A new case has been lodged at the Court of Justice of European Union in Case C-560/23, Tang, whereby the referring body is the Danish Refugee Appeals Board (Flygtningenævnet). This non-judicial body has never made a reference for a preliminary ruling before, and consequently, it is not certain that it will even have the case deemed admissible by the Court.
The Tang case turns on interpreting provisions of Regulation 604/201 (the Dublin III Regulation), however, that is of marginal concern, even that the Court only hears cases from national courts and tribunals that are sufficiently judicial. Determining whether a referring body like the Flygtningenævnet is sufficiently judicial in nature is a determination made solely by the CJEU itself under its Article 267 TFEU jurisprudence only. It is completely immaterial how national law describes the body.
What matters whether a referring body has its case deemed admissible is a variety of factors. The CJEU has been taking a firmer line over the last number of years as to ‘whom’ is part of the EU judiciary. This was prominently seen in its Banco de Santander (Case C-274/14) judgment. This turn in the case-law has been analysed academically here and here.
Of particular concern is that the Appeals Board in Case C-560/23, currently pending before the Court, is that it sits with three members, one of whom is a civil servant from the Ministry of Immigration and Integration (Udlændinge- og Integrationsministeriet), the Ministry which is the parent ministry for the Immigration Service (Udlændingestyrelsen) (!). In other words, it is thus impressing that it is merely an administrative appeal process, and not a judicial one. Another member of the board is a private-practicing lawyer. One of the three members is a judge.
In all, given that the admissibility of cases by non-judicial bodies falls on both internal and external aspects of partiality and independence, it cannot be stated that the Danish Refugee Appeals Board (Flygtningenævnet) is a referring body under Article 267 TFEU. This will no doubt have to be dealt with in the Opinion of the Advocate General and the judgment/order of the Court, before the substance of the case is in any way considered.
More on the referral in Case C-560/23, Tang can be read here.