The
2024 Reform of the Statute of the Court of Justice of the EU
OCTOBER 2024
The 2024 Reform of the Statute of the Court of Justice of the EU
Table of Contents
1. Breaking with Tradition: Preliminary Reference Reform and the New Judicial Architecture
Takis Tridimas
2. The Court of Justice Appeal Filter Mechanism and Effective Judicial Protection: throwing out the Baby with the Bathwater?
Kieran Bradley
3. Referring Cases back to the Court of Justice: Faculty or Duty?
Dominik Düsterhaus
4. The Proof is in the Pudding’: Some Thoughts on the 2024 Reform of the Statute of the Court of Justice from a Highest National Court
Corinna Wissels & Tom Boekestein
5. The (new) Role of the Advocate General at the General Court
Jonathan Wildemeersch
6. Transparency and Openness at the Court of Justice – Towards ex post Publicity of Parties’ Observations
Paul Dermine
7. The Transplant of Procedural Rules from the Court of Justice to the General Court
Chiara Amalfitano
8. Return of the Réexamen
Sara Iglesias
9. The Future will tell. Of Course it Will, but on What Criteria?
Michal Bobek
10. 2024 Reform of the Court of Justice: Historical and Normative Underpinnings
Paul Craig
20 Years after the 2004 Enlargement: The EU, old and new, and its fortified judicial Order
Marek Safjan
Breaking with Tradition: Preliminary Reference Reform and the New Judicial Architecture
Takis Tridimas
On 6 March 2024, the Council gave its final approval to the amendment of the Statute of the Court of Justice providing for the transfer of preliminary reference jurisdiction to the General Court (GC). This is the most significant change in the EU’s judicial architecture since the establishment of the Court of First Instance and should be welcomed. It is designed to increase efficiency in the administration of justice and enable the Court of Justice (CJ) to concentrate on the strategic development of EU law.
Given that Article 267 TFEU is the guarantor of uniformity in the interpretation of EU law, sharing jurisdiction on references raises the risk of fragmentation but the new system is carefully crafted and, on a cost benefit analysis, it comfortably passes the test. The reform is based on three pillars: the criterion used for allocating references to the GC is the subject-matter of the reference; it is for the CJ to decide, via a verification process, whether a reference should be transferred to the GC; and a number of safeguards are introduced to make the procedure before the GC similar to that before the CJ. Further safety valves are embedded in the two way elevator system of Article 256(3), paragraphs 2 and 3, TFEU.
Exclusivity and Conceptual Independence
The jurisdiction of the GC to hear preliminary references is subject-matter defined. It does not depend on the seniority of the referring court or on whether the question referred pertains to interpretation or validity. Nor does it depend, in principle, on the importance of the questions raised although, in marginal cases, this is a factor that would be difficult to ignore. Under new Article 50b, paragraph 1, of the Statute, the GC is to have jurisdiction to hear references that come exclusively within the following areas:
• the common system of value added tax;
• excise duties;
• the Customs Code;
• the tariff classification of goods under the Combined Nomenclature;
• compensation and assistance to passengers in the event of denied boarding or of delay or cancellation of transport services; and
• the scheme for greenhouse gas emission allowance trading.
The above areas were suggested by the CJEU and chosen essentially on the basis of four criteria: (a) easiness of identification and distinctiveness; (b) contained importance; (c) the existence of established case law;
The 2024 Reform of the Statute of the Court of Justice of the EU
and (d) volume of litigation. Those criteria are well-conceived but disputes have a cunning, if unintended, habit to combine diverse legal problems. Both conceptually and in terms of judicial policy, a key issue is how to allocate questions referred which straddle matters falling within the above areas and horizontal issues. In an effort to provide more clarification, Article 50b paragraph 2, of the Statute, states that the CJ is to retain jurisdiction to hear references that raise ‘independent questions’ relating to the interpretation of primary law, public international law, general principles of Union law or the Charter. The way the CJ understands that concept will be crucial. Nonetheless, this is not an insurmountable problem. Courts are well used to drawing fine distinctions. Suffice it to make here two observations.
First, the determination whether the reference raises an independent issue is to be made by the CJ at the verification stage. It must therefore be made speedily and, in principle, only on the basis of the order for reference. For the system of transfers to work, efficiency is key. The CJ therefore will need to make a determination whether, on the basis of the information on the file, there is a substantial likelihood that an independent issue of interpretation is raised. Secondly, it is inherent in the reform that the GC will play an enhanced role in interpreting and applying the norms listed in article 50b, paragraph 2, in the specific areas where jurisdiction to it has been transferred. For the transfer of jurisdiction to be meaningful, the frame of mind should be towards empowering rather than limiting the GC. The GC should be able to shape the law in those areas subject to the possibility of CJ review under Article 256(3), third paragraph, TFEU.
Judicial politics: Bureaucracy and Degrees of Separation
In institutional terms, the big winner of the reform is the EU judiciary. The GC acquires a role in ensuring the uniform interpretation of EU law and its status is enhanced whilst the CJ gets more time to focus on the strategic development of EU law. The reform serves as a recognition of the CJ’s gradual evolution to the supreme court of the Union. In the shadows of technical changes, there is a shift in the judicial paradigm. The CJ increasingly becomes the top tier of an expanded centralised judicial bureaucracy. There is an added qualitative element in its jurisdiction which becomes more targeted and selective. The granting of jurisdiction to the GC entails a sharing of preliminary references which differs markedly from the delegation granted to national courts under the CILFIT (C-283/81) – Consorzio (C-561/19) model. The acte clair doctrine is broader both in terms of its remit, since it applies in all areas of interpretation, and in terms of the number of judicial actors to whom decision-making power is entrusted. It is, however, narrower in that the mandate of the national courts is much more circumscribed. By contrast, in the areas covered by the transfer, the GC is entrusted to shape EU law. The risk of fragmentation is more contained as the GC is part of the same judicial structure, owes no allegiance to any national legal order, and is subject to the review mechanism of Article 256(3), paragraph 3, TFEU. It is managed delegation that is designed not to challenge the CJ.
The price to pay is that the reform creates two degrees of separation. To the extent that the CJ’s jurisdiction is more selective, it becomes somewhat more remote from the citizen in relation to some categories of cases. This is inevitable in view of the complexity of the EU and the increase in demand for rulings. Also, the reform accentuates the separation between the EU and the national judiciary. Whether a reference
The 2024 Reform of the Statute of the Court of Justice of the EU
stays with the CJ or goes to the GC does not depend on the seniority of the referring court but on subjectmatter. This is a sound, technocratic, criterion. Specialisation carves out a sphere of competence for the GC which, however, disrupts perceived orders of hierarchy: a very senior national court has to converse with, and is bound by, the decisions of the junior Union interlocutor. Subject-matter separation has a subtle effect on judicial ranking. This does not detract from the soundness of the reform but serves to point out that, to maintain legitimacy, the quality of justice at EU level has to be very high and also that the national courts must not, in any way, be considered as supporting acts in the administration of EU justice. Relations between the CJ and the GC will become closer and membership in the latter may increasingly be viewed as a stepping stone to holding judicial office in the former.
Procedural Guarantees to Ensure Uniformity
The amendments to the Statute provide for certain process safeguards with a view to ensuring that the uniform interpretation of EU law is not prejudiced. References will be allocated to GC chamber(s) specifically designated for that purpose (Article 50b(3), paragraph 4, of the Statute). This is intended to promote consistency since all references will all be dealt with by the same chambers. It will also facilitate ‘culture transition’. The GC has built expertise in adjudicating cases which are fact-heavy, require the analysis of complex economic evidence, and demand a painstaking analysis of the evidence. Preliminary references, by contrast, require a craft in interpretation and delicate appreciation of the division of powers between the CJEU and the referring court, which remains competent to decide on the facts and the application of the CJEU’s ruling on them. The exercise of the new jurisdiction requires a rewiring of the judicial mind which is easier to achieve through specialisation within the GC.
A new paragraph (paragraph 4) is added to Article 50 of the Statute, according to which, when it exercises preliminary reference jurisdiction, the GC is to sit in a chamber of intermediate size when a Member State or an institution of the Union that is a party to the proceedings so requests. The avowed objective is to maintain the consistency of preliminary rulings given by the GC.
New Article 49a of the Statute provides that, in preliminary reference cases, the GC is to be assisted by one or more Advocates General. This does not preclude the GC adjudicating a case without an Opinion where it raises no new points of law. The systematic use of advocates general in preliminary references is not justified on grounds of inherent complexity or importance of the cases heard. Many direct action before the GC may give rise to equally, if not more, complex issues of law (see e.g. Kadi, C-315/01 and the Front Polisario cases), given especially that direct actions are not confined to the specific areas in which the GC acquires preliminary reference jurisdiction. It is, rather, justified on grounds of legitimacy and equality of treatment. It reassures national courts and interested parties that the reference will benefit from the same safeguards as those that apply where a reference is heard by the CJ. It is further justified by the fact that, in Article 267 TFEU cases, there is no appeal to the CJ.
At the instigation of the European Parliament, Article 23, paragraph 5, of the Statute introduces a commendable change: observations submitted by an interested person pursuant to Article 23 must be published on the CJEU website after the closing of the case, unless that person objects. This contributes
The 2024 Reform of the Statute of the Court of Justice of the EU
to transparency and good governance and recognises that references are not just a dialogue between the referring court and the CJEU but may raise issues which affect the interests of many public and private actors. Consideration should be given to extending the obligation of disclosure to pleadings also in direct actions.
Conclusion
The reform takes a big step. It abolishes the monopoly of the CJ to hear preliminary references but it does so within a controlled environment and, if the CJEU is to serve its purpose, it should be seen as a necessity and not as a choice. For the reform to succeed, it is vital that national court have faith on the quality of GC rulings. The amendment to the Statute may be a harbinger to the GC acquiring preliminary reference jurisdiction in more areas. Experience suggests that, once the first step is made, more ground is likely to be covered. This amendment is more likely to be the opening shot rather than the end of the road.
SUGGESTED CITATION: Tridimas, T.; “Breaking with Tradition: Preliminary Reference Reform and the New Judicial Architecture”, EU Law Live, 26/06/2024, https://eulawlive.com/op-ed-breaking-with-tradition-preliminary-reference-reform-and-the-new-judicial-architecture/
Takis Tridimas is Professor of European law at King’s College London.
TThe Court of Justice Appeal Filter Mechanism and Effective Judicial Protection: Throwing out the Baby with the Bathwater?
Kieran Bradley
The institution of independent boards of appeal for Union regulatory agencies was intended to provide a cheap and speedy means of resolving disputes involving complex technical issues between the agencies and parties affected by agency decisions, and thereby improve the protection of their legal rights under Union law. The Court of Justice appeal filter mechanism cuts off, other than in very exceptional circumstances, the possibility of an appeal to that Court regarding the validity of agency decisions; as a result, the appeal board exercises in effect the function of a first instance court, with the sole possibility of an appeal to the General Court. Whatever the practical advantages of this scheme, certain design features of existing boards might be seen as undermining their claim to independence, as illustrated by the ACER Regulation. It is therefore suggested that the provisions governing such boards of appeal include common minimum guarantees as regards their composition, and the appointment and dismissal of their members, in line with the Court’s general case law on the right to effective judicial protection.
The appeal filter mechanism
The 2024 reforms of the Statute of the EU Court of Justice extend the filter mechanism of Article 58a of the Statute to six regulatory agencies which enjoy autonomous decision-making powers. Under this mechanism, an appeal to the Court of Justice from a decision of the General Court concerning the validity of a decision of the independent board of appeal (‘Board’) of such an agency will only be examined by the Court of Justice if it raises ‘an issue that is significant with respect to the unity, consistency or development of Union law’, that is, a matter of exceptional legal importance.
