Epitropos tou Elegktikou Sinedriou sto Ipourgio Politismou kai Tourismou v Ipourgio Politismou kai Tourismou – Ipiresia Dimosionomikou Elenchou&
Date: 2012-12-19
18. According to 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 European Union 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 the order of 14 May 2008 in Case C-109/07 Pilato  [2008] ECR I-3503, paragraph 22).
19. In addition, a national court or tribunal may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see, inter alia, Case C-134/97 Victoria Film [1998] ECR I-7023, paragraph 14; Case C-195/98 Österreichischer Gewerkschaftsbund [2000] ECR I-10497, paragraph 25, and Syfait and Others , paragraph 35).
20. Further, according to settled case-law, 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 (Case C-24/92 Corbiau  [1993] ECR I-1277, paragraph 15, and Case C-506/04 Wilson  [2006] ECR I-8613, paragraph 49).
21. Lastly, the question whether a body is entitled to refer a question to the Court, pursuant to Article 267 TFEU, falls to be determined on the basis of criteria relating both to the constitution of that body and to its function. In that regard, a national body may be classified as ‘a court or tribunal’ w ithin the meaning of that article when it is performing judicial functions, whereas when it is exercising other functions, of an administrative nature, for example, it may not be so classified (see, as regards the Italian Court of Auditors, orders of 26 November 1999 in Case C-192/98 ANAS [1999] ECR I-8583, paragraph 22, and in Case C-440/98 RAI [1999] ECR I-8597, paragraph 13). 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 267 TFEU, where that authority has an organisational link with the administrative authority concerned (see, to that effect, Corbiau , paragraph 16, and Case C-516/99 Schmid [2002] ECR I-4573, paragraph 37).
24. It follows from the foregoing that there is between the Elegktiko Sinedrio and its commissioner attached to the Ministry of Culture and Tourism, who is the author of the ‘negative report’ at issue before it, a clear organisational and functional link, which means that it is impossible to regard the Elegktiko Sinedrio as a third party in relation to that commissioner (see, by analogy, Corbiau , paragraph 16, and Schmid , paragraph 38).
25. Consequently, when it gives a decision on the ‘negative report’ produced by its commissioner, the Elegktiko Sinedrio is not acting as a third party in relation to the interests at stake and, accordingly, does not possess the necessary impartiality vis-à-vis the beneficiary of the expenditure at issue, namely Mr Antonopoulos in this case (see, by analogy, Case C-517/09 RTL Belgium [2010] ECR I-14093, paragraph 47).
27. In that regards, it is clear from the order for reference that, on the basis of that latter jurisdiction, the Elegktiko Sinedrio is called upon to assess whether public expenditure complies with the law relating to the budget and to adopt a decision which does not acquire the force of res judicata .
28. Accordingly, such a decision is not part of proceedings intended to lead to a decision of a judicial nature, contrary to the requirements of the case-law set out in paragraph 19 of this judgment.
31. Only at a later stage, when a case is brought before the administrative court, will there be delivered a judgment on a dispute concerning the payment of that remuneration where the opposing parties will be Mr Antonopoulos and the administrative authority. It will fall to the administrative court to decide whether the individual concerned is entitled to remuneration and, in that context, if necessary, to stay proceedings and send a reference for a preliminary ruling to the Court (see, by analogy, Victoria Film , paragraph 18).