I. INTRODUCTION
According to Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’) a ‘court or tribunal of a Member State’ can make a preliminary reference to the European Court of Justice. Even though the Treaties do not offer a definition of what is meant by Article 267's reference to a ‘court or tribunal’ there can be no real doubt that it covers traditional courts. This is reflected in the use of terms such as ‘judgment’ and ’judicial remedy’ in the English version of Article 267—and the same applies with regard to the other language versions. For example, the French version of the provision refers to ‘juridiction’, ‘jugement’, and ‘recours juridictionnel’, the Italian version refers to ‘giurisdizione’, ‘sentenza’, and ‘ricorso giurisdizionale’, and the German version refers to ‘Gericht’, ‘Urteil’, and ‘Rechtsmitteln’.
Consequently, based on a literal interpretation, it would only seem natural to assume that, for example, administrative authorities as well as ombudsmen and private dispute resolution bodies are not amongst the entities that have access to the preliminary reference procedure. The Member States, however, apply differing definitions of what constitutes a ‘court or tribunal’ and according to the Court of Justice's settled case law, ‘it follows from the requirements both of the uniform application of EU law and the principle of equality that the wording of a provision of EU law that does not contain any express reference to the law of the Member States in order to determine its meaning and scope must, throughout the European Union, be interpreted independently and uniformly, irrespective of characterization in the Member States, taking into account the wording of the provision at issue and also its context and the purpose of the rules of which it forms part’.Footnote 1 This is also true with respect to determining the meaning and scope of the notion of a ‘court or tribunal’ in Article 267.Footnote 2 Thus, the Court of Justice has refused to admit preliminary references from entities that undoubtedly constituted courts or tribunals within the judicial system of the Member State in question, whilst, concurrently, it has admitted preliminary references from entities that, in their respective Member State, are considered to be administrative bodies situated outside the national judicial system.Footnote 3 Traditionally, the Court has had no qualms about admitting references for a preliminary ruling from such bodies if they met the Court's definition of a ‘court or tribunal’.Footnote 4
The Court of Justice's application of a single, homogeneous definition of a ‘court or tribunal’ has not only meant that the definition has become disassociated from the differing and sometimes incompatible national concepts thereof. It has also allowed the Court to admit references from those specialised, independent, administrative bodies that in several Member States have been established instead of administrative courts to decide claims under public law, including EU law, in the first or second (but not final) instance.
To a considerable degree, the adoption of a common EU definition of what is covered by Article 267's reference to a ‘court or tribunal’ has meant that the Court of Justice can make the preliminary reference procedure equally accessible to those entities that control the Member States’ application of EU law—irrespective of whether they are categorised as a ‘court or tribunal’ under national law. Had the Court of Justice for the purpose of Article 267 simply accepted the Member States’ varying definitions of a ‘court or tribunal’ this would have meant that the preliminary reference procedure would not be available to a large number of entities which in practice are responsible for controlling the Member States’ administrations; entities which perform functions that in other Member States are performed by the ‘genuine’ courts, and which to a considerable degree are responsible for establishing the relevant case law vis-à-vis a variety of EU rules.
The just-mentioned benefits of the Court of Justice's adoption of an EU definition of a ‘court or tribunal’ will, however, only be realised if the Court does not apply a narrow interpretation of the concept. Indeed, for a long time the Court of Justice applied a rather broad interpretation that allowed a significant number of what under Member State law would be considered to be administrative bodies to submit preliminary references.Footnote 5
However, in particular from the mid-2010s, the Court of Justice has applied an ever-narrower approach with regard to what entities may submit references under Article 267. To a considerable degree, this development has coincided with the Court of Justice's rulings on the application of Article 19 of the Treaty on European Union (TEU) requiring Member States to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’ and Article 47 of the EU Charter on Fundamental Rights laying down the right to an effective remedy before ‘an independent and impartial tribunal previously established by law’.
In this article, we will argue that nothing obligates the Court of Justice to apply the exact same construction of the independence criterion to the delimitation of what constitutes a ‘court or tribunal’ within the meaning of Article 267 whereas there are persuasive arguments in favour of applying diverging constructions. We will also assert that while the threats against the independence of the judiciary in some of the Member States justify the more prominent roles the Court has given to Articles 19 TEU and 47 of the Charter, the strict construction of the independence criterion pursued by the Court of Justice with regard to Articles 19 TEU and 47 of the Charter should not also be applied to Article 267.
Articles 19 TEU and 47 of the Charter are both about ensuring access to effective legal protection in the fields covered by Union law. The two provisions imply an obligation on the Member States to ensure access to independent courts, and the Court's task is here to assess whether the independence of an entity that clearly belongs to a Member State's judiciary has been tampered with. In contrast, the purpose of Article 267 is to ensure the proper application and uniform interpretation of EU law in all the Member States, by establishing cooperation between the Court of Justice and national courts in their capacity as courts responsible for the application of EU law. When it comes to Article 267, the independence criterion is not an obligation weighing on the Member States, but merely a condition that the referring entity must meet in order to be able to make a preliminary reference.
We therefore argue that excluding entities from using the preliminary reference procedure because they do not fulfil the Court's (fully justified) high requirements pertaining to Article 19 TEU does not cure their shortcomings and does not contribute to the making of strong and independent Member State courts. To the contrary, it impairs the uniform application of EU law throughout the Member States, and ultimately likely leads to a weakening of the safeguarding of the rule of law within the European Union.
In what follows we first briefly consider the criteria, applied by the Court of Justice to determine whether a Member State entity is competent to submit a preliminary reference, which are relevant when deciding whether an administrative body may submit preliminary references to the Court of Justice, but which rarely pose particular problems in this respect (Part II). Next, we consider the criterion that the preliminary reference must originate from a body settling a dispute (Part III). Finally, we discuss in detail the requirement that this body must be considered to be ‘independent’, and we critically assess the impact of the development in the Court's interpretation of the independence criterion regarding Articles 19 TEU and 47 of the Charter on administrative bodies’ access to make preliminary references (Part IV). We round off our article by summing up our conclusions (Part V).
