As is well known in the European institutional framework, the judicial authority of the European Union, pursuing Article 19 of the Treaty on European Union, presents two judicial bodies: the Court of Justice and the General Court. The Court of Justice of the European Union pursues the central goal to ensure that the EU law is interpreted and applied the same way in every Member State; the goal is reached also thanks to an attentive division of competences within the judicial organs. Roughly it can be said that the General Court has general jurisdiction for most direct judgments, so it deals with factual questions; the Court of Justice, in addition to its jurisdiction to challenge the decisions of the General Court, holds, at first and only instance, constitutional powers, so it deals with questions referred for preliminary ruling and with actions related to constitutional and inter-institutional disputes. This framework is completed by the so-called specialized courts, that have powers in specific areas; this possibility was introduced for the first time by the Treaty of Nice, with Article 257 TFEU (ex Article 225A TCE). One year after implementation of this Treaty, the Council of European Union, with the Decision 2004/752/EC, established a specialized court: the European Union Civil Service Tribunal. Its competence was to determine disputes between the European Union and the EU staff, competence which until then had been performed by the General Court of the European Union. In 2015, due to increased litigations and the excessive length of proceedings, the EU legislature decided to increase the number of Judges to the General Court, that has now the jurisdiction of the Civil Service Tribunal, dissolved in September 2016.
Recently the question regarding the division of competences rose again, following Article 281 of the Treaty on the Functioning of the European Union, the Court of Justice presented a request to amend Protocol 3 on the Statute of the Court of Justice of the European Union (“the Statute”). Article 281 asserts that the Statute of the CJEU shall be laid down in a separate Protocol (No 3), that is annexed to the TEU, the TFEU and the Euratom Treaty. It presents a particularity: it specifies the formula to amend the Statute, in absence of this specification an amendment of Protocol No 3 would be possible only as a revision of the Treaties, under Article 48 TEU. The Statute of the Court of Justice can be amended following an ordinary legislative procedure, regulated by Article 294 TFEU, with the exception that an amendment can be pursued by the European Parliament and the Council on request of the Court of Justice and after the consultation of the Commission, or on request of the Commission after the consultation of the Court of Justice.
The request presented regards directly the division of competences between the Court of Justice and the General Court. Precisely, it seeks, as first thing the delineation of the specific areas in which the General Court has jurisdiction (Article 265 TFEU) and to hear and determine questions referred for a preliminary ruling by the courts of the Member States (Article 267 TFEU); secondly the request submitted by the ECJ wants to include within the scope of the mechanism for the determination of whether an appeal is allowed to proceed, the appeals brought against decision of the General Court handed down in respect of decisions of boars of appeal of offices, bodies and agencies of the EU which already existed on 1 May 2019, date of the introduction of the above-mentioned mechanism, but that are not mentioned in the Statute.
Regarding the first request of the Court of Justice, it is worth noticing that the possibility to delegate the General Court to deal with a request for a preliminary ruling made by the courts of Member States has existed since the Treaty of Nice, when ex Article 225 TEC (Article 256 TFEU) was modified and gave to the then Court of First Instance the (just potential) power to hear and determine actions referred for a preliminary ruling in specific area. Specifically, this competence can be exercised in relation to actions or proceedings referred to in specific Articles of the Treaty on the Functioning of the European Union, with the exception of those matters assigned to specialized courts or that the Statute reserves for the Court of Justice. However, actions for preliminary rulings remained within the exclusive jurisdiction of the Court of Justice and the possibility offered by Article 256 had never been taken; the reasons behind this legal consuetude are multiple. The first concern regards the defense of the central goal of the European judicial authority: the division of competences between the Court of Justice and the General Court might undermine the unity and consistency of the interpretation of the Union law; a second problem is related specifically to the uncertainty of the specific areas in which the General Court has jurisdiction. Another attempt to reduce the burden of the offices of the Court of Justice arrived in the judicial framework of the reform adopted in 2015 with the Regulation 2015/2422 of the European Parliament and of the Council amending Protocol No 3 on the Statute of the Court of Justice of the European Union. This regulation modified Article 48 of the Statute, that drew the process that led to the doubling of the number of judges of the General Court; starting from 1 September 2019, each Member State has two judges and the total number of judges is now equal to 54. In the same Regulation (2015/2422), the European Parliament and the Council at the second paragraph of Article 3 asked the Court to submit, by 26 December 2017, “a report on possible changes to the distribution of competence for preliminary rulings under Article 267 TFEU” considering the new composition of the General Court. On 14 December 2017, in a timely manner, the Court submitted the report, according to which an amendment of its Statute in order to transfer to the General Court part of the jurisdiction that the Court exercises in preliminary ruling cases, was considered inappropriate. The reasons behind this decision are clearly expressed in the report: on page 4 is underlined the fact that the reform of the judicial structure of the Union was still underway, in fact different judges still had to be appointed and the internal organization of the “new General Court” still had to be defined; also on page 3, the report refers to the promptness with which requests for a preliminary ruling were dealt with.
