This case concerned a plea by Gie Pari Mutuel Urbain (PMU) for a preliminary reference to be made to the European Court of Justice. Bell Med Ltd objected to this preliminary reference.

The court first gave the facts of the case since it was on the basis of the same facts that a preliminary reference was felt to be essential.

A “preliminary reference” regards the European Court of Justice’s jurisdiction to answer questions of Community law. A member state court can refer a question to the ECJ as a preliminary reference if it concerns the interpretation of the Treaty Establishing the European Community, of acts of Community institutions or the interpretation of Community statutes.

In June 2006, the Paris Court of Appeal confirmed a judgement delivered by the Paris Tribunal de Grande Instance in November 2005. Bell Med Ltd was condemned by these courts to pay PMU EUR210,000 and expenses. This latter company requested the First Hall Civil Court to enforce the Paris Court of Appeal judgement in accordance with EU Council Regulation 44/2001. The First Hall, by decree delivered in July 2006 stated that in the light of Article 31 of Regulation 44/2001, it ordered the execution of the Paris appeal judgement. Bell Med Limited and Computer Aided Technologies Limited appealed this decision in September 2006 on the grounds that Council Regulation 44/2001 was not applicable since Article 1(1) of the same restricted its application to civil and commercial matters while the main merits of the French judgements were of an administrative nature.

Article 1(1) states: “This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.”

PMU contested this allegation stating that the issue here was:

(i) a penalty due;

(ii) which was of a purely civil nature;

(iii) payable to itself, a French company and not to the French government;

(iv) imposed by a French Civil Court.

Hence, the main issue fell perfectly within the “civil and commercial matter” description. In the light of this alleged uncertainty in the interpretation of this Regulation, PMU demanded that there be a preliminary reference to the European Court of Justice to clarify whether:

(i) the Maltese Court of Appeal could question the applicability of the Regulation, once the French court that requested enforcement of the judgement delivered by it stated that the same Regulation was applicable. (“…in circumstances where the court of origin would, in its said judgment, have already itself declared Regulation EC 44/2001 to be applicable to the matter in dispute and, furthermore, both parties would have invoked the Regulation in their respective submissions before the said court of origin.”)

(ii) the decisions of the Paris Court of Appeal could be deemed decisions “[which] concern a ‘civil or commercial matter’ within the meaning of Article 1 of Regulation EC 44/2001 and consequently such judgment may be enforced in accordance with the provisions of said regulation EC 44/2001.”

Regarding the first clarification sought, the court stated that once the French (the country of origin) court had already declared Regulation EC 44/2001 to be applicable, the Maltese Court of Appeal was precluded from deciding otherwise. The Maltese court did not agree that this issue warranted a preliminary reference either. As stated by Briggs u Rees “…it is now tolerably clear that the question whether Article 1 governs a case is not affected by any defence which may be raised to the claim – Preservatrice Fonciere TIARD Compagnie d’Assurances v. Netherlands State. “The court noted that it would have been different had the French court expressly held that the claim was within Article 1 of the Regulation and not excluded by Article 1(2). The Maltese court examined the French decisions and realised that none of these had ever directly dealt with the issue as to whether the claim advance was indeed civil or commercial in the light of Article 1.

Regarding the second clarification sought, the court noted that it was indisputable that upon meeting a doubt regarding Community law, this court of appeal was obliged to make a preliminary reference. The court noted that the dispute in issue had to be regarding the interpretation of the legal instrument and not whether a set of facts fell into the description of the same law.

The demand was not to interpret the law but actually, to demand the ECJ to analyse the facts of the case for the sake of applicability.

This is not the role of the ECJ in the preliminary reference procedure. Article 234 of the EU Treaty talks clearly of “interpretation” rather than “application” of EC law. The distinction between the two is rather fine yet significant. In the words of authors Craig u De Burca (EU Law – Texts, Cases and Materials, 3rd ed., pp. 472-473): “Indeed the very distinction between interpretation and application is meant to be one of the characteristic features of the division of authority between the ECJ and national courts: the former interprets the Treaty, the latter apply that interpretation to the facts of a particular case. This distinction is, moreover, perceived to be a further reason for differentiating the relationship between the national courts and the ECJ from that which exists in a more truly federal, appellate system where the superior court may well decide the actual case… The willingness of the ECJ to provide very specific answers to questions serves to blur the line between interpretation and application. It also serves to render the idea of the ECJ and the national courts being separate but equal, each having their own assigned roles, more illusory.”

For these reasons, the Court of Appeal rejected the plea for a preliminary reference to be made to the ECJ and ordered the appeal case to continue.