62000CC0017_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The Collège Juridictionnel de la Région de Bruxelles-Capitale (Judicial Board of the Brussels-Capital Region), Belgium, has asked the Court of Justice to interpret Article 49 EC and related articles, in order to establish whether they preclude a municipal regulation imposing an annual tax on satellite dishes.
I - The national regulations and facts in the main proceedings
2. The municipal administration of Watermael-Boitsfort, sitting on 24 June 1997, approved a regulation to levy an annual tax on the ownership of satellite dishes (hereinafter the regulation) during the financial years 1997 to 2001 inclusive.
3. Under Article 2 of the regulation, the rate of the tax was set at 5 000 Belgian francs per satellite dish, whatever its size. The tax was due for the whole calendar year, regardless of the date of installation of the dish during the tax year.
4. Article 3 provided that the tax would be payable by the owner of the satellite dish on 1 January of the tax year.
5. On 10 December 1998, Mr de Coster lodged a complaint against the assessment of the tax for that financial year, on the ground that the tax regulation was contrary to the freedom to receive television programmes from other Member States, established in Article 59 of the EC Treaty (now, after amendment, Article 49 EC), concerning freedom to provide services, and Council Directive 89/552/EEC of 3 October 1989 (hereinafter the Directive).
II - The Community legislation
6. Article 49 EC provides that restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
7. The first paragraph of Article 50 EC establishes that services are to be considered to be services within the meaning of the Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
8. The Directive states, in its preamble, that television broadcasting constitutes, in normal circumstances, a service within the meaning of the Treaty; Community law provides for free movement of all services normally provided against payment, without exclusion on grounds of their cultural or other content and without any restriction affecting nationals of Member States established in a Community country other than that of the person for whom the services are intended.
It is also stated in the preamble that this right to free movement, as applied to the broadcasting and distribution of television services, is a specific declaration in Community law of freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ratified by all Member States. Accordingly, it is stated that the aim of the Directive is to remove restrictions on freedom to broadcast within the Community, as required by the Treaty.
9. Under Article 2 of the Directive, Member States are to ensure freedom of reception and are not to restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by the Directive.
III - The question referred to the Court for a preliminary ruling
10. On 9 December 1999, the Collège Juridictionnel de la Région de Bruxelles-Capitale submitted the following question for a preliminary ruling:
Are Articles 1 to 3 of the tax regulation on satellite dishes, adopted in a vote by the Municipal Council of Watermael-Boitsfort sitting in public on 24 June 1997, introducing a tax on satellite dishes, compatible with Articles 59 to 66 of the Treaty establishing the European Community of 25 March 1957?
IV - The admissibility of the question. The definition of court or tribunal
11. The Commission expresses doubts as to whether the Collège Juridictionnel de la Région de Bruxelles-Capitale is a national court or tribunal for the purposes of Article 234 EC; I am therefore required to examine in depth the nature of the body which has made the reference. Both its origin and its structure have very specific features which make it difficult to categorise according to the criteria so far provided by the case-law of the Court of Justice.
12. Article 234 EC provides that the Court of Justice is to have jurisdiction to give preliminary rulings concerning the interpretation 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 tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.,
13. However, the Treaty does not define the term national court or tribunal. Nor does the Court of Justice, which has merely laid down a number of criteria for guidance, such as whether the body is established by law, whether it is permanent and independent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether the decision is of a judicial nature, and whether it applies rules of law.
14. The result is case-law which is too flexible and not sufficiently consistent, with the lack of legal certainty which that entails. The profound contradictions noted between the solutions proposed by Advocates 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 vague outlines that a question referred for a preliminary ruling by Sancho Panza as governor of the island of Barataria would be accepted.
15. I shall now try to describe the path trodden between the Vaassen-Göbbels case and the judgment in Österreichischer Gewerkschaftsbund; I shall then suggest a change of direction which I believe to be essential and, consequently, propose that the judgment should be delivered in this case by the Court of Justice in plenary session.
1. The case-law of the Court of Justice relating to the definition of a court or tribunal
16. It all began in the Vaassen-Göbbels case. A reference for a preliminary ruling had been made by an arbitration tribunal which did not form part of the Netherlands legal system but had jurisdiction to hear appeals brought against the decisions of a social security institution. The Court of Justice set out, for the first time, five of the criteria which it considers determine whether a body constitutes a court or tribunal: statutory origin, permanence, inter partes procedure, compulsory jurisdiction, and the application of rules of law.
17. Since that judgment the Court has, in each case, ascertained whether those requirements are met; it has refined and perfected them, adding others, such as the requirement that the body should be independent, which was mentioned in the judgment in Pretore di Salò and adopted unconditionally in the Corbiau case. It is significant that the criterion of independence, which is the most important feature that a court must display, should have to wait until 1987 to appear in a judgment of the Court of Justice.
18. The case-law has remained unchanged in respect of some of the requirements, specifically whether the body is established by law, whether it is permanent and whether its decisions apply the law. However, others, those which most clearly define a court or tribunal, such as the indispensable criterion of independence, inter partes procedure or decision of a judicial nature, have received interpretations that have been at least hesitant and, on occasions, confused.
A. The gradual relaxation of the requirement that the body should be independent
19. Although reference had already been made in Pretore di Salò to independence as one of the conditions for a body to be regarded as a court or tribunal for the purposes of Article 234 EC, the judgment in Corbiau was the first to give it its fundamental meaning, requiring that the body seeking the preliminary ruling should act as a third party in relation to the authority which adopts the decision forming the subject-matter of the proceedings.
20. The Court of Justice was equally categorical in Criminal proceedings against X, in which the reference for a preliminary ruling had been made by the Procura della Repubblica. The Court declared that it did not have jurisdiction, because the prosecutor did not fulfil the requirement of independence.
21. In the Dorsch Consult case, the Court of Justice overlooked the requirement that the body taking the decision should not be linked to the parties and focused on the point that its objective should be to carry out its task independently and under its own responsibility, which allowed it to consider that the German Federal Public Procurement Awards Supervisory Board was a court even though it was linked to the organisational structure of the Bundeskartellamt (Federal Cartel Office) and the Federal Ministry for Economic Affairs.
22. For the Court of Justice it was crucial that the fundamental provisions of the statute governing the German Judiciary as regards annulment or cancellation of appointments, and also independence and the possibility of dismissal, applied by analogy to the members of the Federal Board.
23. The judgment in Köllensperger and Atzwanger took the same approach. The Court of Justice examined whether the Public Procurement Office, Tyrol, Austria, was a court or tribunal and, although it acknowledged that the law governing that body includes a passage referring to the cancellation of the appointments of its members which is too vague, and does not contain any specific provisions on the rejection or withdrawal of members, it stated that the independence of its members was guaranteed by the application of the General Law on Administrative Procedure, which contains very specific provisions on the circumstances in which members of the body in question must withdraw, and expressly prohibits the giving of instructions to members of the Office in the performance of their duties.
24. That judgment not only abandons the requirement that the body should be a third party, but also disregards the absence of specific rules intended to guarantee the independence of its members, and considers that the generic provisions intended to ensure their impartiality or, where appropriate, the independence of the members of courts and tribunals, are adequate.
