The European Parliament adopted by 600 votes to 13, with 12 abstentions, a legislative resolution on the draft regulation of the European Parliament and of the Council amending Protocol No 3 on the Statute of the Court of Justice of the European Union.

The European Parliament's position adopted at first reading under the ordinary legislative procedure amends the Commission's proposal as follows:

Transfer of jurisdiction to hear and determine questions referred for a preliminary ruling to the General Court

In order to enable the Court of Justice to continue to fulfil its task of protecting and strengthening the unity and consistency of Union law, and to ensure that the Court's decisions are of the highest quality, it is necessary to transfer to the General Court jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union (TFEU), in specific areas determined by the Statute of the Court of Justice of the European Union.

The transfer to the General Court of part of the jurisdiction to give preliminary rulings should enable the Court of Justice to devote more time and resources to examining the most complex and sensitive requests for a preliminary ruling.

Case before the Court of Justice

The text stated that in the cases governed by Article 267 of the Treaty on the Functioning of the European Union, the decision of the court or tribunal of a Member State which suspends its proceedings and refers a case to the Court of Justice should be notified to the Court by the court or tribunal concerned. The decision should then be notified by the Registrar of the Court to the parties, to the Member States, to the European Parliament, to the Council, to the Commission and to the European Central Bank, as well as to the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute.

Within two months of this notification, the parties, the Member States, the Commission and, where they consider they have a particular interest in the issues raised by the request for a preliminary ruling, the European Parliament, the Council and the European Central Bank should be entitled to submit statements of case or written observations to the Court of Justice. Where appropriate, the institution, body, office or agency which has adopted the act the validity or interpretation of which is in dispute should also be entitled to submit statements of case or written observations.

General Court

The General Court should be assisted by one or more Advocates General in dealing with requests for a preliminary ruling transmitted. The Judges of the General Court should elect from among their number, in accordance with the Rules of Procedure of the General Court, the Members that are to perform the duties of Advocate General. In the period during which those Members perform the duties of Advocate General, they shall not sit as Judges in requests for a preliminary ruling.

For each request for a preliminary ruling, the Advocate General should be selected from among the Judges elected to perform that duty who belong to a chamber other than the chamber to which the request in question has been assigned. The Judges elected to perform the duties referred to in the second paragraph should be elected for a term of three years. They may be re-elected once.

Court’s jurisdiction

The General Court should have jurisdiction to hear and determine requests for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union that come exclusively within one or several of the following specific 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;

- the system for greenhouse gas emission allowance trading.

The Court of Justice should 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.

Where the General Court finds that it does not have jurisdiction to hear and determine an action or a request for a preliminary ruling in respect of which the Court of Justice has jurisdiction, it should refer that action or request to the Court of Justice. Likewise, where the Court of Justice finds that an action or a request for a preliminary ruling falls within the jurisdiction of the General Court, it should refer that action or request to the General Court, whereupon that Court may not decline jurisdiction.

Monitoring

The proposed Regulation entails a significant change to the Union’s judicial framework and therefore its implementation should be closely monitored. To that end, the Court of Justice should submit to the European Parliament, the Council and the Commission, in a timely manner, a report on the transfer to the General Court of jurisdiction for preliminary rulings in specific areas and on the extension of the mechanism for the determination of whether an appeal is allowed to proceed. The Court of Justice should, in particular, provide information that allows an assessment of the extent to which the stated objectives 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.

The Committee on Legal Affairs adopted the report by Ilana CICUREL (Renew, FR) on the draft regulation of the European Parliament and of the Council amending Protocol No 3 on the Statute of the Court of Justice of the European Union.

The committee responsible recommended that the European Parliament's position adopted at first reading under the ordinary legislative procedure should amend the proposal as follows:

As a reminder, following the reform of the Union’s judicial framework as a result of Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council, the General Court is currently in a position to be able to deal with the increase in workload that will follow from that transfer of jurisdiction to give preliminary rulings.

The report introduces new articles into the Statute concerning:

Right of access to documents

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right to access, upon request, documents of the Court in accordance with arrangements set out in the Rules of Procedure. The President shall refuse access to a document, either of his or her own motion or at the request of a party or any other person concerned, where disclosure would undermine protection of the public interest, or the privacy or the integrity of an individual.

