European Union Law ( EU Law) - grant of authority to the General Court
In the future, the General Court will get certain preliminary judgments, albeit in "particular areas" and with the potential for ECJ review. Article 256(3) outlines the process: "Article 256(3) The General Court shall have competence to hear and decide questions submitted for a preliminary ruling pursuant to Article 267, in the specified areas prescribed by the Statute. The General Court may refer a case to the Court of Justice for a judgement if it believes that doing so will have an impact on the unity or consistency of Union law. In extraordinary circumstances, when there is a severe risk to the unity or consistency of Union law, decisions made by the General Court on questions referred for a preliminary determination may be subject to review by the Court of Justice, within the terms and restrictions outlined by the Statute. Although it has been in existence since 1989, the General Court has never really dealt with preliminary decisions. The General Court did not have jurisdiction over this matter when it was established. When Article 256(3) was added to what was then the EC Treaty in 2003, that situation altered. The main reason the approach hasn't been implemented yet is because no decision has been made regarding what the "particular areas" should be. There have been many recommendations made, but none have been implemented as of yet (see particularly P Dyrberg, "What Should the Court of Justice be Doing?" (2001) 26 EL Rev 291). There will probably be kinks in the new method until it is fully evolved, assuming the General Court is permitted to begin hearing preliminary judgements at some point. For instance: When a "determination of principle" is involved, the General Court "may" send cases to the ECJ. But what does that mean? Even though the General Court's decisions are only subject to "extraordinary" ECJ review, this weakens the legitimacy of all of those decisions. Can a General Court decision be applied by any national court while a potential review is still pending? Should the European Court of Justice be given a deadline to decide whether to use its review power? There has been a varied, but generally encouraging, response from academia to the General Court receiving preliminary ruling jurisdiction. According to Tridimas, the process strikes a "acceptable compromise between competing demands" between the need for a more streamlined process and the requirement for a consistent application of EU law. In his article "Knocking on Heaven's Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure" from 2003, 450 CML Rev 9, T. Tridimas argued that the idea of the ECJ and General Court sharing authority over preliminary judgements was "preferable over other changes." The new method was deemed "extremely essential" by another commentator, who also said that it would be best to use this option as soon as possible (B Vesterdorf, "The Community Court System Ten Years from Now and Beyond: Challenges and Possibilities," (2003) 28 EL Rev 303). Heffernan, on the other hand, expressed less optimism, asserting that "there is every reason to expect that [the General Court's] contribution will be limited" (L. Heffernan, "The Community Courts Post-Nice: A European Certiorari Revisited," (2003) 52 ICLQ 907).
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European Union Law ( EU Law) - Preliminary reference procedure reform
The typical wait time (from a national court or tribunal asking a preliminary ruling until the ruling itself) is roughly 15 months due to the extremely enormous backlog of cases at the ECJ. Despite the fact that the typical case involves a wait of more than a year, national judges may be discouraged from asking questions and instead attempt to answer the questions themselves, endangering both individual rights (if the judges get the answer wrong) and the "cooperation" between national judges, even though the average waiting time has decreased from an all-time high of 25 months in 2003. One point on which academics agree is the necessity for reform in the preliminary reference process. In his article "Remedying the Crumbling EC Judicial System" from 2000, Professor Rasmussen wrote: "It is a broadly held opinion today that the case for a thorough and profound judicial reform has become persuasive." Johnston concurs: "Clearly, there is a major workload problem for the Court, due to a variety of causes," he writes in "Judicial Reform and the Treaty of Nice" (2001) 38 CMLR 499). It is especially important when references for preliminary rulings are involved. The EU's expansion (from six in 1958 to nine in 1973, to ten in 1981 and 12 in 1986, to 15 in 1995 and 25 in 2004, to 27 in 2007 and 28 Member States in 2013), which allowed more courts and tribunals to refer questions, has contributed to the delay, among other reasons. the rise in the number of EU official languages (from four in 1958 to six in 1973, seven in 1981, nine in 1986, eleven in 1995, and now 24) that has occurred along with it. As a result, translating rulings for the ECJ is subject to enormous burdens. the extent to which "court or tribunal" is defined by the ECJ itself in instances like Dorsch Consult. the number and scope of EU secondary legislation, which is constantly expanding. For instance, in 2003, the "Race Directive" (Directive 2000/43) and the "Framework Directive" (Directive 2000/78) both became