Dzodzi decision

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The Dzodzi decision is a judgment of the European Court of Justice of October 18, 1990. This decision is relevant to the question of how far the European Court of Justice can also rule in cases for which national law declares European law provisions to be applicable, although European law does not regulate the matter directly. The judgment is therefore important for the delimitation of the material jurisdiction of the European Court of Justice and thus also for the scope of the effect of European law . The European Court of Justice ruled that he had the competence to rule in the preliminary ruling procedure when courts of the Member States bring cases to him and he does not examine whether this submission is based on a purely internal legal dispute. The so-called Dzodzi case law of the European Court of Justice ties in with this judgment .

facts

It was in the legal dispute submitted to the Court of Justice by the Cour d'appel Brussels by order of May 16, 1989, concerning the right of residence and residence of the Togolese nationals Massam Dzodzi. She was the widow of a Belgian national. The couple married on February 14, 1987 in Belgium. After the marriage, Ms. Dzodzi submitted an unsuccessful application for a residence permit. Shortly afterwards, the couple went to Togo without informing the Belgian authorities. Shortly after Ms. Dzodzi's husband returned to Belgium, he passed away on July 28, 1987.

Article 40 of the then applicable Belgian law on the entry, residence, settlement and expulsion of foreigners provided for the following regulation:

"Unless otherwise stipulated in this law, [...] the following persons, regardless of their nationality, are treated as foreign nationals: 1. their spouse; [...] The foreign spouses of a Belgian [...] "

Ms. Dzodzi made further applications for a longer residence permit, but these were rejected. Finally, they were ordered to leave Belgium. She appealed against this to the Tribunal de première instance Brussels , which suspended the proceedings and submitted it to the ECJ in a preliminary ruling procedure on October 5, 1988. Ms Dzodzi had relied on Commission Regulation (EEC) No 1251/70 of 29 June 1970, which was still in force at the time, on the right of workers to remain on the territory of a Member State after employment had ended .

She appealed against the order to the Cour d 'appel in Brussels, as the court had not ruled on the admissibility of the action and had not granted interim legal protection . The Court of Appeal was the Kingdom of Belgium, by order of 16 May 1989 to grant Massam Dzodzi until full completion method a right of residence and put in his turn to the European Court of Justice the dispute for a preliminary ruling.

Opinions and Opinions

Both the European Commission and Belgium assumed in their statements that European law was not applicable to the case, as it was a purely internal matter for the Belgian state. The Kingdom of Belgium therefore assumed that the European Court of Justice did not have jurisdiction over such cases. The Commission requested that the Court of Justice determine that the provisions of European law were not applicable.

The Advocate General Marco Darmon assumed that there was “no Community law outside the scope of Community law”; referring national law to Community law would not result in an extension of the scope of Community law. He warned emphatically against expanding the scope of European law to include purely internal matters.

Decision of the court

The court first had to decide on its jurisdiction before it could decide on the matter.

Jurisdiction

According to Art. 234 of the Treaty establishing the European Community (EGV), the European Court of Justice has exclusive jurisdiction to interpret European law, but not to interpret the national law of the member states. However, Belgium's immigration law was initially domestic Belgian law.

The European Court of Justice ruled that a submission and thus the procedure according to Article 177 of the EC Treaty (since the Treaty of Amsterdam Article 234 of the EC Treaty ) was permissible. He assumed that the purpose of this regulation in the EC Treaty was the cooperation between the courts of the member states of the European Union and the European Court of Justice. It is in principle the responsibility of the national courts to decide on the necessity of a referral order for the issuance of a judgment and the relevance of the decision . The European Court of Justice then had to decide if a submission was made. In particular, it is the purpose of Art. 234 (ex-177) of the EC Treaty to ensure uniform application of European law, regardless of the reasons for which they are applied. An exception to this only applies if the decision is a purely fictitious legal dispute or the inapplicability of European law is obvious. In such cases the preliminary ruling procedure would be misused.

The European Court of Justice is only empowered to rule on the interpretation of European law. The respective national courts have to assess what effects referrals have in national law - for example how broadly such a referral should be understood.

The consequence of this is that, strictly speaking, the legal norms of the Member States are interpreted by the Court of Justice.

Decision on the matter

The European Court of Justice ruled that the directives to which Massam Dzodzi relied served to enforce the free movement of workers . In order for these to be applicable, it should not be a purely internal issue in a member state. Such a purely internal case exists if a citizen of a third country invokes his status as the spouse of a citizen of a member state in order to settle in that same member state.

