Paul Miles and Others v Écoles européennes.
Date: 2011-06-14
37. 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 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, inter alia, Case C‑54/96 Dorsch Consult  [1997] ECR I‑4961, paragraph 23; Case C‑53/03 Syfait and Others  [2005] ECR I‑4609, paragraph 29; Case C‑246/05 Häupl  [2007] ECR I‑4673, paragraph 16; and Case C‑118/09 Koller  [2010] ECR I‑0000, paragraph 22).
38. Although, as all the parties intervening in this case observed, the Complaints Board meets all those criteria and must, therefore, be deemed to be a ‘court or tribunal’ within the meaning of Article 267 TFEU, it must none the less be pointed out that the wording of that provision refers to ‘a court or tribunal of a Member State’.
39. However, it must be held that the Complaints Board falls within the remit, not of ‘a Member State’ but of the European Schools, which constitute, as the first and second recitals of the European Schools’ Convention state a ‘sui generis’ system, which achieves, by means of an international agreement, a form of cooperation between the Member States and between those States and the European Union, for the education together of children of the staff of the European Communities in order to ensure the proper functioning of the European institutions.
40. It is true that the Court of Justice has held, in paragraph 21 of Parfums Christian Dior , that there is no good reason why a court common to a number of Member States, such as the Benelux Court of Justice, should not be able to submit questions to the Court of Justice, in the same way as courts or tribunals of any of those Member States.
41. However, the Complaints Board is not such a court common to a number of Member States, comparable to the Benelux Court of Justice.  Whereas the Benelux Court has the task of ensuring that the legal rules common to the three Benelux States are applied uniformly and, moreover, the procedure before it is a step in the proceedings before the national courts leading to definitive interpretations of common Benelux legal rules (see Parfums Christian Dior , paragraph 22), the Complaints Board does not have any such links with the judicial systems of the Member States.
42. Moreover, although the Complaints Board was created by all the Member States and by the Union, the fact remains that it is a body of an international organisation which, despite the functional links which it has with the Union, remains formally distinct from it and from those Member States.
43. In those circumstances, the mere fact that the Complaints Board is required to apply the general principles of EU law when it has a dispute before it is not sufficient to make the Board fall within the definition of  ‘court or tribunal of a Member State’ and thus within the scope of Article 267 TFEU.
44. The applicants in the main proceedings and the Commission, however, consider that the possibility, or indeed the obligation, which the Complaints Board has of referring a question to the Court of Justice in the course of such a dispute is vital to ensure that those principles are applied uniformly and that the rights which seconded teachers derive from them are effectively protected.
45. In that regard, it must be observed that while it is possible to envisage a development, along the lines described in the previous paragraph, of the system of judicial protection established by the European Schools’ Convention, it is for the Member States to reform the system currently in force (see, by analogy, Case C‑50/00 P Unión de Pequeños Agricultores   v Council [2002] ECR I‑6677, paragraphs 44 and 45).