C-17/00

DE COSTER

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 28 June 2001 1

Table of contents

I — The national regulations and facts in the main proceedings I - 9448 II — The Community legislation I - 9449 III — The question referred to the Court for a preliminary ruling I - 9450 IV — The admissibility of the question. The definition of court or tribunal I - 9450 1. The case-law of the Court of Justice relating to the definition of a court or I-9451 A. The gradual relaxation of the requirement that the body should be independent I - 9452 B. The diminishing importance of the requirement that proceedings should be inter partes I - 9455 C. The confusion introduced by the requirement that the final decision in the case should be judicial in nature I - 9458 D. The problems which arise when arbitrators are regarded as courts or tribunals I - 9461 E. The extension of the definition to overseas courts, to courts which do not form part of the judicial system of any Member State and to international courts I-9462 2. The urgent need for a change in the case-law I - 9463 A. The legal uncertainty caused by the absence of a definition of court or tribunal and the vacillations in the case-law I - 9463 B. The requirement that, as a matter of public policy, the national authority must have the status of a court or tribunal if the Court of Justice is to have jurisdiction I - 9464 C. The amendments introduced by the Treaty of Amsterdam in the general treatment of references for preliminary rulings, particularly with regard to the national courts and tribunals authorised to make references I - 9465 D. The reform which may be brought about by ratification of the Treaty of Nice and the conferring on the Court of First Instance of jurisdiction to give preliminary rulings I - 9466 E. The advantage of all application of Community law remaining within the jurisdiction of the Court of Justice to give preliminary rulings I - 9467 F. The unsettling effect of the intervention of an administrative body in a dialogue between courts I - 9468

2 — Prior to the adoption of that tax regulation, the Municipal Administration nad adopted, on 27 February 1997, plan- ning rules relating to the conditions which must be fulfilled by outdoor aerials; this provides, for example, that an aerial must not be fitted in a visible position on a listed building, it must be in keeping with the building's architectural features, under no circumstances may it be fitted at the front of a building, and it must not exceed 1.20 metres in diameter. I — The national regulations and facts in 3 — As a result of infringement proceedings N o 98/4137 the main proceedings brought by the Commission against Belgium for adopting regulations to levy tax on satellite dishes, the Brussels- Capital Region issued a circular informing the municipal administrations that the tax was incompatible with the EC Treaty and asking them to abolish it with effect from 1 January 1999. The Municipal Administration of Water- mael-Boitsfort did so by a decision adopted on 21 Septem- ber that year. However, that abolition has no influence on 2. The municipal administration of Water- the present maner, since Mr de Coster's claim is against the mael-Boitsfort, sitting on 24 June 1997, assessment for the financial year 1998.

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3. Under Article 2 of the regulation, the Community shall be prohibited in respect rate of the tax was set at 5 000 Belgian of nationals of Member States who are francs per satellite dish, whatever its size. established in a State of the Community The tax was due for the whole calendar other than that of the person for whom the year, regardless of the date of installation of services are intended.' the dish during the tax year.

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Member States. Accordingly, it is stated IV — The admissibility of the question. that the aim of the Directive is to remove The definition of court or tribunal restrictions on freedom to broadcast within the Community, as required by the Treaty.

11. The Commission expresses doubts as to whether the Collège Juridictionnel de la Région de Bruxelles-Capitale is a 'national 9. Under Article 2 of the Directive, Mem- court or tribunal' for the purposes of ber States are to ensure freedom of recep- Article 234 EC; I am therefore required to tion and are not to restrict retransmission examine in depth the nature of the body on their territory of television broadcasts which has made the reference. Both its from other Member States for reasons origin and its structure have very specific which fall within the fields coordinated by features which make it difficult to categor- the Directive. ise according to the criteria so far provided by the case-law of the Court of Justice.

12. Article 234 EC provides that the Court III— The question referred to the Court of Justice is to have jurisdiction to give for a preliminary ruling preliminary rulings concerning the inter- pretation of the Treaty and of the acts of the institutions of the Community. The second paragraph adds that, where such a question is raised before any court or 10. On 9 December 1999, the Collège tribunal of a Member State, that court or Juridictionnel de la Région de Bruxelles- tribunal may, if it considers that a decision Capitale submitted the following question on the question is necessary to enable it to for a preliminary ruling: give judgment, request the Court of Justice to give a ruling thereon.

14. The result is case-law which is too flexible and not sufficiently consistent, with the lack of legal certainty which that 1. The case-law of the Court of Justice entails. The profound contradictions noted relating to the definition of a court or between the solutions proposed by Advo- tribunal cates General in their Opinions and those adopted by the Court of Justice in its judgments illustrate that the path is badly signposted and there is therefore a risk of getting lost. The case-law is casuistic, very elastic and not very scientific, with such 16. It all began in the Vaassen-Göbbels vague outlines that a question referred for a case. A reference for a preliminary ruling preliminary ruling by Sancho Panza as had been made by an arbitration tribunal governor of the island of Barataria would which did not form part of the Netherlands be accepted. 7 legal system but had jurisdiction to hear appeals brought against the decisions of a social security institution. The Court of 6 — See, for example, the judgment in Case 195/98 Österrei- chischer Gewerkschaftsbund [2000] (ECR I-10497). Justice set out, for the first time, five of the 7 — M.de Cervantes, El ingenioso caballero Don Quijote de La criteria which it considers determine whe- Mancha, recounts Sancho Panza's legal experiences as governor of the island of Barataria in Chapters XLV, XLVII, ther a body constitutes a court or tribunal: XLIX and LI of the second part. It is curious to note that, in statutory origin, permanence, inter partes the last of those chapters, Sancho Panza has jurisdiction to give preliminary rulings, the literary precursor to the procedure, compulsory jurisdiction, and jurisdiction now exercised by the Court of Justice. One day he sat to hear cases and was asked a question the application of rules of law. 10 formulated by four judges entrusted with the task of applying a rule requiring people who wished to cross a bridge over a fast-flowing river to state under oath where they were going and for what purpose; if they told the truth, 8 — Case 61/65 Vaassen-Còbbels [1966] ECR 377. they were to be allowed to cross freely and, if they lied, they were to be hanged at the gallows on the other side. When 9 — Cited in footnote 6 above. one man stated that he was going to die on the gallows, the 10 — The Court observed that the arbitration tribunal was a dilemma arose that, if he were hanged, he would have told the truth and would deserve to be free and to cross the river, permanent body, properly constituted under Netherlands aw and charged with the settlement of certain disputes whereas, if he were not executed, he would have lied and, defined by law, in an adversarial procedure similar to that according to the law, ought to die. In his preliminary ruling, used by the ordinary courts of law. Its members were Sancho Panza, following the advice given to him previously appointed by the minister and had to apply rules of law. by Don Quijote, opted to apply the rule that, when there is Furthermore, the persons concerned were bound to take doubt as to how to dispense the law with justice, it should any disputes between themselves and their insurer to that be done with mercy. trirmnal as the proper judicial body.

A. The gradual relaxation of the require- 13 — The requirement that the body should act as athird party ment that the body should be independent in relation to the authority which adopts the contested decision is an essential, though not adequate, condition for independence (see the reasons I give in points 92 and 93 below). 14 — In that judgment the Court of Justice refused to regard as a third party the Luxembourg Director of Direct Taxes and 19. Although reference had already been Excise Duties, whose status as a court has been recognised made in Pretore di Salò to independence as by the Luxembourg Conseil d'État (see the Opinion of Advocate General Darmon, point 4). As head of the one of the conditions for a body to be Administration, the Director is obviously organically linked to the departments that made the tax assessment regarded as a court or tribunal for the that was being challenged and which was the subject of the purposes of Article 234 EC, the judgment complaint proceedings in which the question referred for a preliminary ruling had arisen. Furthermore, in the event of a possible appeal before the Conseil d'État, the Director is a party to the proceedings. 15 — Joined cases C-74/95 and C-129/95 Criminal proceedings 11 — Case 14/86 Pretore di Salò [1987] ECR 2545. against X [1996] ECR I-6609. 12 — Case C-24/92 Corbiau [1993] ECR I-1277. 16 — Case C-54/96 Dorsch Consult [1997] ECR I-4961.

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25. In my view, that reasoning is weak. A 17 — The Court was guilty of a tautology: a person w h o acts general principle of non-interference in the independently is independent. 18 — Paragraph 35 of the judgment. activities of the State's administrative 19 — In its judgments in Case C-258/97 Hospital Ingenieure bodies, combined with a duty to withdraw, [1999] ECR I-1405 and Case C-275/98 Unitron Scandi- navia and 3-S [1999] ECR I-8291, the Court accepted the cannot be enough to guarantee the inde- questions referred for a preliminary ruling by bodies pendence of the person who has to give a responsible for reviewing procedures for tne award of public contracts. 20 — However, as Advocate General Tesauro pointed out in his Opinion, these precautions are not the same as those taken for ordinary courts of law; not only do the members of the 22 — This led Advocate General Saggio to propose rejection of Federal Supervisory Board enjoy no guarantee against the question referred for a preliminary ruling. dismissal — they have no assurance of a fixed term of 23 — This is a repetirion of the provisions of Article 20 of the office; they can be relieved of their duties at any moment Austrian Federal Constitution concerning the indepen- by means of purely internal organisational measures. dence of the members of collegiate bodies of a judicial nature. 21 — Case C-103/97 Köllensperger and Atzwanger [1999] ECR 24 — These conditions, by reference to the statute governing the I-551. ordinary courts, were fulfilled in the Dorsch Consult case.

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25 — See the Opinion delivered by Advocate General Saggio in 28 — Alonso García, R., Derecho comunitario. Sistema consti- Case C-407/98 Abrahamsson and Anderson [ 2000] ECR tucional y administrativo de la Comunidad Europea, Ed. I-5539. The judgment recognised the status of court or Centro cíe Estudios Ramón Areces, S.A_, Madrid, 1994, tribunal of a Swedish administrative body, the Over- pp. 330 and 3 3 1 . Ruiz-Jarabo, D., El juez nacional como klagandenämnden för Högskolan (Universities' Appeals juez comunitario, Ed. Civitas, Madrid, 1993, pp. 81 and Board), because it gave judgment without receiving any 82. Le-Barbier-Le Bris, M . , Le juge espagnol face au droit instructions and in total impartiality. For the Court of communautaire, Ed. Apogée (Publications du Centre de Justice, those safeguards endowed it with a status separate Recherches Européennes Université Rennes I), Rennes, from the authorities which adopted the decisions under 1998, pp. 347 to 350. Later, Boulouis, J., Darmon, M . and appeal, and the necessary independence. O n the other Huglo, J.-G., Contentieux communautaire, Ed.

He makes this judgments in Pretore di Salò, cited in footnote 1 1 , statement after saying that, although in the past there may paragraph 7, and Corbiau, cited in footnote 12, paragraph have been grounds for thinking of them as judicial bodies, 15, and also in Case C-393/92 Almelo [1994] ECR I-1477, nowadays, from a constitutional point of view, it is paragraph 2 1 , that the concept of court or tribunal in absolutely unacceptable. 'The traditional division, in Community law implies, according to the common legal economic-administrative matters, between management traditions of the Member States, that the provisions bodies and those which settle appeals has frequently led governing the composition and activity of the body must to the illusion that the bodies which hear appeals are.

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by the administration and appointed by the their part activates the phenomenon of minister, who has the power to dismiss administrative silence, a fiction specifically them without abiding by conditions clearly created by the legislature to prevent admin- and categorically laid down by law. It istrative paralysis from denying the parties cannot be said, therefore, that the body's concerned access to justice. If the eco- rules of operation guarantee the irremova- nomic-administrative courts do not give a bility of its members and, consequently, it ruling within one year of the date on which seems doubtful that it has a degree of the claim was lodged, the claim is deemed independence which allows it to resist to be rejected and, accordingly, from that possible undue intervention and pressure moment, the individual may have recourse from the executive. to the courts for contentious administrative proceedings.

Another circumstance which confirms that the function of these bodies is of an 29 — I cannot imagine what C.L. de Montesquieu would say if he could see this confusion between administrative and administrative nature is that passivity on judicial bodies.

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parties may assert their legally protected which the question arises are or are not rights and interests. However, the scope of defended is irrelevant. 33 the requirement, stated in the Court's judgment in Vaassen-Göbbels, 30 that pro- ceedings should be inter partes, was very soon reduced.

The judgments in Politi 31 and Birra reference. 36 Dreher 32 confirmed that Article 234 EC does not make references to the Court conditional on whether the proceedings are 33 — According to Advocate General Lenz, in point 6 of his inter partes and that, therefore, a question Opinion in Case 228/87 Pretura unificata di Torino [1988] ECR 5099, since the judgment in Birra Dreher the Court may be referred for a preliminary ruling of Justice has disregarded whether or not the proceedings even if there is no debate. The decisive are inter partes. 34 — Case 70/77 Simmenthal [1978] ECR 1453.

The questions were munity law is essential for it to reach a referred by the President of the Tribunale di Genova in proceedings for the adoption of interim measures. decision. The fact that the proceedings in 36 — In the Opinion I delivered on 5 April 2001 in Case C-55/00 Gottardo, in which judgment is pending, I drew attention to the inherent risks if the Court adopts a passive approach with regard to the terms in which the questions 30 — Cited in footnote 8. referred for a preliminary ruling are formulated.

The same is true in presented by the plaintiff, could make an order against respect of the decision whether or not it is appropriate to the other party without giving him the opportunity t o refer a question for a preliminary ruling in proceedings present his observations, although afterwards it w a s that are not inter partes. Clearly, it is for the national court possible to raise objections to the decision. The Court to decide whether it needs an interpretation of Community had already accepted several references for a preliminary law in order to settle the case before it, but it is for the ruling in the context of summary proceedings (Case 29/69 Court of Justice alone to review the requirements which Stauder [1969] ECR 419; Case 33/70 SACE [1970] ECR determine whether preliminary-ruling proceedings may be 1213; and Case 18/71 Eunomia [1971] ECR 811). accepted.

