transylvanian review - SSRN papers

T RANSYLVANIAN REVIEW Vol. XIX, Supplement No. 2, 2010

Worlds in Change II. Transforming East-Central Europe

Edited by F LORIN F ODOREAN • A LEXANDRU S IMON • D ANIEL M IHAIL Ş ANDRU • ATTILA VARGA

Electronic copy available at: http://ssrn.com/abstract=2392208

ROMANIAN ACADEMY Chairman: Academician Ionel Haiduc

CENTER FOR TRANSYLVANIAN STUDIES Director: Academician Ioan-Aurel Pop

Publication indexed and abstracted in the Thomson Reuters Social Sciences Citation Index®, in Social Scisearch® and in the Journal Citation Reports/Social Sciences Edition, and included in EBSCO’s and ELSEVIER’s products.

Transylvanian Review continues the tradition of Revue de Transylvanie, founded by Silviu Dragomir, which was published in Cluj and then in Sibiu between 1934 and 1944. Transylvanian Review is published 4 times a year by the Center for Transylvanian Studies and the Romanian Academy. EDITORIAL BOARD CESARE ALZATI, Ph.D. Facoltà di Scienze della Formazione, Istituto di Storia Moderna e Contemporanea, Università Cattolica, Milan, Italy HORST FASSEL, Ph.D. Institut für donauschwäbische Geschichte und Landeskunde, Tübingen, Germany KONRAD GÜNDISCH, Ph.D. Bundesinstitut für Kultur und Geschichte der Deutschen im östlichen Europa, Oldenburg, Germany HARALD HEPPNER, Ph.D. Institut für Geschichte, Graz, Austria PAUL E. MICHELSON, Ph.D. Huntington University, Indiana, USA ALEXANDRU ZUB, Ph.D. Chairman of the History Section of the Romanian Academy, Director of the A. D. Xenopol Institute of History, Iaºi, Romania EDITORIAL STAFF Ioan-Aurel Pop Nicolae Bocºan Ioan Bolovan Raveca Divricean Maria Ghitta Rudolf Gräf

Virgil Leon Daniela Mârza Vasile Sãlãjan Alexandru Simon

Translated by Bogdan Aldea—English Liana Lãpãdatu—French Desktop Publishing Edith Fogarasi Cosmina Varga Correspondence, manuscripts and books should be sent to: Transylvanian Review, Centrul de Studii Transilvane (Center for Transylvanian Studies) 12–14 Mihail Kogãlniceanu St., 400084 Cluj-Napoca, Romania

[email protected] www.centruldestudiitransilvane.ro

Electronic copy available at: http://ssrn.com/abstract=2392208

Contents Editorial Notes

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• I. Interdisciplinary Archaeological Researches I.1. The Legacy of the Remote Past Upper Palaeolithic Portable Art in South-Eastern and Mediterranean Europe Valentin-Codrin Chirica

11

Elements de sacralite de la violence en prehistoire Valentin-Codrin Chirica, George Bodi, Vasile Chirica

27

Palynological Research on Poduri – Dealul Ghindaru Settlement (Bacau County) Mihaela Danu, George Bodi

59

Human Remains Inside the Domestic Space Raluca Kogãlniceanu

67

Les depots de bronzes entre les Carpates et le Dniestr Bogdan Petru Niculicã

85

Shells as Supports for Body Ornaments in Cucuteni-Tripolie Culture Senica Þurcanu

107

Serghei Covalenco, Ion Tentiuc, Vitalie Burlacu Mãdãlin-Cornel Vãleanu, Luminiþa Bejenaru, Preliminary Data on the Child’s Tomb Discovered in the Paleolithic Site of Cosãuþi (Republic of Moldova) Codrin Lacãtuºu

123

Some reflections on the prehistoric potter’s craft from an ethnoarchaeological perspective Felix Adrian Tencariu

129

Aspects of Long Distance Trade by the Precucuteni Culture* Otis Crandell, Diana-Mãriuca Vornicu

139

I.2. History and Historiography Human sacrifices at the Dacians? Rãzvan Mateescu

153

Murus dacicus between function and symbol Luca – Paul Pupezã

159

The Road Sirmium – Singidunum in The Roman Itineraries Florin Fodorean

171

Disappeared Settlements of Arad County on the Austrian Military Maps of the 18th and 19th Century R. Rusu

187

Pierre Lapie, Louis Bonnefont, S. F. W. Hoffmann, and Roman Dacia Florin Fodorean

201

Medioplatonic Aspects in Apuleius’ Metamorphoses Cristian Baumgarten

211

La philosophie comme souci de soi chez Marc Aurèle Cristian Bejan

225

• II. Freemasonry, Culture, Elites in Transylvania, Central-North Europe and America The Swedish Order of Freemasons in the 18th Century Tom Bergroth

245

Aspects of Lucian Blaga’s Metaphysics Reception in the Romanian Philosophical Culture Ionuþ Isac

257

Changes of Slovak Freemasonry in the Twentieth Century. Brotherhood as Symbol of the Fight Against Totality 269 Martin Javor Cuba, Communism and the Craft Allison Olivia Ramsay

279

Riflessioni sulla vita di un ”frammassone fuggente”. Gabriela Rus

303

“From Darkness to Light”: The Engravings of ªtefan P. Niagoe’s Calendars, Buda, 1829 and 1830 Anca Elisabeta Tatay

309

Between Sociology and History: the Freemason Jászi Oszkár and the Nationality Issue in the Austro-Hungarian Monarchy Varga Attila, Rudolf Cristian