The President shall also refuse access to a document where disclosure would undermine the protection of commercial interests or the Court’s decision-making process, unless there is an overriding public interest in disclosure.

Notification of cases

In the cases governed by Article 267 of the Treaty on the Functioning of the European Union, the decision of the court or tribunal of a Member State which suspends its proceedings and refers a case to the Court of Justice shall be notified to the Court by the court or tribunal concerned. The decision shall then be notified by the Registrar of the Court to the parties, to the Member States, to the European Parliament, to the Commission and to the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute.

Within two months of this notification, the parties, the Member States, the Commission, the European Parliament and, where appropriate, the institution, body, office or agency which adopted the act the validity or interpretation of which is in dispute, shall be entitled to submit statements of case or written observations to the Court.

Administration of justice

The report noted that there is an upward trend in the number of requests for a preliminary ruling, that are meanwhile becoming increasingly complex and sensitive. Examination of these cases therefore requires greater mobilisation of the Court’s resources, resulting in an increase in the average length of time needed to deal with cases. Therefore, the report introduced a new article stipulating that the General Court shall be assisted by one or more Advocate Generals in dealing with requests for a preliminary ruling transmitted to it.

The Judges of the General Court shall elect, in accordance with its Rules of Procedure and only from the Judges among their number who do not belong to a Chamber which is designated to deal with requests for a preliminary ruling transmitted to the General Court, the Judges that are to perform the duties of an Advocate General.

The Judges elected to perform the duties shall be elected for a term of three years . They may be re-elected once.

Request for a preliminary ruling

The amended text added that the Court of Justice 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.

Where the General Court finds that it does not have jurisdiction to hear and determine an action or a request for a preliminary ruling in respect of which the Court of Justice has jurisdiction, it shall refer that action or request to the Court of Justice. Likewise, where the Court of Justice finds that an action or a request for a preliminary ruling falls within the jurisdiction of the General Court, it shall refer that action to the General Court, whereupon that Court may not decline jurisdiction.

Moreover, Members stressed that any amendment of this Statute at the request of the Court of Justice shall be subject to a public consultation of two months being carried out prior to the adoption of the legislative request by the Court of Justice.

Monitoring

Lastly, given that the proposed regulation entails a significant change to the Union’s judicial framework, Members considered that its implementation should be closely monitored. To that end, the Court of Justice shall submit to the European Parliament, the Council and the Commission, in a timely manner, a report on the transfer to the General Court of jurisdiction for preliminary rulings in specific areas and on the extension of the initial admission mechanism for appeals . The Court shall, in particular, provide information that allows for an assessment of the extent to which the stated objectives 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.

The Commission delivered an opinion on the draft amendment to Protocol No 3 on the Statute of the Court of Justice of the European Union, presented by the Court of Justice on 30 November 2022.

Context

As a reminder, on 30 November 2022, the Court of Justice of the European Union submitted a request to the European Parliament and the Council under the second paragraph of Article 281 of the Treaty on the Functioning of the European Union (TFEU) to amend Protocol No 3 on the Statute of the Court of Justice of the European Union (the Statute).

The main part of that request is to make use of the possibility provided for in the first subparagraph of Article 256(3) of the Treaty on the Functioning of the European Union to transfer to the General Court jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267 of that Treaty in specific areas laid down by the Statute.

The second part is a proposal to extend the mechanism for the determination of whether an appeal is allowed to proceed provided for under Article 58a of the Statute, which would be consolidated and replaced. These two parts are accompanied by a proposal for a specific amendment to Article 50 of the Statute as regards the composition of the chambers of the General Court.

Favourable opinion from the Commission

The Commission gives a favourable opinion on the draft amendment to Protocol No 3 on the Statute of the Court of Justice of the European Union, presented by the Court of Justice on 30 November 2022.

The Commission judges that it is essential that the Court of Justice is able to fulfil its role as the supreme judicial body of the Union. In order to do so, it must be able to focus more on cases which raise issues of fundamental importance to the Union legal order, by devoting all necessary resources to the handling of those cases and, where this proves necessary, by deepening dialogue with national courts, including courts of last instance, to ensure the unity of the Union legal order.

