62022CJ0115_RES
Case C‑115/22
SO
(Reference for a preliminary ruling from the Unabhängige Schiedskommission Wien)
Judgment of the Court (Grand Chamber) of 7 May 2024
(Reference for a preliminary ruling – Admissibility – Article 267 TFEU – Concept of ‘court or tribunal’ – National arbitration committee competent to combat doping in sport – Criteria – Independence of the body making the reference – Principle of effective judicial protection – Inadmissibility of the request for a preliminary ruling)
Questions referred for a preliminary ruling – Reference to the Court – National court or tribunal within the meaning of Article 267 TFEU – Concept – Unabhängige Schiedskommission Wien (Independent Arbitration Committee, Vienna, Austria) – Not included
(Art. 267 TFEU)
(see paragraphs 34-38, 48-50, 52-54, 56, 57, operative part)
Questions referred for a preliminary ruling – Reference to the Court – National court or tribunal within the meaning of Article 267 TFEU – Concept – Criterion of independence – Status of the members of the national body concerned – Requirement of irremovability – Scope
(Art. 267 TFEU)
(see paragraphs 41-44)
Questions referred for a preliminary ruling – Reference to the Court – National court or tribunal within the meaning of Article 267 TFEU – Concept – Criterion of independence – Impartiality – Meaning
(Art. 267 TFEU)
(see paragraphs 45-47)
Union law – Primacy – Conflicting national law – National arbitration committee competent to combat doping in sport – Obligation to disapply national provisions which are inconsistent with provisions of EU law that have direct effect
(see paragraph 55)
Résumé
The Court of Justice, sitting as the Grand Chamber, dismisses as inadmissible the request for a preliminary ruling made by the Unabhängige Schiedskommission Wien (Independent Arbitration Committee, Vienna, Austria; ‘the USK’), on the ground that that body does not fulfil the criterion of independence required in order to be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU.
The applicant in the main proceedings was a competitive athlete from 1998 to 2015. In 2021, the Nationale Anti-Doping Agentur Austria GmbH (NADA) (National Anti-Doping Agency) submitted a request for the examination of the applicant’s case to the Österreichische Anti-Doping Rechtskommission (Austrian Anti-Doping Legal Committee; ‘the ÖADR’), since it considered that the applicant had infringed the anti-doping rules. (
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)
By a decision of 31 May 2021, the ÖADR found that the applicant had infringed those rules. It declared invalid all the results achieved by the applicant during the period in question and revoked all her entry fees and/or prize money. Furthermore, it banned the applicant from participating in sporting competitions of any kind for a period of four years. In the procedure, the applicant requested that that decision not be communicated to the general public, in particular that her name or other individual characteristics not be disclosed or published. The ÖADR rejected that request.
The applicant applied for a review to the USK, the referring body in the present case, requesting that that decision be amended so that the general public would not be informed, by way of publication of her full name on a freely accessible website, of the anti-doping violations committed by her and of the penalties imposed. By a decision of 21 December 2021, the USK confirmed those penalties. However, it decided to issue a separate decision on the request that it refrain from publishing the anti-doping violations committed by the applicant and the ensuing penalties, reserving its decision in that regard.
Since it has doubts as regards the conformity of that publication with the GDPR, (
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) the USK made a reference to the Court for a preliminary ruling.
Findings of the Court
As a preliminary point, the Court ascertains, in the light of the latest developments in its case-law, (
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) whether the referring body may be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU.
At the outset, the Court recalls its settled case-law in this area, pursuant to which, in order to determine whether the body in question is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by EU law alone, it takes account of a number of factors, such as, inter alia, 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. Moreover, a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. Accordingly, it is appropriate to determine whether a body may refer a case to the Court on the basis of criteria relating both to the constitution of that body and to its function.
As regards those criteria relating to a body’s constitution, the Court states that it is apparent from the information in the file submitted to it, and in particular the provisions of the 2021 Federal Law on Anti-Doping, (
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) that the USK fulfils the criteria relating to whether it is established by law, whether it is permanent, whether its jurisdiction is compulsory and whether the proceedings before it are inter partes. However, the question arises as to whether the USK fulfils the criterion of independence.
