CJEC, October 27, 1982, No 35-82

THE COURT

1 By judgments dated 15 january 1982 which were received at the court on 21 january 1982 the hoge raad der nederlanden (supreme court of the Netherlands) referred to the court for a preliminary ruling under article 177 of the eec treaty two questions, which are the same in both joined cases, as to the interpretation of, first, the third paragraph of article 177 of the eec treaty and, secondly, article 10 of regulation (eec) no 1612-68 of the council of 15 october 1968 on freedom of movement for workers within the community (official journal, english special edition 1968 (ii), p. 475).

2 The applicants in the main proceedings, mrs Morson and mrs Jhanjan, who are nationals of suriname, applied for permission to reside in the Netherlands in order to take up residence with their daughter and son respectively, who are Netherlands nationals of whom they are dependants. According to the papers before the court the daughter and son hold employment in the Netherlands but have never been employed in another member state. Their applications were refused by the secretary of state for justice whereupon mrs Morson and mrs Jhanjan lodged with him requests for review.

3 As a general rule under Netherlands legislation on aliens such applications for review suspend deportation orders. However, the secretary of state for justice may refuse to give such applications suspensory effect in which case an interlocutory application may be made to the court or judge ordinarily having jurisdiction. The relevant interlocutory proceedings are governed by articles 289 to 297 of the wetboek van burgerlijke rechtsvordering (Netherlands code of civil procedure), article 292 of which provides that ' ' provisionally enforceable decisions shall be without prejudice to the main proceedings ' '.

4 In this case the applicants in the main proceedings sought an interlocutory injunction restraining the Netherlands state from deporting them at least until their application for review had been decided at the highest instance. They relied on article 10 (1) of rgulation no 1612-68, cited above, which gives certain members of a worker ' s family, including dependent relatives in the ascending line, the right to install themselves with the worker if he is a national of one member state and employed within the territory of another member state. They also relied on the prohibition of discrimination embodied in articles 7 and 48 of the eec treaty.

5 The hoge raad, with which mrs Morson and mrs Jhanjan lodged appeals on a point of law in the interlocutory proceedings, considered that the decision to be given depended on the interpretation of provisions of community law and submitted the following questions for a preliminary ruling:

' ' 1. On an application for an interlocutory injunction, is the hoge raad obliged, pursuant to the third paragraph of article 177 of the treaty establishing the european economic community, when a question of interpretation within the meaning of the first paragraph of that article is raised in an appeal on a point of law, to refer the matter to the court of justice for a preliminary ruling, having regard to the fact that a judgment of the hoge raad delivered on an application for an interlocutory injunction is not binding on a court which later has to deal with the substance of the case. If this question cannot be answered generally in the negative or affirmative, what are the circumstances which determine whether such an obligation should be deemed to exist?

2. Does article 10 of regulation (eec) no 1612-68 of the council of 15 october 1968 on freedom of movement for workers within the community, whether or not in conjunction with other provisions of community law, prevent a member state from refusing to admit a relative mentioned in article 10 (1) of the regulation, of a worker employed within the territory of that member state, where the relative wishes to take up residence there with that worker, if the worker has the nationality of the state in which he works and the relative has another nationality?

' '

First question

6 In substance the first question seeks to ascertain whether the third paragraph of article 177 of the eec treaty must be construed as meaning that a court or tribunal of a member state against whose decisions there is no judicial remedy under national law must refer to the court a question of interpretation as referred to in the first paragraph of that article if the question is raised in interlocutory proceedings and the decision to be given is not binding on the court or tribunal which later has to deal with the substance of the case even if that court or tribunal belongs to a different jurisdictional system.

7 The second paragraph of article 177 provides that a court or tribunal of a member state before which is raised a question of interpretation or validity as mentioned in the first paragraph of that article may request the court to give a preliminary ruling on the question if it considers that a decision thereon is necessary to enable it to give judgment. However, the third paragraph of article 177 provides that where any such question is raised before a national court or tribunal against whose decisions there is no judicial remedy under national law that court or tribunal must bring the matter before the court.

8 As the court has already held in its judgment of 24 may 1977 in case 107-76 Hoffmann-la Roche (1977) ecr 957, the purpose of article 177 is to ensure that community law is interpreted and applied in a uniform manner in all the member states. Viewed in that light the particular purpose of the third paragraph of article 177 is to prevent a body of national case-law that is not in accord with the rules of community law from coming into existence in any member state. The requirements arising from that purpose are observed as regards summary and urgent proceedings such as those in the present case, where ordinary proceedings as to the substance, permitting the re-examination of any question of community law provisionally decided in the summary proceedings, must be instituted either in all the circumstances or when the unsuccessful party so requires.