The following years witnessed an upward curve of the requests for preliminary rulings, that were not only more numerous but also more complex, consequently, this resulted in an increase in the length of the procedures of the Court of Justice. At the same time the process of reformation of the General Court has ended: starting from July 2022, the General Court works with two judges for each MS and also the internal organization has been carefully structured. Also, the criteria to decide whether an appeal against the judgments of the General Court is allowed to proceed have become stricter. Those factors combined, have naturally brought back the idea of entrusting part of the competences of the Court of Justice to the jurisdiction of the General Court.
Considering this background, the Court of Justice agrees on the view that to ensure an effective administration of justice is necessary to take advantage of the possibility given by the third paragraph of Article 256 TFEU. As is specified in the Treaty of Functioning of EU, the jurisdiction of the General Court is not a general jurisdiction, but there is the need to draw in the Statute the specific areas in which this judicial organ has the competence to hear and determine questions referred for preliminary ruling.
The CJEU proposes to insert in the Statute the following Article: The General Court shall 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 Custom Code and the tariff classification of goods under the Combined Nomenclature; compensation and assistance to passengers; the scheme for greenhouse gas emission allowance trading.
To determine those six areas of competence, the Court of Justice used four guiding principles. In order to not create uncertainty and doubts, the first principle wants the areas dealt with by the General Court clearly identifiable and separable from other areas of competence of other judicial organs. The following two principles (second and third), again have the goal to avoid inconsistencies and divergences, in fact those areas of jurisdiction must raise few issues of principle and present a substantial body of case-law of the Court of Justice in order to guide the exercise of the General Court. Finally, to effectively reduce the burden of their offices, the Court of Justice’s request wants to identify areas that represent a consistent number of references for a preliminary ruling; a transfer of a few cases would not have the desired effect. In the request presented to the European Parliament and to the Council, the annexed table (Table 2) shows that in a period that goes from January 2017 to September 2022, the preliminary rulings made in the areas designated with the 4 criteria represent approximately the 20% of all requests for a preliminary ruling presented to the Court of Justice every year. Considering those numbers, the reform should lead to a significant reduction of the load of the Court of Justice, respecting the fourth principle.
However, it is possible that a request for preliminary ruling presents questions related to different areas, that are not under the jurisdiction of the General Court; for the sake of legal certainty and correct application of the EU Law, it is important to avoid that is the referring court to decide if the question is within the jurisdiction of the Court of Justice or of the General Court. To face this matter, Article 50b of the Statute prescribes that all the request for a preliminary ruling must be submitted to the Court of Justice, that, if it is the case, will transmit the case to the General Court. It is important to notice, that if a request for a preliminary ruling covers areas that are competence of the General Court and areas that are not within its jurisdiction, the matter will be dealt with by the Court of Justice. Also, the transmission of a request for a preliminary ruling to the General Court doesn’t mean that this court cannot refer the case to the Court of Justice in case it requires a decision of principle that could affect the Union Law; in the same way, if the Court of Justice considers a review appropriate it can proceed with an exceptional procedure of revision. This measure can be applied under the terms stated by the second comma of Article 256 TFEU, in which is specified that the extraordinary review can only happen if the unity and consistency of Union law is at risk. In accordance with Article 62 of the Statute, in case of a decision that represents a risk for the unity of EU law, the First Advocate General has the competence to propose to the Court of Justice a review of the decision of the General Court; this proposal must happen within one month after the delivery of the decision, and by the end of the month following the review proposal, the Court of Justice must decide if the referred decision should be reviewed or not.
