Sittings · Document

OPINION (07307/2022 [BAS] – C9-0405/2022 – 2022/0906(COD)) 2023-07-19

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

Committee on Constitutional Affairs · Rapporteur: 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

Draft by the Court of Justice	Amendment
(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. 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, 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 and to transfer to the General Court jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267 of that Treaty, in specific areas laid down by the Statute.	(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. 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, 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.

Amendment 2

Draft regulation

Recital 2 a (new)

Draft by the Court of Justice	Amendment
	(2a) A new and improved distribution of labour between the Court of Justice and the General Court should also give way for a more intense dialogue between EU and Member States’ courts and tribunals. This dialogue is a centrepiece of the “ever closer union” and is critical to increase the resilience of European democracy and legal system. This dialogue could further be developed through an extended application of Article 101 of the Court’s rules of procedure, which allows the Court to request clarifications to the referring court, in addition to briefs or observations submitted by the interested parties referred to in Article 23 of the Statute. The transfer to the General Court of a part of the competence to examine requests for preliminary ruling should enable the Court of Justice to allocate more time and resources to the examination of more complex and sensitive requests for preliminary ruling. A transfer of competence should also promote the uniform application of EU law and increase legal certainty throughout the EU and its Member States.

Amendment 3

Draft regulation

Recital 3

Draft by the Court of Justice	Amendment
3) 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, as a result of the doubling of the number of its Judges and the measures taken in the context of the reform of the judicial framework of the Union resulting from Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council.2 Nevertheless, since the workload of the General Court is closely related to developments in the Union’s activity, care should be taken to ensure that the General Court remains capable of fully exercising its powers of review in respect of the institutions, bodies, offices and agencies of the Union, if necessary by means of increasing the number of its staff.	(3) As a result of the measures taken in the context of the reform of the judicial framework of the Union resulting from Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council2, the General Court is currently in a position to deal with the increase in workload that will follow from that transfer of jurisdiction. It could be used to foster extended individual legal protection of Union citizens such as on fundamental rights. Future reforms could further increase direct access by Union citizens to the Court under Article 263, fourth paragraph, TFEU.
_________________	_________________
2 Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ L 341, 24.12.2015, p. 14).	2 Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ L 341, 24.12.2015, p. 14).

Amendment 4

Draft regulation

Recital 4

Draft by the Court of Justice	Amendment
(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.	(4) For reasons of legal certainty, the areas in which jurisdiction to give preliminary rulings is granted to the General Court must be clearly defined and sufficiently separable from other areas. To ensure legal certainty, the jurisdiction of the Court of Justice must be clearly demarcated from the one of the General Court, which shall have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267 TFEU, in specific areas laid down by the Statute. The assignment of preliminary questions to the General Court should not be based on discretionary decisions. Where a given area falls within the jurisdiction of both the Court of Justice and the General Court, the Court of Justice should have jurisdiction. This ensures more efficient court proceedings and increases the quality of judgements and the Court’s case-law. 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.

Amendment 5

Draft regulation

Recital 5

Draft by the Court of Justice	Amendment
(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.	(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 thereby ensuring a substantial alleviation of its workload.

Amendment 6

Draft regulation

Recital 6

Draft by the Court of Justice	Amendment
(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.	(6) The common system of value added tax, excise duties, the Customs Code and the tariff classification of goods under the Combined Nomenclature fulfil all of the abovementioned criteria to be regarded as specific areas within the meaning of Article 256(3), first subparagraph, TFEU.

Amendment 7

Draft regulation

Recital 7

Draft by the Court of Justice	Amendment
(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.	(7) Likewise, the compensation and assistance to passengers, as well as the scheme for greenhouse gas emission allowance trading, satisfy the aforementioned criteria. Furthermore, the General Court is well-equipped to handle requests for preliminary rulings in those areas, given that their factual and technical context significantly influences the meaningful interpretation of relevant provisions of Union law.

