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

DRAFT EUROPEAN PARLIAMENT 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

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

(Ordinary legislative procedure: first reading)

The European Parliament,

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

– 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),

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

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

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

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

– having regard to the report of the Committee on Legal Affairs (A9-0278/2023),

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

AMENDMENTS BY THE EUROPEAN PARLIAMENT*

to the draft by the Court of Justice

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REGULATION (EU, Euratom) 2022/… of THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of

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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 256(3) and the second paragraph of Article 281 thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 106a(1) thereof,

Having regard to the request of the Court of Justice of 30 November 2022,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Commission of …,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) At the invitation of the European Parliament and the Council of 16 December 2015, on 14 December 2017 the Court of Justice submitted to the European Parliament, the Council and the Commission 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 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. 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.

(2) The statistics of the Court of Justice highlight the fact that both the number of pending preliminary ruling cases and the average duration to deal with those cases are increasing. As preliminary rulings have to be dealt with expeditiously in order to enable national courts to guarantee the right to an effective remedy, the current situation is not sustainable. That situation is attributable not only to the high number of requests for a preliminary ruling of which the Court of Justice is seised each year, but also to the great complexity and particularly sensitive nature of a growing number of questions put to that court. In order to allow the Court of Justice to continue to fulfil its mission, including in safeguarding and strengthening the unity and consistency of Union law, and to ensure the decisions of the Court of Justice are of the highest quality, it is necessary, in the interests of the proper administration of justice, 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 (TFEU) and to transfer to the General Court jurisdiction 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’).

(2a) 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 and, in that framework, to enhance the dialogue with European courts. This enhanced dialogue should in particular be based on a greater use of the mechanism provided for in Article 101 of the Rules of Procedure of the Court of Justice, which allows it to request clarification from a referring court within a time limit prescribed by the Court, in addition to the statements of case or written observations submitted by interested parties, referred to in Article 23 of the Statute.

(2b) In this context, and as the Court of Justice is increasingly required to rule on matters of a constitutional nature and related to human rights and the Charter of Fundamental rights of the European Union (‘the Charter’), the transparency and openness of the judicial process should be strengthened. To that end, the Statute should be modified to ensure that all documents deposited with the Registrar by the parties or by any third party in connection with an application are accessible to the public upon request. This would be in line with the principle of open decision-making. Transparency increases accountability and builds trust in the Union and in Union law. In preliminary ruling proceedings in particular, giving access to case-files will enable other national judges to better assess the necessity of referring additional references and thus reduce the overall workload on the Court of Justice. Such access should be granted in accordance with the arrangements and exceptions set out in the Statute, in order to preserve the calm and dignity of judicial deliberations and ensure that the public interest and fundamental rights, such as those laid down in Article 16 TFEU and Article 8 of the Charter which provide for the protection of personal data, Article 7 of the Charter which protects the right to private and family life and communications and Article 339 TFEU which requires the institutions to respect professional secrecy, are protected.

(3) 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 Council1a, 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.

(4) For reasons of legal certainty, the areas in which jurisdiction to give preliminary rulings is conferred on the General Court must be clearly defined and sufficiently separable from other areas. Furthermore, those areas must have given rise to a substantial body of case-law of the Court of Justice which is capable of guiding the General Court in the exercise of its jurisdiction to give preliminary rulings.

(5) The specific areas must moreover be determined taking into account the need to relieve the Court of Justice from having to examine a sufficiently high number of preliminary ruling cases so as to have a real impact on its workload.

(6) The common system of value added tax, excise duties, the Customs Code and the tariff classification of goods under the Combined Nomenclature meet all of the abovementioned criteria to be regarded as specific areas within the meaning of the first subparagraph of Article 256(3) of the Treaty on the Functioning of the European Union.

(7) The same is true of compensation and assistance to passengers and the scheme for greenhouse gas emission allowance trading. In addition to the fact that those two areas also meet the abovementioned criteria, the General Court is perfectly equipped to adjudicate on requests for a preliminary ruling in those areas, since their factual and technical context determines, to a large extent, the useful interpretation of the relevant provisions of Union law.

