Judgment — ECLI:EU:C:2010:821
Date: 2010-12-22
Language of the case: French
Court formation: Sixth Chamber
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Belgium

Summary of the Judgment Preliminary rulings – Reference to the Court – Court or tribunal for the purposes of Article 267 TFEU – Concept (Art. 267 TFEU) In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 267 TFEU, which is a question governed by Union law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. As regards, more specifically, the independence of the body making a reference, there are two aspects to that concept. The first aspect, which is external, entails the body’s being protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. The second aspect, which is internal, is linked to impartiality and seeks to ensure equal terms for the parties to the proceedings and their respective interests in relation to the subject-matter of those proceedings. The criterion of independence is not satisfied by the Collège d’autorisation et de contrôle du Conseil supérieur de l’audiovisuel (the licensing and control authority of the broadcasting authority), which is responsible for ensuring compliance by the media broadcasters in question with the broadcasting rules and for punishing any infringements and the Collège does not, therefore, constitute a court or tribunal for the purposes of Article 267 TFEU. The reason for this is that neither the structural organisation of the Conseil supérieur de l’audiovisuel (broadcasting authority) and the bodies of which it is made up, nor the tasks assigned to them, support a finding that that authority acts as an impartial third party between the alleged offender, on the one hand, and the administrative authority responsible for monitoring the audiovisual sector, on the other. In particular, the Collège d’autorisation et de contrôle du Conseil supérieur de l’audiovisuel, through the Bureau du Conseil supérieur de l’audiovisuel (bureau of the broadcasting authority), which is a decision-making body, is linked, in terms of functions, with the Conseil supérieur de l’audiovisuel as a whole and also with the investigatory office, upon whose proposals it decides. Consequently, when it adopts a decision, the Collège d’autorisation et de contrôle du Conseil supérieur de l’audiovisuel is not distinct from the administrative monitoring body, which can act as a party to proceedings relating to broadcasting matters. That finding is corroborated by the fact that the bureau represents the Conseil supérieur de l’audiovisuel before the courts and with respect to third parties. (see paras 36, 39-42, 44-46)