25. In my view, that reasoning is weak. A general principle of non-interference in the activities of the State's administrative bodies, combined with a duty to withdraw, cannot be enough to guarantee the independence of the person who has to give a ruling in the dispute. On the other hand, that fundamental status of a body as a court or tribunal must be guaranteed by provisions which establish, clearly and precisely, the reasons for the withdrawal, rejection and dismissal of its members.
26. The gradual relaxation observed in the case-law of the Court of Justice in relation to the requirement of independence culminates in the judgment in Gabalfrisa and Others, in which the Court had to consider the status as courts or tribunals of the Spanish Economic-Administrative Courts (Tribunales Económico-Administrativos), which do not form part of the judiciary but are organically linked to the Ministry of Economic Affairs and Finance, that is, the very administration responsible for the acts which they have to judge.
27. In spite of the views expressed in legal literature and by its Advocate General, the Court of Justice granted them the status of courts or tribunals of a Member State, attributing crucial importance to the separation of functions between, on the one hand, the departments of the tax authority responsible for management, clearance and recovery and, on the other hand, the economic-administrative courts which rule on complaints lodged against the decisions of those departments without receiving any instructions whatsoever.
28. However, as Advocate General Saggio again pointed out, those circumstances do not provide an adequate guarantee of impartiality. The members of the economic-administrative court are employed by the administration and appointed by the minister, who has the power to dismiss them without abiding by conditions clearly and categorically laid down by law. It cannot be said, therefore, that the body's rules of operation guarantee the irremovability of its members and, consequently, it seems doubtful that it has a degree of independence which allows it to resist possible undue intervention and pressure from the executive.
The function of the economic-administrative courts cannot be described as judicial; on the contrary, the claims brought before them are in the nature of an administrative appeal, a review by the administration itself at the request of one party. On the other hand, its decisions are, without exception, open to review by the courts for contentious administrative proceedings (Tribunales de la jurisdicción contencioso-administrativa). Since these courts are able to assess the need to make a reference for a preliminary ruling to the Court of Justice, there is therefore no danger that Community law will not be uniformly applied.
The economic-administrative claim therefore has the role, which is characteristic of administrative appeals, of giving the administration the opportunity to adopt its final position, in inter partes proceedings between the persons concerned, before leaving the way open to the courts of law.
Another circumstance which confirms that the function of these bodies is of an administrative nature is that passivity on their part activates the phenomenon of administrative silence, a fiction specifically created by the legislature to prevent administrative paralysis from denying the parties concerned access to justice. If the economic-administrative courts do not give a ruling within one year of the date on which the claim was lodged, the claim is deemed to be rejected and, accordingly, from that moment, the individual may have recourse to the courts for contentious administrative proceedings.
Furthermore, the Tribunal Económico-Administrativo Central (Central Economic and Administrative Court) may decline jurisdiction over matters which it considers important, or in which the amount involved is particularly high, and leave the decision to the Minister for Economic Affairs and Finance. One might ask whether, following the judgment in Gabalfrisa and Others, the Minister also has the power to refer questions for a preliminary ruling if he takes over the case.
B. The diminishing importance of the requirement that proceedings should be inter partes
29. The court or tribunal not only has to be independent and act independently; it also has to take its decision following inter partes proceedings, in which the opposing parties may assert their legally protected rights and interests. However, the scope of the requirement, stated in the Court's judgment in Vaassen-Göbbels, that proceedings should be inter partes, was very soon reduced.
30. The judgments in Politi and Birra Dreher confirmed that Article 234 EC does not make references to the Court conditional on whether the proceedings are inter partes and that, therefore, a question may be referred for a preliminary ruling even if there is no debate. The decisive factor, therefore, is that the body seeking the help of the Court of Justice is exercising the functions of a court or tribunal and considers that an interpretation of Community law is essential for it to reach a decision. The fact that the proceedings in which the question arises are or are not defended is irrelevant.
31. However, in its judgments in Simmenthal and Ligur Carni and Others the Court stated that it may prove to be in the interests of the proper administration of justice that a question should be referred for a preliminary ruling only after both sides have been heard. Nevertheless, that qualification did not lead it to go back on its previous position since it takes the view that it is for the national court alone to assess whether it is necessary to make a reference.
32. Consequently, the Court of Justice does not make the adversarial nature of the proceedings a precondition for a reference for a preliminary ruling to be admissible. A question may be admissible if it arises in ex parte proceedings or at an ex parte stage in adversarial proceedings. The judgments in Birra Dreher and Simmenthal emphasised what had already been stated in Politi, that any court or tribunal of a Member State may refer a question for a preliminary ruling at any stage in the main proceedings.
33. The requirement that the proceedings should be inter partes has gradually lost ground. In Pretore di Cento and Pretura unificata de Torino, neither of which had defending parties, the Court of Justice did not even query the admissibility of questions referred for a preliminary ruling. The judgment in Pardini replied to questions referred by the Pretore di Lucca in proceedings relating to interim measures.
34. Until then the Court of Justice had not attached much importance, if any, to the requirement that the proceedings should be inter partes. However, if the facts are studied carefully, it will be noted that the principle was not absent, merely deferred; in any event, the absence of the adversarial element was compensated for by the complete impartiality of the judge and his independence with regard both to the dispute and the parties to it.
35. However, in a number of later judgments, the Court seems to have abandoned that course and, regrettably, has admitted and given preliminary rulings on questions referred in proceedings in which the absence of the adversarial element was not offset by the fundamental independence of the body which raised the question.
36. Indeed, in Dorsch Consult the Court admitted questions referred for a preliminary ruling by an administrative body in undefended proceedings.
37. In its judgment in Gabalfrisa and Others, the Court of Justice considered that proceedings before the Spanish economic-administrative courts are inter partes since the parties concerned may lodge submissions and evidence in support of their claims and request a public hearing. Moreover, where an economic-administrative court considers it relevant to adjudicate on matters which were not raised by the persons concerned it must inform the parties to the proceedings and grant them a period of fifteen days to submit their observations.
38. However, as Advocate General Saggio made clear in his Opinion, the proceedings may be considered only partially inter partes, in so far as concerns the interested parties, since only limited pleadings and evidence are admitted, and the decision as to whether a public hearing will be held is taken at the discretion of the body itself, with no subsequent appeal.
C. The confusion introduced by the requirement that the final decision in the case should be judicial in nature
39. Whilst the requirements of independence and the adversarial nature of the proceedings have faded somewhat, the requirement that the decision to be adopted by the referring court must be judicial in nature has always been blurred. It could not be otherwise: to say that a body which gives a judicial ruling is a court or tribunal is like saying nothing at all. That status cannot be equated to the application of legal rules, because it is not exclusive to the bodies which exercise jurisdiction. Administrative bodies act in accordance with legal criteria and, consequently, also apply the law.
40. Therefore, to determine whether a decision is of a judicial nature, the Court of Justice has been obliged to look, indirectly, at other characteristics which define a court or tribunal, in most cases at the conflictive nature of the proceedings in which the decision is adopted and, in others, at the position of the decision-taker in the legal organisation.
