On the proposed amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union
AFCO-AD-749876
Committee on Constitutional Affairs · Rapporteur: Sven Simon
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The Committee on Constitutional Affairs gives its opinion on the proposal to amend Protocol No 3 on the Statute of the Court of Justice of the European Union, which would let the General Court hear certain preliminary rulings.¶¶ The rapporteur raises concerns about transferring value added tax, emissions trading, excise duty and customs cases, about equal treatment of preliminary rulings, and about possible divergent decisions.¶¶¶ The committee accepts the transfer only if jurisdiction is fixed in advance by general rules, and recommends that the Court of Justice codify the admissibility criteria for preliminary rulings.¶¶
Committee position. The committee raises concerns about the proposal to transfer certain preliminary ruling areas to the General Court, but agrees to the transfer if jurisdiction is fixed in advance by general rules, and recommends codifying admissibility criteria.¶¶¶
Key points
- The rapporteur questions why the legal areas in the draft should go to the General Court, noting that of 298 value added tax decisions in five years only 29 were reasoned orders.¶
- The rapporteur doubts that low numbers of cases in emissions trading (4 since 2017), excise duties (4), the Customs Code (5) and customs classification (5) can significantly relieve the Court.
- The rapporteur welcomes proposals to make Court of Justice proceedings more efficient but reads the data differently, noting a 7 % increase in cases since 2017 and that the Court itself rejected such a transfer in 2017.¶
- The rapporteur questions equal treatment of preliminary rulings, because the General Court has no independent advocates general and one judge would act as advocate general while also sitting as judge.¶
- The rapporteur warns that identical questions can arise in infringement and preliminary ruling procedures, risking divergent decisions when different courts have simultaneous jurisdiction.¶
- The rapporteur says that under Article 256(3) TFEU each request must be allocated between the two courts, which would let referring courts choose the court by adding questions such as fundamental rights, risking friction with national supreme and constitutional courts.¶
- The committee agrees to transfer jurisdiction over preliminary rulings under Article 267 TFEU in specific areas only if the distribution and allocation of cases is fixed in advance by general rules, to safeguard the right to an independent and impartial tribunal previously established by law.¶
- The committee recommends that the Court of Justice codify the admissibility criteria for preliminary rulings to avoid arbitrary decisions.¶
- The committee calls on the Committee on Legal Affairs, as the committee responsible, to take into account its amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union.¶
Who is affected
- The Court of Justice and the General Court, whose jurisdiction over preliminary rulings would change.¶
- National courts that refer preliminary questions, which could gain influence over which court decides.¶
- National supreme and constitutional courts, which could come into friction over the right to a lawful judge.
- Litigants in value added tax, emissions trading, excise duty and customs cases, whose questions would go to the General Court.¶