Under old case law, Boards are not considered ‘tribunals’ because they may substitute their appreciation on substantive matters for that of the supervised agency, under the doctrine of ‘continuity of function’ (Procter and Gamble, T-63/01, para. 21), rather than exercising judicial review powers strictly so called. More recently, however, the General Court has intimated that, as well as ‘limit[ing] litigation before the EU Courts’, Boards are intended to ensure ‘an effective remedy for the purposes of Article 47(1) of the Charter’ (Germany v ECHA, T-755/17, paras. 56 and 57).
The Court of Justice has provided a sweeping overview of common characteristics of such Boards: they ‘provide EU agencies with review bodies where they have been given decision-making powers on complex technical or scientific issues capable of directly affecting the legal situation of the parties concerned … these are administrative revision bodies, which are internal to the agencies. They have a certain independence, and are composed of lawyers and technical experts, which means that they are better able to dispose of
The 2024 Reform of the Statute of the Court of Justice of the EU
appeals against decisions which often have a strong technical component … they are a quick, accessible, specialised and inexpensive mechanism for protecting the rights of the addressees and persons concerned by [agency] decisions’ (Aquind, C-46/21 P, paras. 57 and 59).
The ‘right to appeal’ for individuals in Union law and the upgrading of boards of appeal
The foundational premise on which the General Court was established is that, with respect to ‘actions requiring close examination of complex facts’, the individual or company should benefit from two degrees of judicial protection (Council Decision 88/591, 2nd and 4th ‘whereas’). By restricting the right of appeal to the Court of Justice to matters of exceptional legal importance, the Boards are in effect performing the role originally envisaged for the General Court or, if one existed, a competent specialised Union court.
The shifting of responsibility for first-tier judicial protection to Boards is confirmed by the fact that the statutory criteria for the admissibility of appeals concerning their decisions are essentially similar to those for the review of General Court appeal decisions under Article 256(2) TFEU, with the additional possibility of admitting an appeal where the development of Union law is at issue. While the Boards become in practice, if not in law, part of the EU judiciary, against whose decisions a single level of appeal lies, their members do not enjoy guarantees equivalent to those the Treaty offers judges and Advocates General.
Quis iudicat?
Given that the Boards are appointed by, and function as an integral part of, the Union body, or bodies (the three European Supervisory Authorities, ‘ESA’, share a single Board), they are set up to supervise, some form of rule or mechanism might be expected to avoid a closed circle, whereby the agency is in practice supervising itself. This is not necessarily the case.
The Board at issue in Aquind was that of the EC Agency for the Cooperation of Energy Regulators, ‘ACER’, based in lovely Ljubljana. The Board is an integral part of the Agency (Regulation 2019/942, Article 17(d)). Though not agency staff, its six members are ‘selected from among current or former senior staff of the regulatory authorities, competition authorities or other Union or national institutions with relevant experience in the energy sector’ (Article 25(2)).
The ACER Board could therefore in principle be comprised entirely of ‘current … senior staff of the regulatory authorities’, notwithstanding the fact that those regulatory authorities may be parties before the Board (eg. E-Control v ACER, T-63/16) and that its decisions almost necessarily impact the positions and policies of one or other authority.
The appointment procedure for the ACER Board does little to assuage any such concerns. Members are ‘formally appointed by the Administrative Board, on a proposal from the Commission, following a public call for expression of interest, and after consulting the Board of Governors’ (Article 25(2), 2nd). There is nothing to prevent the Commission proposing a list of candidates composed exclusively of staff of the national regulatory authorities. It is unclear whether the participation of the Administrative Board and the
The 2024 Reform of the Statute of the Court of Justice of the EU
Board of Governors provides either of these bodies with any real input, but in any case they may have no objection to a system which allows regulators to supervise the Agency.
There also is no requirement that the ACER Board count any lawyers amongst its members, notwithstanding the blithe assertion to the contrary of the Court of Justice (Aquind, para. 59) and certain academics. The rules on dismissal of a Board member do not reserve any role for the other Board members; the existence of ‘serious misconduct’ is decided by the Administrative Board after consulting the Board of Regulators.
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It is not suggested that the extreme scenario adumbrated above has occurred or is likely to do so. Indeed, the ACER Board was chosen as an example in part because of the author’s personal acquaintance with three of the five members of the current Board listed on ACER’s website; any hint that these eminent lawyers are anything but entirely independent of the agency would be laughable.
That said, formal guarantees of the independence and impartiality of those exercising judicial review functions exist precisely to safeguard against extreme scenarios, and to ensure justice is seen to be done. In other contexts, the Court has held that Article 47 Charter requires rules ‘to dispel any reasonable doubt in the minds of individuals as to the imperviousness of [a judicial] body to external factors and its neutrality with respect to the interests before it’ (CETA Opinion, para. 204). Moreover, the filter mechanism of Article 58a is predicated on the Boards being ‘independent’ in a judicial sense, rather than benefiting from ‘a certain independence’ of the kind the agency Director enjoys. Whatever the practice, the current design of certain Boards does not provide the necessary guarantees of independence and impartiality.
In order to maintain the promise of a second degree of judicial protection, it would be necessary to ensure the first degree includes a judicial component, by requiring the presence in the Board of legal expertise at an appropriate level, along with the appropriate technical knowledge. The rules on the composition of Boards should provide that its members are not, or not exclusively, drawn from the entities being supervised. The ESA Joint Board, for example, already excludes from its membership ‘current staff of the competent authorities or other national or Union institutions or bodies involved in the activities of the Authority’. Moreover, both candidate members and sitting members of the ESA Board may be invited to testify before the European Parliament, which is a welcome element of democratic accountability. The relevant rules should also grant Board members a decisive say in the dismissal of one of their own. Where appropriate for the proper functioning of the internal appeal system, consideration could be given to abandoning the ‘continuity of function’ which was largely responsible for Boards not being considered ‘tribunals’; this is already the case for the ACER Board.
The practical advantages of a system of specialist review of agency decisions, as outlined in Aquind, are obvious. They should not, however, be allowed to trump the requirements of effective judicial protection.
The 2024 Reform of the Statute of the Court of Justice of the EU
SUGGESTED CITATION: Bradley, K.; “The Court of Justice appeal filter mechanism and effective judicial protection: throwing out the baby with the bathwater?”, EU Law Live, 01/07/2024, https://eulawlive.com/the-court-of-justice-appeal-filter-mechanism-and-effectivejudicial-protection-throwing-out-the-baby-with-the-bathwater/
Kieran Bradley is a judge of the Administrative Tribunals of the International Monetary Fund and the Inter-American Development Bank Group, and a former judge of the European Union Civil Service Tribunal.
Referring Cases back to the Court of Justice: Faculty or Duty?
Dominik Düsterhaus
Quite frankly, I did not think it would take 1500 words to assess whether the General Court may or must refer a given preliminary ruling question back to the Court of Justice. In claris non fit interpretatio it seemed to me or, as follows from the Court’s case law, where the wording of an EU law provision is clear and precise, its contextual or teleological interpretation may not call into question the literal meaning of that provision.
And what I read in the Treaty is clear indeed:
‘Where the General Court considers that the case requires a decision of principle likely to affect the unity or consistency of Union law, it may refer the case to the Court of Justice for a ruling [Article 256(3) TFEU]’.
But to stop there would be an incomplete answer for three reasons.
First, lawyers know that while a may is not normally a must, it can still become one. In judicial practice, reasons of equity may rule out all but one of the legally sound solutions just as well as considerations of consistency1 can command the continuation of a line of reasoning despite plausible arguments to the contrary. Most importantly, the discretion granted by a may is usually framed, even bounded, by the terms and objectives of the provision it forms part of. So even though the wording of Article 256(3) TFEU appears to grant the General Court both a margin of appreciation with regard to the existence of the composite condition of (1) requiring a decision of principle (2) likely to affect the unity or consistency of Union law and discretion as to the ensuing course of action, ie to refer back or not, neither one is boundless. The may indeed becomes a must, I submit, where the General Court considers the composite condition to be met. It remains to be seen how often references in the six ‘clearly defined and sufficiently separable’ areas falling within the General Court’s competence require a decision of principle likely to affect the unity or consistency of Union law. Both parts of this condition provide food for thought and speculation. As regards the requirement of a ‘decision of principle’ it has thus been submitted that it necessarily involves abstract rather than factual interpretation, the latter remaining within the General Court’s competence. While I agree that a ‘decision of principle’ for the purpose of Article 256(3) TFEU will usually relate to abstract interpretation, it would unduly curtail the General Court’s full competence in the areas concerned to reserve issues of abstract interpretation for the Court of Justice. In any event, the second requirement of the composite referral condition, ie the affectation of the unity or consistency of Union law, should serve as a safety valve in this respect.
1. While legal certainty and the protection of legitimate expectations do not confer a vested right in a consistent jurisprudence (ECtHR, Unédic v France, Appl. No 20153/04, § 74) a well-established jurisprudence may require a more substantial statement of reasons justifying a departure (ECtHR, Atanasovsky v FYROM, Appl. No 36815/03, § 38).
The Court’s decisional practice in review proceedings under Article 256(2) TFEU and in respect of requests for appeals to proceed (Article 58a of the EU Court of Justice’s Statute) already underscores that a strict application of the conditions under which the unity or consistency risk to be affected –requiring, in essence, that rules, principles or concepts ‘applicable regardless of the subject matter of the case’ are at stake – severely limits the number of pertinent cases. Mutatis mutandis, one can expect only a small number of cases being referred back to the Court of Justice.
After all, a precondition for the initial transfer of a case to the General Court is that it does not touch upon other fields than the 6 and raises no important interpretative issues of international or primary law including general principles and the Charter. Also, as the Court noted in its request, out of a total of more than 630 cases closed in these fields between 2017 and 2022, only 3 were dealt with by the Grand Chamber.
While, for example, a mere deviation from previously settled case-law in one of the six areas now falling within the General Court’s competence would not as such appear to affect the unity or consistency of Union law, one should also bear in mind that a limited risk of divergences due to well-settled case-law has been one of the criteria used for choosing the areas of transfer.
Finally, the General Court’s implementation of Article 256(3) TFEU in Article 207(3) of its rules of procedure constitutes an intriguing variation on the faculty/duty theme for the indication that ‘[t]he decision to refer the case shall be taken by the plenum’ should hardly be understood literally to the effect that the plenum has no other option than to rubber-stamp the referral proposed by the chamber or, as the case may be, the GC’s President or Vice-President. Both comparative law and legal linguistic research can steer the GC towards recognising that this shall means may insofar as the decision to refer or not is concerned.
Secondly, the General Court’s faculty to refer a preliminary ruling reference back to the Court of Justice needs to be read both in conjunction with, and opposition to that Court’s option under Article 256(3) TFEU to review a judgment. Ironically, even though the threshold for the Court’s initiative to review the General Court’s interpretation is higher (‘serious risk of the unity or consistency of Union law being affected’) than that for a referral back, it may be easier to meet insofar as the Court of Justice, in its capacity of supreme arbiter of all Union law, including its structural tenets, can elevate mere inconsistencies failing the General Court’s affectation test to structural issues of unity or consistency. The risk of seeing contradictory case-law emerge could thus justify a review in a given case meant to put the General Court back on track. While EU law still lacks an express provision on the precedential value of Court of Justice case law for the General Court beyond the remit of Article 61 of the Statute,2 there may indeed be an argument in favor of policing, by means of the review procedure, whether the quality of the uniform interpretation of EU law is maintained. At the same time, review under Article 256(3) TFEU should be absolutely exceptional so to avoid eroding the General Court’s competence and authority, as well as undue delay, the latter having been underlined in the Court’s legislative request.
2. Beyond that hypothesis, the General Court does not find itself under an absolute obligation to follow the Court’s interpretation but should do so as a rule, in order to prevent its judgments from being set aside on appeal, see Case T-85/09, Kadi v Commission, T:2010:418, para. 121.
The 2024 Reform of the Statute of the Court of Justice of the EU
Thirdly, besides the faculty to refer back there is indeed an express duty to do so as well, for the amended Statute now provides in Article 54(2) that where the General Court finds a preliminary ruling request to come within the sole jurisdiction of the Court of Justice, it shall refer that request to the latter. Notwithstanding the loophole generally left by the modal auxiliary shall and the General Court’s undeniable margin of appreciation in its assessment of jurisdiction, there’s no doubt as to the required course of action.
