The Week
22-26 July 2024
ISSUE Nº35
Single Resolution Board
In te rnal Judicial Independence Cour
TABLE OF CONTENTS
IN-DEPTH:
Article 8 (2) Directive 2011/83/EU and the Paradox of Conny (C-400/22)
Filippo Morello
Do the Resolution Schemes Adopted by the Single Resolution Board Really Conform with the ‘Meroni Doctrine’?
Phedon Nicolaides
Reshaping national Judiciaries under Article 19(1) TEU: the Grand Chamber’s Decision in Hann-Invest
Davor Petrić and Nika Bačić Selanec
AG Emiliou’s Opinion in Kubera: Articles 267 TFEU and 47 of the Charter reinterpreted in the light of national filtering mechanisms
Sasa Sever
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU
The Transplant of Procedural Rules from the Court of Justice to the General Court
Chiara Amalfitano
HIGHLIGHTS OF THE WEEK
IN-DEPT H
Article 8 (2) Directive 2011/83/EU and the Paradox of Conny (C-400/22)
Filippo Morello
1. The Facts and the Question
The judgment of the Court of Justice of the European Union in the case VT, UR v. Conny, C-400/22, of 30 May 2024, originates from a dispute before a German court of appeal (Landgericht Berlin) between a landlord of a house rented to a consumer and the debt collection agency which had taken up the consumer’s restitution rights vis-àvis the landlord. German law provides for ceilings on rents for residential purposes, which allow tenants to sue the landlords for repayment of amounts paid in excess of the ceiling. Consumers’ inertia or unwillingness to claim these payments themselves is the fortune of debt collection agencies like Conny. In the case in question, after the consumer had signed an online agreement with Conny, the agency took over the repayment credits in exchange for a fee that depended on the success of the debt collection. The agency also took on the power of attorney to sue the landlord-debtor if necessary. The fee amounted to one-third of the annual rent if the claim was successful, plus, in case a letter of formal notice had to be sent to the landlord, the equivalent of a lawyer’s fee according to the remuneration scheme under German law. The landlord refused to pay Conny, so the matter was settled by a court of first instance, which ordered the landlord to revert the undue payments. The landlord appealed against this decision to the Berlin Court of Appeal, arguing that the contract between the tenant and Conny was null and void under Section 312j(3)(4) BGB. In short, para. 3 sets forth that, in case of an e-commerce contract that entails an obligation to pay by the consumer, the service provider must make sure that the consumer acknowledges explicitly her contractual undertaking; where the contract is concluded by pressing a button, the interface must bear the warning ‘order with obligation to pay’ or a likewise formulation. Para. 4 posits that the breach of para. 4 prevents the e-commerce contract from being formed altogether. The provisions accurately transpose Article 8(2) Directive 2011/83/EU on consumer rights (Consumer Rights Directive, hereinafter CRD), although in the latter the breach results in the consumer not being bound by the contract or order. As long as the contract between Conny and the landlord failed to comply with the formalities required by § 312j (3) (4) BGB, Conny’s action in restitution had no grounds, according to the landlord. Conny resisted the argument, claiming that Article 8(2) CRD did not apply to a conditional payment obligation. The Landgericht referred the matter to the Court of Justice.
2. Conditional Obligations fall under Article 8 (2) CRD
The Court’s answer is simple: conditional payment obligations imposed on the consumer, where the condition is outside the consumer’s control, are covered by Article 8(2) of the Directive. In order for an online contract requiring a similar payment by the consumer to be binding, the service provider must have adequately informed
the consumer of his obligations and included an explicit risk warning on the button used to sign the contract. The result is reportedly not in line with the case law of the German Federal Court of Justice (BGH), which is briefly referred to in paragraph 23 of the judgment but is alluded to by the referring court (para. 25 of the judgment), the Advocate General (para. 29-48 of the Opinion, AG Pitruzzella) and even the European Commission, which intervened in the case (paragraph 40 of the Opinion, AG Pitruzzella).
The Court convincingly develops the argument by means of three consolidated methods of interpreting EU law: literal, teleological and systematic. First, the Court considers that the expression ‘obligation to pay’ in Article 8(2) CRD must be understood as covering all types of obligations, whether conditional or unconditional. As the Commission points out, if the EU legislator had intended to limit the scope to obligations already due at the time of the conclusion of the contract, it would certainly have done so in a clear manner (para 40, Opinion, AG Pitruzzella). The literal interpretation also relies on the word ‘imply’ in Article 8(2) of the Directive, which is the basis for the Court’s assertion that the obligation need not necessarily be due at the time of the conclusion of the contract (para. 47-48 of the judgment). The teleological and systematic interpretations point to the same solution. The Directive’s objective of effective consumer protection, the need to ensure that consumers knowingly undertake to pay for services, and the insidious practice of making customers pay only if the promised result is achieved, particularly in online environments, suggest that no distinction should be made between conditional and unconditional payment obligations. The Court’s reasoning in this respect is linear and immune from criticisms.
3. Consumer remedies against the consumer’s interest
Conny does not have to do with a consumer contract between the claimant (the creditor-agency) and the defendant (the debtor-landlord) or between the latter and the tenant. Nor is there any consumer restitution involved. The CRD is in the spotlight because the landlord questions the validity of the transfer of the credit and the power of attorney granted to the collection agency. What makes the case interesting, beyond the strict legal principle, is, therefore, the application of consumer remedies in a general private law dispute. The paradox here is that the CRD remedy is cleverly used to counter the tenant’s claim for restitution to the detriment of the consumer herself. In fact, the consumer has expressed her preference to keep the contract in force in order to recover the undue payment to the landlord (para. 55 judgment; para. 49-61 Opinion, AG Pitruzzella).
This finding gives rise to two observations. First, with regard to admissibility, it may be doubted whether the Court actually has jurisdiction to rule on a consumer law issue arising in a non-consumer dispute. The judgment rejects the objection in paras. 32-35, where it states that the Landgericht raises a question of interpretation of EU law, which enjoys a presumption of relevance before the Court, and that the national court, when asked by the Court itself, has ascertained that ‘the national legislation at issue in the main proceedings allows a third party to challenge the validity of an agency contract concluded between a consumer and a trader where, on the basis of that contract, the trader has brought an action on behalf of that consumer against that third party’.
