Martinez will have to wait
May first instance courts refer cases to the ECJ? May they apply European treaties which are not in force?
We had already reported that a French first instance court referred a case to the ECJ in Martinez seeking interpretation of articles 2 and 5(3) of the Brussels I Regulation (Case C278/09). A careful reader had wondered where a first instance court got its power to make such reference. In fact, it appeared that the French court had applied article 267 of the Lisbon Treaty before it was in force.
On November 20, 2009, the ECJ issued an order declining jurisdiction. It held that the Lisbon Treaty was not in force, and that pursuant to article 68 of the EC Treaty, a first instance court did not have the power to make a reference for a preliminary ruling as an appeal could still be lodged against its decision.
Altough, the questions raised by the Tribunal de grande instance de Paris won’t remain without anwser by the ECJ – the German Bundesgerichtshof (decision of 10.11.2009, process n. VI ZR 217/08, availible in German at http://www.bundesgerichtshof.de ) asked more or less the same, even citing the Tribunal de grande instance (n. 9 of the decision). In addition, the Bundesgerichtshof wants to know about the relationship between the country-of-origin-principle from the e-commerce-directive and private international law.
And the Bundesgerichtshof is a court of last instance, so there won’t be any problems concerning the intertemporal application of article 267.