It is not every national body which, when confronted with a problem of EU law, has a right to refer a question about the problem to the Court of Justice for a preliminary ruling. According to Article 267 TFEU, it is only ‘a court or tribunal of a Member State’ which has this right. The provision itself does not define in more detail what is meant by ‘a court or tribunal’ or ‘of a Member State’ and the Court does not by its own motion systematically examine whether a referring national body qualifies as ‘a court or tribunal of a Member State’. Such examination is only made if the question is raised during the preliminary proceedings or if the Court itself entertains doubt in this respect.1 Nevertheless, over the years the Court of Justice has considered these notions in a large number of cases where there has been doubt about the referring national body’s competence under Article 267.2 In this regard it has been argued that the Court of Justice’s line of interpretation may appear as a judicious middle course between Mediterranean formalism and Anglo-Scandinavian informality.3
In the following, the definition of which bodies qualify as a ‘court or tribunal’ is approached from two different perspectives. First, section 2 provides an analysis of the criteria which the Court of Justice uses to decide whether the referring body is a ‘court or tribunal’ within the meaning of Article 267. Next, section 3 analyses a number of categories of bodies with a view to establishing which of these are regarded as a ‘court or tribunal’. Thereafter, section 4 deals with the question of when there is a court or tribunal ‘of a Member State’. Section 5 considers those forms of preliminary references other than the ones made under Article 267. Finally, section 6 examines the situation where there is a restriction, under national law, on the right of national courts or tribunals to make references for preliminary rulings.
The decision of whether a given body constitutes a ‘court or tribunal’ entitled to make a reference must be made on the basis of a uniform and independent definition under EU law.4 In other words, the definition does not refer to national law. This means, on the one hand, that it is not only bodies which are designated as courts or tribunals in national law that can make a reference for a preliminary ruling.5 On the other hand, the mere fact that a body is designated as a ‘court’ or ‘tribunal’ in the national legal system does not in itself mean that this body is entitled to refer a question to the Court of Justice for a preliminary ruling.
In Corbiau, Luxembourg’s Conseil d’État had ascribed the character of a court to the directeur des contributions under Luxembourg law. Nevertheless, the Court of Justice found that the directeur des contributions was not a national court for the purposes of Article 267.6
Whilst there is no abstract definition of a ‘court or tribunal’ in Article 267, it is nevertheless possible to deduce from the case law of the Court of Justice a number of organizational and functional criteria which are relevant for determining when a body can make a reference under that provision.
We now offer a review of the criteria which are assessed according to the practice of the Court of Justice, and a description of the weighting which the Court gives to the different criteria.
The Court of Justice has repeatedly held that, when deciding whether a body qualifies as a ‘court or tribunal’, it is relevant whether it has been established by law.7 Thus, a body which is set up under an agreement or by a specific administrative decision cannot normally refer a question for a preliminary ruling. On the other hand, it makes no difference whether the body is established by primary or subordinate legislation. Similarly, it does not matter if the body is established by a law which at the same time restricts its jurisdiction to a particular kind of case.8
In Dorsch Consult, concerning the award of public service contracts, the Commission argued before the Court of Justice that the referring body had been set up under a framework budgetary law which did not give rise to rights or obligations for citizens as legal subjects. The Commission also pointed out that the body in question was confined to reviewing decisions made by review bodies. However, in the field of public service contracts, there was no competent review body at that time. Moreover, according to the Commission the body in question had no basis in law on which it could act. The Court of Justice merely noted that the body had been established by the framework budgetary law, and therefore found that its establishment by law could not be disputed. The fact that domestic legislation had not conferred powers on the body in the specific area of public service contracts was immaterial.9
Dorsch Consult thus suggests that the criterion that a body must be established by law in order to qualify as a national court is primarily a formal requirement. Indeed, there do not appear to be any decisions in which the Court of Justice has refused to give a preliminary ruling solely on the grounds that the referring body was not established by law and therefore did not qualify as a ‘court or tribunal’ for the purposes of Article 267.
The Court of Justice also seems to attach importance to whether the body is of a permanent character.10 However, there does not appear to have been a decision of the Court of Justice in which lack of permanence has been of decisive importance. In the great majority of cases the body in question has had a permanent character, and in the few cases where this has not been so, there have also been other criteria that have weighed against the recognition of the body in question being considered a court or tribunal for the purposes of Article 267.
