JUDGMENT OF 1. 3. 1973 — CASE 62/72 BOLLMANN v HAUPTZOLLAMT HAMBURG-WALTERSHOF

In Case 62/72 Application to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, R. Monaco (Rapporteur) and P. Pescatore, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, H. Kutscher, C. Ó Dalaigh, M. Sørensen and A. J. Mackenzie Stuart, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations presented under Article 20 of the Protocol on the Statute of the Court

A — Observations presented by the firm of Paul G. Bollmann

B — Observations presented by the Government of the Federal Republic of Germany

C — Observations presented by the Commission of the European Communities

Grounds of judgment

Costs

I —. Facts and procedure

1. In its judgment of 18 February 1970 in Case 40/69, given at the request of the Bundesfinanzhof (Federal Fiscal Court) which was acting in revision proceedings in the case of Bollmann v Hauptzollamt Hamburg-Oberelbe, the Court of Justice decided that as these proceedings are, insofar as the parties to the action are concerned, in the nature of a step in the action pending before the Bundesfinanzhof of the Federal Republic of Germany, the decision on costs is therefore a matter for that court.

2. The order referring the matter was received at the Registry of the Court on 11 September 1972.

II —. Observations presented under Article 20 of the Protocol on the Statute of the Court

A —. Observations presented by the firm of Paul G. Bollmann

(i). the nature and extent of the work undertaken by the lawyer in the application for a preliminary ruling before the Court,

(ii). the fact that those proceedings are subject solely to Community law and lie within the jurisdiction of the Court alone,

(iii). the fact that the substantive work of the lawyer in those proceedings concerns Community law alone,

(iv). the fact also that the parties must be represented by a lawyer for the purposes of an application for a preliminary ruling, which has the twofold consequence that in such proceedings the lawyer is entrusted with a duty by Community law itself, and that the amounts due to the lawyer by way of remuneration are expenses necessarily incurred.

B —. Observations presented by the Government of the Federal Republic of Germany

C —. Observations presented by the Commission of the European Communities

1. By order dated 8 August 1972, filed at the Court on 11 September 1972, the Bundesfinanzhof has submitted to the Court a question on whether the procedure for recovery of costs and the recoverability of expenses, in particular lawyers' fees, necessarily incurred in an application for a preliminary ruling under Article 177 of the EEC Treaty, are matters of Community law or domestic law.

2. The question posed concerns the interpretation of Article 103 (1) of the Rules of Procedure of the Court, which constitutes one of the acts referred to in Article 177 (b) of the Treaty.

3. Under the terms of Article 103 (1), the provisions of Articles 44 et seq. of the said Rules shall apply, after the written statements of case or written observations provided for in Article 20 of the EEC Statute have been lodged, to proceedings brought under Article 177.

4. Proceedings instituted under Article 177 are non-contentious and are in the nature of a step in the action pending before a national court, as the parties to the main action are merely invited to state their case within the legal limits laid down by the national court.

5. On the other hand, Articles 69 to 75 of the Rules of Procedure refer to costs in contentious proceedings.

6. In the present state of Community law, therefore, it must be concluded that the recovery of costs and the recoverability of expenses necessarily incurred by the parties to the main action for the purposes of an application for a preliminary ruling under Article 177 of the EEC Treaty are governed by the provisions of national law applicable to the said proceedings.

7. The costs incurred by the Government of the Federal Republic of Germany and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable, and as these proceedings are, insofar as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the firm of Paul G. Bollmann, the Government of the Federal Republic of Germany and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 177 and 188; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 73, 74 and 103; THE COURT, in answer to the question referred to it by the Bundesfinanzhof of the Federal Republic of Germany by a decision of that court dated 8 August 1972, hereby rules: