On 12 August, Regulation (EU) 2024/2019 of the European Parliament and of the Council of 11 April 2024 (the “Regulation”) was published in the Official Journal of the European Union, introducing several substantive and/or procedural amendments to Protocol no. 3 on the Statute of the Court of Justice of the European Union (the “Statute” and “Court of Justice”).
Below is a summary of the amendments introduced by the Regulation.
- Granting of preliminary ruling jurisdiction in specific matters to the General Court
The Regulation introduces Article 50-ter conferring jurisdiction on the General Court of the European Union (the “General Court”) to hear and make references for a preliminary ruling under Article 267 of the TFEU falling within one or more of the following matters:
- the common system of value added tax;
- excise duties;
- the Customs Code;
- the tariff classification of goods in the Combined Nomenclature;
- compensation and assistance to passengers in the event of denied boarding or delay or cancellation of transport services; and
- the greenhouse gas emission allowance trading scheme.
Regarding points (a) to (d), Recital 9 of the Regulation clarifies that “Those area cover, at the time of the adoption of this Regulation, matters such as the determination of the tax base for the assessment of value added tax or the conditions for exemption from payment of that tax; the interpretation of the general arrangements for excise duty and of the framework relating to duties on alcohol, alcoholic beverages, tobacco, energy products and electricity; the elements on the basis of which import or export duties are applied in the context of trade in goods, such as the Common Customs Tariff, the origin and customs value of goods; import and export procedures, including the incurrence, determination and extinction of a customs debt; specific customs arrangements; the system of relief from customs duties as well as the interpretation of specific tariff headings and the criteria for the classification of certain goods in the Combined Nomenclature laid down in Annex I to Council Regulation (EEC) No. 2658/87”.
With reference to point (e), recital 10 of the Regulation clarifies that these matters “cover matters that are at the time of the adoption of this Regulation regulated by Regulations (EC) No. 261/2004 [air transport], (EU) No. 1177/2010 [maritime transport], (EU) No. 181/2011 [bus and coach transport] and (EU) 2021/782 [rail transport] of the European Parliament and of the Council”.
With reference to point (f), recital 10 of the Regulation clarifies that this scheme “at the time of the adoption of this Regulation is regulated by Directive 2003/87/EC of the European Parliament and of the Council and by the acts adopted on the basis of that Directive”.
Notwithstanding the foregoing, pursuant to paragraph 2 of the new Article 50-ter, the Court of Justice will retain jurisdiction to hear and make references for preliminary rulings raising “independent questions concerning the interpretation of primary law, public international law, general principles of law or the Charter of Fundamental Rights of the European Union”.
Furthermore, under paragraph 3 of the new provision, references for preliminary rulings under Article 267 must be made to the Court of Justice. The Court – “as soon as possible” and in accordance with the procedures laid down in its Rules of Procedure – will then determine whether the request falls exclusively within the matters under the General Court’s jurisdiction and, if so, will transfer the case to the General Court.
- Participation in the proceedings by the European Parliament, the Council and the European Central Bank
The Regulation amends Article 23 of the Statute to stipulate that, where a matter is referred for a preliminary ruling, the decision of the national court or tribunal to stay the proceedings must be notified by the Registry of the Court. This notification must be made not only to the parties involved, the Member States, the Commission and the Union institution or body or entity that adopted the act whose validity or interpretation is being challenged, as already provided for in Article 23 – but also to the European Parliament, the Council and the European Central Bank.
Under the newly added paragraph 2, if the European Parliament, the Council and the European Central Bank consider that they have “a particular interest in the questions raised by the reference for a preliminary ruling”, they may submit statements of case or written observations within two months of receiving the notification.
Under the new paragraph 3, pleadings or written observations submitted by an interested party will be published on the website of the Court of Justice “within a reasonable time” after the case is closed, unless that interested party objects to the publication of its pleadings or written observations.
- Election of Advocates General to handle references for preliminary rulings assigned to the General Court
The Regulation introduce Article 49-bis of the Statute, establishing that, in the handling of references for a preliminary ruling, the General Court shall be assisted by one or more Advocates General, elected for a term of 3 years – with the possibility of one renewal - from among the Judges of the General Court.
- Establishment of the Intermediate Chamber of the General Court
The Regulation amends Article 50 of the Statute to introduce, with reference to the composition of the General Court, an intermediate chamber positioned between the chambers composed of five judges and the Grand Chamber.
According to the wording of the new Article 50, the General Court may convene in: (a) chambers of three or five judges; (b) an intermediate chamber; and (c) the grand chamber. In addition, consistent with the existing provisions, the General Court may in some cases make decisions by a single judge.
The new provision provides that, in proceedings relating to a matter referred for a preliminary ruling, the General Court will convene in an intermediate chamber at the request of a Member State or an institution of the Union involved in the case.
- Referral of cases to the Court of Justice or the General Court for preliminary rulings
The Regulation amend Article 50 of the Statute to establish, in line with the provisions regarding the handling of cases:
- if the General Court determines that it lacks jurisdiction to hear a reference for a preliminary ruling, it shall refer the case to the Court of Justice;
- if the Court of Justice finds that it lacks jurisdiction to hear a reference for a preliminary ruling, it must refer the case back to the General Court, which cannot refuse jurisdiction in such instances.
In connection with the above-mentioned referral mechanism, recital 18 of the Rules of Procedure further clarifies that “the General Court may, pursuant to Article 256(3), second subparagraph, 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”.
- Expansion of the procedure for the prior admission of appeals
The Regulation revises Article 58a to broaden the scope of the procedure for prior admission of appeals by the Court of Justice. This expansion includes:
- appeals against a decision of the General Court regarding the decision of an independent Board of Appeals of a body or entity of the Union which, as of 1 May 2019, had such a Board of Appeals but was not expressly covered by the previous version of Article 58a.
These Union bodies/entities include: (a) the European Union Agency for the Cooperation of Energy Regulators; (b) the Single Resolution Board; (c) the European Banking Authority; (d) the European Securities and Markets Authority; (e) the European Insurance and Occupational Pensions Authority; and (f) the European Union Railway Agency; and
- litigation concerning the enforcement of contracts containing an arbitration clause.
- Introduction of the consultation procedure for applications or proposals to amend the Statutes
The Regulation introduces Article 62-quinquies which mandates that before submitting an application or a proposal to amend the Statute, the Court of Justice or, where appropriate, the Commission must first conduct “extensive consultations”.
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The Regulation will enter into force on 1 September 2024 and includes a transitional arrangement as follows:
- any references for preliminary rulings pending before the Court of Justice on 1 October 2024 will in any event continue to be handled by the Court of Justice itself;
- appeals concerning:
(i) decisions of the General Court relating to a decision of a Board of Appeals of one of the bodies/entities of the Union listed in points (a) to (e) of paragraph 6 above; and
(ii) decisions concerning the enforcement of a contract containing an arbitration clause
that are before the Court of Justice on 1 September 2024 shall not be subject to the aforementioned procedure of prior admission of appeals.
