first impressions – Official Weblog of UNIO – Melissas Meals Freedom

Joana Covelo de Abreu (Editor of this weblog and Key-staff member of Jean Monnet Centre of Excellence “Digital Citizenship & Technological Sustainability” - CitDig, Erasmus+).

Protocol No 3 on the Statute of the Courtroom of Justice of the European Union was amended by Regulation (EU, Euratom) 2024/2019 of the European Parliament and of the Council, of April, 11^th 2024, which entered into drive on September 1^st 2024. These adjustments had been primarily centered on relieving the Courtroom of Justice from a few of its jurisdictional calls for, particularly by entrusting the Common Courtroom the competence on sure particular areas through which preliminary questions might be raised. However, the chance was additionally embraced to “modernize and simplify procedures earlier than the 2 courts”, i.e., the Courtroom of Justice and the Common Courtroom.

Actually, the Courtroom of Justice of the European Union was already known as upon to pronounce itself in regards to the risk to switch jurisdiction on preliminary references to the Common Courtroom, underneath particular circumstances: underneath Regulation (EU, Eurotom) 2015/2422, this establishment submitted a report back to the European Parliament, the Council and the Fee on 14^th December 2017, the place it “took the view that there was no want, at the moment, to suggest adjustments as regards the style of coping with requests for a preliminary ruling underneath Article 267 TFEU.” Nonetheless, in that very same report, the Courtroom additionally “identified {that a} subsequent switch of jurisdiction to the Common Courtroom to present preliminary rulings in sure particular areas couldn’t be dominated out if the quantity and complexity of requests for a preliminary ruling submitted to the Courtroom of Justice had been to be such that the right administration of justice required it” (Recital 1 of Regulation 2024/2019).

However, this establishment deemed the second we at the moment are dwelling as the suitable one to ship some adjustments, significantly since “each the variety of pending preliminary ruling circumstances and the common time taken to cope with these circumstances are rising” whereas “the nice complexity and significantly delicate nature of a rising variety of questions” introduced earlier than the Courtroom of Justice justify this feature each from materials and formal views (Recital 2 of Regulation 2024/2019).

Actually, these adjustments had been the fruitful ending to a will that was addressed on the 30^th November 2022, when the President of the Courtroom of Justice of the European Union requested an Modification of Protocol No 3 on the Statute of the Courtroom of Justice of the European Union to the European Parliament and the Council.[1] In March 2023, the European Fee additionally issued an Opinion the place it supported that request,[2] culminating within the adoption of the talked about Regulation 2024/2019.

Regarding preliminary ruling procedures, Article 256(3) of the Treaty on the Functioning of the European Union (TFEU) permits the attribution of jurisdiction to the Common Courtroom, establishing the phrases and the circumstances for the train of that competence. Beneath the 1^st paragraph, the Functioning Treaty units the rule: “The Common Courtroom shall have jurisdiction to listen to and decide questions referred for a preliminary ruling underneath Article 267, in particular areas laid down by the Statute.”

Because the Courtroom of Justice has a long-lasting relevance on deciding urgent issues underneath EU legislation, the two^nd paragraph creates the collaborative environment that needs to be noticed, inside this shared-competences’ strategy: “[w]right here the Common Courtroom considers that the case requires a call of precept more likely to have an effect on the unity or consistency of Union legislation, it could refer the case to the Courtroom of Justice for a ruling” [Article 256 (3) (2^nd paragraph) TFEU].

Following this sensitivity, the three^rd paragraph enlightens efficient judicial cures when preliminary rulings’ questions are dealt by the Common Courtroom, since they “could exceptionally be topic to assessment by the Courtroom of Justice, underneath the circumstances and inside the limits laid down by the Statute, the place there’s a critical danger of the unity or consistency of Union legislation being affected.”

From this normative protection underneath the first EU legislation to the partial transference of jurisdiction between jurisdictions of the Courtroom of Justice of the European Union, regarding preliminary references, explicit points at the moment are entrusted to the Common Courtroom to resolve. These adjustments had been operationalised via some amendments within the Courtroom of Justice and the Common Courtroom’s Guidelines of Process, which absolutely present effectiveness to those in regards to the Statute of the Courtroom of Justice of the European Union.

The Common Courtroom has now “jurisdiction to listen to and decide requests for a preliminary ruling […] that come solely inside one or a number of of the next particular areas: a) the widespread system of worth added tax; b) excise duties; c) the Customs Code; d) the tariff classification of products underneath the Mixed Nomenclature; e) compensation and help to passengers within the occasion of denied boarding or of delay or cancellation of transport companies; f) the system of greenhouse fuel emission allowance buying and selling” [Article 50b (1^st paragraph) of the Statute].

Insofar, even when the fabric area of the preliminary reference is linkable to considered one of these areas, the second paragraph clarifies that “the Courtroom of Justice shall retain jurisdiction to listen to and decide requests for a preliminary ruling that elevate impartial questions regarding the interpretation of main legislation, public worldwide legislation, common ideas of Union legislation or the Constitution of Basic Rights of the European Union” [Article 50b (2^nd paragraph) of the Statute].

A selected work have to be delivered on differentiating which preliminary procedures are materially centered on a type of areas now entrusted to the Common Courtroom’s jurisdiction from people who additionally deal with main id points that demand the intervention of the Courtroom of Justice. On this sense, each request for a preliminary ruling will probably be submitted the Courtroom of Justice, that may maintain the competence to know if the “request […] falls solely inside a number of of the areas” underneath the jurisdiction of the Common Courtroom, through which case it’ll switch the request to that jurisdiction. Following this feature, Article 207 of the Guidelines of Process of the Common Courtroom enshrines a authorized resolution to these circumstances which are instantly submitted to this jurisdiction: the executive companies of the Common Courtroom “shall transmit [the request] to the Registrar of the Courtroom of Justice.”

In view of the nice demand for analysing which circumstances will probably be determined by every jurisdiction, a particular (and hopefully swift!) process was created, primarily based on detailed guidelines in regards to the preliminary submission and processing of requests for preliminary ruling, so the Courtroom of Justice can decide which Courtroom has jurisdiction to reply them: as soon as the preliminary ruling is obtained, it have to be transmitted to the President, the Vice-President and the First Advocate-Common of the Courtroom of Justice [Article 93a(1) Rules of Procedure of the Court of Justice]. After analysing the request for a preliminary ruling and listening to each the Vice-President and the First Advocate-Common, the President can act in considered one of two methods:

• If the President understands the request matches solely a number of of the precise areas the place the Common Courtroom has jurisdiction, they provide discover to the Courtroom of Justice’s companies to transmit the request to the Common Courtroom [Article 93a (2) Rules of Procedure of the Court of Justice];
• If, however, the President understands that the request, in addition to becoming one of many areas the place the Common Courtroom has jurisdiction, additionally “considerations different areas or raises impartial questions regarding the interpretation of main legislation, public worldwide legislation, common ideas of Union legislation or the Constitution of Basic Rights”, they may refer the request to the Courtroom of Justice, which might undertake considered one of two positions:
  • If this Courtroom considers the query is solely associated to these areas the place the Common Courtroom has jurisdiction, the Courtroom of Justice’s companies will transmit the request to the Common Courtroom;
  • If this Courtroom aligns itself with the President’s perspective, the process will run earlier than the Courtroom of Justice and its Guidelines of Process.
• As soon as the request is transmitted to the Common Courtroom, the referring nationwide court docket will probably be duly knowledgeable [Article 93a(4) Rules of Procedure of the Court of Justice].

The Guidelines of Process of the Common Courtroom had been revised to reply these circumstances the place the Common Courtroom’s jurisdiction is activated: to an awesome extent, Articles 196 e following of those Guidelines of Process primarily “reproduced the provisions of the Guidelines of Process of the Courtroom of Justice which are relevant to requests for a preliminary ruling”, even when “topic to any changes mandatory to keep up the general consistency of the procedural provisions relevant to the Common Courtroom.”[3]

Sharing preliminary ruling jurisdiction with the Common Courtroom has additionally had repercussions on organisation of this court docket, significantly with regard to the position of the Advocate Common. Insofar, “[e]very decide, apart from the President, the Vice-President and the Presidents of Chambers of the Common Courtroom, could, in circumstances outlined in Articles 30 to 31b, carry out the duties of an Advocate Common” [Article 3(3) of the Rules of Procedure of the General Court]. Following this line of reasoning, when these guidelines seek advice from the Advocate Common, they’re referring to the Choose who, inside that particular process, was designated as such [Article 3(4) of the Rules of Procedure]. Because the Advocate Common has a significant position in selling the transparency of preliminary ruling proceedings, some adjustments had been launched to boost its significance in these proceedings now submitted to the Common Courtroom.