319

Central European Federation Projects During World War I Lakatos Artur

329

• III. Administrative, Legal and Philosophical Constructs III.1. Medieval and Modern Thought Quantum potest et eductio formarum Daniel Fãrcaº

343

Views on the Just War in Middle Ages. Mihai Maga

357

Saint Thomas, la censure universitaire du 7 mars 1277 et la genèse de la modernité philosophique Alexander Baumgarten

365

Berkeley’s Argument for the Existence of God in the Alciphron dialogue Vlad Mureªan

373

Fundamental Aspects of Schleiermacher’s Ethics Vlad Moldovan

379

La modernité roumaine à l’âge de l’apprentissage politique Raluca Alexandrescu

393

Salomon Maimon and the ‘Quid juris’-Problem Andrei Todoca

419

Heidegger und die Ethik: die Vollbringung des Anderen Bogdan Mincã

435

III.2. The Challenges and Structures of Modernity Culianu and the European philosophical inheritance Liliana Sonea

449

La production du savoir politique et sa portée méthodologique pour la modernité roumaine Raluca Alexandrescu

461

Chanoines roumains dans les grandes universités européennes pendant la seconde moitié du XIXe siècle Ioana Mihaela Bonda

483

Defining Populism and the Problem of Indeterminacy: Some Conceptual Considerations Camil-Alexandru Pârvu

493

Revue de Transylvanie (1934-1944) : discours programmatique pour l’unité nationale Valentina Pricopie

507

La sphère publique roumaine : la tentation de la modernisation Luminiþa Roşca

517

III.3. Shaping Recent History Metaphysics According to Ion Petrovici Claudia Renata David Towards Formulating Some Theoretical Principles to Evaluate the Accuracy of Translating a Medieval Theological Text. Wilhelm Tauwinkl

533

555

Culianu and the European philosophical inheritance Liliana Sonea

569

Expectation of Europe and after? Valentina Pricopie

585

Consistencies and inconsistencies in drafting questions referred to the European Court of Justice for preliminary rulings by the Romanian courts Daniel Mihail ªandru

595

Measures and Decisions of Economic Stability from the Perspective of the European Monetary Union Codruþa Mare

611

• IV. Administrative, Legal and Philosophical Constructs IV.1. Lands and Means of Faith Byzantine Latin Ideology and the Clash with the Latin West Bogdan-Petru Maleon Good Guy – Bad Guy: Zum Rollenspiel von Kaiser und Patriarch am Vorabend des 4. Kreuzzuges Christian Gastgeber

651

673

The Transylvanian1 Anthropo-Toponymy in the 13th Century. Victor V. Vizauer

711

Pier Paolo Vergerio il Vecchio, referendario dell’imperatore Sigismondo Adriano Papo

723

Sigismund von Luxemburg (1368-1437) in der Darstellung von Jan Długosz Krzysztof Baczkowski

735

The Wallachians and their Churches: Perspectives on the Limits of a Crusader Cycle Alexandru Simon

747

IV.2. Terms of Expansion and Regression Economia di guerra, economia di pace, economia di frontiera Andrea Fara

807

Historiography in the Age of Matthias Corvinus László Veszprémy

849

Wienna caput Austrie ad Vngaros pervenit. Matthias Corvinus und Wien Ferdinand Opll

861

Mattia Corvino e Firenze: Rapporti culturali e nuove acquisizioni di testimoni manoscritti 889 Gianluca Masi Christian Survival and Redemption and the Eastern Expansion of the Ottoman Empire Alexandru Simon

913

Un noble serbe du Banat au XVe siècle: Miloš Belmužević Adrian Magina

941

IV.3. Relations between Centres and Borders Spuren einer vom niederen Adel ausgeübten Autonomie im Siebenbürgen des ausgehenden 14. Jahrhunderts Szilárd Süttø Filippo Scolari, un condottiero fiorentino al servizio di Sigismondo di Lussemburgo Gizella Nemeth De la couronne contrôlée par le roi à la Sainte Couronne surveillée par les Ordres de la Hongrie Iván Bertényi Le milieu culturel, religieux et politique de Bratislava à l’époque de Mathias Corvin Eva Frimmová L’orientation de la politique de Mathias Corvin envers la principauté de Valachie à la suite de la destitution de Vlad Þepeş (1462) Guillaume Durand Treaties and Legacies of Crisis Alexandru Simon

955 965

977 985

1011 1031

IV.4. Paths and Patterns of Power Hereditary Countships in the Age of Sigismund of Luxemburg* Norbert C. Tóth

1081

Les nobles et les knèzes roumains au temps des luttes de Sigismond de Luxembourg pour la consolidation de son règne 1093 Ioan Drãgan King Sigismund and his Efforts to end the Schism in 1415 Ferenc Sebök

1101

Matthias Corvinus und die nordungarischen Städte Ján Lukačka

1109

Matthias Corvinus und Kasimir der Jagiellone angesichts der türkischen Gefahr in der zweiten Hälfte des 15. Jahrhunderts Krzysztof Baczkowski

1117

The Habsburgs, the Hungarian Crown and Crusading in the East: From Rákos to Rákos 1131 Alexandru Simon • List of Authors

1149

Consistencies and inconsistencies in drafting questions referred to the European Court of Justice for preliminary rulings by the Romanian courts D ANIEL M IHAIL ª ANDRU

1. The scope of the references for a preliminary ruling HE SCOPE for which the Treaties, currently the Treaty for the Functioning of the European Union (“TFEU”) (especially Article 267 TFEU), provided for a non-litigation procedure, called reference for a preliminary ruling, was to create a mechanism of cooperation between national courts and the Court of Justice of the European Union (hereinafter “European Court of Justice” or “ECJ”). The national courts are responsible for the interpretation and the application of the relevant law to cases that are referred to them for judgment and in this process it is inevitably to apply the EU acquis. Furthermore, certain types of courts (of last resort) have the duty to refer to the ECJ for a preliminary ruling when EU law has to be interpreted or there is a question regarding the validity of the EU law.