(8) Having regard to the substantive criterion applicable to the distribution between the Court of Justice and the General Court of jurisdiction to give preliminary rulings, it is important, for reasons of legal certainty and expedition, for the referring courts not themselves to decide the question as to which Court has jurisdiction to hear and determine a request for a preliminary ruling. Every request for a preliminary ruling should therefore be submitted to the Court of Justice, which should determine, in accordance with detailed rules set out in its Rules of Procedure, whether the request falls exclusively within one or several specific defined areas laid down in the Statute of the Court of Justice of the European Union and, accordingly, whether that request must be transmitted to the General Court. ▌

(8a) The Court of Justice should continue to adjudicate on requests for a preliminary ruling that, although they might be connected to those specific areas, also concern other areas, since the first subparagraph of Article 256(3) TFEU does not provide any possibility of transferring to the General Court jurisdiction to give preliminary rulings in areas other than the specific areas.

(8b) The right to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law is a fundamental right of Union citizens guaranteed by the second paragraph of Article 47 of the Charter. To ensure that that right is respected, the provisions of the Statute should clearly state that the Court of Justice will retain jurisdiction pursuant to the first subparagraph of Article 256(3) TFEU where the request for a preliminary ruling raises independent questions of interpretation of primary law, public international law, general principles of Union law or the Charter, having regard to their horizontal nature, even where the legal framework of the case in the main proceedings falls within one or more of the specific areas referred to in Article 50b(1) of the Statute.

(8c) Following a preliminary analysis, and after hearing the Vice-President of the Court of Justice and the First Advocate General, the President of the Court of Justice should inform the Registry whether the request should be transmitted to the General Court or should be referred to the general meeting of all Judges and Advocate Generals for further analysis.

(8d) In the interest of greater transparency in judicial proceedings, the General Court or the Court of Justice should briefly provide reasons, in its ruling on a preliminary reference, as to why it is competent to hear and determine a question referred for a preliminary ruling, in particular in cases where the preliminary reference raises questions relating to the interpretation of Union primary law, public international law, general principles of Union law or the Charter in the case of the General Court or where the references concern one of the specific areas referred to in Article 50b(1) of the Statute in the case of the Court of Justice. In addition, the Court should publish and regularly update a list of examples illustrating the application of Article 50b of the Statute.

(8e) The General Court should have jurisdiction to hear and determine on 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 jurisdiction or admissibility, since the rules governing those issues should from now on be applied by both courts.

(8f) The second paragraph of Article 54 of the Statute provides that, where the General Court finds that it does not have jurisdiction to hear and determine an action, it is to refer that action to the Court of Justice. The same obligation should apply if the General Court, while examining a request for a preliminary ruling submitted to it, finds that the request does not meet the criteria laid down in Article 50b(1) of the Statute.

(8g) Furthermore, the General Court may, pursuant to the second subparagraph of Article 256(3) TFEU, refer to the Court of Justice a case that falls within its jurisdiction but requires a decision of principle likely to affect the unity or consistency of Union law.

(9) In order to provide the national courts and the interested persons referred to in Article 23 of the Statute with the same guarantees as those provided by the Court of Justice, the General Court should adopt procedural rules equivalent to those applied by the Court of Justice when dealing with requests for a preliminary ruling, in particular as regards the designation of an Advocate General. The Advocate General should be elected from among the Judges that do not belong to a chamber that is designated to deal with preliminary references, to serve for a period of at least three years with a possibility of being re-elected.

(10) Having regard to the specific features of preliminary ruling proceedings as compared with direct actions over which the General Court has jurisdiction, it is appropriate to allocate requests for a preliminary ruling to chambers of the General Court designated for that purpose.

(11) In addition, in order to maintain in particular the consistency of preliminary rulings given by the General Court, and in the interests of the proper administration of justice, provision should be made for a formation of the court of an intermediate size between the chambers of five Judges and the Grand Chamber. Given the increased responsibilities, introduced as a result of this Regulation, of the General Court, which will give final judgment in the requests for a preliminary ruling transmitted to it pursuant to the Statute as amended by this Regulation, a Member State or an Union institution should be able to request the convening of such chamber of intermediate size.

