Avis juridique important

Order of the Court of 26 November 1999. - Radiotelevisione italiana Spa (RAI). - Reference for a preliminary ruling: Corte dei Conti - Italy. - Article 177 of the EC Treaty (now Article 234 EC) - Definition of "court or tribunal of a Member State" - Community rules concerning public procurement. - Case C-440/98. European Court reports 1999 Page I-08597

Summary

Preliminary rulings - Reference to the Court - Court or tribunal of a Member State within the meaning of Article 177 of the Treaty (now Article 234 EC) - Meaning - To be determined on the basis of the body's constitution and role - Role of the Corte dei Conti (Italian Court of Auditors), in the context within which reference was made to the Court, consisting in the evaluation and verification of the results of administrative action - Not a judicial function

(EC Treaty, Art. 177 (now Art. 234 EC))

$$The question whether a body may refer a question to the Court falls to be determined on the basis of criteria relating both to the constitution of that body and to its function. Thus, a national body may be classified as `a court or tribunal' within the meaning of Article 177 of the Treaty when it is performing judicial functions, but when exercising other functions - of an administrative nature, for example - it cannot be recognised as such.

It follows that in order to establish whether a national body, entrusted by law with different categories of function, is to be regarded as a court or tribunal within the meaning of Article 177 of the Treaty, it is necessary to determine in what specific capacity it is acting within the particular legal context in which it seeks a ruling from the Court. For the purposes of that analysis, no relevance is to be attributed to the fact that, when otherwise configured, the body concerned falls to be classified as a court or tribunal for the purposes of Article 177 of the Treaty (even the same entity whose status is in issue, when it is exercising powers other than those in the context of which the reference was made).

The Corte dei Conti (Court of Auditors) is not performing a judicial function - and cannot therefore make a reference to the Court of Justice - when, in the context in which reference was made, it is exercising its powers of ex post facto review which is an administrative role consisting in the evaluation and verification of the results of administrative action.