Opinion of the Advocate General Ruiz-Jarabo Colomer in case C-17/00 François De Coster v
Collège des bourgmestre et échevins de Watermael-Boitsfort
1. The Collège Juridictionnel de la Région de Bruxelles-Capitale (Judicial Board of the Brussels-Capital Region), Belgium, has asked the Court of Justice to interpret Article 49 EC and related articles, in order to establish whether they preclude a municipal regulation imposing an annual tax on satellite dishes.
I - The national regulations and facts in the main proceedings
2. The municipal administration of Watermael-Boitsfort, sitting on 24 June 1997, approved a regulation to levy an annual tax on the ownership of satellite dishes (hereinafter the regulation) during the financial years 1997 to 2001 inclusive.
3. Under Article 2 of the regulation, the rate of the tax was set at 5 000 Belgian francs per satellite dish, whatever its size. The tax was due for the whole calendar year, regardless of the date of installation of the dish during the tax year.
4. Article 3 provided that the tax would be payable by the owner of the satellite dish on 1 January of the tax year.
5. On 10 December 1998, Mr de Coster lodged a complaint against the assessment of the tax for that financial year, on the ground that the tax regulation was contrary to the freedom to receive television programmes from other Member States, established in Article 59 of the EC Treaty (now, after amendment, Article 49 EC), concerning freedom to provide services, and Council Directive 89/552/EEC of 3 October 1989 (hereinafter the Directive). II - The Community legislation
6. Article 49 EC provides that restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
7. The first paragraph of Article 50 EC establishes that services are to be considered to be services within the meaning of the Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
8. The Directive states, in its preamble, that television broadcasting constitutes, in normal circumstances, a service within the meaning of the Treaty; Community law provides for free movement of all services normally provided against payment, without exclusion on grounds of their cultural or other content and without any restriction affecting nationals of Member States established in a Community country other than that of the person for whom the services are intended.
It is also stated in the preamble that this right to free movement, as applied to the broadcasting and distribution of television services, is a specific declaration in Community law of freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ratified by all Member States. Accordingly, it is stated that the aim of the Directive is to remove restrictions on freedom to broadcast within the Community, as required by the Treaty.
9. Under Article 2 of the Directive, Member States are to ensure freedom of reception and are not to restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by the Directive. III - The question referred to the Court for a preliminary ruling
10. On 9 December 1999, the Collège Juridictionnel de la Région de Bruxelles-Capitale submitted the following question for a preliminary ruling:
Are Articles 1 to 3 of the tax regulation on satellite dishes, adopted in a vote by the Municipal Council of Watermael-Boitsfort sitting in public on 24 June 1997, introducing a tax on satellite
dishes, compatible with Articles 59 to 66 of the Treaty establishing the European Community of 25 March 1957?
IV - The admissibility of the question. The definition of court or tribunal 11. The Commission expresses doubts as to whether the Collège Juridictionnel de la Région de Bruxelles-Capitale is a national court or tribunal for the purposes of Article 234 EC; I am therefore required to examine in depth the nature of the body which has made the reference. Both its origin and its structure have very specific features which make it difficult to categorise according to the criteria so far provided by the case-law of the Court of Justice. 12. Article 234 EC provides that the Court of Justice is to have jurisdiction to give preliminary rulings concerning the interpretation of the Treaty and of the acts of the institutions of the Community. The second paragraph adds that, where such a question is raised _before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon._
13. However, the Treaty does not define the term national court or tribunal. Nor does the Court of Justice, which has merely laid down a number of criteria for guidance, such as whether the body is established by law, whether it is permanent and independent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether the decision is of a judicial nature, and whether it applies rules of law.
14. The result is case-law which is too flexible and not sufficiently consistent, with the lack of legal certainty which that entails. The profound contradictions noted between the solutions proposed by Advocates General in their Opinions and those adopted by the Court of Justice in its judgments illustrate that the path is badly signposted and there is therefore a risk of getting lost. The case-law is casuistic, very elastic and not very scientific, with such vague outlines that a question referred for a preliminary ruling by Sancho Panza as governor of the island of Barataria would be accepted.
15. I shall now try to describe the path trodden between the Vaassen-Göbbels case and the judgment in Österreichischer Gewerkschaftsbund; I shall then suggest a change of direction which I believe to be essential and, consequently, propose that the judgment should be delivered in this case by the Court of Justice in plenary session.