enforceable. Preliminary judgements have been issued under both Directives, particularly the Framework Directive, over the years and are likely to continue to do so in the future. Preliminary ruling petitions have increased dramatically as a result of the ECJ's development of ideas like basic rights and state accountability, as well as its reliance on the Charter of Fundamental Rights (2000). In contrast, the ECJ's own hesitant efforts to lighten its burden through the 1982 acte clair in CILFIT have had little effect. As can be seen in the chart below, all of this has resulted in a net rise in the number of preliminary references that the Court must handle. Year Number of preliminary references 1961 -1 1971 -37 1981 -108 1991 -186 2001- 237 2011- 423 2016 -470 (an all-time high) European Union Law ( EU Law) - Response of academia to Acte Clair
The notion of acte clair itself has received a mixed response from academics. The general agreement appears to be that the ECJ's support of acte clair in CILFIT (1982) was correct. Regarding the requirements that must be met before national courts can use the concept, opinions are diverse. The CILFIT decision would make it possible for national judges to explain away any hesitation they might have about requesting a preliminary ruling. Only the requirement that the various language versions be compared had any teeth among the considerations that national courts had to make before determining that the meaning of a provision of [Union] legislation was clear. Overall, CILFIT would allow national courts to make their own decisions about [Union] law, to put it briefly. The Use and Abuse of Article 177 EEC, A Arnull (1989), 52 MLR 622 Professor Rasmussen, on the other side, is possibly the CILFIT commentator who is the most harshly critical (1982). Although he agrees with the ECJ's decision to permit national courts of last resort to resolve issues of EU law on their own, he thinks the CILFIT (1982) criteria are so strict that the opinion, as a whole, accomplishes the opposite of what the Court said it meant to do. He stated in a piece from 1984: According to the author, CILFIT indicates something entirely different from what it initially seems to imply. The true approach differs from the one that is initially presented. Not incorporating an acte clair notion into [Union] legislation is the real goal of CILFIT. Its purpose is to caution national judiciaries when they encounter issues with the interpretation and application of [Union] law. The European Court's Acte Clair Strategy in CILFIT (1984), 9 ELR 242 by H. Rasmussen In order to make acte clair more widely accessible, he reiterated his critique in 2000 and urged the ECJ to revise the CILFIT (1982) judgment: The current problems facing the Court of Justice are their own doing. I'm referring to the submission straightjacket that the Court in CILFIT constructed. This decision served as a magnet, pulling a lot of cases to the Court that were frequently unnecessary. The ECJ should modify CILFIT's submission requirements to lessen the requirements that it places on the obligation of national courts to use [Article 267]. "Remedying the Crumbling EC Judicial System" by H. Rasmussen, 2000, 37 CMLR 1071 European Union Law ( EU Law) - Acte clair and British courts
Acte clair was enthusiastically backed by Lord Denning MR in Bulmer v. Bollinger (1974): "The English court may assume the point is pretty obvious and free from question." In that case, the Treaty only needs to be applied, and the English court is responsible for doing so. In a similar vein, Lord Diplock stated in Garland v. BREL [1979] 1 WLR 754 in the House of Lords that a reference would not be necessary when there was a "considerable and consistent line of case law" making the solution "obvious and inescapable." However, Lord Bingham MR in the Court of Appeal stated in Commissioners of Customs & Excise Commissioners v. Samex [1983] 1 All ER 1042 that national courts should be conscious of the distinctions between national and EU legislation, of the pitfalls if they got it wrong, and of the paramount need for uniform interpretation throughout the EU. According to Lord Bingham MR "We understand the proper course of action for a national court (other than a final court of appeal) to be quite clear; if the facts have been established and the [Union] law issue is material to the court's ultimate decision, the appropriate course is typically to refer the issue to the ECJ unless the national court can do so with absolute certainty." The national court must take into account the distinction between national and [EU] law, the challenges that a national court faces when stepping into uncharted territory, the need for consistent interpretation across the [Union], and the significant advantages that the ECJ enjoys when interpreting [EU law]. The acte clair theory is crucial in eliminating time-consuming, pointless demands. It can, however, be abused, as was the case in R v. Chief Constable of Sussex, ex parte International Trader's Ferry Ltd [1998] 3 WLR 1260, where the House of Lords declined to request guidance on the interpretation of the words "measures" and "public policy" in Articles 35 and 36. The ITF case received a negative response from academics: ITF is by no means a perfect example of how the courts have carried out their responsibility to apply [Union] law. Even while it is likely that the outcome is the right one, it is