Joana Covelo de Abreu (Editor of this blog and Key-staff member of Jean Monnet Centre of Excellence “Digital Citizenship & Technological Sustainability” - CitDig, Erasmus+).
Protocol No 3 on the Statute of the Court of Justice of the European Union was amended by Regulation (EU, Euratom) 2024/2019 of the European Parliament and of the Council, of April, 11th 2024, which entered into force on September 1st 2024. These changes were mainly focused on relieving the Court of Justice from some of its jurisdictional demands, especially by entrusting the General Court the competence on certain specific areas in which preliminary questions could be raised. Notwithstanding, the opportunity was also embraced to “modernize and simplify procedures before the two courts”, i.e., the Court of Justice and the General Court.
In fact, the Court of Justice of the European Union was already called upon to pronounce itself concerning the possibility to transfer jurisdiction on preliminary references to the General Court, under specific circumstances: under Regulation (EU, Eurotom) 2015/2422, this institution submitted a report to the European Parliament, the Council and the Commission on 14th December 2017, where it “took the view that there was no need, at that time, to propose changes as regards the manner of dealing with requests for a preliminary ruling under Article 267 TFEU.” However, in that same report, the Court also “pointed out that a subsequent transfer of jurisdiction to the General Court to give preliminary rulings in certain specific areas could not be ruled out if the number and complexity of requests for a preliminary ruling submitted to the Court of Justice were to be such that the proper administration of justice required it” (Recital 1 of Regulation 2024/2019).
Notwithstanding, this institution deemed the moment we are now living as the appropriate one to deliver some changes, particularly since “both the number of pending preliminary ruling cases and the average time taken to deal with those cases are increasing” while “the great complexity and particularly sensitive nature of a growing number of questions” brought before the Court of Justice justify this option both from material and formal perspectives (Recital 2 of Regulation 2024/2019).
In fact, these changes were the fruitful ending to a will that was addressed on the 30th November 2022, when the President of the Court of Justice of the European Union requested an Amendment of Protocol No 3 on the Statute of the Court of Justice of the European Union to the European Parliament and the Council.[1] In March 2023, the European Commission also issued an Opinion where it supported that request,[2] culminating in the adoption of the mentioned Regulation 2024/2019.
Concerning preliminary ruling procedures, Article 256(3) of the Treaty on the Functioning of the European Union (TFEU) allows the attribution of jurisdiction to the General Court, establishing the terms and the conditions for the exercise of that competence. Under the 1st paragraph, the Functioning Treaty sets the rule: “The General Court shall have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute.”
As the Court of Justice has a long-lasting relevance on deciding pressing matters under EU law, the 2nd paragraph creates the collaborative atmosphere that has to be observed, within this shared-competences’ approach: “[w]here the General Court considers that the case requires a decision of principle likely to affect the unity or consistency of Union law, it may refer the case to the Court of Justice for a ruling” [Article 256 (3) (2nd paragraph) TFEU].
Following this sensitivity, the 3rd paragraph enlightens effective judicial remedies when preliminary rulings’ questions are dealt by the General Court, since they “may exceptionally be subject to review by the Court of Justice, under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Union law being affected.”
From this normative coverage under the primary EU law to the partial transference of jurisdiction between jurisdictions of the Court of Justice of the European Union, concerning preliminary references, particular issues are now entrusted to the General Court to decide. These changes were operationalised through some amendments in the Court of Justice and the General Court’s Rules of Procedure, which fully provide effectiveness to the ones concerning the Statute of the Court of Justice of the European Union.
The General Court has now “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 of greenhouse gas emission allowance trading” [Article 50b (1st paragraph) of the Statute].
Insofar, even if the material domain of the preliminary reference is linkable to one of these areas, the second paragraph clarifies 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” [Article 50b (2nd paragraph) of the Statute].
A particular work must be delivered on differentiating which preliminary procedures are materially focused on one of those areas now entrusted to the General Court’s jurisdiction from those that also tackle major identity issues that demand the intervention of the Court of Justice. In this sense, every request for a preliminary ruling will be submitted the Court of Justice, that will keep the competence to understand if the “request […] falls exclusively within one or more of the areas” under the jurisdiction of the General Court, in which case it will transfer the request to that jurisdiction. Following this option, Article 207 of the Rules of Procedure of the General Court enshrines a legal solution to those cases that are directly submitted to this jurisdiction: the administrative services of the General Court “shall transmit [the request] to the Registrar of the Court of Justice.”