Secondly, in order to avoid such an instrumental –not to say unfair– recourse to consumer remedies, the Court states in para. 55 states that ‘the present judgment is without prejudice to the possibility that [..] the consumer may decide to maintain the effects of a contract or order which, until then, was not binding on him or her [..]’. It is not clear from the case file, including the AG’s Opinion, whether German law actually allows consumers to waive the protection of Section 312j(3)(4) of the BGB and how the consumer is expected to participate in the dispute and express this preference. In paras. 52-53 of his Opinion, the Advocate General solves the problem by drawing a parallel with unfair terms under Directive 93/13/EEC: just as consumers can opt out of the protection against unfair terms if they so choose, the same option should be granted under Article 8(2) of the CRD. However, this view ignores a fundamental difference between the two remedies. While in the German system, as in many others, unfair terms are sanctioned by partial nullity, Section 312(4) of the BGB, unlike other corresponding provisions in national legal systems, provides that the breach of the required formalities prevents the formation of the contract. This is significant because it shows that there is no universal remedy in consumer law. Moreover, the fact that the consumer’s will plays a key role in the protection against unfair terms does not mean that all consumer remedies can be waived or renounced, regardless of what national law provides. This makes the Conny paradox all the more striking: there is no evidence that the consumer’s interest actually prevails over the consumer remedy before the referring court.
Filippo Morello is a Research Fellow and Adjunct Professor of Comparative Law at the University of Pisa.
Morello, F.; “Article 8 (2) Directive 2011/83/EU and the Paradox of Conny (C-400/22)”, EU Law Live, 22/07/2024, https://eulawlive.com/op-ed-article8-2-directive-2011-83-eu-and-the-paradox-of-conny-c-400-22/
Do the Resolution Schemes Adopted by the Single Resolution Board Really Conform with the ‘Meroni Doctrine’?
Phedon Nicolaides
Introduction
According to Article 263 TFEU, natural or legal persons may challenge any measure or act of an EU institution that is addressed to them or is of direct and individual concern to them. For a measure or act to be challengeable, it must produce legal effects which can bring about a change in the legal position of a person (C-551/22 P, Commission v SRB, para. 65). In order to produce legal effects, the acts of EU agencies must, among other things, respect the principles of delegation of power, first, enunciated in landmark judgment in case C-9/56, Meroni v High Authority.
On 18 June 2024, the Court of Justice of the European Union ruled that schemes adopted by the Single Resolution Board [SRB] for the resolution of financial institutions are not challengeable acts until they are ‘endorsed’ by the European Commission. It is then when they produce binding legal effects [para. 89]. Once they are endorsed, it is the Commission, not the SRB, which is responsible (C-551/22 P, Commission v SRB, paras. 80 & 88).
This important judgment which concerned the resolution of Spain’s Banco Popular is reviewed by Marco Bodellini and Giulio Giacomo Cimini. The purpose of this Op-ed is to argue that certain components of resolution schemes may not conform with the principles emanating from Meroni
The Meroni Principles
The Meroni doctrine is well known. However, it is instructive to recall what the Court said in Meroni in addition to the kind of powers that may be delegated to agencies. In its 1958 judgment, the Court, first, noted that Article 3 ECSC laid down distinct and ‘very general’ objectives which may not be ‘simultaneously pursued in their entirety in all circumstances’. (p. 151 of the judgment). That observation meant that trade-offs between the different objectives was inevitable. Indeed, ‘the High Authority must permanently reconcile any conflict which may be implied by these objectives when considered individually, and when such conflict arises must grant such priority to one or other of the objectives … as appears necessary having regard to the economic facts or circumstances in the light of which it adopts its decisions (p. 152).
The Court then made the famous statement that has been repeated in countless judgments since then: when delegation of powers ‘involves a discretionary power, implying a wide margin of discretion … it replaces the choices of the delegator by the choices of the delegate, brings about an actual transfer of responsibility’ (p. 152).
Next, the Court examined the tasks of Brussels agencies in managing the price of ferrous scrap metal and found that they had ‘a wide margin of discretion’ because ‘objective criteria whereby their decisions may be formulated are lacking’ (p. 153).
Lastly, it also found something else that is rarely ever mentioned in the subsequent case law but that is relevant for the conclusions of the Court in the case of Commission v SRB: ‘In reserving to itself the power to refuse its approval, the High Authority has not retained sufficient powers for the delegation resulting from Decision No 14/55 to be contained within the limits defined above. … the High Authority has made it clear that it “adopts the data furnished by the Brussels agencies without being able to add anything thereto”’ (p.154). Therefore, endorsement of the decision of an agency by the Commission is clearly not sufficient, if the Commission cannot amend that decision.
The relevant principles that arise out of Meroni are the following:
1. Balancing of potentially conflicting policy aims, in the absence of objective criteria, requires wide discretion.
2. The exercise of wide discretion requires delegation of discretionary power.
3. Delegation of discretionary power is incompatible with the Treaty.
4. Endorsement of decisions of agencies by the Commission, without the possibility of amending them, is not sufficient to ensure the legality of the delegation of powers.
These four principles are instrumental in helping us appreciate the significance and the gaps in the judgment in the case Commission v SRB.
Does the SRB exercise Discretionary Powers entailing a wide Margin of Discretion?
The answer is unequivocally in the affirmative.
Article 18 of Regulation 806/2014 on the recovery and resolution of financial institutions [SRMR] empowers the SRB to determine whether resolution is in the public interest. Before it decides whether a resolution is in the public interest, the SRB must find out whether for the financial institution concerned ‘there is no reasonable prospect that any alternative private sector measures, …, would prevent its failure within a reasonable timeframe’ (Article 18(1)(b)). These objectives are both broad and with undefined boundaries.
