What changed

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

SHORT JUSTIFICATION

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 Rapporteur of the Committee on Constitutional Affairs:

(07307/2022 – C9-0405/2022 – 2022/0906(COD))

1. Raises significant concerns regarding the proposal presented by the Court of Justice, namely:

(Ordinary legislative procedure: first reading)

a. Considers it difficult to provide a consistent and persuasive explanation for why the specific legal areas outlined in the draft should be transferred to the jurisdiction of the General Court; notes that of a total of 298 decisions on value added tax law in the past five years, in only 29 cases a reasoned order was given because the question referred could be answered unambiguously; believes therefore that evidently numerous questions are open in principle in this field; questions in contrast how a low number of submissions in the other areas, such as ETS trading (4 cases since 2017), excise duties (4), the Customs Code (5) and customs classification (5) can significantly relieve the Court;

The European Parliament,

b. Welcomes proposals aimed at increasing the efficiency of the Court of Justice proceedings; expresses, however, a different understanding of the data at hand, namely that there has only been a 7 % increase in cases since 2017; notes that in 2017, the Court itself had rejected the transfer of certain preliminary ruling procedures to the General Court;

– having regard to the request from the Court of Justice submitted to Parliament and the Council (07307/2022),

c. Questions whether the equal treatment of all preliminary ruling procedures can be ensured, given there are no independent advocates general at Court level, some of whom can work in their native language; notes how according to the proposal, one judge would be able to perform the function of advocate general, and otherwise acts as a judge; stresses that this is not remotely comparable to the functioning of advocates general as they exist at the Court of Justice.

– having regard to Article 256(3) and the second paragraph of Article 281 of the Treaty on the Functioning of the European Union, and Article 106a(1) of the Treaty establishing the European Atomic Energy Community, pursuant to which the draft act was submitted to Parliament (C9-0405/2022),

d. Notes that identical questions can arise both in an infringement procedure and in a preliminary ruling procedure; considers there is a risk of divergent decisions when different courts have simultaneous jurisdiction;

– having regard to Article 294(3) and (15) of the Treaty on the Functioning of the European Union,

e. Raises concerns about the efficiency of court proceedings in light of the proposal; notes that since Art. 256(3) TFEU only allows requests for a preliminary ruling to be transferred to the General Court in special subject areas, for each incoming request it must be decided whether the General Court or the Court of Justice has jurisdiction for it; recognizes that this would de facto grant power to the referring courts to determine which court has jurisdiction for a preliminary ruling by including additional questions, i.e. on fundamental rights; stresses that this could create friction with national supreme and constitutional courts over the fundamental right to a lawful judge.

– having regard to the opinion of the European Commission (COM(2023)0135),

2. Does however agree to the transfer of jurisdiction to the General Court to hear and determine questions referred for a preliminary ruling under Article 267 TFEU in specific areas laid down by the Statute of the Court of Justice of the European Union (‘the Statute’) as long as the distribution of jurisdiction, and the allocation of cases according to a fixed allocation of cases is determined in advance according to general rules (‘Geschäftsverteilungsplan’); considers that this is necessary for the purpose of safeguarding Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union, namely the independence and impartiality of the Court and the right to a previously established tribunal and lawful judge (‘gesetzlicher Richter’) ;

– having regard to Rules 50 and 59 of its Rules of Procedure,

3. Recommends, moreover, that the Court of Justice codifies the admissibility criteria for preliminary rulings, to avoid arbitrary decisions of admissibility.

– having regard to the opinion of the Committee on Constitutional Affairs,

AMENDMENTS

– having regard to the report of the Committee on Legal Affairs (A9-0000/2023),

The Committee on Constitutional Affairs calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments amending the Protocol No 3 on the Statute of the Court of Justice of the European Union:

1. Adopts its position at first reading hereinafter set out;

2. Instructs its President to forward its position to the Council, the Commission, the Court of Justice and the national parliaments.

