Can the Communications Regulatory Authority of the Republic of Lithuania Be Recognized as a Court under Article 267 of the TFEU?
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Abstract
The Republic of Lithuania counts the nine years of membership in the European Union. It is clear that Lithuanian courts, which are part of EU judicial system, and other institutions are facing the need to apply for a preliminary ruling.
The European Court of Justice gives a preliminary ruling only if the requesting authority can be recognized as a “court or tribunal” under Article 267 of the TFEU. Which Lithuanian authorities may seek for a preliminary ruling? To answer this question, it is necessary to look at the jurisprudence of the Court, because the Treaty does not provide any clear definition.
The first decision, in which the Court issued an opinion what is the national court and what criteria it must meet, was decision in the Vaassen – Goebbels case (in 1966).
The Court has defined five criteria, which may have been used to determine whether a body can be considered a “court”. These criteria are the following: whether the authority was established according to the law, is it permanent, whether it applies rules of law, is the jurisdiction of authority compulsory and using the procedure of inter partes. On the subsequent cases, the Court improved these criteria and added the others. On the judgment of Dorsch Consult case (in 1997), the Court decided the folowing: “to determine whether the institution applying for a preliminary ruling is corresponding “the court” status under Article 234 (now Article 267 – author’s note), one must be guided by the following criteria: institution must be established by legislation, has regular activities, the process of the dispute, similar legislation and must be independent”.
Each EU Member State, as well as Lithuania, has various state institutions dealing with legal disputes, one of these is the Lithuanian Communications Regulatory Authority. This institution meets the criteria provided by the Court, so it can be assumed that the institution can be treated as a “court” under Article 267. The author believes that the preliminary ruling procedure should be flexible, not only because of the increasing number of Member States, but also because of the growing need to ensure the uniform application and interpretation of EU law. National authorities should seek guidance from the Court, and more institutions should be able to apply to the Court for the preliminary ruling.
The European Court of Justice gives a preliminary ruling only if the requesting authority can be recognized as a “court or tribunal” under Article 267 of the TFEU. Which Lithuanian authorities may seek for a preliminary ruling? To answer this question, it is necessary to look at the jurisprudence of the Court, because the Treaty does not provide any clear definition.
The first decision, in which the Court issued an opinion what is the national court and what criteria it must meet, was decision in the Vaassen – Goebbels case (in 1966).
The Court has defined five criteria, which may have been used to determine whether a body can be considered a “court”. These criteria are the following: whether the authority was established according to the law, is it permanent, whether it applies rules of law, is the jurisdiction of authority compulsory and using the procedure of inter partes. On the subsequent cases, the Court improved these criteria and added the others. On the judgment of Dorsch Consult case (in 1997), the Court decided the folowing: “to determine whether the institution applying for a preliminary ruling is corresponding “the court” status under Article 234 (now Article 267 – author’s note), one must be guided by the following criteria: institution must be established by legislation, has regular activities, the process of the dispute, similar legislation and must be independent”.
Each EU Member State, as well as Lithuania, has various state institutions dealing with legal disputes, one of these is the Lithuanian Communications Regulatory Authority. This institution meets the criteria provided by the Court, so it can be assumed that the institution can be treated as a “court” under Article 267. The author believes that the preliminary ruling procedure should be flexible, not only because of the increasing number of Member States, but also because of the growing need to ensure the uniform application and interpretation of EU law. National authorities should seek guidance from the Court, and more institutions should be able to apply to the Court for the preliminary ruling.
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