## Facts

- French champagne producers sued English cider and perry producers for marketing products as “Champagne Cider” and “Champagne Perry,” alleging misuse of the goodwill associated with “Champagne.”
- The dispute was pleaded primarily as passing off/unfair competition under English law, with factual issues about market perception and historical use.
- After the United Kingdom joined the EEC (Jan. 1, 1973), the champagne producers added a claim that EEC wine regulations (including Regulations 816/70 and 817/70) restricted use of “Champagne” beyond champagne wine.
- The champagne producers sought an interlocutory preliminary reference to the European Court of Justice (ECJ) under EEC Treaty Article 177 (now TFEU Article 267) on the interpretation of Community law.
- The trial judge (Whitford J) refused to make a reference at that stage, preferring to determine facts and proceed to trial first.
- The champagne producers appealed solely from the refusal to refer; the merits of passing off and the EU-law applicability question were not decided on this appeal.

## Issues

1. When should a non-final court exercise its discretion under EEC Treaty Article 177(2) to refer an EU-law interpretation question to the ECJ?
2. How does the mandatory reference obligation for courts of last instance under Article 177(3) bear on the approach of lower courts?
3. Did the trial judge err by refusing to order a preliminary reference before factual findings and trial on the merits?

## Decision

- The Court of Appeal dismissed the appeal and upheld the refusal to make a preliminary reference at the interlocutory stage.
- The court held that lower courts generally have discretion (not a duty) to refer under Article 177(2), subject to principled limits.
- It was permissible to postpone any reference until after the facts were found and the national-law issues were addressed.
- On this record, a reference was premature because key facts were unresolved and it was uncertain whether EU-law interpretation would be necessary to decide the case.

## Legal Principles

- EU law forms part of domestic law and prevails in case of conflict, but national courts manage procedure and decide whether a reference is needed in a given case.
- The ECJ determines the meaning of EU instruments; national courts apply that meaning to the facts and retain responsibility for case management.
- For courts subject to appeal, Article 177(2) confers a discretion to refer; courts of last instance must refer under Article 177(3) when a necessary EU-law interpretation question is not already settled.
- A reference should generally be made only when the EU-law point is necessary to resolve the dispute, is not hypothetical, and is framed against established facts.
- No reference is required where existing ECJ authority already resolves the point, or where the answer is sufficiently clear so that there is no reasonable doubt.
- In deciding whether to refer, courts may weigh practical considerations such as delay, cost, and whether the issue is likely to reach a court of last instance.

## Conclusion

The Court of Appeal affirmed that a trial judge may defer an ECJ reference until the factual record and domestic issues are developed, and it articulated structured criteria for exercising the lower-court discretion to refer EU-law interpretation questions.


H.P. Bulmer Ltd. v. J. Bollinger S.A., [1974] 2 All E.R. 1226 (Eng. C.A. 1974)