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2. The importance of the order for reference HE DRAFTING of the questions for the preliminary ruling represents the first important stage (followed by the ruling of the Court of Justice and the application of the solution of principle in the instant the case) in the cooperation between the national courts and the European Court of Justice. The formulation of the questions is preceded by essential information in order for the Court to be dully informed of the factual aspects, but also of the national law applicable in the case (especially information regarding the relevant national law).1

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596 • TRANSYLVANIAN REVIEW • VOL. XIX, SUPPLEMENT NO. 2 (2010)

The Court of Justice of the European Union has drafted a document Information note on references from national courts for a preliminary ruling2, which, even though is not (legally) binding, presents a real utility in guiding the national court that intends to refer a matter to the Court and has to be taken into account by that court, being first of all an act of judicial and diplomatic courtesy. In the instructions for the national courts the information note encodes rules from the case-law of the Court of Justice. The current information note was published in 2009 replacing the one from 2005 (revised in 2008) and envisages the amendments brought by the Lisbon Treaty (Articles 275 and 267 TFEU and Article 10 of Protocol (No 36) on Transitional Provisions annexed the Treaty of Lisbon). Thus, the Advocate General Niilo Jääskinen has recently reminded the importance of the order of reference3: ‘As a preliminary point, I would like to recall that the order for reference must give the precise reasons which prompted the national court to raise the question of the interpretation of European Union law and to consider it necessary to refer questions to the Court for a preliminary ruling. Against that background, it is essential that the national court provide at the very least some explanation of the reasons for the choice of the provisions in European Union law which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings.’4 The Advocate General summed up in a relevant way the principles of cooperation between the national court or tribunal and the Court concerning the information given to the latter by the referring court, as follows: 1. On the one hand, the national court assesses that EU law would be relevant to the case referred to it (and not another type of law – international, etc) and, on the other hand, the Court of Justice may, in checking its own jurisdiction, control in more detail the possibility of applying EU law to the circumstances of the main action; 2. Has doubts as to interpretation of a certain EU law rule; 3. Assesses the necessity of referring the matter to the Court of Justice; moreover, the referring court is that called to assess that necessity (but which can be restricted by the Court); The national court or tribunal must provide more detailed information, taking into account that the act of the national court - order of reference, decision or resolution - is the only one that is translated and disseminated to the interveners (being also as a rule the only document brought to the attention of the judges, perhaps with the exception of the Judge-Rapporteur). Starting with Foglia I5, the Court has dismissed references for a preliminary ruling also for reasons that do not relate directly to the drafting of the prelimi-

III. Administrative, Legal and Philosophical Constructs • 597

nary questions6. In practice, ECJ makes efforts to supplement the references and to provide them an (useful) answer, despite the precarious formulation7 of the references. This is not the place to discuss the will (of legal policy) of the Court to initiate some efforts in order to answer certain questions8 and the (lack of) motivation not to provide an answer to other preliminary questions.

3. The Court’s of Justice dismissal of certain references for a preliminary ruling sent by the Romanian courts. 3.1 Bejan – a partial rejection conjunct with a partial answer. Overview9 E START the core of our discussion by examining the Case C-102/10 Bejan, in which the Court of Justice ruled by order of 28 October 2010.10 We will investigate this case by taking into consideration the way in which a Romanian court has discharged of the duty to cooperate with the EU Court, respectively the (procedural and also the substantive) significance of the answer provided by the Court in its order. This order is a first answer (to a Romanian court) meaning that not any kind of reference prompts an answer provided by the Court of Justice. On the 4th February 2010, the Judecãtoria Focºani [Court of first instance, Focºani] has referred to the Court of Justice a request for the issuing of a preliminary ruling. This reference puts us in the position of a critical remark regarding the efforts undertaken by a Romanian court for the interpretation of and application of EU law. It must be stated that there is a difference between the questions that ECJ publishes in the Official Journal11 and the reference made by the court because ECJ retains only the questions and other essential elements (such as the referring court and the parties involved). So, it is necessary to look at the document that was the subject-matter of the reference for the preliminary ruling, or in the case of the Romanian courts, at the court’s resolutions12 that decided the drafting of the reference for the preliminary ruling. Thus, through the resolution of 4 February 2010, the court invoked by default the provisions of the Article 267 of ‘the consolidated version of the EC Treaty’ (it clearly meant TFEU). The resolution concludes that the court will ‘notify’ the Court, even though the procedure for the reference for a preliminary ruling does not exactly involve a notification. After that, ten questions are mentioned, which we will list and discuss below. The court held in the operative part of the judgment that the staying of the procedures ‘pending the outcome of the pro-

