62014CJ0274_RES
Case C‑274/14
Proceedings brought by Banco de Santander SA
(Request for a preliminary rulingfrom the Tribunal Económico-Administrativo Central)
Judgment of the Court (Grand Chamber), 21 January 2020
(Reference for a preliminary ruling — Article 267 TFEU — Definition of ‘court or tribunal of a Member State’ — Criteria — Independence of the national body concerned — Irremovability of the members — Inadmissibility of the request for a preliminary ruling)
Questions referred for a preliminary ruling — Reference to the Court — Court or tribunal of a Member State for the purposes of Article 267 TFEU — Definition — Tribunal Económico-Administrativo Central (Spain) — Not included
(Art. 267 TFEU)
(see paragraphs 51-77)
Questions referred for a preliminary ruling — Reference to the Court — Court or tribunal of a Member State for the purposes of Article 267 TFEU — Definition — Criterion of independence — Status of the members of the national body concerned — Requirement of irremovability — Scope
(Art. 267 TFEU)
(see paragraphs 58-60, 64-71)
Questions referred for a preliminary ruling — Reference to the Court — Court or tribunal of a Member State for the purposes of Article 267 TFEU — Definition — Criterion of independence — Impartiality — Concept
(Art. 267 TFEU)
(see paragraphs 61-63, 72-77)
Union law — Primacy — Conflicting national law — State aid — National body established by law to hear and determine tax complaints — Obligation to disapply national legislation that is contrary to provisions of EU law that have direct effect
(Art. 108(3) TFEU)
(see paragraph 78)
Member States — Obligations — Provision of remedies sufficient to ensure effective legal protection — Need to ensure the effectiveness of the preliminary ruling mechanism and the uniform interpretation of EU law — National rules conferring exclusive decision-making power on a body which does not meet the requirements of independence and impartiality — Conditions under which permissible — Existence of judicial remedies against decisions of that body
(Art. 267 TFEU)
(see paragraph 79)
Résumé
In the judgment in Banco de Santander (C‑274/14), delivered on 21 January 2020, the Court, sitting as the Grand Chamber, ruled inadmissible a request for a preliminary ruling made by the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain) (‘the referring body’), on the ground that that body did not satisfy the criterion of the independence required in order to be categorised as a ‘court or tribunal’ for the purposes of Article 267 TFEU.
The request for a preliminary ruling submitted to the Court by the referring body concerned, in essence, the interpretation and validity of successive decisions adopted by the Commission (
1
) on State aid with respect to the Spanish scheme for the tax amortisation of financial goodwill for foreign shareholding acquisitions. The request was referred to the Court in the context of proceedings between Banco de Santander and the Inspección Financiera (Tax Inspectorate, Spain) concerning the deduction of goodwill resulting from the acquisition by that bank of all the shares in a holding company governed by German law. According to the relevant national legislation, the referring body is required to hear and determine complaints made against decisions taken by certain central tax authorities, including the authority involved in the present case, and also, as an appeal body, certain decisions taken by the other Tribunales Económico-Administrativos (Tax Tribunals), whose territorial competence is limited. A Special Chamber of the referring body hears and determines extraordinary appeals for the unification of precedent; any such appeals may only be brought by the Director-General of Taxation of the Ministry of the Economy and Finance.
The Court considered that it was necessary, as a preliminary point, to examine, in the light of the latest developments in its case-law, (
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) whether the referring body fell within the category of ‘court or tribunal’ for the purposes of Article 267 TFEU.
The Court recalled at the outset that that description implies, in particular, that the referring body meet the criterion of independence. The independence of national courts and tribunals responsible for applying EU law is essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism established by Article 267 TFEU, and that mechanism can be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence.
As regards, in the first place, the external aspect of the concept of ‘independence’, the Court stated that it 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, which means, in particular, determining dismissals of members by means of express legislative provisions offering safeguards that meet the requirements of the principle of irremovability which is essential to judicial independence. However, the Court found that the members of the referring body may be removed by Royal Decree adopted by the Council of Ministers, on the proposal of the Minister for the Economy and Finance, and that those arrangements for removal are not governed by specific rules, so that those members do not enjoy any guarantees other than those provided for by the general rules of administrative law.
As regards, in the second place, the internal aspect of the concept of ‘independence’, the Court recalled that it is linked to the concept of ‘impartiality’, which requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. On that basis, the concept of ‘independence’ implies that the body in question acts as a ‘third party’ in relation to the authority which adopted the contested decision. However, the characteristics of the extraordinary appeal which may be brought before a special chamber of the referring body against decisions of that body do not permit the inference that that body acts as a ‘third party’ with respect to the interests before it. The Court noted, in particular, that such an appeal may be brought only by the Director-General of Taxation of the Ministry of the Economy and Finance, who will be part of the panel that is to hear that appeal, along with the Director-General or the Director of the department of the tax administration to which the body that issued the act referred to in the decision that is the object of that appeal belongs.
The Court added that the fact that the referring body does not constitute a ‘court or tribunal’ for the purposes of Article 267 TFEU does not relieve it of the obligation to ensure that EU law is applied when adopting its decisions, disapplying, if necessary, national provisions which appear to be contrary to provisions of EU law that have direct effect. Moreover, the existence of judicial appeals against decisions of the referring body ensures the effectiveness of the preliminary ruling mechanism, since the national courts and tribunals have the option of making or, where appropriate, are required to make a request for a preliminary ruling to the Court where a decision on the interpretation or the validity of EU law is necessary in order for them to give judgment.
(
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)	Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48); Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1); and Commission Decision (EU) 2015/314 of 15 October 2014 on the State aid SA.35550 (13/C) (ex 13/NN) (ex 12/CP) implemented by Spain — Scheme for the tax amortisation of financial goodwill for foreign shareholding acquisitions (OJ 2015 L 56, p. 38).
(
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)	In its assessment, the Court referred in particular to the judgments of 16 February 2017, MargaritPanicello (C‑503/15, EU:C:2017:126); of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117); and of 24 June 2019, Commission v Poland(Independence of the Supreme Court) (C‑619/18, EU:C:2019:531).