Dzodzi case law

The European Court of Justice followed the line taken in the Dzodzi decision with the decision, already issued shortly thereafter, on a submission by the Federal Fiscal Court in the legal dispute between the art dealer Gmurzynska-Bscher and the Oberfinanzdirektion Köln on a question about the Common Customs Tariff of the European Customs Union and confirmed it in the Tomatis case / Fulchirone . In the Federconsorzi decision and the Founier decision, the Court of Justice extended the case law to cases in which not the legal norms but contractual provisions between private individuals refer to Community law. With the Angonese decision of June 6, 2000, the European Court of Justice applied the principles of the Dzodzi case law to a case where no express reference was made to European law , but a general clause in Italian law that annulled such private regulations that were contrary to mandatory provisions Violate the law.

In 1995, the European Court of Justice ruled in a legal dispute between Kleinwort Benson and the City of Glasgow in a case relating to the European Convention on Jurisdiction and Enforcement (EuGVÜ). The British legislature adopted Article 5 of the Brussels Convention almost word for word to delimit the jurisdiction of the English and Scottish jurisdictions . The European Court of Justice ruled that the British regulation contained no direct and unconditional reference, but that the Brussels Convention only served as a model. Because of the lack of binding effect of a decision of the Court of Justice, he is not competent in such cases. As a result, it was controversial in the specialist literature whether the European Court of Justice had given up its Dzodzi case law. In 1997, with the Leur Bloem ruling and the Giloy ruling issued at the same time, the Court of Justice expressly confirmed that it adhered to the principles of the Dzodzi ruling and clarified the case law in contrast to the Kleinwort Benson case. In both decisions, the Court emphasized that the British legislature had only taken the Brussels Convention as a model, and that the Brussels Convention also left national legislators a margin of maneuver.

The European Court of Justice now regards the Dzodzi case law as permanent case law.

Effects

The expansion of jurisdiction to include matters not directly regulated by European law resulted in an increased development towards a uniform interpretation and application of European law with a considerable impact on the national legal systems of the member states. This accelerated the harmonization of law within the Union. This is especially true since the European Court of Justice requires interpretation and application priority over the national law of the member states in its case law. In German law, for example, parts of accounting law , general terms and conditions law , commercial law , copyright law or sales tax law are potentially affected by the Dzodzi case law .

Although the Court of Justice has not expressly formulated an obligation to make a reference in addition to the national courts' right to make submissions, the literature assumes that the Supreme Courts are actually obliged to make submissions under Article 234 of the EC Treaty. The German supreme court case law rejects such a submission obligation and emphasizes that the ECJ left the decision on submission to the national courts alone.

criticism

The Dzodzi case law met with criticism from the Advocates General of the European Court of Justice. After an analysis of the Dzodzi case law, Advocate General Jacobs submitted in his joint final motion in the Giloy and Leur-Bloem cases that the basic assumption of the Dzodzi decision was already incorrect, namely that a uniform interpretation of European law regulations and similar regulations of the member states is necessary . Even if a national court interprets domestic regulations that refer to Community law differently, it is clear that it is only a matter of the decision of a national court, not that of a European court. Art. 234 (at that time still Art. 177) of the EC Treaty also expressly provides for the exclusive competence of the national courts to interpret national law. The European Court of Justice is ultimately not in a position to adequately judge the integration into the national legal order.

Mathias Habersack and Christian Mayer criticize the Dzodzi jurisprudence that, according to Article 7 of the EC Treaty, bodies of the European Community only have competencies if these are directly assigned by the contract itself. However, Art. 234 of the EC Treaty does not give the European Court of Justice any competence to decide national law. The view of the Court of Justice would presuppose that the legislature of the member states is empowered to rule on the scope of European law by referral. However, there are no indications for this either in European law or in the legal systems of the member states. The European Court of Justice based its case law on the fact that it was only authorized to interpret Community law. But this is not the case. The Kleinwort Benson case , in which the ECJ had denied its jurisdiction, also shows that a uniform interpretation of Community law is also possible by the courts of the member states. Ultimately, an interpretation of Community law by the ECJ and the national courts would be able to provide valuable mutual suggestions. This is countered by the fact that the member states should not be prevented from voluntarily expanding the scope of European law. In such cases, the European Court of Justice only provides its ability to interpret Community law within the framework of the mutual duty of loyalty under Article 10 of the EC Treaty. The concept of minimum harmonization of EC directives requires that the national legislature be given the power to expand the scope of European law if necessary.

