In Case C-386/92,
REFERENCE to the Court under Article 177 of the EEC Treaty from the Juge-Commissaire appointed to wind up Monin Automobiles ° Maison du Deux-Roues ("Monin") in the Tribunal de Commerce, Romans (France), for a preliminary ruling on the interpretation of Articles 30 and 85 of the EEC Treaty,
THE COURT,
composed of: O. Due, President, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco, P.J.G. Kapteyn and D.A.O. Edward, Judges,
Advocate General: C.O. Lenz,
Registrar: J.-G. Giraud,
after hearing the Advocate General,
makes the following
Order
1 By order of 14 October 1992, received at the Court on 26 October 1992, the Juge-Commissaire (judge in insolvency proceedings) appointed to wind up Monin in the Tribunal de Commerce, Romans, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty the following questions on the interpretation of Articles 30 and 85 of the Treaty:
"° Does the development of the common policy on the importation of motor vehicles of Asian origin lead to the total extinction of any 'Community interest' in taking proceedings against a Member State which, by introducing unlawful barriers to parallel imports of certain makes of Asian vehicle, admitted into free circulation in other Member States, has caused the undertakings, which are the victims of such practices to be the subject of court liquidation proceedings?
Does such a policy amount to allowing the Community to associate itself with practices of a Member State which are contrary to the Treaty and to legitimizing ex post facto unlawful conduct which takes the form in particular of dual roadworthiness tests designed unreasonably to delay the registration of makes of motor vehicle which are excluded from the agreement known as the 'voluntary restraint' agreement and of the bringing of unlawful criminal proceedings against purchasers of such vehicles and so forth solely on the ground of the 'EEC/Japan' agreement?
° Is a Member State, which, in order to protect its policy of regulating the market in vehicles of Asian origin, organizes that market in an anti-competitive manner by favouring an agreement contrary to Article 85, not liable to incur responsibility, independently of proceedings under Article 169 for failure to fulfil obligations under the Treaty, in particular in regard to undertakings which, because of that Member State' s attitude contrary to the Treaty, have been reduced to filing a petition to be wound up, whereas the national authorities and courts are required to protect the rights which the Treaty confers on individuals?
° Can the introduction of barriers to imports of Japanese or Korean vehicles from Member States where they have been admitted into free circulation be justified by the existence in the market of the Member State in question of a system of voluntary restraint by which five undertakings have undertaken not to exceed a total quota, which they share without competition, on condition that the market is reserved for them, if that system has the aim and effect of totally precluding parallel imports from other Member States and prevents the exercise of commercial activity as an agent?
° Can the delay in registering vehicles presented individually in the absence of type approval for the new vehicle, which is due solely to the administrative requirements and obstacles, be attributed by national courts to the fault of the importer without its constituting an additional barrier to the free movement of goods and to the provisions governing the motor vehicle sector, insofar as the resulting disturbance and financial consequences dissuade consumers wishing to import such vehicles admitted for free circulation in another Member State who are deprived of the possibility of taking advantage of the single market, since their choice is deflected, against their wishes, towards other makes?
° Does a Member State' s policy of regulating imports of cars originating in Asian countries which takes the form of the introduction of a quota reserved for five privileged undertakings, which have agreed to it and benefited from it, enable the infringements of Article 85 to be covered?
In other words, can undertakings benefiting under a system known as 'voluntary restraint' rely on the approval of the Member State in whose territory their agreement operates so as to legitimize it, when the system results inter alia in their being reserved the market, which they share without competition, and in the prohibition of parallel imports?"
2 In its written observations to the Court, the French Government suggests, first, that there may be doubts as to whether in this case the Juge-Commissaire should be regarded as a court or tribunal within the meaning of Article 177 of the EEC Treaty. A reference for a preliminary ruling, even in the form of an order, does not come within the jurisdiction of the Juge-Commissaire since, at this stage, his role is merely to collect and centralize information. Secondly, the French Government denies that there is any dispute with Monin. In the main proceedings, no action pending against the French State before the Juge-Commissaire can be identified within the meaning of the judgment in Case 338/85 Fratelli Pardini [1988] ECR 2041, paragraphs 10 and 11. Finally, in view of the lack of any indication of the grounds on which the order is based and the very general nature of the questions submitted, there are doubts as to the admissibility of the questions submitted, within the meaning of the judgment in Case C-83/91 Meilicke [1992] ECR I-4871.
3 The Commission observes, first, that it is difficult to regard the Juge-Commissaire as a court or tribunal within the meaning of Article 177 of the EEC Treaty (order in Case 138/80 Borker [1980] 1975; order in Case 318/85 Greis Unterweger [1986] ECR 955; judgment in Case 14/86 Pretore di Salň [1987] ECR 2545; and judgment in Fratelli Pardini, cited above). Secondly, there is no dispute pending before the Juge-Commissaire, and, finally, in the absence of factual and legal information it is impossible to establish the connection between the preliminary questions and the subject-matter of the main proceedings (judgment in Meilicke, cited above, and judgment in Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393).
4 The information available to the Court at this stage of the procedure does not enable it to determine whether or not the Juge-Commissaire in this case must be regarded as a court or tribunal within the meaning of Article 177 or whether or not a dispute is pending before him.
5 However, it is not necessary to consider further whether the Court may lack jurisdiction on those grounds since the questions are in any event inadmissible.
6 It must be pointed out that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary 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 (judgment in Telemarsicabruzzo, cited above, paragraph 6).
7 As the Court pointed out in its judgment in Telemarsicabruzzo, cited above, those requirements are of particular importance in certain fields, such as that of competition, which are characterized by complex factual and legal situations.
8 However, the order for reference merely asks the questions set out above without providing any indication whatsoever of their basis.
9 In those circumstances, it must 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
10 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings before the Juge-Commissaire, the decision on costs is a matter for him.
On those grounds,
THE COURT
hereby orders:
Having regard to the questions submitted to it by the Juge-Commissaire appointed to wind up Monin, by order of 14 October 1992, the request for a preliminary ruling is inadmissible.
Luxembourg, 26 April 1993.
