Briefing
Reform of EU court rules: Preliminary ruling proceedings before the EGC, more appeals subject to permission, and a (small) step towards greater transparency
Regulation 2024/2019 (Amending Regulation as published on 12 August 2024 in the Official Journal L) amending the Statute of the Court of Justice of the European Union (Statute of the Court of Justice) will enter into force on 1 September 2024. The new legislation introduces a number of key changes to the primary law of the European Union. It is essentially aimed at relieving the burden on the ECJ. The lawmakers have also made clear commitments to improving transparency in the preliminary ruling procedure. Along with the reform of the Statute of the Court of Justice, adjustments to the Rules of Procedure of the ECJ (ECJ Rules of Procedure) and EGC (EGC Rules of Procedure) have also been published in the Official Journal. Like with the amendments to the Statute, they come into force on 1 September 2024.
I. The reform in a nutshell
The amendment initiated by the Court of Justice back in November 2022[1] essentially has three pillars:
- EGC given jurisdiction for certain preliminary ruling requests for the first time (see 1. below),
- list of appeals requiring permission made longer (see 2. below) and
- a rule on the publication of submissions (see 3. below).
Other elements of the reform include the extension of the list of parties entitled to make statements in preliminary ruling proceedings, the introduction of reporting obligations for the ECJ, and the establishment of an annual dialogue between the Parliament and the Court of Justice on the functioning of the EU’s judicial system.
The simultaneous amendments to the Rules of Procedure of the ECJ and the EGC take account of the changes at Statute level. In addition, in amending its rules of procedure, the Court has learnt from the experience gained during the Covid-19 pandemic and, for example, created a permanent legal framework that allows for participation in hearings via video conference (Art. 78 ECJ Rules of Procedure, new version) and the transmission of public hearings, opinions, and pronouncements of judgment on the internet (Art. 80a ECJ Rules of Procedure, new version).
1. Preliminary ruling proceedings before the EGC
Art. 50b of the new Statute of the Court of Justice contains the key reform that is intended to alleviate the ECJ’s workload: Requests for preliminary rulings in specific areas can be decided by the EGC in the future.
(a) The new landscape
Requests for preliminary rulings still need to be sent to the ECJ. The President of the ECJ then assesses jurisdiction after hearing the Vice-President and the First Advocate General (Art. 50b(3) Statute of the Court of Justice, new version; Art. 93a ECJ Rules of Procedure, new version). If the request falls squarely within one or more of the following areas[2], the proceedings will then be referred to the General Court, as a general rule:
- 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.
There is an exception for requests for preliminary rulings that, although they concern the matters listed, “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” (Art. 50b(2) Statute of the Court of Justice, new version). The ECJ retains jurisdiction to hear and determine such requests. In turn, the EGC can refer proceedings assigned to it back to the ECJ if a decision of principle Art. 256(3)(2) TFEU) is required (or if the EGC considers itself to lack jurisdiction (Art. 54(2) ECJ Statute of the Court of Justice, new version; Art. 114a and 114b ECJ Rules of Procedure, new version; Art. 207 EGC Rules of Procedure, new version).
The course of preliminary ruling proceedings before the EGC (Art. 196 et seq EGC Rules of Procedure, new version) will not differ significantly from the course of such proceedings before the ECJ (Art. 93 et seq ECJ Rules of Procedure). In particular, Advocates General will also be appointed to the EGC from now on (Art. 3(3) and Art. 30 et seq EGC Rules of Procedure, new version). The ECJ can only review preliminary rulings by the General Court in exceptional cases where there is a serious risk of the unity or consistency of Union law being affected and such a review is only carried out at the proposal of the First Advocate General of the ECJ (Art. 256(3)(3) TFEU in conjunction with Art. 62 Statute of the Court of Justice in conjunction with Art. 194 ECJ Rules of Procedure).
(b) Impact on parties whose cases are referred for a preliminary ruling
For the parties involved in preliminary ruling proceedings, the rules on jurisdiction, which will require interpretation to make an assessment, now involve a certain degree of uncertainty as to which court will ultimately decide on the request for a preliminary ruling. The possibility of a referral back to the ECJ also has the potential for conflicts of jurisdiction between the courts, which would prolong the proceedings. It is at least to be hoped that the chambers at the EGC specifically designated to hear and decide preliminary ruling proceedings (Art. 50b(4) ECJ Statute of the Court of Justice, new version) will develop special expertise in the six relevant areas and thus decide the proceedings more swiftly than would have been the case before the ECJ.
However, given the high hurdles that need to be surmounted for the ECJ to be called upon to review an EGC decision, which is also a matter for the First Advocate General, it would be ill-advised for parties to hope for a second instance (or ‘bite of the cherry’) in preliminary ruling proceedings. If a decision by the ECJ is absolutely necessary, the EGC must be satisfied of the need for a decision of principle while the proceedings are still ongoing.
(c) Easing the workload by introducing complex jurisdiction rules - can it work?
In 2023, 518 cases were referred to the ECJ for a preliminary ruling, which accounts for 63% of the total number of new cases received[3]. The assumption underlying the ECJ’s proposed amendment to the Statute of the Court of Justice is that it would be possible to refer around 20% of preliminary ruling proceedings to the EGC in future[4]. However, the question of whether the ECJ’s workload can be reduced to this extent will depend - as always - on the implementation of the new rules in practice. The key factor here is likely to be whether the allocation of cases between the two courts could create a bottleneck and the extent to which the decisions of principle reserved for the ECJ can be harmonised with the EGC’s decisions on the specific cases coming before it.