II. ADMINISTRATIVE BODIES AND THE FIRST FIVE CRITERIA
A. Overview
In order to establish whether an entity making a preliminary reference is a ‘court or tribunal’ of a Member State within the meaning of Article 267, the Court will take into account a number of organisational aspects. It is possible to distil from the Court of Justice's case law these criteria: (1) has the entity been established by law; (2) does the entity have a permanent character; (3) is the entity a compulsory jurisdiction; (4) does the entity apply an adversary procedure; and (5) does the entity render its decisions on the basis of legal rules. In addition to these organisational criteria, a referring entity (including also those entities that undoubtedly constitute a court or tribunal of a Member State) must fulfil a functional requirement: (6) namely, that the preliminary reference must originate from a dispute pending before the referring entity and that the reference must have been made in order to allow this entity to rule on the dispute.Footnote 6 Finally, today (2022), one organisational criterion has come to stand out as particularly important when it comes to determining whether an administrative body can make preliminary references: (7) whether the entity is ‘independent’. This includes considering, where relevant, whether the referring entity acts as a third party in relation to the authority which adopted the contested decision.Footnote 7
B. Established by Law and Has Permanent Character
The criterion that the entity must have been established by law is unlikely not to have been met with regard to administrative bodies. Indeed, it makes no difference whether the body has been established by primary or subordinate legislation.Footnote 8 Likewise, it does not matter whether the body was established by a law that, at the same time, restricts the body's jurisdiction to the cases that this law concerns.Footnote 9
Similarly, administrative bodies will normally also fulfil the criterion that the entity must have permanent character.
C. Jurisdiction Must Be Compulsory
By contrast, the third criterion, that the jurisdiction of the entity in question must be compulsory, raises questions with respect to administrative bodies tasked with rendering decisions. This criterion is made up of two components. Firstly, that the decision of the referring national entity must be binding on the parties. And secondly, that the parties cannot themselves choose whether the case should be dealt with by the entity in question. The first of these components will normally be met by administrative bodies that are to render decisions; not least since the Court of Justice does not appear to require that national legislation provides for the determinations made by the referring entity to be directly enforceable.Footnote 10 On the other hand, the Court will refuse to render a preliminary ruling where the referring entity will only use the ruling to give an advisory opinion.Footnote 11
On the face of it, some administrative bodies may find it difficult to fulfil the requirement that the parties may not themselves be able to choose whether the case should be dealt with by the body in question.Footnote 12 However, the Court of Justice does not require that an action or an appeal before such a body is the only remedy available. An administrative dispute settling body may constitute a ‘court or tribunal’ within the meaning of Article 267 even though a party has a choice between instituting proceedings before the administrative body or before the ordinary courts; provided that the administrative body will have jurisdiction, and will be able to issue binding decisions, even if the defendant objects to the choice of forum.Footnote 13 This means that, for instance, an administrative appeal board may constitute a ‘court or tribunal’ capable of making a preliminary reference even though the party challenging an administrative decision before this appeal board is free to bring the matter (directly) before the ordinary national courts.
D. Adversary Procedure
According to the fourth criterion, the entity in question should apply an adversary procedure. While adversary procedure is generally used by bodies belonging to the Member States’ judicial systems, such procedure has, traditionally, been less pronounced within the national administrative systems. Nevertheless, it will probably only be in rare situations that failure to meet this criterion will lead the Court of Justice to decline to answer a preliminary reference from an administrative body. Firstly, because adversary procedure certainly is not an absolute condition for a body to be allowed to make a reference for a preliminary ruling—on the contrary, the criterion is only attributed limited weight.Footnote 14 Secondly, because it is not a precondition that the parties are entitled to make oral arguments before the referring entity. And thirdly, the Court of Justice has established a general principle of the right to be heard which applies whenever the Member States’ administrative bodies adopt decisions within the field of application of EU law.Footnote 15 From this it follows that the national administrative authorities will normally have to apply an adversary procedure even if this is not required under the applicable national rules.
E. Decisions on the Basis of Legal Rules
The fifth criterion that the entity must make its decisions on the basis of legal rules rarely gives rise to questions with regard to decisions by administrative bodies. Thus, in the great majority of cases concerning public law, where the principle of legality and attributed powers normally prevail, this criterion will be satisfied. This is so even if, in addition to applying legal rules, the body is required to render its decisions according to what appears fair and reasonable.Footnote 16
The criterion that an entity must decide on the basis of legal rules has also been considered where there was no doubt that the referring entity would decide the substance of the main proceedings upon the basis of legal rules, but where it was questioned whether the procedural rules that applied in reaching the substantive decision, could be qualified as legal rules. This problem has proven to be relevant in respect of some public administrative bodies. For example, in the Dorsch Consult case, part of the objection against admitting the preliminary reference was based on the fact that the referring body itself had adopted the rules of procedure in question and that these rules of procedure did not take effect in relation to third parties and had not been published. The Court of Justice found that, even in this situation, the criterion that the referring body must decide on the basis of legal rules can be satisfied.Footnote 17
Having considered the five first criteria, we must now turn to the two last criteria which are of particular importance when it comes to determining whether a public administrative body can make a preliminary reference; namely, firstly, whether there is a dispute pending before the administrative body as well as whether the preliminary reference is made with a view to rendering a decision in this dispute. And, secondly, whether the body is independent vis-à-vis the authority whose decision the body is to rule upon. As will be clear from our analysis below, the application of these two criteria means that only a limited number of public administrative bodies can be considered a ‘court or tribunal’ within the meaning of Article 267.
III. SETTLEMENT OF A DISPUTE
A. Type of Bodies
As we have explained in the introduction, the purpose of Article 267 is to assert the Court of Justice's function to assist national courts with the interpretation of EU law in connection with the referring entities’ decisions on disputes. For this reason, the Court has ruled that it does not have jurisdiction under Article 267 unless the case in question concerns the settlement of a dispute through a decision of a judicial nature, ie, to adjudicate on a dispute between two parties both being independent of the decision-making entity.Footnote 18
Public bodies carry out a multitude of tasks; schools provide education to children, hospitals provide health services, and the police undertakes law enforcement. Such exercise of executive power clearly does not constitute adjudication of disputes.
In ANAS the Court of Justice found that the Italian Court of Auditors did not qualify as a court for the purpose of Article 267, since the power of review which the Court of Auditors exercised in the specific main proceedings consisted essentially in the evaluation and verification of the results of administrative action. Therefore, in the context in which the reference was made, the auditing body was not performing judicial functions.Footnote 19
Even where the administrative authorities issue binding decisions, in relative terms it is a rare occurrence that they undertake adjudicative functions. Indeed, in the vast majority of situations where an administrative body issues a decision vis-à-vis a third party, this will not concern a judicial dispute, but rather it will be the administrative body deciding to grant to or to impose upon the third party certain rights or obligations vis-à-vis the administrative body itself. For instance, a construction permit, an obligation to pay a parking ticket, or a tax exemption. In such situations, the ‘conflictive’ nature of the proceedings in which the decision is adopted is missing.
