H P Bulmer Ltd v J Bollinger SA

A court may request a preliminary ruling from the European Court of Justice only where it considers that a decision on the question is necessary to enable it to give judgment. Possible convenience, economy or shortening of the trial does not satisfy that requirement.

A lower national court has a discretion whether to refer a necessary question. The discretion should be exercised sparingly, particularly where serious doubt or difficulty arises. Ordinarily, the relevant facts and other potentially dispositive issues should be determined first.

An appellate court should interfere with the trial judge’s exercise of that discretion only where it falls outside the generous ambit of reasonable disagreement and is plainly wrong.

English cider producers sought declarations that they could market beverages as “Champagne Cider” and “Champagne Perry”. French champagne producers alleged passing off and counterclaimed for a declaration that the descriptions contravened Community law, relying principally on wine regulations protecting geographical designations.

Before trial, the French producers asked Whitford J to refer two questions to the European Court of Justice. The questions concerned whether the descriptions contravened Community law and whether a national court should refer such a question. The judge declined to make an immediate reference and proposed first to try the action.

The French producers appealed. The central issue was whether either proposed question was then necessary to enable the High Court to give judgment and, if so, whether the judge had wrongly exercised his discretion under article 177(2) of the Treaty of Rome.

1. Appeal dismissed. Stamp LJ adopted the judgment of Stephenson LJ. Lord Denning MR also concluded that Whitford J had correctly refused an immediate reference.

2. Per Stephenson LJ, article 177 permits a ruling at any time before the national court gives judgment. A ruling need not be obtained at the outset. Article 177(2) confers a discretion on a lower court, whereas article 177(3) imposes an obligation upon a court against whose decisions there is no national judicial remedy. Stephenson LJ reserved whether the Court of Appeal could ever fall within article 177(3) where a further appeal required leave.

3. A question may be referred only when its decision is necessary to enable the national court to give judgment. Expediency, convenience, reduced cost or the prospect of shortening the proceedings is insufficient. The proposed question about the wine regulations was premature. The French producers might obtain relief under English passing-off law, making Community law immaterial. Their counterclaim for a declaration did not make the question necessary because declaratory relief remained discretionary.

4. The second proposed question fell outside article 177. Whether article 177(2) confers a discretion is a question of interpretation. How a national court should exercise that discretion is a matter of domestic judicial performance. Any guidance should therefore come from the national courts. A trial judge should refer sparingly, particularly in cases of serious doubt or difficulty, and an appellate court should be slow to conclude that a ruling is needed where the trial judge does not.

5. The ordinary appellate standard applied to the judge’s interlocutory discretion. Intervention was justified only where the decision exceeded the generous ambit within which reasonable disagreement was possible and was plainly wrong. Whitford J considered the proper matters and exercised his discretion correctly. The possibility of a later reference remained open if the Community-law question became necessary after the evidence had been heard.

1. Court of Appeal: The French producers’ appeal was dismissed with costs. The refusal to make an immediate reference to the European Court of Justice was upheld. Leave to appeal to the House of Lords was refused.

2. High Court, Chancery Division: Whitford J refused to refer either proposed question at the preliminary stage. He intended to hear the evidence and determine whether a Community-law ruling became necessary.