As regards that criterion, the Court points out that the independence of the national courts, which is essential to effective judicial protection, is inherent in the task of adjudication. It is thus essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism established by Article 267 TFEU in that, in accordance with its settled case-law, that mechanism may be activated only by a body which satisfies, inter alia, that criterion of independence. Thus, the Court recalls that the concept of ‘independence’ has two aspects.
The first aspect, which is external, requires that the body concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, being thus protected against external interventions or pressure liable to impair the independent judgement of its members and to influence their decisions. In that regard, the irremovability of the members of the body concerned constitutes a guarantee that is essential to judicial independence in that it serves to protect the person of those who have the task of adjudicating in a dispute.
More specifically, the principle of irremovability, the cardinal importance of which is to be emphasised, requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed. The guarantee of irremovability of the members of a court or tribunal thus requires that dismissals of members of the body concerned should be determined by specific rules, by means of express legislative provisions offering safeguards that go beyond those provided for by the general rules of administrative law and employment law which apply in the event of an unlawful dismissal.
The second aspect of the concept of ‘independence’, which is internal, is linked to ‘impartiality’ and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. Thus, the concept of ‘independence’ implies above all that the body in question acts as a third party in relation to the authority which adopted the contested decision Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it.
In that respect, as regards the USK, the Court finds that the rules of procedure of that committee concerning the ADBG state that its members are independent in the performance of their duties and that they are subject to the principle of impartiality. Nevertheless, under the ADBG, (
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) the members of the USK are appointed by the Federal Minister for Arts, Culture, Civil Service and Sport for a renewable term of four years, which may be revoked early ‘on serious grounds’, without that concept being defined in the national legislation. In particular, the irremovability of USK members is not guaranteed by any specific rule. Furthermore, the decision to remove the members of the USK is a matter solely for the Federal Minister for Arts, Culture, Civil Service and Sport, namely a member of the executive, without precise criteria or precise guarantees having been established in advance.
The Court infers from this that the applicable national legislation does not ensure that the members of the USK are protected from external pressure, be it direct or indirect, that is liable to cast doubt on their independence, with the result that that body does not satisfy the external aspect of the requirement for a court or tribunal to be independent. Thus, the USK cannot be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU.
However, the Court states that that fact does not relieve it of the obligation to ensure that EU law is applied when adopting its decisions and to disapply, if necessary, national provisions which appear to be contrary to provisions of EU law that have direct effect, since these are obligations that fall on all competent national authorities, not only on judicial authorities.
Furthermore, the Court notes that it is apparent from the file before it that the applicant in the main proceedings lodged a complaint with the Österreichische Datenschutzbehörde (Austrian Data Protection Authority) concerning a breach of that protection, pursuant to Article 77(1) of the GDPR. That body adopted a rejection decision, which is the subject of a challenge before the Bundesverwaltungsgericht (Federal Administrative Court, Austria) pursuant to Article 78(1) of the GDPR. (
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) Those proceedings were stayed pending an answer from the Court to the questions referred in the present case.
(
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)	The International Association of Athletics Federations adopted competition rules for 2014-2015 and anti-doping rules in 2017.
(
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)	More specifically with Article 5(1)(a) and (c), Article 6(3) and Articles 9 and 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1, and corrigendum OJ 2018 L 127, p. 2; ‘the GDPR’).
(
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)	In its assessment, the Court referred, in particular, to the judgments of 21 January 2020, Banco de Santander (C‑274/14, EU:C:2020:17), and of 3 May 2022, CityRail (C‑453/20, EU:C:2022:341).
(
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)	Anti-Doping-Bundesgesetz 2021 (2021 Federal Law on Anti-Doping) of 23 December 2020 (BGBl. I, 152/2020; ‘the ADBG’).
(
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)	Pursuant to Paragraph 8(3) of the ADBG.
(
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)	See, in that regard, judgment of 7 December 2023, SCHUFA Holding (Discharge from remaining debts) (C‑26/22 and C‑64/22, EU:C:2023:958, paragraphs 52 and 70).