In Case C-428/93,
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, 85 and 169 of the EEC Treaty and of the principle of proportionality and the principle of free movement of goods,
THE COURT,
composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida, M. Diez de Velasco and D.A.O. Edward (Presidents of Chambers), C.N. Kakouris, R. Joliet, F.A. Schockweiler, G.C. Rodríguez Iglesias (Rapporteur), F. Grévisse, M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,
Advocate General: C.O. Lenz,
Registrar: R. Grass,
after hearing the Opinion of the Advocate General,
makes the following
Order
1 By order of 1 July 1993, received at the Court on 25 October 1993, the Juge-Commissaire (judge in insolvency proceedings) appointed to wind up Monin, judge at the Tribunal de Commerce (Commercial Court), Romans, referred the following questions for a preliminary ruling under Article 177 of the EEC Treaty:
"1. 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 vehicles, 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 Community law cover unlawful conduct on the part of a Member State which takes the form in particular of dual roadworthiness tests designed unreasonably to delay the registration of makes of motor vehicles 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, etc, solely on the ground of the 'EEC/Japan' agreement?
2. Is a Member State which, in order to protect its system (not provided for under the Treaty) 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 liability, independently of proceedings under Article 169 for failure to fulfil obligations under the Treaty, in particular with regard to undertakings which, because of that State' s attitude contrary to the Treaty, have been reduced to filing a winding-up petition, whereas the national authorities and courts are required to protect the rights which the Treaty confers on individuals?
3. Can the introduction of barriers to imports of Japanese and 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 preventing the carrying on of business as an agent?
4. 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 constituting an additional barrier to the free movement of goods and to the provisions governing the automotive sector, in so far as the resulting disturbance and financial consequences dissuade customers who wish to import such vehicles, admitted for free circulation in another Member State, and who are deprived of the possibility of taking advantage of the single market, since their choice is deflected, against their wishes, towards other makes?
5. 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 benefit 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 is exercised 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?
6. Is it not necessary, in order to comply with the principles of proportionality and free movement of goods, to ensure that the formalities governing individual approval and registration laid down in the importing State are reduced to a minimum if the vehicles are the subject of type approval in another Member State?"
2 Those questions are partly the same as those previously referred to the Court by the same Juge-Commissaire in the case in which the order of 26 April 1993 was made, Case C-386/92 Monin Automobiles [1993] ECR I-2049. In that order the Court held that the request for a preliminary ruling was inadmissible on the ground that the order for reference merely stated the questions referred for a preliminary ruling without giving any indication whatever of the context in which they arose.
3 In the order for reference in the present case, the Juge-Commissaire starts by describing the position of Monin. Monin was a company which specialized in the distribution of makes of Asian vehicles which were not accredited in the "voluntary restraint" system, under which a ceiling of 3% of annual registrations was placed on the entry into France of vehicles of Japanese origin. Monin was consequently forced to have recourse to parallel imports. Since the vehicles imported from other Member States had already been registered, they were regarded as second-hand vehicles and therefore had to be approved on an individual basis. The French administrative authorities did not carry out such approvals within a reasonable time, so that motorists who had been unable to have their vehicles registered within the statutory two-month period were prosecuted by the police. Faced with a large number of requests by purchasers for rescission of the sale contract, refund of the money paid and damages, Monin was forced to cease trading. Those difficulties gave rise to the institution by order of the Tribunal de Commerce, Romans, of 7 March 1990 of proceedings for compulsory reconstruction of the company.
4 The Juge-Commissaire then states that he constitutes a court or tribunal and that there is a case before him concerning the application of Community law. That dispute is between Monin and its creditors. Monin claims that the Juge-Commissaire cannot order it to be wound up "without first receiving a reply to the question whether the cessation of payments was attributable to unlawful conduct on the part of the French authorities and the five privileged importers with respect to the application of Article 85 and 30 of the Treaty, conduct which might mean compensation was payable by the State and/or the parties to the agreement". The creditors, on the other hand, argue that "the company has been kept alive artificially for long enough and should be wound up without further delay". The Juge-Commissaire thus has to resolve the dispute by a judicial decision.