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ceedings’ is made under Article 23 of the Statute of the Court13. It must be said for the time being that Article 267 TFEU is an unquestionable ground for the staying of the proceedings that take place in the domestic court. Article 23 of the Statute of the Court of Justice of the European Union (Protocol no. 3 annexed to the Lisbon Treaty) stipulates among others that ‘In the cases governed by Article 267 of the Treaty on the Functioning of the European Union, the decision of the court or tribunal of a Member State which suspends its proceedings and refers a case to the Court of Justice shall be notified to the Court of Justice by the court or tribunal concerned’14. Accordingly, the statute of ECJ can not provide a legal basis for the staying of proceedings by domestic courts. From the first sentence of the first paragraph of Article 23 (quoted above) can be drawn the conclusion that the court which, by complying with the Article 267 of TFEU, suspended the case is the one that shall send the preliminary question, without involving any other intermediary (higher court, the Superior Council of Magistracy, Ministry of Justice and so on).15 On the other hand, from the point of view of the well-founded reference to the Court, it is however less important to plainly mention the Article 267 TFEU16. The preliminary reference drawn by Court of first instance, Focºani, became the reason for the drafting of another document, which is within the formal boundaries of the information note mentioned before (12 pages, the types of information that the court must provide to ECJ are being regarded as they should be), even though straight from the title the court makes reference to the ‘Treaty of the European Communities’ (emphasis added) which is no longer into force, assuming that it was ever called like that. The wording of the preliminary question is cavilling, the national court has formulated key words just as the Luxembourg court had, even though it was not requested from her to make this type of characterisation of the preliminary reference. By far the most interesting seem to be the words ‘the non-compliance with the obligation of a EU Member State – the non-transposition of a directive into the domestic law within the prescribed period (emphasis added)17. 3.2. An analysis of the sections of the preliminary reference S TO the European and national law applicable to the case, the referring court made an exhaustive listing of all legal acts which might have even the most distant connection with the subject matter - from Article 969 of the Civil Code to the provisions of a ministerial order. The Court of Justice showed that a simple enumeration of the national legislation is not sufficient.18 On the other hand, beyond the simple listing of the domestic law that is into force, in what concerns the preliminary reference procedure it is necessary also to describe the way in which the national court relates

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to those rules. Also, it is important to provide a description of the domestic judicial practice in the field. 19 As to the ”The reasons that determined the national court to bring before the Court of Justice of the European Union the preliminary questions on the protection of the consumers and the freedom to provide services” (emphasis added), it can be noticed that neither the protection of the consumers, nor the freedom to provide services did seem to have any relevant link to the case of whose resolution was sought. Except some let’s say (a bit ridiculous) commentaries about the ‘freedom of services’, the court justified the reference by using a phrase at least interesting, but rather long: ‘Following Romania’s accession to the European Union under the provisions of Article 20 of the Romanian Constitution, the responsibility of implementing the EU law lays with the national judges, for that reason we considered that, in order to elucidate and especially protect the rights of the parties involved in this case, it is necessary for the ECJ to provide an answer to these questions because, (...), the reason for which the lawmaker developed this insurance system was to protect the injured parties (by any means, whether they are insured persons or victims of an accident, protection which must be ensured in the same way for all the European citizens), and by possible preclusions the goal was to discourage people to drive under the influence of alcohol or any sort of drugs, any other restrictions – exclusions – have an impact over the free movement of persons and vehicles (!), thus affecting the single market for insurance especially for motor insurance which is a key objective of Community’s action in the area of financial services “. This represents a central point in the wording of a preliminary reference. The European Court is not interested in theoretical points of view, it does not expect explanations regarding the ”action (performed by) the [European] Community” in certain areas; it is expectable that the national court knows and applies not only Article 20 of the Constitution, but also Article 148. Article 148 of the Constitution, with all the criticism that was brought to it, may represent a ground for the elimination of the next paragraph from the preliminary reference20, but it seems that the national court has not found out yet that national law and EU law are not in conflict and they do not even resemble the international private law. As a matter of fact, in the order issued by the ECJ it was underlined the fact that the preliminary question has a lack of consistency (para. 50): ‘[...] it is necessary, on the one hand, for the court to define the factual and legal framework that better suits the questions brought forward or at least to explain the factual prerequisites on which these questions are based. On the other hand, the order for reference has to point out the exact reasons that determined the national court to reflect upon the interpretation of the EU law and considered neces-


sary to refer to the Court with the preliminary questions. Against that background, it is of the outmost importance for the national court to provide a minimum of explanations as to the reason for choosing the [EU] provisions that were requested to be interpreted and as to the connection established by court between those provisions and the domestic law applicable to the main proceedings’21. Or, it can be observed how the considerations of the Court of Justice highlighted the inefficiency of the way in which the referring court has explained the reasons based on which it has picked up those EU rules. Finally, the referring court has included a half a page section containing ”the points of view of the parties”, even though the parties had no view/opinion. The court has no obligation to obtain an opinion from the parties, but they must be consulted.22 It must be emphasized the fact that ”the reference must specify the name and addresses of the parties and their legal representatives in order for the Court to easily inform them about the sending of the reference and the deadline for the submission of their observations in the case. If a party changes its legal representative, that party must notify this change to the Court of Justice as soon as possible.”23 Or, according to the rules of procedure of the Court, the Court can request the point of view of the parties from the main proceedings. The referring court considered necessary the translation of the preliminary reference into French; for this purpose, according to the portal of the courts and tribunals24, the preliminary reference was translated into that language.25 It must be stressed the fact that Romanian is an official language of the institutions of the EU26, therefore the preliminary questions must be drafted and sent also into this language. In the covering letter, the national court requests, taking into account the damages caused to the parties – doesn’t specify by whom they were caused – that Court should decide the implementation of Article 103a [actually it was about Article 104a] of the Rules of procedure of the Court, in expedite proceedings27. In its address, the Registry of the Court has summed up the questions of the national court, as follows ‘[...] the Court of first instance, Focºani, addressed the Court ten questions which target, mainly, the issue of knowing whether the provisions of the domestic law rules (the court refers especially to provisions of Law 136[/1995] on insurances and reinsurances in Romanian and those of the Order no 3111/2004 of the Insurance Supervisory Commission) which regulate the area of the civil liability insurance for car owners are compatible with the provisions of EU law which regulate the freedom to provide services (Article 56 [...] TFUE [...]), the field of civil liability insurances and the protection of the consumer (Article 169 TFUE) (for the eact content of the ten questions[...])’28


