“The Court of Justice of the European Union interprets the term "court or tribunal" in Article 267 of the Treaty on the Functioning of the European Union as an autonomous EU-law concept rather than relying on national legal definitions.”

The order for reference states that: 'The Vergabekammer des Bundes is not a court or tribunal within the meaning of German law. However, the question arises whether it is to be regarded as a court or tribunal within the meaning of Article 177 of the EC Treaty.' ... At paragraphs 23–24, the Court sets out criteria for determining whether a body is a court or tribunal for the purposes of Article 177 EC (now Article 267 TFEU), without referring to national classifications, thereby treating the concept as one defined by Community law.

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: the interpretation of the Treaties; and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. 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...

The Court held that 'the spirit of cooperation which must govern relations between national courts and the Court of Justice in the context of the preliminary ruling procedure does not make the applicability of Article 177 of the Treaty subject to a decision by the national legal system as to whether the body making the reference is a court or tribunal.' This indicates that the classification depends on Community law rather than on national definitions.

The concept of a 'court or tribunal' within the meaning of Article 177 of the EEC Treaty is an autonomous concept of Community law. In order to determine whether the referring body is a 'court or tribunal' within the meaning of that article, it is necessary to take into account a number of factors, such as whether the body is established by law, is permanent, has compulsory jurisdiction, applies rules of law, and is independent.

The Court stated that, for the purposes of applying Article 177 of the Treaty (now Article 267 TFEU), it is for the Court to assess whether the body making the reference is a court or tribunal. The classification of the body under national law is not decisive. The Court has developed a set of criteria, ‘having regard to the independence of that body and the fact that it is established by law, is permanent, has compulsory jurisdiction, applies rules of law and follows an inter partes procedure’, in order to determine whether it is a court or tribunal for the purposes of the provision.

For the purpose of applying Article 177 of the Treaty (now Article 267 TFEU), the Court, in order to determine whether the body making the reference is a court or tribunal, takes account of a number of factors, such as whether the body is established by law, is permanent, has compulsory jurisdiction, its procedure is inter partes, it applies rules of law and is independent. These criteria have been developed in the case-law of the Court and apply irrespective of the national classification of the body concerned.

The Court held that a body which, although not a court in the domestic sense, was part of a professional disciplinary appeal system and whose decisions had to be taken into account in subsequent proceedings, could be regarded as a 'court or tribunal' for the purposes of what is now Article 267. This shows the Court applying its own EU-law criteria rather than relying solely on national classifications.

The Court reiterated that 'whether a body making a reference is a court or tribunal within the meaning of Article 234 EC is a question governed by Community law alone.' It emphasized that national classification of a body as administrative or judicial is not determinative for the purposes of Article 234 EC (now Article 267 TFEU).

According to settled case-law, in order to determine whether the body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, the Court takes account of a number of factors, such as whether the body is established by law, is permanent, has compulsory jurisdiction, its procedure is inter partes, it applies rules of law and is independent. Those criteria derive from Union law and the concept of ‘court or tribunal’ in Article 267 TFEU must be regarded as an autonomous concept of that law. The classification of the body under national law is not decisive in that regard.

The concept of a 'court or tribunal' within the meaning of Article 267 TFEU is an autonomous concept of EU law. In order to determine whether the referring body is a 'court or tribunal' for the purposes of that article, the Court takes account of a number of factors, such as whether the body is established by law, is permanent, its jurisdiction is compulsory, its procedure is inter partes, it applies rules of law and is independent.

The Court has held that, in order to determine whether a body making a reference is a 'court or tribunal' for the purposes of Article 267 TFEU, it takes account of a number of factors, such as whether the body is established by law, is permanent, its jurisdiction is compulsory, its procedure is inter partes, it applies rules of law and is independent. The Court does not defer to a Member State's label alone; it applies an autonomous EU-law test.

‘As we shall see in the first part of this study, this problem is not new, but it is clear from the case law of the past six decades that the European Court of Justice had chosen to develop its own uniform concept of what a “court or tribunal” is for the purposes of Article 267 TFEU, instead of leaving it to the member states. It has been commonly understood among the scholarship that we are looking at “an autonomous concept”.’ The article analyses how this autonomous concept has been shaped and refined in subsequent case law, including the Court’s decision in Getin Noble Bank.

Article 267 TFEU speaks simply of a 'court or tribunal of a Member State' as the organ entitled or obliged to make a preliminary reference. The CJEU has developed an autonomous concept of 'court or tribunal', based on a series of criteria (established by law, permanence, compulsory jurisdiction, inter partes procedure, application of rules of law, independence), which are applied irrespective of how the body is classified in national law.

‘The notion of “court or tribunal of a Member State” in Article 267 of the Treaty on the Functioning of the European Union has been given an autonomous meaning by the Court of Justice of the European Union (CJEU), resulting from its rich case-law of preliminary rulings. The CJEU has repeatedly held that this notion is not bound by national classifications of judicial bodies but is determined by EU law criteria.’ The article traces how the Court has developed and applied this autonomous concept.