A trickier question lies elsewhere.
The General Court states in the explanations on Article 207 of its rules of procedure as amended that even after the initial analysis carried out by the Court of Justice, certain aspects of a request for a preliminary ruling may turn out to come within areas other than the specific areas for which the General Court has responsibility, in particular where questions of interpretation of primary law arise in the course of proceedings.
While it appears compelling in theory, the proper distinction between situations falling under Article 54(2) of the Statute and Article 256(3) TFEU may pose some riddles in practice.
For the time being, the logic of the mechanisms foreseen by the Treaty, the Statute and the Rules of procedure in order to preserve the Court’s jurisdiction as well as the unity and consistency of EU law in connection with the transfer of preliminary ruling requests to the General Court can be described as conferring growing degrees of discretion as to the Court’s involvement: none for the ex ante denial of jurisdiction, some for the referral back in medias res, and significantly more for the ex post decision to review.
With this attempt at systematisation and the obvious caveat that only practice can tell what impact the possibility – and eventual duty – to refer cases back to the Court of Justice will have on the General Court’s preliminary ruling jurisdiction and case-law, I close my preliminary assessment of this matter. Let me add, though, that it exclusively reflects my personal opinion and indeed counts 1500 words.
SUGGESTED CITATION: Düsterhaus, D.; “Referring cases back to the Court of Justice: faculty or duty?”, EU Law Live, 04/07/2024, https:// eulawlive.com/op-ed-referring-cases-back-to-the-court-of-justice-faculty-or-duty/
Dominik Düsterhaus is a référendaire at the Court of Justice of the European Union.
The
‘The Proof is in the Pudding’: Some Thoughts on the 2024 Reform of the Statute of the Court of Justice from a Highest National Court
Corinna Wissels & Tom Boekestein
1. Introduction
With the reform of the Court of Justice’s statute, the Court abandoned its exclusive competence to give preliminary rulings: the General Court has been given jurisdiction to give preliminary rulings in six specific areas of EU law. Others, including Tridimas in an earlier contribution to this symposium, have already discussed the details of that reform, its implications for the EU’s legal order, and whether it marks the beginning of a larger shift in the EU’s judicial system. These are important academic discussions which we hope to supplement with a more practical contribution: we will discuss the reform from the perspective of a court of final instance with the obligation to refer under article 267 TFEU. Bobek , Petrić and Tridimas have wondered (implicitly) whether courts like ours would accept that from now on, some of their questions will be answered by the ‘junior court’ – someone they might not see eye-to-eye with. Although we do not doubt the General Court’s ability, this is a question worth discussing.
Before we engage with this question, we owe you a disclaimer: the impact of the transfer of jurisdiction to the General Court has little impact on our Court. Other than cases concerning the scheme for greenhouse gas emission allowance trading, the Dutch Council of State does not hear cases that touch on the areas of EU law that the General Court will give preliminary rulings on. Our Court delivered only a single judgment on the ETS trading scheme in the past five years. But, of course, we can imagine what it would be like to refer cases (primarily) to the General Court. Questions concerning the common system of value added tax especially can have such significant budgetary implications that it may feel counterintuitive to refer them to the lower EU court.
Our answer, in short, is that we think the proof is in the pudding. Whether or not national courts will receive the transfer of jurisdiction to the General Court positively and refer questions to it, will depend on how the reform plays out in practice. In our experience, the national court’s appreciation of the preliminary reference procedure is mostly dependent on three factors (in no particular order). Firstly, the time it takes the CJEU to answer the preliminary reference and the corresponding delay caused in the domestic procedure. Secondly, the coherence of the Court’s case law and the unity of EU law. Thirdly, the quality of the reply: the Court’s answer should be clear and easy to apply in the case before the national court. Ideally, it should also be formulated in such a way that it can be applied in related cases with relative ease. We will discuss each of these factors from the perspective of the national judge below.
2. Speed
Referring preliminary questions to the CJEU takes time. In 2023, it took the Court of Justice about 16 months on average to rule on a preliminary reference and during this time, the procedure before the national court is suspended. There are more factors, however. Before a preliminary reference can be sent to Luxembourg, it must be drafted. There is a difference between giving the final ruling in a case and drafting a preliminary ruling and the questions to the Court of Justice. From our experience, that often takes (considerable) time. The parties must also be given the opportunity to comment on the draft preliminary reference. Likewise, after the Court of Justice has handed down its judgment, that judgment must be analysed, the parties must be heard once more, and then the national judge will have to draft their own, final judgment in the case. Referring a case to the CJEU can easily double the time it takes before a case is decided, compared to a purely national procedure, and while this delay is unavoidable, national judges strongly prefer to keep it to a minimum. Justice delayed is justice denied, after all.
With that in mind, the reform is promising. If the General Court takes on about twenty percent of the references submitted to the Court of Justice every year, as envisioned by the latter, then the Court of Justice should be able to deal with the remaining eighty percent more efficiently and quickly. Time will tell whether this will work as intended or whether the (perceived) increase in capacity also triggers an increase in references (the Braess-paradox), as Bobek has warned.
Other elements of the reform also have an impact on the envisioned time savings. If the General Court finds that it is does not have jurisdiction over a preliminary reference that has been allocated to it after all, it must refer the reference (back) to the Court of Justice. When this happens at the start of the procedure before the General Court, the delay will be minor. Experience teaches us, however, that some preliminary references appear simple and technical, but actually raise complex questions of principle when examined more closely. Sarmiento has rightly pointed to the case of Åkerberg-Fransson in this regard, which concerned a seemingly unassuming VAT-dispute, but turned out to be a case of constitutional importance. It is unclear what the procedure and procedural timeline are going to look like if the General Court refers a preliminary question back to the Court of Justice. Article 114 bis of the Court of Justice’s draft revised Rules of Procedure merely specifies that the preliminary ruling shall be given ‘as soon as possible’. For the referring judge, further specification of the timeline would be helpful.
Finally, there is the possibility for the Court of Justice to review a preliminary ruling from the General Court (see, for more details, the Op-Ed by Iglesias). It is for the first Advocate General to propose such a review within a month after the General Court gives its ruling. With Düsterhaus we assume that such reviews will be exceptional, but the existence of this mechanism still means that a preliminary ruling from the General Court’s will only become definitive a month after it is published – assuming that there will be no review by the Court of Justice (Article 62 of the Court’s Statute). According to the draft revised Rules of Procedure of the Court of Justice, the referring judge will be informed if the General Court’s ruling will not be reviewed by the Court of Justice. Of course, national courts can use that time to analyse the General Court’s ruling, but there is little point in hearing the parties if the ruling can still change.
Our bottom line is that in the eyes of national judges, much of the reform’s success will depend on the effective allocation of cases by the Court of Justice. The one-stop-shop principle is an excellent starting point and reducing the Court’s docket by twenty percent suggests notable time savings. Time will tell how effective the reform is at reducing the time it takes the Court of Justice to deliver preliminary rulings.
3. Coherence and Consistency
Sharing jurisdiction to give preliminary rulings raises the risk of fragmentation. It is therefore reassuring that the reform seeks to safeguard the coherence and consistency of EU law through two mechanisms: ex ante, by excluding preliminary references that raise principled questions of EU law from the jurisdiction of the General Court. As mentioned, these questions should not be transferred to the latter in the first place, and if that happens, the General Court is supposed to ‘return’ them. And ex post, the aforementioned review-mechanism ensures that the Court of Justice can revise preliminary rulings from the General Court if necessary. Furthermore, the creation of specialised ‘preliminary-ruling’ chambers at the General Court will foster consistency.
The importance of consistency is especially pressing in relation to the interpretation of the Charter. Preliminary references that concern the interpretation of the Charter are supposed to be kept by the Court of Justice, but in practice, national courts rarely refer cases that concern only the interpretation of the Charter. Firstly, it is possible that the national court refers several questions about the common VATframework, one of which concerns the Charter. Secondly, national judges often ask questions about the interpretation of secondary EU law in light of the Charter. At what point is the ‘Charter-proportion’ of a preliminary reference significant enough for it to be dealt with by the Court of Justice? And, relatedly, could a national court frame its reference in light of the Charter to force adjudication by the Court of Justice, as Bobek also points out in his contribution to this symposium?
4. Quality
Referring questions to the Court of Justice (or the General Court, for that matter), means engaging in the judicial dialogue that is the keystone of the EU’s multi-level judicial system. A dialogue among equals, that differs from the judicial hierarchy that characterises the judiciaries of the Member States. As such, the General Court can and should be considered just as competent and well-equipped to give preliminary rulings as its bigger sister. Still, it will need supporting facilities that are (or will be) on par with those of the Court of Justice. In a similar vein, it will be interesting to see how the appointment of the General Court’s advocates general will play out; it is reassuring that they will be appointed for three-year terms, rather than on a case-by-case basis.
What matters most to national judges when it comes to preliminary rulings is their practicality with regard to the case pending before them and the cases to come. The answer from Luxembourg should be clear enough to be applicable in the pending case without much ado.1 Yet it should also be possible to abstract it,
1 This is, of course, the perspective of the national judge. The Court’s concern for the uniformity of EU law and the need for preliminary rulings to be workable in the other 26 Member States is equally important.
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so that it can be applied to related cases just as easily. And most importantly, without the need for ‘follow-up references’ that seek to clarify the scope and meaning of the original ruling.
Follow-up references have become more numerous in recent years. This is unavoidable, given the increasing complexity of EU law, the focus on individual assessments, and the Court of Justice maintaining the strict CILFIT-exceptions for national courts of final instance in Consorzio (C-561/19), against the advice of AG Bobek . In light of the strain that these references put on the Court’s capacity, Petrić has discussed extending the General Court’s jurisdiction in more areas of EU law, so that it can take on all follow-up references, and correspondingly limiting the Court of Justice’s competence to questions of principle. Such a distribution of labour would certainly be in line with the transformation of the Court of Justice into a constitutional court that some, like Bobek and Petrić have associated with the recent reform. We wonder whether this is desirable; but for now, let us wait and see how the current reform plays out in practice.
5. Outlook
Time will tell to what extent the transfer of jurisdiction to answer certain preliminary references will ease the workload of the Court of Justice and how it will be received by national courts. From the perspective of the national judge, reforms like the current one are desirable in principle. If the time it takes to answer a preliminary reference can be reduced, whilst maintaining the consistency of EU law and the quality of the rulings, we expect little objection from our colleagues. Practical questions remain, however, which will have to be dealt with when they arise. To sum up: the proof is in the pudding.
The views expressed in this contribution are strictly personal and do not reflect those of the Dutch Council of State.
SUGGESTED CITATION: Wissels, C. and Boekestein, T.; “‘The Proof is in the Pudding’: Some Thoughts on the 2024 Reform of the Statute of the Court of Justice from a Highest National Cour”, EU Law Live, 09/07/2024, https://eulawlive.com/op-ed-the-proof-is-in-the-puddingsome-thoughts-on-the-2024-reform-of-the-statute-of-the-court-of-justice-from-a-highest-national-court/
Corinna Wissels is state councillor (judge) at the Administrative Jurisdiction Division of the Dutch Council of State. Before joining the Council of State, she was head of the European law department of the Ministry of Foreign Affairs and responsible for the agents representing the Netherlands before the Court of Justice.
Tom Boekestein is legal secretary at the Commission for EU Law at the Administrative Jurisdiction Division of the Dutch Council of State. He is the author of ‘On the Interpretation and Application of the Essence of Rights in the EU Legal Order: Limits and Limitations’ (PhD Thesis), Cambridge 2022.
The (new) Role of the Advocate General at the General Court
Jonathan Wildemeersch
The core of the reform resulting from the Regulation of the European Parliament and of the Council of 11 April 2024 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (hereinafter referred to as the ‘Regulation’) is, by all means, the transfer of part of the jurisdiction for preliminary rulings to the General Court. This transfer brings an incidental but truly revolutionary change in the practice of the General Court: the obligation to designate an Advocate General in each preliminary ruling case to be dealt with by that court.