In Victoria Film, the Swedish Revenue Law Commission (Skatterättsnämnden) had to give binding preliminary decisions on whether there was a duty to pay value-added tax in certain circumstances. Victoria Film argued that the Swedish rules were contrary to the EU rules, and the Revenue Law Commission therefore referred this question to the Court of Justice. The Court found that, although there were circumstances indicating that the Revenue Law Commission performed a judicial function, it was not tasked with examining the legality of the tax authorities’ decisions. On the contrary, its role was to take the initial decision on the taxation of certain transactions. Therefore, in the case in question, the Revenue Law Commission exercised a non-judicial function that, in other Member States, was exercised by the tax authorities themselves. Consequently, the Court of Justice declined jurisdiction to answer the preliminary question.Footnote 20
Only where the administrative body is to settle a dispute it may qualify as a ‘court or tribunal’ within the meaning of Article 267. In practice, public administrative dispute settling bodies are likely to take one of two appearances.
The first is where the administrative body has been established to decide disputes (as a first instance entity) between two private parties. This could be public bodies deciding disputes between an applicant to an intellectual property right and firms opposing that such rights be accorded. Or it could be cases where a consumer and a business disagree regarding a consumer purchase and where the consumer may bring this disagreement before an administrative body that can adjudicate on the matter. In such situations, the dispute settlement function of the administrative body is likely to have considerable similarities to the dispute settlement provided by the ordinary court system, where one party files a suit against the other party. The same would seem to be the case with regard to an administrative dispute settling body where a public entity lodges a complaint before such body with a request that the latter issue an order against an undertaking whereupon the public entity lodging the complaint and the undertaking subject to the order become adversary parties to a dispute before the administrative dispute settling body.Footnote 21
The second appearance is where a private party asks an administrative appeal body to adjudicate on a disagreement between the private party and a public administrative body. Typically, this situation arises where a private party brings an appeal against a decision of a public administrative body to a superior administrative body. A classic example would be where a private party disagrees with a decision of the tax authorities and therefore institutes an appeal before an administrative tax appeal board.Footnote 22 Similarly, if Ms Green receives a construction permit to build a new house whereupon Ms Green's neighbour, Ms Grey, goes on to challenge this permission before an administrative appeal board established to hear such cases, there will be a settlement of a dispute.Footnote 23 A typical example of this kind of entities is public procurement appeal bodies.Footnote 24
B. Is the Procedural Set-Up Akin to that of a Court or that of an Administrative Body?
The fact that the body in question makes binding decisions between two parties does not suffice to consider the ‘settlement of a dispute’ criterion to be fulfilled. As we have explained in the preceding Section, the decision whereby the administrative body settles the dispute must also be of ‘judicial nature’. Therefore, the Court of Justice often examines whether the procedure pertaining to the referring administrative body in question provides indications as to whether the body proceeds in a manner akin to that of a court or, by contrast, whether the referring body rather shares characteristics of a traditional administrative body. If the latter is the case, this might in itself lead the Court to render the preliminary reference inadmissible on the basis that the referring body does not qualify as a ‘court or tribunal’ in the sense of Article 267. In this respect, when the judicial character of the body as such is not straightforward the Court might take a stricter approach when assessing the judicial nature of the decision that the national body is to take.Footnote 25
The Court of Justice's case law offers several examples of procedural rules that point to the body having the characteristics of an administrative body meaning that it will not be able to make a preliminary reference. Thus, rules according to which the body may initiate proceedings ex officio Footnote 26 or that vest in the body powers of investigation to gather the evidence for the case it is to adjudicate upon will be clear indications that the body is not a ‘court or tribunal’ as laid down in Article 267.Footnote 27 The same will be the case where the administrative body has the power to join to the proceedings, of its own motion, other persons than those appointed by the party that had brought the action before the administrative body by way of an application or a complaint.Footnote 28 Also, where the administrative body cooperates with other bodies of administrative nature (including the European Commission), the Court considers this to weigh against admitting a preliminary reference from the first-mentioned administrative body.Footnote 29 Similarly, if the administrative body may itself enforce the decisions that it adopts with the appropriate penalties, this will be indicative of its decisions being administrative.Footnote 30 The same is true where, following an appeal to the ordinary courts of the Member State against the decision of the administrative body, this body will act as a defendant in the court proceedings—and possibly even have the right to appeal the subsequent judgment to a higher court in the same manner as the opposing party.Footnote 31 Finally, it is apparent from the Court of Justice's case law that it will point to the body not having the characteristics of a ‘court or tribunal’ if it may decide to revoke its decision in case that decision is brought before the (ordinary) courts.Footnote 32
Moreover, sometimes (but far from always) the Court of Justice also attaches importance to whether the decision taken by the referring administrative body has the attributes of a judicial decision, in particular the force of res judicata.Footnote 33 The same goes for whether the institution of proceedings before the body precludes proceedings from being brought before the ordinary courts on grounds of lis pendens.Footnote 34 Finally, in at least one case the Court of Justice has admitted a preliminary reference from an administrative body, noting that the decisions issued by the referring body ‘has not only the form and the content of a judgment …, but is also designated as such’.Footnote 35 Along the same lines, in cases where the referring body was considered not to be able to refer, occasionally the Court of Justice has, as an incidental observation, noted that also under national law the proceedings before the referring body were expressly qualified as ‘administrative’.Footnote 36
Some administrative dispute settling bodies may be difficult to fit into the categories established by the Court of Justice. For example, there are numerous national bodies that have both administrative and judicial (adjudicative) functions, and where the Court will have to determine whether, in relation to the main action giving rise to the specific preliminary reference, this reference is made as part of one or the other such function. In order to establish whether a national body, entrusted by law with different categories of function, is to be regarded as a ‘court or tribunal’ within the meaning of Article 267, it must be determined in what specific capacity—judicial or administrative—it is acting within the particular legal context in which it seeks a ruling from the Court, in order for it to be ascertained whether there is a case pending before it and whether it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature.Footnote 37
IV. INDEPENDENCE
A. The Foundations for the Requirement of Independence
If the administrative body making the preliminary reference is found to perform a dispute settling function, in accordance with what has been set out in Part III above, the degree of the body's ‘independence’ will often be decisive for whether the Court of Justice will admit the reference. Indeed, as argued by Advocate General Stix Hackl, the criterion of independence might be the most important distinction between national courts and administrative authorities,Footnote 38 and when the Court refuses to admit a preliminary reference from an administrative body, arguably, it is this criterion that these bodies most frequently fail to fulfil.