literature

Individual evidence

  1. ↑ Rs C-297/88, C-197/89 ; ECJ Coll. I 1990, 3763.
  2. ↑ Ehricke in: Rudolf Streinz (Ed.), EUV, EGV - Treaty on European Union and Treaty establishing the European Community ( Commentary ), Verlag CH Beck , Munich 2003, ISBN 3-406-48457-3 , Art. 234 EGV RdNr. 15th
  3. ↑ Moniteur belge of December 31, 1980, p. 14584.
  4. ↑ Regulation (EEC) No. 1251/70 of the Commission of June 29, 1970 , OJ. L 142 of June 30, 1970, pp. 24-26; meanwhile repealed and replaced by Regulation (EC) No. 635/2006 of April 25, 2006 , ABl. L 112 of April 26, 2006, pp. 9-9.
  5. ↑ ECJ Coll. 1990 I, p. 3763 , marginal no. 11.
  6. ↑ ECJ Coll. 1990 I, p. 3763 , paragraph no. 11-15.
  7. ↑ Klaus-Dieter Borchardt in: Lenz / Borchardt, EU and EC Treaty , 4th edition, Bundesanzeiger-Verlag, Cologne 2006, ISBN 3-89817-506-5 , Art. 234 EGV, RdNr. 19; Gaitanides in: von der Groeben / Schwarze , Commentary on the Treaty on European Union and the Foundation of the European Community Volume 4 - Art. 189-314 EGV, 6th edition, Nomos Verlag , Baden-Baden 2004, ISBN 3-7890- 8779-3 , Art. 234 EGV No. 27, 28.
  8. ↑ ECJ Coll. 1990 I, p. 3763 , paragraph no. 31 - 41.
  9. ↑ ECJ Coll. 1990 I, p. 3763 , paragraph no. 42 and 54.
  10. ↑ Klaus-Dieter Borchardt in: Lenz / Borchardt, EU and EC Treaty , 4th edition, Bundesanzeiger-Verlag, Cologne 2006, ISBN 3-89817-506-5 , Art. 234 EGV, RdNr. 22nd
  11. ↑ ECJ Coll. 1990 I, p. 3763 , paragraph no. 20-28
  12. ^ Judgment of November 8, 1990, Rs. C-231/89, ECJ Coll. I 1990, p. 4003 .
  13. ↑ Case C-384/89, judgment of January 24, 1991, ECJ Coll. I 1991, p. 127 .
  14. ↑ Judgment of June 25, 1992, Case C-88/91 EGH Coll. I 1992, p. 4035 .
  15. ↑ Judgment of November 12, 1992, Case C-73/89, ECJ Coll. I 1992, p. 5621 .
  16. ↑ Judgment of June 6, 2000, Case C-281/98, ECJ Coll. I 2000, p. 4139 .
  17. ↑ Art. 1418 Codice Civile (CC).
  18. ↑ Torsten Körber , Fundamental Freedoms and Private Law (Habilitation), Mohr Siebeck, Tübingen 2004, ISBN 978-3-16-148357-8 , pp. 72, 73.
  19. ↑ a b Judgment of March 28, 1995, Case C-346/93, ECJ Coll. I 1995, p. 615 .
  20. ↑ Cf. the presentation of the discussion by Jan Kropholler / Jan von Hein, An interpretation competence of the European Court of Justice beyond the European Jurisdiction and Enforcement Convention in: Ulrich Hübner / Werner F. Ebke Festschrift for Bernhard Großfeld on his 65th birthday , Verlag Recht und Wirtschaft, 1999 , ISBN 3-8005-1207-6 , p. 615 (621, 622) and by Mathias Habersack / Christian Mayer, The excessive implementation of guidelines , JZ 1999, 912 (917, 918).
  21. ↑ Judgment of July 17, 1997, Case C-28/95, ECJ Coll. I 1997, p. 4161 .
  22. ↑ Judgment of July 17, 1997, Case C-130/95, ECJ Coll. I 1997, p. 4291 .
  23. ↑ Judgment of November 26, 1998, Case C-7/97, ​​ECJ Coll. I 1998, 7791 (Oscar Bronner), No. 16.
  24. ^ Mathias Habersack / Christian Mayer, The excessive implementation of guidelines , JZ 1999, 912.
  25. ↑ BGH NJW-RR 2005, 191.
  26. ↑ a b Bundesfinanzhof , decision of September 9, 1998, Az. IR 6/96  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , DB 1999, 259.@1@ 2Template: Toter Link / www.der-betrieb.de  
  27. ^ Kai Krieger, The interpretation of German law in conformity with Community law (dissertation), LIT Verlag, Berlin / Hamburg / Münster, 2005, ISBN 3-8258-8457-0 , pp. 347-350.
  28. ↑ Joined Opinion of September 17, 1996, Case C-28/95 (Leur-Bloem) and C-130/95 (Giloy), ECJ Coll. I 1997, p. 4161 .
  29. ↑ nosebag / Mayer, The Excessive implementation of directives , JZ 1999, 912 (919/920).
  30. ↑ nosebag / Mayer, The Excessive implementation of directives , JZ 1999, 912 (920/921).
  31. ↑ Halvard H. Fredriksen :, The cooperation between the ECJ and German civil courts in the light of the preliminary ruling procedure according to Art. 234 of the EC Treaty in: Institute for International Law of the University of Göttingen, Department of European Law - Göttinger Online Contributions to European Law, No. 26, p. 31  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. .@1@ 2Template: Toter Link / www.europarecht.uni-goettingen.de