PURPOSE: to amend Protocol 3 on the Statute of the Court of Justice of the European Union.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.

BACKGROUND: this request by the Court of Justice to amend Protocol No 3 on the Statute of the Court of Justice of the European Union follows on from its report of 14 December 2017 to the European Parliament and the Council on the possibility of certain changes to the distribution of jurisdiction between the Court of Justice and the General Court with regard to preliminary rulings.

In its report, the Court of Justice considered that there was no need, at this stage, to propose amending Protocol No 3 on the Statute of the Court of Justice of the European Union with a view to transferring to the General Court part of the jurisdiction it exercises in preliminary rulings.

In the conclusion to that report, the Court stated, however, that the possibility of a future transfer of jurisdiction with respect to preliminary rulings could not be wholly ruled out in certain specific areas. Furthermore, the background leading to the reform of the structure of the EU Courts has led to a broader reflection on the distribution of jurisdiction between the Court of Justice and the General Court and on how appeals are to be dealt with by the Court of Justice.

The discussions that have taken place on these issues have led to the present request for amendments to Protocol No. 3. This request aims to examine all the possibilities offered by the reform of the judicial structure of the European Union.

CONTENT: in accordance with the second paragraph of Article 281 of the Treaty on the Functioning of the European Union (TFEU) and paragraph 1 of Article 106a of the Treaty establishing the European Atomic Energy Community, this draft amendment to Protocol 3 submitted by the Court of Justice to the European Parliament and the Council concerns:

I. Transfer to the General Court of jurisdiction to adjudicate at first instance on the majority of infringement proceedings based on Articles 108(2), 258 and 259 TFEU: where the Court of Justice adjudicates on an action brought on the basis of those Articles, it is required to carry out a detailed analysis of the often complicated facts and circumstances that have given rise to the dispute and, before deciding whether there is or is not an infringement, it must examine each of the submissions made by the applicant (in most cases, the Commission).

The General Court accordingly appears particularly well placed to hear and determine actions of that kind, which, experience shows, most often require decisions to be made on many issues of fact.

The Court of Justice should however retain jurisdiction with respect to actions that have a constitutional aspect or that must be dealt with urgently, together with actions based wholly or partly on Article 260 TFEU, involving the possible imposition of a lump sum or a penalty payment on the defendant.

It is necessary, in addition, to provide that the General Court may refer a case of which it is seised to the Court of Justice for the latter to give a ruling, where the General Court considers that that case calls for a decision of principle or where exceptional circumstances so justify.

In order to maintain the effectiveness of infringement proceedings, it is proposed that, in the event that an appeal is brought against a decision delivered by the General Court in those proceedings, the Court of Justice may give a final ruling on the dispute, in law and in fact, if it considers that the appeal is well founded and that it is necessary to set aside that decision.

II. Transfer to the Court of Justice of jurisdiction to adjudicate on actions for annulment linked to a failure properly to comply with a judgment delivered by the Court under Article 260(2) or (3) TFEU: in the light of the sensitivity of such actions, which may lead to the imposition of penalty payments or lump sum payments, and in order not to cause the length of proceedings to be unduly prolonged due to the possibility of bringing an appeal against the decisions of the General Court, actions based on that article should, at this stage, fall exclusively within the jurisdiction the Court of Justice.

It is proposed to reserve all litigation linked to a failure of a Member State to fulfil its obligations to which a financial penalty is attached exclusively to the Court of Justice, including challenges that may be made following a Member State being ordered to pay a lump sum or a penalty payment.

III. Procedure whereby the Court of Justice determines whether certain appeals should be allowed to proceed: many appeals are brought in cases which have already been considered twice, initially by an independent administrative authority, then by the General Court, and that many of those appeals are dismissed by the Court of Justice because they are patently unfounded, or on the ground that they are manifestly inadmissible.

In order to enable the Court of Justice to concentrate on the cases that require its full attention, it is therefore proposed, in the interests of the proper administration of justice, to introduce, for appeals relating to cases in which an independent administrative authority has already been seised prior to the action before the General Court, a mechanism whereby the Court determines whether an appeal should be allowed to proceed.

It is proposed to establish such a procedure solely in situations where the dispute has already been considered by an independent administrative authority, that is, cases where an administrative appeal has taken place before the case is brought before the General Court. That applies to, inter alia, decisions adopted in relation to trade marks by the European Union Intellectual Property Office (EUIPO).

Within the framework of this mechanism, it will remain possible to contest the decisions of the General Court in those areas before the Court of Justice on appeal, limited to questions of law, but it will be necessary for the party challenging the decision of the General Court to establish, by means of a document annexed to the appeal, its interest in the light of the importance of the issue that it raises with respect to the unity, consistency or development of EU law.