A resolution is in the public interest if it meets one or more of the objectives which are defined in Article 14(2) SRMR. Those objectives, like those identified by the Court in Meroni, are very general, distinct and possibly conflicting. For example, one of those objectives is ‘to avoid significant adverse effects on financial stability, in particular by preventing contagion’ while at the same time the SRB should ‘protect public funds by minimising reliance on extraordinary public financial support’. Preserving financial stability may require large amounts of public financial support.
Furthermore, according to Article 22 SRMR, the SRB can determine which ‘resolution tool’ may be used in each case in order to achieve the objectives of Article 14 SRMR and in conformity with the principles laid down in Article 15 SRMR. Conformity with the principles in Article 15 also requires the exercise of discretion because, for example, the SRB must ensure that ‘no creditor shall incur greater losses than would have been incurred if an entity … had been wound up under normal insolvency proceedings’.
Given these policy objectives and tasks, it is not surprising that recital 24 of the SRMR recognises that ‘a margin of discretion remains in the adoption of each specific resolution scheme’.
Therefore, the Court was right to conclude, in paragraph 69, that the SRB had to enjoy wide discretion because the objectives and tasks defined by the SRMR were general and could require balancing and trade-offs.
What are the Consequences of the exercise of a Wide of Discretion by the SRB (or any EU Agency)?
First, it should be noted that recital 26 of the SRMR acknowledges that in order for the SRB to carry out its tasks it must have ‘operational independence’, given the general policy objectives defined by Article 14 SRMR. This independence, however, can be exercised legally only by ‘respecting the principle of delegation of powers to agencies’. Therefore, the purpose of Article 18 SRMR is to prevent the transfer of responsibility. Schemes adopted by the SRB must be endorsed by the Commission and/or the Council. As the Court held in paragraph 80 of the present judgment, resolution schemes enter into force after they are endorsed by the Commission which must ‘fully assume [its] responsibilities’.
Second, a resolution scheme adopted by the SRB produces binding legal effects and becomes challengeable under Article 263 TFEU only after it is endorsed by the Commission with the result that it is the Commission, and not the SRB, that must answer for that resolution action before EU courts (para. 88).
It follows that an aggrieved shareholder or creditor who is bailed-in should initiate action against the Commission. It also follows that any financial institution should initiate action directly against the SRB only for those decisions of the SRB that do not require endorsement by the Commission. Those are the decisions on issues over which the SRB has ‘clearly defined executive powers the exercise of which can, therefore, be subject to strict review in the light of objective criteria determined by the delegating authority’ (para. 70 of the present judgment and p. 152 of the Meroni judgment).
Two important questions arise at this point. The first is whether the Commission assessed all the contents of the scheme that had been adopted by the SRB. The second is whether decisions of the SRB that do not require prior endorsement by the Commission are subject to strict review in the light of objective criteria.
Did the Commission assess the Whole of the Resolution Scheme adopted by the SRB?
Resolution schemes are adopted in extremely short periods of time in order to prevent the disorderly collapse of a bank and possible contagion of the rest of the financial system. The present judgment provides an illustrative
summary of the events leading to the adoption of the resolution scheme. On 6 June 2017, the ECB notified the SRB that Banco Popular was failing or likely to fail. The SRB adopted the resolution scheme on 7 June 2017. The scheme was then submitted to the Commission at 5.13 a.m. on 7 June 2017. The Commission endorsed it at 6.30 on the same day in Decision 2017/1246. Did the Commission have sufficient time to scrutinise all the details of the scheme?
The General Court answered this question in another case which also dealt with the resolution of Banco Popular ( T-510/17, Antonio Del Valle Ruiz v Commission & SRB). The General Court explained that the Commission had knowledge of the resolution scheme before it was formally submitted to it. In accordance with Article 43 SRMR, the Commission designated a representative who participated in the meetings of the SRB as a permanent observer and had access to all documents. The General Court concluded that that ‘the Commission is informed and associated with the preparatory phases leading to the adoption of a resolution action. … the Commission … has sufficient time, during the preparation of the scheme, to assess its discretionary aspects’ (T-510/17, para. 231).
Whether the formal Commission position can be based on the assessment of a representative official is an issue that merits further investigation but cannot be more meaningfully assessed without having access to information concerning the internal deliberations within the Commission.
Apart from the question whether the Commission has sufficient time to assess the discretionary aspects of a resolution scheme, especially in case of last-minute amendments to the scheme as the condition of a resolved bank normally deteriorates day-by-day, it is also very unclear how the Commission carries out that assessment. Since, by definition, the exercise of discretionary powers cannot be reviewed on the basis of objective criteria, does the Commission endorse the analysis of the SRB when it does not detect any manifest error, or does it carry out its own analysis and endorses the SRB decision when its own results coincide with those of the SRB? There is no case law to shed light on this issue.
A related issue is whether the endorsement of the Commission covers all aspects of the resolution scheme which depends on the exercise of discretion by the SRB. In the case of Banco Popular, in addition to Articles 1, 5, 6, 7, 9 and 10 of SRB Decision SRB/EES/2017/08, by which the SRB a) ‘decided’ to resolve Banco Popular, b) defined the resolution tools to be applied, c) instructed the Spanish resolution authority – FROB – to take all necessary measures and d) stated that it would monitor the resolution process, the Decision also stipulated, in Article 11, that it allowed the SRB to amend or update the Decision at ‘anytime deemed appropriate by the SRB’.
No endorsement by the Commission is required for subsequent amendments. Indeed, in March 2020, for example, the SRB decided that shareholders were not entitled to compensation from the Single Resolution Fund. This Decision, SRB/EES/2020/52, was not endorsed by the Commission. The Decision was largely based on Article 20 SRMR concerning the valuation of the assets and liabilities of Banco Popular. The SRB assigned the valuation to Deloitte who acted as an independent expert. However, in accordance with Article 15 SRMR, the SRB also had to decide whether shareholders and creditors would not be worse off than under liquidation. In adopting this Decision did the SRB exercise purely executive powers?
Are the Decisions of the SRB that do not require prior Endorsement by the Commission based on objective Criteria?
A fundamental aspect of Meroni is that delegation of executive powers is compatible with the Treaty when it can be reviewed according to objective criteria. It falls outside the scope of this short Op-Ed to examine which provisions of the SRMR, that has 99 articles spanning 90 pages, are based on discretionary assessment and which are based on objective criteria.