impossible to know for sure. The case has at least three moot points. There is a strong case that a reference should have been made despite the House of Lords' obvious unwillingness to use the preliminary [rulings] procedure to ask the Court of Justice for clarification. Police, Protest, and Free Trade by E. Baker (2000) Black LR 95 The same issue was raised by Erika Szyszczak, who stated that it was "surprising that the House of Lords did not make a [Article 267] reference" in her article "Fundamental Values in the House of Lords" (2000, 25 ELR 443). Abbey National plc v. OFT [2009] UKSC 6; [2009] 3 WLR 1215 is a more recent instance of the UK Supreme Court acting with "palpable reluctance" while using the preliminary rulings procedure, despite being required to do so in Article 267's third paragraph. Even though all five judges agreed that the matter should not be sent to the ECJ, only one—Lord Mance—actually gave the CILFIT requirements any consideration. He came to the conclusion that the chance of the contested clause having a different meaning in other versions of the law was "extremely remote" and that it was unlikely that the ECJ or the courts of the other Member States would disagree with the Supreme Court's interpretation. Lord Walker, on the other hand, merely said, "We should accept the case as acte clair." Although the situation was not acte clair, Lord Phillips argued that it should not be addressed because "it would not be proper." Again, the academic response was unfavorable. The Supreme Court came to a different decision than the High Court judge and the three judges in the Court of Appeal did, according to Paul Davies, who drew attention to this. In Davies' article, "Bank charges in the Supreme Court," published in 2010's 69 CLJ, he referred to the Supreme Court's decision on the acte clair point as "dubious" since "four experienced judges [in the High Court and the Court of Appeal] disagreed with the Supreme Court's interpretation." There are several additional instances where the UK Supreme Court reached a decision without first getting a preliminary ruling and which concerned a disputed topic of EU law. Consider if the Supreme Court acted in conformity with Article 267(3) when you learn about them later. Jivraj v Hashwani [2011] UKSC 40; [2011] 1 WLR 1872; X v Mid-Sussex Citizens Advice Bureau [2012] UKSC 59; [2013] 1 All ER 1038; and North & Others v Dumfries & Galloway Council [2013] UKSC 45. Russell & Others v Transocean International Resources Ltd [2011] UKSC 57 (see Chapter 17); Russell & Others v Transo (all discussed in Chapter 18). Magmatic Ltd v. PMS International [2016] UKSC 12; [2016] 4 is a relatively recent case. The UK Supreme Court determined that the point of EU law at issue in All ER 1027, sometimes known as the "Trunki" case, was acte clair. The UK Supreme Court and the Trunki case: Missed Opportunities, Mysteries, and Misunderstood attracted criticism for not requesting a preliminary ruling, according to Sara Ashby (Ashby, S, "The UK Supreme Court and the Trunki case: Missed Opportunities, Mysteries, and Misunderstood" (2016) 38 EIPR 527). European Union Law( EU Law) - Acte clair, and mandatory references
The correct application of [Union] legislation may be so evident as to leave no room for any reasonable doubt as to how the matter addressed is to be answered, according to the ECJ in CILFIT (1982). A national "court of last resort" would thereafter have the option of declining to use the Article 267 procedure. Acte clair, or "clear act," is a notion derived from French law that refers to a choice not to obtain a ruling because a clause is "so evident as to leave no opportunity for reasonable doubt." However, the ECJ made it very explicit in CILFIT (1982) that acte clair must be employed with extreme caution: The national court or tribunal must be persuaded that the issue is equally evident to the courts of the other Member States and to the Court of Justice before it may conclude that such is the case. The national court or tribunal may choose not to refer the issue to the Court of Justice and assume control over its resolution only if those requirements are met. In the beginning, it is important to keep in mind that diverse language versions of [Union] legislation are equally authentic. Therefore, a comparison of the various language versions is necessary in order to comprehend a provision of [Union] legislation. Even when the various language versions are perfectly consistent with one another, it is important to keep in mind that [Union] law uses terminology specific to it. Furthermore, it must be emphasized that legal terms used in [Union] law and the laws of the individual Member States do not always have the same meanings. Finally, each provision of [Union] legislation must be considered in the context of all other provisions, with due consideration for their goals and the stage of development at the time the provision in question is to be put into practice. In X & Van Dijk (Cases C-72, 197/14) [2016] 1 CMLR 27, the Dutch Supreme Court asked the European Court of Justice (ECJ) whether it was permitted to treat the interpretation of a provision of EU law as acte clair (which it was inclined to do), despite the fact that a lower court had, coincidentally, requested a preliminary ruling on the same provision (albeit in a different case) and did not view the matter as acte According to the ECJ, CILFIT provided the