In 1966, in the Vaassen-Göbbels case, Advocate General Gand was the first to point to ‘independence’ as a relevant criterion when determining whether a referring entity qualifies as a ‘court or tribunal’ within the meaning of Article 267.Footnote 39 However, in its ruling in that case, the Court of Justice did not even mention ‘independence’, and more than twenty years were to pass before this criterion appeared in a ruling by the Court with respect to the question of an entity's access to make a preliminary reference under Article 267; namely in Pretore di Salò.Footnote 40 After the Court adopted ‘independence’ as a criterion, for several years it would apply a rather flexible interpretation thereof, allowing a broad variety of Member State entities to submit preliminary references, thereby furthering Article 267's underlying objective of ensuring a uniform interpretation and application of EU law throughout the Member States.Footnote 41 Several advocates general opined that the Court's flexible approach was too lax, but in this respect it is important to emphasise that under Article 267 the Court solely has to consider the independence criterion in order to decide upon its own jurisdiction. In other words, the independence criterion plays no role when it comes to ensuring impartial judicial protection before the national courts, and, with regard to Article 267, the independence criterion is not a requirement imposed by EU law, but rather it is a criterion that those bodies, seeking advice from the Court, will have to meet when asking a preliminary question. Therefore, where the Court of Justice refuses to admit a preliminary reference on the basis that the referring entity is not ‘independent’ within the context of Article 267, this will not in itself have any adverse consequences for the organisation or the functioning of the referring entity, and will not imply an infringement of EU law on the part of the referring entity's Member State.Footnote 42
However, after the entry into the new millennium, the Court of Justice has changed its course with respect to its construction of the independence criterion. Thus, the Court has underlined that the independence of the judges of the Member States is of fundamental importance for the EU legal order, and that the criterion is essential to the proper working of the judicial-cooperation system between the Court of Justice and the judiciaries of the Member States as embodied by the preliminary-ruling mechanism, in that that mechanism may be activated only by an entity responsible for applying EU law which satisfies the independence criterion.Footnote 43
Below we first set out to analyse how the Court of Justice construes the independence criterion today (ie, in 2022). Our analysis will show that the Court has replaced the very flexible approach it originally took by a much more rigorous one. Based on this finding, we turn to consider the likely causes to this more rigorous construction of the criterion. And we critically examine the consequences this new, rigorous approach has for administrative bodies’ access to submit preliminary references—and ultimately for the Court's realisation of the objectives underlying Article 267.
B. The Court's Transformation of the Construction of the Independence Criterion
1. Overview
The independence criterion has two dimensions, one external the other internal. The external aspect requires that the entity concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other entity and without taking orders or instructions from any source whatsoever, being thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.Footnote 44 The internal aspect of the concept of ‘independence’ is linked to ‘impartiality’ and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.Footnote 45
The internal and external aspects of independence are closely linked—and may even be difficult to distinguish from one-another. The Court of Justice therefore frequently undertakes a joint examination of all the factors making up the two aspects without singling out whether any of the factors has been decisive.Footnote 46
With a view to ensuring the independence and impartiality of the referring administrative body, both objectively and in the eye of the beholder, the Court puts weight on the national rules relating to a number of aspects of the members of the body. In this respect, the Court focuses on the legal framework and rarely examines the personal impartiality of the individual members of the body in the actual case in connection with which a reference is made.Footnote 47 A consequence of this systemic approach is that where the legal basis for the referring administrative body does not in general ensure that body's necessary independence, it is immaterial whether, in the actual case that gives rise to the preliminary reference, there is or is not a problem of independence of the referring body.
2. Appointment of the members of the referring entity
As for the appointment of the members of the referring body, the Court of Justice does not require that this is made by an entity which is not itself part of the administration, such as a special judicial appointments council. Indeed, it appears that the Court of Justice does not insist that the members are not appointed by the executive power of the Member State, such as for example by the minister responsible for the area where the body is to be active.Footnote 48 By contrast, it will be a problem if the members are appointed by (representatives for) those professional organisations etc. which the body has been created to control.Footnote 49 The same is true where the entity which appoints the members of the controlling administrative body also is the entity whose decisions the administrative body is to control.Footnote 50
In Minister Sprawiedliwości, the members of the disciplinary court of the local Bar Association were elected by the college of lawyers enrolled on the register of the Bar Association concerned. The Court of Justice found that having regard, in particular, to their collective nature acts of election or re-election of the members of the disciplinary court by the General Assembly of the some 5,500 lawyers enrolled on the register of the local Bar Association were not such as to give rise to doubts as to the independence and impartiality of the members thus elected.Footnote 51
The Court of Justice also finds that a referring entity commands sufficient independence where its members have only been appointed for a time-limited period, provided that they are protected against dismissal in the same way as are ordinary judges.Footnote 52 It appears that what is decisive is that the term of office has been predetermined by law and not left to the discretionary choice of the person who has the power of appointment.Footnote 53 By contrast, the Court only exceptionally mentions the length of the term of office.Footnote 54 Indeed, in a ruling from 1999 the Court of Justice has accepted a renewable term of office of only one year.Footnote 55
Where the members are protected against dismissal in the same way as are ordinary judges, the Court of Justice does not appear to attach significance to whether or not the members’ term of office may be renewed.Footnote 56 Still, we would argue that where a member of an administrative dispute settling body is to have his or her term of office renewed this may compromise that member's independence much in the same way as where the member could be subject to being removed from office.Footnote 57 Indeed, it would seem more likely that the independence of a member of an administrative dispute settling body will be materially compromised where this member is aiming at re-appointment as compared with where the member is removed from office before the end of his or her term.Footnote 58
3. Composition and qualifications of the members of the referring entity
With regard to the composition of the referring entity, it appears from the Court of Justice's case law that where a preliminary reference from an administrative body is admitted, typically this body is a board (of appeal) consisting of several members with different educational backgrounds and with their main occupation outside the administrative body in question. However, it is equally clear from the Court's case law that there is no requirement that the referring entity must have more members. Thus, a preliminary reference may also be made by an entity consisting of only a single member.Footnote 59
Frequently, several of the members of referring administrative bodies are non-lawyers. The question therefore is whether this plays a role when the Court of Justice decides whether or not to admit a preliminary reference from such body. The Court has not established any requirements as to the educational and professional background of the members of the referring entity and it is clear from the Court's case law that it does not require all the members of a referring entity to have a legal background.Footnote 60 Moreover, the Court does not habitually examine the background of the members of the referring entity before deciding on whether or not to admit the preliminary reference. Still, it is not possible to completely rule out that where other criteria do not provide a clear answer as to whether or not an administrative body qualifies as a ‘court or tribunal’, when deciding whether this referring administrative body qualifies as a ‘court or a tribunal’ for the purposes of Article 267, the Court may take into account how many of the members have legal qualifications as lawyers or judges.Footnote 61
4. Irremovability of the members of the referring entity
The Court of Justice's case law regarding the irremovability of the members of the referring entity has undergone a remarkable development. Thus, if we go back in time, the Court would not insist that there was in place legislation offering the members of a referring administrative dispute settling body the same guarantees against removal as the ones enjoyed by judges. Therefore, the fact that the members of a referring entity only enjoyed the same protection as did administrative officials would not in itself lead the Court to render the preliminary reference inadmissible.