It is sufficient to point out, for example, that Article 29(2) SRMR on the implementation of decisions, empowers the SRB to intervene in case the national resolution authority does not comply with a decision. Then the SRB may have to adjust the resolution scheme in light of the events that will have transpired. In this instance, the SRB only has to ‘notify’ the Commission ‘of the measure it intends to take’. The Commission’s endorsement is not required.
Therefore, the endorsement of the Commission does not cover all components of a resolution scheme that may have to be implemented or modified at a future date.
Conclusions
In order for decisions of the SRB to conform with Meroni they must be endorsed by the Commission and/or the Council. It is only after they are endorsed that they produce binding legal effects which can be challenged under Article 263 TFEU. It is then the Commission or the Council or both that are accountable before the Court of Justice.
The discretion which is necessarily afforded to the SRB by the SRMR is very broad despite the fact that resolution decisions must aim to achieve certain specified objectives such as to serve the public interest by protecting financial stability. It is for this reason that resolution schemes have to be endorsed by the Commission and/or the Council.
However, endorsement is not required for amendments to the initial resolution scheme. Nor is it required for the implementation of provisions of the SRMR other than the adoption of a resolution scheme. It is uncertain whether such provisions involve only the exercise of executive powers which can be reviewed on the basis of objective criteria.
Phedon Nicolaides is Professor at the University of Maastricht and the University of Nicosia.
Nicolaides, P.; “Do the Resolution Schemes Adopted by the Single Resolution Board Really Conform with the ‘Meroni Doctrine’?”, EU Law Live, 23/07/2024, https://eulawlive.com/op-ed-do-the-resolution-schemes-adopted-by-the-single-resolution-board-really-conform-with-the-meronidoctrine/
Reshaping national Judiciaries under Article 19(1) TEU: the Grand Chamber’s Decision in Hann-Invest
Davor Petrić and Nika Bačić Selanec
On 11 July 2024, the Court of Justice has delivered its eagerly awaited judgment in Hann-Invest (Joined Cases C-554/21, C-622/21 and C-727/21), the first case concerning the state of rule of law and independence of the judiciary in Croatia. Contrary to the Opinion of Advocate General Pikamäe, the Court’s Grand Chamber ruled that Article 19(1) TEU must be interpreted as precluding the Croatian judicial mechanism for ensuring consistency of case-law of second-instance courts and the Supreme Court. In the national judicial architecture, this mechanism enabled that judgments of a deciding judicial panel are vetted and possibly blocked by internal judicial administration, essentially composed of two aspects: first, a court’s ‘registrations judge’ who is – sitting outside the deciding panel – assigned to monitor the coherence of judgments leaving the court’s docket; and second, the court’s extra-procedural section meeting of all judges, empowered to issue abstract ‘legal positions’ binding on the court’s individual panels, and capable of post-facto altering the content of their judicial decision, even the one previously adopted, prior to its notification to the parties. As we previously analysed here and here, this mechanism is a relic of the Yugoslavian socialist regime, originally designed to ensure hierarchical judicial dependence. Despite being attenuated by legislative amendments from the times of accession, the mechanism has been resilient and vigilant in Croatian judicial practice. It has been a continuous subject of controversies and disputes in the national arena, and was even (unsuccessfully) challenged in front of the national Constitutional Court. Finally, a much-needed remedy came from the supranational level. In a sharp and welcome judgment, with quite a noticeable collegiate and constructive tone, the Court of Justice made clear that such ways of functioning of national judiciaries simply cannot be reconciled with the Union’s core value of the rule of law and true independence of the judicial branch.
The Grand Chamber’s Reasoning
In the judgment, the Court established its jurisdiction and declared the references admissible without spilling too much ink, as expected. It laconically recalled the broad scope of Article 19(1) TEU and noted that its reply is necessary for the referring court to be able to conclude three disputes which were interfered with by, firstly, the registrations judge, and secondly, the section meeting, before turning to the interpretation of this provision and expounding what it requires in terms of judicial independence.
The Court started by saying that all national rules and practices that aim at ensuring consistency of case-law and safeguarding legal certainty must be compatible with the requirements that stem from Article 19(1) TEU (para. 48). It confirmed that the ‘external’ dimension of judicial independence, although originally intended to shield judges from interferences of the legislature and the executive, also protects them from influences that come from within their courts (para. 54).
The Court added that an important requirement that follows from Article 19(1) TEU, besides judicial independence and impartiality, is the existence of a court ‘previously established by law’ (para. 55). This principle implies that the judicial panel originally seized with the case is the only one that can make the decision to bring the proceedings to an end. And during those proceedings, all procedural guarantees must be ensured, most importantly the parties’ right to be heard. This in effect excludes any ‘external’ interference in the decision-making process by judges who were unknown to the parties and with whom they did not have the opportunity to argue about decisive points of law and fact (paras. 58–59).
To provide a ‘useful’ answer to its interlocutor, the Court proceeded with stating its view of the compatibility of Croatian rules with previously interpreted requirements from Article 19(1) TEU.
First, the Court ruled that powers of the registrations judge are incompatible with the EU law requirements of judicial independence and effective judicial protection. By blocking the delivery of decisions to the parties and hence preventing them from becoming final, and later on putting in motion the procedure that ends up in a binding ‘legal position’ of the section meeting, the registrations judge can influence the final ruling of the deciding judicial panel. Importantly, all this happens after the deciding panel has deliberated and adopted their ruling; despite the registrations judge not being a member of that panel; and without having clear and objective criteria in national law that may limit their discretionary interventions.
Second, the Court ruled that the power of the section meeting to adopt a ‘legal position’ by which it forces the deciding judicial panel to change its ruling that was already adopted is likewise incompatible with EU law. The most problematic points were that national law does not provide sufficiently objective criteria that would govern situations in which the section meeting intervenes in the specific proceedings; as well as that the parties to the proceedings before the deciding panel are not aware of what happens in the section meeting, who are the judges that decide or what is the reasoning behind their ‘legal position’, which infringes their procedural rights (paras. 77–78).
