The European Court of Justice's Transformation of its Approach towards Preliminary References from Member State Administrative Bodies

Abstract

AbstractAccording to Article 267 TFEU, a ‘court or tribunal of a Member State’ can make a preliminary reference to the Court of Justice. The Court applies a single, homogeneous definition of a ‘court or tribunal’. This has allowed it 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. Whether such a ‘dispute settling’ body is entitled to submit a preliminary reference normally depends upon whether it commands sufficient ‘independence’ vis-à-vis both the parties to the dispute and the public administration as such. The Court has tightened these requirements appreciably in connection with the threats against the independence of the judiciary in some Member States, and the consequent more prominent roles that Articles 19 TEU and 47 of the Charter have come to play. Whereas safeguarding the rule of law is of utmost importance, these provisions pursue objectives within the Union's legal order which are materially different from those pursued by Article 267. In this article, it is therefore argued that the Court should apply different constructions of the independence criterion with respect to these provisions.