The Court of Justice has not made clear precisely what is the content of the requirement for permanence. However, it is natural to assume that the Court will consider the requirement to be important, and not accept references for preliminary rulings from bodies which have been set up to resolve specific existing disputes.11
In assessing whether a given body can be regarded as a ‘court or tribunal’, the Court of Justice attaches weight to whether the legal basis for the body ensures that it has the necessary independence. This criterion is particularly significant in cases where there is a reference from a body which is not part of a Member State’s ordinary court system (eg district court, high court, appeal court, etc) and whose characteristics place it somewhere in the grey zone between judicial and administrative bodies. Indeed, in these situations the Court of Justice may be expected to examine closely whether the referring court has jurisdiction under Article 267.12 For example, the Court has refused to accept references from appeal tribunals where it has found that these have been too closely connected with the administrative authority whose decisions the tribunal deals with. On the other hand, the Court does not seem to examine the personal independence of the members of the body in the actual case in connection with which a reference is made. Where the legal basis for a body does not ensure the necessary independence of the body in general, it will probably not be relevant whether or not in the actual case referred there is a problem of independence.
In Schmid, the Court of Justice declined to answer a preliminary question referred by an Austrian appeal chamber, as the Court found that the appeal chamber was insufficiently independent from the authority whose decisions the appeal chamber considered. There was both an organizational and a functional link between the appeal chamber and the regional finance authority which rendered the decisions that were contested before the appeal chamber. Thus, the appeal chamber could not be considered a ‘court or tribunal’ within the meaning of Article 267.13
In Syfait, a preliminary question was referred to the Court of Justice by the Greek Competition Commission (Epitropi Antagonismou). The Competition Commission was to decide on the cases on the basis of recommendations prepared by a secretariat and this secretariat was also responsible for the investigation of the cases. The chairman of the Competition Commission was the head of the secretariat, and was thus formally responsible for its management. The Competition Commission stated that the secretariat acted independently of the Competition Commission itself, but did not substantiate this with any reference to rules or procedures which ensured this independence. The Court of Justice found, inter alia, that there was a functional link between the Competition Commission and its secretariat which was responsible for dealing with the cases that were referred to the Competition Commission for its decision. This was one of the factors that led the Court to hold that the Competition Commission was not a court or tribunal within the meaning of Article 267.14
Further clarification of the independence criterion was given in Wilson, which concerned the interpretation of the term ‘court or tribunal’ in Directive 98/5/EC. When defining this term, the Court of Justice applied the practice established with regard to Article 267 and in this respect it was necessary to clarify the concept of independence. The Court observed that independence primarily involves an authority acting as a third party in relation to the authority which has adopted the contested decision. Moreover, the concept has two other aspects, one external and the other internal. The first aspect presumes that the body is protected against external intervention or pressure which may threaten the independent judgment of its members as regards proceedings before them. That essential freedom from such external pressure requires sufficient guarantees to protect those who have the task of adjudicating a dispute, such as guarantees against removal from office. With regard to the second aspect, the Court observed that independence is linked to impartiality and it is intended to ensure that there is a level playing field for the parties to the proceedings and their interests with regard to the subject matter of those proceedings. This aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. Guarantees of independence and impartiality require rules, particularly as regards the composition of the body and appointments to it, length of service, and the grounds for abstention, rejection, and dismissal of its members, in order to remove any doubt as to the imperviousness of that body to external pressure and its neutrality with respect to the interests before it. In the actual case the Court found that the national body did not appear to have sufficient guarantees of impartiality.15
In Pilato, the Court of Justice found that the French prud’ homie de pêche de Martigues did not enjoy such independence so as to qualify as a ‘court or tribunal’ within the meaning of Article 267. The Court particularly pointed to the fact that the members of the body were subject, at least for some of their activities, to supervision by the administration; that the members were required to swear an oath in which they promise, inter alia, to ‘comply with the orders which they are given by their superiors’; and that the process of dismissing a member of the body did not appear to be subject to specific guarantees which removed any reasonable doubt as to the imperviousness of the body to external factors.16
In RTL Belgium the Belgian Collège d’autorisation et de contrôle du Conseil supérieur de l’audiovisuel (‘the Licensing and Control Authority of the Broadcasting Authority’) made a reference to the Court of Justice in connection with a case against RTL Belgium. In this respect the question arose whether the Licensing and Control Authority enjoyed such independence that it qualified as a ‘court or tribunal’ within the meaning of Article 267. The Court of Justice went on to observe that the Licensing and Control Authority was structurally so closely related to the authority whose decisions it was supposed to review that when it adopted a decision, the Licensing and Control Authority was not distinct from the administrative monitoring body, which could act as a party to proceedings relating to broadcasting matters. Hence, it did not qualify as a ‘court or tribunal’.17
According to Advocate General Stix-Hackl, it is not sufficient that there is a general principle that the members of a body which makes decisions should be independent. Thus, she has stated that in order to qualify as a ‘court or tribunal’ within the meaning of Article 267, it must be a condition that independence is secured by specific provisions concerning rejection or abstention of the members of the body with regard to a case.18 In Emanuel the Court of Justice appears to have adopted a less strict approach however.