Finally, the Court sketched the contours of procedural mechanisms intended to ensure consistency of the case-law that would be in line with the requirements from Article 19(1) TEU (para. 80). Unsurprisingly, the judicial panel originally seized with the case can always decide to refer contentious legal questions to an extended formation of the same court. But more importantly, even the mechanisms that allow judges who are not members of the deciding panel to refer the matter to an extended formation of their court can stand, but only if (i) the original panel has not yet made its decision, (ii) national legislation contains clear criteria that govern the referral to an extended panel, and (iii) such a referral guarantees all procedural rights of the parties concerned.
National Reaction
National judicial circles received the verdict with an understandable dose of initial shock, especially considering that the AG’s Opinion initially suggested the Court might take a different, more lenient route. Still, all the relevant national actors soon reacted in a conciliatory tone. Despite the inevitable side-comments how Hann-
Invest will ‘impact legal certainty for Croatian citizens’, and result in ‘increasing judicial contradictions’, both the president of the Supreme Court and the Minister of Justice have immediately issued statements confirming that Croatia will comply with the Court’s judgment and take prompt efforts to align its sublegislative and legislative acts, and the resulting judicial practice, with Article 19(1) TEU.
Assuming this will occur entails that, in hindsight, the Croatian Constitutional Court remains the lone outcast. In its judgment issued two years ago, the Constitutional Court took the matters into its own hands while the reference in Hann-Invest from the High Commercial Court on the same point was already pending in Luxembourg, and declared that the mechanism does not violate EU law, given that it does not prevent national courts from submitting references to the Court of Justice. By failing to stay its own proceedings or join the reference, the Constitutional Court jumped the gun, while downgrading national constitutional standards of judicial independence far below the European level. The bite came back. Hann-Invest clearly confirms that the Croatian Constitutional Court violated its own obligations under the Treaties to refer the final decision on the interpretation of EU law (and the corresponding compliance of national judicial architecture with Article 19(1) TEU) to Luxembourg. The operation of supranational checks and balances was at its best.
Broader Impact
In the overall development of Luxembourg’s rule of law jurisprudence, Hann-Invest comes with a potential of becoming one of the most important pieces.
On a conceptual level, the Court determined that judicial independence under EU law and Article 19(1) TEU also includes an internal dimension, aligning itself with an already developed jurisprudence of the Strasbourg court. Hann-Invest confirms that judicial independence protects the unfettered autonomy of judges and judicial panels deciding a case, which must remain solely responsible for taking a final decision on merits, with no undue or prevailing influence from judicial administration, including registration judges or extra-procedural meetings of their peers. To that extent, the judgment is a welcome continuation of case-law emphasising the central role of individual autonomy of national judges, as the essence of their European mandate requisite for the effective application of EU law, following the original logic of the Court’s empowerment of national judiciary going all the way back to Simmenthal
Aside from this doctrinal development, the judgment is remarkable for its constructive tone. Despite a clear line of reasoning that led to declaring the Croatian mechanism incompatible with the EU’s standards of judicial independence, the Court made an obvious effort not to draft the judgment in a condescending or a forceful tone, but to constructively assist the national judicial system to ensure that ‘red lines’ of Article 19(1) TEU are not crossed. Reading the judgment, one cannot but notice the Court’s thoughtful engagement with the facts, and a thorough analysis of the structure of national judiciary, clearly outlining – even suggesting – to the national system, which elements of its internal modes of functioning are problematic, how to fix them, and how to use other procedural mechanisms for ensuring consistency of the case-law that are already in place.
In Hann-Invest, Luxembourg has made a visible effort to engage in a constructive dialogue with the national judiciary over the proper understanding of common rule of law standards, as they are applied to the judicial branch. The Court’s intention must have been to demonstrate that Article 19(1) TEU can indeed be used to remedy not only grave disruptions or attacks on the independence of national judiciaries, but also the standard modes of their operation which might, because of their systemic nature, in principle impact the effective application of Union law. As suggested in our previous Op-Ed, this has set the trajectory of Article 19(1) TEU jurisprudence beyond the rule of law ‘backsliding’. As ‘judicial umpiring’ of the common legal order under the rule of law evolves and matures, Hann-Invest brings it a step closer to a full-fledged constitutional review of national judicial architectures: supranational, through a framework of cooperation. If we are to judge by the dialogical standards set therein, interesting new developments in the case-law must lie ahead. Dancing on a thin line between federal overreach and constructive assistance, Luxembourg has this time around ‘not failed to meet the challenge’.
Nika Bačić Selanec is Assistant Professor at the Department of European Public Law, University of Zagreb – Faculty of Law, and holder of the Jean Monnet Module on ‘EU Constitutional Law and Methodology’
Davor Petrić is Postdoctoral Researcher and Senior Assistant at the Department of European Public Law, University of Zagreb –Faculty of Law
SUGGESTED CITATION: Bačić Selanec, N. and Petrić, D.; “Reshaping national Judiciaries under Article 19(1) TEU: the Grand Chamber’s Decision in Hann-Invest”, EU Law Live, 26/07/2024, https://eulawlive.com/op-ed-reshaping-national-judiciaries-under-article-191-teu-the-grand-chambersdecision-in-hann-invest/
AG Emiliou’s Opinion in Kubera: Articles 267 TFEU and 47 of the Charter
reinterpreted in the light of national filtering mechanisms
Sasa Sever
On 18 June 2024, Advocate General Emiliou delivered his Opinion in Kubera (C-144/23), a request for a preliminary reference from the Supreme Court of Slovenia concerning the interpretation of Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
Advocate General Emiliou suggested that, where the appellant has properly raised an issue of interpretation of EU law, the third paragraph of Article 267 TFEU precludes a national practice according to which, in proceedings relating to the granting of leave to bring an appeal on a point of law, a national court of last instance is not obliged to consider whether it may be required to make a request for a preliminary ruling.
The Advocate General also suggested that Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter, should be interpreted as meaning that a decision by a court of last instance which refuses leave to appeal and terminates the proceedings is a judicial decision that requires an adequate statement of the reasons for which that court considered that its obligation to make a reference under Article 267 TFEU was not triggered.
