It is obvious that, for reasons of efficiency, the many rules of Community Law must be interpreted uniformly in all the member states and that effect should be given to them in the same manner and at the same time. This is particularly so where the rules are both detailed and technical and may change according to the season of the year, as is the case with the Common Agricultural sector.

At the same time, the greater part of Community administration is entrusted to national agencies who, at the end of the financial year, account to the central authorities in Brussels. For example, in order to implement the Common Agricultural Policy each member state has created and staffs a national organization which pays the appropriate subsidies and exacts the required levies. Each such national organizations then renders its accounts on an annual basis to the central authorities in Brussels.

Disputes concerning such subsidies and levies, since they arise locally, are heard before national courts, often at a relatively low level. One can illustrate this by an example taken from another field of Community activity, the operation of the Common Customs Tariff. Imagine goods imported into the United Kingdom from the United States. The Common Customs Tariff applies. The goods will be inspected by the British Customs and Excise but in their capacity as agents for the Community. A dispute arises over the interpretation of the Tariff, the Customs officers demanding 10%, the importer alleging that the correct rate is 5%. This dispute will be determined, in the first instance, by the national court nearest the port of entry. Imagine, again, that the same goods are imported into Palermo. The same dispute arises and this time it is heard by the appropriate Sicilian court. Thus, the risk of divergent applications of Community law is evident.

The mechanism which ensures a uniform application of Community Law is to be found in Article 177 of the Treaty of Rome which provides that "any court or tribunal" of a member state which encounters difficulty in connection with the interpretation or validity of a rule of Community Law may ask the Court of Justice in Luxembourg for their decision, known technically as a "preliminary ruling". The Court of Justice, it should be emphasised, does not decide the case. Its judgment interprets the relevant rules of Community law, in our imagined case, the Common Customs Tariff, but the fi decision still rests with the national judge.

Given that many private arbitrations raise questions of Community Law and that there is the same risk, as between arbitrators, of divergent interpretation, there is a plausible argument that arbitrators should have a similar power to refer problems of the interpretation or validity of Community law to the Court of Justice. It is, so the argument runs, undesirable that in arbitrations taking place across Europe there should be interpretations of Community law which contradict each other and which may even be at variance with what has already been decided by the Court of Justice. As matters now stand, no such power exists to refer a problem to the Court of Justice. This is because a private arbitration is not a "court or tribunal" as these words are used in the Treaty of Rome.

The Court of Justice has, on a number of occasions, had to consider the phrase "court or tribunal". In its case law the Court has emphasised that for a body to be a "court or tribunal" within the meaning of Article 177 there must be a direct link with the power and authority of the State. This link exists, of course, in the case of the regular courts whatever their function may be. It may, however, include other organizations. For example, in the Netherlands, the right of a doctor to practice is determined by competent to refer a question to the Court of Justice.1 This was because the appeals tribunal in question had been given by the legal system of the Netherlands the exclusive duty of deciding the question whether or not a doctor should be registered as a general practitioner.

The other side of the coin is clearly illustrated in a case referred to the Court in 1981 by the President of the Hanseatisches Oberlandsgericht Bremen,2 acting as an arbitrator. Shortly put, three German shipping companies embarked jointly on a shipbuilding programme. Certain Community funds were allotted to assist the programme but were less than had been anticipated. The shipping companies then came to an agreement among themselves as to how the available funds would be divided but a dispute arose between the companies as to whether such an agreement was enforceable under Community Jaw. This dispute by common accord was remitted to an arbitrator who in due course referred certain questions to the Court. The Court, however, stated that it had no jurisdiction to give a ruling. In the course of its judgment the Court said this:

"It is true, as the arbitrator has noted in his question, that there are certain similarities between the activities of the arbitration tribunal in question and those of an ordinary court or tribunal inasmuch as the arbitration is provided for within the framework of the law, the arbitrator must decide according to Jaw and his award has, as between the parties, the force of res judicata, and may be enforceable if leave to issue execution is obtained. However, those characteristics are not sufficient to give the arbitrator the status of a court or tribunal of a Member State."

The situation has been clearly described in Law of the European Communities, edited by David Vaughan, Q.C.3

The emphasis which the Court of Justice has placed on the links between the state and the tribunal is to be seen in the court's ruling in relation to arbitrators. Despite the advantages of allowing arbitrators, whose decisions may not be subject to review..., to refer questions to the Court of Justice, it has been held that private arbitrators cannot refer questions under Article 177. The Court of Justice has recognised that there are similarities between the functions of an arbiter and of a court to the extent that arbitrators must decide according to the law and that they may have the power of conclusive decision on a dispute between parties which is capable of enforcement. Yet, and even though arbitration may be governed by national legislation, in so far as arbitration has not been required [the italics are added] by the state, and in so far as the state authorities are not involved in the arbitration, there is missing the necessary link between the state and the arbitrator as to justify treating a private arbitrator as a "court or "tribunal of a member state", even if it is a tribunal in a member state." Again I have added emphasis.

Where, however, by national Jaw a private arbitrator or the parties may invoke the jurisdiction of a national court that court may, of course, refer questions to the Court of Justice and, indeed, a number of important cases have reached the Court of Justice in this way. To take one example at random, Bulk Oil (Zug) AG v. Sun International Ltd. in 1984.4 That case raised the matter of the compatibility with the common commercial policy of the Community of a United Kingdom ban on oil exports to Israel. The reference to the Court of Justice was made by the Commercial Court in London but the dispute between the parties had originally been determined in an English arbitration.

The Court of Justice is unlikely to change its approach. If that is so, any change in the present position can only come about by Treaty amendment. As recent events have shown this is a long and difficult process.

1
Case 246/80, Broekmeulen v. Huisarts Rigstratie Commissie, [1981] ECR 2311, [1982] 1 CMLR 91.

2
Noordsee Deutsche Hochseefischerei GmbH, [1982] 2 ECR 1095.

3
P. 280.

4
[1986] 2 C.M.L.R. 732.