In 1999, in the case of Köllensperger and Atzwanger, the Court received a preliminary reference from the Austrian ‘Procurement Office of the Land of Tyrol’. When considering whether the referring body constituted a ‘court or tribunal’ within the meaning of Article 267, the Court observed that the law governing that body included a vague passage referring to the cancellation of the appointments of the referring body's members and did not contain any specific provisions on the rejection or withdrawal of members. Still, the Court merely stated that it was not for it to infer that such a provision would be applied in a manner contrary to the Austrian Constitution and the principles of a State governed by the rule of law. The reference was therefore admitted.Footnote 62
Similarly, in Abrahamsson and Anderson from 2000, the Court received a preliminary reference from the Swedish ‘Universities' Appeals Board’. In his Opinion, Advocate General Saggio pointed out that when it came to the removal of the members of the referring body, there were no specific rules on the conditions and detailed arrangements for terminating their appointments. According to Saggio it did not suffice that according to a principle enshrined in a Swedish constitutional rule all national authorities were independent. Rather, according to him, independence must be guaranteed by clear rules without engaging in complex interpretative operations to identify and prove their right to be assessed by independent bodies.Footnote 63 Nevertheless, the Court merely dryly observed that it was clear from the provisions of the Swedish Constitution that the referring body gave judgment without receiving any instructions and in total impartiality on appeals. Hence, the body had to be treated as a court or tribunal within the meaning of Article 267 of the Treaty.Footnote 64
By contrast, in 2021 it will not suffice if the members of a referring body only enjoy protection against removal that is similar to the protection enjoyed by normal administrative officials of the Member State.Footnote 65 Thus, it is clear from the Court of Justice's case law that members of a referring entity may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. This is not to say that a member of a referring entity cannot be removed. However, the Court has made it clear that the guarantee of irremovability of such a member requires that dismissals of members of a referring entity should be determined by specific rules, by means of express legislative provisions offering safeguards that go beyond those provided for by the general rules of administrative and employment law which apply in the event of an unlawful dismissal.Footnote 66 The Court has also underlined that the requirement of independence means that the disciplinary regime governing those who have the task of adjudicating in a dispute must display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions; a statement which prior to 2015 probably would have been found to be superfluous and which would have seemed to inappropriately throw suspicion upon the Member State of the adjudicating entities a few years ago.Footnote 67
Perhaps the best illustration of the development of the Court of Justice's case law we find when comparing how the Court treated a preliminary reference from a Spanish Tribunales Económico-Administrativos (tax tribunal) in 2000 as compared to how a reference from the same type of body was treated in 2020. Thus, in Gabalfrisa the Court's Grand Chamber admitted a preliminary reference from a Spanish tax tribunal even though the president, the presidents of chambers and the members were nominated from among the officials in the administrative authorities mentioned in the description of the post and were removed from office by decision of the Minister for Economic Affairs and Finance.Footnote 68 By contrast, in Banco de Santander the Court re-examined its case law and no longer found that a Spanish tax tribunal constituted a ‘court or tribunal’ and the Court therefore refused to admit a preliminary reference.Footnote 69
With particular regard to referring administrative bodies, the Court of Justice does not insist that every single member thereof must be protected against dismissal in the same way as judges of the ordinary courts are protected. Rather, the Court takes a holistic approach whereby it considers the independence of the administrative body as a whole.
For example, in its 2016-ruling of MT Højgaard concerning a reference from the Danish Klagenævnet for Udbud (Public Procurement Complaints Board), the Court ruled that a referring body may be sufficiently independent where some of the members enjoyed the protection against dismissal that applied to judges, whereas other members of the same body did not enjoy particular protection—given that the votes of those who enjoyed particular protection had the greater weight.Footnote 70
In this respect, the Court of Justice appears to put emphasis upon the rules that apply to the specific members of the referring entity in the actual case giving rise to the preliminary reference. Thus, if the referring entity may be composed of members who are sufficiently protected against dismissal as well as members who are not sufficiently protected, the Court has been ready to examine whether, in the specific case giving rise to the preliminary reference, the actual members of the referring entity fall in one or the other of these two categories.Footnote 71
5. Are the members of the referring entities subject to instruction?
In order to fulfil the requirement of independence, the referring entity must exercise its functions wholly autonomously without being subject to any hierarchical constraint, subordinated to any other entity, and without taking orders or instructions from any other source.Footnote 72 Therefore, if the administrative dispute settling body must refer to a minister, or if the minister has the power to direct the body, the body will not be able to make a preliminary reference under Article 267. It follows that neither a ministry nor its subordinate agencies will be able to make a preliminary reference.Footnote 73
In Pilato, the Court of Justice received a preliminary reference from the French prud'homie de pêche de Martigues. When examining the reference, the Court observed that the members of the referring entity were subject, at least in some of their activities, to supervision by the administration; that the members were required to swear an oath in which they would promise, inter alia, to ‘comply with the orders which they were given by their superiors’; and that the process of dismissing a member of the referring entity did not appear to be subject to specific guarantees which removed any reasonable doubt as to the imperviousness of the referring entity to external factors. Consequently, the Court found that the referring entity did not enjoy sufficient independence to be competent to make a preliminary reference.Footnote 74
Similarly, if the decisions of an administrative dispute settling body can be appealed to the ministry by legal recourse the administrative body will not be considered to be sufficiently independent. Thus, the Court of Justice has found that it compromises the independence of an administrative dispute settling body if a member of the administration has the competence to review the lawfulness of the body's decisions.
In Banco de Santander, the Court of Justice received a preliminary reference from the Central Tax Tribunal of Spain (Tribunal Económico-Administrativo Central, TEAC). When considering whether this body could be considered to constitute a ‘court or tribunal’ within the meaning of Article 267, the Court of Justice particularly examined the TEAC's relationship with the Spanish Ministry of the Economy and Finance. In this respect, the Court observed that there was indeed a separation of functions within the Ministry of the Economy and Finance between, on the one hand, the departments of the tax authority responsible for management, clearance, and recovery of tax and, on the other hand, the regional tax tribunals (Tribunales Económico-Administrativos, TEAs), which ruled on complaints lodged against the decisions of those departments. Nevertheless, the Spanish rules provided for an extraordinary appeal procedure whereby only the Director-General of Taxation of the Ministry of the Economy and Finance could lodge an extraordinary appeal against decisions of the TEAC. Moreover, in so doing, this Director-General would automatically be appointed part of the eight-person panel that was to hear the appeal, alongside the Director-General or the Director of the department of the State Tax Administration Agency (to which the body, issuing the act referred to in the decision that was the object of said extraordinary appeal, belonged). In other words, the role of party to the extraordinary appeal procedure was conflated with that of being a member of the body that was to hear such an appeal. The Court of Justice further observed that the prospect of such an extraordinary appeal being brought by the Director-General of Taxation of the Ministry of the Economy and Finance against a decision of the TEAC was likely to exert pressure on the latter and thus cast doubt on its independence as well as its impartiality. When viewed together, those organisational and functional links between the TEAC and the Ministry of the Economy and Finance department meant that the TEAC could not be regarded as a third party in relation to that administration. Consequently, the TEAC did not satisfy the requirement of independence which characterises a ‘court or tribunal’.Footnote 75
6. Are there other links between the body and the administration?
Prior to the 2010s, for a referring entity to be sufficiently independent, it seemed sufficient that national law did not provide for means of instruction or ex post control from the administration. When national law did not so provide and when the referring entity claimed that it was independent, the Court of Justice normally did not go into much more detail.Footnote 76 The Court would simply rely on the entity's presentation of itself and would consider that it was not for the Court to infer that provisions pertaining to the referring entity were applied in a manner contrary to ‘the principles of a State governed by the rule of law’.Footnote 77
For example, in Nidera Handelskompagnie, the Court of Justice received a preliminary reference from the Lithuanian Tax Disputes Commission that formed part of the organisational structure of the Lithuanian Ministry of Finance, to which it was required to submit annual reports and obliged to cooperate. As part of the preliminary procedure, the Court questioned the Lithuanian Government with regard to the referring entity's obligation to cooperate with the Lithuanian Ministry of Finance. Still, since the Government stated that it knew of no cases in which the Tax Disputes Commission had received, from that Ministry, instructions or guidance as to the solution which would be preferred in a certain case the Court of Justice went on to admit the reference.Footnote 78
However, in particular during the 2010s, the Court of Justice tightened the requirements regarding what types of influences that will lead to a finding that a referring entity is not sufficiently independent. Thus, the Court of Justice came to require that ‘an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings’.Footnote 79 In relation to administrative dispute-settling bodies, this particularly meant an emphasis on influences that were more indirect and which were liable to have an effect on the referring entity's decisions after the preliminary ruling had been rendered.Footnote 80 Therefore, the Court insists that the referring entity must be protected against external interventions or pressures liable to impair the independent judgment of its members and influence their decisions.Footnote 81 Moreover, the Court has held that, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive.Footnote 82 For that reason, the Court of Justice considers whether there is a functional link between the administrative dispute settling body and the administration. To put it differently, the Court considers whether the administrative dispute settling body's role and that of the administration are clearly distinct—or whether they are conflated. Such conflation is particularly likely to arise where there is a functional link between the two; for example a personal link between the administrative dispute settling body and the secretariat providing support to the body.Footnote 83
By contrast, an administrative appeal body is not sufficiently independent if the body's chairman is also an employee of the administration (and subject to directions from superiors in the administration) whose decisions are tried before the administrative appeal body. This is in particular so where the chairman in his/her capacity of employee of the administration may bring an appeal against decisions of the administrative appeal body (meaning that the chairman will support a view that conflicts with that of the administrative appeal body).
In the Greek Competition Commission case of Syfait, the Court of Justice scrutinised the organisational and functional link between the referring administrative appeal board and other public bodies with an interest in the decision to be taken. The applicable Greek law stipulated that the members were to benefit from independence in their work for the Competition Commission. In addition, there was a secretariat associated with the Competition Commission. This secretariat was responsible for the investigation of cases and the preparation of recommendations to the Competition Commission for its decisions. The chairman of the Competition Commission was simultaneously the head of the secretariat and was thus formally responsible for its management. Whereas, in its preliminary reference, the Competition Commission stated that the secretariat acted independently of the Competition Commission itself, no reference was made to rules or procedures which ensured this independence. The Court of Justice found that the Competition Commission did not qualify as a ‘court or tribunal’ within the meaning of Article 267. This finding the Court based upon four observations of which two concerned conflation of the Competition Commission role as an (independent) dispute settling body and that of the administration. Thus, the Court observed that the Greek Minister for Development was empowered to review the lawfulness of the decisions of the Competition Commission. The Court also observed that there was a functional link between the Competition Commission and its secretariat, so it was not a clearly distinct third party in relation to the State body which, by virtue of its role, may be akin to a party in the course of competition proceedings. The Court of Justice therefore declined to answer the preliminary question.Footnote 84
7. Will the referring entity be a party to the appeal procedure where an appeal is lodged against its decision?
The Court of Justice is also concerned with whether the administrative dispute settling body continues to play a role where a party to the dispute files an appeal after the body's decision. In Section III.B, in relation to the issue as to whether the administrative body makes decisions of a judicial nature, we have already noted that in cases where, following an appeal of the administrative dispute settling body's decision, the body itself can (or must) join the appeal proceedings—where it must argue in favour of its own decision (and thus against the party who lost the case before the administrative dispute settling body)—this indicates that the decisions of the body will be considered to be of an administrative nature. By contrast, if the parties in an appeal case will be the same as those which appeared before the administrative body in question, this will support a finding that the administrative body is judicial. For reasons not known to us, the Court occasionally decides not to deal with this issue in the context of whether the body makes judicial decisions, but instead in relation to the issue of independence and impartiality.Footnote 85 In any event, the net effect is the same.
C. Explaining the Causes to the Court of Justice's New Construction of the Independence Criterion
Above we have seen that in order to be considered a ‘court or tribunal’ within the meaning of Article 267, a referring entity must fulfil a number of criteria—and that two of these criteria are particularly important with respect to administrative bodies: (1) they must settle disputes; and (2) they must be independent. We have also seen that the Court of Justice's approach towards preliminary references from administrative dispute settling bodies of a quasi-judicial nature has undergone a remarkable development from being very accommodating to being appreciably more rigorous and narrow. Moreover, we have been able to show that this raising of the bar regarding such bodies’ access to use the preliminary reference procedure, first and foremost, is attributable to the Court's on-going construction of the independence criterion.
Arguably, the principal target of the Court of Justice's development of the independence criterion has not really been the preliminary reference procedure. Rather, the Court's increased focus upon the concept of ‘independence’ in relation to Member State courts first of all may be attributed to the rule of law developments in a number of the newer Member States such as Poland and Hungary—where the executive branch has put the judiciary under undue pressure. This genuine concern, Koen Lenaerts, President of the Court of Justice, in 2020 phrased in the following terms:
once a Member State decides to join the EU, it must comply with a set of common values. It is thus assumed that after taking up EU membership such a State will remain committed to defending liberal democracy, fundamental rights, and a government of laws, not men. Recent developments show that this assumption cannot simply be taken for granted.Footnote 86
Essentially, the protection of European liberal democracy, fundamental rights, and the rule of law through the national courts of the Member States are guaranteed through Article 19(1) TEUFootnote 87 and Article 47 of the Charter. These two provisions provide, inter alia, as follows:
Article 19(1) TEU
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
Article 47 of the Charter
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before … an independent and impartial tribunal previously established by law.
