the river chiese, due essentially to the many dams placed in the river for hydro-electric and irrigation purposes, which were said to cause significant and sudden changes in the water level. Other anglers' associations had already submitted reports on the same matters and on the discharge of noxious substances into the same river, but it had been decided that no action was to be taken on those reports.

4 In the context of the preparatory inquiry in the aforementioned criminal proceedings, the Pretore di Salò considered it necessary to refer the following questions to the court of justice:

"1. Is the existing system of rules established by the italian republic for the protection of waters from pollution consistent with the principles and quality objectives laid down in directive 78-659-eec of 18 july 1978 on the quality of fresh waters needing protection or improvement in order to support fish life?

2. Do the quality objectives, as laid down in the directive, presuppose the comprehensive management of water resources - that is to say a system of regulating the discharge and the volume of water - and, consequently, the need for rules which apply to water basins or watercourses and are capable of ensuring a constant flow with a view to preserving the minimum volume of water which is essential for the development of fish species?"

5 Reference is made to the report for the hearing for the facts of the case, the course of the procedure and the observations submitted by the italian government and by the commission, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the court.

6 Without expressly arguing that the court does not have jurisdiction to reply to the questions referred to it, the italian government draws the court' s attention to the nature of the functions performed in this case by the pretore, which are both those of a public prosecutor and those of an examining magistrate. The pretore carries out preliminary investigations in his capacity as public prosecutor and, where these disclose no grounds for continuing the proceedings, makes an order accordingly in the place of an examining magistrate. That order is not a judicial act because it cannot acquire the force of res judicata or create an irreversible procedural situation and because no reasons need be given for it, whereas article 111 of the italian constitution imposes an obligation to state reasons in the case of judicial acts.

7 It must be observed that the pretori are judges who, in proceedings such as those in which the questions referred to the court in this case were raised, combine the functions of a public prosecutor and an examining magistrate. The court has jurisdiction to reply to a request for a preliminary ruling if that request emanates from a court or tribunal which has acted in the general framework of its task of judging, independently and in accordance with the law, cases coming within the jurisdiction conferred on it by law, even though certain functions of that court or tribunal in the proceedings which gave rise to the reference for a preliminary ruling are not, strictly speaking, of a judicial nature.

8 At the hearing, the italian government also maintained that, having regard to the present stage of the proceedings, at which the facts have not been sufficiently established and those who may be responsible have not yet been identified, a reference for a preliminary ruling is premature.

9 The commission considers that the reference for a preliminary ruling is inadmissible because in criminal proceedings against persons unknown it is possible that a decision may never be given on the substance of the case. All that is required for that to be the case is for those responsible never to be identified. At the hearing, the commission also relied on another argument in support of the proposition that the court does not have jurisdiction: if, after the court' s decision, the persons responsible were identified, they would be prevented from defending before the court the interpretation of community law most in conformity with their interests. That would constitute a violation of the right to a fair hearing.

10 It must be pointed out first that, as the court decided in its judgment of 10 march 1981 (joined cases 36 and 71-80 irish creamery milk suppliers' association v ireland ((1981)) ecr 735), if the interpretation of community law is to be of use to the national court, it is essential to define the legal context in which the interpretation requested should be placed. In that perspective, it might be convenient in certain circumstances for the facts of the case to be established and for questions of purely national law to be settled at the time when the reference is made to the court of justice so as to enable the latter to take cognizance of all the matters of fact and law which may be relevant to the interpretation of community law which it is called upon to give.

11 However, as the court has already held (see the same judgment and, most recently, the judgment of 20 july 1984 in case 72-83 campus oil v minister for industry and energy ((1984)) ecr 2727), those considerations do not in any way restrict the discretion of the national court, which alone has a direct knowledge of the facts of the case and of the arguments of the parties, which will have to take responsibility for giving judgment in the case and which is therefore in the best position to appreciate at what stage of the proceedings it requires a preliminary ruling from the court of justice. The decision at what stage in proceedings a question should be referred to the court of justice for a preliminary ruling is therefore dictated by considerations of procedural economy and efficiency to be weighed only by the national court and not by the court of justice.

12 It should also be pointed out that the court has consistently held that the fact that judgments delivered on the basis of references for a preliminary ruling are binding on the national courts does not preclude the national court to which such a judgment is addressed from making a further reference to the court of justice if it considers it necessary in order to give judgment in the main proceedings. Such a reference may be justified when the national court encounters difficulties in understanding or applying the judgment, when it refers a fresh question of law to the court, or again when it submits new considerations which might lead the court to give a different answer to a question submitted earlier (see, most recently, the order of 5 march 1986 in case 69-85 wuensche v federal republic of germany ((1986)) ecr 947).

13 It follows that where the accused are identified after the reference for a preliminary ruling and if one of the abovementioned conditions arises, the national court may once again refer a question to the court of justice and thereby ensure that due respect is given to the right to a fair hearing.

14 In those circumstances, the objections raised by the commission and the italian government concerning the jurisdiction of the court must be rejected.

First question

15 As the court has consistently held, it may not, in proceedings under article 177 of the eec treaty, rule on the conformity of national measures with community law (see, most recently, the judgment of 9 october 1984 in joined cases 91 and 127-83 heineken brouwerijen v inspecteurs der vennootschapsbelasting ((1984)) ecr 3435).

16 The court may, however, extract from the wording of the questions formulated by the national court, and having regard to the facts stated by the latter, those elements which concern the interpretation of community law for the purpose of enabling that court to resolve the legal problems before it. In this case, however, in view of the generality of the question and the absence of any specific elements which would make it possible to identify the doubts entertained by the national court, it is not possible for the court to reply to the question referred to it.

Second question

17 According to the national court' s order for reference, the community rules are relevant to the questions of criminal law raised before it "in view of the fact that such rules constitute an essential basis for the criteria to be applied in the investigation, in view of their decisive importance for the purpose of the requirements laid down by the rules of criminal law in force and in view of the undeniable possibilities which may emerge from the directive of broadening the sphere of the protection afforded by the criminal law ".

18 The national court is therefore essentially seeking to ascertain whether directive 78-659 may, of itself and independently of the internal law of a member state, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive.

19 In that regard, the court has already held in its judgment of 26 february 1986 in case 152-84 marshall v southampton and south-west hampshire area health authority (teaching) ((1986)) ecr 723 at p. 737) that "a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person ". A directive which has not been transposed into the internal legal order of a member state may not therefore give rise to obligations on individuals either in regard to other individuals or, a fortiori, in regard to the state itself.

20 Consequently, the reply to the second question must be that council directive 78-659 of 18 july 1978 cannot, of itself and independently of a national law adopted by a member state for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive.

Costs

21 The costs incurred by the italian government and by the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision as to costs is a matter for that court.

On those grounds,

The court (fifth chamber),

In answer to the questions referred to it by the Pretore di Salò by order of 13 january 1986, hereby rules:

Council directive 78-659 of 18 july 1978 cannot, of itself and independently of a national law adopted by a member state for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive.