Order — ECLI:EU:C:1999:590
Date: 1999-11-26
Language of the case: Italian
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Concepts: Definition of court or tribunal of a Member State
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary of the Order 
Preliminary rulings — Reference to the Court — Court or tribunal of a Member State 
within the meaning of Article 177 of the Treaty (now Article 234 EC) — Meaning — To 
be determined on the basis of the body's constitution and role — Role of the Corte dei 
Conti (Italian Court of Auditors), in the context within which reference was made to the 
Court, consisting in the evaluation and verification of the results of administrative 
action — Not a judicial function 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
I - 8597 
SUMMARY — CASE C-440/98 
The question whether a body may refer a 
question to the Court falls to be determined 
on the basis of criteria relating both to the 
constitution of that body and to its func­
tion. Thus, a national body may be classi­
fied as 'a court or tribunal' within the 
meaning of Article 177 of the Treaty when 
it is performing judicial functions, but 
when exercising other functions — of an 
administrative nature, for example — it 
cannot be recognised as such. 
It follows that in order to establish whether 
a national body, entrusted by law with 
different categories of function, is to be 
regarded as a court or tribunal within the 
meaning of Article 177 of the Treaty, it is 
necessary to determine in what specific 
capacity it is acting within the particular 
legal context in which it seeks a ruling from 
the Court. For the purposes of that analy­
sis, no relevance is to be attributed to the 
fact that, when otherwise configured, the 
body concerned falls to be classified as a 
court or tribunal for the purposes of 
Article 177 of the Treaty (even the same 
entity whose status is in issue, when it is 
exercising powers other than those in the 
context of which the reference was made). 
The Corte dei Conti (Court of Auditors) is 
not performing a judicial function — and 
cannot therefore make a reference to the 
Court of Justice — when, in the context in 
which reference was made, it is exercising 
its powers of ex post facto review which is 
an administrative role consisting in the 
evaluation and verification of the results 
of administrative action. 
I - 8598