In other words, there are compelling reasons why the Court of Justice should engage in a rigorous interpretation of the independence requirement vis-à-vis Member State courts. However, as has become clear from our examination of the construction of the independence criterion with respect to the definition of a ‘court or tribunal’ within Article 267, this has had a recognisable ‘spill-over effect’ within the field of preliminary references. Thus, as explained by the Court in its ruling in Minister for Justice and Equality:
In accordance with Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, it is for the national courts and tribunals and the Court of Justice to ensure the full application of EU law in all Member States and judicial protection of the rights of individuals under that law …. The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law …. It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law meet the requirements of effective judicial protection …. In order for that protection to be ensured, maintaining the independence of those bodies is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy …. The independence of national courts and tribunals is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU, in that, in accordance with the Court's settled case-law, that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence ….Footnote 88
As will be clear, the Court of Justice's more rigorous construction of the independence criterion with regard to Article 19 TEUFootnote 89 and Article 47 of the CharterFootnote 90 springs from its duty to protect the European Union's fundamental values,Footnote 91 and the Court has made it clear that the same strict construction must be applied to Article 267.Footnote 92 In other words, the spill-over effect is not only recognisable but also deliberate. Whereas it goes without saying that the Court's protection of the European Union's fundamental values is more than merely legitimate, the interlocking of the definition of the independence criterion applied to Articles 19 TEU and 47 of the Charter with the same criterion applied to Article 267 TFEUFootnote 93 has meant that a considerable number of administrative dispute settling bodies no longer have access to use the preliminary reference procedure. The consequence is that the Court's previous accommodating approach towards preliminary references from administrative dispute settling bodies has been replaced by an approach where, in 2022, only administrative bodies that have nearly the same characteristics as the ordinary courts can make preliminary references. This exclusion of many administrative dispute settling bodies from the preliminary reference procedure would seem to constitute ‘collateral damage’ in the Court's fight for the protection of the rule of law and similar fundamental values of the European Union.Footnote 94
As we have shown in Section IV.B above,Footnote 95 for an administrative dispute settling body to be able to make a preliminary reference, the Court of Justice has tightened its requirements with respect to the safeguards that must be in place against undue intervention in its decision making as well as against pressure on its members; in particular with regard to intervention and pressure stemming from the public administration of the body's Member State. Thus, whereas previously the Court would be satisfied that a referring body enjoyed sufficient independence where the national legislation in a non-specific way provided that the members of the body were to exercise their roles wholly independently and under their own responsibility, in the 2020s the Court only considers the referring administrative body to be sufficiently independent if these provisions are backed by legislative provisions providing specific safeguards.Footnote 96 Moreover, where the referring administrative body is to adjudicate upon a decision adopted by another administrative body, the Court of Justice has, in particular from the 2010s, construed the independence criterion so as to mean that the referring body must act as a third party in relation to the administrative body which adopted the contested decision as well as in relation to the authority to which this body belongs.
When it comes to appointment of members of administrative dispute settling bodies, the Court of Justice is willing to consider a referring body to constitute a ‘court or tribunal’ within the meaning of Article 267 even though its members are appointed or re-appointed by the executive.Footnote 97 By contrast, the Court appears to have taken a somewhat stricter approach when it comes to the requirements laid down in Article 19(1) TEU.Footnote 98 The question is whether, in the future, the Court will transfer the latter, stricter approach to the notion of a ‘court or tribunal’ as laid down in Article 267? On the one hand, the Court seems to maintain that there shall be only one definition of a ‘court or tribunal’ within EU law.Footnote 99 On the other hand, if the Court were to insist that in order for an administrative dispute settling body to be considered a ‘court or tribunal’ within the meaning of Article 267, the members of the body may not be appointed by the executive, this would very likely mean a further substantial reduction in the number of such bodies that may use the preliminary reference procedure.
D. A Critical Assessment of the Court of Justice's New Construction of the Independence Criterion
Koen Lenaerts, President of the Court of Justice, has explained the Court's rigorous requirements with regard to the independence of national judges in the following way: ‘By protecting national judges’ independence through Article 19 TEU, the Court thus also protects national judges as the arm of EU law (or, put more simply, as “European judges”); by extension, it preserves the uniformity and effectiveness of EU law which the preliminary ruling procedure seeks to achieve’.Footnote 100 Arguably, the need to protect national judges’ independence through Article 19 TEU also applies to Article 47 of the Charter.
With particular regard to the construction of the notion of a ‘court or tribunal’ laid down in Article 267 TFEU, President Lenaerts has argued that ‘in order to have access to the preliminary reference procedure national courts must be independent because only those courts can be trusted with applying loyally the law of the EU, as interpreted by the ECJ’.Footnote 101
We fully agree with President Lenaerts that there is a particular need to protect the independence of national judges through Articles 19 TEU and 47 of the Charter. And we also agree that it is important that an entity making a preliminary reference will not be under pressure either when making the reference or when rendering its judgment after the Court of Justice has made its preliminary ruling. Still, we do not believe that the concept of independence within the three provisions must necessarily be fully congruent.Footnote 102
First of all, Article 19 TEU, Article 47 of the Charter, and Article 267 TFEU pursue different objectives and it may therefore be useful to recall that every provision of EU law must each be placed in its context and must be interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the specific provision in question is to be applied.Footnote 103
Articles 19 TEU and 47 of the Charter are both about ensuring access to effective legal protection in the fields covered by Union law and it is therefore only natural that the independence requirement relating to these two provisions bears close resemblance to the judicial protection as a fundamental right approach taken by the European Court of Human Rights under Article 6 ECHR. Indeed, considering that the European Union has been witnessing rule of law backsliding in Member States such as Poland and Hungary it makes good sense that its Court of Justice applies a rigorous construction of independence with respect to both Articles 19 TEU and 47 of the Charter. Similarly, such rigorous construction is indispensable in the context of the area of freedom, security and justice where the concepts of mutual trust and mutual recognition are the bedrocks for the functioning of, eg, the European arrest warrant.Footnote 104
By contrast, the purpose of the independence requirement under Article 267 is not to react to a systemic threat to the rule of law or to threats to the independence of the Member States’ judiciaries, and Article 267 does not require the Court of Justice to assess whether a specific piece of national legislation affects in an inappropriate manner the independence of the entire judiciary of the Member State of the referring entity.
To put this in other words, whereas, under Article 19 TEU, the Court assesses whether the independence of an entity that clearly belongs to a Member State's judiciary has been tampered with, under Article 267 the Court assesses whether an entity has such independence that it can be considered to be part of the European judiciary.
