European Union Law ( EU Law) - What courts or tribunals mean
There are restrictions on who may submit a ruling request. It can only be done by a "court or tribunal." Court or tribunal has a fairly broad range of interpretations. (The ECJ has interpreted Article 267 itself, after questions presented to it by national courts under Article 267 procedure!) A forum does not always need to be called a "court" or "tribunal." The elements of Dorsch Consult In Dorsch Consult (Case C-54/96) [1997] ECR I-4961, the ECJ issued the following judgment: The Court considers a number of factors, including whether the body is established by law, whether it is permanent, whether its jurisdiction is mandatory, whether its procedure is inter partes, whether it applies the rules of law, and whether it is independent, in order to determine whether a body making a reference is a "court or tribunal," which is a question governed by [Union] law alone. This decision is crucial because it provides what could be called a "functional" standard for determining whether organizations are eligible to use the Article 267 procedure. Practically speaking, this means that more entities can request preliminary judgements than would have been the case had the ECJ taken a "literal" approach, which would have limited its response to petitions from entities that genuinely go by the names "court" or "tribunal." These are the benefits of this "functional" approach: Many organizations that do not go by the names of "court" or "tribunal" yet perform judicial duties, which entail resolving disagreements between parties. The functional approach helps to ensure that these organizations do not have to decide how to interpret EU legislation on their own, which in turn increases the likelihood that the legislation will be applied correctly to resolve the conflicts. The functional approach allows for more bodies to obtain rulings on various EU legal rules, enabling the ECJ to issue clear rulings on unclear EU legal provisions that might not have otherwise even reached the ECJ. In the national legal systems, the functional approach lessens the need for costly and time-consuming appeals. Decisions made by various bodies can frequently be appealed to "courts." Without a practical strategy, these appeals might be made in order to bring a case before a "court" and ask for a preliminary judgement. Any organization that performs judicial duties may request a decision on its own under a functional approach. Broekmeulen (Case 246/80) [1981] ECR 2311 is a nice illustration of the "functional" approach. A doctor's registration as Dr. Broekmeulen has been turned down. He used EU legislation as the foundation for his appeal to the Appeals Committee of the Royal Netherlands Society for the Protection of Medicine. There were several allusions to the ECJ, one of which inquired as to whether the Appeals Committee was a "court or tribunal." The ECJ ruled that the Appeals Committee, which carries out its duties with the approval of the public authorities and operates with their assistance, and whose decisions are accepted after contentious proceedings and are in fact recognized as final, must be deemed to be a court or tribunal for the purposes of [Article 267] in the practical absence of an effective means of redress before the ordinary courts in a matter concerning the application of [Union] law. In the following instances, the broad definition of "court or tribunal" can be seen: Crown of Denmark (Case C-400/93) Administration board in Copenhagen, Denmark; O'Flynn v. Adjudication Officer (Case C-237/94); [1995] ECR I-1275 [1996] ECR I-2617 - Gebhard v. UK Social Security Commissioner (Case C-55/94) Milan Bar Council v. El-Yassini (Case C-416/96) [1995] ECR I-4165 [1999] Immigration judge, UK; Abrahamsson and Andersson (Case C-407/98); ECR I-1209 [2000] Cadbury Schweppes v. Universities Appeals Board of Sweden, ECR I-5539 (Case C-196/04). [2006] Jia (Case C-1/05) v. Special Commissioners of Income Tax, UK, ECR I-7995 [2007] Torresi (Cases C-58 and 59/13) - Alien Appeals Board, Sweden, ECR I-1 National Bar Council, Italy [2015] QB 331; [2015] 2 WLR 29. In El-Yassini (1999), the European Court of Justice (ECJ) carefully considered the issue of whether a UK immigration adjudicator qualified as a "court or tribunal." Finally, it was decided that an adjudicator was indeed qualified. Read the following passage from the ruling and count how many of the Dorsch Consult (1997) criteria are met: 'It should be remembered that the Immigration Act of 1971 established the post of Immigration Adjudicator. The Immigration Adjudicator has the authority under this legislation to hear cases involving foreign nationals' rights to enter and reside on UK soil. Immigration Adjudicators are a permanent organ, too. They must make their decisions in line with the law, in accordance with the 1971 Act, and in accordance with the procedure. The nature of such process is between parties. Immigration Adjudicators must provide justification for their decisions, which are final and can, in some cases, be challenged before the Immigration Appeal Tribunal. The Lord Chancellor appoints Immigration Adjudicators for renewable terms of 10 years or one year, depending on whether they serve full- or part-time. They have the same independence protections while in office as judges have. So, in accordance with [Article 267], the Immigration Adjudicator must be viewed as a court or tribunal. On the other hand, it was determined that an independent arbitrator was not a court in Nordsee (Case 102/81) [1982] ECR 1095. The arbitrator lacked mandatory jurisdiction, which caused this. An arbitration tribunal is not a "court or tribunal of a Member State" within the meaning of [Article 267] where the parties are not required, in law or in fact, to refer their disputes to arbitration and the public authorities of the Member State concerned are not involved in the decision to opt for arbitration and are not required to intervene of their own accord. The European Court of Justice (ECJ) ruled that questions submitted to it by the Italian Public Prosecutor were inadmissible because he did not constitute a "court or tribunal" in Procura Della Republica v. X (Case C-74/95) [1996] ECR I-6609. Additionally, a reference from a body inside the Swedish tax administration was ruled to be inadmissible in Victoria Film A/S (Case C-134/97) [1998] ECR I-7023 (it did not perform a judicial function). The body's work was strictly administrative in nature. If anything, the body worked to avoid conflicts in the first place rather than settling ones that had already occurred. If a court is performing an administrative (as opposed to judicial) duty, it might not even be considered a court. The ECJ determined that the District Court, Bregenz, Austria, was not a "court" when it was operating as a land register in Salzmann (Case C-78/99) [2001] ECR I-4421. Similar to this, the Regional Court, Wels, Austria, was not a "court" when serving as a company's register in Lutz & Others (Case C-182/00) [2002] ECR I-547. ECJ ruling: "A national court may only refer a question to the [ECJ] if it has a case pending before it and if it is required to render judgment in proceedings designed to result in a decision of a judicial type... Even if the other requirements [noted in Dorsch Consult (1997)] are met, the referring authority cannot be viewed as exercising a judicial function when it issues an administrative decision without being obligated to settle a legal dispute. The broad definition of "court or tribunal" has made it possible for a lot more organizations to use the preliminary rulings method. This has clear advantages: it allows the ECJ to explain the law on legislative provisions that could not have otherwise reached the Court; it enables those bodies to apply EU legislation after it has been interpreted by the Court; and it might even decrease the number of national appeals. However, one of the Court's own experts has consistently criticized the Court's policies. Several viewpoints, starting with De Coster (Case C-17/00), have been expressed. [2001] Repeated in Austrian Rundfunk (Case C-195/06) is ECR I-9445. [2003] Most recently, in Umweltanwalt von Kärnten (Case C-205/08), ECR I-4989. [2009] Advocate-General Ruiz-Jarabo Colomer has expressed concern about the ECJ's "too liberal" view of "court or tribunal," which he claims allows administrative authorities outside of the "regular judicial system" to participate in the preliminary judgments process. He has asked the Court to define "court or tribunal" to include only "bodies forming part of the judicial power of every State," with very few exclusions, and to "set down a stronger and more consistent body of norms" on admission. However, the Advocate-counsel General's has (so far) been disregarded by the Court.
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