The facts of the case in Kubera have been summarised elsewhere on EU Law Live, so those aspects do not need to be recalled here.
In his Opinion, Advocate General Emiliou noted, first, that, pursuant to a mechanism such as that in question, the national court will consider the substance of the issue of EU law raised by a party and, as a consequence, whether the conditions set out in the third paragraph of Article 267 TFEU are satisfied, only if it comes to the conclusion that the questions raised are ‘important’. In contrast, if the national court does not consider the questions raised to be important, then that court would not need an answer from the Court of Justice to give a final ruling in the case. In this latter hypothesis, a national court of last instance may never reach the stage where the questions concerning the CILFIT (283/81) exceptions are examined.
Second, according to Advocate General Emiliou, the Court’s existing case law – in particular, its judgments in Aquino (C-3/16) and Lyckeskog (C-99/00) – differs from the situation in Kubera. The grounds of inadmissibility considered by the Court in Aquino were of a formal nature and, as a matter of principle, prevented the national court from carrying out any examination of the substantive arguments put forward by the parties. In Aquino, there was no issue with the effectiveness of the third paragraph of Article 267 TFEU, unlike in the present case.
In Lyckeskog, the Court held that a lower court cannot be considered to act as a ‘court of last instance’ where an appeal against that decision is possible but the examination of the merits of such an appeal is subject to a prior declaration of admissibility by the higher court.
Third, as far as the introduction and design of filtering mechanisms is considered, Advocate General Emiliou underlined that Member States enjoy wide discretion. These mechanisms permit their courts of last instance to select the cases they wish to hear and decide on appeal.
According to the Advocate General, the principle of equivalence is of cardinal importance when deciding whether to grant leave to appeal, national courts ought to deal with issues of national law and issues of EU law in the same way.
However, the Advocate General expressed some doubts that the principle of effectiveness is always complied with where filtering mechanisms grant the national courts of last instance some degree of discretion to pick and choose cases. In fact, such mechanisms may permit those courts to avoid checking whether the conditions laid down in the third paragraph of Article 267 TFEU are satisfied.
Fourth, the Advocate General Emiliou insisted that, in each case, there must always be a court, within the national judicial system, which acts as a court of last instance and thus is responsible for verifying, in a given dispute, whether the conditions provided for in the third paragraph of Article 267 TFEU are satisfied.
That said, he also emphasised that filtering mechanisms such as that at issue, when applied automatically to cases that raise genuine issues of EU law, are incompatible with the third paragraph of Article 267 TFEU. The Advocate General believes that national courts should be able to interpret and apply the national procedural rules in question in such a way as to enable those rules to ensure compliance with the third paragraph of Article 267 TFEU, as interpreted by the Court in CILFIT and in Consorzio (C-561/19).
It is interesting to note that Advocate General Emiliou emphasised that, in the national system at issue, the filtering criteria appear largely to reflect the situations envisaged in the CILFIT exceptions. In fact, the three specific scenarios listed in Article 367a of the Slovenian Code of Civil Procedure (‘ZPP’) – questions of law on which (i) ‘the decision of the court of second instance departs from the case-law of the Supreme Court’, (ii) ‘there is no case-law of the Supreme Court, in particular if the case-law of higher courts is not uniform’, and (iii) ‘the case-law of the Supreme Court is not uniform’ – are essentially covering the acte clair and acte éclairé exceptions. Therefore, the Advocate General considers that, if those filtering criteria are applied with a robust injection of the principle of equivalence, the national court would be de facto following the CILFIT case-law.
Consequently, Advocate General Emiliou suggested that the Court answers the first question to the effect that the third paragraph of Article 267 TFEU precludes a national provision or practice according to which, in proceedings relating to the granting of leave to bring an appeal on a point of law, a national court of last instance is not obliged to consider whether it may be required to make a request for a preliminary ruling. This is so, in
particular, where a party has properly raised a genuine issue of EU law, substantiating his or her arguments as to the existence of more than one sufficiently plausible interpretation of the relevant EU provisions, and expressly invited the national court to make a reference.
Advocate General Emiliou suggested that the Court answers the second question to the effect that Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter (the right to the fair trial), should be interpreted as meaning that a decision by a court of last instance which refuses leave to appeal and terminates the proceedings, despite the appellant having properly raised an issue of interpretation of EU law, is a judicial decision that requires an adequate statement of the reasons for which that court considered that its obligation to make a request for a preliminary ruling under Article 267 TFEU was not triggered.
In that regard, the Advocate General noted that it is crucial whether the appellants are able to understand the grounds on which their invitation to seise the Court of Justice was refused and whether the courts which may be seised by those appellants can effectively rule on their complaints.
Opinions expressed are solely my own and do not express the opinions of my employer.
Sasa Sever is lawyer at the Court of Justice of the European Union and lecturer of EU law at the Law and Management College in Ljubljana (Slovenia)
SUGGESTED CITATION: Sasa, S.; “AG Emiliou’s Opinion in Kubera: Articles 267 TFEU and 47 of the Charter reinterpreted in the light of national filtering mechanisms”, EU Law Live, 25/07/2024, https://eulawlive.com/analysis-ag-emilious-opinion-in-kubera-articles-267-tfeu-and-47-of-thecharter-reinterpreted-in-the-light-of-national-filtering-mechanisms/
SYMPOSIUM
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU
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 Tridimas). And the reform – consolidating the ‘constitutional role of the Court of Justice’ (see Iglesias, 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.
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) 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, Dominik 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 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 (i.e., as a guarantee for the parties), it is possible to assume that, at least at the beginning, we will witness a more systematic 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: 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 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 Corinna Wissels and Tom 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 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 (Amalfitano; 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 basi
s of the same guiding parameters that has driven the reform at stake (see recitals no. 6 and no. 7 of the Regulation amending the Statute (ft. 1) 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.
(ft n.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’.
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.