(12) The statistics of the Court of Justice also highlight a high number of appeals brought against the decisions of the General Court. With a view to maintaining the efficiency of appeal proceedings and allowing the Court of Justice to focus on the appeals that raise important legal questions, it is appropriate to extend the mechanism for the determination of whether an appeal is allowed to proceed, whilst ensuring that the requirements inherent in effective judicial protection are met.

(13) With this in mind, it is necessary, first, 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.

(14) Second, it is necessary to 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. Those disputes require the General Court merely to apply to the substance of the dispute the national law to which the arbitration clause refers and thus do not raise, in principle, issues that are significant with respect to the unity, consistency or development of Union law.

(14a) As the institution that, in accordance with Article 10(2) of the Treaty on European Union, directly represents the citizens at Union level the European Parliament should be included in the list of parties that can, under Article 23 of the Statute, submit statements of case or written observations to the Court of Justice in preliminary ruling proceedings, irrespective of whether an act it has adopted is in dispute.

(14b) This Regulation entails a significant change to the Union’s judicial framework 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 initial admission mechanism for appeals. The Court should, 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.

(14c) The implementation of this reform, and reflections on how to further improve the judicial system of the Union, in particular preliminary rulings, should be discussed by the European Parliament together with the Court of Justice with the assistance of experts in the form of a structured dialogue at least once a year. Issues such as gender equality, sustainability and digitalisation in the Court of Justice could also be addressed during that dialogue.

(14d) When exercising the right of legislative initiative, the Commission carries out broad consultations so as to enable citizens’ and stakeholders’ participation and enhance democratic legitimacy. The same should apply to the Court of Justice when exercising that right. A public consultation of two months should thus be held by the Court of Justice prior to the adoption of draft regulations amending Protocol No 3 on the Statute of the Court of Justice of the European Union.

(14e) Protocol No 3 on the Statute of the Court of Justice of the European Union should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article -1

The following Article is inserted in the Statute:

‘Article 20a

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.’

Article -1a

In Article 23, the first and the second paragraphs are replaced by the following:

‘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.’

Article -1b

The following Article is inserted in the Statute:

‘Article 49a

1. The General Court shall be assisted by one or more Advocate Generals in dealing with requests for a preliminary ruling transmitted to it in accordance with Article 50b.

2. 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.

3. The Judges elected to perform the duties referred to in paragraph 2 shall be elected for a term of three years. They may be re-elected once.’

Article 1

Article 50 of Protocol No 3 on the Statute of the Court of Justice of the European Union (‘the Statute’) is replaced by the following:

‘The General Court shall sit in chambers of three or five Judges. The Judges shall elect the Presidents of the chambers from among their number. The Presidents of the chambers of five Judges shall be elected for three years. They may be re-elected once.

The General Court may also sit in a Grand Chamber, in a chamber of an intermediate size between the chambers of five Judges and the Grand Chamber, or be constituted by a single Judge.

The Rules of Procedure shall govern the composition of the chambers and the circumstances in which and conditions under which the General Court shall sit in its different formations.’

The General Court, where seised pursuant to Article 267 of the Treaty on the Functioning of the European Union, shall sit in a chamber of intermediate size if a Member State or an institution of the Union that is a party to the proceedings so requests.

Article 2

The following Article is inserted in the Statute:

‘Article 50b

1. 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 Customs Code ▌;

– the tariff classification of goods under the Combined Nomenclature;

– compensation and assistance to passengers;

– the scheme for greenhouse gas emission allowance trading.

1a. Notwithstanding paragraph 1, 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.

2. Every request for a preliminary ruling made under Article 267 of the Treaty on the Functioning of the European Union shall be submitted to the Court of Justice. After verifying, in accordance with the detailed rules set out in its Rules of Procedure, that the request for a preliminary ruling comes exclusively within one or within several of the areas to which paragraph 1 refers, the Court of Justice shall transmit that request to the General Court within one month of the notification of the request.

3. The requests for a preliminary ruling transmitted to the General Court shall be assigned, in accordance with the detailed rules set out in its Rules of Procedure, to chambers designated for that purpose. In those cases, an Advocate General shall be designated from among the Advocate Generals elected in accordance with Article 49a.

Article 2a

The second paragraph of Article 54 is replaced by the following:

‘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.’