The common denominator of the request of the Court of Justice, in its entirety, is to promote a uniform approach to the manner in which requests for a preliminary ruling are dealt with; in order to do so, both the Court of Justice and the General Court, have agreed on providing three different procedural guarantees to the parties interested. The first guarantee, in Article 50b of the Statute, introduces specialized chambers within the General Court; this measure should assure coherence in the treatment of all those requests for a preliminary ruling that regard the same area. Secondly, an Advocate General will be appointed in each preliminary ruling case presented; this will strengthen even more the analysis of the appointed court: the
Advocate General will enrich and qualify the opinions of the Judge of the court. As third and last guarantee the Statute gives the possibility to sit in a formation that is intermediate between the Chambre of 5 judges and the Grand Chambre composed of 15 judges; this has the aim to meet the needs of those requests for a preliminary ruling that need the attention of more than five judges, but cannot convene the Grand Chambre or two reasons. Firstly, in accordance with Article 256(3) TFEU, the decisions that come within the jurisdiction of the Grand Chambre should be referred to the Court of Justice; secondly, if the Grand Chambre is convocated, judges that are not part of the courts designated will rule in preliminary ruling cases concerning specific areas, this will weaken the first guarantee.
This first part of the request, should provide the General Court all the instruments to manage its new competences and assure the correct and uniform application of the Union Law.
The second part of the request presented by the Court of Justice wants to include within the scope of the mechanism for the determination of whether an appeal is allowed to proceed appeals brought against judgment of the General Court concerning decisions of independent boards of appeal of offices, bodies or agencies of the European Union that already existed on May 1st 2019, date of introduction of the abovementioned mechanism, but there are not mentioned in Article 58a of the Statute. Also, the request seeks to extend the mechanism for that determination to appeals brought against decisions of the General Court handed down pursuant to arbitration clauses. This necessity arises when, in 2019, the mechanism for the determination of whether an appeal is allowed to proceed was introduced for appeals brought against decisions of the General Court concerning decisions of independent boards of appeal of four agencies of the Union: The European Union of Intellectual Property Office, the Community Plant Variety Office, the European Chemical Agency and the European Union Aviation Safety Agency. However, in May 2019, other agencies and offices presenting an independent board of appeal existed, but they were not listed in Article 58a of the Statute without a particular reason justifying their absence. With the persistent goal to strengthen the consistency of the judicial work, the Court of Justice proposes to include all the offices, bodies or agencies existing on 1 May 2019, to the aforesaid article. Doing so, in accordance with the third paragraph of Article 58a of the Statute, an appeal will not be allowed to proceed unless it raises an issue for the unity, consistency and development of the Union Law.
As last request, the Court of Justice suggests to extend the scope of the mechanism for the determination of whether an appeal is allowed to proceed to appeals brought against decision of the General Court concerning contracts of public law or private law concluded by or on behalf of the European Union and that presents an arbitration clause (Article 272 TFEU). The request of the Court comes from the fact that the cases brought before the General Court under an arbitration clause contained in a contract governed by public or private law concluded by or on behalf of the European Union are not subject of an examination by an independent board. In that instance, the General Court has to apply the national law to the dispute, so they are unable to raise concerns for the unity, consistency, and development of the Union Law; elements whose protection is essential throughout the whole request.
