These cases are in fact a sequel to Case C-28/05 G.J. Dokter, Maatschap Van den Top, W. Boekhout v. Minister van Landbouw, Natuur en Voedselkwaliteit which we wrote about here. What happened was that certain measures taken by the Dutch authorities to control the spread of foot and mouth disease were challenged before the competent Dutch court. The applicants in the main proceedings did not raise the issue of the compatibility of the Dutch measures with EC law, a point that had been raised in another case which gave rise to the ruling of the Court of Justice in Case C-28/05. The Dutch court was uncertain as to whether EC law requires it to take into account arguments based on EC law which had not been raised by the parties.
The Court of Justice held that in the circumstances of the present cases, the national court was not under an obligation to consider arguments of EC not raised by the parties.
The Court of Justice recalled that in the absence of Community rules in the field, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favorable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (Joined Cases C-430/93 and C-431/93 Van Schijndel and van Veen , paragraph 17, and Case C-129/00 Commission v Italy, paragraph 25).
The Court examined, as regards the principle of equivalence, how and when as a matter of national law the national court court raise issues of its own motion. It found that it was clear from the order for reference that the Dutch court is competent to raise of its own motion issues relating to the infringement of rules of public policy, which are construed in Dutch law as meaning issues concerning the powers of administrative bodies and those of the court itself, and provisions as to admissibility. Those rules lie at the very basis of the national procedures, since they define the conditions in which those procedures may be initiated and the authorities which have the power, within their area of responsibility, to determine the extent of the rights and obligations of individuals. But, interestingly, the Court of Justice held that the provisions of EC law in issue in these proceedings were not equivalent to provisions dealing with matters of public policy.
As regards the principle of effectiveness, the Court recalled that each case which raises the question whether a national procedural provision renders the exercise of rights conferred by the Community legal order on individuals impossible or excessively difficult must be analyzed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see, to that effect, Case C-312/93 Peterbroeck, paragraph 14, and Van Schijndel and van Veen, paragraph 19).
The Court recalled also that the principle of effectiveness does not, in circumstances such as those which arise in the main proceedings, impose a duty on national courts to raise a plea based on a EC provision of their own motion, irrespective of the importance of that provision to the EC legal order, where the parties are given a genuine opportunity to raise a plea based on Community law before a national court.
The Court went on to distinguish Case C-126/97 Eco Swiss; Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores; Case C-473/00 Cofidis; and Case C‑168/05 Mostaza Claro.