41. Thus, in the Borker case the Conseil de l'Ordre des Avocats à la Cour de Paris (Bar Council of the Cour de Paris) was held not to be a court or tribunal because it had not been called upon to try a case but to give its opinion on a dispute between a member of the Bar and a court or tribunal of another Member State. On similar grounds the Court of Justice, in the Greis Unterweger case, denied the status of court or tribunal to the Commissione Consultiva per le Infrazioni Valutarie ( Consultative Commission for Currency Offences) which issues opinions in administrative proceedings and, in Victoria Film, to the Skatterrättsnämnden (Swedish Revenue Board) because it did not settle any dispute but merely, at the request of a taxpayer, gave a preliminary decision in relation to a tax matter.
42. Similarly, the judgment in Criminal proceedings against X held that the Procura della Repubblica could be regarded as a court or tribunal since, amongst other reasons, its role was not to rule on an issue but, acting as prosecutor in the proceedings, to submit that issue, if appropriate, for consideration by the competent judicial body. Nevertheless, the judgment in Pretore di Salò acknowledged that body - which, as I have pointed out, combines the functions of an examining magistrate and a prosecutor - to be a court or tribunal, even though it conceded that many of its functions were not of a strictly judicial nature, that it to say, they were not directed towards settling a legal dispute.
43. On the other hand, in Garofalo and Others the Court held that a body which submitted an opinion in a procedure in which the decision was taken by a political authority exercised a judicial function. The matter related to the Consiglio di Stato issuing an opinion in the context of an extraordinary petition; however, in fact, it also provides the decision. The opinion, based on the application of rules of law, forms the basis for the decision which will be formally adopted by the President of the Republic, and any departure from the proposed solution may be made only after deliberation within the Council of Ministers and must be duly reasoned.
44. The Court of Justice, relying on the judgment in Nederlandse Spoorwegen, held that the Italian Council of State is a court or tribunal within the meaning of the Treaty. In contrast, in the Orders in ANAS and RAI it denied that status to the Italian Court of Auditors, since the power of review which it exercised in the main proceedings consisted essentially in the evaluation and verification of the results of administrative action, from which the Court inferred that, in the context in which the reference was made, the aforementioned auditing body was not performing judicial functions.
45. Until the judgment in Job Centre I, it seemed apparent from the case-law of the Court of Justice that, where a reference for a preliminary ruling is received from a body which forms part of the national judicial organisation, the question is admissible, even if that body is not giving a ruling in a dispute. Since that judgment, the position has not been so clear.
46. In that case the Tribunale Civile e Penale, Milan, referred two questions for a preliminary ruling in non-contentious proceedings and the Court of Justice adopted a restrictive criterion. It held that a national court may seek a ruling from the Court only if there is a case pending before it and if it is called upon to render a decision of a judicial nature.
47. It is not enough, therefore, for the Court of Justice, that the referring body is part of the judicial power of a Member State; it also has to give a ruling in a case, and a case exists where there is a legal dispute with another, even if that other is a judicial body whose decision it is sought to review; consequently, in its judgment in Job Centre I, the Court declared that a body seised of an appeal brought against a decision adopted in non-contentious proceedings exercises a judicial function. That was the position in Haaga.
D. The problems which arise when arbitrators are regarded as courts or tribunals
48. One of the factors which, since the judgment in Vaassen-Göbbels, defines a court or tribunal within the meaning of Article 234 EC is whether its jurisdiction is compulsory.
49. This factor left arbitration tribunals out of the picture. In the Nordsee case, the Court declared that it had no jurisdiction to give a ruling on the questions referred by a German arbitration court to which the parties were under no obligation to refer their disputes and stated that, if questions of Community law are raised in an arbitration resorted to by agreement, it is for the ordinary courts to refer a question for a preliminary ruling, if they consider it necessary, either in the context of their collaboration with the arbitration tribunals or in the course of reviewing the arbitration award.
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, in which the reference for a preliminary ruling was made by a Danish arbitration court granted final jurisdiction by law in disputes relating to collective agreements between employees' organisations and employers, where the jurisdiction did not depend on the agreement between the parties since either might bring a case before it despite the objections of the other, and the decision was binding on everybody.
51. In its judgment in Almelo, where it did adopt a consistent approach, the Court of Justice accepted jurisdiction to reply to the questions referred for a preliminary ruling by a judicial body determining, according to what appeared fair and reasonable, an appeal from an arbitration award, because it was required to observe the rules of Community Law.
52. However, because it focused so much on the requirement that the jurisdiction should be compulsory, the Court overlooked the other features which, according to its stated views, define a court or tribunal for the purposes of Article 234 EC and, in the Danfoss case, it acknowledged as such an arbitration board whose composition and operation are not determined in detail by statute. An arbitration board is composed on an ad hoc basis, and the proceedings are conducted on the basis agreed between the parties, within the framework of the law.
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
53. In its judgments in Kaefer and Procacci and Leplat, the Court of Justice acknowledged that a reference for a preliminary ruling could be made by the courts or tribunals of overseas countries and territories which form part of the French judicial system.
54. Furthermore, in Barr and Montrose Holdings it recognised the right to refer questions for a preliminary ruling of the courts and tribunals of the Isle of Man, even though they do not form part of the court system of the United Kingdom. Subsequently, in Pereira Roque, the Court, without considering admissibility, gave a preliminary ruling on a reference from a judicial body of the Bailiwick of Jersey, whose courts and tribunals likewise do not form part of the judicial system of the United Kingdom.
55. Although Article 234 EC refers to the courts and tribunals of a Member State, the judgment in Parfums Christian Dior declared that the Benelux Court had not only the right to make a reference for a preliminary ruling but the obligation to do so, as a judicial body giving judgments against which no appeal lies under national law. The absence of subsequent proceedings against that court's decision, which gives a definitive interpretation of the common Benelux rules, led the Court of Justice to accept the reference.
56. Those pronouncements, in which the status of court or tribunal of a Member 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 the norma decidendi is a rule of that law may use the tool provided by Article 234 EC.
57. For similar reasons, and conversely, the national law must not prohibit a judicial body from referring questions for preliminary rulings. In its judgment in Rheinmülen, the Court of Justice held that the existence of a rule of domestic law whereby a court is bound on points of law by the rulings of the court superior to it cannot of itself take away the power of referring cases to the Court.
2. The urgent need for a change in the case-law
A. The legal uncertainty caused by the absence of a definition of court or tribunal and the vacillations in the case-law
58. The foregoing points are not meant to be a sterile scholarly work. They show that the Court's approach to this matter is not only excessively casuistic, as I have pointed out above, but also lacks the clear and precise features required for the definition of a Community concept. Far from providing a reliable frame of reference, the case-law offers a confused and inconsistent panorama, which causes general uncertainty. The frequent disparity between the solutions suggested by the Advocates General and the pronouncements of the Court illustrate the legal uncertainty surrounding the concept of court or tribunal of a Member State.
59. The principal victim of the situation has been the Court of Justice itself, which has been hesitant with respect to the judicial nature of many bodies which have made preliminary references, and has sometimes failed to give its reasons for going in one direction or the other.