35. However, in a number of later judg- ments, the Court seems to have abandoned that course and, regrettably, has admitted and given preliminary rulings on questions referred in proceedings in which the 33. The requirement that the proceedings absence of the adversarial element was should be inter partes has gradually lost not offset by the fundamental independence ground. In Pretore di Cento 37 and Pretura of the body which raised the question. unificata de Torino, 38 neither of which had defending parties, the Court of Justice did not even query the admissibility of ques- tions referred for a preliminary ruling. 39 The judgment in Pardini 40 replied to questions referred by the Pretore di Lucca in proceedings relating to interim mea- sures. 41 36. Indeed, in Dorsch Consult 44 the Court admitted questions referred for a prelimin- ary ruling by an administrative body 45 in 37 — Case C-110/76 Pretore di Cento [1977] ECR 8 5 1 . undefended proceedings. 4 6 38 — Cited in footnote 33. 39 — These were criminal proceedings brought against persons unknown. It must be remembered that the pretore is a figure peculiar to the Italian legal system, who exercises 42 — This is true of the Pardini case, cited above. the functions both of public prosecutor and examining magistrate. 43 — See points 7 and 26 of the Opinion delivered by Advocate General Darmon in the Corbiau case, cited in footnote 12; 40 — Case 338/85 Pardini [1988] ECR 2041. and also point 14 of the Opinion of Advocate General 41 — The particular circumstances of the case were that the Saggio in Gabalfrisa and Others, cited in footnote 27. Pretore referred the question for a preliminary ruling 44 — Cited in footnote 16. whilst at the same time granting the interim measure, which was the sole object of the proceedings. The Court of 45 — The supervisory board set up in Germany to review the Justice, after stating that it did not have jurisdiction to hear decisions of the bodies which monitor the procedures for a reference for a preliminary ruling where the proceedings awarding public contracts. before the national court had already been terminated, 46 — The Court of Justice reiterated that the requirement that accepted the Pretore's question because the interlocutory the proceedings must be inter partes is not an absolute proceedings were still pending, since the measures adopted criterion. It also pointed out that, although the parties are were subject to confirmation, variation or discharge not heard by the Supervisory Board, they are heard by the following the intervention of the parties. body which monitors the award procedures.

4 7 — Cited in footnote 27. 48 — I have established the status of these as administrative bodies above. 41. Thus, in the Borker case 52 the Conseil 4 9 — In its judgment in Case C-44/96 Mannesmann (1998] E C R de l'Ordre des Avocats à la Cour de Paris I-73, the Court of Justice accepted questions referred for a preliminary ruling by the Bundesvergabeamt, Austria, the (Bar Council of the Cour de Paris) was held body which hears disputes relating to public contracts, without considering its status as a court or tribunal. not to be a court or tribunal because it had Advocate General Lenz, who did consider the matter, harboured certain doubts regarding the adversarial nature of the proceedings, although he inferred from the order for reference that in the main proceedings there had been an inter partes hearing similar to that before a court or 50 — Article 103(1) of the Spanish Constitution of 1978 pro- tribunal. In Case C-76/97 Tögel [1998] ECR I-5357 a n d vides that the 'Public Administration shall act... wholly in Case C-111/97 EvoBus Austria ECR I-5411, the Court accordance with the law'. again accepted several questions referred for a preliminary 51 — They also interpret the law before applying it. ruling by the Bundesvergabeamt. 52 — Case 138/80 Borker |1980] ECR 1975.

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42. Similarly, the judgment in Criminal 43. On the other hand, in Garofalo and proceedings against X 58 held that the Others 61 the Court held that a body which submitted an opinion in a procedure in 53 — A German criminal court had refused to allow him to which the decision was taken by a political appeat; he therefore asked the Conseil de l'Ordre to authority exercised a judicial function. The determine the conditions for the pursuit of his activities as a lawyer by way of provision of services before any of the matter related to the Consiglio di Stato courts of a Member State. Paradoxically, in Case C-55/94 Gebhard [1995] ECR I-4165, without considering the issuing an opinion in the context of an matter, the Court of Justice recognised the status of the extraordinary petition; however, in fact, it Consiglio Nazionale Forense (Italian Bar Council) as a court or tribunal. According to Advocate General Léger, also provides the decision. The opinion, what led the Court of Justice to decline jurisdiction in Barker was not the nature of the referring body but the based on the application of rules of law, subject-matter of the question referred. On the other hand, forms the basis for the decision which will a dispute relating to the requirements for membership of a professional body or concerning a sanction imposed by a be formally adopted by the President of the Bar Council are cases in which the Court of Justice Republic, and any departure from the considers that the referring body has a legal obligation to give a ruling. proposed solution may be made only after 54 — Case 318/85 GreisUnterweger [19861 ECR 955. 55 — The Court of Justice emphasised that the Consultative Commission was not required to conduct inter partes hearings, that the person concerned had no right to bring a 59 — In point 7 of the Opinion which I delivered in that case, I matter before the Commission, and that the opinion was said that the Procura della Repubblica fails to meet at least not binding on the minister. In addition, it pointed out that two of the Court's basic requirements for admissibility of the sanctions imposed by the minister after submission of questions referred for a preliminary ruling: it is not a body the opinion might be challenged by the persons concerned with compulsory jurisdiction (it is not even a body with before the ordinary courts and tribunals, which have iurisdictio in the strict sense) and it does not give a decision unlimited jurisdiction in the matter. after hearing the parties in an adversarial procedure, since 56 — Case 134/97 Victoria Film [19981 ECR I-7023. it is a party to the proceedings. 57 — On questions such as liability for payment of a tax, its 60 — Cited in footnote 11. scope and similar matters. 61 — J o i n e d cases C-69/96 to C-79/96 Garofalo and Others 58 — Cited in footnote 15. [1997] ECR I-5603.

62 — Case 36/73 Spoorwegen [1973] ECR 1299. In t h a t 6 7 — Moitinho de Almeida, J.C., 'La notion de juridiction d'un judgment, the Court accepted a reference for a preliminary État membre (article 177 du traité CE)', in Mélanges en ruling made by the Netherlands Council of State prior to hommage à Fernand Schockweiler, 1999, pp. 463 to 478. issuing its — not legally binding — opinion in proceed- 68 — Previously, in Case 32/74 Haaga [1974] ECR 1201, the ings challenging administrative acts, the final decision in Court had accepted, albeit without examining the question which lay with the Crown. Advocate General Mayras, of admissibility, a reference for a preliminary ruling in a w h o had addressed the issue in his Opinion, advocated similar case. Advocate General Mayras proposed that the opting for admissibility. Court should accord the referring body the status of a 63 — In my Opinion in Garofalo and Others (Point 37) I stressed court or tribunal. that the incontestability of the final decision, which w a s 69 — See Paragraph 11 of the judgment. In the Opinion he not open to subsequent judicial review, was a key element delivered on 15 March 2001 in Case C-178/99, Advocate in the admissibility of the reference. It was a manifestation General Geelhoed proposed that the Court of Justice of the principle of effectiveness. should declare that it did not have jurisdiction to reply to a 64 — Case C-192/98 ANAS [1999] ECR I-8583. question referred for a preliminary ruling by the Bezirks- gericht (District Court), Bregenz, Austria, in proceedings 65 — Case C-440/98 RAI [1999] ECR I-8597. to register a property, since that court does not exercise any 66 — Case 111/94 Job Centre 1 [1995] ECR I-3361. judicial function.