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-general-court/
HIGHLIGHT F THE WEEK S O
Commission investigates circumvention of anti-dumping measures on imports of monosodium glutamate (MSG) from China by imports of monosodium glutamate consigned from Malaysia
Monday 22 July
Official publication was made of Commission Implementing Regulation (EU) 2024/1976 of 19 July 2024 initiating an investigation concerning possible circumvention of the anti-dumping measures imposed by Implementing Regulation (EU) 2021/633 on imports of monosodium glutamate originating in the People’s Republic of China by imports of monosodium glutamate consigned from Malaysia, whether declared as originating in Malaysia or not, and making such imports subject to registration.
Read on EU Law Live
Action against Commission decision regarding State aid granted to consortium owning and operating the Øresund fixed rail-road link, published in OJ
Monday 22 July
The General Court will hear a case concerning an action, brought on 14 May 2024, concerning the annulment of the European Commission decision C(2024) 959 final of 13 February 2024 on the measures State aid SA.52162 (2019/C) (ex 2018/FC) - Denmark and State aid SA.52617 (2019/C) (ex 2018/FC) – Sweden, implemented by Denmark and Sweden for Øresundsbro Konsortiet: Scandlines Danmark and Others v Commission (T-258/24).
Read on EU Law Live
Preliminary reference in dispute alleging trademark infringement in the animal foodstuffs industry
Monday 22 July
A request for a preliminary ruling from the Svea hovrätt, Patent- och marknadsöverdomstolen (Sweden), lodged on 20 May 2024, concerning an alleged trademark infringement involving Doggy, a producer of dog and cat food and Purefun, a retailer of products for dog owners, including dog food and dog treats was officially published in the OJ: Purefun Group (C-365/24).
Read on EU Law Live
Brasserie Nationale and Munhowen challenge European Commission’s merger review decision: official publication in OJ
Monday 22 July
Brasserie Nationale and Munhowen SA filed a legal action against the European Commission, seeking the annulment of a Commission decision from March 14, 2024, related to the case Munhowen-Brasserie Nationale v Boissons Heintz (M.11485)(No C (2024) 1788 final): Brasserie Nationale and Munhowen v Commission (Case T-289/24).
Read on EU Law Live
Dutch court seeks EU clarification on detention legality and immediate release: preliminary ruling request published in OJ
Monday 22 July
On June 4, 2024, the rechtbank Den Haag, zittingsplaats Roermond (District Court of The Hague, Roermond seat) in the Netherlands, lodged a request for a preliminary ruling with the European Court of Justice (ECJ) in the case of C v Staatssecretaris van Justitie en Veiligheid (Secretary of State for Justice and Security): (Case C-387/24, Bouskoura).
Read on EU Law Live
Preliminary ruling request on technical requirements applicable to electronic devices and equipment for registering taxes and other payments, published in OJ
Monday 22 July
Official publication was made of a request for a preliminary ruling from the Administratīvā rajona tiesa (Latvia), lodged on 15 May 2024, concerning the registration of automated payment devices as parking pay stations: EUROPARK LATVIA and SKIDATA (C-353/24).
Read on EU Law Live
Council adopts Regulation for digital labelling of fertilisers
Monday 22 July
The Council adopted new rules for digital labelling of fertilising products, which promote the use of digital labels on such products, while keeping physical labels where they are necessary.
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Commission and consumer protection authorities coordinate in action against Meta’s ‘pay or consent’ model
Monday 22 July
The Consumer Protection Cooperation (CPC) Network sent a letter following concerns that Meta’s ‘pay or consent’ model might breach EU consumer law.
Read on EU Law Live
Commission updates air passenger rights guidelines to enhance clarity and enforcement
Monday 22 July
The European Commission released updated interpretative guidelines on air passenger rights, aiming to improve clarity and consistency in their application and enforcement across the EU.
Read on EU Law Live
Preliminary ruling request on insider information in market abuse case, published in OJ
Monday 22 July
On May 17, 2024, the Högsta domstolen (Supreme Court of Sweden) lodged a request for a preliminary ruling concerning the interpretation of the Market Abuse Regulation: Finansinspektionen v Carnegie Investment Bank AB (Case C-363/24, Finansinspektionen).
Read on EU Law Live
Council conclusions on support for influencers as online content creators, published in OJ
Tuesday 23 July
The Council of the EU issued conclusions emphasising the importance of supporting influencers in their roles as online content creators.
Read on EU Law Live
Commission initiates in-depth investigation on Belgian support measure granted to the extension of two nuclear reactors
Tuesday 23 July
The European Commission opened an in-depth investigation to assess whether Belgian support to be granted for the lifetime extension of two nuclear reactors (Doel 4 and Tihange 3) is in line with EU State aid rules.
Read on EU Law Live
EU sanctions four individuals and two entities for sexual and gender-based violence
Tuesday 23 July
The Council implemented additional sanctions against four individuals and two entities under the EU’s Global Human Rights Sanctions Regime due to their involvement in severe human rights abuses, including systematic and widespread sexual and gender-based violence.
Read on EU Law Live
Preliminary ruling request on interpretation of EU law provisions in relation to payment of compensation resulting from levy of Energy Transition Fund
Tuesday 23 July
Official publication was made of a request for a preliminary ruling from the Curtea de Apel București (Romania), lodged on 9 April 2024, concerning an action involving, as its principal claim, the payment of compensation for the loss, allegedly suffered by the applicant, Axpo Energy Romania SA, in 2022 and 2023, following payment of the levy to the Energy Transition Fund: Axpo Energy Romania (C-251/24).
Read on EU Law Live
Preliminary ruling request on European certificate of succession modification, published in OJ
Tuesday 23 July
Official publication was made of a preliminary ruling request concerning the proceedings to withdraw or modify a European Certificate of Succession started of the notary’s own motion on account of the bank to which the certificate was presented challenging the effects of the European Certificate of Succession. Division of costs for those proceedings.
Read on EU Law Live
Preliminary reference concerning award of concession contract based on nationality of board members of concerned undertaking, published in OJ
Tuesday 23 July
Official publication was made of a request for a preliminary ruling from the Consiglio di Stato (Italy), lodged on 29 April 2024, concerning the award of the 10-year concession for the cafeteria and catering service at the Pitti Palace and Boboli Gardens, which form part of the Uffizi Gallery museum complex in Florence, for the amount of EUR 8 892 215 plus VAT: Opera Laboratori Fiorentini (C-313/24).