In view of the great demand for analysing which cases will be decided by each jurisdiction, a specific (and hopefully swift!) procedure was created, based on detailed rules concerning the initial submission and processing of requests for preliminary ruling, so the Court of Justice can determine which Court has jurisdiction to answer them: once the preliminary ruling is received, it must be transmitted to the President, the Vice-President and the First Advocate-General of the Court of Justice [Article 93a(1) Rules of Procedure of the Court of Justice]. After analysing the request for a preliminary ruling and hearing both the Vice-President and the First Advocate-General, the President can act in one of two ways:
- If the President understands the request fits exclusively one or more of the specific areas where the General Court has jurisdiction, they give notice to the Court of Justice’s services to transmit the request to the General Court [Article 93a (2) Rules of Procedure of the Court of Justice];
- If, on the other hand, the President understands that the request, besides fitting one of the areas where the General Court has jurisdiction, also “concerns other areas or raises independent questions relating to the interpretation of primary law, public international law, general principles of Union law or the Charter of Fundamental Rights”, they will refer the request to the Court of Justice, which can adopt one of two positions:
- If this Court considers the question is exclusively related to those areas where the General Court has jurisdiction, the Court of Justice’s services will transmit the request to the General Court;
- If this Court aligns itself with the President’s perspective, the procedure will run before the Court of Justice and its Rules of Procedure.
- Once the request is transmitted to the General Court, the referring national court will be duly informed [Article 93a(4) Rules of Procedure of the Court of Justice].
The Rules of Procedure of the General Court were revised to answer those cases where the General Court’s jurisdiction is activated: to a great extent, Articles 196 e following of these Rules of Procedure mainly “reproduced the provisions of the Rules of Procedure of the Court of Justice that are applicable to requests for a preliminary ruling”, even if “subject to any adjustments necessary to maintain the overall consistency of the procedural provisions applicable to the General Court.”[3]
Sharing preliminary ruling jurisdiction with the General Court has also had repercussions on organisation of this court, particularly with regard to the role of the Advocate General. Insofar, “[e]very judge, with the exception of the President, the Vice-President and the Presidents of Chambers of the General Court, may, in circumstances defined in Articles 30 to 31b, perform the duties of an Advocate General” [Article 3(3) of the Rules of Procedure of the General Court]. Following this line of reasoning, when those rules refer to the Advocate General, they are referring to the Judge who, within that specific procedure, was designated as such [Article 3(4) of the Rules of Procedure]. As the Advocate General has a vital role in promoting the transparency of preliminary ruling proceedings, some changes were introduced to enhance its importance in those proceedings now submitted to the General Court.
Under Article 30(2) of the Rules of Procedure of the General Court, when facing preliminary ruling proceedings, an Advocate General will always assist the General Court, which comes as a specific regime concerning previous situations where an Advocate General could be enacted to assist this jurisdiction: in fact, under the previous regime, only when the case – in direct actions before the General Court –, presented some “legal difficulty” or a “factual complexity” [Article 30(1) of the Rules of Procedure] would this Court rely on the action of an Advocate General.
Insofar, Article 31a was included in this redraft of the Rules of Procedure to accommodate the election of Advocates General that are going to deal with requests for preliminary rulings. In this sense, Advocates General dealing with preliminary ruling procedures will be elected among this Court’s Judges for a period of three years, with the possibility of re-election [Article 49a (4th paragraph) of the Statute]. While performing the duties of Advocate General, they are not able to act as Judges before other preliminary ruling procedures [Article 49a (2nd paragraph) of the Statute]. Furthermore, Article 31b establishes the preliminary ruling procedures will be assigned to one of the elected Advocates General, by the President of the General Court. In this sense, the implemented regime is aiming at “mirroring the participation of Advocates General in proceedings before the Court of Justice.”[4]
The distribution between the two Courts of requests for a preliminary ruling made before the Court of Justice began on the 1st of October 2024 [Article 2 of the Regulation 2024/2019].
To specifically address effective judicial protection demands, some solutions were deemed as needed:
- As stressed in Recital 13 of Regulation 2024/2019, in order to promote the fundamental right (in all its dimensions) of effective judicial protection – as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (CFREU) – the Court of Justice retained its jurisdiction, even if the preliminary reference was materially submitted to those areas where the General Court is now the acting jurisdiction, before questions of interpretation of primary law, public international law, general principles of EU law or the Charter, “having regard to their horizontal nature”;
- Under Article 50 (4th paragraph) of the Statute, before preliminary ruling proceedings, the General Court will “sit in a chamber of intermediate size when a Member State or an institution of the Union that is party to the proceedings so requests.” This Intermediate Chamber is composed of nine Judges [Article 15a(1) of the Rules of Procedure of the General Court] and is presided over by the Vice-President of the General Court.
