Sittings · Document
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 Committee on Constitutional Affairs:
1. 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;
2. 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. 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.
c. 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;
d. 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.
3. Does therefore not believe that a transfer to the General Court of 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’) is warranted at this time; believes that the Court should instead strengthen admissibility procedures;
4. Proposes therefore not to amend Article 50, but instead Article 23 of the Statute to ensure an effective reduction of the workload of the ECJ. Recommends, moreover, that the Court of Justice revise its Rules of Procedures in Article 93a accordingly.
5. Recommends, moreover, that the Court of Justice revise its Rules of Procedures in Article 93a accordingly; namely by codifying the following admissibility criteria for preliminary rulings, whilst allowing courts after a rejection of admissibility at any time to submit a revised request:
the facts of the case are clarified;
the referring court has confirmed that this is not a hypothetical question;
the national legal framework is presented clearly and without gaps;
the question relates to a specific and explicitly mentioned provision of EU law that is to be interpreted;
this provision is relevant for the solution of the main proceedings;
the possible interpretations would lead to different results in the main proceedings;
the necessity for a referral is the opinion of the referring court itself and not only held by one of the parties;
the referring court has provided sufficient justification for the need of interpretation of EU law;
the referring court has provided sufficient justification for its own interpretation;
the referring court has taken into account and evaluated previous case law of the Court of Justice in its reasoning;
the referring court provides evidence of an in-depth examination of the question with a diversity of interpretations.
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 1
| Draft by the Court of Justice | Amendment |
| (1) At the invitation of the European Parliament and the Council of 16 December 2015, 1 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. | (1) At the invitation of the European Parliament and the Council of 16 December 2015, 1 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. |
Or. en
Amendment 2
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, it is necessary, in the interests of the proper administration of justice, to strengthen the requirements for the admissibility of a request for a preliminary ruling, as it is common practice at the supreme courts and constitutional courts of the Member States. |
Or. en
Amendment 3
Draft regulation
Recital 3
| Draftby 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. 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) The General Court is currently in a position to be able to deal with the increase in workload. That enhanced ability should be used to foster extended individual legal protection of Union citizens (e.g. in data protection, protection against regulatory measures, protection of fundamental rights). Future reforms could enable direct access by Union citizens to the court. |
Or. en
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, it is necessary to strengthen the admissibility requirements for a request for a preliminary ruling. This ensures more efficient court proceedings and increases the quality of judgements and the Court’s case-law. |
Or. en
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) Decisions on the admissibility of a request for a preliminary ruling should be based both on substantive and formal criteria. |
Or. en
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 substantive criteria to be considered are: |
| - the facts of the case are clarified; | |
| - the national legal framework is presented clearly and without gaps; | |
| - the question relates to a specific and explicitly mentioned provision of EU law that is to be interpreted; | |
| - this provision is relevant to the resolution of the main proceedings; | |
| - the possible interpretations would lead to different results in the main proceedings; | |
| - the necessity for a referral is the opinion of the referring court itself and not only held by one of the parties; | |
| - the referring court has provided sufficient justification for the need of interpretation of EU law. |
Or. en
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) Regarding the substantive criteria, it must be clear from the request that the referring court considers the questions raised by a party to the main proceedings on EU law to be significant. That requires the referring court to explain to the Court of Justice a reasoning of its views on the interpretation question at hand. An efficient dialogue between the courts also requires that the Court of Justice is aware of the interpretation stance of the referring court. Moreover, an efficient dialogue requires that the referring court not only provides its preferred interpretation to the Court of Justice, but a diversity of interpretations, i.e. from academic literature and the opinion of other courts. In this respect, a more in-depth examination of the question at hand must already have taken place at the level of the referring court and as such be recognizable in the request. This is a necessary basis for consistent case-law of the Court, leading to greater clarity and legal certainty. |
Or. en
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) If this examination is not recognizable or if the substantive criteria are not met, the request for a preliminary ruling is to be rejected as inadmissible. The inadmissibility of a request for a preliminary ruling can, insofar as it does not come from a constitutional court or a supreme court of the Member States, occur in the procedure under Article 53(2) of the Rules of Procedure of the Court of Justice. However, the referring court is at liberty to remedy the failure of admissibility and then resubmit a request. |
Or. en
Amendment 9
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. | deleted |
Or. en
Amendment 10
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. | deleted |
Or. en
Amendment 11
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. | deleted |
Or. en
Amendment 12
Draft regulation
Article 1
| Draft by the Court of Justice | Amendment |
| 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: | Article 23 (1) 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. | ‘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 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 Court shall decide on the admissibility of the request for referral. An inadmissible request shall be rejected. The criteria for admissibility shall be laid down in the Rules of Procedure. Requests that are manifestly inadmissible can be rejected before the notification of the referral for a preliminary ruling is made in accordance with the Rules of Procedure. |
| 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.’ | If admissible, the decision shall then be notified by the Registrar of the Court to the parties, to the Member States and 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.’ |
Or. en
Amendment 13
Draft regulation
Article 2
| Draft by the Court of Justice | Amendment |
| The following Article is inserted in the Statute: | deleted |
| 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 and the tariff classification of goods under the Combined Nomenclature; | |
| – compensation and assistance to passengers; | |
| – the scheme for greenhouse gas emission allowance trading. | |
| 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. | |
| 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, in accordance with the detailed rules set out in the Rules of Procedure.’ |
Or. en
Amendment 14
Draft regulation
Article 4
| Draft by the Court of Justice | Amendment |
| 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. | deleted |
| 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. |
Or. en