In Emanuel, an ‘Appointed Person’ had been appointed by the United Kingdom Lord Chancellor. As long as the ‘Appointed Person’ carried out his functions, he was given the same guarantees of independence as judges in general. However, the ‘Appointed Person’ could be dismissed if certain specified conditions were fulfilled, and it was up to the Lord Chancellor to decide whether this was the case. In his Opinion in the case Advocate General Colomer expressed the view that the scope for making such a dismissal was exceptional and must be interpreted restrictively and he therefore found that there was no doubt that the ‘Appointed Person’ was independent. The Court of Justice did not even consider it necessary to address this issue itself, but instead went straight on to deal with the substantive question referred.19
The Court of Justice also considers it important that the jurisdiction of the body in question be compulsory. This criterion has three aspects: first, it means that the decision of the national body must be binding on the parties;20 second, the criterion of compulsion is fulfilled where the parties cannot themselves choose whether the case should be dealt with by the body in question;21 and, third, compulsory jurisdiction presumes that the parties cannot go to some other body to have the dispute settled.
An illustration of the last-mentioned aspect may be found in Gabalfrisa and others, where the decisions of the Spanish tax authority could be challenged before the administrative courts only after appeal proceedings had been brought before the Tribunales Económico-Administrativos. Hence, the jurisdiction of the Tribunales was compulsory.22
The ruling in Gabalfrisa and others may, however, be compared with the Court’s ruling in Emanuel where the plaintiff had a choice between two national courts without this leading to a finding of inadmissibility,23 and its ruling in Broekmeulen where in principle it was possible to challenge a given decision before the ordinary national courts, rather than before the referring appeals committee—though this had never happened in practice. The appeals committee was nevertheless considered to be a national court for the purposes of Article 267.24 It therefore seems that—at least in borderline cases—the fact that the parties cannot go to some other body to settle a dispute may weigh in favour of considering the body a ‘court or tribunal’, but that it does not constitute an indispensable condition.
Where a national organ uses an adversary procedure this will usually be an argument in favour of the body being considered a national court.25 The use of an adversary procedure is not an indispensable condition for a body to be allowed to make a reference for a preliminary ruling, however.
In Simmenthal, an undertaking had brought a case against the Italian authorities with a view to recovering previously paid fees. The case had been dealt with in summary proceedings, where judgment was given solely on the basis of the allegations presented by the plaintiff. Only if the other party raised objections to the decision would there have been adversarial proceedings. The Court of Justice ruled that Article 267 did not require that the preliminary ruling should be referred in connection with an adversarial procedure. It added, however, 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.26
The Court of Justice has also emphasized that to qualify as a ‘court or tribunal’ within the meaning of Article 267 a body must make its decisions on the basis of legal rules.27 Obviously, this criterion will be satisfied in the great majority of cases which are referred to the Court of Justice. However, there can be doubt in certain cases. This applies in particular where a body can decide according to what appears fair and reasonable.
In Almelo, a Dutch court had to consider an appealed arbitration award which had been decided according to what appeared fair and reasonable. According to Dutch law this meant that the referring court which had to decide the appeal also had to make its decision on the basis of what appeared fair and reasonable. Nevertheless, the Court of Justice held that the criterion that a decision has to be taken on the basis of legal rules was fulfilled. In support of this interpretation the Court of Justice argued that it followed from the principles of the primacy and uniform application of EU law together with the duty to take all appropriate measures to ensure fulfilment of the obligation arising out of EU law as laid down in what is now Article 4(3) TEU, that, even where it gives judgment on the basis of fairness, a national court to which an appeal against an arbitral award is made pursuant to national law must observe the rules of EU law, in particular those relating to competition.28
The criterion, that a body must decide on the basis of legal rules, has also been considered where there was no doubt that the referring body would decide the substance of the main proceedings upon the basis of such rules, but where it was questioned whether the procedural rules, applied in reaching the substantive decision, could be qualified as legal rules.