60. It may be observed that where the Court of Justice has seemed uncertain is, as I have already pointed out, in relation to the elements which distinguish a body which is a court or tribunal from one which is not, since legal origin, permanence and taking decisions in accordance with legal criteria are also characteristics of bodies within the administrative structure.
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
61. If uncertainty in legal relations is disturbing, the sense of unease is all the greater when it concerns a notion which, like that in Article 234 EC, is a matter of public policy. The concept of national court or tribunal determines whether the Court of Justice has jurisdiction to expedite proceedings which, like the preliminary-ruling procedure, have turned out to be essential to the gradual construction and consolidation of the Community legal order. The Court of Justice cannot have control of its own jurisdiction. The ground rules must be clearly defined in a Community governed by the rule of law. The national courts and Community citizens are entitled to know, in advance, who may be deemed to be courts or tribunals for the purposes of Article 234 EC.
62. The greater or lesser laxity with which the concept is addressed determines the breadth of the range of persons who may seek the cooperation of the Court of Justice and, consequently, the number of its preliminary rulings. This circumstance is relevant to the task of harmonising the interpretation and application of Community law. When showing the way, by making pronouncements which everyone else is to follow, it is necessary to act cautiously and carefully. One well-thought-out and well-founded decision resolves more problems than a large number of hasty judgments which do not go deeply into the reasoning and do not come to grips with the questions submitted to them.
63. In order to further the uniform dissemination and application of Community law, in the early years of its development, the Court of Justice encouraged the use of the preliminary-ruling procedure by adopting a broad interpretation of the definition of the body entitled to implement it. However, what previously was clearly justified, now - when the Community is a reality accepted by the legal practitioners of the Member States - is disturbing and may seriously hinder the work of the Court of Justice.
64. Therefore, as Community law now stands, there is a need to tighten the definition of court or tribunal of a Member State, to bring together its various components in order to provide a precise frame of reference and so to prevent uncertainty from becoming a permanent feature of this sphere. The Court's initial approach of encouraging references for preliminary rulings, which has been properly described as a vocation to educate, must yield to a different dialectic, which no longer has the national court under supervision and allows it to take on the responsibility of an ordinary court of Community law.
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
65. The Treaty of Amsterdam may be understood as implicitly calling on the Court of Justice to define the concept of court or tribunal for the purposes of making a reference for a preliminary ruling. The Treaty breaks up the unitary discipline of the system. To the general reference for a preliminary ruling, under Article 234 EC, are added two specific ones, with particular features: one in Article 35(1) of the Treaty on European Union, and the other in Article 68(1) EC.
66. The Treaty on European Union has extended the jurisdiction of the Court of Justice to the third pillar by three routes. One of them enables it to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions on police and judicial cooperation in criminal matters and on the validity and interpretation of the measures implementing them (Article 35(1) of the Treaty on European Union). The Court's jurisdiction is at a preparatory stage, since it must be approved by the Member States in order to take effect.
67. Article 68 EC grants the Court jurisdiction 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 security.
68. I wish to stress that, with regard to the first of these two types of preliminary reference, the Member States which accept this new jurisdiction of the Court of Justice may choose to grant the right - not the duty - to make references for a preliminary ruling to any of its courts or tribunals or only to those which give judgment at last instance, that is to say, against whose decisions there is no judicial remedy (Article 35(3) of the Treaty on European Union). The second kind, which is compulsory, is directly restricted to those courts or tribunals from whose decisions no legal remedy lies (Article 68(1) EC).
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 broad outlines in which the Court of Justice has defined court or tribunal. It seems that the Community legislature considers that the concept, as it has been interpreted, is not adequate for the new spheres of jurisdiction it has devised and that it is necessary to streamline it or to avoid it, by establishing exceptions in areas which may be more sensitive for police and judicial cooperation in criminal matters and the sphere of freedom, security and justice.
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
70. The need to clarify the definition of court or tribunal becomes even more urgent following the results of the recent intergovernmental conference. Article 225(3) of the Treaty of Nice, signed on 26 February 2001, establishes the bases on which the Court of First Instance may consider questions referred for preliminary rulings under Article 234 EC, in specific matters determined by the Statute. I think that the Court of Justice should make clear what it understands by national court or tribunal, as a 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.
71. The possibility that the decisions of the Court of First Instance may be reviewed by the Court of Justice, under the new third subparagraph of Article 225(3) EC, will not, in my view, provide an adequate means of avoiding the disruptive effect of a disagreement between the two Community courts, because the possibility of review is considered to be exceptional and seems to relate to substantive issues rather than the grounds for admissibility of the reference for a preliminary ruling, amongst which is the status of the referring body as a court or tribunal. It would be more efficient to mark the route in advance than after the event by way of review.
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 the enlargement of the Union from fifteen to twenty-seven Member States, made it possible for the number of bodies making preliminary references to increase exponentially. The future of the European Union offers a panorama in which twelve new States, with very varied legal traditions and different organisational structures, will join a law-based Community which, if it is to operate effectively, requires, as the Court of Justice has so often pointed out, uniform interpretation and application of its legal order. It is essential to give a precise definition of the concept of court or tribunal for the purposes of Article 234 EC if the Court of Justice and, as the case may be, the Court of First Instance, are not to face an avalanche of requests for preliminary rulings from bodies that are difficult to categorise, which will have to be declared admissible, in spite of the fact that they are of barely any use, because the concept is ill-defined in the case-law. Doubts will be sown and the inertia typical of all institutions will mean that references for preliminary rulings will be accepted from bodies which are merely administrative.
E. The advantage of all application of Community law remaining within the jurisdiction of the Court of Justice to give preliminary rulings
73. Thus, the Court of First Instance has also been called upon to cooperate in the task of giving preliminary rulings. However, in my view, in spite of its established reputation, it will not be operating under the most favourable conditions. It is not easy to reconcile jurisdiction to give preliminary rulings, which is repeatedly described as constitutional, with performance of duties under supervision, nor is the Court of First Instance structurally designed to carry out a task which requires a great degree of operational independence, the wish to ensure uniformity, innovative ability and spirit of cooperation. It will not have enough freedom to fulfil a guiding role, directing everyone's efforts towards a common understanding of the law of the European Union.
74. The uniform interpretation of Community law must, without exception, remain subject to the jurisdiction of the Court of Justice for preliminary rulings. It is an indivisible jurisdiction, which suggests that the Court of First Instance should not be asked to share the task. The key to the success of the preliminary-ruling procedure has lain in the centralisation of the interpretative function, which promotes uniformity. If other bodies are invited to participate, there is a risk that the unity will be destroyed. The day that two different interpretations are given by the two Courts in respect of the same precept of Community law, the death knell will sound for the preliminary-ruling procedure. The risk of confusion is not avoided by the fact that Article 225 states that the Court of First Instance is to be given jurisdiction to give preliminary rulings in specific matters, since any jurist knows that different matters share common categories, institutions and legal principles, so that the possibility of disagreements does not disappear. The preliminary-ruling procedure seeks to protect the law, in the manner of a court of cassation, and there must be only one court of cassation in each legal order.