4. The dismissal of the preliminary references for lack of explanation as regards to the factual context of the domestic proceedings – orders of 7 December 2010 in cases C-439/10 DRA SPEED, C-440/10 Semtex, respectively in C-441/10 Anghel 29 paras. 8-12 from either of the three orders30, the national court – a Court of Appeal from Romania – has not given any explanation regarding the factual context of the main proceedings. On the portal of the courts and tribunals we can find out that the preliminary question was sent at the request of one of the parties, even though the wording: “Term on 10 of June 2010, at 9 AM, for when it will be communicated to the appellants-defendants a copy of the request of reference to the European Court of Justice made in the case by the plaintiff-applicant through the defender’ suggests that the court has been informed of the request of the plaintiff-applicant”; or things should be exactly the opposite: the court may decide at any moment if and how it will send the preliminary question. It is only the national court that enjoys the power to assess the necessity of a preliminary reference, even when court is a court of last resort (this is not the case here). Thus, those findings from the orders issued by the Court of Justice have the following formulation: ‘8. According to a constant case law, the procedure provided by Article 267 TFEU is an instrument for cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them.31 9. It must be pointed out that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based.32 10. Thus, it is of the outmost importance that the national court explains, right in the order of reference, the factual and legislative context of the main proceedings. In that regard, in must be recalled that the information in the orders of references are destined not only to allow the Court to give useful answers, but also to provide the governments of the Member States and to those interested in the possibility in presenting observation under Article 23 of the Statute of the Court of Justice of the European Union. Falls within the Court’s obligation to make sure

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CCORDING TO


that this possibility is ensured, taking into account the fact that under his provision only the orders of reference are notified to the interested parties.33 11. In the case, Court of Appeal Bacãu described in the order of reference the legislative context of the main proceedings and presented the legal arguments that have prompted it to reflect upon the interpretation of EU law. Instead, that decision does not encompass, with the exception of the mentioning of date at which was acquitted the fee for the dispute in the main proceedings, any description, not even a brief one, of the factual context of that proceeding. Thus, the Court was not even offered the possibility to make sure that factual circumstance on which the preliminary questions are based really falls within the ambit of the EU law rule of whose interpretation is requested, nor, on a broader level, the possibility to answer in a useful and reliable way at the questions asked. Accordingly, the reference for a preliminary ruling does not comply with the requirements mentioned at points 9 and 10 of this order. 12. Consequently, it must be found that, under the ground of Article 92 paragraph (1) and of Article 103 paragraph (1) of the Rules of Procedure of the Court, this reference for a preliminary ruling is manifestly inadmissible.’

5. The dismissal for lack of relationship with the reality or with the subject-matter of the case in the main proceedings – order of 6 December 2010 in case C-377/10 Bãilã34 HE COURT of justice has decided – by order – the inadmissibility of a preliminary reference on account of lack of connection with the reality or with the subject-matter of the case the main proceedings. Of course, this type of dismissal shows not only the fact that the procedure is not known, but also the substantive law relevant for the case is not known (respectively the knowledge of the cases mentioned by the Court at para. 11 of the order, quoted below). The national court, at the hearing of 09 June 2010 issued a resolution by which ‘under Article 267 TFEU, refers to the ECJ in the preliminary reference procedure on the boundaries of the scope of Article 110(1) TFEU. Suspends the proceedings until resolution.’ In this case, the preliminary reference was made at the proposition of the defenders of the plaintiff that wanted to obtain an annulment of the tax for an imported motor vehicle originated in Kuwait, registered for the first time in this country (and built in UK).

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As regards ‘the necessity of a preliminary ruling’, the court makes some theoretical considerations, considering that ‘Article 110 TFEU (ex-Article 90 EC) represents an amendment of the provisions on the elimination of customs duties or of other taxes with similar effect. This provision has as goal to ensure the free movement of goods between the Member States35 in regular conditions of competition, by eliminating any type of protection which may be drawn from the implementation of domestic taxes which are discriminatory towards the goods originated from other Member States.’ In this case, the court held that, as a ground for the staying of the proceedings, apart from Article 267 TFEU and the Law no. 340/2009 on the drafting by Romania of a statement under Article 35 paragraph (2) of the Treaty on European Union36 – which obviously has no connection with this case. In its answer, the Court of Justice held: ‘8. According to a constant case law, the procedure provided by Article 267 TFEU is an instrument for cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them.37 9. Within this cooperation, the preliminary questions concerning the EU law beneficiate of a presumption of relevance. Refusing to answer a reference drafted by a national court can not intervene, except when it is absolutely obvious that the interpretation of EU law that was requested by the national court bears no relationship with the reality or the subject-matter of the case in the main proceedings, when the issue is hypothetical or when the Court does not dispose of the factual or legislative elements needed in order to give an useful answer to the questions brought before it.38 10. In the case, the file shows that the motor vehicle subject to the tax in litigation in the main proceedings was brought by Mr Bãilã from Kuwait, state in which it has been registered. 11. Yet, according to a constant case law, Article 110 TFEU is applicable only to goods imported from other Member States and, if the case, to goods with origins in third states that are moving freely in the Member States. Consequently, the invoked article is not applicable to goods imported directly from third states.39 12. As a consequence, Article 110 TFEU is not applicable in a situation as the one from the main proceedings. 13. Therefore, in the case in which the Court would offer the interpretation of the Article 110 TFEU requested by Regional Court Dolj, this interpretation would have no relevance for the dispute resolution pending in this court. 14. In these circumstances, there is no relationship between the requested interpretation of the EU law and the reality or the subject-matter of the case in


