At the end of last year, the Court of Justice handed down a rich and important judgment. The case is
Case C-210/06 Cartesio. It concerns primarily corporation law and the right of the member State of incorporation to prevent a company from transferring its seat to another member State.
But there are other, procedural aspects, which we will deal with now, leaving the exciting corporation law for another time. As you'll see, the judgment deals with several aspects of the preliminary reference procedure established by Article 234 EC.
Here's the story. Cartesio, a company governed by Hungarian law, had its seat in Baja (Hungary). In November 2005, it filed an application with the Bács-Kiskun Megyei Bíróság (Regional Court of Bács-Kiskun), sitting as a Cégbíróság (commercial court), for registration of the transfer of its seat to Gallarate, in Italy, and, in consequence, for amendment of the reference to its company seat in the commercial register. That application was rejected: Hungarian law in force at the time did not allow a company incorporated in Hungary to transfer its seat abroad while continuing to be subject to Hungarian law as its personal law. The Cégbíróság held that such a transfer would require, first, that the company cease to exist and, then, that the company re-incorporate itself in compliance with the law of the country where it wishes to establish its new seat. Cartesio appealed against that decision with the Szegedi Ítélőtábla (Regional Court of Appeal of Szeged). That Regional Appeal Court in turn referred a number of questions to the Court of Justice on the compatibility of Hungarian law with EC law.
The Hungarian court also referred some questions on the preliminary reference procedure.
First it asked asked whether a court such as the referring court, hearing an appeal against a decision of a lower court, responsible for maintaining the commercial register, rejecting an application for amendment of information entered in that register, must be characterised as a court or tribunal entitled to make a reference for a preliminary ruling under Article 234 EC, regardless of the fact that neither the decision of the lower court nor the consideration by the referring court of the appeal against that decision takes place in the context of inter partes proceedings.
The Court of Justice held that the referring court was indeed a court for the purposes of Article 234 EC. It recalled that a court that can refer a question under Article 234 must be a body established by law, be permanent, exercise compulsory jurisdiction, have an inter partes procedure, and must apply rules of law in an independent fashion (see, Case C‑96/04 Standesamt Stadt Niebüll, paragraph 12, we noted up here). The Court remarked that Article 234 EC does not explicitly require the national proceedings to be inter partes but that it follows from that provision that a national court may make a reference to the Court of Justice only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (Case C‑182/00 Lutz and Others, paragraph 13). The Court went on that where a court responsible for maintaining a register makes an administrative decision without being required to resolve a legal dispute, it cannot be regarded as exercising a judicial function. But, a court hearing an appeal lodged against a decision of a lower court responsible for maintaining a register, rejecting such an application, and which seeks the setting aside of that decision, which allegedly adversely affects the rights of the applicant, is called upon to give judgment in a dispute and is exercising a judicial function.
Accordingly, the appellate court must, as in the present case, be characterized as a court or tribunal within the meaning of Article 234 EC, with jurisdiction to refer a question to the Court for a preliminary ruling (see for similar situations, Case C‑300/01 Salzmann and Case C‑117/06 Möllendorf and Others).
The referring court also asked whether a decision of a national court referring a question to the Court of Justice can be subject to appeal which may result in an order to render the request for a preliminary ruling inoperative and an order to the court which made the preliminary reference to resume the national proceedings which had been suspended.
The Court of Justice held that where rules of national law apply which relate to the right of appeal against a decision making a preliminary reference, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, Article 234 §2 EC means that the jurisdiction conferred by that provision on any national court to make a reference to the Court of Justice for a preliminary ruling cannot be called into question by the application of those rules, where they permit the appellate court to vary the order for reference, to set aside the reference and to order the referring court to resume the domestic law proceedings.
The Court of Justice recalled that, in the case of a court or tribunal against whose decisions there is a judicial remedy under national law, Article 234 EC does not preclude decisions of such a court by which questions are referred to the Court for a preliminary ruling from remaining subject to the remedies normally available under national law. Nevertheless, in the interests of clarity and legal certainty, the Court of Justice must abide by the decision to refer, which must have its full effect so long as it has not been revoked (Case 146/73 Rheinmühlen‑Düsseldorf, paragraph 3).