50. After the Nordsee judgment, it seemed that, if reference to the arbitration tribunal were compulsory and at last instance, a reply would be given to the question. That happened in the Danfoss case, 77 in which 48. One of the factors which, since the the reference for a preliminary ruling was judgment in Vaassen-Gobbels, 73 defines a made by a Danish arbitration court granted court or tribunal within the meaning of Article 234 EC is whether its jurisdiction is compulsory. 74 — Case 102/81 Nordsee [1982] ECR 1095. 75 — The arbitration tribunal had jurisdiction, under a contract, to decide disputes relating to the apportionment of financial aid from the EAGGF. The arbitration was provided for by law and, following inter partes proceed- 70 — In paragraph 18 of the judgment in Victoria Film, the ings, culminated in an award which had the force of res Court stated that only if the preliminary decision of the juaicata. The Court of Justice observed that the arbitration Skatterättsnämnden were challenged could the court or tribunal did not have compulsory jurisdiction and the tribunal before which the matter is brought be regarded as German public authorities were not involved in the performing a judicial function. That was the situation in decision to opt for arbitration and could not intervene Case C-200/98 X and Y [1999] ECR I-8261, in which the automatically in the proceedings before the arbitrator. In Court held that the Regeringsrätten (the Swedish Supreme the light of those considerations, the Court inferred that Administrative Court) exercises a function of a judicial the link between the arbitration procedure and the nature when it hears an appeal against decisions of the organisation of legal remedies through the courts in the Skatterättsnämnden Member State in question was not sufficiently close for the 71 — After the Court of Justice had given its judgment in Job arbitrator to be considered as a court or tribunal. This last Centre I, declaring that it lacked jurisdiction to reply to the consideration allowed Advocate General Tesauro to speak, questions referred for a preliminary ruling, the Tribunale in point 28 of his Opinion in the Dorsch Consult case, civile e penale, Milan, gave a ruling in the case. An appeal cited in footnote 15, of the connection to the exercise of was lodged against its decision before the Corte d'appello, public authority as another of the tests which must be Milan, which referred three questions for a preliminary satisfied in oraer for a body to be entitled to make a ruling. In its judgment of 11 December 1997 in Case reference for a preliminary ruling. C-SS/96 Job Centre II ECR I-7119, the Court accepted 76 — Bonassies, P., 'Arbitrage et droit communautaire', in jurisdiction and replied to the questions put to it. L'Europe et le droit. Mélanges en hommage à Jean 72 — The need to safeguard the effectiveness of Community law Boulouis, Ed. Dalloz, Paris, 1991, pp. 21 et seq., discusses may be the interpretive key to reconciling the two the shortcomings of the early case-law of the Court of judgments: in Job Centre, unlike Haaga, the court's Justice concerning the judicial status of arbitration tribu- decision could be appealed. nals. 73 — Cited in footnote 8. 77 — Case 109/88 Danfoss [19891 ECR 3199.

52. However, because it focused so much on the requirement that the jurisdiction should be compulsory, the Court over- 54. Furthermore, in Barr and Montrose looked the other features which, according Holdings83 it recognised the right to refer to its stated views, define a court or questions for a preliminary ruling of the tribunal for the purposes of Article 234 courts and tribunals of the Isle of Man, EC and, in the Danfoss case, it acknowl- even though they do not form part of the edged as such an arbitration board whose composition and operation are not deter- 80 — See points 19 to 21 of the Opinion delivered by Advocate mined in detail by statute. An arbitration General Lenz in that case. In my view, the rationale for Court's judgment which, on that occasion, concurs with the Advocate General's suggestion, is, once again, the need to safeguard effectiveness, since the arbitration tribunal which made the reference was ruling at last instance. 78 — Cited in footnote 26. 81 — Joined cases C-100/89 and C-101/89 Kaefer and Procacci 79 — In Case C-126/97 Eco Swiss [1999] ECR I-3055, the Court of Justice again accepted several questions referred for a [1990] ECR I-4647 preliminary ruling in the context of an appeal against an 82 — Case C-260/90 Leplat [1992] ECR I-643. arbitration award; on this occasion, the reference was 83 — Case C-355/89 Barr and Montrose Holdings [1991] ECR made by the Hoge Raad der Nederlanden. I-3479.

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A. The legal uncertainty caused by the 56. Those pronouncements, in which the absence of a definition of court or tribunal status of court or tribunal of a Member and the vacillations in the case-law State is, without doubt, extended to bodies which are not courts or tribunals, reflects the need to ensure that Community law is applied uniformly, in such a way that all judicial bodies that settle disputes in which 58. The foregoing points are not meant to the norma decidendi is a rule of that law be a sterile scholarly work. They show that the Court's approach to this matter is not only excessively casuistic, as I have pointed 84 — As Advocate General Jacobs observed in Point 4 of his out above, but also lacks the clear and Opinion, like the Channel Islands, the Isle of Man is not precise features required for the definition part of the United Kingdom, nor is it a colony. However, he suggested that the expression 'court or tribunal of a of a Community concept. Far from provid- Member State' should be interpreted broadly as extending to judicial bodies situated in any territory to which the ing a reliable frame of reference, the case- Treaty applies, even if only partially (point 18). law offers a confused and inconsistent 85 — Case C-171/96 Pereira Roque (1998] ECR I-4607. 86 — That judgment confirms that the decision in Barr and Montrose Holdings applies to the Channel Islands courts. 87 — Case 337/95 Parfums Chistian Dior [19971 ECR I-6013. 88 — Case 166/73 Rheinmülen [1974] ECR 3 3 .

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89 — The drawbacks of the situation have been emphasised by L. Neville Btown and T. Kennedy, The Court of Justice of the European Communities, Sweet & Maxwell, London, 1994, pp. 209 to 2 1 3 ; M . C . Bergètes, Contentieux 61. If uncertainty in legal relations is communautaire, Ed. Presses Universitaires de France, 2nd. Ed., p p . 247 and 248; M. Jimeno Bulnes, La cuestión disturbing, the sense of unease is all the prejudicial del art. 177 TCE, Ed. Bosch, Barcelona, 1996, greater when it concerns a notion which, p p . 189 et seq. 90 — The Court of Justice has been criticised because, on several like that in Article 234 EC, is a matter of occasions, it has accepted jurisdiction without considering the status of the referring body as a court or tribunal.

It proceedings which, like the preliminary- also happened in Case C-67/91 Asociación Española de ruling procedure, have turned out to be Banca Privada and Others [1992] ECR I-4785, in which the Court gave a ruling on several questions referred by the essential to the gradual construction and Tribunal de la Defensa de la Competencia (Tribunal for the Defence of Competition), Spain, which, as part of the consolidation of the Community legal Ministry for Economic Affairs, is not p a n of the judicial order. The Court of Justice cannot have authority and an appeal always lies against its decisions before the courts for contentious administrative proceed- control of its own jurisdiction.

We should also remember the cases already cited in footnote 19, Hospital Ingenieure, be deemed to be courts or tribunals for the referred by the Unabhängiger Verwaltungssenat für Kärn- purposes of Article 234 EC. ten (an independent administrative authority in the L a n d of Carinthia) which has exclusive jurisdiction for verifying the legality of measures adopted by the Administration, including those relating to the award of public contracts, and Unilron Scandinavia and 3-S, referred by the Klagen- ævnet for Udbud (Procurement Review Board), Denmark; and also Joined Cases C-260/91 and C-261/91 Diversinte and Iberlacta [1993] ECR I-1885, in which the C o u r t accepted for the first time a question referred for a 62. The greater or lesser laxity with which preliminary ruling by the Tribunal Económico-Adminis- trativo Central (Central Economic-Administrative Court), the concept is addressed determines the Spain, without making any observation regarding its status as a court or tribunal. breadth of the range of persons who may seek the cooperation of the Court of Justice

63. In order to further the uniform disse- mination and application of Community law, in the early years of its development, 65. The Treaty of Amsterdam may be the Court of Justice encouraged the use of understood as implicitly calling on the the preliminary-ruling procedure by adopt- Court of Justice to define the concept of ing a broad interpretation of the definition court or tribunal for the purposes of of the body entitled to implement it. making a reference for a preliminary ruling. However, what previously was clearly jus- The Treaty breaks up the unitary discipline tified, now — when the Community is a of the system. To the 'general' reference for reality accepted by the legal practitioners of a preliminary ruling, under Article 234 EC, the Member States — is disturbing and are added two 'specific' ones, with parti- may seriously hinder the work of the Court cular features: one in Article 35(1) of the of Justice. Treaty on European Union, and the other in Article 68(1) EC.