Anyone who is familiar with proceedings before the General Court knows that, unlike the Court of Justice, the former does not have Advocates General among its members. According to Article 254 TFEU, the Statute of the Court of Justice of the European Union (hereinafter referred to as the ‘Statute’) may nevertheless provide for the General Court to be assisted by Advocates General. However, until the entry into force of the Regulation, Article 49 of the Statute simply provides that ‘The Members of the General Court may be called upon to perform the task of Advocate General’ in respect of a particular case.
Interestingly, that possibility was only used at the beginning of the General Court’s existence, in the early 1990s (judgements of 24 November 1991, T-1/89 to T-3/89, of 17 December 1991, T-4/89 and T-6/89 to T-8/89, of 10 March 1991, T-9/89 to T-15/91). However, in the Court of Justice’s request of 30 November 2023, its generalisation to the preliminary ruling procedure is presented as one of the three procedural guarantees to be offered to national courts and to the parties to the main proceedings, the Member States and the institutions. This measure is likely to ensure a uniform approach in the treatment of references for preliminary rulings by the Court of Justice and the General Court. The other guarantees to that purpose are the allocation of such references to the specially designated chambers and the possibility for the General Court to sit in an intermediate-sized formation, i.e. between the chambers of 5 judges and the Grand Chamber composed of 15 judges.
What might have initially seemed like a minor aspect of the change of the competence of the General Court, has eventually become a major element of the reform. Whereas the request of the Court of Justice suggested to simply indicate the designation of the Advocates General in a recital 9 and under (3) of the new Article 50b of the Statute dedicated to the preliminary rulings of the General Court, the Regulation dealt with it in more meticulous way – it is now the subject of a detailed recital and a new article in its own right.
Strengthened in the course of the legislative process, both recital 19 of the Regulation and the future Article 49a of the Statute state that the General Court shall be assisted by one or more Advocates General in dealing with requests for a preliminary ruling transmitted to it. Moreover, the Judges of the General Court will elect from among their number the members who will perform the duties of an Advocate
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General. Those Judges will not sit in preliminary ruling cases during the period in which they perform those duties and they will belong to other Chambers that the one to which the case has been assigned. The Judges elected to perform the function of Advocate General will do so for a term of three years, renewable once only.
Regarding the role of the Advocate General, Article 49(2) of the Statute (unchanged) defines it in terms identical to those of Article 252(2) of the TFEU: ‘It shall be the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions’ on certain cases that require his or her intervention, i.e. cases that raise a new point of law. That provision is an application of Article 20(5) of the Statute that states that if ‘the case raises no new point of law, the Court may decide, after hearing the Advocate General, that the case shall be determined without a submission from the Advocate General’. This provision was made applicable to the General Court by Article 53(1) of the Statute. Therefore, not all the cases are adjudicated upon with Advocate General’s Opinion.
This limitation is expressly envisaged in the Court of Justice’s request of 30 November 2023. On the other hand, in any case, the appointment of an Advocate General ‘will contribute to the strength of the analysis carried out by that court, given that each case will benefit [as at the Court] from twofold consideration, as the examination of the case file by the Advocate General designated might usefully supplement, qualify or enrich the analysis carried out by the Judge-Rapporteur in his or her preliminary report’.
Those are the limits of this ‘guarantee’ and its usefulness.
Indeed, as already explained, the appointment of an Advocate General for preliminary ruling cases demonstrates a concern to overcome any reluctance to the reform on the part of the Member States. This obligation, which was presented from the outset as a ‘guarantee’ to ensure that preliminary ruling cases before the Court of Justice and the General Court will be dealt with in the same way, has been largely clarified in the course of the legislative process. However, it seems rather surprising to require the designation of an Advocate General for matters which have already given rise, in the words of recital 6 of the Regulation, ‘to a substantial body of case-law of the Court of Justice which is capable of guiding the General Court in the exercise of its jurisdiction to give preliminary rulings’ while the Advocate General is, in principle, called upon to deliver opinions only in cases raising a new question of law.
It is true that this criterion of the new question of law is not the only one that leads to an Advocate General’s Opinion. The complexity of the legal problem, the desirability of a reversal or a choice between two lines of case-law, the ‘political’ sensitivity of the question asked, all these criteria govern, at the very least informally, the decision to have the Opinion of an Advocate General. One may nevertheless wonder which of the preliminary ruling cases referred to the General Court will require an Advocate General’s Opinion. It is conceivable that, initially, the task of the Advocates General might be to summarise this ‘substantial body of case-law’ in order to make it easier for judges unfamiliar with these matters to assimilate it. However, does such a task require the election of several Advocates General – the number of which is not specified in the Regulation or, more surprisingly, in the General Court’s Rules of Procedure as amended following the adoption of the Regulation?
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Quite apart from these issues, a more fundamental difficulty relates to the ‘dual personality’ of the Judges called upon to play the role of Advocate General. The intellectual exercise is not the same, which explains why the General Court quickly abandoned this possibility in the past. Will the Judges/Advocates General manage to extricate themselves from their decision-making role in order to take a step back, which is necessary for a critical analysis? Will they be able to propose a possible reversal of case-law if needed?
While the integration of a new competence is undoubtedly a new challenge for the General Court, the institutionalisation of a hitherto unknown role is equally so.
* The opinions expressed in this article are purely personal to the author and in no way commit the institutions in which he works
SUGGESTED CITATION: Wildemeersch, J.; “The (new) role of the Advocate General at the General Court”, EU Law Live, 16/07/2024, https://eulawlive.com/op-ed-the-new-role-of-the-advocate-general-at-the-general-court/4
Jonathan Wildemeersch is Professor at the EU Legal Institute, University of Liège (Belgium) and Référendaire at the ECJ
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Transparency and Openness at the Court of Justice –Towards ex post Publicity of Parties’ Observations
Paul Dermine
Debates about the recent reform of the Court of Justice of the European Union have so far mainly focused on the transfer of preliminary reference jurisdiction to the General Court. This is only legitimate, considering how central and transformative this mechanism is. This should however not distract us from the fact that the recent amendment of the Court’s Statute does also include other important measures. Kieran Bradley’s contribution to this Symposium has examined the adjustments made to the appeal filter mechanism. This contribution focuses on another axis of the reform: increased transparency of the Court’s action, as primarily ensured through the publication of parties’ written observations.
The Regulation amending the Court’s Statute foresees that Article 23, devoted to the preliminary ruling procedure before the Court, shall be complemented by an additional paragraph reading as follows: ‘Statements of case or written observations submitted by an interested person pursuant to this Article shall be published on the website of the Court of Justice of the European Union within a reasonable time after the closing of the case, unless that person raises objections to the publication of that person’s own written submissions’. This is no less than a small revolution in the Union’s judicial universe. If judicial deliberations naturally remain secret, parties’ submissions will as a matter of principle no longer be confidential but will be made accessible to the public. Publicity will be ex post, and written observations will only be available once the case has been closed, which is welcome for the serenity of judicial proceedings and deliberations. For now, the measure is limited to preliminary ruling proceedings under Article 267 TFEU and does not cover other forms of direct action. Recital 4 of the Regulation justifies this choice by the fact that in such proceedings, ‘the Court of Justice is increasingly required (…) to rule on matters of a constitutional nature or related to human rights’. The measure will in contrast apply indiscriminately to all parties involved in Article 267 proceedings: private litigants intervening before the Court, EU institutions and Member States. Lastly, transparency naturally comes with exceptions, as parties are entitled to raise ‘objections’ (not further specified by the Statute) to the publication of their observations, which could therefore remain confidential.
This new transparency regime is noteworthy in several regards.
Institutionally, it reveals interesting dynamics. The measure did not originate from the Court itself: the initial request which opened the reform process did not include anything on transparency and access to written observations. The measure emerged later during the legislative process at the initiative of two members of the European Parliament: René Repasi, member of the SPD and professor of European law at Erasmus University Rotterdam, and Patrick Breyer, member of the Pirate Party, human rights activist and long-time promoter of government transparency. It was the only successful amendment of a longer series (including proposals on the development of an amicus curiae practice or the creation of
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a conciliation mechanism between the Court of Justice and national supreme courts). If anything, the episode is testament of the liveliness of the debates prompted by the reform project, the active contribution of lawmakers and their willingness to leave their mark on the Court’s future evolution. More fundamentally, this demonstrates that the Court is not in full control of its own institutional fate. On the contrary, as is the case for any organ of the political community, its prerogatives and internal organisation are largely shaped by the political and democratic will of the co-legislators and that of the Treaty drafters.
From a substantive perspective, it must be noted that ex post publicity of parties’ written observations had already been promoted in the literature and by certain actors within the Court. Most recently, Krenn had proposed that the Court’s ‘procedural and organisational law’ be adjusted along such lines. In a 2009 opinion already, AG Poiares Maduro had recommended that parties’ observations in closed cases be made publicly available except when ‘exceptional circumstances demand that secrecy be maintained’. This new transparency regime nonetheless marks an evident break with the Court’s past practice. The 2017 Breyer ruling made clear that access to documents does, as a matter of principle, cover ECJ submissions related to closed cases held by EU institutions. But the Court itself had never engaged in proactive disclosure measures. On the contrary, its own access to documents regime, set in a 2019 Decision, only covered administrative documents, and excluded judicial files.
The recent reform is a welcome and promising evolution. As the famous maxim goes, ‘justice must not only be done, it must also be seen to be done’. Together with other recent measures, and most notably the broadcasting of Plenary and Grand chamber hearings since 2022 (to be formalised and more clearly regulated through to the insertion of a dedicated provision in the Court’s rules of procedure), it undeniably contributes to making European justice more open, more accessible and more visible. As hinted at in Recital 4 of the Regulation, this increases the accountability of the Court, consolidates the legitimacy and authority of its decisions, and builds trust in the Union as well as in Union law. This evolution will undeniably bring the Court closer to the citizen and make judicial debates and the diversity of views defended before it more visible, thereby increasing the intelligibility of the Court’s reasoning and deliberative processes, to the benefit of all types of observers and commentators, and that of the public in general. This seems all the more warranted that the Court does not, for perfectly legitimate reasons, have a practice of separate (dissenting or concurring) opinions, and has long stopped publishing hearing reports. Last but not least, with this reform, the Court of Justice moves closer to the standard practice of other supranational judicial fora starting with its Strasbourg counterpart where, as provided by Article 40(2) of the European Convention of Human Rights, ‘documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise’.
At this stage, a certain number of questions remain. If the principle of transparency is now consecrated in the reformed Statute of the Court, the exact modalities of the regime still need to be agreed upon in the revised rules of procedure, which are yet to be published. The draft amendments submitted by the Court to the Council in March 2024 however offer certain interesting insights as to the direction discussions have been taking. Most importantly, parties objecting to the publication of their observations will not need to state their reasons. This stands in stark contrast with what the European Parliament had proposed: the initial amendment included a duty to state reasons and an exhaustive list of confidentiality grounds. The matter is now entirely left to the appreciation of the parties, and grounds would not be specified whatsoever.
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The role of the Court would be purely mechanistic, collecting objections without examining them, and publishing on its website the observations or a reference to the party’s objection. It should also be noted that, still following the Court’s proposal, objections will not be challengeable before the Court or the General Court. Objections will, as a matter of principle, need to be communicated to the Registry within three months after the closing of the case. Non-publication will not be irreversible, and parties will have the possibility to withdraw their objection. The system put forward by the Court may make practical sense, as the EU judicature may lack the time and resources to systematically examine the merits of the objections raised by parties. Moreover, it is true that the reform transforms the dynamics on the matter. Proactive disclosure is now the rule, and confidentiality will require a formal objection, which will be announced on the Court’s website. The public will thus know where parties, governments and EU institutions have chosen secrecy over transparency. However, the framework proposed by the Court will not prevent parties from systematically objecting the publication of their observations, without having to provide any form of justification, and without any remedy available. This would of course defeat the very purpose and spirit of the reform.
