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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