Beneath Article 30(2) of the Guidelines of Process of the Common Courtroom, when going through preliminary ruling proceedings, an Advocate Common will all the time help the Common Courtroom, which comes as a particular regime regarding earlier conditions the place an Advocate Common might be enacted to help this jurisdiction: in actual fact, underneath the earlier regime, solely when the case – in direct actions earlier than the Common Courtroom –, offered some “authorized issue” or a “factual complexity” [Article 30(1) of the Rules of Procedure] would this Courtroom depend on the motion of an Advocate Common.

Insofar, Article 31a was included on this redraft of the Guidelines of Process to accommodate the election of Advocates Common which are going to cope with requests for preliminary rulings. On this sense, Advocates Common coping with preliminary ruling procedures will probably be elected amongst this Courtroom’s Judges for a interval of three years, with the potential for re-election [Article 49a (4^th paragraph) of the Statute]. Whereas performing the duties of Advocate Common, they aren’t capable of act as Judges earlier than different preliminary ruling procedures [Article 49a (2^nd paragraph) of the Statute]. Moreover, Article 31b establishes the preliminary ruling procedures will probably be assigned to one of many elected Advocates Common, by the President of the Common Courtroom. On this sense, the carried out regime is aiming at “mirroring the participation of Advocates Common in proceedings earlier than the Courtroom of Justice.”[4]

The distribution between the 2 Courts of requests for a preliminary ruling made earlier than the Courtroom of Justice started on the 1^{st of} October 2024 [Article 2 of the Regulation 2024/2019].

To particularly tackle efficient judicial safety calls for, some options had been deemed as wanted:

• As pressured in Recital 13 of Regulation 2024/2019, with a view to promote the basic proper (in all its dimensions) of efficient judicial safety – as assured by Article 47 of the Constitution of Basic Rights of the European Union (CFREU) – the Courtroom of Justice retained its jurisdiction, even when the preliminary reference was materially submitted to these areas the place the Common Courtroom is now the performing jurisdiction, earlier than questions of interpretation of main legislation, public worldwide legislation, common ideas of EU legislation or the Constitution, “having regard to their horizontal nature”;
• Beneath Article 50 (4^th paragraph) of the Statute, earlier than preliminary ruling proceedings, the Common Courtroom will “sit in a chamber of intermediate dimension when a Member State or an establishment of the Union that’s occasion to the proceedings so requests.” This Intermediate Chamber consists of 9 Judges [Article 15a(1) of the Rules of Procedure of the General Court] and is presided over by the Vice-President of the Common Courtroom.  

There are some expectations regarding these procedural adjustments:

On one hand, there are some authors that perceive these adjustments – according to others that impacted the Common Courtroom’s organisation, composition and functioning – “are all components strongly suggesting that the pathway resulting in the institution of specialized courts connected to the Common Courtroom, offered for within the first paragraph of Article 257 TFEU, is not open.”[5]

Alternatively, departing from the talked about causes to enact the Common Courtroom’s jurisdiction earlier than preliminary ruling proceedings, there’s an expectation that this jurisdiction can resolve these circumstances in a timeline that may match or enhance the one which was delivered by the Courtroom of Justice. Nonetheless, that estimated common length didn’t equate, at the moment, the time now consumed on analysing which jurisdiction will probably be competent to know the preliminary reference. Will the time consumed by the Courtroom of Justice be attributed to the Common Courtroom’s common length on deciding preliminary references?

Moreover, this will grow to be a extra defying concern since Article 93a of the Guidelines of Process of the Courtroom of Justice doesn’t set up a time restrict to the preliminary verification process. Regardless of Article 50b of the Statute enshrining the Courtroom of Justice should conduct it “as shortly as attainable”, we discover the empirical reply in Recital 14 of the Regulation 2024/2019, when it states that this course of have to be completed “inside a time-frame that doesn’t exceed what’s strictly mandatory, making an allowance for the character, the size and the complexity of the case.”