F. The unsettling effect of the intervention of an administrative body in a dialogue between courts
75. There was a time when the acceptance by the Court of Justice of jurisdiction to reply to questions referred by bodies which were unquestionably not judicial in nature could be justified, as I have already pointed out, by the need to foster the implementation of a unitary legal system in the Community. However, now that the system has reached cruising speed and Community law is an accepted reality, it would be unsettling if the preliminary-ruling procedure were to be made available to bodies which do not give judgments.
76. Article 234 EC introduces an instrument for judicial cooperation, a technical dialogue by courts and between courts. The Court of Justice has never wavered with regard to that description. The objective of the preliminary-ruling procedure is not, therefore, to assist an agency of the executive.
77. Furthermore, the members of administrative organisations which apply legal rules and take decisions in accordance with legal criteria, do not need to be lawyers. This may mean that the question referred will not be worded in the most appropriate way or that it will lack accuracy or the necessary technical precision.
78. The judicial body which reviews an administrative decision adopted on the basis of the reply given by the Court of Justice may consider that it was unnecessary to make the reference or that it should have been approached from another point of view. If it comes to the conclusion that neither the interpretation nor the application of rules of Community law is in issue in the dispute, the reference for a preliminary ruling and all the effort invested in settling the question will have been pointless, with the added disadvantage that the fact that its judgments are not taken into account because they are considered unnecessary undermines the legitimacy of the Court of Justice.
79. If the reviewing body considers that the question should have been formulated differently, it will be faced with the difficult situation: the reference for a preliminary ruling has been made and the reply received but, for reasons of procedural economy, it is not inclined to resort again to the preliminary-ruling procedure in order to straighten out the track which it considers became twisted because the reference was 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 independence and the necessary specialised legal preparation, holds up the whole procedure. We have already seen how the way in which the question is formulated may determine the Court's reply, so it is important that the bodies taking part in the preliminary-ruling procedure should continue to be of a genuinely judicial nature. If the question is referred by an administrative body, any judicial remedy sought against its decision may be affected by the reference, by the way in which or the time at which it was made, so that the real judicial body is to a large extent deprived of the power to use the preliminary-ruling procedure, since, even if, in theory, it could make another reference, this would cause the parties an additional delay in the main proceedings, which would be intolerable where the administration of justice was already rather slow.
In short, the acceptance of references for preliminary rulings from administrative bodies seriously hinders the dialogue between courts established by the Treaty, distorts its aims and undermines the judicial protection of the citizen.
3. Proposal for a new definition of court or tribunal for the purposes of Article 234 EC
A. The Community nature of the term
80. In the light of the considerations I have just put forward, it seems essential for the Court of Justice to try to formulate a new definition of court or tribunal under Article 234 EC.
81. Uniformity in the application of Community law requires that the concept of national court or tribunal be defined within it. The task must be addressed within the European legal order and according to its own structural requirements. In other words, the concept cannot be described only in terms of the categories of national law, but, essentially, must take account of the raison d'être of the preliminary ruling, which is to ensure that Community law is equally effective in every corner of the Community, even though common constitutional traditions must play a crucial role when it comes to interpreting such an important definition.
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 guarantee that no sector of Community 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 heed to its requirements for considering a body to be a court or tribunal and confers that status on administrative bodies. That, in my view, was the case in Danfoss and Broekmeulen. The criterion of effectiveness, to ensure that Community law should always be applied in accordance with the criteria of the Court of Justice, also determined the admissibility of the questions referred for a preliminary ruling in Barr and Montrose Holdings and Pereira Roque.
B. General rule: inclusion in the definition of all bodies forming part of the national judicial structure
83. Throughout this Opinion, I have given details of the way in which the Court of Justice has described the elements which characterise the definition. The exercise of judicial power is attributed to bodies established by law, whose members are subject to the rule of law and act, when giving decisions in litigation before them, with complete independence and in accordance with the principle that proceedings should be inter partes. However, sufficient attention has not been paid to the principle of unity and exclusive jurisdiction.
84. According to the latter principle, the exercise of judicial power and the right to judge and to enforce judgments are entrusted exclusively to courts which are part of the legal system. It is a field from which all other public servants are excluded. Its basis is the same as that of competence to hold judicial office: independence and submission to the law. In principle, then, references for preliminary rulings must be made only by judicial bodies, those with the aforementioned exclusive jurisdiction to give judgment.
85. The study I have made of the case-law of the Court of Justice reveals that the bodies which form part of the national court systems are always courts or tribunals within the meaning of Article 234 EC ; however, that does not mean that every question referred by a body of that kind must automatically be admitted and decided on the merits. The referring body must, in addition, act in the capacity of a court or tribunal and it must have a case pending before it, a dispute between litigants which it is called upon to settle by interpreting and applying legal rules. In short, it must be exercising its judicial powers. In these circumstances, a body that is part of the court system of a Member State which acts independently to decide a case, in accordance with legal criteria, in adversarial proceedings, always constitutes a court or tribunal within the meaning of Article 234 EC, and the Court of Justice must acknowledge that fact because it cannot deny that status to a body which enjoys it under its national law.
That definition includes, of course, the requirements deriving from the definition of tribunal in the European Convention on Human Rights, especially Article 6(1), as interpreted by the institutions in Strasbourg. By means of that common denominator - since it has been ratified by all the Member States - it is possible to overcome the difficulties which would otherwise arise from the different definitions of the judicial function contained in the various legal orders.
86. To put it the other way round, a body which does not form part of the national court system and has not been granted the power to state the law by interpreting and applying the law in judicial proceedings must not be considered a court or tribunal. As I have already pointed out, the preliminary-ruling procedure is a dialogue by and between courts.
C. Exception: inclusion in the definition of those bodies which, although not forming part of the judicial structure, have the final word in the national legal order
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 outside the judicial framework, has the last word in the national legal order, because its decision may not be contested. In those circumstances, the purpose and raison d'être of the preliminary-ruling procedure make it essential for the Court of Justice to accept and reply to the questions put to it. In spite of the current consolidation of the preliminary-ruling procedure, the Court of Justice still needs to ensure that situations governed by Community law do not remain outside its jurisdiction and, consequently, without a uniform interpretation of the rules which regulate them.
88. However, such situations, as well as being exceptional, are virtually non-existent, thanks to the recognition of the right to effective legal protection, which requires the abolition of areas exempt from judicial review.
The right of access to the courts is protected by Article 6(1) of the European Convention on Human Rights. Although it is true that this provision expressly regulates only the safeguards that must be observed to ensure a fair hearing, it is none the less true that they would be ineffective if the prior existence of a right to judicial protection were not acknowledged. The primacy of law is inconceivable if there is no access to the courts. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings. Conversely, it is not possible to speak of true judicial protection if the proceedings are deprived of those safeguards. Access to the courts and procedural safeguards therefore constitute an indivisible whole, and we may therefore say that there is no effective judicial protection without those safeguards, amongst the most important of which is that relating to the independence of the body giving judgment and the adversarial nature of the proceedings.
Community case-law has also established the right to obtain a judicial determination, which entitles individuals to seek before the competent court due observance of their rights and legitimate interests under the legal order of the European Union.