With this amendment on the publicity of parties’ observations, an important and welcome step towards increased transparency has been made. But as often, the devil is in the details and only time will tell how the practice develops and how frequently objections are raised by parties. Judicial openness remains an ongoing process.
SUGGESTED CITATION: Dermine, P.; “Transparency and Openness at the Court of Justice – Towards ex post Publicity of Parties’ Observations”, EU Law Live, 19/07/2024,https://eulawlive.com/op-ed-transparency-and-openness-at-the-court-of-justice-towards-expost-publicity-of-parties-observations/
Paul Dermine Professor of European Law, Centre de droit européen, Université libre de Bruxelles (Belgium)
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The Transplant of Procedural Rules from the Court of Justice to the General Court
Chiara Amalfitano
After almost 25 years since the Nice Treaty, and now 9 years after the amendments to the Statute which led to the doubling of the number of judges of the General Court (GC), the EU legislator, on the initiative of the Court of Justice of the European Union (CJEU), implements Article 256(3) TFEU, amending the Statute and transferring to the GC jurisdiction to hear and determine requests for a preliminary ruling ‘that come exclusively within one or several of the following specific areas: (a) the common system of value added tax; (b) excise duties; (c) the Customs Code; (d) the tariff classification of goods under the Combined Nomenclature; (e) compensation and assistance to passengers in the event of denied boarding or of delay or cancellation of transport services; (f) the system for greenhouse gas emission allowance trading’ (see Article 50b (1), italic added). The Court of Justice (CJ) ‘shall retain jurisdiction to hear and determine requests for a preliminary ruling that raise independent questions relating to the interpretation of primary law, public international law, general principles of Union law or the Charter of Fundamental Rights of the European Union’ (see Article 50b (2), italic added).
The reason that led the CJEU to implement Article 256(3) TFEU is the constant increase in the Court of Justice’s workload and the need to continue to fulfil its mission, consisting in ensuring, in a timely manner, ‘that in the interpretation and application of the Treaties the law is observed’, pursuant to Article 19(1) TEU. With the reform, the Court of Justice should increasingly establish itself as an apex judge in the new EU judicial architecture, ‘concentrate[ing itself] on the strategic development of the EU law’ (see T. Tridimas). And the reform – consolidating the ‘constitutional role of the Court of Justice’ (see S. Iglesias, D. Sarmiento; D. Sarmiento) – also allows in some way to justify a posteriori the reasons – at least the economic ones – for the 2015 reform of doubling the number of judges of the GC.
It is worth to recall that, with respect to the modifications proposed by the CJEU on the transfer of preliminary ruling jurisdiction and on the extension of the mechanism for the determination of whether an appeal is allowed to proceed, some other amendments to Article 23 of the Statute have been added (i) to allow a more systematic participation of the European Parliament (EP), the Council and the European Central Bank in preliminary ruling proceedings and (ii) to ensure transparency, through the publication on the website of the CJEU of the statements of case or written observations submitted by an interested person pursuant to Article 23 within a reasonable time after the closing of the case, unless objections are raised.
1. The Rationale of the Amendments of the Rules of Procedure (RoP) of the GC (and of the CJ)
The amendments to the Statute concerning the transferral of the preliminary reference jurisdiction to the GC have also made it essential to amend the RoP of the CJ and the RoP of the GC.
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With regard to the former (for the explanatory statements see here), there is a sort of ‘revival’ of the rules on review (de facto dormant after the repeal of the Civil Service Tribunal in 2016) in exceptional cases in which decisions given by the GC on questions referred for a preliminary ruling may cause a ‘serious risk of the unity or consistency of Union law’ (Article 256(3)(3) TFEU; see S. Iglesias) and a completion of that mechanism, in order to inform all the interested parties about the absence of the proposal (and its consequences) from the first Advocate General (AG) to review a decision (see new Article 193a). It has also been necessary to insert an ad hoc discipline on the mechanism of prior assessment by the Court of Justice of all questions referred for a preliminary ruling by national courts (the so called ‘guichet unique’: see new Article 93a) and provisions on the management by the Court of Justice of cases for a preliminary ruling which, having first been transmitted to the GC according to Article 50b(2) of the Statute and the new Article 93 RoP of the Court, are subsequently referred back to the Court by the GC pursuant to Article 256(3)(2) TFEU, i.e., when the latter considers that the case ‘requires a decision of principle likely to affect the unity or consistency of Union law’ (see new Article 114b; and, on this topic, D. Düsterhaus).
The procedural and organisational amendments of the GC’s RoP (for the explanatory statements see here) has been necessary, first of all, in order to provide national courts and the interested persons referred to in Article 23 of the Statute with the same safeguards as are applied by the Court of Justice when dealing with requests for a preliminary ruling, also inserting the rules for the election and designation of Advocates General in all preliminary ruling cases (Articles 31a and 31b) and for the composition and quorum of the new intermediate chamber (Articles 15a and 23a); secondly, in order to regulate the power of the GC to refer cases back to the Court of Justice in Article 256(3)(2) TFEU scenario (see Article 207(3)). In addition, considering that it is unlikely that the GC’s RoP will be amended again in the short term, supplementary amendments have been made to provisions not applicable to the preliminary references procedure: in particular, the changes aimed at simplifying and clarifying some provisions (see, e.g., Article 86 on the modification of application), at shortening certain parts of the procedure and furthering the digitalisation of procedures (see Article 56a on e-Curia), which reduces pressure on the Registry, enabling it to cope better with the additional workload caused by the transfer of the preliminary rulings jurisdiction to the GC (see also new Articles 107a and 216 on videoconference and Articles 110a and 219 – in parallel with new Articles 78 and 80a of the RoP of the CJ – concerning the broadcasting of hearings).
2. The Systematic Changes of the RoP of the GC concerning its Preliminary Reference Jurisdiction
The Legislator (CJUE+Council) decided to add a new Title to the RoP bringing together all of the rules applicable to references for a preliminary ruling (the new Title VI, composed by 47 Articles, from 196 to 242), with the exception of the rules for determining the language to be used, which fall under Title II (see modified Articles 45 and 46, modelled on Articles 37 and 38 of the RoP of the Court). Therefore, the choice was not to ‘copy’ the structure of the RoP of the Court of Justice and, aligning to it, to integrate certain rules applicable to direct actions with those governing references for a preliminary ruling so as to create a set of provisions common to direct actions and references for a preliminary ruling, followed by a Title containing rules specific to direct actions and a Title dedicated to references for a preliminary ruling.
The selected option enhances clarity and legibility (and consistency) to all parties involved in the preliminary ruling procedure, but also in direct actions considering that it allows the numbering of almost all the Articles to be retained and facilitates the implementation of the provisions not affected by the amendments (i.e., provisions concerning direct actions whose number, in average, is definitely higher –now esteemed 8 times higher – than that related to preliminary references).
In addition to these interventions specifically dedicated to the preliminary ruling procedure, there are organisational amendments to the current provisions of the I Title of RoP, due to the fact that preliminary ruling jurisdiction has been transferred to the GC (see, in particular, Articles 1(2), 3(3), 11, 23(3), 24, 26, 27). Moreover, as mentioned, the GC’s RoP have been amended with regard to procedural guarantees provided for in Article 50b(3) of the Statute to make the procedure before the GC similar to that before the Court of Justice, i.e., by the election and designation of an AG for each case referred to the GC for a preliminary ruling (art. 30(2), 31a, 31b), but also by the assignment of requests for a preliminary ruling to ‘specialised’ chambers (see Article 25) and by the creation of an intermediate chamber (see Articles 15a, 23a, 27(7); and also, with amendments concerning in a certain way also direct actions, Articles 17(2), 28 and 87(2)).
3. The Different Types of Transplant
With specific reference to the provisions devoted to the preliminary ruling procedure (which are clearly different from those on proceedings arising from direct actions), they are, as mentioned, 47 in the Title VI, dedicated to ‘References for preliminary ruling’, and 2, in the Title II, concerning the determination of the language to be used.
The mentioned choice of adding a new Title in the RoP, rather than (also) supplementing common provisions on direct actions and preliminary ruling procedure, determine different types of amendments. In this sense, it seems possible to identify 4 types of transplant: (i) provisions substantially identical to those of the RoP of the CJ, with at most some minor refinements considering that they are applicable to the procedure before the GC and not the CJ); (ii) provisions corresponding to those of the CJ’s RoP but with some additions due to the absence of common provisions; (iii) new provisions to compensate for the absence of common provisions; (iv) provisions on the necessary coordination with Article 256(3) TFUE, Articles 50b and 54 of the Statute and the corresponding CJ RoP’s provisions implementing this primary law.
In the first set of provisions, it is possible to mention (in the parenthesis the pertinent provision of the CJ’s RoP): Article 196, Scope (93); Article 199, Content of the request for a preliminary ruling (94); Article 200, Notice in the OJEU (21(5)); Article 201, Anonymisation and omission of data (95); 202, Participation in preliminary ruling proceedings (96); Article 203, Parties to the main proceedings (new 97); Article 204, Translation and service of the request for a preliminary ruling (98); Article 205, Lodging of procedural documents (57); Article 208, Joinder (54 (2)); Article 209, Stay and resumption the proceedings (55); Article 210, Measures of organisation of procedure (61-62); Article 212, Request for clarification (101); Article 220, Close of the hearing (81); Article 226, Reply by reasoned
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order (99); Article 227, Circumstances in which the GC remains seised (100); Article 228, Costs of the preliminary ruling proceedings (102); Article 235, Rectification of judgments and orders (103); Article 236, Interpretation of preliminary rulings (104). In this set of provisions fall also Articles 237 and 238 on the expedited procedure (105-106; the GC’s RoP does not contain provisions on urgent preliminary ruling procedure because there has been no transfer of jurisdiction with regard to the SLSG), Articles 239-242 on the legal aid (115-118) and the afore-mentioned Articles 45 and 46 on the language (37-38).
In relation to the second kind of transplant, the following provisions are relevant: Article 206, Preliminary report (modelled on Article 59 CJ’s RoP; see also Article 87 of this RoP); Article 214, Joint hearing (see also Article 106a of this RoP and Article 77 CJ’s RoP); Article 216, Participation in a hearing by videoconference (and also Articles 107a GC and 78 CJ); Article 217, Cases heard in camera (Articles 109 GC and 79 CJ); Article 218, Conduct of the hearing (Articles 110 GC and 78, 80 CJ); Article 219, Broadcasting of hearings (Articles 110a GC and 80a CJ); Article 221, Delivery of the Opinion of the AG (Articles 112 GC and 82 CJ); Article 222, Opening or reopening of the oral part of the procedure (Articles 113 GC and 83 CJ); Article 223, Minutes of the hearing (Articles 114 GC and 84 CJ); Article 224, Recording of the hearing (Articles 115 GC and 85 CJ); Article 225, Clear lack of jurisdiction or manifest inadmissibility (Articles 126 GC and 53 CJ); Article 229, Date of delivery of a judgment (Articles 116 GC and 86 CJ); Article 230, Content of a judgment (Articles 117 GC and 87 CJ); Article 231, Delivery and service of the judgment (Articles 118 GC and 88 CJ); Article 232, Content of an order (Articles 119 GC and 89 CJ); Article 233, Signature and service of the order (Articles 120 GC and 90 CJ).
In the third set of provisions are included: Article 197, Applicable provisions (of Title III relating to direct actions, which can be applied without adapting their drafting to preliminary references procedure); Article 198, Service; Article 211, Measures of inquiry (see Articles 91-92 GC’s RoP); Article 213, Hearing (modelled on Article 76 CJ’s RoP; see also Article 106 GC’s RoP); Article 215, Date of the hearing (see also Article 107 GC’s RoP); Article 234, Effect of judgments and orders (see also Article 121 GC’s RoP).