Amendment 8

Draft regulation

Recital 8

Draft by the Court of Justice	Amendment
(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 necessary, for reasons of legal certainty and expedition, for the referring courts not themselves to decide the question as to which of the Courts of the Union has jurisdiction to hear and determine a request for a preliminary ruling. Every request for a preliminary ruling must therefore be submitted to a single court, namely the Court of Justice, which will determine, in accordance with detailed rules to be 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 dealt with by the General Court. The Court of Justice will continue to have jurisdiction to adjudicate on requests for a preliminary ruling that, notwithstanding that they may be connected to those specific areas, also concern other areas, since the first subparagraph of Article 256(3) of the Treaty on the Functioning of the European Union does not provide any possibility of transferring to the General Court jurisdiction to give preliminary rulings in areas other than the specific areas.	(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 necessary, for reasons of legal certainty and expedition, for the referring courts not themselves to decide the question as to which of the Courts of the Union has jurisdiction to hear and determine a request for a preliminary ruling. Every request for a preliminary ruling must therefore be submitted to a single court, namely the Court of Justice, which will determine, in accordance with detailed rules to be set out in its Rules of Procedure with regard to Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union, 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 dealt with by the General Court. The principle of legal certainty and the need for effective judicial protection demand that there is a clear division of jurisdiction between the Court of Justice and the General Court. In accordance with the provisions of Article 2 of this Regulation, the areas defined in Article 50b of the Statute shall be handled by the General Court. The Court of Justice will continue to have jurisdiction to adjudicate on requests for a preliminary ruling that, notwithstanding that they may be connected to those specific areas, also concern other areas, since Article 256(3), first subparagraph, TFEU does not provide any possibility of transferring to the General Court jurisdiction to give preliminary rulings in areas other than the specific areas. The Court of Justice will also continue to have jurisdiction when requests for preliminary rulings raise questions that relate to provisions of primary law or the Charter of Fundamental Rights of the European Union. This applies even if the legal context of the main proceedings falls within one of the specific areas indicated in Article 50b(1) of the Statute. Should the General Court find that, during the examination of a request for a preliminary ruling, it does not have jurisdiction according to Article 50b(1) of the Statute, it shall refer the request to the Court of Justice

Amendment 9

Draft regulation

Recital 8 a (new)

Draft by the Court of Justice	Amendment
	(8a) In order to ensure clarity and legal predictability in the implementation of the distribution of competence to examine preliminary rulings, the Court should publish and update periodically a list of examples illustrating the application of Article 50b of the Statute.

Amendment 10

Draft regulation

Recital 9

Draft by the Court of Justice	Amendment
(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 is to 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.	(9) To ensure that national courts and the parties referred to in Article 23 of the Statute receive equivalent guarantees as those provided by the Court of Justice, the General Court shall establish procedural rules that mirror those applied by the Court of Justice in handling requests for a preliminary ruling, in particular as regards the designation of an Advocate General.

Amendment 11

Draft regulation

Recital 10

Draft by the Court of Justice	Amendment
(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.	(10) Considering the distinctive nature of preliminary ruling proceedings in comparison to the direct actions falling under the jurisdiction of the General Court, it is advisable to assign requests for a preliminary ruling to specialized chambers within the General Court designated for this purpose.

Amendment 12

Draft regulation

Recital 11

Draft by the Court of Justice	Amendment
(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.	(11) In addition, to ensure the consistency of preliminary rulings issued by the General Court and to promote the proper administration of justice, it is essential to establish a court formation of intermediate size between the chambers composed of five Judges and the Grand Chamber. As a result of the new competences of the General Court, which will become final judge in addressing certain requests for preliminary ruling, the General Court shall sit in Intermediate Chamber when a Member State or an institution of the Union that is party to the proceedings so requests.

Amendment 13

Draft regulation

Recital 13

Draft by the Court of Justice	Amendment
(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.	(13) With this in mind, it is necessary 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.

Amendment 14

Draft regulation

Recital 14

Draft by the Court of Justice	Amendment
(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.	(14) To monitor the implementation of this Regulation, the Court should report to the European Parliament, the Council and the Commission no later than three years after the entry into force of this Regulation, on the transfer to the General Court of preliminary jurisdiction in specific subjects and the extension of the mechanism of the prior admission to appeals to the Court. In this report, the Court should draw up an assessment of the implementation of this reform. In particular, this report should contain elements to appreciate the achievement of the objectives pursued by this reform, taking into account both the speed at which cases are processed as well as the qualitative gains observed in the examination of appeals and requests for preliminary ruling in more complex and sensitive cases.

Amendment 15

Draft Regulation

Recital 14 a (new)

Draft by Court of Justice	Amendment
	(14a) It is for the above reasons appropriate to amend Protocol No 3 on the Statute of the Court of Justice of the European Union in the following way,

Amendment 16

Draft regulation

Article 1