The European Court of Justice’s Transformation of its Approach towards Preliminary References from Member State Administrative Bodies
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The European Court of Justice’s Transformation of its Approach towards Preliminary References from Member State Administrative Bodies. / Broberg, Morten; Fenger, Niels.
In: Cambridge Yearbook of European Legal Studies, Vol. 24, 2022, p. 169-200.Research output: Contribution to journal › Journal article › Research › peer-review
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TY - JOUR
T1 - The European Court of Justice’s Transformation of its Approach towards Preliminary References from Member State Administrative Bodies
AU - Broberg, Morten
AU - Fenger, Niels
PY - 2022
Y1 - 2022
N2 - According 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.
AB - According 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.
KW - Faculty of Law
KW - preliminary references
KW - 'court or tribunal’
KW - administrative bodies
KW - jurisdiction
KW - independence
KW - judiciary
KW - rule-of-law
U2 - 10.1017/cel.2022.4
DO - 10.1017/cel.2022.4
M3 - Journal article
VL - 24
SP - 169
EP - 200
JO - Cambridge Yearbook of European Legal Studies
JF - Cambridge Yearbook of European Legal Studies
SN - 1528-8870
ER -
ID: 314186989