5 The Juge-Commissaire observes, finally, that there is a legal connection between the questions referred and the proceedings before him, since the interpretation requested will enable him to assess the cogency of Monin' s argument that it should be kept in existence artificially until the close of the winding-up proceedings. It will enable him to decide whether the arguments based on Community law are used purely to gain time. While the answers to the questions may indeed be of use to the administrative court dealing with the problem, they are also of some relevance for the application of the rules governing the collective insolvency procedure, which is a matter for him. If in the absence of an interpretation of the rules of Community law in question, the Juge-Commissaire orders the company to be wound up, his decision will have the effect of definitively concluding the proceedings in progress, so that Monin, having been wound up, will no longer have legal existence and will no longer be able to plead infringement of the Treaty or obtain compensation for the damage it has suffered.
6 In its written observations submitted to the Court, the French Government proposes, firstly, that the Court should consider whether the Juge-Commissaire is to be regarded in the present case as a court or tribunal within the meaning of Article 177 of the EEC Treaty. Since the company was ordered to be wound up by a final judgment of the Tribunal de Commerce, Romans, of 4 April 1990, the function of the Juge-Commissaire is limited at this stage to the collection and coordination of information, as only the Tribunal de Commerce has jurisdiction to issue the judgment closing the proceedings.
7 The French Government argues, secondly, that in the present case there are no "proceedings" for the purposes of Article 177 of the Treaty, since there has been no procedural act bringing a specific claim before the Juge-Commissaire and under Article 177 the Juge-Commissaire can put a question to the Court only if that is necessary to enable him to give judgment in proceedings pending before him.
8 The Commission notes, firstly, that in his function of supervising the proceedings, the Juge-Commissaire has two kinds of powers, judicial ones and purely administrative ones. There is nothing in the order for reference to show that in the present case the Juge-Commissaire has a decision to make which comes under the former category.
9 Secondly, the Commission considers that for a reference to be admissible, there must be proceedings pending before the national court and the answer to the problem of interpretation must be necessary for resolving those proceedings. The Commission does not accept that in this case there are any real proceedings as described by the Juge-Commissaire in the order for reference. The order gives no information as to the identity of the creditors referred to, the subject-matter of their claims or the content of their arguments.
10 Thirdly, the Commission submits that this is actually a case of an abuse of process. The Court has held that a request for a preliminary ruling must be rejected if it is quite obvious that the interpretation sought bears no relation to the subject-matter of the main action or is not objectively required in order to resolve that action (see the order in Case C-286/88 Falciola [1990] ECR I-191).
11 The Commission argues, finally, that the issues in the main proceedings are not set out sufficiently clearly, despite the order of inadmissibility of 26 April 1993, cited above. That requirement cannot be considered as satisfied by the account of the factual and legal background of proceedings which are not before the Juge-Commissaire who made the reference.
12 The questions referred for a preliminary ruling concern the interpretation of Articles 30, 85 and 169 of the EEC Treaty, the principle of proportionality and the principle of free movement of goods.
13 It must be held that although he states that there is a legal connection between the questions referred and the proceedings before him, the Juge-Commissaire does not have to apply those rules of law in the winding-up proceedings.
14 The importance attached by the Juge-Commissaire to the answers to the questions is bound up with the assessment of the chances of success of an action by Monin to establish the liability of the French authorities and of proceedings before the Conseil de la Concurrence (Competition Board). Neither of those actions, however, has been brought before the Juge-Commissaire, nor indeed could they be.
15 In those circumstances it must be held that the questions referred to the Court for a preliminary ruling do not involve an interpretation of Community law objectively required for the decision to be taken by the Juge-Commissaire.
16 Consequently, applying its consistent case-law (see the judgment in Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563 and the order in Falciola, cited above), the Court manifestly has no jurisdiction to rule on the questions submitted by the Juge-Commissaire at the Tribunal de Commerce, Romans.
17 Article 92 of the Rules of Procedure must therefore be applied, and it must be held that the Court has no jurisdiction in the matter.
Costs
18 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 in the nature of a procedural matter raised by the Juge-Commissaire, the decision on costs is a matter for him.
On those grounds,
THE COURT
hereby orders:
The Court has no jurisdiction to answer the questions put by the Juge-Commissaire at the Tribunal de Commerce, Romans.
Luxembourg, 16 May 1994.