In view of the constant increase in the number of requests for a preliminary ruling, which must be dealt with expeditiously in order to enable national courts to guarantee individuals respect for the right to an effective remedy, the Commission agrees with the Court of Justice that, despite the difficulties inherent in such an operation, it has become necessary for the Court of Justice and the General Court to share jurisdiction over requests for a preliminary ruling .

Comments

The Commission does, however, have some comments on the main aspect of the request made by the Court of Justice, namely the transfer to the General Court of jurisdiction to hear and determine the questions referred for a preliminary ruling under Article 267 TFEU in specific areas.

a) Choice and definition of specific areas

The Court of Justice has identified the following specific areas: the common system of value added tax; excise duties; the Customs Code and the tariff classification of goods in the Combined Nomenclature; compensation and assistance to passengers; the system for greenhouse gas emission allowance trading.

The Commission welcomes the choice of specific areas identified. As regards the definition of those specific areas, it may be useful to clarify further the areas in which jurisdiction over preliminary rulings is transferred to the General Court, while retaining the flexibility necessary to ensure that those areas are defined so as to ensure their allocation in such a way that takes into account developments in the acquis.

b) The condition that a request for a preliminary ruling falls ‘exclusively within one or several of the specific areas’

The Court of Justice proposes that the General Court acquire jurisdiction to hear and determine requests for a preliminary ruling which fall ‘exclusively within one or several of the specific areas’, so that a request for a preliminary ruling involving issues relating both to those specific areas and to other areas would remain with the Court of Justice.

The Commission agrees with this approach in principle. However, it considers that it would be preferable to clarify, preferably in the recitals to the draft Regulation, what is meant by ‘exclusively within one or several of the specific areas’ in the situation that regularly arises, in which a request for a preliminary ruling includes issues both of interpretation or validity of provisions of a Union act falling within one or several of the specific areas, and of issues of interpretation of primary law provisions, general principles of law or the Charter.

According to the Commission, a request for a preliminary ruling which raises questions which do not relate as such to the interpretation of an act falling within one of those specific areas but, for example, to provisions of primary law, general principles of law or the Charter should remain within the jurisdiction of the Court of Justice even if the legal context of the main proceedings falls within one of those specific areas.

Lastly, it would also be preferable to specify the arrangements for allocating requests for a preliminary ruling which, in addition to issues falling within one or more of the specific areas, explicitly or implicitly raise issues of the jurisdiction of the Court of Justice or admissibility.

The Commission sees no compelling reasons against the transfer of such requests to the General Court.

c) The detailed rules and procedure applicable to the handling of requests for a preliminary ruling by the General Court

The Court of Justice proposes that the General Court hear the preliminary ruling cases transferred to it in chambers designated for that purpose, in accordance with the detailed rules set out in the Rules of Procedure of the General Court.

The Commission supports the greater specialisation of the Chambers of the General Court. Furthermore, the Commission considers that the General Court should include in its Rules of Procedure, and effectively apply in practice, all the detailed rules of procedure enabling requests for a preliminary ruling to be dealt with expeditiously, including, in particular, the possibility of deciding a case without a hearing or without the Advocate General’s Opinion, or by reasoned order.

On the designation of Advocates-General, the Commission has no objections as such to the provision proposed by the Court of Justice in the draft amendment to the Statute.

As regards the second part of the reform and the specific amendment to Article 50 of the Statute, the Commission has no particular remarks to make and is able to give a favourable opinion on this subject.

PURPOSE: request by the Court of Justice, under Article 281, second paragraph, of the Treaty on the Functioning of the European Union, to amend Protocol No 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: at the invitation of the European Parliament and the Council of 16 December 2015, the Court of Justice submitted to the European Parliament, the Council and the Commission, on 14 December 2017, a report on possible changes to the distribution of jurisdiction to receive preliminary rulings under Article 267 of the Treaty on the Functioning of the European Union.