In the fourth and last slot of provisions can be traced Article 207, concerning referrals to the Court of Justice and to be linked with Article 127 of the same RoP, regarding referrals to the Court of Justice on the grounds of lack of competence in direct actions.
4. Some Observations on Certain Choices in the GC’s RoP
Space constraints allow, for now, only three brief reflections.
The first one concerns Article 226, which governs reply by reasoned order in the well-known cases of acte eclairé and acte clair. It will be interesting to verify the percentage of cases decided by the GC on the basis of this provision, if one considers that one of the criteria for choosing the areas to be transferred to its preliminary jurisdiction consisted in the fact that they were areas which have given rise to a ‘substantial body of case-law’.
Second, it will be equally interesting to verify the percentage of cases decided with the assistance of the AG. Perhaps, given his/her new role before the GC, and the reason why this figure has been regularly included in the procedure, it is possible to assume that, at least at the beginning, we will witness a more systematic
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delivery of Opinions, even if the condition set forth in Article 20(5) of the Statute is not strictly satisfied (and so even if the case does not completely raise new point of law).
Third, given the new procedure that the GC is called upon to handle, it would be preferable to have some flexibility in the management of the hearing (see J. Alberti): therefore, at least initially, it would be better to guarantee it systematically if requested by an interested person referred to in Article 23 of the Statute, in line with the approach provided for in Article 106 of the GC’s RoP for direct actions (instead of following a stricter interpretation of Article 213 in line with the corresponding Article 76 of the CJ’s RoP).
5. Challenges Ahead
Article 4 of the Regulation amending the Statute provides that it shall enter into force on the first day of the month following that of its publication in the OJEU, i.e., September 1st 2024. According to Article 2 of the same Regulation ‘Requests for a preliminary ruling made under Article 267 [TFEU] and pending before the Court of Justice on the first day of the month following the date of entry into force of this Regulation [i.e., October 1st 2024] shall be dealt with by the Court of Justice’. Moreover, some provisions of the GC’s RoP require implementation interventions by the GC itself (see Article 15a on the composition of the intermediate chamber; Article 25 on the criteria to make one or more chambers responsible for dealing with preliminary ruling requests; but also Articles 110 bis and 219 on broadcasting of hearings). Therefore, the reform should be fully effective and operational not before the end of 2024.
As already argued (see C. Amalfitano), in order to determine the success of the reform there is nothing left to do but wait: wait to see the trend of preliminary rulings on the areas listed in Article 50b(1) of the Statute to see how the guichet unique will work in practice and how the Court of Justice will interpret its new task; to see how the GC will be able to interpret and perform its new role, adapting its working method and internal organisation in order to ensure nomophilachy; to see how national courts will behave and how they will engage in dialogue with the GC, whether loyal cooperation will suffice for them not to be dissuaded from making reference for preliminary ruling in areas to be decided by the GC or for them not to force the questions for preliminary rulings in order to ensure direct dialogue with the Court of Justice; to see, moreover, if and how many cases will be referred back by the GC to the Court of Justice; to see, finally, how exceptional the review will be, which will probably represent the most relevant test to verify the resilience of the GC’s decisions and, ultimately, the success of the reform (on these topics see also C. Wissels and T. Boekestein).
From this perspective, Article 3(2) of the Regulation amending the Statute, provides that: ‘By [four years from the date of entry into force of this Regulation], the Court of Justice shall present a report to’ the EP, the Council and the Commission on the implementation of the reform of the Statute, setting out at least: ‘(a) the number of requests for a preliminary ruling received under Article 267 TFEU; (b) the number of requests for a preliminary ruling in each of the specific areas indicated in Article 50b (1) of the Statute; (c) the number of requests for a preliminary ruling examined by the [GC] and the specific areas referred to in Article 50b (1) of the Statute to which they related, and, where appropriate, the number of cases referred by the [GC] to the Court of Justice as well as the number of decisions of the [GC] that were subject to the review procedure laid down in Article 62 of the Statute; (d) the number and nature of the requests
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for a preliminary ruling that were not transmitted to the [GC] despite the fact that the legal framework of the case in the main proceedings came within one or several of the specific areas referred to in Article 50b (1) of the Statute; (e) the average length of time spent on dealing with requests for preliminary rulings under Article 50b of the Statute at both the Court of Justice and the [GC], on the verification procedure laid down in Article 50b (3) of the Statute, and on the review procedure laid down in Article 62 of the Statute; […] (g) information allowing an assessment of the extent to which the objectives laid down in this Regulation were achieved, having regard to the speed with which cases were dealt with and the efficiency of the examination of the most complex or sensitive appeals and requests for a preliminary ruling, in particular through increased exchanges with referring courts or tribunals under Article 101 of the [RoP] of the Court of Justice; […]’.
Where appropriate, the report shall be accompanied by a request for a legislative act to amend the Statute, which – according to new (and welcome) Article 62d of the Statute – will need to be preceded by a wide consultation ((including the scientific community and the national judges) on how and to what extent to revise the EU judicial system in the future. In this regard, it will important to guarantee that any reforms is carried out through a broad participation and in a widely shared manner and with prospects of stability (see already A. Tizzano, p 4).
The amendments could concern, in particular, the list of specific areas laid down in Article 50b(1) of the Statute (C. Amalfitano; T. Tridimas); and this means that, similar to what happened with respect to direct actions, a progressive extension of the areas to be transferred to the GC’s jurisdiction is possible, on the basis of the same guiding parameters that has driven the reform at stake (see recitals no. 6 and no. 7 of the Regulation amending the Statute1 or, possibly, in the light of practice, of other parameters. For sure, the amendments may also affect certain provisions of the RoP which, against the test of time, need some adjustment or integration (on the future of the reform see, in particular, M. Bobek).
SUGGESTED CITATION: Amalfitano, C.; “The Transplant of Procedural Rules from the Court of Justice to the General Court”, EU Law Live, 24/07/2024, https://eulawlive.com/op-ed-the-transplant-of-procedural-rules-from-the-court-of-justice-to-the-generalcourt/
Chiara Amalfitano is Professor of EU Law at the University of Milan and external legal expert with the Italian Task Force for the infringement procedures. She is the author of ‘The Future of Preliminary Rulings in the EU Judicial System’, in EU Law Live, Weekend Edition n. 133, 4 March 2023, pp. 2-13.
1 According to which ‘(6) For reasons of legal certainty, it is essential that the areas in which jurisdiction to give preliminary rulings is conferred on the General Court be clearly defined and sufficiently separable from other areas. Furthermore, it is also important that those areas be ones that have given rise to a substantial body of case-law of the Court of Justice which is capable of guiding the General Court in the exercise of its jurisdiction to give preliminary rulings. (7) The specific areas should moreover be determined taking into account the need to relieve the Court of Justice from having to examine a sufficiently high number of preliminary ruling cases so as to have a real impact on its workload’ (italics added). The initial proposal of the CJEU provided for a fourth parameter to identify the areas transferrable to the GC jurisdiction, the ones which ‘raise few issues of principle’.
Return of the Réexamen
Sara Iglesias
One of the major challenges of the 2024 Reform of the Statute of the Court is the potential impact that the disaggregation of the interpretative function of the preliminary ruling procedure may have on the unity of EU law. Amongst the safeguards foreseen by Regulation 2024/2019 bringing about the reform (see, generally, the previous Op-Eds in this Symposium by Takis Tridimas and Dominik Düsterhaus), the review procedure stands out as the ultimate clef de voûte. It furnishes an ex post curative avenue to reinstate coherence and remedy instances where the disharmony between the EU Courts may pose a serious risk to the unity and consistency of EU law, harming not only the credibility of the preliminary ruling procedure, but also that of the judicial guarantee of EU law as designed in the Treaties. In this regard, however, the reform is no reform at all: far from establishing a new mechanism, the reform regulation resorts to a procedural avenue designed and regulated ever since the Treaty of Nice.
The review procedure is a sui generis procedure, with quite unique features. Established in Article 246(2) and (3) TFEU, it exceptionally allows the Court of Justice to review the rulings of the General Court which are, in principle, final. Indeed, the review procedure was created by the Treaty of Nice as a corrective mechanism of ultima ratio for the situations in which the General Court was called to rule as a Supreme Court. This was the case when the General Court was acting as an appellate court to the Civil Service Tribunal and will now, for the first time, be the case when the General Court gives a ruling under the preliminary ruling procedure.
The peculiarities of the ‘review procedure’, commonly referred to in the EU jargon by its French denomination – réexamen –, are rooted in the ambitious designs of the Court of Justice. Indeed, the Treaty itself says little about this procedure, beyond emphasising its exceptional character. Paragraphs 2 and 3 of Article 256 TFEU foresee, for the two types of the review procedure, that the decisions of the General Court, both under its (deceased) appellate jurisdiction and its (new) preliminary ruling jurisdiction, ‘may exceptionally be subject to review by the Court of Justice … where there is a serious risk of the unity or consistency of Union law being affected’. These are the rather minimal criteria defined by the Treaty, upon which the Statute has built a new procedure with rather unusual features.
One may say that it is the Statute (and not so much the Treaty) that has granted the réexamen its unique character. The Statute defines not only the stages of the procedure, but also its actors and the effects of the review rulings. The trigger of the procedure is placed in institutional hands, as only the First Advocate General can ‘propose’ that the Court review a General Court decision within one month after its delivery (Article 62). The Statute also foreshadows the réexamen as an urgent procedure, preserving at the same time the possibility of the interested parties mentioned in its Article 23 to lodge statements or written observations (Article 62a). When it comes to preliminary ruling decisions handed down by the General Court, without overtly speaking about ‘suspension’, the Statute provides that the answers given by the General Court only take effect after the deadlines to trigger the review procedure have expired. Where
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a review procedure is opened, the ‘answers subject to review’ will take effect only at the end of such procedure, being eventually substituted by the answers given by the Court of Justice in case the proposal for a réexamen is upheld (Article 62b).
All these features make of the réexamen a procedure fraught with tensions, due to the multiple (and often contradictory) interests which it aims to address. Although it is not a remedy controlled by the parties, the parties do participate in the proceedings. Its ultimate objective is to ensure the unity and consistency of the EU legal order – aligning it with a procedure in the interest of the law. And yet, it does not however renounce to bringing the effects of the reviewed ruling onto the parties. Despite the high stakes and the inherent complexity of the cases that typically involve issues of principle, the procedure is designed to function with urgency at every stage.
These factors, already present in the text of the Statute, have not been modified by the 2024 Reform. Similarly, the regulation of the review procedure in the Rules of Procedure of the Court of Justice (Articles 191 to 195 thereof) has remained almost unchanged. A technical improvement has been introduced into a new Article 193a by the draft amendments to the Rules of Procedure, whereby it is foreseen that the Registrar will inform the General Court, the parties and the referring court that no proposal to review has been made by the First Advocate General, in order to communicate in a transparent way that the General Court’s decision has become final.
However, in spite of this apparent situation of continuity, the use of the réexamen procedure in the preliminary ruling ‘world’ introduces significant novelties and challenges. Before exploring these, it is necessary to consider the history of the réexamen, since the previous practice may contain the key to interpreting crucial aspects of this unique procedure.
During what we may call the ‘old school’ réexamen, there were sixteen instances in which the First Advocate General proposed to use the review procedure, out of which the Court reviewed six General Court decisions (M./EMEA, C-197/09 RX II; Arango Jaramillo, C-334/12/RX-II; Commission/Strack, C-579/12 RXII; Missir Mamachi di Luisgnano/Commission, C-417/14 RX-II; Simpson and HG, C-542/18 RX-II and C-543/18 RX-II). In one case, the First Advocate General proposed the review, without however considering that the decision of the General Court posed a serious risk for the unity or consistency of EU law, the reason for which the Court ruled that the formal requirements for triggering the réexamen had not been met (FV v Council, C-141/18 RX).
At first glance, the number (6 out of 16) suggest a high probability of having a case reviewed. However, this is not the case when considering the broader context: the pool of potentially reviewable cases was much larger. The General Court (previously known as the Court of First Instance) acted as appellate jurisdiction in over 300 civil service cases.