Article 267, first of all, is about ensuring the proper application and uniform interpretation of EU law in all the Member States, by establishing cooperation between the Court of Justice and national courts in their capacity as courts responsible for the application of EU law.Footnote 105 Or, in the words of Advocate General Tanchev:
The Court's assessment of the independence criterion in determining whether a body meets the criteria of a ‘court or tribunal’ for the purposes of submitting a reference for a preliminary ruling under Article 267 TFEU is a qualitatively different exercise than the assessment of whether the requirements of judicial independence have been complied with under Article 47 of the Charter, as well as the second subparagraph of Article 19(1) TEU.Footnote 106
This difference between, on the one hand, Articles 19 TEU and 47 of the Charter, and, on the other hand, Article 267, is also reflected in the fact that the two former provisions imply an obligation on the Member States to ensure access to independent courts—so that the Member States must ensure compliance with the independence criterion.Footnote 107 By contrast, when it comes to Article 267, the independence criterion is not an obligation weighing on the Member States, but merely a condition that the referring entity must meet in order to be able to make a preliminary reference. It is therefore rather unlikely that applying a strict construction of the independence criterion with regard to Article 267 will bring about changes in the Member States’ organisation of administrative dispute settling bodies.
Also, in some of the Member States, cases regarding certain substantive areas are almost exclusively treated by administrative dispute settling bodies and nearly never brought before the ordinary courts so that by only admitting preliminary references from ordinary courts, the Court of Justice de facto excludes these areas of law from being subject to preliminary rulings.Footnote 108 Moreover, the Court's case law regarding preliminary references from administrative dispute settling bodies leaves no impression of these bodies abusing the preliminary reference procedure. In addition, also considerations of judicial economy often favours allowing a reference to be made at the earliest possible stage of the main action giving rise to the reference, thereby avoiding the need for subsequent proceedings before a ‘genuine’ court in order to enable a preliminary reference to be made. Finally, national administrative authorities are both empowered and obliged to disapply national legislation that conflicts with EU law.Footnote 109 This also speaks in favour of taking an accommodating approach towards references from administrative dispute settling bodies, so as to ensure that any uncertainties as to the applicable EU rules are clarified before national legislation is disapplied.
We also submit that if the Court of Justice were to allow an appreciable number of administrative dispute settling bodies to continue to use the preliminary reference procedure this would not somehow weaken Articles 19 TEU and 47 of the Charter's safeguarding of the rule of law. Rather on the contrary, by precluding administrative dispute settling bodies from using the preliminary reference procedure, they will be less able to make a correct interpretation and application of EU law. Thus, to exclude entities from using the preliminary reference procedure because they do not fulfil the Court's (fully justified) high requirements pertaining to Article 19 TEU will not cure their shortcomings and so the exclusion will not contribute to the making of strong and independent Member State courts. It will merely restrict the perimeter of the preliminary ruling mechanism and thereby reduce the effective application of EU law in the Member States. The consequence is impairment of the uniform application of EU law throughout the Member States, and ultimately a likely weakening of the safeguarding of the rule of law within the European Union.Footnote 110
Consequently, we respectfully submit that applying the same independence criterion to Articles 19 TEU and 47 of the Charter and to Article 267 comes at an expense that is both appreciable and avoidable. In our opinion, there is nothing that obligates the Court to apply the exact same construction of the independence criterion to the delimitation of what constitutes a ‘court or tribunal’ whereas there are persuasive arguments in favour of applying diverging constructions.
V. CONCLUSION
The starting point for our analysis of the transformation of the Court of Justice's approach towards preliminary references from Member State administrative bodies is that in order for the Court of Justice to admit a preliminary reference, the Member State entity submitting the reference must be a ‘court or tribunal’ within the meaning of Article 267. The Treaties, however, do not provide guidance as to what is meant by ‘court or tribunal’. Instead, these terms have been defined through the Court's case law thereby allowing us to identify a number of criteria that are relevant for determining whether a Member State entity is competent to make preliminary references. From these criteria it follows that, as a main rule, Member State administrative bodies will not be competent to make preliminary references. Nevertheless, some administrative bodies which settle disputes and thus constitute quasi-judicial entities form an exception to this. In practice, these are bodies that either adjudicate in disputes between private parties or act as appellate bodies between private parties and the administration. Whether such ‘dispute settling’ bodies are entitled to submit a preliminary reference to the Court of Justice will normally depend upon whether the referring body commands sufficient ‘independence’ vis-à-vis both the parties to the dispute and the public administration as such.
Before the year 2000, the Court of Justice would generally take a rather accommodating approach towards preliminary references from dispute settling administrative bodies. However, after the turn of the millennium the Court gradually changed its course with respect to preliminary references from such bodies, and began to tighten the requirements with respect to whether the referring body was sufficiently independent. And from the mid-2010s the Court has tightened these requirements rather appreciably.
In this article we have shown that, from the mid-2010s, the Court of Justice's tightening of the requirements is closely related to the clear threats against the independence of the judiciary in some of the Member States—and the consequent more prominent roles that Articles 19 TEU and 47 of the Charter have come to play within the European Union. Whereas we fully acknowledge the importance of safeguarding the rule of law within the Union, we take a critical approach towards the fact that the strict construction of the independence criterion pursued by the Court of Justice with regard to Articles 19 TEU and 47 of the Charter is also applied to Article 267. Thus, we argue that the former provisions pursue objectives within the Union's legal order which are materially different from those pursued by Article 267 and we therefore submit that the Court should apply different constructions of the independence criterion with respect to these provisions.
In July 2020, in the Land Hessen case, the Court of Justice carefully explained that the independence of the judges of the Member States is of fundamental importance for the EU legal order in a number of respects: (1) With regard to the rule of law, which is one of the values on which the Union is founded and to which Article 19 TEU gives concrete expression. (2) As a necessary condition if individuals are to be guaranteed, within the scope of EU law, the fundamental right to an independent and impartial tribunal laid down in Article 47 of the Charter. (3) And that it is essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267.Footnote 111 However, the Court thereafter went on to observe that:
in order to determine the admissibility of a request for a preliminary ruling, the criterion relating to independence which the referring body must satisfy before it can be considered to be a ‘court or tribunal’, within the meaning of Article 267 TFEU, may be assessed solely in the light of that provision.Footnote 112
Arguably, this statement could be interpreted to mean that the Court of Justice is ready to construe the independence criterion relating to Article 267 separately from the same criterion relating to Articles 19 TEU and 47 of the Charter. And indeed, in two judgments from 2022, the Court of Justice confirmed that the scope of Article 267 are not in all respects identical to that of Articles 19 TEU and 47 of the Charter.Footnote 113 It follows that in order for the Court of Justice to answer a preliminary question, it is not invariably a requirement that the referring entity fulfils the independence requirement developed on the basis of Articles 19 TEU and 47 of the Charter. We would welcome if the Court were further to develop such separate constructions of the two sets of provisions.
