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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Grado (Free movement of persons) [1997] EUECJ C-291/96 (09 October 1997) URL: http://www.bailii.org/eu/cases/EUECJ/1997/C29196.html Cite as: [1997] EUECJ C-291/96

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JUDGMENT OF THE COURT (Second Chamber)

9 October 1997(1)

(Preliminary reference - Criminal proceedings - Use of a courtesy title - Discrimination - Relevance of the question - Lack of jurisdiction)

In Case C-291/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Amtsgericht Reutlingen (Germany) for a preliminary ruling in the criminal proceedings before that court against

Martino Grado,
Shahid Bashir,

on the interpretation of Article 6 of the EC Treaty,

THE COURT (Second Chamber),

composed of: R. Schintgen (Rapporteur), President of the Chamber, G.F. Mancini and G. Hirsch, Judges,

Advocate General: G. Tesauro,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

• the Staatsanwaltschaft Tübingen, by R. Kindsvater, Staatsanwalt,
  
  
• Mr Grado, by P. Jäcksch, Staatsanwalt, Reutlingen,
  
  
• the Commission of the European Communities, by U. Wölker, of its Legal Service, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 12 June 1997,

gives the following

Judgment

1. By order of 19 August 1996, received at the Court on 3 September 1996, the Amtsgericht (Local Court), Reutlingen, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 6 thereof.
   
   
2. That question was raised in criminal proceedings against Mr Grado, an Italian national, and Mr Bashir, a national of a non-member country.
   
   
3. Under Paragraph 407 of the Strafprozessordnung (German Code of Criminal Procedure), where the Staatsanwaltschaft (Public Prosecutor's Office) considers inter partes proceedings unnecessary, it can make an application requesting the criminal court to issue a specific punishment order. Pursuant to Paragraph 408, the criminal court must thereupon endorse and date the application, unless it considers that there are legal arguments precluding it from so doing. On being signed, the application is transformed into an order made by the court, which is similar in effect to a judgment.
   
   
4. In accordance with the above provisions, the Tübingen Staatsanwaltschaft applied to the Amtsgericht Reutlingen on 9 April 1996, in the person of the Staatsanwalt (Public Prosecutor) in charge of Section 35, for a summary punishment order to be issued
   
   'against
   
   1. Martino Grado ...
   
   2. Shahid Bashir ...'
   
   inter alia for leaving, without justification, the scene of a traffic accident in which they were involved.
   
   
5. The magistrate of the Amstgericht Reutlingen regarded the omission of the courtesy title 'Herr' from the names of the persons referred to in the application for a punishment order as a contravention of their right to dignity and equality before the law, which is enshrined in Articles 1 and 3 of the Grundgesetz (the German Basic Law) and asked the Staatsanwalt - without success - to rectify his application.
   
   
6. On the view that the German Code of Criminal Procedure, which requires the criminal courts to uphold the forms of order sought by the Staatsanwaltschaft unless legal considerations preclude them from doing so, did not permit him to alter or amplify the punishment order, the magistrate of the Amstgericht Reutlingen refused to sign it.
   
   
7. By order of 30 July 1996, the Landgericht (Regional Court), Tübingen, approved the Staatsanwalt's manner of proceeding, holding that the Amtsrichter (magistrate of the Local Court) is not legally entitled to prevent criminal proceedings from continuing.
   
   
8. In those circumstances, the magistrate of the Amtsgericht Reutlingen stayed proceedings pending a preliminary ruling by the Court on the following question:
   
   'Is it compatible with European Community law or is it contrary to the prohibition on discrimination laid down in Article 6 of the Treaty on European Union for a Staatsanwalt (Public Prosecutor) expressly to refuse to use the courtesy title "Herr" in an application, which he has drafted and subsequently placed before the court for signature, for a summary punishment order in the case of a foreign worker (for the purposes of Articles 48 to 51 of the Treaty on European Union) from another Member State of the European Union, particularly where this is contrary to the custom of the Staatsanwaltschaft and to the Staatsanwalt's own usual practice?'
   
   
9. In the order for reference, the magistrate of the Amtsgericht Reutlingen emphasizes that, when referring to the defendants - who are foreigners and one of whom is a national of a Member State of the Community - the Staatsanwaltschaft refuses to use the courtesy term 'Herr', whereas it would use that polite form in other cases, where foreigners are not involved.
   
   
10. The Staatsanwaltschaft Tübingen maintains, on the other hand, that the wording of an application for a punishment order depends on the number of defendants concerned: where the application refers to a single defendant, it is customary to use the title 'Herr' or 'Frau', but where more than one defendant must be named, linguistic considerations prevent this. The nationality of the defendants has no bearing on this practice, which is followed by other German public prosecutors and many courts.
    
    
11. The Commission argues that the interpretation of Community law sought clearly bears no relation to the facts of the main action or to its purpose. Furthermore, issues of criminal law and procedure of the kind raised in the main proceedings fall outside the scope of Community law.
    
    
12. On that point it should be noted that, according to settled case-law, the Court has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical and the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61, and Case C-134/95 USSL No 47 di Biella [1997] ECR I-195, paragraph 12).
    
    
13. Secondly, it should be pointed out that the prohibition of all discrimination on grounds of nationality laid down by Article 6 of the EC Treaty applies only within the Treaty's area of application.
    
    
14. However, in the order for reference, the Amtsgericht Reutlingen has failed to provide the Court with any evidence to support the view that, in the context of proceedings which may lead to a criminal penalty being imposed for an offence related to a traffic accident, the court hearing the case may be required to apply provisions intended to ensure compliance with the rules of Community law in general or with the principle of workers' freedom of movement in particular.
    
    
15. Accordingly, even if the Staatsanwaltschaft Tübingen's manner of proceeding were shown to discriminate against nationals of Member States of the Community, it does not appear that this would have any bearing on the main proceedings.
    
    
16. In those circumstances it must be held, in accordance with established case-law (order of 16 May 1994 in Case C-428/93 Monin Automibiles [1994] ECR I-1707, paragraph 15), that the question referred to the Court for a preliminary ruling does not involve an interpretation of Community law objectively required for the decision to be taken by the magistrate concerned.
    
    
17. Consequently, the Court has no jurisdiction to answer the question referred by the Amtsgericht Reutlingen.
    
    Costs
    
    
18. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
    
    On those grounds,

    THE COURT (Second Chamber),

    in answer to the question referred to it by the Amtsgericht Reutlingen by order of 19 August 1996, hereby rules:
    
    The Court has no jurisdiction to answer the question referred by the Amtsgericht Reutlingen.
    
    
    

Delivered in open court in Luxembourg on 9 October 1997.

R. Grass

Registrar

1: Language of the case: German.