9 Therefore the specific objective underlying the third paragraph of article 177 is preserved if the obligation to refer preliminary questions to the court applies within the context of proceedings as to the substance even if that action is tried before the courts or tribunals belonging to a jurisdictional system different from that under which the interlocutory proceedings are conducted, provided that it is still possible to refer to the court under article 177 any questions of community law which are raised.

10 The answer to the first question submitted by the hoge raad must therefore be that the third paragraph of article 177 of the eec treaty must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law is not required to refer to the court a question of interpretation as referred to in the first paragraph of that article if the question is raised in interlocutory proceedings and the decision to be taken is not binding on the court or tribunal which later has to deal with the substance of the case, provided that each of the parties is entitled to institute proceedings or to require proceedings to be instituted on the substance of the case even before the courts or tribunals of another jurisdictional system and that during such proceedings any question of community law provisionally decided in the summary proceedings may be re-examined and be the subject of a reference to the court under article 177.

Second question

11 In substance the second question seeks to ascertain whether, and if so in which circumstances, community law prohibits a member state from refusing to allow a relative, as referred to in article 10 of regulation no 1612-68 cited above, of a worker employed within that member state ' s territory to enter or reside within its territory if the worker has the nationality of that state and the relative the nationality of a non-member country.

12 Article 48 of the treaty provides that freedom of movement of workers within the community is to entail the abolition of any discrimination based on nationality between workers of the member states. Article 10 of regulation no 1612-68 of the council of 15 october 1968 on freedom of movement for workers within the community, cited above, provides that specified members of a worker ' s family, including dependent relatives in the ascending line, ' ' shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one member state and who is employed in the territory of another member state ' '.

13 Since that provision does not cover the position of dependent relatives of a worker who is a national of the member state within whose territory he is employed, the answer to the preliminary question depends on whether it may be inferred from the context of the provisions and the place which they occupy in the community legal system as a whole that they have a right of entry and residence.

14 In this regard the applicants in the main proceedings rely on the rule prohibiting discrimination on grounds of nationality which article 7 of the treaty enunciates in general terms and to which article 48 gives more specific expression.

15 It is however clear that article 7 and article 48 may be invoked only where the case in question comes within the area to which community law applies, which in this case is that concerned with freedom of movement of workers within the community. Not only does that conclusion emerge from the wording of those articles, but it also accords with their purpose, which is to assist in the abolition of all obstacles to the establishment of a common market in which the nationals of the member states may move freely within the territory of those states in order to pursue their economic activities.

16 It follows that the treaty provisions on freedom of movement for workers and the rules adopted to implement them cannot be applied to cases which have no factor linking them with any of the situations governed by community law.

17 Such is undoubtedly the case with workers who have never exercised the right to freedom of movement within the community.

18 The answer to the second question submitted by the hoge raad must therefore be that community law does not prohibit a member state from refusing to allow a relative, as referred to in article 10 of regulations no 1612-68 of the council of 15 october 1968 on freedom of movement for workers within the community, of a worker employed within the territory of that state who has never exercised the right to freedom of movement within the community to enter or reside within its territory if that worker has the nationality of that state and the relative the nationality of a non-member country.

Costs

19 The costs incurred by the governments of the Netherlands and the united kingdom and by the commission, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of 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,

In answer to the questions submitted to it by the hoge raad der nederlanden by judgments of 15 january 1982, hereby rules:

1. The third paragraph of article 177 of the eec treaty must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law is not required to refer to the court a question of interpretation as referred to in the first paragraph of that article if the question is raised in interlocutory proceedings and the decision to be taken is not binding on the court or tribunal which later has to deal with the substance of the case, provided that each of the parties is entitled to institute proceedings or to require proceedings to be instituted on the substance of the case even before the courts or tribunals of another jurisdictional system and that during such proceedings any question of community law provisionally decided in the summary proceedings may be re-examined and be the subject of a reference to the court under article 177.

2. Community law does not prohibit a member state from refusing to allow a relative, as referred to in article 10 of regulation no 1612-68 of the council of 15 october 1968 on freedom of movement for workers within the community, of a worker employed within the territory of that state who has never exercised the right to freedom of movement within the community to enter or reside within its territory if that worker has the nationality of that state and the relative the nationality of a non-member country.