Proceedings brought by Banco de Santander SA.
Date: 2020-01-21
51


According to the Court’s settled case-law, in order to determine whether a body making a reference is a ‘court or tribunal’ for the purposes of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, to that effect, judgments of 30 June 1966, Vaassen-Göbbels, 61/65, EU:C:1966:39, p. 273; of 31 May 2005, Syfait and Others, C‑53/03, EU:C:2005:333, paragraph 29; and of 16 February 2017, Margarit Panicello, C‑503/15, EU:C:2017:126, paragraph 27 and the case-law cited).
56


In that context, it must be pointed out that the independence of national courts and tribunals is 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 the settled case-law of the Court referred to in paragraph 51 of the present judgment, that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 43).
57


According to the case-law of the Court, 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 judgment of its members and to influence their decisions (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 44 and the case-law cited).
58


Again as regards the external aspect of the concept of ‘independence’, it should be noted that 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 (see, to that effect, judgments of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 51, and of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 45).
59


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 wholly 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 (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 76).
60


The guarantee of irremovability of the members of a court or tribunal thus requires that dismissals of members of that body 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 (see, to that effect, judgment of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraphs 32 and 35).
61


The second — internal — aspect of the concept of ‘independence’ 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 (judgment of 16 February 2017, Margarit Panicello, C‑503/15, EU:C:2017:126, paragraph 38 and the case-law cited).
62


Thus, according to the settled case-law of the Court, the concept of ‘independence’, which is inherent in the task of adjudication, implies above all that the body in question acts as a third party in relation to the authority which adopted the contested decision (see, to that effect, judgments of 30 March 1993, Corbiau, C‑24/92, EU:C:1993:118, paragraph 15, and of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 29 and the case-law cited).
63


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 (judgment of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 32).
69


Whilst it is true that, according to the wording of Article 228(1) of the LGT, the members of the TEAs are to exercise their powers ‘with functional independence’ and that, in accordance with Article 29(9) and with Article 30(12) of Royal Decree 520/2005, they are to exercise ‘wholly independently and under their own responsibility’ the functions legally assigned to them, the fact remains that there are no particular safeguards in respect of their removal or the termination of their appointment. That system does not constitute an effective safeguard against undue pressure from the executive on the members of the TEAs (see, by analogy, judgment of 31 May 2005, Syfait and Others, C‑53/03, EU:C:2005:333, paragraph 31).
76


Thus, those characteristics of the extraordinary appeal for the unification of precedent which may be brought against decisions of the TEAC demonstrate the organisational and functional links that exist between that body and the Ministry of the Economy and Finance, in particular the Director-General of Taxation of that ministry and the Director-General of the department which adopts the decisions contested before the TEAC. The existence of such links makes it impossible to regard the TEAC as a third party in relation to that administration (see, by analogy, judgment of 30 May 2002, Schmid, C‑516/99, EU:C:2002:313, paragraphs 38 to 40).
78


It must be added that the fact that the TEAs do not constitute ‘courts or tribunals’ for the purposes of Article 267 TFEU does not relieve them of the obligation to ensure that EU law is applied when adopting their 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 (see, to that effect, judgments of 22 June 1989, Costanzo, 103/88, EU:C:1989:256, paragraphs 30 to 33; of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraphs 61 and 63; and of 4 December 2018, TheMinister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraphs 36 and 38).
79


Moreover, the existence of judicial appeals to the Audiencia Nacional (National High Court, Spain) and the Tribunal Supremo (Supreme Court) against decisions of the TEAs following the economic-administrative complaints procedure ensures the effectiveness of the mechanism of the request for a preliminary ruling provided for in Article 267 TFEU and the uniform interpretation of EU law, since those national courts have the option of making or, where appropriate, are required to make a request for a preliminary ruling to the Court of Justice where a decision on the interpretation or the validity of EU law is necessary in order for them to give judgment (see, by analogy, judgment of 31 January 2013, Belov, C‑394/11, EU:C:2013:48, paragraph 52).