How “compulsory” a jurisdiction must be to make a preliminary reference? A comment on case Consorci Sanitari del Maresme (C-203/14)

The Court of Justice is facing once again the neverending issue of what is a “court or tribunal” pursuant to article 267 TFEU. In fact, the Court is not only facing the issue, it is manifestly eager to make an issue out of it. And I think it has good reasons: article 267 TFEU and the notion of “court or tribunal” is still, after all these years, far from clear.

In Consocri Sanitari del Maresme (C-203/14), the Court must decide whether the Tribunal Catalá de Contractes del Sector Public (the Catalan Public Procurement Tribunal) is a “court or tribunal” pursuant to article 267 TFEU. It is an independent body created by a Catalan Statute, it applies legal rules in a contradictory procedure, but its jurisdiction is not always compulsory (as in the case sitting before the Court) and therefore parties can decide to access administrative courts straight away, without having to appeal before the Tribunal Catalá de Contractes del Sector Public.

You could think that the Court would have a clear idea of how to deal with this case. After all, the definition of “court or tribunal” has been around for several decades in the case-law of the Court.

Think twice.

In Advocate General Jääskinen’s Opinion, published last week, the reader can deduce the headache this modest administrative tribunal has been giving the Court lately. The case was first sent to a three judge chamber with no Opinion. The referring tribunal was asked in writing about its statute. Then the chamber decided that the case was not at all clear and invited the Court to reconsider the formation. The case has ended now sitting… before the Grand Chamber!! And now, thanks to AG Jääskinen’s Opinion, we can all see that, indeed, the case is not simple at all.

The problem lies with the definition of “compulsory jurisdiction”. As is well known, in order to comply with the requirements of 267 TFEU, the referring court’s jurisdiction must be, among other requirements, “compulsory”. And here the case-law is quite unclear. In some judgments, “compulsory” refers to the binding nature of the judgment; in others it refers to the binding nature of the jurisdiction vis-á-vis the parties. When it comes to the Tribunal Catalá, if we apply one version or the other of the case-law we will end with completely different outcomes. In one case the referring tribunal would comply with article 267 TFEU (its decisions are binding for the parties), in the other it would not (the parties can choose between an appeal before the Tribunal Catalá or the administrative courts).

The AG’s Opinion is convincing: as a general rule, the case-law must be interpreted in the sense that a “compulsory jurisdiction” is the one that renders binding decisions. However, as a caveat, the AG adds that such binding nature must also be reinforced by some sort of attachment to the procedure. In other words, the parties may not freely decide in common whether to access the tribunal or not. So the outcome of his proposal blends both lines of the case-law: binding decisions, and lack of freedom of all the parties to voluntarily submit the dispute to the court.

Why introduce this final proviso? The problem is (indeed…) arbitration. The Court is reluctant to admit that arbitration tribunals are “courts or tribunals” in the sense of article 267 TFEU. However, in Merck Canada (C-555/13) it has recently decided to admit a reference from a Portugese Tribunal Arbitral Necesario. Why? Because the portuguese court was a compulsory jurisdiction for the plaintiff. AG Jääskinen tries to square a circle and fit this approach towards arbitration with the flexible and sometimes contradictory approach towards the notion of “compulsory jurisdiction” in the case of administrative tribunals. I think he is dead right: the Tribunal Catalá de Contractes del Sector Public should be deemed a compulsory jurisdiction in light of the case-law.

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