It is clear from the case law of the past six decades that the European Court of Justice had chosen to develop its own uniform concept of what a ‘court or tribunal’ is for the purposes of Article 267 TFEU, instead of leaving it to the Member States. It has been commonly understood among the scholarship that we are looking at ‘an autonomous concept’. The Court’s analysis is based on EU‑law criteria such as independence and being ‘established by law’, not on the domestic legal definition of a court.

The term 'court or tribunal' in Article 267 TFEU is an autonomous concept of EU law. Whether a body is a court or tribunal depends on EU-law criteria developed by the Court, not on the classification given to that body under national law.

The article states that ‘the notion of court or tribunal, found in Article 267 TFEU is an autonomous notion in EU law. The Court of Justice determined that its meaning is not limited by the internal legal order of the Member States but is instead defined by the Court on the basis of criteria developed in its case law.’ This underscores that the CJEU does not rely on national legal definitions when interpreting “court or tribunal” for Article 267 TFEU.

When deciding whether a referring body is a ‘court or tribunal’ within the meaning of Article 267 TFEU, the Court of Justice applies criteria laid down in its own case-law, such as establishment by law, permanence, compulsory jurisdiction, adversarial procedure, application of rules of law and independence. These Union-law criteria mean that the concept of ‘court or tribunal’ is interpreted autonomously, and not solely by reference to the domestic legal definitions of the Member States.

The article notes: ‘Autonomous interpretation is required with regard to the notion of the “court” or “tribunal” which may or must make a reference in the preliminary reference procedure under Article 267 TFEU.’ It explains that the Court’s resort to autonomous concepts ‘means that Union law defines those notions uniformly at EU level, irrespective of how they are understood in the different legal systems of the Member States’.

The CJEU rejected this approach. Rather than jettison the long‑standing precedent of CILFIT, it offered clarification as to the aims of Art. 267 TFEU and set down an obligation to give reasons when not referring as a means of containing national court discretion by increasing transparency. Despite the categorical nature of Art. 267 TFEU, courts of last resort do exercise discretion under the CILFIT test. The discussion presupposes the Court’s established autonomous definition of what is a ‘court or tribunal’ entitled to use the preliminary reference procedure under Article 267.

‘It warrants noting that the concept of a “court or tribunal” within the autonomous meaning of Article 267 TFEU does not invariably correspond to what national law designates as such. Whether a given body qualifies as a referring court is determined by reference to objective criteria developed in the case law: establishment by law, permanence, compulsory jurisdiction, an inter partes procedure, the application of rules of law, and independence.’ This description underlines that the CJEU uses its own autonomous criteria rather than national labels.

According to Article 267 TFEU, a 'court or tribunal of a Member State' can make a preliminary reference to the Court of Justice. The Court's case-law shows that it uses EU-law criteria to assess that status, including independence, rather than simply accepting a body’s domestic-law classification.

The preliminary reference mentioned three legal bases for judicial independence in primary EU law: Article 267 TFEU, Article 47 of the Charter and Article 19(1) TEU. Advocate General Bobek stated that this multiplicity of legal bases did not necessarily mean that there were different categories of judicial independence. However, considering that those provisions have different functions and objectives, he proposed that a review of whether there was compliance with the requirement for judicial independence should differentiate between the three provisions in terms of intensity. First, regarding Article 267 TFEU, the case law of the Court is clear in that a ‘court or tribunal’ must comply, inter alia, with the requirements of ‘independence’ and being ‘established by law’.

The blog explains: ‘The relationship of arbitral tribunals with the Court of Justice of the European Union (CJEU) has been the subject of a long-lasting juridical struggle. The current position is as simple and pragmatic as it is controversial. Commercial arbitration tribunals are not considered to be a “court or tribunal of a Member State” within the meaning of Article 267 TFEU and, thus, unable to refer questions to the CJEU… The CJEU has historically interpreted this concept restrictively.’ The analysis is based on the Court’s own criteria rather than national classifications of arbitration bodies.

An underlying doctrinal point is that Article 267 serves as a gentle reconciler of national autonomy with EU integration. In the sensitive area of investment law, the CJEU has relied on its own criteria to decide which bodies qualify as ‘courts or tribunals’ able to refer questions, insisting on factors such as independence and permanence rather than merely adopting national classifications.

While the CJEU consistently describes 'court or tribunal' as a concept of EU law and applies uniform criteria, in some borderline cases it refers to how a body is characterised in the domestic legal order as part of its overall assessment. Commentators argue that this shows the Court does not interpret the notion in complete abstraction from national definitions, but in a way that, in practice, can be influenced by them.

There is no abstract definition of a 'court or tribunal' for the purposes of Article 267, and the Court of Justice has never expressed any intention of binding itself to national classifications. Instead, it evaluates functional criteria, such as independence and the judicial nature of the task, to decide autonomously whether a body may refer.