Amendment 1

Draft regulation

Recital 12

Or. fr

Amendment 2

Recital 2 a (new)

Or. fr

Amendment 3

Recital 3

Or. fr

Amendment 4

Draft regulation

Recital 84

Or. fr

Amendment 5

Draft regulation

Recital 8 a (new)

Recital 5

Or. fr

Amendment 6

Draft regulation

Recital 8 b (new)

Recital 6

Or. fr

Amendment 7

Draft regulation

Recital 8 c (new)

Recital 7

Or. fr

Amendment 8

Draft regulation

Recital 8 d (new)

Or. fr

Amendment 9

Draft regulation

Recital 8 ea (new)

Or. fr

Amendment 10

Recital 9

Or. fr

Amendment 11

Draft regulation

Recital 1110

Or. fr

Amendment 12

Draft regulation

Recital 14 a (new)

Recital 11

Or. fr

Amendment 13

Draft regulation

Recital 14 b (new)

Recital 13

Or. fr

Amendment 14

Draft regulation

Article 1 – paragraph 1

Recital 14

Protocol No 3 on the Statute of the Court of Justice of the European Union

Article 50 – paragraph 3 a (new)

Or. fr

Amendment 15

Draft regulationRegulation

Article 2 – paragraph 1

Recital 14 a (new)

Protocol No 3 on the Statute of the Court of Justice of the European Union

Article 50 b – paragraph 1 – indent 3

Or. fr

Amendment 16

Draft regulation

Article 2 – paragraph 1

Protocol No 3 on the Statute of the Court of Justice of the European Union

Article 50 b – paragraph 1 – indent 3 a (new)

Article 50

Or. fr

Amendment 17

Draft regulation

Article 2 – paragraph 1

Protocol No 3 on the Statute of the Court of Justice of the European Union

Article 50 b – paragraph 1 – indent 2 a (new)

Or. fr

Amendment 18

Draft regulation

Article 2 a (new)

Protocol No 3 on the Statute of the Court of Justice of the European Union

Article 5450 b – paragraph 21 a (new)

Or. fr

Amendment 19

Draft regulation

Article 2

Protocol No 3 on the Statute of the Court of Justice of the European Union

Article 50 b – paragraph 2

Amendment 20

Draft regulation

Article 3

Protocol No 3 on the Statute of the Court of Justice of the European Union

Article 58 a – paragraph 2 –indent 2

Amendment 21

Draft regulation

Article 4 a (new)

Or. fr

PROCEDURE – COMMITTEE ASKED FOR OPINION

EXPLANATORY STATEMENT

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

1. The rapporteur agrees with the overall objective of this reform: improving the quality of justice for European citizens, by ensuring that cases brought before the Union’s courts are dealt with expeditiously and that sufficient resources can be allocated to examination of the most complex and sensitive cases.

Above all, the reform seeks to change the distribution of cases between the Court of Justice and the General Court by giving the latter jurisdiction to hear and determine requests for a preliminary ruling relating to one or more of the specific areas identified by the legislature. The rapporteur supports this change for a number of reasons.

- It ensures proper administration of justice. There is an upward trend in the number of requests for a preliminary ruling, and they are 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. At the same time, the doubling of the number of judges of the General Court, decided upon during the 2015 reform, places the General Court in a good position to be given additional jurisdiction, bearing in mind that the principle of transferring jurisdiction to the General Court to give preliminary rulings in specific areas has been enshrined in Article 256 TFEU since the adoption of the Treaty of Nice. The clear definition of the areas identified by the Court satisfies that principle and will allow cases to be transferred in a controlled manner.

- It must also lead to an improvement in the quality of the rulings handed down by the Court on the most sensitive and complex requests for a preliminary ruling, by allowing the Court to allocate more time and resources to them. In this regard, the rapporteur believes that it is essential for the reform to be used as a lever for enhanced dialogue between the Court and the referring courts. She therefore calls on the Court to make greater use of the corresponding tools in its Rules of Procedure.

The second objective of the draft reform is to broaden the scope of the initial admission mechanism for appeals before the Court so that it can devote more resources to examination of the most legally complex appeals. The rapporteur is wholly supportive of this, too.