The judgments in Johnston and Heylens have defined the characteristics of that right, which, as has been said, requires that there must be a means of contesting, by legal process, any decision of a national authority preventing the exercise of a right conferred by the Community legal order. Thus, any citizen of a Member State is entitled to ask the court to protect his rights under Community law. Consequently, administrative decisions which are not subject to review by a court of law must be the exception rather than the rule in the legal systems of the Member States.
89. In order to accept a reference for a preliminary ruling from a body which, under the national legal order, does not form part of the court system, the Court of Justice must adhere rigorously to the criteria laid down in its own case-law and in that of the Strasbourg Court, for the reasons given above, especially the criteria of independence and adversarial proceedings.
90. So far as concerns the last-mentioned requirement, the Court of Justice must forget the restrictions which may be observed in its own judgments. Except in the most recent and inopportune pronouncements, the principle in question was relaxed in this way only where the absence of adversarial procedure was offset by the fact that the court was equally remote from both parties to the case.
91. It is all the more necessary to be rigorous in relation to the requirement of independence of the body which has to take the decision and decides to make a reference for a preliminary ruling. The Court of Justice has sometimes gone a very long way in its interpretation of this essential element of the judicial function and has distorted it.
92. Independence is not a fortuitous, but an inherent, element of the judicial function. It has two aspects, one personal and the other functional. The former relates directly to the person who has to give judgment and requires certain safeguards to ensure independence, such as his irremovability. The functional aspect involves the absence of hierarchical links, other than those of a purely procedural nature in appeals. Independence must be present not only externally, in respect of elements which are unconnected with the judicial power and the proceedings, but also internally, with regard to the opposing interests. Here, independence is called impartiality. In short, it is not possible to be both judge and party at the same time, and not possible to speak of judicial function without an impartial and independent body.
93. To compare the independence of the person who gives judgment between the parties to third party status is to speak in simplistic terms. Such third-party status is, as I have already pointed out, necessary but not sufficient. Independence is much more than that: it is equidistance from the parties to the case and from the subject-matter of the dispute; that is to say, a lack of any interest in the settlement of the dispute other than the strict application of the law, hence the need to establish the grounds for the judge to withdraw or be recused. However, it is also freedom in relation to superiors within the hierarchy and government bodies, other national authorities and social pressures. Irremovability is the basis and the reflection of judicial independence and means that judges cannot be dismissed, suspended, moved or retired except on grounds, and subject to the safeguards, provided by law. Finally, the obverse of independence is the judge's personal liability, which also counterbalances the court's submission to the only bond which the legal order allows and imposes on it: the law.
Impartiality and independence are fragile virtues which must be very rigorously protected. Bodies whose decisions may be subject, either partially or in theory, to supervision, review or reversal by a non-judicial authority are not wholly independent and, consequently, are unable to afford full judicial protection.
94. Therefore, in order to ascertain whether the body from which it receives a reference for a preliminary ruling is of a judicial nature, the Court of Justice is required to check that it fulfils the safeguard of independence it all its forms and the requirement that it is subject only to the law, by reference to clear rules relating to appointment procedures, permanence of tenure, grounds for the withdrawal, recusation or dismissal of its members, which distance it from the interests at issue and make it immune from any kind of external suggestions, intimations or pressures, whether obvious or veiled.
95. In short, as a general rule, references for preliminary rulings may be made only by judicial bodies in proceedings in which they must settle a dispute by exercising their power of adjudication. By way of exception, references from other bodies are admissible only where no further legal remedy can be pursued and provided that safeguards of independence and adversarial procedure are available.
D. The advantages of the proposal
96. The new approach to the concept of national court or tribunal which I suggest would make the work of the Court of Justice more straightforward and would have the virtue of producing much clearer results than at present. With regard to questions referred for a preliminary ruling by bodies which form part of the court system of a Member State, it would need only to confirm that they were acting in the exercise of their power of adjudication. If the question is referred by a body which is not part of that system, the Court would first have to determine whether the decision it has to take is not open to further judicial review and then check meticulously that it fulfils the criteria characterising a body which exercises a function of a judicial nature.
97. Moreover, it is foreseeable that, if the proposed criteria are applied, the number of references for preliminary rulings will be reduced.
I have already stated, in point 41 of the Opinion I delivered in the Kofisa case, that a significant increase in the number of cases in which the Court has to give a ruling might, indirectly, adversely affect the uniform interpretation of Community law which the preliminary-ruling procedure purports to safeguard. The acceptance of questions referred by bodies which do not form part of the national judicial system is likely to increase the Court's workload and delay the giving of rulings. This protraction of the procedure as a result of unnecessary references for preliminary rulings might dissuade courts in the Member States from submitting questions which are essential for the uniform application of Community law, and the judicial cooperation established by Article 234 EC would be undermined.
98. Finally, we should not ignore the impact on the diverse sources of law of the powers which the Court of Justice has conferred on the national courts and tribunals. The Court held in Simmenthal that courts of the Member States with jurisdiction to apply provisions of Community law are under a duty to give full effect to those provisions, if necessary refusing to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for them to request or await the prior setting aside of such provision by legislative or other constitutional means.
99. In the Factortame case, the Court added that the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given. In those circumstances, the court is empowered to set aside the national provision.
100. But, in any event, the broad interpretation which the Court of Justice gives to the definition of court or tribunal under Article 234 EC presents serious problems when it ascribes the status of court to bodies to which it is not ascribed by the national legal system, since it distorts the identity there must be between the person who formulates the question and the person who receives the reply. Although it is conceivable that the Court of Justice may expand the definition, as it unfortunately has done, to include administrative bodies, it is harder to comprehend that, in its reply, it should grant them powers which they do not have under national law, with the consequence that the constitutional system of the Member State in question is undermined. If the Court of Justice grants the national court full jurisdiction as a Community court, for which we need only recall the apodictic terms of the judgment in Simmenthal, which I have just cited, it is incomprehensible that that jurisdiction should be conferred on bodies which, under their own national law, do not form part of the judiciary and are considered to be merely administrative authorities. Even more difficult to accept is the fact that the Court of Justice, when replying to a body which it considers to be a court or tribunal, 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.
101. I do not think I need dwell over long on the inexpediency of extending to administrative bodies the power to disapply legal rules. In short, it is just one more indication of the need to restrict the power to make references for preliminary rulings to bodies of a strictly judicial nature, with certain exceptions.
4. The Collège Juridictionnel de la Région de Bruxelles-Capitale
102. I admit that, as will become apparent, the Collège Juridictionnel de Bruxelles-Capitale is a borderline case, and it is very doubtful, in the light of the case-law of the Court of Justice, that it would be classified as a court or tribunal for the purposes of Article 234 EC. However, as will also be seen, the fact that it is a borderline case illustrates perfectly the need for a change in direction of the kind I suggest.
The question has been referred by a collegiate 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 Belgian legislation governing appeals in respect of provincial and municipal taxes.
103. The Law of 23 December 1986 granted the permanent deputations of the provincial councils, exercising judicial functions, jurisdiction to settle complaints brought by taxpayers against tax assessments.