national court of last resort "sole duty" for deciding whether or not EU law was correctly applied in a way that left no room for any conceivable room for debate. Therefore, it followed that the decision about whether the in question piece of EU legislation was acte clair should be made by the national court of last resort "alone" and "independently." The top court of a Member State is permitted to draw the conclusion that the case at hand includes an acte clair based on its consideration of the facts and in accordance with the standards outlined in the judgment in CILFIT, despite the fact that a lower court had asked for a decision. The European Court of Justice (ECJ) reaffirmed that, generally speaking, "the fact that other national courts or tribunals have given contradictory decisions is not a conclusive factor capable of triggering the obligation" set forth in Article 267 in Ferreira da Silva e Brito & Others v. Portugal (Case C-160/14) [2016] 1 CMLR 26. This case was decided on the same day as X & Van Dijk (3). A national court of last resort "may take the view that, even though the lower courts have interpreted a provision of EU law in a particular way, the interpretation that it proposes to give of that provision, which is different from the interpretation espoused by the lower courts, is so obvious that there is no reasonable doubt," the Court continued. However, the ECJ found that under Article 267, the Portuguese Supreme Court ought to have addressed the issue of how to interpret the words "transfer of an undertaking" in Directive 2001/23 to the ECJ in the instance at hand (3). The "conflicting lines of case law at the national level" and "the fact that that idea frequently gives rise to issues of interpretation in the various Member States" were to blame for this. Intermodal Transports (Case C-495/03) [2005] ECR I-8151, where the Court stated that the national court or tribunal must "in particular" be convinced that the other Member States' national courts and the ECJ itself would find the matter "equally obvious," emphasized the instruction not to abuse acte clair. European Union Law(EU Law) - Mandatory references to Previous Rulings
Even though the issue has already been determined, is a preliminary referral required by a national court of final resort? If that were the case, it would result in a lot of "repeat" referrals, which is incredibly ineffective. As a result, the ECJ concluded that national courts of last resort are exempt from having to send matters to them. The European Court of Justice (ECJ) ruled in Da Costa (1963) that "the authority of an interpretation... already provided by the Court may deprive the duty [under the third paragraph of Article 267] of its aim and thereby empty it of its substance." This is particularly true where the question at hand shares a material similarity with one that has already been the subject of a preliminary judgement in a case like it. The ECJ later agreed with this in CILFIT (1982). Even though the questions at issue are not technically identical, the ECJ noted Da Costa and stated that "the same impact... may be generated..." Additionally, Lord Denning stated in Bulmer v. Bollinger (1974): "In some instances, it may be discovered that the [ECJ] has already decided the same issue in another case." In that case, the English court's decision is not required. Without bothering the [ECJ], it can continue with the earlier decision. A recent instance of this can be found in the case of Mirga v. Samin before the UK Supreme Court. UKSC 1; 1 WLR 481; [2016]. Despite being the "court of last resort" in the UK, the Supreme Court decided against requesting a preliminary decision because the ECJ had already addressed the issue in Dano (Case C-333/13) [2015] 1 CMLR 48; [2015] Alimanovic and 1 WLR 2519 (Case C-67/14) [2016] CMLR 1:29; QB:308 (2016. We'll talk about each of these scenarios later. European Union Law ( EU Law) - Mandatory references and hypothetical questions
Although national supreme courts are required to refer questions to the ECJ when they are brought before them, this does not obligate them to do so if the issue is really unrelated to the case. Even if the question is intriguing, it is only hypothetical if it is not crucial to how the case will turn out. The ECJ decided as follows in CILFIT (Case 283/81) [1982] ECR 3415: "National courts or tribunals are not required to refer to the Court of Justice a question concerning the interpretation of [Union] law placed before them if that question is not relevant," that is, if the question's resolution, whatever it may be, cannot in any way influence the case's outcome. European Union Law ( EU Law) - The mandatory reference procedure