In Dorsch Consult, the referring German Federal Public Procurement Awards Supervisory Board regulated the making of public service contracts. Procedure before the Federal Supervisory Board was governed by rules of procedure which it had itself adopted, which did not take effect in relation to third parties and which had not been published. The question therefore arose whether the criterion that a body must decide on the basis of legal rules was satisfied even under these circumstances. The Court of Justice noted that the Supervisory Board (also) applied the rules of EU law on the award of public service contracts, and that general procedural requirements laid down in national law (namely in Verordnung über das Nachprüfungsverfahren für öffentliche Aufträge) applied and the Court denied that the special circumstances surrounding the Supervisory Board’s procedural rules were relevant.29 Rather than holding that in this situation the referring body was to decide on the basis of legal rules, the Court of Justice chose to examine the objection carefully and thereby implicitly accepted its relevance. In Dorsch Consult the objection was based on the fact that the referring body itself had adopted the rules of procedure in question, and that these rules of procedure did not take effect in relation to third parties and had not been published. The Court of Justice found that even in this situation the criterion that the referring body must decide on the basis of legal rules can be satisfied.
The significance of the criterion that the body must make its decisions on the basis of legal rules is not clear. The criterion will be fulfilled if the referring body is to decide the main proceedings on the basis of purely national rules and presumably also if the body is to decide the case on the basis of international rules. Similarly, the criterion will also be fulfilled if the referring body is to decide the main proceedings on the basis of EU rules. Indeed, a preliminary question is only admissible if it concerns the interpretation or validity of an EU rule that is to be applied in the national body’s decision on the main proceedings.30 This, it is submitted, presupposes that the referring body intends to take account of EU law, which must mean that it does not intend to decide the case on a purely equitable basis. In other words, it appears difficult to imagine a situation where the referring body does not fulfil the criterion that its decision must be made on the basis of legal rules whilst at the same time it requires an interpretation of some EU rule in order to be able to decide the main proceedings. Nevertheless, the Court of Justice has referred to the criterion on several occasions.
Sometimes, on the face of it, a body may appear to have the qualities of a ‘court or tribunal’ that is competent to make preliminary references, but where a closer examination will show that the body’s decisions are not of a judicial nature. If the Court of Justice finds that a referring body does not possess the power to adopt decisions of a judicial nature in the context giving rise to the preliminary reference, or otherwise, then the reference from the body will be held to be inadmissible.31
In Belov Mr Belov had filed a complaint with the Bulgarian Commission for Protection against Discrimination (KZD). KZD was entrusted by law with both administrative and judicial functions. The Court of Justice therefore first had to determine in what specific capacity KZD was acting within the particular legal context in which it was seeking a preliminary ruling from the Court of Justice. In this regard the Court pointed out, first, that it was clear from the case that proceedings similar to those which gave rise to KZD’s request for a preliminary ruling could, in relation to the same facts, equally have been brought by KZD acting on its own initiative instead of on the basis of a complaint. It was apparent that, regardless of whether the case had been referred to KZD by way of application, of complaint or of KZD’s own motion, KZD was required to bring proceedings which were essentially similar and in which KZD would have, inter alia, extensive powers of investigation in order to gather the evidence necessary to elucidate the facts concerned. Furthermore, the outcome of KZD’s proceedings would be very similar irrespective of the basis on which the proceedings had been initiated. Second, the Court observed that it was common ground that KZD could join to the proceedings, of its own motion, other persons than those expressly appointed by the party which had brought the action before KZD by way of an application or a complaint. Third, the Court observed that, where an action was brought against a decision of KZD adopted after proceedings had been brought, KZD would have the status of defendant before the administrative court called on to give a ruling on that application. Furthermore, if the decision of KZD was annulled by the administrative court before which an action had been brought, KZD could appeal against the decision to annul before a superior national court. Fourth, if an action was brought against a decision of KZD given in proceedings such as those at issue in the main proceedings, it was possible for KZD to revoke that decision, if the party to whom the decision was addressed was favourable. All these circumstances led the Court of Justice to the view that the decision that KZD was called on to give at the end of proceedings brought before it on the basis of the applicable national legislation was similar in substance to an administrative decision and did not have a judicial nature within the meaning of the case law of the Court relating to the concept of ‘court or tribunal’ in Article 267.32
If the Court of Justice finds that the procedural rules applying to the referring body essentially mean that the body does not adopt decisions of a judicial nature, the Court will hold the preliminary reference to be inadmissible.33 This situation has important parallels to the one set out in section 3.1.3 herein where a body, which undoubtedly qualifies as a ‘court or tribunal’, makes a reference in a procedure that will not lead to a decision of a judicial nature.
