## Facts

- Pasquale Foglia, an Italian wine dealer, sold liqueur wines to Mariella Novello for transport to France under a contract allocating liability for duties allegedly imposed contrary to Community law.
- French authorities levied a consumption tax when the goods entered France; the carrier paid the tax, invoiced Foglia, and Foglia reimbursed the carrier.
- Foglia sued Novello in Italy seeking reimbursement based on the contractual allocation of tax liability.
- The Italian court made a preliminary reference under Article 177 EEC (now Article 267 TFEU) about the compatibility of the French tax with Community law; the ECJ previously declined to answer in an earlier reference in the same dispute because the litigation was viewed as artificially constructed and not presenting a genuine dispute.
- The Italian court then made a second reference (Foglia II), effectively asking whether the ECJ could refuse to answer and how responsibility is divided between national courts and the ECJ in the preliminary ruling procedure.

## Issues

1. Whether the ECJ may examine, on its own initiative, whether the conditions for a preliminary ruling are satisfied and refuse to answer where the reference stems from a contrived dispute or procedural device.
2. Whether the national court’s assessment that a ruling is “necessary” prevents the ECJ from declining to answer on jurisdictional or admissibility grounds under Article 177 EEC.
3. Whether the preliminary ruling procedure may be used, via private litigation in one Member State, to obtain an ECJ ruling on the compatibility of another Member State’s legislation when that Member State is not a party to the national proceedings.

## Decision

- The ECJ reaffirmed that it may verify whether a reference meets the conditions for a preliminary ruling and may refuse to rule where the questions are hypothetical or arise from procedural arrangements designed to obtain an abstract opinion.
- The Court reiterated that, although the referring court normally decides whether a ruling is necessary to decide the case, that does not eliminate the ECJ’s responsibility to police the limits of its jurisdiction under Article 177.
- Applying those principles, the ECJ maintained its earlier refusal to address the substantive compatibility of the French consumption tax in the circumstances presented.

## Legal Principles

- The preliminary ruling procedure is cooperative, but it does not authorize the ECJ to give advisory opinions on general or hypothetical questions.
- The ECJ may examine its own jurisdiction and the admissibility of a reference, including whether there is a real dispute and a genuine need for interpreting Community law.
- A national court’s view that a ruling is needed is generally respected, but it is not conclusive where the conditions for Article 177 jurisdiction are not satisfied.
- Where a reference effectively targets the legislation of another Member State through private litigation, the ECJ will scrutinize whether the procedure is being used as a surrogate for direct challenges to that Member State’s measures.

## Conclusion

Foglia II confirmed that the ECJ can decline to answer preliminary questions when the national litigation is contrived or the questions are hypothetical, preserving Article 177’s function as a mechanism for resolving genuine disputes rather than reviewing Member State legislation in the abstract.


Foglia v. Novello (Foglia II), Case 244/80, 1981 E.C.R. 3045 (E.C.J. 1981)