1. The case-law of the Court of Justice relating to the definition of a court or tribunal 16. It all began in the Vaassen-Göbbels case. A reference for a preliminary ruling had been made by an arbitration tribunal which did not form part of the Netherlands legal system but had jurisdiction to hear appeals brought against the decisions of a social security institution. The Court of Justice set out, for the first time, five of the criteria which it considers determine whether a body constitutes a court or tribunal: statutory origin, permanence, inter partes procedure, compulsory jurisdiction, and the application of rules of law.
17. Since that judgment the Court has, in each case, ascertained whether those requirements are met; it has refined and perfected them, adding others, such as the requirement that the body should be independent, which was mentioned in the judgment in Pretore di Salò and adopted unconditionally in the Corbiau case. It is significant that the criterion of independence, which is the most important feature that a court must display, should have to wait until 1987 to appear in a judgment of the Court of Justice.
18. The case-law has remained unchanged in respect of some of the requirements, specifically whether the body is established by law, whether it is permanent and whether its decisions apply the law. However, others, those which most clearly define a court or tribunal, such as the indispensable criterion of independence, inter partes procedure or decision of a judicial nature, have received interpretations that have been at least hesitant and, on occasions, confused.
A. The gradual relaxation of the requirement that the body should be independent 19. Although reference had already been made in Pretore di Salò to independence as one of the conditions for a body to be regarded as a court or tribunal for the purposes of Article 234 EC, the judgment in Corbiau was the first to give it its fundamental meaning, requiring that
the body seeking the preliminary ruling should act as a third party in relation to the authority which adopts the decision forming the subject-matter of the proceedings.
20. The Court of Justice was equally categorical in Criminal proceedings against X, in which the reference for a preliminary ruling had been made by the Procura della Repubblica. The Court declared that it did not have jurisdiction, because the prosecutor did not fulfil the requirement of independence.
21. In the Dorsch Consult case, the Court of Justice overlooked the requirement that the body taking the decision should not be linked to the parties and focused on the point that its objective should be to carry out its task independently and under its own responsibility, which allowed it to consider that the German Federal Public Procurement Awards Supervisory Board was a court even though it was linked to the organisational structure of the Bundeskartellamt (Federal Cartel Office) and the Federal Ministry for Economic Affairs. 22. For the Court of Justice it was crucial that the fundamental provisions of the statute governing the German Judiciary as regards annulment or cancellation of appointments, and also independence and the possibility of dismissal, applied by analogy to the members of the Federal Board.
23. The judgment in Köllensperger and Atzwanger took the same approach. The Court of Justice examined whether the Public Procurement Office, Tyrol, Austria, was a court or tribunal and, although it acknowledged that the law governing that body includes a passage referring to the cancellation of the appointments of its members which is too vague, and does not contain any specific provisions on the rejection or withdrawal of members, it stated that the independence of its members was guaranteed by the application of the General Law on Administrative Procedure, which contains very specific provisions on the circumstances in which members of the body in question must withdraw, and expressly prohibits the giving of instructions to members of the Office in the performance of their duties.
24. That judgment not only abandons the requirement that the body should be a third party, but also disregards the absence of specific rules intended to guarantee the independence of its members, and considers that the generic provisions intended to ensure their impartiality or, where appropriate, the independence of the members of courts and tribunals, are adequate.
25. In my view, that reasoning is weak. A general principle of non-interference in the activities of the State's administrative bodies, combined with a duty to withdraw, cannot be enough to guarantee the independence of the person who has to give a ruling in the dispute. On the other hand, that fundamental status of a body as a court or tribunal must be guaranteed by provisions which establish, clearly and precisely, the reasons for the withdrawal, rejection and dismissal of its members.
26. The gradual relaxation observed in the case-law of the Court of Justice in relation to the requirement of independence culminates in the judgment in Gabalfrisa and Others, in which the Court had to consider the status as courts or tribunals of the Spanish Economic-Administrative Courts (Tribunales Económico-Administrativos), which do not form part of the judiciary but are organically linked to the Ministry of Economic Affairs and Finance, that is, the very administration responsible for the acts which they have to judge. 27. In spite of the views expressed in legal literature and by its Advocate General, the Court of Justice granted them the status of courts or tribunals of a Member State, attributing crucial importance to the separation of functions between, on the one hand, the departments of the tax authority responsible for management, clearance and recovery and, on the other hand, the economic-administrative courts which rule on complaints lodged against the decisions of those departments without receiving any instructions whatsoever. 28. However, as Advocate General Saggio again pointed out, those circumstances do not provide an adequate guarantee of impartiality. The members of the economic-administrative court are employed by the administration and appointed by the minister, who has the power to dismiss them without abiding by conditions clearly and categorically laid down by law. It cannot be said, therefore, that the body's rules of operation guarantee the irremovability of its members and, consequently, it seems doubtful that it has a degree of independence which allows it to resist possible undue intervention and pressure from the executive.