Introduction The court or tribunal "may" make a request under Article 267's second and third paragraphs, respectively, and "must" refer to courts or tribunals whose rulings lack a legal recourse under national law. This means that the requirement to refer only applies to some courts or tribunals. Which courts are they, I wonder? An Italian magistrates' court had made a request in Costa v. ENEL (Case 6/64) [1964] ECR 1141. Due to the little amount of money at stake, there was no appeal of the magistrates' ruling. "By the wording of this Article... national courts whose decision, as in the current case, is not subject to judicial review, shall submit the matter to the Court of Justice," the ECJ declared (emphasis added). Despite being a little vague, it has been interpreted to mean that while most courts (like the English Court of Appeal) are normally subject to the second paragraph, they may find themselves subject to the third paragraph if there is no avenue for appeal in a given situation. The Court of Appeal initially believed that it was never covered by the third paragraph. According to Lord Denning MR, "short of the House of Lords, no other English court is bound to send a case" to the ECJ in Bulmer v. Bollinger (1974). However, Balcombe LJ made the following observation in Chiron Corporation v. Murex Diagnostics (No 8) [1995] All ER (EC) 88: A court "against whose rulings there is no legal remedy under national law" is referred to in [Article 267]. I'll refer to such a court as the court of last resort for convenience. The Court of Appeal shall be the court of last resort where there is no right even to apply to the House of Lords for leave to appeal from a decision of the Court of Appeal, as in the case of a refusal by the Court of Appeal to grant leave to appeal against a decision of the court below or a refusal by the Court of Appeal, on a renewed application, to grant leave to apply for judicial review. Therefore, Lord Denning MR overstated the case [in Bulmer v. Bollinger]. As the "court of last resort" for the UK, the Supreme Court of the United Kingdom took the position of the House of Lords in 2009. The ECJ has looked into this matter, albeit within the framework of the Swedish legal system. Case C-99/00 Lyckeskog [2003] 1 WLR 9 The European Court of Justice was questioned about whether a Swedish procedural rule, which required a "declaration of admissibility" before a case could be appealed from the Court of Appeal to the Supreme Court, meant that the former court was, in fact, a "court of last resort" (to borrow Balcombe LJ's phrase). In accordance with its own Code of Procedure, the Supreme Court may only declare an appeal admissible if: it is crucial for guidance in the application of the law that the Supreme Court examine the appeal; or there are special grounds for examination of the appeal, such as the existence of grounds of review on a point of law, a formal defect, or where the outcome of the case before the Court of Appeal is obviously attributable to negligence or serious error. The European Court of Justice (ECJ) ruled that these procedural requirements did not turn the Swedish Court of Appeal into a court of last resort: "Decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of a "court or tribunal of a Member State against whose decisions there is no judicial remedy under national law" within the meaning of [Article 267]. The fact that the supreme court must first rule on the admissibility of such appeals before considering their merits does not deprive the parties of a judicial remedy. Cartesio (Case C-210/06) [2008] ECR I-9641] adopted and applied the ruling in Lyckeskog. Given that its verdicts were final and subject to a "exceptional" appeal to the Hungarian Supreme Court, the case addressed the question of whether the Regional Court of Appeal in Hungary was subject to the third paragraph of Article 267. The Regional Court of Appeal was not subject to the mandatory referral system, the ECJ ruled, because appeals were permitted, albeit under specific conditions. European Union Law ( EU Law) - The discretionary reference procedure
According to Pigs Marketing Board v. Redmond (Case 83/78) [1978] ECR 2347, it is fully up to the national courts to decide when and which questions to refer. It is typical, but not required, that one or more parties will have attempted to rely on a piece of EU law during the course of the case. However, if the national court feels that doing so will help it make a judgement, it may do so on its own (Verholen (Cases C-87 to 89/90) [1991] ECR I- 3757). The request for a judgement must be submitted while the case is still being heard by the national court. After that, it is too late because the national court would no longer be competent to render a ruling because the ECJ decision is no longer "required" (Pardini (Case 338/85) [1988] ECR 2041). There is discretion whether or not to send the case to the ECJ for those national courts or tribunals falling within the second paragraph of Article 267 (and this is the vast majority of them). According to national precedent, this discretion cannot be altered (Rheinmuhlen-Dusseldorf (Case 166/73) [1974] ECR 33). Despite a higher court's decision to the contrary, a lower court may send a case to the ECJ. The ECJ's prior ruling on a specific issue should not by itself exclude additional referrals. The ECJ declared in Da Costa en Schaake (Cases 28 to 30/62) [1963] ECR 61 that it had the authority to deviate from earlier rulings. In Bulmer v. Bollinger (1974), a Court of Appeal decision, Lord Denning MR emphasized that national courts only needed to get a ruling where it was "essential" to allow them to render judgment. It should be noted that the word is "essential," he continued. Compared to "desirable" or "convenient," this is more stronger. In some situations, if the point were determined one way, the trial would be significantly shortened. However, if the outcome was the opposite, the trial would last the entire time. It might be "desirable" or "convenient" in this situation to consider it as a starting point. But at that point, it wouldn't be "essential." Investigation of the