the main proceedings. So, it must be observed that under Article 92 paragraph (1) and Article 103 paragraph (1) of the Rules of Procedure of the Court the present reference for a preliminary ruling is manifestly inadmissible.’

6. Conclusions NE OF the rules written in the information note provided by the Court of Justice may seem like a real bed of Procustes: the preliminary reference must not be longer than 12 pages. Certainly, the arbitrary of the 12 pages can raise some questions, but it is clear that an experience of the Court (preliminary questions drafted on too many pages) determined a strictness, just within boundaries, without any legal framework. But, as we mentioned before, the cooperation between the national courts and the Court manifests itself through much more sensitive links than it seemed at first sight: it must be taken into account the ego of the European judges and also the capacity to differentiate between what is important and essential by the EU Court (see the discussions regarding contrived disputes40) As it was shown in literature41 sometimes the preliminary questions are not sent to elucidate to the national courts the interpretation of a EU rule or to establish its validity.42 In the last four cases that we have presented, the Romanian courts explained the legislative context, but not also the factual one, meanwhile in Case Bejan the facts seem to be rather the other way around.43 It is clear enough that exaggeration will lead to the rejection of the questions. The national court must come to a certain harmony between the proportion of the detailed explanation of the facts and the proportion of the description of the context of the applicable national law.44 The least important is the description of the EU law – this is made by the ECJ. In other words, what the orders issued in the four cases emphasize is the fact that the referring court should not ignore or give less importance to a more detailed description of the factual and legislative context of the main proceedings. Moreover, case Bãilã revealed the decisive importance of determining the factual context when it comes to the way in which it will answer to the preliminary reference: the referring court must draw the consequences of those factual elements in order to identify the EU law rules circumstantial to the case, meaning their possibility to be applicable to the case45. The observation is equally true even for case Bejan. On the other hand, even when the national court manages to identify an EU rule (possibly) circumstantial to the case, the Court has the right to reformulate the context of the implementation of the EU law, in order to answer in a more appropriate manner (that can be made including by the reformulation of some preliminary questions).

O


What it can be observed in what concerns the order in Case Bejan is the will of the Court to encourage judicial dialogue with the courts from Romania, even in the context of (partial) non-applicability of the EU law in the main proceedings. In another way, we can only wonder in what degree the informing of the Court of Justice (by the national court), as it was sustained by the Court, may increase the flaws of the judicial reasoning or uncertainties of establishing the legal background applicable in the main proceedings; a possible answer it would lay in the implicit attention acknowledged to the appreciation that the referring court will have to make in what concerns the excessive character of the domestic rule for the situation of the injured party. Moreover, the Romanian court may refer once more to the Court of Justice in the particular context of the first two questions, complying thus with the requirement to inform as provided in the order. While the cooperation between the national courts - courts of common law in the implementation the EU law - and Court of Justice has as main ground Article 4(3) TEU (ex-Article 10 EC)46, at the same time the national courts, in performing their duties, must, in order to be able to send questions, be familiar not only with the essential elements of the procedure (according to the information note), but also with the substantive law relevant in the case, also we have to bear in mind the fact that the answer of the Court (and at the same time its usefulness for the solving of the case) depends on clarification made by the national court of the factual and legislative issues before bringing the matter to the EU Court.

Note 1. For a case law exhibition regarding the ‘Guidelines for the drafting of a reference for a preliminary ruling’ (section 3.2), chapter 8, (‘The form and content of a reference’) in M. Broberg, N. Fenger, Preliminary References to the European Court of Justice – Procedura trimiterii preliminare la Curtea Europeanã de Justiþie, Ed. Wolters Kluwer, 2010, p. 279-303. 2. OJ 2009, C 297, p. 1 3. The opinion of the Advocate General from 1 March 2010, Case C-393/08 Sbarigia (the judgment was delivered on 1 July 2010, not yet reported). 4. See inter alia, order in Case C-167/94 Grau Gomis and Others [1995] ECR I-1023, paragraph 9; Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I-10423, paragraph 46, Case C-380/05 Centro Europa 7 [2008] ECR I349, paragraph 54, and Case C-116/08 Meerts [2009] ECR I-10063, paragraph 27).. 5. ECJ, judgment of 11 March 1980, case 104/79 Foglia/Novello [1980] ECR 745. 6. See chapter 5, section 4 (‘Questions not related to the facts and circumstances of the main proceedings’) and section 5 (Contrived cases) of M. Broberg, N. Fenger, n. 2 above, p. 163-199.