Regardless of different procedural adjustments, which we’ve got had the prospect to shortly tackle, within the II Ibero-American Congress on Regulation and Digital Applied sciences,[6] there’s one which have to be analysed, even when simply an oblique impact may be recognised on this new jurisdictional array regarding preliminary references: the one regarding web broadcasting of hearings, relevant to each Courts.

On this explicit case, hearings might be broadcasted stay or with a delay, relying on the state of affairs:

• in regards to the supply of judgments and opinions, there will probably be a stay broadcast [Article 80a(1) of the Rules of Procedure of the Court of Justice; Article 110a(1) for direct actions and 219(1) for preliminary rulings, both of the Rules of Procedure of the General Court];
• regarding oral pleadings, there will probably be a delay on the published [Article 80a(1) of the Rules of Procedure of the Court of Justice; Article 110a(1) and 219(1), both of the Rules of Procedure of the General Court).

Notwithstanding, if a party or an interested person submits a request to prevent the broadcast, these Courts have adopted different entities to decide it:

• before the Court of Justice, the request will be dealt by its President;
• before the General Court, the interested party must set out “in detail the circumstances that justify a decision not to broadcast the hearing” [Articles 110a(3) and 219(3) of the Rules of Procedure] and it is going to be determined by the Common Courtroom “as quickly as attainable” [Articles 110a(4) and 219(3)].

These broadcasting options improve, on one hand, the transparency of the decision-making technique of this judicial establishment of the EU, deepening the exterior impression of an efficient judicial safety accomplishment; however, the general public’s engagement on the Courtroom of Justice and the Common Courtroom’s significance within the integration course of.

Solely time will have the ability to showcase the efficacy of those measures and to reply the fears and expectations of this new jurisdictional setting. On this gentle, Article 3 of the Regulation 2024/2019 significantly underlines the necessity of the Courtroom of Justice to submit a report back to the European Parliament, the Council and the European Fee on the implementation of this reform and, if mandatory and deemed acceptable, this report will probably be accompanied by a request for a legislative act that may equate an modification of the checklist of particular areas entrusted to the Common Courtroom because the jurisdiction to rule earlier than preliminary references. 

[1] President of the Courtroom of Justice of the European Union, Request submitted by the Courtroom of Justice pursuant to the second paragraph of Article 281 of the Treaty on the Functioning of the European Union, with a view to amending Protocol No 3 on the Statute of the Courtroom of Justice of the European Union, 30^th November 2022, in https://knowledge.consilium.europa.eu/doc/doc/ST-15936-2022-INIT/en/pdf [access: 19.12.2024].

[2] European Fee, Opinion of the draft modification to Protocol No 3 on the Statute of the Courtroom of Justice of the European Union, COM(2023) 135 ultimate, 10^th March 2023, in https://knowledge.consilium.europa.eu/doc/doc/ST-7321-2023-INIT/en/pdf [access: 19.12.2024].

[3] Courtroom of Justice of the European Union, Press Launch 126/24, Luxembourg, 30 August 2024, 2.

[4] Courtroom of Justice of the European Union, Press Launch 126/24, Luxembourg, 30 August 2024, 2.

[5] See, on this strategy, Emmanuel Coulon, “ECJ Summer time 2024 reforms: A radical overhaul of the Statute of the Courtroom of Justice of the EU and the principles of process of the Courtroom of Justice and the Common Courtroom”, November 2024, Concurrences, No. 4-2024, Artwork. No. 121004, 7.

[6] On the 29^th of November 2024, on the III Panel on “The functioning of justice programs and judicial independence – challenges to the rule of legislation earlier than the digital transition”, we had the chance to deal with the digitalisation of justice and e-justice, contemplating the digital options at the moment carried out on the Courtroom of Justice of the European Union and the way they will play a task in deepening the rule of legislation within the EU panorama. For extra data on the occasion: https://www.jusgov.uminho.pt/occasion/ii-ibero-american-congress-on-law-and-digital-technologies/ [access: 19.12.2024].

Image credit: by KATRIN BOLOVTSOVA on pexels.com.