Article 3

Article 58a of the Statute is replaced by the following:

‘1. An appeal brought against a decision of the General Court concerning a decision of an independent board of appeal of one of the following offices, bodies and agencies of the Union shall not proceed unless the Court of Justice first decides that it should be allowed to do so:

(a) the European Union Intellectual Property Office;

(b) the Community Plant Variety Office;

(c) the European Chemicals Agency;

(d) the European Union Aviation Safety Agency;

(e) the European Union Agency for the Cooperation of Energy Regulators;

(f) the Single Resolution Board;

(g) the European Banking Authority;

(h) the European Securities and Markets Authority;

(i) the European Insurance and Occupational Pensions Authority;

(j) the European Union Agency for Railways.

2. The procedure referred to in paragraph 1 shall also apply to appeals brought against:

– decisions of the General Court concerning a decision of an independent board of appeal, set up after 1 May 2019 within any other office, body or agency of the Union, which must be seised before an action can be brought before the General Court;

– decisions of the General Court relating to the performance of a contract containing an arbitration clause, within the meaning of Article 272 of the Treaty on the Functioning of the European Union.

3. An appeal shall be allowed to proceed, wholly or in part, in accordance with the detailed rules set out in the Rules of Procedure, where it raises an issue that is significant with respect to the unity, consistency or development of Union law.

4. The decision as to whether the appeal should be allowed to proceed or not shall be reasoned, and it shall be published.’

Article 3a

The following Article is inserted in the Statute:

‘Article 63a

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.’

Article 4

1. Requests for a preliminary ruling made under Article 267 of the Treaty on the Functioning of the European Union and pending before the Court of Justice on the first day of the month following the date of entry into force of this Regulation shall be dealt with by the Court of Justice.

2. Appeals against decisions of the General Court concerning a decision of a board of appeal of one of the offices, bodies or agencies of the Union referred to in Article 58a(1)(e) to (j), and the appeals referred to in the second indent of Article 58a(2), of which the Court of Justice is seised on the date of entry into force of this Regulation, are not covered by the mechanism by which it is determined whether an appeal is allowed to proceed.

Article 4a

1. No later than ... [one year after the entry into force of this amending Regulation], the Court of Justice shall publish and regularly update a list of examples of the application of Article 50b of the Statute.

2. No later than... [three years after the entry into force of this amending Regulation], the Court shall present a report to the European Parliament, the Council and the Commission on the implementation of this reform.

In that report, the Court shall set out:

(a) the number of requests for a preliminary ruling received under Article 267 TFEU;

(b) the number of requests for a preliminary ruling in each of the specific areas indicated in Article 50b(1) of the Statute;

(c) the number of requests for preliminary rulings examined by the General Court and the specific areas referred to in Article 50b(1) of the Statute to which they related, and, where appropriate, the number of cases referred by the General Court to the Court of Justice and the number of decisions of the General Court that were subject to the review procedure laid down in Article 62 of the Statute;

(d) the number and nature of the requests for a preliminary ruling that were not transmitted to the General Court despite the fact that the legal framework of the case in the main proceedings came within one or several of the specific matters referred to in Article 50b(1) of the Statute;

(e) The average length of time spent on dealing with requests for preliminary rulings under Article 50b of the Statute at both the General Court and the Court of Justice, on the verification procedure laid down in Article 50b(2) of the Statute, and on the review procedure laid down in Article 62 of the Statute;

(f) the number and nature of the cases that were subject to the initial admission mechanism for appeals;

(g) information allowing for an assessment of the extent to which the objectives laid down in this amending Regulation 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, in particular through increased exchanges with referring courts under Article 101 of the Rules of Procedure of the Court of Justice;

The report shall be accompanied, where appropriate, by a request for a legislative act to amend the Statute, in particular with a view to amending the list of specific areas laid down in Article 50b(1), of the Statute.

Article 5

This Regulation shall enter into force on the first day of the month following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

EXPLANATORY STATEMENT

1. The Parliament supports 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 aims to modify the allocation 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 legislators. The Parliament supports this change as:

- It ensures proper administration of justice. 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. 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 Parliament insists that the reform be used as a lever for enhanced dialogue between the Court and the referring courts. The Parliament 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 Parliament also endorses this objective.