67. Article 68 EC grants the Court juris- diction to give preliminary rulings in the sphere relating to the free movement of persons, with the exception of measures adopted for the maintenance of law and order and the safeguarding of internal D. The reform which may be brought security. about by ratification of the Treaty of Nice and the conferring on the Court of First Instance of jurisdiction to give preliminary rulings 68. I wish to stress that, with regard to the first of these two types of preliminary reference, the Member States which accept 70. The need to clarify the definition of this new jurisdiction of the Court of Justice court or tribunal becomes even more urgent may choose to grant the right — not the following the results of the recent intergo- duty — to make references for a prelimin- vernmental conference. Article 225(3) of ary ruling to any of its courts or tribunals the Treaty of Nice, signed on 26 February or only to those which give judgment at last 2001, 91 establishes the bases on which the instance, that is to say, against whose Court of First Instance may consider ques- decisions there is no 'judicial remedy' tions referred for preliminary rulings under (Article 35(3) of the Treaty on European Article 234 EC, in specific matters deter- Union). The second kind, which is compul- mined by the Statute. I think that the Court sory, is directly restricted to those courts or of Justice should make clear what it under- tribunals from whose decisions no 'legal stands by national court or tribunal, as a remedy' lies (Article 68(1) EC). relevant guideline for the Court of First Instance. If it does not do so, there is a risk that, when that possibility is acted upon and takes effect, the hesitancy of the first body will be matched by that of the second. 69. In my view, this amendment to the general rules concerning the preliminary- ruling procedure, with the consequent restriction on the bodies authorised to make references, may be attributable to a more or less explicit intention to limit the 71. The possibility that the decisions of the broad outlines in which the Court of Justice Court of First Instance may be reviewed by has defined court or tribunal. It seems that the Community legislature considers that the concept, as it has been interpreted, is 91 — OJ 2001 C 80, p. 1.

E. The advantage of all application of Community law remaining within the jur- isdiction of the Court of Justice to give preliminary rulings 72. However, the Nice Conference has not only allowed an increase in the number of Community courts called upon to establish the uniform interpretation of the law of the European Union, but also, by providing for 73. Thus, the Court of First Instance has the enlargement of the Union from fifteen also been called upon to cooperate in the to twenty-seven Member States, made it task of giving preliminary rulings. How- possible for the number of bodies making ever, in my view, in spite of its established preliminary references to increase exponen- reputation, it will not be operating under tially. The future of the European Union the most favourable conditions. It is not offers a panorama in which twelve new easy to reconcile jurisdiction to give pre- States, with very varied legal traditions and liminary rulings, which is repeatedly different organisational structures, will join described as 'constitutional', with perfor- a law-based Community which, if it is to mance of duties under supervision, 94 nor is operate effectively, requires, as the Court of the Court of First Instance structurally Justice has so often pointed out, uniform designed to carry out a task which requires interpretation and application of its legal a great degree of operational independence, order. It is essential to give a precise the wish to ensure uniformity, innovative definition of the concept of court or ability and spirit of cooperation. 'It will not tribunal for the purposes of Article 234 have enough freedom to fulfil a guiding EC if the Court of Justice and, as the case role, directing everyone's efforts towards a may be, the Court of First Instance, are not to face an avalanche of requests for pre- 93 — I say 'of barely any use' because, as I shall explain below liminary rulings from bodies that are diffi- (points 75 to 79), the reply given to questions referred for cult to categorise, which will have to be a preliminary ruling by bodies which are not, strictly speaking, courts or tribunals, may be useless if the decision of the referring body is subsequently ignored by the national legal system. 94 — It should be remembered that, under Article 225(3) of the 92 — Review, which is provided for in exceptional circum- Treaty of Nice, the preliminary rulings of the Court of First stances, is reserved for cases in which there is 'a serious risk Instance may be reviewed by the Court of Justice, at the of the unity or consistency of Community law being request of the Advocate General (Article 62 of the Statute affected'. of the Court of Justice, as amended by the Treaty of Nice).

95 — See my contribution, Ruiz-Jarabo, D-, 'La refotma del Tribunal de justicia realizada por el Tratado de Niza y su posterior desarrollo', in El Tratado de Niza, análisis y comentarios, a book in which the other contributors were E Marino, R. Silva, A. Mangas, R Andrés and C. M o r - eira, Ed. Colex, Madrid, 2 0 0 1 , in which I point out t h a t the Court of First Instance 'runs the risk of suffering the same fate as Icarus, the son of Daedalus and Naucrate in Greek mythology, who, with his father, was imprisoned in the Cretan labyrinth. In order to escape, Daedalus conceived the idea of making a pair of wings for his son from bird feathers to be fixed to his body with wax; he warned the boy not to fly too close to the sun, in case the F. The unsettling effect of the intervention w a x melted, or too close to the sea because, if the wings became wet, they would become heavier and would not of an administrative body in a dialogue work. The Court of Fitst Instance will have to maintain a between courts difficult balance: it must neither interfere in the funda- mental work of the Court of Justice, confining itself to assisting that Court, nor fail to cooperate with the national courts and tribunals — an inherent feature of jurisdiction for preliminary rulings — nor attempt to harmonise the interpretation and application of Community law. In the circumstances in which it would be granted to the Court of First Instance, jurisdiction for preliminary rulings loses its most characteristic features and the logical reason for its existence, all the mote so if the new competence is conferred on it in a limited form and subject to so many safeguards. We shall have to avoid a repetition of Icarus's fate; he so enjoyed flying that he went too close to the sun, 75. There was a time when the acceptance the w a x melted, his wings fell off and he fell into the sea and drowned'. by the Court of Justice of jurisdiction to 96 — This was the view of the Court of Justice itself. In its reply to questions referred by bodies which Report on certain aspects of the application of the Treaty were unquestionably not judicial in nature on European Union, issued in May 1995, it stated immodestly that 'it is quite clear that the need to ensure could be justified, as I have already pointed the uniform interpretation and application of Community law, and of the conventions inseparably linked to the out, by the need to foster the implementa- achievement of the objectives of the Treaties, requires the tion of a unitary legal system in the existence of a single court, like the Court of Justice, to establish the law definitively for the whole Community'. It Community. However, now that the system added: 'This requirement is fundamental in any matter which is of a constitutional nature or which poses a has reached cruising speed and Community significant problem for the development of the law'. law is an accepted reality, it would be

