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.