facts may reveal that it was entirely unneeded. The case would be decided entirely on different criteria. Generally speaking, one cannot determine if a point needs to be decided until all the facts are known. Consequently, it is generally advisable to decide the facts first. He continued by listing a number of issues that national judges should take into account when determining whether or not to use the procedure, including time, cost, the workload of the ECJ, and the preferences of the parties. Although it goes without saying that the comments of the Master of the Rolls—as Lord Denning was at the time—are significant, keep in mind that the aforementioned advice may not necessarily represent the position of the ECJ. However, time is undoubtedly more important in criminal matters because a prisoner may have to wait while on remand while the ECJ deliberates its decision. This problem has just been resolved: the Lisbon Treaty included the fourth paragraph of Article 267, requiring the ECJ to act "with the smallest possible delay" in circumstances involving "a person in custody." European Union Law ( EU Law) - ‘Independence’
This standard has led to some significant case law. Many tribunals in England have connections to the government agencies whose decisions they are asked to review. Does this meet the independence requirement? In a case concerning the Austrian legal system, this topic came up. A reference had been made in Köllensperger & Atswanger (Case C-103/97) [1999] ECR I-551 by the Austrian Procurement Office of the Land of Tyrol. The Tyrol government appointed its members, and they were subject to removal "if the conditions for appointment are no longer met or if circumstances emerge which hinder properly exercising the office and are likely to do so for a long time." This "appears prima facie too broad," according to the ECJ, "to guarantee against undue involvement or coercion on the part of the executive." The Court discovered, however, that other Austrian legal provisions—including one that clearly forbids conveying instructions to Procurement Office employees in the course of their duties—provided assurances of independence. The difficulty in ensuring "independence" is demonstrated by two additional situations. The request was accepted in the first instance, Gabalfrisa & Others (2000), but the court rejected the decision in the second instance, Schmid (2002). Cases C-110 to 147/98 involving Gabalfrisa and Others (2000) ECR I–1577 Multiple references from the Catalan Regional Economic/Administrative Court (EAC) were involved in this case. The independence of this court from the tax authorities whose rulings it reviewed was a subject of debate. The Court concluded its ruling by stating that it was satisfied with the way in which Spanish law: "ensures a separation of functions between, on the one hand, the departments of the tax authority responsible for management, clearance, and recovery, and, on the other hand, the [EAC] which rule on complaints lodged against the decisions of those departments without receiving any instruction from the tax authority." Case C-516/99 Schmid [2002] ECR I–4573 This case involves a referral from the Vienna Regional Finance Authority's Appeal Chamber. The Appeal Chamber lacked independence, according to the ECJ, which found the reference inadmissible. The issue was that there were five members of the Appeal Chamber, and two of them also served on the regional tax authority, whose rulings the Chamber was supposed to review. (In fact, the president of the regional tax authority automatically served as the chamber's president.) According to the ECJ's ruling in Schmid, a body that has "an organizational and functional link" with a government agency whose decisions it is asked to review cannot be regarded as an independent "court or tribunal" for the purposes of Article 267. The Court provided in-depth explanations of the "concept of independence" in Wilson (Case C-506/04) [2006] ECR I-8613, as follows: "The idea of independence, which is inherent in the duty of adjudication, entails essentially an authority acting as a third party in regard to the authority which adopted the contested judgment," the court wrote. There are two more facets to the idea. The first aspect, which is external, assumes that the body is shielded from outside interference or pressure that could endanger the members' independence of judgment with regard to the proceedings before them. This fundamental freedom from such outside influences necessitates certain assurances, such as protections against removal from office, that are sufficient to protect the person of those charged with deciding a dispute. The second, internal factor relates to impartiality and works to level the playing field for the parties to the proceedings and their various interests with regard to the case at hand. With the exception of the rigorous implementation of the law, that requirement calls for objectivity and the lack of any stake in the outcome of the proceedings. In order to dispel any reasonable doubt in people's minds regarding the imperviousness of that body to external factors and its neutrality with respect to the interests before it, rules are necessary, particularly as regards the composition of the body and the appointment, length of service, and the grounds for abstention, rejection, and dismissal of its members. |
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