XK

On 2 September 2021, the Fourth Chamber of the Court of Justice of the European Union rendered a preliminary ruling regarding the definition of a ‘Court or tribunal’ of a Member State within the meaning of Article 267 TFEU.

In this case, the Public Prosecutor’s Office in Trento (Italy) received a European Investigative Order (EIO) issued on the same day by the Münster Tax Office for Criminal Tax Matters in order to search XK business premises as part of an investigation for tax evasion. The Münster Tax Office is an administrative authority and argues that it can issue an EIO without the decision being validated by a judge or public prosecutor on the ground that under German Law, it exercises the same rights and responsibilities asa public prosecutor. It would thus fall in the framework of ‘Issuing Judicial Authority’ under Article 2(c) of Directive 2014/41, under which the EIO is taken. The Public Prosecutor Office in Trento inquired whether such provision of the Directive would allow a Member State to transmit an EIO issued by an administrative authority without such decision being validated by a judicial authority.

Before addressing the main issue, the CJEU assessed whether the Public Prosecutor’s Office, Trento, has the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU, in order to decide on its competence to request the Court to issue a preliminary ruling and therefore on the admissibility of the request.

In order to answer such a question, the Court of Justice recalled its settled case-law on how to determine whether a body is a ‘court or tribunal’ within the meaning of article 267 TFEU. In this regard, the CJEU considered the following criteria: whether such body is established by law, whether it is permanent, whether the jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. Furthermore, the CJEU pointed out that a national court may request the Court to issue a preliminary ruling only if it is acting in the exercise of a judicial function. However, in the present case, the Public Prosecutor’s Office, Trento, acting as an authority for the execution of an EIO within the meaning of Article 2(d) of Directive 2014/41, is not called upon to rule on a dispute and to give judgment in proceedings intended to lead to a decision of a judicial nature; hence it could not be regarded as exercising a judicial function. Therefore, it was held that the case was inadmissible pursuant to Article 267 TFEU.