606 • TRANSYLVANIAN REVIEW • VOL. XIX, SUPPLEMENT NO. 2 (2010) 7. D. Edward, The preliminary reference procedure: constrainsts and remedies, paper presented at CCBE/College of Europe Colloquium Bruges, 19–20 November 1999 Revising the European Union’s judicial system, assessing the possible solutions, revising the preliminary ruling mechanism. The paper is available at: http://law.du.edu/documents/judge-david-edward-oral-history/1999-the-preliminary.pdf 8. Even though we can recall here an example from the court’s recent practice in which can be seen a real willingness from the Court’s part to answer preliminary questions: judgment of 1 June 2010, Joined Cases C-570/07 and C-571/07, Blanco Pérez and others, not yet reported. 9. See M. Banu, M. ªandru, Respingerea de cãtre Curtea de Justitie a unor trimiteri preliminare de la instanþe judecãtoreºti din România (The Dismissal by the Court of Justice of certain preliminary references from the Romanian courts), Revista românã de drept european (Romanian Journal of European Law), no. 2/2011, p. 147. 10. Eighth Chamber, not yet reported. 11. OJ C 113, 1.05.2010, p. 30. 12. Although the practice of our (Romanian) courts serves also an example of a reference to the Court of Justice performed even by a sentence (!). 13. About the grounds for the staying of the proceedings see: Suspendarea acþiunii de cãtre instanþa naþionalã în situaþia trimiterii întrebãrii preliminare de cãtre o instanþã din alt stat membru (The staying of the proceedings by a national court when a preliminary question is sent by another Member State), in Revista românã de drept european [Romanian Journal of European Law], no. 4/2010, p. 167. 14. The remainder of the article refers to procedures that mostly concern ECJ. 15. A preliminary reference sent by a Hungarian court recently raised the question about the statute of an intermediary in the judicial dialogue between the national court and the Court (judgment of 9 November 2010 Case C-137/08 VB Pénzügyi Lízing Zrt v Ferenc Schneider, not yet reported). The domestic procedural rule compelled the national tribunal to ‘notify’ the order to the Court of Justice and send it at the same time, for information only, to the ministry of Justice. The referring court asked the Court if Article 23, first paragraph of the Statute of the Court precludes the possibility of simultaneous default informing of the ministry of Justice. The Court of Justice answered that, by complying with the ‘mechanism of judicial dialog provided for in Article 267 TFEU’ to inform the Executive, the obligation to inform is not an interference in that dialogue, is not a requirement for the preliminary reference, and it has no influence upon the domestic court’s right to refer a preliminary question and it could not affect the prerogatives to refer a matter to the Court; the infringement of the obligation to inform did not incur legal consequences that might have affected the preliminary reference procedure; there were no indications as to discourage the domestic courts in referring the matter to the Court (see para. 31-34 of the judgment). 16. It is enough to mention the situation of the preliminary referral to the Court by invoking a different legal ground besides Article 234 EC: see for example judgment of 12 August 2008, Case C-296/08 PPU Goicoechea [2008] ECR I-6307, para. 38 (‘the simple fact that the order of reference does not mention Article 35 EU,


17.

18.

19.

20.

21.

22. 23. 24.

but refers at Article 234 EC shouldn’t have as a result the inadmissibility of the reference for a preliminary ruling. Even more because of the fact that the EU Treaty doesn’t provide, implicitly or explicitly, for a specific form for the national court’s reference for a preliminary ruling’ – see also para. 36 of judgment of 28 June 2007, Case C-467/05, Dell’Orto, p. I-5557); the judgment from 27 October 2009, case C-115/08, Land Oberösterreich v ÈEZ as, 2009, p. I-10265, para. 84. As a matter of fact, recently, through a resolution of 6 December 2010, a Romanian court (judecãtoria Cãlãraºi – Court of first instance, Cãlãraºi) brought before the Court of Justice a reference for a preliminary ruling by relying on Article 2(3) of the Law no. 340/2009 regarding the drafting by Romania of a statement under Article 35(2) of the Treaty on European Union as a legal basis, but without mentioning Article 267 TFEU (case no. 6419/202/2010). The Court of Justice has accepted the reference by registering the case as Case C-602/10 Volksbank, pending. Even if it would have been so, the national court could have applied the relevant EU law, obviously with the condition that that would have been applicable to the main proceedings. See joined cases C-320/90, C-321/90 and C-322/90, judgment of 26 January 1993 Telemarsicabruzzo and others v Circostel and others [1993] ECR I-393, para. 8 (“Although the Court has been provided with some information by the file submitted by the national court and the written observations, as is clear from the Report for the Hearing, and by the oral observations of the parties at the hearing, that information is fragmentary and does not enable the Court, in the absence of adequate knowledge of the facts underlying the main proceedings, to interpret the Community competition rules in the light of the situation at issue, as it has been requested to do by the national judge”.) . Among the ‘common’ normative acts considered relevant to the dispute it can be found the presence of two recommendations of the Council of Europe (‘Recommendation R(81)7 on measures facilitating access to justice’; ‘Recommendation R(93)1 on effective access to the law and to justice for the very poor’), and also other directives which had no connection to the resolution of the case or the preliminary reference. ‘In this case, the domestic law rule, by conflicting with the EU law rule, seemed useful to put these questions in order to, depending on the answers we will receive, continue with the trial of the litigation pending at the Court of first instance, Focºani, by complying with the main principles provided by the treaty.’ Judgment of 26 January 1993, Telemarsicabruzzo and others, quoted above, para. 6; judgement of 6 march 2007, Placanica and others Case C-338/04, C-359/04 and C-360/04 [2007] ECR I-1891, para. 34; judgement of 8 September 2009 Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-7633, para. 40. See, in what concerns the role of the parties in the preliminary reference: M. Broberg, N. Fenger, n. 2 above., p. 265 and the next. M. Broberg, N. Fenger, n. 2 above, p. 282. portal.just.ro