2. Nonetheless, the Parliament would like to further clarify and strengthen certain aspects of the Court’s proposal.

- The Parliament considers the proposed one-stop-shop mechanism is relevant but would like to see the respective jurisdictions of the Court and the General Court clearly defined by the co-legislators in order to comply with the principle of legality. In this regard, the Parliament chose to indicate in the Statute itself that the Court will continue to have jurisdiction on requests for preliminary ruling that raise independent questions of interpretation of primary law, public international law, general principles of law or the Charter of Fundamental Rights of the European Union, even where the legal framework of the case in the main proceedings falls within one or several of the specific areas referred to in Article 50b(1) of the Statute. In order to ensure that the jurisdictions thus defined by the legislator are respected, the Parliament proposes that Article 54 of the Statute be updated accordingly. Finally, the Parliament asks that the General Court or the Court of Justice briefly provide reasons, in its ruling on a preliminary reference, as to why it is competent to hear and determine a question referred for a preliminary ruling and that examples of the application of the criteria laid down in Article 50b of the Statute be published and regularly updated.

Given the increased responsibilities of the General Court as a result of the reform, the Parliament insists that procedural guarantees before it be further strengthened. The Parliament proposes to clarify in the Statute itself that Advocate Generals designated to deal with request for a preliminary ruling will have to be elected from among the Judges that do not belong to a chamber designated to deal with preliminary references. The Parliament also proposes allowing a Member State or EU institution that is party to the proceedings to request the convening of the chamber of intermediate size created by this reform.

3. As the institution that directly represents the citizens at Union level, the Parliament asks to be included in the list of parties that according to the Statute can submit statements of case or written observations to the Court of Justice in preliminary ruling proceedings, irrespective of whether an act it has adopted is in dispute.

4. The Parliament also proposes that all documents deposited with the Registrar be made accessible upon request in order to strengthen the transparency of the judicial process and the understanding of EU law. The Parliament stresses that this issues is intrinsically linked to the preliminary ruling proceedings, as giving access to case-files will enable national judges to better assess the necessity of referring additional references and thus reduce the overall workload on the Court of Justice. The Parliament also stresses that such access should be granted under strict conditions, to ensure that the public interests and fundamental rights of individuals are protected.

5. This reform entails a significant change to the Union’s judicial framework: the Parliament calls for close monitoring of its implementation.

With this in mind, the Parliament asks that the Court draw up a report within three years providing an initial assessment of the implementation of this reform. The report will allow the Parliament 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, as well as the necessity to amend the list of specific areas.

The Parliament also suggests that future amendments of this Statute be subject to a public consultation of two months prior to the adoption of the legislative request by the Court of Justice.

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.

18.7.2023

OPINION OF THE COMMITTEE ON CONSTITUTIONAL AFFAIRS

for the Committee on Legal Affairs Affairs

on the proposed amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union

(07307/2022 [BAS] – C9-0405/2022 – 2022/0906(COD))

Rapporteur for opinion: Sven Simon

SHORT JUSTIFICATION

The Rapporteur of the Committee on Constitutional Affairs:

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

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;

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;

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.

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;

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.

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’) ;

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

AMENDMENTS

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:

Amendment 1

Draft regulation

Recital 2

Amendment 2

Draft regulation

Recital 2 a (new)

Amendment 3

Draft regulation

Recital 3

Amendment 4

Draft regulation

Recital 4

Amendment 5

Draft regulation

Recital 5

Amendment 6

Draft regulation

Recital 6

Amendment 7

Draft regulation

Recital 7

Amendment 8

Draft regulation

Recital 8

Amendment 9

Draft regulation

Recital 8 a (new)

Amendment 10

Draft regulation

Recital 9

Amendment 11

Draft regulation

Recital 10

Amendment 12

Draft regulation

Recital 11

Amendment 13

Draft regulation

Recital 13

Amendment 14

Draft regulation

Recital 14

Amendment 15

Draft Regulation

Recital 14 a (new)

Amendment 16

Draft regulation

Article 1

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

Article 50

Amendment 17

Draft regulation

Article 2

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

Article 50 b – paragraph 1

Amendment 18

Draft regulation

Article 2

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

Article 50 b – paragraph 1 a (new)

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)