As stated in section 2.6 herein, the Court of Justice attaches importance to whether the body takes its decisions on the basis of legal rules. However, it is less certain what importance (if any) the Court of Justice attaches to whether the body’s members possess qualifications as lawyers or judges. There is no question that the Court of Justice does not require all the members of a body to have a legal background. Indeed, this criterion is rarely mentioned by the Court itself. The question remains, however, whether a body can qualify as a ‘court or tribunal’ if its rules do not require that at least some of its members are judges or other persons with legal qualifications.
In Broekmeulen, the Dutch Appeals Committee for General Medicine (Commissie van Beroep Huisartsgeneeskunde) referred a question to the Court of Justice. Three of the Appeals Committee’s members, including the chairman, were appointed by two ministers, three members were appointed by the Dutch medical faculties, and three members by the Royal Netherlands Society for the Promotion of Medicine. There was no condition that the members of the Appeals Committee should be lawyers although, under the internal rules, it was laid down that the chairman preferably should be a high-ranking judge. The Court of Justice nevertheless found that the Appeals Committee constituted a national court for the purposes of Article 267.34
Even though, according to the ruling in Broekmeulen, there is no absolute requirement for the members of a referring body to be lawyers, it cannot be completely excluded that in cases of doubt the Court of Justice will be willing to take into account how many of the members have legal qualifications as lawyers or judges when deciding whether a body can be regarded as a ‘court or tribunal’ for the purposes of Article 267.35
The purpose of Article 267 is that the Court of Justice should assist national courts with the interpretation of EU law in connection with the referring bodies’ decisions on disputes. For this reason, unless the case in question concerns the settlement of a dispute, the Court of Justice does not have jurisdiction under Article 267.36 This applies regardless of whether, according to its organizational characteristics, the body is classified as a ‘court or tribunal’ according to the above criteria.37
The preliminary ruling procedure is intended to give full effect to EU law in the Member States. The strength of the system lies in the fact that at least the more important disputes often—though far from always—find their way to the Member States’ ordinary national courts at some point. If the dispute involves a question of an EU law character, this opens up the possibility of the question being referred to the Court of Justice.
However, in certain situations a dispute can in practice solely be brought before bodies which can only with difficulty be regarded as being a ‘court or tribunal’ within the meaning of Article 267. Broekmeulen is one such case, where there was in reality no possibility of appeal to the Member State’s judicial organs. Here the Court showed itself willing to regard the decision-making body as being entitled to make a reference for a preliminary ruling. The alternative would be that the Court of Justice would not have the opportunity to decide on problems of EU law to which such cases might give rise.38
It remains to be seen how far the Court of Justice will stretch the ratio in Broekmeulen. We subscribe to the view of Advocate General Tesauro that ‘[i]f a body is not a judicial body, it does not become one simply because there is no better solution’.39
Moreover, where a case is dealt with by a body that qualifies as a national court, the fact that other conflict resolution bodies, such as an ombudsman or a mediator, could have handled the problem which the case concerns is irrelevant when it comes to the qualification of the body handling the case. This is so even if the alternative body would have been more appropriate. In this connection it is irrelevant whether the alternative body would itself have qualified as a court within the meaning of Article 267 and thus—hypothetically—could have made a reference for a preliminary ruling. The only thing that matters is whether the actual case is being dealt with by a body that qualifies as ‘a court or tribunal’.