79. If the reviewing body considers that the question should have been formulated differently, it will be faced with the difficult 77. Furthermore, the members of adminis- situation: the reference for a preliminary trative organisations which apply legal ruling has been made and the reply received rules and take decisions in accordance with but, for reasons of procedural economy, it legal criteria, do not need to be lawyers. 97 is not inclined to resort again to the This may mean that the question referred preliminary-ruling procedure in order to will not be worded in the most appropriate straighten out the track which it considers way or that it will lack accuracy or the became twisted because the reference was necessary technical precision. incorrectly made. It is a serious matter that the system of judicial cooperation under Article 234 EC should be disrupted because the direct connection between the Court of Justice and the national court is interrupted by an administrative body which, by acts which are well-intentioned but lacking in 78. The judicial body which reviews an independence and the necessary specialised administrative decision adopted on the legal preparation, holds up the whole basis of the reply given by the Court of procedure. We have already seen how the Justice may consider that it was unneces- way in which the question is formulated may determine the Court's reply, 98 so it is 97 — Two examples: of the three members of the Maaseutue- linkeinojen Valituslautakakunta (Rural Businesses Appeals Board), Finland, which made the reference accepted in 98 — In mv opinion in Gottardo, cited in footnote 3 6 , I point Joined Cases C- 9/97 and C-1W97 Jokela and Pitkäranta out that, in the space of barely two years, the Court of [1998] ECR I-6267, one was a non-legal specialist. The Justice gave two completely different replies to the same Kartellgericht (Court of First Instance in Competition question owing to the fact that, in the first, Case C-345/89 Matters), Austria, which made the reference in the Bronner Stoeckel [1991] ECR I-4047, the referring court had made case (cited in footnote 90) was composed of three no mention of an ILO Convention, and in the second, Case members, two of whom were lay assessors. C-158/91 Levy [1993] ECR I-4287, it had alluded to it.

82. A court or tribunal is not only a body which is such under national law, but also a body which must be such in order to 3. Proposal for a new definition of court or guarantee that no sector of Community tribunal for the purposes of Article 234 EC law escapes the process of harmonisation. That is why the Court of Justice has attached great importance to whether the decision of the referring body is open to review within the national legal system. If it acts at last instance, the Court pays less A. The Community nature of the term 99 — Chevallier, M. and Maidani, D., Guide pratique Arti- cle 177 EEC, Luxembourg, Office for Official Publica- tions of the European Communities, 1982, observe that the Community definition of court or tribunal is not wholly independent of the legal categories adopted in national legal systems. The guidelines and criteria approved in the 80. In the light of the considerations I have case-law of the Court of Justice are firmly rooted in the just put forward, it seems essential for the general legal principles common to all the Member States.

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heed to its requirements for considering a lished by law, whose members are subject body to be a court or tribunal and confers to the rule of law and act, when giving that status on administrative bodies. That, decisions in litigation before them, with in my view, was the case in Danfoss 1 0 0 and complete independence and in accordance Broekmeulen. 101 The criterion of effective­ with the principle that proceedings should ness, to ensure that Community law should be inter partes. However, sufficient atten­ always be applied in accordance with the tion has not been paid to the principle of criteria of the Court of Justice, also deter­ unity and exclusive jurisdiction. mined the admissibility of the questions referred for a preliminary ruling in Barr and Montrose Holdings 102 and Pereira Roque. 103

83. Throughout this Opinion, I have given details of the way in which the Court of 85. The study I have made of the case-law Justice has described the elements which of the Court of Justice reveals that the characterise the definition. The exercise of bodies which form part of the national judicial power is attributed to bodies estab­ court systems are always courts or tribunals 104 within the meaning of Article 234 EC ; however, that does not mean that every 100 — Cited in footnote 77. 101 — Case 246/80 Broekmeulen [1981] ECR 2311, in which the Court recognised the status as a court or tribūnai of a committee established by the Royal Netherlands Society 104 — Perhaps the Court was referring to this when it stated in for the Promotion of Medicine to hear appeals against the its judgments in Birra Dreher, cited in footnote 32, and decisions of a General Practitioners Registration Com­ Simmenthal, cited in footnote 34, that the preliminary- mirtee. The Court relied, essentially, on the absence, in ruling procedure is open to any national court or tribunal. practice, of any right of appeal against the Appeal Only the judgment in Corbiau, cited in footnote 12, Committee's decisions, although de lege lata there was a would justify a different solution; the Court of Justice remedy. It is in the light of this approach (see, in support held, in that case, that the Luxembourg Director of Direct of this, points 23 to 25 of the Opinion of Advocate Taxes and Excise Duties was not a court or tribunal General Tesauro in Dorsch Consult, cited in footnote 16) within the meaning of the Treaty, in spite of the fact that that that judgment should be understood. the Luxembourg Conseil d'État had accorded him that standing (see footnote 14). However, his status as a court 102 — Judgment cited in footnote 83. is challenged in Luxembourg itself by authoritative legal 103 — Judgment cited in footnote 85. writers (See points 36 to 39 of Mr Darmon's Opinion).

87. Only as an exception should the Court of Justice accept questions referred for a preliminary ruling by a body which does not form part of the national court system, namely when the referring body, although That definition includes, of course, the outside the judicial framework, has the last requirements deriving from the definition word in the national legal order, because its of 'tribunal' in the European Convention decision may not be contested. In those on Human Rights, especially Article 6(1), circumstances, the purpose and raison as interpreted by the institutions in Stras- d'être of the preliminary-ruling procedure bourg. By means of that common denomi- nator — since it has been ratified by all the Member States — it is possible to over- 106 — Some bodies which are part of the executive power also interpret and apply legal rules, but they do not by virtue come the difficulties which would other- of that fact exercise a judicial function. The function of ius dicere, of stating what the law is in a specific case, is wise arise from the different definitions of not restricted to application of the law. It goes further. It the judicial function contained in the 'activates' the potential capacity of the legal order. The court, on some occasions, applies pre-existing legal rules; various legal orders. but, on others, it does more: it extracts them by applying principles of legislative integration and thus creates law. An administrative act never is and never can be equiva- lent to a judgment. Its aim is not to state the law, but to satisfy specific needs; the function it exercises is, because of its objective, metalegal, even though it is channelled 105 — It should be remembered that, in Job Centre I, cited in and bounded by the law (see Mendizábal, R. de, Còdice footnote 66, the Court rejected at the outset a question con un juez sedente, Real Academia de Jurisprudencia y referred for a preliminary ruling by a court of justice in Legislación, Madrid, 1999, pp. 165 and 166).

107 — On several occasions in this Opinion, I have noted the 108 — Eur. Court HR, Golder v the United Kingdom judgment Court's sensitivity to the need, on the one hand, to extend of 21 February 1975 (Series A, no. 18), paragraph 35. the use of the preliminary-ruling procedure and, on the 109 — As Advocate General Darmon states in his Opinion in other, to ensure that Community law is applied uni- formly, by accepting references for preliminary rulings Case 222/84 Johnston [1986] ECR 1651. from bodies whose decisions were not open to further 110 — Cited in the previous footnote. challenge by legal process. 111 — Case 222/86 Heylens [1987] ECR 4097.

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entitled to ask the court to protect his rights relaxed in this way only where the absence under Community law. 112 Consequently, of adversarial procedure was offset by the administrative decisions which are not fact that the court was equally remote from subject to review by a court of law must both parties to the case. be the exception rather than the rule in the legal systems of the Member States.

