VQ v Land Hessen.
Date: 2020-07-09
41


In those circumstances, the Court plainly has jurisdiction to give a ruling on that request in its entirety, that is, on both the first and the second question (see, to that effect, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 74 and 75).
43


In accordance with settled case-law, in order to determine whether a body making a reference is a ‘court or tribunal’, within the meaning of Article 267 TFEU, which is a question governed by EU law alone, and therefore to determine whether the request for a preliminary ruling is admissible, 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, judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 51 and the case-law cited).
45


In that regard, it must be recalled that the independence of the judges of the Member States is of fundamental importance for the EU legal order in various respects. It is informed, first, by the principle of the rule of law, which is one of the values on which, under Article 2 TEU, the Union is founded and which are common to the Member States, and by Article 19 TEU, which gives concrete expression to that value and entrusts shared responsibility for ensuring judicial review within the EU legal order to national courts or tribunals (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 32). Second, that independence is a necessary condition if individuals are to be guaranteed, within the scope of EU law, the fundamental right to an independent and impartial tribunal laid down in Article 47 of the Charter, which is of cardinal importance as a guarantee of the protection of all the rights that individuals derive from EU law (see, to that effect, inter alia, judgment of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX‑II and C‑543/18 RX II, EU:C:2020:232, paragraphs 70 and 71 and the case-law cited). Last, that independence is essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU, in that that mechanism may be activated only by a body responsible for applying EU law, which satisfies, inter alia, that criterion of independence (see, in particular, judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 56 and the case-law cited).
52


In accordance with settled case-law, the guarantees of the independence and impartiality of the courts and tribunals of the Member States require rules, particularly as regards the composition of the body and the appointment and length of service of its members, and as regards grounds for withdrawal by, objection to, and dismissal of its members, in order to dispel any reasonable doubt in the minds of litigants as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 63 and the case-law cited).
54


As regards the conditions governing the appointment of the judge sitting in the referring court, it must be recalled at the outset that the mere fact that the legislative authorities play a part in the process for appointing a judge does not give rise to a relationship of subordination to those authorities or to doubts as to the judge’s impartiality, if, once appointed, he or she is not subject to any pressure and does not receive any instruction in performing the duties of his or her office (see, to that effect, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 133 and the case-law cited).
57


It must be recalled, in that regard, that, where a national court or tribunal has submitted to the Court a number of factors which, in its view, call into question the independence of a committee involved in the appointment of judges, the Court has held that, although one or other of the factors indicated by that court or tribunal may be such as to escape criticism per se and may fall, in that case, within the competence of, and choices made by, the Member States, those factors, when taken together, in addition to the circumstances in which those choices were made, may, by contrast, throw doubt on the independence of a body involved in the procedure for the appointment of judges, despite the fact that, when those factors are taken individually, that conclusion is not inevitable (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 142).
66


As regards, second, the observations of Land Hessen to the effect that the activities of a parliamentary committee fall outside the scope of EU law, within the meaning of Article 2(2) of Regulation 2016/679, it must be recalled that the Court has already had occasion to state, in relation to Article 3(2) of Directive 95/46, which is based on Article 100a of the EC Treaty (which became, after amendment, Article 95 EC), that recourse to that legal basis does not presuppose the existence of an actual link with free movement between Member States in every situation referred to by the measure founded on that legal base and that it is not appropriate to interpret the expression ‘activity which falls outside the scope of [Union] law’ as having a meaning which would require it to be determined in each individual case whether the specific activity at issue directly affected freedom of movement between Member States (judgment of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraphs 40 and 42).
69


Admittedly, the Court has, in essence, stated that the activities mentioned by way of example in the first indent of Article 3(2) of Directive 95/46 (in other words, the activities provided for by Titles V and VI of the Treaty on European Union and data processing operations concerning public security, defence, State security and activities in areas of criminal law) are, in all circumstances, activities of the States or of State authorities, and those activities are intended to define the extent of the exception provided for therein, with the result that that exception applies only to the activities which are expressly listed there or which can be classified in the same category (ejusdem generis) (judgment of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraphs 43 and 44).