The function of the economic-administrative courts cannot be described as judicial; on the contrary, the claims brought before them are in the nature of an administrative appeal, a review by the administration itself at the request of one party. On the other hand, its decisions are, without exception, open to review by the courts for contentious administrative proceedings (Tribunales de la jurisdicción contencioso-administrativa). Since these courts are able to assess the need to make a reference for a preliminary ruling to the Court of Justice, there is therefore no danger that Community law will not be uniformly applied. The economic-administrative claim therefore has the role, which is characteristic of administrative appeals, of giving the administration the opportunity to adopt its final position, in inter partes proceedings between the persons concerned, before leaving the way open to the courts of law.
Another circumstance which confirms that the function of these bodies is of an administrative nature is that passivity on their part activates the phenomenon of administrative silence, a fiction specifically created by the legislature to prevent administrative paralysis from denying the parties concerned access to justice. If the economic-administrative courts do not give a ruling within one year of the date on which the claim was lodged, the claim is deemed to be rejected and, accordingly, from that moment, the individual may have recourse to the courts for contentious administrative proceedings.
Furthermore, the Tribunal Económico-Administrativo Central (Central Economic and Administrative Court) may decline jurisdiction over matters which it considers important, or in which the amount involved is particularly high, and leave the decision to the Minister for Economic Affairs and Finance. One might ask whether, following the judgment in Gabalfrisa and Others, the Minister also has the power to refer questions for a preliminary ruling if he takes over the case.
B. The diminishing importance of the requirement that proceedings should be inter partes 29. The court or tribunal not only has to be independent and act independently; it also has to take its decision following inter partes proceedings, in which the opposing parties may assert their legally protected rights and interests. However, the scope of the requirement, stated in the Court's judgment in Vaassen-Göbbels, that proceedings should be inter partes, was very soon reduced.
30. The judgments in Politi and Birra Dreher confirmed that Article 234 EC does not make references to the Court conditional on whether the proceedings are inter partes and that, therefore, a question may be referred for a preliminary ruling even if there is no debate. The decisive factor, therefore, is that the body seeking the help of the Court of Justice is exercising the functions of a court or tribunal and considers that an interpretation of Community law is essential for it to reach a decision. The fact that the proceedings in which the question arises are or are not defended is irrelevant.
31. However, in its judgments in Simmenthal and Ligur Carni and Others the Court stated that it may prove to be in the interests of the proper administration of justice that a question should be referred for a preliminary ruling only after both sides have been heard. Nevertheless, that qualification did not lead it to go back on its previous position since it takes the view that it is for the national court alone to assess whether it is necessary to make a reference.
32. Consequently, the Court of Justice does not make the adversarial nature of the proceedings a precondition for a reference for a preliminary ruling to be admissible. A question may be admissible if it arises in ex parte proceedings or at an ex parte stage in adversarial proceedings. The judgments in Birra Dreher and Simmenthal emphasised what had already been stated in Politi, that any court or tribunal of a Member State may refer a question for a preliminary ruling at any stage in the main proceedings.
33. The requirement that the proceedings should be inter partes has gradually lost ground. In Pretore di Cento and Pretura unificata de Torino, neither of which had defending parties, the Court of Justice did not even query the admissibility of questions referred for a preliminary ruling. The judgment in Pardini replied to questions referred by the Pretore di Lucca in proceedings relating to interim measures.
34. Until then the Court of Justice had not attached much importance, if any, to the requirement that the proceedings should be inter partes. However, if the facts are studied carefully, it will be noted that the principle was not absent, merely deferred; in any event, the absence of the adversarial element was compensated for by the complete impartiality of the judge and his independence with regard both to the dispute and the parties to it. 35. However, in a number of later judgments, the Court seems to have abandoned that course and, regrettably, has admitted and given preliminary rulings on questions referred in proceedings in which the absence of the adversarial element was not offset by the fundamental independence of the body which raised the question.
36. Indeed, in Dorsch Consult the Court admitted questions referred for a preliminary ruling by an administrative body in undefended proceedings.
37. In its judgment in Gabalfrisa and Others, the Court of Justice considered that proceedings before the Spanish economic-administrative courts are inter partes since the parties concerned may lodge submissions and evidence in support of their claims and request a public hearing. Moreover, where an economic-administrative court considers it relevant to adjudicate on matters which were not raised by the persons concerned it must inform the parties to the proceedings and grant them a period of fifteen days to submit their observations.