The views of the Advocates General and the rulings of the Court on the ‘successful’ reviews provide some guidance as to the situations in which a réexamen may be granted. For example, Advocate General Wathelet (view in Missir Mamachi di Luisgnano/Commission, C-417/14 RX-II, point 54) listed the four assessment criteria which could be drawn from the previous case-law as relevant to the determination of whether the unity or consistency of EU law was affected:
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‘– the judgment of the General Court may constitute a precedent for future cases;
– the General Court has departed from the established case-law of the Court of Justice;
– the errors of the General Court relate to a concept that does not pertain solely to the law relating to the employment of European Union officials but is applicable regardless of the matter at issue; and
– the rules or principles with which the General Court failed to comply occupy an important position in the European Union legal order’.
Interestingly, these criteria appear to have inspired the 2024 reform of the Statute, not so much by featuring in the rules governing the review procedure – which remain unchanged – but by becoming embedded into the design of the mechanism which allows the ‘specific areas’ to be identified and the specific cases to be transferred. Indeed, the existence of previous case-law, as well as the absence of questions of principle warranting the Grand Chamber’s involvement were decisive factors in identifying the ‘specific areas’. The criteria for ‘retained jurisdiction’ outlined in Article 50b of the Statute for ‘independent questions relating to the interpretation of primary law, public international law, general principles of Union law or the Charter…’ may be traced back to the idea of the ‘important position’ that a rule occupies in EU law. The ‘encapsulation requirement’ also seems to be inspired by the will to cover situations where the issues underlying the need for a review pertain to broader areas going beyond the ‘specific area’ of transferred jurisdiction concerned.
From this perspective, the réexamen procedure enhances the safeguards against inconsistencies, as its new scope of application has been already carefully delineated to minimise risks to the consistency and unity of EU law. This legal framework, far from being overcautious, is justified by the significantly different contexts in which the réexamen is called on in its ‘new age’.
First, applying the réexamen in the context of the transfer of jurisdiction in preliminary rulings considerably broadens its scope beyond the relatively contained area of EU staff cases. The review procedure will now be much more exposed and impactful, as the potential ‘clients’ of the réexamen now not only include EU civil servants, but also hundreds of national courts and litigants – potentially thousands of citizens since the preliminary ruling judgments settle the interpretation of EU rules beyond the specific case at issue. This a new reality puts under the spotlight the future role of parties in review procedures, considering that this reform might just be the beginning of a more general transfer of preliminary ruling jurisdiction towards the General Court.
Second, the review procedure has suffered from aggravated opaqueness in the past. Most of the Court’s decisions finding that the review could not proceed were limited in terms of their motivation and were not translated into all the official languages (with some exceptions, such as the decision in C-17/11 RX, Petrilli/Commission). The general effects of preliminary ruling decisions again speaks to a greater transparency and motivation of the decisions whereby the Court decides not to review a case: in cases where the First Advocate General proposes a review, which is then not been granted by the Court of Justice, sufficient motivation is needed in order not undermine the authority the preliminary ruling decisions of the General Court – since gaining trust from national courts is one of the crucial issues for the success of the reform (see the Op-Ed by Corinna Wissels & Tom Boekestein).
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Third, the expanded scope and diversity of cases to which this procedure will be applied necessitates a deeper reflection on the relationship between the two EU courts. It is precisely in this context where the Court has explicitly acknowledged the risk of establishing incorrect precedents as a key factor for triggering the review of decisions of the General Court, reinforcing the idea of vertical precedent. However, simultaneously, the transfer of jurisdiction in preliminary ruling procedures across various areas places material responsibility on the General Court, positioning it as the ultimate arbiter and interpreter of EU law in the specific domains concerned. This ‘new age’ of the réexamen provides an opportunity to reassess the jurisdictional interaction and hierarchy between both courts and the near-precedential value of Court of Justice rulings (as well as the precedential value of the General Court rulings in the ‘specific areas’).
Fourth, the practice of the réexamen will unfold in conjunction with the other ex-ante guarantees: the obligation of the General Court to remit the cases fall outside its jurisdiction (Article 54 of the Statute) and the possibility to refer cases back to the Court of Justice if it considers that the case requires a decision of principle likely to affect the unity or consistency of Union law (Article 256(3)TFEU). The more or less prolific use of the réexamen by the First AG and its success rate before the Court of Justice will gauge not only of the effectiveness of these safeguards but also of the overall framework for identifying specific areas, as well as of the ‘guichet unique’ system for allocating jurisdiction.
All in all, the exceptional character of this procedure and the case law of the Court applying the ‘old school réexamen’ make clear that this procedure is not bound to catch all the interpretative divergences that may emerge, but only those which raise crucial issues of principle. As already noted, the 2024 Reform of the Statute operates under the premiss that interpretative responsibility for the specific areas has shifted to the General Court and that, in this context, a certain level of dissonance may occur. The Court itself has confirmed that the existence of divergence in the case law, as well as the fact that the Court has not yet ruled on a specific issue, do not justify a review, since the case law in matters of civil service law was then solely for the Civil Service Tribunal and the General Court to develop (C-17/11 RX, Petrilli/ Commission, para. 4). Will this position be maintained in the ‘new age’ of the réexamen with regard to all the transferred ‘specific areas’? The heightened significance of applying the review procedure in the realm of preliminary rulings speaks to a careful consideration of the role of the réexamen and the interpretation of the criterion of the ‘serious risk of the unity or consistency of Union law’. This need is intensified by the evolving case law concerning the parallel – yet different – standard of addressing an ‘issue that is significant with respect to the unity, consistency or development of Union law’ in the framework of the filtering of appeals (see the Op-Ed by Kieran Bradley) – where a seemingly lower standard has been interpreted very restrictively. The criteria for the réexamen that follow from the previous case law, when applied in light of the peculiarities of the preliminary ruling procedure, may result in practice in a higher rate of reviewability. Even if the réexamen will remain exceptional, the precedential value that the preliminary ruling procedure enjoys by its very nature may more easily reach the threshold of seriousness considering that, as a general rule, ‘the judgment of the General Court may constitute a precedent for future cases’. ‘Old school’ wisdom will rest in place but adapted to the circumstances of the ‘new age’ – interpretative divergence may simply amount more often to a serious risk for the unity or consistency of Union law.
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SUGGESTED CITATION: Iglesias, S.; “Return of the Réexamen”, EU Law Live, 04/09/2024, https://eulawlive.com/op-ed-return-ofthe-reexamen/
Sara Iglesias is Professor of EU Law at the Universidad Complutense of Madrid and In-Depth/Weekend Edition editor at EU Law Live.
The
The Future will tell. Of Course it Will, but on What Criteria?
Michal Bobek
If there were one theme common to virtually all the contributions appearing in this Symposium, it would be the variously framed proposition that ‘the future will tell’. My personal favourite was the pudding (the proof of the pudding will be in its eating ). Indeed, at this stage, even if the text of the amended Statute and Rules of Procedure are already known, there are simply too many factors for anybody to make an advised estimation as to how the new system of division of jurisdiction on preliminary rulings between the Court of Justice (‘the Court’) and the General Court (‘GC’) will actually operate.
The fact that even professionals are not able to tell confirms the degree of discretion and the numerous variables inherent in the freshly designed system, particularly regarding who will ultimately decide a case, as well as when and how that decision will be made. Will a case stay with the Court, or will it be transferred to the GC? Will the GC relinquish its jurisdiction and send the case back to the Court once it opens the case file? Will there be a review of the final decision of the GC in a given case, and of what questions specifically? Beneath or beyond that are the more technical issues of the size of a chamber (not too small, while not too big, so what about an intermediate one?), the Opinion of an Advocate General and/or oral hearing (for settled questions in the areas of established case law?), and a myriad of further procedural considerations.
Concerns about the predictability and certainty of rules on jurisdiction, revealing such a flexibility, could perhaps be dismissed as a mere reflection of the ‘lawful judge’ obsession that is typical of a Continental national judge – an approach that is non-transferable to a supranational jurisdiction. Perhaps rightly so. However, it also exposes a deeper, inherent tension in the proposal itself, which I called ‘transferring without letting go’. I maintain my doubts about the appropriateness of such an institutional and procedural set up for the specific and unique preliminary rulings procedure, though there is no point of rehearsing the argument already offered in (2023) 60 Common Market Law Review 1515.
Moving on, this contribution shall focus on just one point: once the dust has settled, say in 10 years, by what criteria shall ‘the future will tell’ (whether the current reform has been a step in the right direction) be assessed? By that evaluation, I do not refer to the undoubtedly informative judicial statistics that will be submitted by 2 September 2028 under Article 3(2) of Regulation 2024/2019. That will certainly be an interesting read, but may not, at that stage, offer a complete picture. Instead, I refer to the structural and more qualitative impact that the splitting of the preliminary rulings procedure, in the manner just adopted, will have on the procedure itself, its nature and its legitimacy.
Certainly, that discussion could end up becoming somewhat circular, mirroring that already taking place now. To assess whether something was successful or not, there must first be agreement on the intended destination and the reasons for pursuing it. Equally, one has to agree on the acceptable costs of the
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expedition. It is especially within respect to the latter – on what constitutes acceptable costs – where views are more likely to diverge.
The primary objective of the reform was outlined in the original proposal of the Court of Justice of November 2022 (p. 3 and 4) and reiterated in the recitals to Regulation 2024/2019: achieving a more ‘equitable’ distribution of docket between the two EU Courts. However, this cannot be the sole criterion for evaluation. If it were, the reform is already a success. Regardless of whether the number will be 80 or 120 cases year, some cases will no doubt be handled by the GC, thereby lightening the Court’s burden. By this measure, mission accomplished.
On the other hand, the yardsticks set by my learned national judicial colleagues, C. Wissels and T. Boekestein, are not suitable benchmarks either. Although I cannot but agree that national judges would have little objection to a reform that (a) reduces the time to answer a preliminary reference, (b) preserves the consistency of EU law, and (c) maintains the quality of the rulings, fulfilling all three at once is, by definition, unrealistic. Splitting a jurisdiction between two instances (that is, with more persons and institutions involved), with the higher one retaining the ability to review the decisions of the lower one, inherently undermines criterion (b).
Having two instances can hardly be faster than having just one. Moreover, even if no review ever took place, the relative speed of handling a case at the Court has less to do with judicial resources; the greatest amount of time still tends to be spent on the translations of the various documents and interactions with the parties. That time will not be cut, even if the cases are spread across several courts, unless of course there is a corresponding increase in the number of staff, in particular translators. Realistically, therefore, the end result for criterion (a) is likely to be neutral, or with only a minimal overall decrease in time for just one instance, and considerable increase in cases of review.
What the contemplated specialisation at the lower level of the GG might perhaps bring in those specific areas, certainly in the longer run, is (c): the (sectoral) quality. Indeed, VAT aficionados might even be happier talking to other colleagues specialising in the same area. Yet, that again comes with the price tag of overall coherence and consistency of the case law, which simply starts developing differently in other areas.
Thus, while I have considerable sympathy for those criteria, it is only fair to acknowledge that if all three are expected to be met simultaneously, the current reform is, by definition, destined to fail. Through this lens, mission impossible.
Is there a middle ground? Can a ‘reasonable degree’ of uniformity be maintained even with a jurisdiction divided? If the European project is known for anything, it is the art of (an imperfect) compromise. Of course, such a system can work, somehow. It will just be a different kind of uniformity. As already mentioned, it will become sectoral. There might be more uniformity within a given specialised area of law (say VAT), but to the detriment of overall coherence and uniformity across other areas of EU law. Judges specialising in VAT are unlikely to also follow, on a daily basis, cases in environmental or competition law, not to speak of asylum, EAW and judicial cooperation in criminal matters, or even external relations, where similar issues or certainly legal principles might be developed. That is no reproach, it is simply natural. A national judge dealing with administrative law cases is equally unlikely to have the latest collection of court reports in civil or criminal matters on his or her bedside table, full of sticky notes (or at least I certainly do not).