608 • TRANSYLVANIAN REVIEW • VOL. XIX, SUPPLEMENT NO. 2 (2010) 25. ‘Decides the appointment of a translator authorized by the Romanian Ministry of Justice (RMJ) for French language in the person of Mrs. […] with the residence at the address […] [RMJ authorization no.…] in order to translate the document in question’. 26. According to Regulation no 1 determining the languages to be used by the European Economic Community (OJ L 17, 6.10.1958, p. 385), amended by Regulation (EC) no. 1791/2006 of the Council of 20 November 2006 (OJ L 363, 20.12.2006, p. 1, Special Edition, 01/vol. 07, p. 15), and Article 29 (concerning the procedure language) of Rules of Procedure of the Court of Justice of the European Communities of 19 June 1991, in the consolidated version of 2010 (OJ C 177, 2.07.2010, p. 3). 27. In the order, the Court held that it is not necessary to decide in relation with the request for urgent procedure (para. 55). 28. ‘In this case, the Court appreciated that, considering its case law, there is no doubt as to, from the point of view of EU law, what answers should be given at questions 3-7 asked by the Romanian court and has expressed its intention to decide over these matters by a reasoned order (without continuing with the analysis on the merits).’ 29. All the three orders were issued by the Fifth Chamber on the date specified; not published in Rep. 30. These are identical in all the three orders (C-439/10, C-440/10, C-441/10). 31. See especially the judgment of 16 July 1992, case C-83/91 Meilicke [1992] ECR I-4871, para. 22; the judgment of 5 February 2004, case C-380/01 Schneider [2004] ECR I-1389, para.. 20; the judgment of 24 March 2009, case C-445/06 Danske Slagterier [2009] ECR I-2119, para. 65. 32. See especially the judgment in case Telemarsicabruzzo and others, quoted above, para. 6; order of 17 September 2009, case C-181/09 Canon, not reported, para. 8. 33. See order Canon, quoted above, paras. 10 and 11 and the quoted case-law. It must be stressed two issues which refer to the right of a defence (including before the Romanian courts and tribunals) and, respectively, to the notification only of the order. 34. The order was issued by the Fifth Chamber, not published in Rep. 35. Even though the vehicle in question was from Kuwait. 36. Monitorul Oficial no. 786/18 November 2009. 37. Meilicke judgement, quoted above, para. 22; Schneider judgement, quoted above, para. 20; Danske Slagterier judgement, quoted above, para. 65. 38. Judgment of 5 December 2006, joined cases C-94/04 and C-202/04 Cipolla and others [2006] ECR I-11421, para. 25; judgment Blanco Pérez, quoted above, para. 36. 39. Judgment of 10 October 1978 case 148/77 Hansen & Balle [1978] ECR 1787, para. 23; judgment of 9 June 1992 joined cases C-228/90-C-234/90 joined cases C-339/90 and C-353/90 Simba and others [1992] ECR I-3713, para. 14; judgment of 18 December 1997 case C-284/96 Tabouillot [1997] ECR I-7471, para. 23.

III. Administrative, Legal and Philosophical Constructs • 609 40. C. Naômé, Le renvoi préjudiciel en droit européen: Guide pratique, Larcier, 2007, p. 97. 41. M. Bobek, Learning to Talk: Preliminary Rulings, the Courts of the New Member States and the Court of Justice, CML Rev 45:1611-1643, 2008 (translated in R.R.D.E. no. 2/2010 with the title „Învãþând a conversa: trimiteri preliminare, instanþele noilor state membre ºi Curtea de Justiþie” – Learning to communicate: preliminary referrals the courts of the new Member States and the Court of Justice ). 42. As a matter of fact, by rule, the Court does not censor the reasons for which a preliminary question is sent. See: A. Barav, Some Aspects of the Preliminary Rulings Procedure in EEC Law, European Law Review, vol. 2, 1977, p. 13. 43. Case Bãilã shows that it doesn’t matter the proportion as long as the court doesn’t posses a minimum of knowledge in the area of substantive law applicable in the case. 44. It is possible, but not always verifiable, and there is no certitude, that, when the EU court has an interest in the subject of the substantive law which is the subjectmatter of the preliminary reference, the EU court insists upon the filling of the gaps found in the preliminary reference. 45. We can notice that, with precise referral to case Bãilã, even the issuing by the Court of the order in the circumstances of the obvious error in the appreciation by the referring court of the factual elements, seemed to have a real utility for that court.. 46. C. Naômé, quoted above., p. 37 and the next.; B. Nascimbene, The role of national courts and the preliminary ruling procedure - Draft, http://www.era-comm.eu/ oldoku/Adiskri/12_Jurisdictions/2009_Nascimbene_en.pdf.

Abstract Consistencies and inconsistencies in drafting questions referred to the European Court of Justice for preliminary rulings by the Romanian courts Romania, as a Member State of the European Union, has an indirect contribution to the development of European Union law. The national courts have the capacity and sometimes the obligation to refer preliminary questions, the answers given by the European Court of Justice are a part of the acquis of the Union. The present article tries to asses the contribution of the Romanian courts in this context and aims to underline the drafting of the references as a first step in the cooperation between national and the European court.

Keywords reference for a preliminary ruling; order of reference; European Court of Justice