89. In order to accept a reference for a 91. It is all the more necessary to be preliminary ruling from a body which, rigorous in relation to the requirement of under the national legal order, does not independence of the body which has to take form part of the court system, the Court of the decision and decides to make a refer- Justice must adhere rigorously to the cri- ence for a preliminary ruling. 114 The Court teria laid down in its own case-law and in of Justice has sometimes gone a very long that of the Strasbourg Court, for the way in its interpretation of this essential reasons given above, especially the criteria element of the judicial function and has of independence and adversarial proceed- distorted it. 115 ings.

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and party at the same time, and not to the only bond which the legal order possible to speak of judicial function with- allows and imposes on it: the law. out an impartial and independent body.

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await the prior setting aside of such provi- it is harder to comprehend that, in its reply, sion by legislative or other constitutional it should grant them powers which they do means. not have under national law, with the consequence that the constitutional system of the Member State in question is under- mined. If the Court of Justice grants the national court full jurisdiction as a Com- munity court, 125 for which we need only recall the apodictic terms of the judgment 99. In the Factortame case, 123 the Court in Simmenthal, which I have just cited, it is added that the full effectiveness of Com- incomprehensible that that jurisdiction munity law would be just as much impaired should be conferred on bodies which, under if a rule of national law could prevent a their own national law, do not form part of court seised of a dispute governed by the judiciary and are considered to be Community law from granting interim merely administrative authorities. Even relief in order to ensure the full effective- more difficult to accept is the fact that the ness of the judgment to be given. In those Court of Justice, when replying to a body circumstances, the court is empowered to which it considers to be a court or tribunal, set aside the national provision. 124 even though it has a different status in the State to which it belongs, is addressing only bodies which actually are part of the national judicial system. 126

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4. The Collège Juridictionnel de la Région functions, jurisdiction to settle complaints de Bruxelles-Capitale brought by taxpayers against tax assess- ments.

102. I admit that, as will become apparent, 104. The permanent deputation is a col- the Collège Juridictionnel de Bruxelles- legiate body of seven members, six of Capitale is a borderline case, and it is very whom are elected by the provincial council doubtful, in the light of the case-law of the from amongst its own members; the Court of Justice, that it would be classified seventh is the governor, who is chairman as a court or tribunal for the purposes of of the deputation. 129 The term of office is Article 234 EC. However, as will also be linked to that of the provincial council and, seen, the fact that it is a borderline case consequently, is currently six years. 130 illustrates perfectly the need for a change in Appointments may not be revoked nor direction of the kind I suggest. may the members be subject to disciplinary proceedings. 131 Members of the judiciary, ministers of worship, and officials and agents of the provincial and municipal administrations are not eligible for mem- bership of the deputation; nor are mayors or councillors. 132

The question has been referred by a col- legiate body which has all the extrinsic characteristics of a court of justice but is not a judicial body. To ascertain its true nature, we need to pause and examine the 105. The permanent deputation is the Belgian legislation governing appeals in executive body of the province and exer- respect of provincial and municipal taxes. cises administrative, legislative and judicial

106. Under Article 83quinquies(2) 136 of the Law of 12 January 1989 concerning the Brussels institutions, 137 the judicial function which in the provinces is exercised by the permanent deputation is exercised in Brussels-Capital by a board of nine mem- 108. Article 9 of the Law of 24 December bers appointed, for an unlimited term, by 1996 142 provided that the permanent the Council of the Brussels-Capital region deputations would hear complaints in their on a proposal of its Government. 138 This is capacity as administrative authorities. On the Collège Juridictionnel. the other hand, under Article 9(2) the Collège Juridictionnel retained jurisdiction for the region of Brussels-Capital.

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109. This change prompted an action juridictionnel still has jurisdiction to hear before the Cour d'arbitrage 143 against the claims against tax assessments in the region provision on the ground that it was con- of Brussels-Capital. Article 9 of the 1996 trary to Articles 10 and 11 of the Belgian Law provided that, in the provinces, the Constitution. It was stated in the judgment taxpayer could submit a complaint to the that Article 9 of the Law of 24 December permanent deputation, whereas in the 1996 was, indeed, contrary to the principle aforementioned region, the competent of equality because it unjustifiably treated body was the Collège juridictionnel. The the inhabitants of Brussels differently from provision was annulled in its entirety, and those of the rest of the State. The former without any qualification, by the Cour benefited from a judicial procedure, d'arbitrage. The Law of 15 March 1999 whereas the latter had to make do with restores the provision but its wording an administrative procedure. The Court makes no mention of the Collège. However, accordingly annulled the provision and it is not stated that Article 83 quinquies of reinstated the system which had been in the 1989 Law, which governs the Brussels- place before it came into force. 144 Capital institutions, has been repealed and, therefore, it seems at first sight that tax appeals in the region should be addressed to that body.

DE COSTER

112. Belgian academic lawyers have unre- servedly described the permanent deputa- tions as political bodies. 148 In my view, it is impossible to describe the Collège juridic- tionnel in the same way. It is true that they both exercise the same functions and follow the same procedure, but the latter is of a special nature owing to the origin of its members and the exclusivity of its function. 114. The Collège juridictionnel, on the other hand, is made up of persons who, although subject to the same ineligibilities as the members of the permanent deputa- tions, do not come from government insti- tutions, although they are appointed by the government of the region of Brussels-Capi- tal, and, more significantly, their term of

seem to be of the same opinion. They say that, after the in its capacity as an administrative authority, has issued judgment of the Cour d'arbitrage, it would have been the tax assessment. Afschrift, T. and Igalson, M., 'La preferable to establish in the Flemish and Walloon regions procédure fiscale après les lois des 15 et 23 mars 1999', institutions identical to the College juridictionnel. In cited above, paragraph 132, criticise the lack of indepen- 1999 the legislature chose the opposite course: purely dence of the board of municipal representatives estab- administrative claims with the possibility of judicial lished by the 1999 amendment and say that its members review. will not be overly inclined to annul assessments prepared in application of provisions approved by the council t o 148 — Leroy, M., Contentieux administratif, Ed. Bruylant, which they belong and drawn up by officials working Brussels, 1996, pp. 96 to 98, has said that the permanent directly under their authority. However, in Case 109/90 deputations are, first and foremost, political institutions Giant [1991] ECR 1385, the Court replied to a question and that although, in practice, their decisions are rarely referred for a preliminary ruling by the permament criticised for being biased, as a matter of principle there is deputation of Brabant provincial council.

amended by the Law of 11 April 1936.