So, by what criteria could one evaluate the current reform in, say, 10 years? As previously noted, it cannot simply be that ‘the Court offloaded some cases that nobody was particularly fond of’. Nor can we apply the orthodox criteria for evaluating preliminary rulings in one instance, as suggested by my learned national judicial friends. Perhaps, as is often the case, the best approach lies in a compromise: did the reform at least free up some significant resources for the Court without sacrificing too much of the integrity and legitimacy of the preliminary rulings procedure? Three sets of considerations, though by no means exhaustive, could play a role in this evaluation. Admittedly, they are pragmatic, guided by the acknowledgment that the yardstick for a fully ‘unitary’ preliminary rulings procedure cannot be entirely applied here.
First, resources are the stated alfa and omega of the reform and the only structural reason given. If the constant checking, ongoing checking, and re-checking will end up creating more work, it might not be a good way forward. Achieving uniformity in the case law will need to be balanced against the goal of freeing up resources. All eyes will be on the review procedure. How often the ‘review button’ will be pressed will certainly be important, but not the only consideration. The need for review could be mitigated earlier in the process, at the ‘guichet unique’, by ensuring that anything potentially problematic is not referred to the GC in the first place. But that would again defeat the only stated objective of the reform.
The tension between uniformity and available resources will resemble navigating between the metaphorical Scylla and Charybdis, with no clear-cut solutions. Escaping one will mean moving dangerously close to the other. Should the Court really let go and free maximum resources, it will come at the cost of uniformity. Conversely, if a more robust vision of uniformity is maintained, and therefore everything important kept at the Court, or later reviewed, then the entire enterprise will end up costing more in human resources than the reasonably re-adjusted previous system. Certainly, many of those additional resources will likely be clerical and administrative, not strictly speaking judicial. But that might represent a problem of its own.
The repeated mantra that, following the reform, the Court will be engaged only in ‘constitutional’ questions, whereas the ‘technical EU law’ will be for the GC, is a nice slogan, but not a jurisdictional criterion either. Any national system that has introduced Karlsruhe-styled individual constitutional complaint can confirm that there is simply no dividing line between a ‘constitutional question’ and ‘mere law’ in individual cases. The issues are fully transitive, certainly if fundamental rights are thrown into the mix as well. The only real criterion is the will of the ‘constitutional jurisdiction’ to pick up and to deal with a given case. Thus, self-restraint will be the key. But that again comes with costs in terms of uniformity.
Second, a crucial element will be maintaining the nature of the decision on preliminary ruling, which, at least in my view, ought to concern the interpretation of EU law set at a reasonable degree of abstraction (see here or here). It is fair to acknowledge, therefore, that requiring the GC to do something that the Court itself has, in the past, struggled with might be hypocritical. However, there is also no disguising that the current style of judgments of the GC is, much like any first-instance trial court, rather detailed and concrete. Moreover, a technical area of law, such as VAT, might be rather susceptible to more facts and detailed reasoning, eventually solving the individual case.
Third, it will be vital to maintain the delicate relationship between the Court of Justice of the European Union and the national courts and keeping the latter ones involved in the game. Diffuse dialogue between the Court and national courts meant that anything unresolved by the Court was left for the national courts. Equally, the national courts listened only to (formally) one voice, which they could address directly. Now
The 2024 Reform of the Statute of the Court of Justice of the EU
there will be a third player in the room. Certainly, the institutional and procedural set up adopted so far has been rather clear about that player not being given any independent voice, not to speak of a game of its own. But will that remain the case, particularly if further areas of law will be transferred in the future? Is that even reasonable or feasible?
A lot has been said about the national courts, especially the more senior ones, not being ready to enter in a dialogue with a junior court. I do not see that as an issue arising too frequently. In any case, if a national high court judge feels that she cannot talk to the ‘youngsters’, then she will just include one or two ‘constitutional’ questions in the order for the reference to remain ‘upstairs’. Moreover, I cannot but again agree with the proposition made by C. Wissels and T. Boekestein: most national judges are likely to be more interested in getting a clear, feasible, and above all final answer within a reasonable period.
The systemic shift might perhaps be more subtle: a privileged dialogue partner will be sent to talk to the ‘deputy’, because it is saying nothing of interest, as certified in each individual case. If, on top of that, there were more frequent opinion differences between both EU Courts in individual cases (back to the review issue), then national courts might, at a certain moment, stop feeling like dialogue partners, who are being assisted in solving concrete cases before them, but more like ‘cannon fodder’ for further development of the law and some abstract disputes happening in Luxembourg.
Finally, more resources available for dwelling on requests for preliminary rulings means more EU judicial centralisation and less space for the national courts themselves. The orthodox visions of a privileged partnership and the principle of attributed powers of the Union could posit that if there are areas of EU law which are ‘sufficiently clear’, owing to established case law of the Court, then all that remains is the application of that guidance by the national courts. What more is there to be developed by a third voice, if that division of powers it to be maintained? Further interpretation of the interpretation already given? Or will there be a third set, beyond or below interpretation and application? A slightly less important interpretation? A more abstract application?
But, as with everything else, the future will certainly tell…
SUGGESTED CITATION: Bobek, M.; “The Future Will Tell. Of course it will, but on what criteria?”, EU Law Live, 24/09/2024, https:// eulawlive.com/op-ed-the-future-will-tell-of-course-it-will-but-on-what-criteria/
Michal Bobek is president of chamber at the Supreme Administrative Court, the Czech Republic, and Visiting Professor at the Institute for European, International and Comparative Law, University of Vienna Faculty of Law. All views expressed are strictly personal to the author.
2024 Reform of the Court of Justice: Historical and Normative Underpinnings
Paul Craig
There is undoubtedly a paper to be written more generally concerning the historical and normative underpinnings of the division of jurisdiction as between the Court of First Instance/General Court and the European Court of Justice/Court of Justice for the European Union, from the very inception of the CFI. It would be an interesting and important paper. This is more especially so because while there was some pragmatic rationale for the division of jurisdiction as initially laid down in the Treaties and Statute of the Court of Justice, this served only as a partial explanation for the divide, the normative rationale being largely implicit and unspoken. The effluxion of time has done little to clarify matters in this respect, with further piecemeal change to the status quo ante, but little by way of deeper thinking as to the optimal divide between the two courts. There were to be sure the two valuable reports in 1999 and 2000, which canvassed reform options, more particularly directed towards preliminary rulings. There was, nonetheless, little by way of more root and branch consideration as to the practical and normative factors that should shape the general divide between the two EU courts. Nor was this forthcoming in the deliberations that led to the Constitutional Treaty, with scant time assigned for judicial reform, and deliberations that were closely circumscribed in terms of substantive scope and participatory input.
This brief op-ed will, however, be confined to the historical and normative underpinnings of the 2024 reform of the Court of Justice, and the decision to assign certain limited categories of preliminary rulings to the General Court. The focal point for this more specific analysis is the CJEU’s paper that it submitted to explain and justify the request submitted pursuant to Article 281 TFEU to amend Protocol No 3 on the Statute of the Court of Justice. We can discern the historical trajectory of the reforms, as well as the normative impulses that underpinned them.
We begin with the historical trajectory. The story as told in the request submitted by the Court was as follows. The Nice Treaty established for the first time the possibility that certain categories of preliminary rulings could be transferred to the General Court, to prevent the CJEU from being overloaded with requests for such rulings. However, this was not acted on in the early years of the new millennium. This was in part because priority at that time was accorded to establishment of the European Union Civil Service Tribunal. It was in part because priority was also given to the transfer to the General Court of the great majority of actions for annulment, except for some interinstitutional actions and actions brought by Member States against acts of the Union legislature. A further reason given as to why the power in the Nice Treaty was not triggered at that time was because the CJEU engaged in procedural reforms that reduced the length of time for preliminary rulings and hence reduced the case load pressure on the Court.
The historical trajectory also furnishes the CJEU’s explanation as to why it did not submit such a request in 2015-2017 when reform to the General Court was being considered. The rationale given by the Court
The 2024 Reform of the Statute of the Court of Justice of the EU
was that such a transfer was not needed at that juncture. This was because the time taken for preliminary rulings had been further reduced to 15 months, and because the reforms to the General Court were still ongoing, as manifested in the fact that not all the new cadre of General Court judges had been appointed. This led naturally to the historical explanation as to why the reform proposal was advanced five years later. The Court’s request identified two factors in this regard. There had been an upward increase in the trajectory of preliminary rulings, and in the complexity of the cases referred, which led in turn to increased time to deliver judgments in such cases. The reforms to the General Court had been completed, with the consequence that it now had the full complement of 54 judges and could therefore take on further work. The time was therefore ripe to activate the Nice Treaty power to assign categories of case to the General Court.
We now turn from the historical to the normative dimension of the inquiry. The overriding normative imperative that emerges from the Court’s request, although not stated in these terms, was that while the Nice Treaty power should be activated, it should nonetheless be closely confined. This is readily apparent from the outset of this part of the Court’s request, where it emphasised that the power in Article 256(3) TFEU was not to grant the GC a general jurisdiction, but merely authority to allow it to give preliminary rulings in specific types of case. The overriding normative imperative is further evident in the criteria that informed the choice of the specific areas. There were four such criteria specified: the areas should be discrete, separable from other areas of EU law and readily identifiable from the request for the preliminary ruling; the specific areas should raise few issues of principle; there should be abundant existing CJEU case law to guide the General Court; and the areas should have a sufficiently high number of cases, such that the transfer of preliminary rulings to the General Court would make a difference to the CJEU’s workload. It was on the basis of the preceding criteria that the CJEU identified six areas in which authority to give preliminary rulings would be assigned to the GC: the common system of value added tax, excise duties, the Customs Code and the tariff classification of goods under the Combined Nomenclature, compensation and assistance to passengers, and the scheme for greenhouse gas emission allowance trading. It was estimated that this would thereby reduce the CJEU’s preliminary ruling workload by 20%.
The normative imperative identified above, whereby the power in the Nice Treaty should be triggered but closely confined, was further evident in the substantive and procedural conditions for dealing with such cases.
In substantive terms, all requests for preliminary rulings continue to be made to the CJEU, which decides if the case falls exclusively within an area assigned to the GC. If the case fell within such a subject matter area, but also entailed other issues, relating to the interpretation of primary law, public international law, general principles of Union law or the Charter of Fundamental Rights of the European Union, it would be decided by the CJEU. The Court’s request also emphasised the continuing importance of the power in Article 256(3) TFEU, whereby the GC could refer a case to the CJEU if it required a decision of principle likely to affect the unity or consistency of Union law, and the possibility for the CJEU to review the decision of the GC where there is a serious risk of the unity or consistency of Union law being affected.
The 2024 Reform of the Statute of the Court of Justice of the EU
In procedural terms, the effect of the reforms is very much to shape the GC as a surrogate for the CJEU when deciding such cases. This is readily apparent from the procedures mandated for the GC in such cases. It must sit in specialised chambers when hearing such cases; it must nominate one of the GC judges as an Advocate General, subject to the same caveat as applies when cases are heard by the CJEU, which is that an AG can be dispensed with if the case raises no new point of EU law; and the GC should have the possibility of sitting in a formation greater than 5, albeit less than the 15 judges of a Grand Chamber.
As noted by Michal Bobek in his previous op-ed in this symposium, time will tell how the new reform works. It is however clear from both the historical and normative underpinning of the 2024 reform that the CJEU regards the changes as relatively interstitial and marginal, and that they should not call into question broader issues concerning the jurisdictional divide between the CFEU and GC.
SUGGESTED CITATION: Craig, P.; “2024 Reform of the Court of Justice: historical and normative Underpinnings”, EU Law Live, 02/10/2024, https://eulawlive.com/op-ed-2024-reform-of-the-court-of-justice-historical-and-normative-underpinnings/
Paul Craig , Emeritus Professor of English Law, St John’s College, Oxford.