104. The permanent deputation is a collegiate body of seven members, six of whom are elected by the provincial council from amongst its own members; the seventh is the governor, who is chairman of the deputation. The term of office is linked to that of the provincial council and, consequently, is currently six years. Appointments may not be revoked nor may the members be subject to disciplinary proceedings. Members of the judiciary, ministers of worship, and officials and agents of the provincial and municipal administrations are not eligible for membership of the deputation; nor are mayors or councillors.
105. The permanent deputation is the executive body of the province and exercises administrative, legislative and judicial functions. When it acts in the last-mentioned capacity, the proceedings are adversarial. If the amount involved in the dispute is BEF 10 000 or more, the decision may be contested before the Cour d'appel (Court of appeal). The decision of the Cour d'Appel or, if the decision is not open to appeal, of the permanent deputation, may be contested before the Cour de Cassation (Court of Cassation).
106. Under Article 83quinquies(2) of the Law of 12 January 1989 concerning the Brussels institutions, the judicial function which in the provinces is exercised by the permanent deputation is exercised in Brussels-Capital by a board of nine members appointed, for an unlimited term, by the Council of the Brussels-Capital region on a proposal of its Government. This is the Collège Juridictionnel.
107. Although there is no specific legislation governing the Collège's constitution, disciplinary proceedings may not be brought against its members, nor may their appointments be revoked, and they are subject to the same ineligibilities as those which apply to the permanent deputations in the provinces. The rules of procedure are identical to those of the deputations when they exercise judicial functions and the circumstances in which appeals may be brought against its decisions are also identical.
108. Article 9 of the Law of 24 December 1996 provided that the permanent deputations would hear complaints in their capacity as administrative authorities. On the other hand, under Article 9(2) the Collège Juridictionnel retained jurisdiction for the region of Brussels-Capital.
109. This change prompted an action before the Cour d'arbitrage against the provision on the ground that it was contrary to Articles 10 and 11 of the Belgian Constitution. It was stated in the judgment that Article 9 of the Law of 24 December 1996 was, indeed, contrary to the principle of equality because it unjustifiably treated the inhabitants of Brussels differently from those of the rest of the State. The former benefited from a judicial procedure, whereas the latter had to make do with an administrative procedure. The Court accordingly annulled the provision and reinstated the system which had been in place before it came into force.
110. Finally, a new law on disputes relating to tax matters of 15 March 1999, has withdrawn the jurisdiction in question from the permanent deputations and conferred it on the provincial governor or a board composed of municipal representatives, depending on whether the matter relates to provincial or municipal taxes; they act as administrative bodies and appeals may be brought against their decisions before the court of first instance with jurisdiction in the region.
111. Since the 1999 amendments, doubts have been raised as to whether the Collège juridictionnel still has jurisdiction to hear claims against tax assessments in the region of Brussels-Capital. Article 9 of the 1996 Law provided that, in the provinces, the taxpayer could submit a complaint to the permanent deputation, whereas in the aforementioned region, the competent body was the Collège juridictionnel. The provision was annulled in its entirety, and without any qualification, by the Cour d'arbitrage. The Law of 15 March 1999 restores the provision but its wording makes no mention of the Collège. However, it is not stated that Article 83quinquies of the 1989 Law, which governs the Brussels-Capital institutions, has been repealed and, therefore, it seems at first sight that tax appeals in the region should be addressed to that body.
However, upon looking more closely, I find that Article 83quinquies allocated to the Collège the judicial function which in the provinces was exercised by the permanent deputation. Since the latter no longer has any involvement in municipal taxes, nor does the Collège juridictionnel. However, there is a more cogent reason for making this deduction: it lies in the ratio decidendi of judgment No 30/98 in which the Cour d'arbitrage declared that Article 9, in the 1996 wording, was void because it established a judicial procedure in Brussels-Capital and an administrative procedure in the provinces. That being so, to retain the Collège's jurisdiction after the 1999 Law would be to repeat the unequal treatment condemned in the 1998 judgment.
112. Belgian academic lawyers have unreservedly described the permanent deputations as political bodies. In my view, it is impossible to describe the Collège juridictionnel 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.
113. The members of the permanent deputations, in spite of the ineligibility rules, are on the corresponding provincial council, which is formed by electoral process and its term of office, as we have seen, is linked to that of that political body. The chairman of the deputation is the governor, who is the Government's representative in the province and has full voting rights, together with a casting vote in the event of a tie. Furthermore, the deputation has responsibility for political, administrative and judicial functions, and the combination of these does not seem to be the most appropriate formula for ensuring the independence of its members.
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 deputations, do not come from government institutions, although they are appointed by the government of the region of Brussels-Capital, and, more significantly, their term of office is unconnected to that of the authority which appoints them. Furthermore, they exercise only judicial functions. This particular feature has led a number of academic writers to state that it is wholly independent of the municipal authority.
115. However, the fact that the Collège juridictionnel is not a political body and the fact that it exercises its powers independently of the authority which appoints its members are elements which, although significant, do not automatically convert it into a court or tribunal for the purposes of Article 234 EC.
116. The Collège is an institution which exercises its function independently but is still part of the administrative organisation of Brussels-Capital and has jurisdiction to settle complaints relating to the taxes imposed in the region. In actual fact, it is a filter between the administrative authorities which manage and assess the taxes and the courts of justice. Of course, it does not form part of the judiciary and it necessarily follows that its members cannot be judges. If it is not a court of justice, it should not be accorded the status of court or tribunal for the purposes of Article 234 EC.
117. It is true that Belgian academic writers do not dispute the description of the Collège as a body which exercises judicial functions. It is also true that, in judgment No 30/98, the Cour d'arbitrage stated that judicial proceedings are held before the Collège. But this last statement does not 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, represented by the permanent deputations. The decision rested on the difference in description between the two institutions, which I have set out in the above points.
In any event, exercise of judicial functions and judicial body are not synonymous terms. The case-law of the Court of Justice provides, as we have seen, a good example of this and it is the specific aim of this Opinion to resolve this terminological confusion. Nobody has said, or could say, that the Collège juridictionnel forms part of the judicial system, even though it holds inter partes proceedings to settle tax complaints by interpreting and applying legal rules.
118. The Collège is not, then, a judicial body. Its decisions are always subject to appeal before judicial authorities, either a court of appeal, if the amount involved is BEF 10 000 or more or, otherwise, a court of cassation. These real judicial bodies would be able to request an interpretation by making a reference for a preliminary ruling in the appropriate terms, having a more comprehensive view of the national legal order and being vested with the independence and responsibility needed for the exercise of judicial power. I have already suggested that the Collège juridictionnel is a borderline case because it comes very close to being regarded as a court or tribunal; however, it is precisely in such cases that it is necessary to take extra precautions and indicate clearly the position of the dividing line, however fine it may be. I therefore suggest that the Court of Justice declare that it has no jurisdiction to reply to the question referred to it for a preliminary ruling by the Collège juridictionnel de la Région de Bruxelles-Capitale.
