Walter Schmid.
Date: 2002-05-30
34 According to settled case-law, in order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community 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, in particular, Dorsch Consult, paragraph 23, and the case-law there cited, and Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 33).
36 It must be remembered that the expression court or tribunal within the meaning of Article 234 EC can mean only an authority acting as a third party in relation to the authority which adopted the contested decision (Case C-24/92 Corbiau [1993] ECR I-1277, paragraph 15).
37 The authority before which an appeal can be brought against a decision adopted by a department of an administrative authority cannot be regarded as a third party in relation to that department and, accordingly, as a court or tribunal within the meaning of Article 234 EC, where it has an organisational link with that administrative authority (see, to that effect, Corbiau, paragraph 16). This will be so unless the national legal framework is such as to ensure a separation of functions between, on the one hand, the department of the administrative authority whose decision is being challenged and, on the other, the authority which rules on complaints lodged against decisions of that department without receiving any directions from the administrative authority to which that department is responsible (see, to that effect, Gabalfrisa and Others, paragraph 39).
38 Where there is an organisational and functional link between an appeal chamber and the regional finance authority which adopts the decisions contested before it, it is impossible to regard the chamber as a third party in relation to that administrative authority.
39 As regards, first, the existence of an organisational link, it is not disputed that two of the five members of the appeal chamber belong to the tax authority. It is noteworthy, in that regard, that at least according to the terms of the legislation the President of the regional finance authority is a member as of right of the appeal chamber, of which he exercises the function of president.
40 As regards, second, the existence of a functional link, it should be noted, first of all, that the official of the regional finance authority who is the second member of the appeal chamber drawn from the tax authority continues, in addition, to pursue his activities within that authority and is, in that capacity, subject to the directions of his hierarchical superiors.
41 Next, under Paragraph 270(1) of the BAO, the President of the regional finance authority has the power to nominate members of the appeal chambers on the basis of the lists of appeal commission members. There is no legislative provision to prevent him from modifying, at his discretion, the composition of an appeal chamber for the inquiry into each complaint, or even in the course of the inquiry into a complaint. In the absence of an express legislative provision determining the length of the mandate of appeal chamber members and specifying the conditions of removal, members cannot be said to enjoy sufficient safeguards against undue intervention or pressure on the part of the executive (see, to that effect, Case C-103/97 Köllensperger and Atzwanger [1999] ECR I-551, paragraph 21).