While, in that report, the Court of Justice took the view that there was no need, at that time, to propose changes as regards the manner of dealing with requests for preliminary rulings under Article 267, it nevertheless pointed out, in that same report, that a subsequent transfer of jurisdiction to the General Court to give preliminary rulings in certain specific areas could not be ruled out. Furthermore, such a transfer is in line with the intentions of the authors of the Treaty of Nice, who sought to strengthen the efficiency of the judicial system of the Union by providing for the possibility of the General Court being involved in dealing with those requests.

Five years later, however, the situation is very different. On the one hand, the number of requests for a preliminary ruling brought before the Court of Justice has followed an upward trend and has resulted, for several years, in the gradual increase in the length of proceedings owing to the difficulty for the Court of Justice to deal, as expeditiously as before, with requests that are not only more numerous but also increasingly complex or sensitive. On the other hand, the reform of the judicial framework of the European Union has now been fully carried out.

Against this background, the present request to amend Protocol No 3 on the Statute of the Court of Justice of the European Union has a twofold objective:

(1) lay down the specific areas in which the General Court is to have jurisdiction, pursuant to Article 256(3) of the Treaty on the Functioning of the European Union, to hear and determine questions referred for a preliminary ruling by the courts of Member States under Article 267 of that Treaty;

(2) include within the scope of the mechanism for the determination of whether an appeal is allowed to proceed, which entered into force on 1 May 2019, appeals brought against decisions of the General Court handed down in respect of decisions of boards of appeals of offices, bodies or agencies of the Union which already existed on the abovementioned date but which are not yet referred to in the first paragraph of Article 58a of the Statute, and to extend that mechanism to the disputes referred to in Article 272 of the Treaty on the Functioning of the European Union, relating to arbitration clauses contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law.

CONTENT: made on the basis of the second paragraph of Article 281 of the Treaty on the Functioning of the European Union, the present request for amendment of Protocol No 3 on the Statute of the Court of Justice of the European Union contains two parts:

I. The transfer, to the General Court, of jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union in specific areas laid down by the Statute

After carrying out an in-depth analysis of the relevant statistics relating to the cases closed by the Court of Justice between 1 January 2017 and 30 September 2022, the Court of Justice has identified specific areas that correspond to the abovementioned parameters: (i) the common system of value added tax, (ii) excise duties, (iii) the Customs Code and the tariff classification of goods under the Combined Nomenclature, (iv) compensation and assistance to passengers, and (v) the scheme for greenhouse gas emission allowance trading.

The transfer, to the General Court, of the Court of Justice’s jurisdiction to give preliminary rulings made in the abovementioned areas should lead to a significant reduction in the workload of the Court of Justice, since such requests represent, on average, roughly 20% of all requests for a preliminary ruling brought before the Court of Justice each year.

The Court's request specifies how the Court of Justice and the General Court distribute jurisdiction for preliminary rulings and how the General Court is to deal with requests for preliminary rulings.

Thus, any reference under Article 267 of the Treaty on the Functioning of the European Union should be submitted to the Court of Justice. After verifying, in accordance with the rules of procedure, that the reference for a preliminary ruling relates exclusively to one or more of the above-mentioned matters, the Court of Justice would transmit the reference to the General Court.

It is further provided that references for preliminary rulings submitted to the General Court will be assigned, in accordance with the rules laid down in its Rules of Procedure, to chambers designated for that purpose. In such cases, an Advocate General will be appointed in accordance with the rules of procedure.

II. Extension of the mechanism for the prior admission of appeals to the Court

In order to preserve the efficiency of the appeal procedure and to enable the Court of Justice to concentrate on appeals raising important questions of law, the mechanism for the prior admission of appeals should be extended, while ensuring that the requirements of effective judicial protection are respected.

To this end, it is planned to :

- extend that mechanism to appeals whose subject matter is a decision of the General Court concerning the decision of an independent board of appeal of an office, body or agency of the Union which, on 1 May 2019, had such an independent board of appeal but to which Article 58a of the Statute of the Court of Justice of the European Union does not yet refer. Such appeals concern cases which have already been considered twice, initially by an independent board of appeal, then by the General Court, with the result that the right to effective judicial protection is fully guaranteed;

- extend the abovementioned mechanism to disputes relating to the performance of contracts containing an arbitration clause , within the meaning of Article 272 of the Treaty on the Functioning of the European Union.