119. However, in case that proposal is not accepted, I shall now analyse the substance of the question.
V - Analysis of the question referred to the Court for a preliminary ruling
120. The Collège juridictionnel de la Région de Bruxelles-Capitale seeks to ascertain whether the articles of the Treaty which establish the freedom to provide services within the Community preclude the introduction of an annual tax on satellite dishes.
121. I shall begin this analysis by recalling that although, as Community law stands at present, direct taxation does not as such fall within the purview of the Community, the powers retained by the Member States must nevertheless be exercised consistently with the law of the European Union.
122. Article 49 EC prohibits restrictions on freedom to provide services within the Community. According to the case-law of the Court of Justice, this principle requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies irrespective of nationality, which is liable to prohibit, impede or discourage the activities of a provider of services established in another Member State.
123. Services are defined in Article 50 EC as services normally provided for remuneration, in so far as they are not governed by the provisions relating to the free movement of goods, capital and persons. Freedom to provide services is guaranteed within the Community and must be cross-border in character. The Treaty only mentions providers of services as being entitled to exercise that freedom, but the Court of Justice has also applied its provisions to the recipients, who may, therefore, rely on the individual rights conferred on them by Community law.
124. Furthermore, the Court of Justice has held that the transmission of television signals comes within the rules relating to the provision of services and that, to be lawful, national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.
125. Consequently, even if the tax restriction at issue were not discriminatory, it would have to be justified by an imperative requirement in the general interest and, in any event, observe the principle of proportionality.
1. The discriminatory nature of the tax regulation
126. The principle of equal treatment, as specifically expressed in Article 49 EC, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. That provision likewise precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult.
127. As the Commission states in its observations, the tax on satellite dishes is of a substantially discriminatory nature, in two respects.
128. First, so far as concerns the recipients of services, the annual tax, although applied without distinction to every user irrespective of nationality or residence, has more of an effect on the non-Belgian Community citizens settled in Watermael-Boitsfort. Those users, unlike Belgian citizens resident in their country, do not always have an opportunity to receive cable broadcasts from their State of origin and are therefore more interested in receiving television programmes by satellite.
129. As regards the providers of services, the tax on ownership of satellite dishes restricts freedom to receive television programmes by satellite. Since, unlike Belgian broadcasting companies, those established in other Member States only broadcast by satellite, they are more affected by the tax in question. The tax therefore has a discriminatory effect.
130. However, it is the established view of the Court of Justice that national rules which are applied to the provision of services according to their origin and are, therefore, discriminatory may be compatible with Community law, if authorised by an express provision contained in the Treaty. Article 55 EC renders applicable to the freedom to provide services Articles 45 EC to 48 EC, which are contained in the chapter devoted to the right of establishment. Article 46 EC includes, as exceptions to both freedoms, measures contained in national provisions which establish special rules for foreigners and which may be justified on grounds of public policy, public security or public health.
131. In my view, the discriminatory regulation does not fall within that exception and thereby become compatible with Community law. In a democratic society, founded on freedom of speech and communication, a tax on the ownership of satellite dishes has nothing to do with public policy and public safety.
2. The regulation as a restriction on freedom to provide services
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 whether it constitutes a restriction on freedom to provide services within the Community and, if so, whether it may be justified by imperative requirements connected with the general interest.
133. The periodic tax on satellite dishes is likely to have a significant effect on the exercise of freedom to provide audiovisual services, from the point of view of both the recipients and the providers.
134. As regards the former, an annual tax on satellite dishes may discourage viewers or make the conditions for receiving television programmes by satellite more onerous. With respect to the providers of services, the tax, by making the receiving of television programmes by satellite less appealing, reduces the opportunities for cross-border broadcasting by operators established in other Member States.
135. In short, the introduction, by means of a municipal law, of an annual tax on satellite dishes represents a restriction on the use of that receiving device and, therefore, on the freedom to provide audiovisial services by satellite.
B. The lack of justification
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:
(1) which are justified for compelling reasons in the general interest and are applied to all persons and undertakings pursuing those activities in the territory of the State in question, in so far as that interest is not already safeguarded by the rules to which a Community national is subject in the Member State where he is established;
(2) which are necessary to ensure that the desired result is achieved, and
(3) which go no further than necessary to achieve that result.
137. It happens that, in this case, the Belgian Government has not submitted observations and it is therefore only possible to speculate as to any possible justification for this restriction on the freedom to provide services.
138. The Commission observes, on the basis of the circular sent by the Ministry for the Region of Brussels-Capital to the councils on 31 August 1999, that the tax on satellite dishes is linked to the urban environment, since its aim is to preserve the aesthetic appearance of the buildings. The Municipal Council of Watermael-Boitsfort acknowledged this in a letter dated 27 April 1999 submitted to the Collège juridictionnel, when it stated that the tax on satellite dishes was introduced in an attempt to prevent their uncontrolled proliferation in the municipality and thereby preserve the quality of our environment.
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 supported by any study on the impact of satellite dishes on the urban environment. 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.
140. Even if protection of the urban environment were considered to justify the restriction, the principle of proportionality ought to be observed. There is nothing which inclines me to think that the tax on satellite dishes is appropriate to achieving the aim of protecting the urban environment. The income obtained from the tax does not seem to be allocated to initiatives or compensatory devices to protect the environment and the regulation applies irrespective of the place and time of installation of the dish and also of its dimensions.
141. In short, it cannot be held that the tax is appropriate for ensuring preservation of the environment.
142. The Commission maintains that the declared aim of the tax regulation could be achieved effectively by imposing less onerous measures on the owners of satellite dishes, such as the obligation to use a specific colour or size, to install dishes behind buildings or in places which are not very visible. Measures of precisely that kind have been incorporated in the local planning rules relating to outdoor aerials, which provide, for example, that an aerial must not be fitted on a listed building, must be in keeping with the building's architectural features and must not exceed 1.20 metres in diameter.
143. However, the general application of the tax to every satellite dish, regardless of the circumstances of its installation, infringes the principle of proportionality.
144. In view of all the foregoing, the tax regulation of the Municipal Council of Watermael-Boitsfort constitutes a restriction contrary to Article 49 EC, which cannot be justified for imperative reasons in the general interest.
145. Finally, the Commission believes it would be expedient to examine the tax legislation in question in the light of Article 10 of the European Convention on Human Rights and Fundamental Freedoms, which upholds freedom of information.
146. In point 9 of the Opinion I delivered in Connolly v Commission, I stated that freedom of expression is one of the fundamental pillars of any democracy. As stated in one of the finest passages found in the Strasbourg case-law: Freedom of expression constitutes one of the essential foundations 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 inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".
147. However, given that the principle of freedom to provide services in the Community clearly precludes the Belgian tax regulation, and that it is even stated in the eighth recital of the Directive that that right, when applied to the broadcasting and distribution of television services, is a specific manifestation in Community law of freedom of expression, as enshrined in the Treaty of Rome, I do not consider it is necessary to undertake the examination suggested by the Commission.
148. I therefore suggest that the Court of Justice declare that, by virtue of Article 49 EC, the municipal regulation on satellite dishes approved by the Municipal Council of Watermael-Boitsfort is unlawful.
VI - Conclusion
149. In the light of the foregoing considerations, I suggest that the Court of Justice should:
(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.