2. Scope of appeals requiring permission extended to new areas
A further element of the work-saving strategy being pursued under the reform is the expansion of the scope of EGC decisions that can only be appealed to the ECJ subject to specific permission being granted by the ECJ to do so. According to the relevant Article 58a of the Statute of the Court of Justice, proceedings in which a specific independent board of appeal and then the EGC have ruled on a request can only be appealed to the ECJ where the relevant appeal “raises an issue that is significant with respect to the unity, consistency or development of Union law” (Art. 58a(3) of the Statute of the Court of Justice).
The new version of Art. 58a(1) of the Statute of the Court of Justice retains this fundamental approach, but significantly expands the list of independent boards of appeal involved and covered by the rule. From now on, proceedings relating to decisions by the following bodies will also be covered:
- the Single Resolution Board;
- the European Banking Authority;
- the European Securities and Markets Authority;
- the European Insurance and Occupational Pensions Authority; and
- the European Union Agency for Railways.
The extension of the permission requirement to these cases means a sizeable reduction in the avenues for appeal in practice. Due to the high hurdles that need to be surmounted for permission to appeal to be granted (Art. 58a(1) and (3) Statute of the Court of Justice), we can expect that it will soon be the norm that the EGC will be the final instance for a decision on the cases covered by the new rule (particularly those involving banking regulation and supervision): In the period from 2019 to 2023, only seven out of a total of 216 applications for permission to appeal to the ECJ resulted in the permission being granted, which equates to a success rate of just 3%[5].
3. Submissions to be published - but not always
Finally, another aspect of the reform involves handling written submissions by the parties or interested persons in ongoing proceedings. In order to strengthen transparency and openness of the judicial process (see sentence 1 of Recital 4 of the Amending Regulation), these submissions are to be published on the website of the Court of Justice after the proceedings have concluded in accordance with Art. 23(3) of the new version of the Statute of the Court of Justice. This new provision, which had not yet been included in the original draft from the Court of Justice, is down to the initiative of the European Parliament. The resistance against this aspect of the reform voiced by a number of Member States[6] was overcome by including an assurance that (i) each of the interested persons shall have the opportunity to raise objections to the publication of that person’s submission, (ii) such objections need not state the reasons on which they are based, and (iii) objections cannot be challenged before the Court of Justice (as is now also expressly stated in sentence 2 of Art. 96(3) ECJ Rules of Procedure, new version). The objections must be lodged within three months of delivery of the judgment or service of the order closing the proceedings (sentence 2 of Art. 96(3) ECJ Rules of Procedure, new version). After the deadline has expired, it is to be expected that the documents to which no objection has been raised will be published (promptly). Although a ‘late’ objection is possible at any time, it will – naturally – only result in the documents that have (possibly) already been made public by the time of the objection being subsequently removed from the website (sentence 5 of Art. 96(3) ECJ Rules of Procedure, new version). Where an objection is communicated (either before or after the deadline), reference to it shall be made on the website (sentence 3 of Art. 96(3) ECJ Rules of Procedure, new version).
Despite the fact that publishing objections will essentially have the effect of ‘naming and shaming’, it can be assumed that the parties to the main proceedings in particular are likely to avail of their right of objection in order to ensure that their litigation strategy and any sensitive information in the statements are not disclosed to the public. However, the rule could trigger increased (political) pressure on the EU institutions involved and (some) Member States to provide justification.
II. Summary - key takeaways
- In future, the EGC will now decide on preliminary ruling requests on certain matters as a general rule. The matters cover key parts of EU customs and tax law, greenhouse gas emission allowance trading, and compensation and assistance under the Air Passenger Rights Regulation. It remains to be seen whether the reform with result in increased efficiencies in practice. However, the new rules on jurisdiction do not change much for the parties to the relevant proceedings.
- The option of an appeal against decisions of a number of specified boards of appeal at certain European agencies and authorities (e.g. in the area of banking regulation) is also effectively being cut off. In future, the EGC will regularly be the ‘last resort’.
- Submissions in preliminary ruling proceedings will be published on the Court of Justice’s website after the proceedings have been closed, unless (timely) objections to the publication are communicated.
[1] The letter from the President of the Court of Justice dated 30 November 2022 and the statement of reasons for the request attached to it were published as an annex to Council document 15936/22.
[2] The selected areas of law concern specific legal acts for which there is already extensive case law and which are the subject of a large number of proceedings, see the Court of Justice’s statement of reasons (see footnote 1 above), p. 4 et seq.
[3] See the case law statistics of the Court of Justice in the Annual Report 2023 p. 6.
[4] According to information from the ECJ, a total of 631 of the cases closed between January 2017 and September 2022; 20.82% of the cases closed during this period, see the ECJ’s statement of reasons (footnote 1 above), Annex 3, p. 20 et seq.
[5] Case law statistics 2023 (footnote 3 above), p. 28.
[6] See the joint statement by France, Greece, Italy, Malta, Austria and Cyprus, in: Council minutes of March 19, 2024, Council document 8145/24, Annex, p. 5; Council document 7296/24 ADD 1 p. 2, by reference to a letter from ECJ President Lenaerts dated 11 January 2024, Council document 5380/24, p. 2-3.