There are some expectations concerning these procedural changes:
On one hand, there are some authors that understand these changes – in line with others that impacted the General Court’s organisation, composition and functioning – “are all factors strongly suggesting that the pathway leading to the establishment of specialised courts attached to the General Court, provided for in the first paragraph of Article 257 TFEU, is no longer open.”[5]
On the other hand, departing from the mentioned reasons to enact the General Court’s jurisdiction before preliminary ruling proceedings, there is an expectation that this jurisdiction can decide these cases in a timeline that can match or improve the one that was delivered by the Court of Justice. However, that estimated average duration did not equate, at that time, the time now consumed on analysing which jurisdiction will be competent to know the preliminary reference. Will the time consumed by the Court of Justice be attributed to the General Court’s average duration on deciding preliminary references?
Furthermore, this can become a more defying issue since Article 93a of the Rules of Procedure of the Court of Justice does not establish a time limit to the preliminary verification procedure. Despite Article 50b of the Statute enshrining the Court of Justice must conduct it “as quickly as possible”, we find the empirical answer in Recital 14 of the Regulation 2024/2019, when it states that this process must be done “within a time frame that does not exceed what is strictly necessary, taking into account the nature, the length and the complexity of the case.”
Despite other procedural changes, which we have had the chance to shortly address, in the II Ibero-American Congress on Law and Digital Technologies,[6] there is one that must be analysed, even if just an indirect effect might be recognised in this new jurisdictional array concerning preliminary references: the one concerning internet broadcasting of hearings, applicable to both Courts.
In this particular case, hearings can be broadcasted live or with a delay, depending on the situation:
- concerning the delivery of judgments and opinions, there will be a live broadcast [Article 80a(1) of the Rules of Procedure of the Court of Justice; Article 110a(1) for direct actions and 219(1) for preliminary rulings, both of the Rules of Procedure of the General Court];
- relating to oral pleadings, there will be a delay on the broadcast [Article 80a(1) of the Rules of Procedure of the Court of Justice; Article 110a(1) and 219(1), both of the Rules of Procedure of the General Court).
Notwithstanding, if a party or an interested person submits a request to prevent the broadcast, these Courts have adopted different entities to decide it:
- before the Court of Justice, the request will be dealt by its President;
- before the General Court, the interested party must set out “in detail the circumstances that justify a decision not to broadcast the hearing” [Articles 110a(3) and 219(3) of the Rules of Procedure] and it will be decided by the General Court “as soon as possible” [Articles 110a(4) and 219(3)].
These broadcasting solutions increase, on one hand, the transparency of the decision-making process of this judicial institution of the EU, deepening the external impression of an effective judicial protection accomplishment; on the other hand, the public’s engagement on the Court of Justice and the General Court’s importance in the integration process.
Only time will be able to showcase the efficacy of these measures and to answer the fears and expectations of this new jurisdictional setting. In this light, Article 3 of the Regulation 2024/2019 particularly underlines the need of the Court of Justice to submit a report to the European Parliament, the Council and the European Commission on the implementation of this reform and, if necessary and deemed appropriate, this report will be accompanied by a request for a legislative act that can equate an amendment of the list of specific areas entrusted to the General Court as the jurisdiction to rule before preliminary references.
[1] President of the Court of Justice of the European Union, Request submitted by the Court of Justice pursuant to the second paragraph of Article 281 of the Treaty on the Functioning of the European Union, with a view to amending Protocol No 3 on the Statute of the Court of Justice of the European Union, 30th November 2022, in https://data.consilium.europa.eu/doc/document/ST-15936-2022-INIT/en/pdf [access: 19.12.2024].
[2] European Commission, Opinion of the draft amendment to Protocol No 3 on the Statute of the Court of Justice of the European Union, COM(2023) 135 final, 10th March 2023, in https://data.consilium.europa.eu/doc/document/ST-7321-2023-INIT/en/pdf [access: 19.12.2024].
[3] Court of Justice of the European Union, Press Release 126/24, Luxembourg, 30 August 2024, 2.
[4] Court of Justice of the European Union, Press Release 126/24, Luxembourg, 30 August 2024, 2.
[5] See, on this approach, Emmanuel Coulon, “ECJ Summer 2024 reforms: A radical overhaul of the Statute of the Court of Justice of the EU and the rules of procedure of the Court of Justice and the General Court”, November 2024, Concurrences, No. 4-2024, Art. No. 121004, 7.
[6] On the 29th of November 2024, at the III Panel on “The functioning of justice systems and judicial independence – challenges to the rule of law before the digital transition”, we had the opportunity to address the digitalisation of justice and e-justice, considering the digital solutions currently implemented at the Court of Justice of the European Union and how they can play a role in deepening the rule of law in the EU landscape. For more information on the event: https://www.jusgov.uminho.pt/event/ii-ibero-american-congress-on-law-and-digital-technologies/ [access: 19.12.2024].
Picture credits: by KATRIN BOLOVTSOVA on pexels.com.