2. The rapporteur is in favour of the principle of the reform but believes that Parliament should focus on further clarifying certain aspects of the Court’s proposal.

- She feels that the proposed one-stop-shop mechanism is appropriate, but would like the respective jurisdictions of the Court and the General Court to be clearly defined by the co-legislators in order to comply with the principle of legality. In this regard, the rapporteur would like the Statute itself, rather than the recitals to this amending Regulation, to state clearly that the Court will continue to have jurisdiction to adjudicate on any issue that raises independent questions of interpretation of primary law, public international law, general principles of law or the Charter of Fundamental Rights of the European Union, despite the legal framework of the case in the main proceedings falling within one or several of the specific areas. In order to ensure that the jurisdictions thus defined by the legislator are respected, she proposes that Article 54 of the Statute be updated. Finally, she proposes that examples of the application of the criteria laid down in Article 50b of the Statute be published and regularly updated.

- The procedural guarantees concerning the General Court could be further clarified and strengthened. Following the reform, the General Court will give final judgment in the requests for a preliminary ruling transmitted to it. In light of the implications of these increased responsibilities, the rapporteur proposes allowing a Member State or EU institution that is party to the proceedings to request the convening of the intermediate chamber of the General Court created in the Statute by this reform.

This reform is an important development in the Union’s judicial framework: the rapporteur calls for close monitoring of its implementation.

With this in mind, she proposes that the Court draw up a report within three years providing an initial assessment of the implementation of this reform. The report will, in particular, make it possible to assess the extent to which the stated objectives were achieved, in particular as regards increasing the resources allocated to the most complex and sensitive cases and enhancing the dialogue with national courts.

Article 1 of the Regulation

Amendment to Article 50 of the Statute: new paragraph 4

Under Article 16 of the Statute, a Member State or an institution of the Union that is party to proceedings may request the convening of the Grand Chamber of the Court of Justice.

As the Court points out, however, the procedure used for requests for a preliminary ruling before the General Court must provide the same guarantees as those offered by the Court.

According to the Court, it should not be necessary to convene the Grand Chamber of the General Court in order to rule on questions transmitted to the General Court for a preliminary ruling.

Instead, it provides for the creation in the General Court of chambers of an intermediate size to deal with cases that merit the attention of more than five judges.

It thus proposes including in the Statute a provision enabling any Member State or institution of the Union that is party to proceedings to request the convening of this intermediate chamber.

This additional guarantee is consistent with the implications of the increased responsibilities of the General Court, as the reform will mean that it will automatically give final judgment in the requests for a preliminary ruling transmitted to it.

Article 2 of the Regulation

Amendment to paragraph 2 of new Article 50b of the Statute

Under Article 256(3) TFEU, the General Court has jurisdiction to hear and determine questions referred for a preliminary ruling in specific areas identified by the legislature. This interpretation of secondary legislation may be made in the light of higher sources of law, which the General Court will therefore also be required to interpret.

However, requests for a preliminary ruling may also raise independent questions of interpretation of higher sources of law, in other words, questions that are not intended to act as a guide for the interpretation of secondary legislation needed to resolve the dispute in the main proceedings.

These questions are horizontal by nature and, therefore, they must not, pursuant to Article 256(3) TFEU, fall under the jurisdiction of the General Court.

It is proposed that this crucial aspect of the proposal be clarified in the body of Article 50b.

Article 2a of the Regulation

Amendment to the second paragraph of Article 54 of the Statute

Article 54 of the Statute currently requires the General Court to refer to the Court of Justice any action brought before it that does not fall within its jurisdiction.

It should be clarified that the General Court would be subject to the same requirement if a request for a preliminary ruling transmitted to it did not fall within its jurisdiction, and vice versa. This would apply, in particular, to the scenario whereby the General Court realises, when examining a case, that the request for a preliminary ruling raises separate questions relating to interpretation of primary law, public international law, general principles of law or the Charter of Fundamental Rights of the European Union.

It therefore seeks to ensure proper respect for the distribution of jurisdiction laid down by the co-legislators in Article 50b of the Statute.