As stated, there is no abstract definition of a ‘court or tribunal’ for the purposes of Article 267 and the Court of Justice has never expressed itself on the relative weighting of the criteria which are relevant in assessing whether a given body can refer a question for a preliminary ruling under Article 267.40 Hence, it is not possible to derive an unambiguous definition from the Court’s judgments.41
A rather harsh criticism of the fact that the Court of Justice has not given a clear definition of which types of bodies are entitled to make references for preliminary rulings has been given by Advocate General Colomer. In 2000 in his Opinion in De Coster he characterized the result of this as ‘case-law which is too flexible and not sufficiently consistent, with the lack of legal certainty which that entails … 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.’42
While it is not possible to establish an unambiguous definition, the case law of the Court of Justice nevertheless suggests that some of the criteria referred to are more important than others.
Thus, the Court seems to work on the assumption that a referring body will be a ‘court or tribunal’ as long as it is part of a Member State’s ordinary court system, and the reference is made as part of judicial proceedings which are intended to lead to the settlement of a dispute.43 Where the Court cannot rely on this assumption, it will normally make a more detailed assessment of the organizational and functional criteria referred to above.44 It is not clear whether these criteria constitute an exhaustive list, or whether it is possible that further criteria may be included.45
The Court of Justice gives special weight to whether the reference is made as part of judicial proceedings which are to lead to a decision of judicial nature that settles a dispute.46 If this is not the case, it can be expected that the Court of Justice will refuse to accept the reference.
If the reference is made as part of judicial proceedings which are to lead to the settlement of a dispute, but the referring body is not part of a Member State’s ordinary court system, it will be particularly important whether the body is independent47 and whether it has compulsory jurisdiction. Correspondingly, it is to be expected that the Court of Justice will reject references from bodies that are only set up with a view to resolving a particular individual dispute, or which are not established by law.
The criteria concerning the adversarial nature of the procedure—that the body should make its decisions on the basis of legal rules, and that there should not be any other possibility for resolving the dispute in question—have all been given less weight and seem only to play a role in cases where the other criteria do not point in a particular direction. The last criterion, on the extent to which the members of the body are lawyers, has hitherto only been proposed by an Advocate General, but not by the Court of Justice itself. As observed earlier, it therefore remains unclear whether the Court will follow its Advocate General and attach any weight to this at all.48
In section 2 we analysed the different criteria that determine whether a body can refer a question for a preliminary ruling under Article 267 as well as examining the weighting of the different criteria. In this section the same question, namely what bodies qualify as a ‘court or tribunal’, is approached from a different perspective, namely by examining which bodies the Court of Justice regards as being entitled to make references and which are not so entitled. The examination is divided into three parts: section 3.1 looks at judicial bodies, section 3.2 looks at other public bodies, and section 3.3 looks at various private bodies.
A national district court, high court, or supreme court settling disputes is regarded as a national court for the purposes of Article 267 regardless of whether the dispute is of a private law, criminal law, or administrative law character. The same applies to courts which are not included in the ordinary court system (ie extraordinary courts which fulfil the requirements identified earlier in section 2).49 Courts martial are also included if they otherwise meet the criteria. On the other hand, public prosecutors are not bodies entitled to make a reference.
In Criminal proceedings against X, the public prosecutor’s office in Turin made a reference to the Court of Justice for a preliminary ruling. Shortly afterwards the national Italian court hearing the case decided to refer the same questions, in case the Court of Justice were to decide that the public prosecutor was not entitled to refer the questions for a preliminary ruling. The Court of Justice ruled that the Italian public prosecutor could not be regarded as a ‘court or tribunal’ for the purposes of Article 267, but since the national court had also referred the questions for a preliminary ruling the Court of Justice nevertheless went on to give an answer.50
It has not been definitively settled whether international courts, such as the European Court of Human Rights, can make references under Article 267. Nevertheless, only ‘a court or tribunal of a Member State’ is entitled to make a reference—and international courts are not part of the court systems of the Member States.51 Consequently, they must be regarded as prevented from making references for preliminary rulings under Article 267.52
In comparison, a court which is an integrated part of the national court systems of more than one Member State can make references for preliminary rulings. So long as that court is only part of the court systems of Member States, and is not also part of the court system of a third country, the referring multi-State court as well as the national courts of those States that are covered by the multi-State court will be bound by the ruling of the Court of Justice.53 In this situation it will be difficult to argue that it is not a court or tribunal of a Member State as required in Article 267.54
The three Benelux countries adopted a ‘Uniform Benelux Law on Trade Marks’. With a view to ensuring the uniform interpretation of this law, the three countries set up a common Benelux Court. In Parfums Christian Dior