Read on EU Law Live
Commission approves Danish compensation measure to Post Danmark for universal postal service obligation
Tuesday 23 July
The European Commission approved Denmark’s compensation to Post Danmark for its universal postal service obligation during the period 2021-2023.
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Commission opens antitrust investigation to assess whether Delivery Hero and Glovo have breached EU competition rules
Tuesday 23 July
The European Commission initiated a formal antitrust investigation into Delivery Hero and Glovo, two major players in the online food delivery market, to determine if they engaged in illegal cartel activities.
Read on EU Law Live
Notice of initiation of an expiry review of the anti-dumping measures to imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron from China and Thailand, published in OJ
Wednesday 24 July
The European Commission initiated an expiry review of the anti-dumping measures on imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron from China and Thailand.
Read on EU Law Live
EU, UK and US competition authorities sign Joint Statement on Competition in Generative AI Foundation Models and Products
Wednesday 24 July
Given the speed of AI developments, and learning from experience with digital markets, the competition authorities of the EU, UK and US adopted a Joint Statement on Competition in Generative AI Foundation Models and AI Products. Read on EU Law Live
Commission registers two ECIs on closing animal farms and ensuring clear labelling of origin for food products
Wednesday 24 July
The European Commission decided to register two European Citizens’ Initiatives, entitled ‘Stop Cruelty Stop Slaughter’ and ‘Stop Fake Food: Origin on Label’.
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EU postpones Basel III market risk requirements by one year
Wednesday 24 July
The European Commission announced a one-year delay in the implementation of part of the Basel III standards, specifically the Fundamental Review of the Trading Book (FRTB), now set for 1 January 2026.
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EU Rule of Law Report 2024: enhanced monitoring and expanded scope
Wednesday 24 July
The European Commission released its fifth annual Rule of Law Report, highlighting significant improvements and ongoing challenges in EU Member States and four enlargement countries.
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Notice of initiation of anti-dumping proceedings on Chinese imports of glyoxylic acid, published in OJ
Thursday 25 July
Official publication was made of a Notice of initiation of an anti-dumping proceeding concerning imports of glyoxylic acid originating in the People’s Republic of China.
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ECtHR finds no violation of right to free elections in Ždanoka v. Latvia
Thursday 25 July
In Ždanoka v. Latvia (no. 2) (application no. 42221/18), the European Court of Human Rights (ECtHR) held, unanimously, that there had been no violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights (ECHR).
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ECtHR finds criminal offence of purchasing sexual relations to be within France’s margin of appreciation
Thursday 25 July
In M.A. and Others v. France (applications nos. 63664/19, 64450/19, 24387/20, 24391/20 and 24393/20) the European Court of Human Rights (ECtHR) held, unanimously, that there had been: no violation of Article 8 (right to respect for private life) of the European Convention on Human Rights (ECHR).
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EU and Singapore conclude negotiations for Digital Trade Agreement
Thursday 25 July
The EU and Singapore concluded negotiations for a Digital Trade Agreement (DTA), the first EU agreement of its kind, which, according to the European Commission, reflects the EU’s aspiration to be a global standard-setter for digital trade rules and cross-border data flows.
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2023 Annual Report on monitoring application of EU law, published by Commission
Thursday 25 July
The European Commission published its 2023 Annual Report on the monitoring of the application of EU law.
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Commission publishes July 2024 infringement package
Thursday 25 July
The European Commission has published its package of infringement decisions for the month of July, covering various sectors and EU policy areas.
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EU and Canada agreement on participation in Horizon Europe Programme: published in OJ
Friday 26 July
Official publication was made of Council Decision (EU) 2024/2006 of 17 June 2024 on the signing, on behalf of the Union, and provisional application of the Agreement between the EU, of the one part, and Canada, of the other part, on the participation of Canada in Union programmes and Agreement between the EU, of the one part, and Canada, of the other part, on the participation of Canada in Union programmes.
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Council Decision (EU) 2024/2058 of 24 July 2024 on the non-replacement of Members of the Commission, published in OJ
Friday 26 July
Official publication was made of Council Decision (EU) 2024/2058 of 24 July 2024 on the non-replacement of Members of the Commission, which addresses the non-replacement of two European Commission members, Commissioner Vălean and Commissioner Sinkevičius, who resigned to take up newly elected seats in the European Parliament. Their resignations took effect on 15 and 16 July 2024, respectively.
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Notice of initiation of expiry review of anti-subsidy measures to imports of certain polyethylene terephthalate from India, published in OJ
Friday 26 July
Official publication was made of a Notice of initiation of an expiry review of the anti-subsidy measures applicable to imports of certain polyethylene terephthalate originating in India.
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Commission terminates investigation into alleged anticompetitive conduct in the market for electricity intraday trading services
Friday 26 July
The European Commission decided to close its antitrust investigation into alleged anticompetitive behaviour by EPEX Spot SE in the market for electricity intraday trading facilitation services in at least six Member States (Austria, Belgium, France, Germany, Luxembourg and the Netherlands).
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Commission publishes Second Report on the application of the General Data Protection Regulation
Friday 26 July
The European Commission published its second report on the application of the General Data Protection Regulation (GDPR), adopted in accordance with Article 97 of the GDPR, the latter highlighting the Commission’s role in examining the application and functioning of the international transfer of personal data to third countries.
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State aid investigation into Hungarian advertisement tac, terminated by the Commission
Friday 26 July
The European Commission closed its in-depth investigation opened in March 2015 into the Hungarian advertisement tax.
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Commission issues Staff Working Document on Foreign Subsidies Regulation
Friday 26 July
The European Commission issued a Staff Working Document (SWD) to elucidate how foreign subsidies might distort the EU internal market and how the balancing test under the Foreign Subsidies Regulation (FSR) will be applied.
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EU challenges Taiwan’s offshore wind project rules
Friday 26 July
The European Union initiated dispute settlement consultations at the World Trade Organization (WTO) regarding Taiwan’s local content criteria for offshore wind energy projects.
Read on EU Law Live