38. However, as Advocate General Saggio made clear in his Opinion, the proceedings may be considered only partially inter partes, in so far as concerns the interested parties, since only limited pleadings and evidence are admitted, and the decision as to whether a public hearing will be held is taken at the discretion of the body itself, with no subsequent appeal. C. The confusion introduced by the requirement that the final decision in the case should be judicial in nature
39. Whilst the requirements of independence and the adversarial nature of the proceedings have faded somewhat, the requirement that the decision to be adopted by the referring court must be judicial in nature has always been blurred. It could not be otherwise: to say that a body which gives a judicial ruling is a court or tribunal is like saying nothing at all. That status cannot be equated to the application of legal rules, because it is not exclusive to the bodies which exercise jurisdiction. Administrative bodies act in accordance with legal criteria and, consequently, also apply the law.
40. Therefore, to determine whether a decision is of a judicial nature, the Court of Justice has been obliged to look, indirectly, at other characteristics which define a court or tribunal, in most cases at the conflictive nature of the proceedings in which the decision is adopted and, in others, at the position of the decision-taker in the legal organisation. 41. Thus, in the Borker case the Conseil de l'Ordre des Avocats à la Cour de Paris (Bar Council of the Cour de Paris) was held not to be a court or tribunal because it had not been called upon to try a case but to give its opinion on a dispute between a member of the Bar and a court or tribunal of another Member State. On similar grounds the Court of Justice, in the Greis Unterweger case, denied the status of court or tribunal to the Commissione Consultiva per le Infrazioni Valutarie ( Consultative Commission for Currency Offences) which issues opinions in administrative proceedings and, in Victoria Film, to the Skatterrättsnämnden (Swedish Revenue Board) because it did not settle any dispute but merely, at the request of a taxpayer, gave a preliminary decision in relation to a tax matter. 42. Similarly, the judgment in Criminal proceedings against X held that the Procura della Repubblica could be regarded as a court or tribunal since, amongst other reasons, its role was not to rule on an issue but, acting as prosecutor in the proceedings, to submit that issue, if appropriate, for consideration by the competent judicial body. Nevertheless, the judgment in Pretore di Salò acknowledged that body - which, as I have pointed out, combines the functions of an examining magistrate and a prosecutor - to be a court or tribunal, even though it conceded that many of its functions were not of a strictly judicial nature, that it to say, they were not directed towards settling a legal dispute.
43. On the other hand, in Garofalo and Others the Court held that a body which submitted an opinion in a procedure in which the decision was taken by a political authority exercised a
judicial function. The matter related to the Consiglio di Stato issuing an opinion in the context of an extraordinary petition; however, in fact, it also provides the decision. The opinion, based on the application of rules of law, forms the basis for the decision which will be formally adopted by the President of the Republic, and any departure from the proposed solution may be made only after deliberation within the Council of Ministers and must be duly reasoned.
44. The Court of Justice, relying on the judgment in Nederlandse Spoorwegen, held that the Italian Council of State is a court or tribunal within the meaning of the Treaty. In contrast, in the Orders in ANAS and RAI it denied that status to the Italian Court of Auditors, since the power of review which it exercised in the main proceedings consisted essentially in the evaluation and verification of the results of administrative action, from which the Court inferred that, in the context in which the reference was made, the aforementioned auditing body was not performing judicial functions.
45. Until the judgment in Job Centre I, it seemed apparent from the case-law of the Court of Justice that, where a reference for a preliminary ruling is received from a body which forms part of the national judicial organisation, the question is admissible, even if that body is not giving a ruling in a dispute. Since that judgment, the position has not been so clear. 46. In that case the Tribunale Civile e Penale, Milan, referred two questions for a preliminary ruling in non-contentious proceedings and the Court of Justice adopted a restrictive criterion. It held that a national court may seek a ruling from the Court only if there is a case pending before it and if it is called upon to render a decision of a judicial nature. 47. It is not enough, therefore, for the Court of Justice, that the referring body is part of the judicial power of a Member State; it also has to give a ruling in a case, and a case exists where there is a legal dispute with another, even if that other is a judicial body whose decision it is sought to review; consequently, in its judgment in Job Centre I, the Court declared that a body seised of an appeal brought against a decision adopted in non-contentious proceedings exercises a judicial function. That was the position in Haaga. D. The problems which arise when arbitrators are regarded as courts or tribunals 48. One of the factors which, since the judgment in Vaassen-Göbbels, defines a court or tribunal within the meaning of Article 234 EC is whether its jurisdiction is compulsory. 49. This