The Gazette 1975

the European Economic Community on 1 January 1973 and the Treaty of Rome became part of English law, they amended their defence and counterclaim to add a claim and ask for a declaration that the use of the word "champagne" in connection with any beverage other than the wine produced in the Champagne district of France would contravene Community law. They also applied to Whitford J. asking that he should refer to the European Court of Justice under Article 177 of the Treaty two questions for preliminary rulings: (a) whether on the true interpretation of specified Commu- nity regulations relating to wine and other relevant provisions of Community law the use of the word "champagne" for beverages other than their champagne would contravene Community law; and (b) whether on the true interpretation of Article 177 a national Court of a Member State should, where there was no earlier decision of the Court of Justice on such a question as (a), refer such a question to that Court, even though Article 177 did not compel the national Court to do so. Whitford J. held that at that stage of the English pro- ceedings it was not "necessary" for him to obtain a ruling on question (a) and that it was not "necessary" to refer question (b) at all. On appeal by the defendants : Held, dismissing the appeal, (1) that the Judge was entitled to refuse to refer question (a) to the European Court of Justice at the stage when the reference was requested if he then considered, as he did, that a deci- sion on the question was not "necessary" to enable him to give judgment at the end of the case, for though question (a) was one of Community law within Article 177 (1) (b) on which the European Court of Justice had jurisdiction to give a preliminary ruling, nevertheless the power given by Article 177 (2) to the national Court of a Member State (short of the final Court of that State) to refer or refuse to refer such a question was wholly discretionary. If a national Court considered that it could decide a dispute without a ruling or could itself determine the question of law, it need not and should not trouble the European Court. (2) That question (b) was wholly outside the ambit of Article 177 and could never become a question for the European Court. It was an attempt to get a ruling from that Court on the circumstances and manner in which a national Court should exercise its discretion to refer. The way in which a national Court should exercise the discretion was a matter for the national Court alone and should not be fettered by guidelines from the European Court. Per curiam. The jurisdiction of appellate Courts is affected by Article 177 to the extent that where a deci- sion on a question of Community law is considered "necessary" to enable the final Court of a Member State "against whose decision there is no judicial remedy under national law" to give judgment, the mandatory terms of paragraph (3) impose on that Court a duty to obtain a ruling from the European Court of Justice. Decision of Whitford J. affirmed. Appeal from Whitford J. The plaintiffs, H. P. Bulmer Ltd., and Showerings Ltd., issued a writ in October 1970 claiming against two French champagne houses, J. Bollinger S.A. and Cham- pagne Lanson Pere et Fils (1) a declaration that they were entitled to use the expressions "champagne cider" and "champagne cyder" on and in relation to cider provided that such use was not contrary to any government regulation that was in 12

have had a dominant position in the manufacture and supply of camping gas equipment in all countries of the European Economic Community and since January 1. 1973, in association with their sole United Kingdom concessionaires P.T.C.-Langdon Ltd. have had a domi- nant position in the United Kingdom in the manu- facture and supply of camping gas equipment. "7. Since about July 1971 the plaintiffs in associa- tion with the said P.T.C.-Langdon Ltd. have abused the plaintiffs' dominant position in the market in camp- ing gas equipment by refusing to supply any of the plaintiffs' goods to wholesalers who continued to distri- bute the defendant's Nomad range of gas burners, cylinders and appliances. The said wholesalers were thus intimidated into entering into written agreements with P.T.C.-Langdon Ltd. and in furtherance of the said intimidation the plaintiffs started this action against the defendant. The defendant will con- tend that this action has been brought by the plaintiffs as a concerted practice with P-T.C.- Langdon Ltd. with a view to enforcing the plaintiffs' dominant position in the market, in that the defendant's wholesalers now face the double threat that by handling the defendant's goods they risk having supplies of the plaintiffs' goods cut off and being liable to the plaintiffs for damages in conversion if it should be held that the alleged copyright is infringed. Until discovery herein the defendant is unable to give particulars of the terms of or all the parties to the said written agreements. "8. As a consequence of the plaintiffs abuse of their dominant position in the United Kingdom market the defendant's competitive position in the United King- dom and the European Common Market has been seriously adversely affected. Whitford J. on 19 November 1973 made an order that the defendant be at liberty to amend its defence as set out in paragraphs 6 to 11; but he granted the plaintiffs leave to appeal. The plaintiffs appealed on the grounds that the judge was wrong in giving leave to the defendant to amend its defence (1) by adding thereto additional matter which at the date of the defence did not and could not either afford a defence to the action or act as a bar to the plaintiffs' right to any of the relief claimed; and (2) by introducing new matter which did not disclose any reasonable defence to the plaintiffs' cause of action. The judgments were delivered on 22 May, 1974 — (1974) A All ER 51. A Judge need not refer a preliminary question to the European Court if he does not consider it necessary H. P. Bulmer Ltd. and Another v. J. Bollinger S.A. and Others — Before Lord Denning M .R., Stamp and Stephenson LJJ. [1970 H. No. 9347] In 1970 two English companies which had manu- factured beverages described over many years as "cham- pagne cider" and "champagne perry" began an action against two representative French champagne houses, asking for declarations that they were entitled to use those expressions in relation to their products. The French producers delivered a defence and counterclaim within the scope of an English passing off action; but after the United Kingdom became a Member State of