115. However, the fact that the Collège 117. It is true that Belgian academic writers juridictionnel is not a political body and the do not dispute the description of the fact that it exercises its powers indepen- Collège as a body which exercises judicial dently of the authority which appoints its functions. 156 It is also true that, in judg- members are elements which, although ment No 30/98, the Cour d'arbitrage stated significant, do not automatically convert that 'judicial proceedings' are held before it into a court or tribunal for the purposes the Collège. But this last statement does not of Article 234 EC. contradict the thesis that it is not a judicial body. The Cour d'arbitrage's ruling was given in proceedings to review whether the 1986 Law was constitutional from the point of view of the principle of equality and it sought to emphasise differences by reference to the contrasting term, repre- sented by the permanent deputations. The 116. The Collège is an institution which decision rested on the difference in descrip- exercises its function independently but is tion between the two institutions, which I still part of the administrative organisation have set out in the above points. of Brussels-Capital and has jurisdiction to settle complaints relating to the taxes imposed in the region. 154 In actual fact, it is a filter between the administrative autho- rities which manage and assess the taxes and the courts of justice. 155 Of course, it does not form part of the judiciary and it necessarily follows that its members cannot In any event, 'exercise of judicial functions' be judges. If it is not a court of justice, it and 'judicial body' are not synonymous terms. The case-law of the Court of Justice provides, as we have seen, a good example 153 — Afschrift, T. and Igalson, M., 'La procédure fiscale après of this and it is the specific aim of this les lois des 15 et 23 mars 1999', cited above, paragraph Opinion to resolve this terminological 132. 154 — Under Article 83quinquies of the Law of 12 January confusion. Nobody has said, or could say, 1989, the jurisdiction exercised in the provinces by the that the Collège juridictionnel forms part of permanent deputations is divided, in the region of Brussels-Capital, between the Government and the Col- the judicial system, even though it holds lege juridictionnel: the former exercises administrative powers and the latter judicial powers. Legislative powers are exercised by the Council and, if appropriate, by the Government (see Articles 6, 38 and related articles of the Law). 156 — Dambermont, B., Textes communales (Loi du 24 décem- 155 — This is the view of T. Afschrift and M. Igalson, op. cit. bre 1996, analyse par article, textes légaux), Ed. La paragraph 132. Charte, Bruges, 1999.

119. However, in case that proposal is not accepted, I shall now analyse the substance of the question. 122. Article 49 EC prohibits restrictions on freedom to provide services within the Community. According to the case-law of 157 — See point 107 above and footnote 141. 158 — To ascertain whether a body's decision is the final one in the Court of Justice, this principle requires the national legal system, consideration must be given to whether an appeal in cassation lies. Certainly, cassation is not only the elimination of all discrimina- not a further instance but, since its aim is to determine the tion against a person providing services on interpretation of the legal order and since the purpose of the preliminary-reference procedure is to establish the interpretation of the Community legal order, a body whose decision is subject to appeal before a court of cassation cannot be regarded as the court of last instance 159 — See, for example, Case 279/93 Schumacker [1995] ECR for the purposes of Article 234 EC. I-225, paragraph 21.

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the ground of his nationality but also the Treaty must fulfil four conditions: they abolition of any restriction, even if it must be applied in a non-discriminatory applies irrespective of nationality, which is manner; they must be justified by impera- liable to prohibit, impede or discourage the tive requirements in the general interest; activities of a provider of services estab- they must be suitable for securing the lished in another Member State. 160 attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it. 163

124. Furthermore, the Court of Justice has held that the transmission of television signals comes within the rules relating to 126. The principle of equal treatment, as the provision of services 162 and that, to be specifically expressed in Article 49 EC, lawful, national measures liable to hinder prohibits not only overt discrimination by or make less attractive the exercise of reason of nationality but also all covert fundamental freedoms guaranteed by the forms of discrimination which, by the application of other criteria of differentia- tion, lead in fact to the same result. 164 That 160 — Case C-76/90 Säger [1991] ECR I-4221, paragraph 12; Case C-272/94 Cuiot [1996] ECR I-1905, paragraph 10; provision likewise precludes the application and Case C-398/95 S E 7 T G [1997] ECR I-3091, para- graph 16. 161 — Joined cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377; Case C-484/93 Svensson and Gustavsson 163 — Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; [1995] ECR I-3955; and Case C-294/97 Eurowings and and Case C-55/94 Gebhard [1995] ECR I-4165, para- Luftverkehrs [1999] ECR I-7447, paragraph 34. graph 37. 162 — Case 155/73 Sacchi [1974] ECR 409, paragraph 6; Case 164 — Case C-3/88 Commission v Italy [1989] ECR 4035, 52/79 Debauve [1980] ECR 833, paragraph 8; and Case paragraph 8, and Case C-360/89 Commission v Italy C-23/93 TV10 [1994] ECR I-4795, paragraphs 13 to 16. [1992] ECR I-3401, paragraph 1 1 .

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of any national legislation which has the in other Member States only broadcast by effect of making the provision of services satellite, they are more affected by the tax between Member States more difficult. 165 in question. The tax therefore has a dis- criminatory effect.

165 — Case 381/93 Commission v France [1994] ECR I-5145, 166 — Case 352/85 Bond van Adverteerders [1988] ECR 2085, paragraph 17, and Case C-118/96 Safir [1998] ECR paragraph 32, and Case C-260/89 ERT [1991] ECR I-1897, paragraph 23. I-2925, paragraph 24.

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2. The regulation as a restriction on free- 135. In short, the introduction, by means dom to provide services of a municipal law, of an annual tax on satellite dishes represents a restriction on the use of that receiving device and, there- fore, on the freedom to provide audiovisial services by satellite. 167

A. Its effect on freedom to provide services

132. In case the Court of Justice does not consider the Belgian tax regulation at issue to be discriminatory, I also need to analyse B. The lack of justification whether it constitutes a restriction on free- dom to provide services within the Com- munity and, if so, whether it may be justified by imperative requirements con- nected with the general interest. 136. According to the case-law of the Court of Justice, the freedom to provide services, as a fundamental principle of the Treaty, may be restricted only by rules:

(2) which are necessary to ensure that the desired result is achieved, and 139. However, this explanation is not acceptable. I find no justification for the restrictive measure. It is not stated that the alleged concern for aesthetics was sup- ported by any study on the impact of (3) which go no further than necessary to satellite dishes on the urban environment. achieve that result. 168 And, even if, for obvious reasons, there may be justification in respect of protected and listed buildings, no explanation at all is given with regard to the others.

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OPINION OF MR COLOMER — CASE C-17/00

142. The Commission maintains that the 145. Finally, the Commission believes it declared aim of the tax regulation could be would be expedient to examine the tax achieved effectively by imposing less oner- legislation in question in the light of ous measures on the owners of satellite Article 10 of the European Convention on dishes, such as the obligation to use a Human Rights and Fundamental Free- specific colour or size, to install dishes doms, which upholds freedom of informa- behind buildings or in places which are not tion. very visible. Measures of precisely that kind have been incorporated in the local plan- ning rules relating to outdoor aerials, 169 which provide, for example, that an aerial must not be fitted on a listed building, must be in keeping with the building's architec- 146. In point 9 of the Opinion I delivered tural features and must not exceed 1.20 in Connolly v Commission, 170 I stated that metres in diameter. freedom of expression is one of the funda- mental pillars of any democracy. As stated in one of the finest passages found in the Strasbourg case-law: 'Freedom of expres- sion constitutes one of the essential foun- dations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favourably received or regarded as 143. However, the general application of inoffensive or as a matter of indifference, the tax to every satellite dish, regardless of but also to those that offend, shock or the circumstances of its installation, disturb the State or any sector of the infringes the principle of proportionality. population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society"'. 171

( 1 ) refer this case to the full court so that it may clarify the meaning of court or tribunal for the purposes of Article 234 EC;

(2) declare that it does not have jurisdiction to reply to the question referred to it for a preliminary ruling by the Collège juridictionnel de la Région de Bruxelles-Capitale, because that body is not a court or tribunal within the meaning of Article 234 EC;

(3) in the alternative, if it decides to accept the question, declare that, under Article 49 EC, a rule, such as that contained in the tax regulation adopted by the Municipal Council of Watermael-Boitsfort sitting on 24 June 1997 introducing a tax on satellite dishes used to receive audiovisual broadcasts by satellite is unlawful.

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