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The understanding of the independence of bodies sitting someway between judicial authorities and administrative entities is changing, and the breadth of legal guarantees that must be in place for who may make an order for a preliminary reference is undergoing a quiet transformation. When an order for reference is received at the Court of Justice of the European Union, a number of factors are taken into account to determine whether a referring body is a “court or tribunal” for the purposes of art.267 TFEU. On occasion, there is uncertainty as to whether referring bodies meet the Court’s criteria. This article investigates the Court’s tightening of the independence criterion through implicit invocation of art.19 TEU, in which it can now commence a more assertive denial to referring bodies to receive a preliminary reference if they are insufficiently independent.
