Divide and Conquer: Reform of The EU Judiciary Splits The Jurisdiction to Deliver Preliminary Rulings Between The Court of Justice and The General Court

By Kristi Georgieva & Pablo González Casín on October 1, 2024

On October 1, 2024, amendments to the Statute of the Court of Justice of the European Union entered into effect, ushering in a significant reform to the European judiciary.[1] As a result of the reform, the jurisdiction to issue preliminary rulings has been partially transferred from the Court of Justice to the General Court for cases falling exclusively within six well-established legal areas, including VAT, excise duties, and tariffs. Conversely, the Court of Justice retains jurisdiction to issue preliminary rulings in competition law and other areas which routinely raise complex questions of principle and consistency. The reform is designed to reduce the caseload of the Court of Justice, thereby allowing it to “focus to a greater extent on its role as the supreme and constitutional court of the European Union.”[2]

Background

The preliminary ruling procedure facilitates cooperation between the Court of Justice and Member States’ national courts with the aim to ensure the uniform application of EU law in the territory of all EU Member States. Under Article 267 TFEU, upon a request from a national court, the Court of Justice has jurisdiction to issue preliminary rulings on (i) the interpretation of EU law and (ii) the validity of acts of EU institutions, bodies, offices, and agencies. Preliminary rulings are legally binding: the referring national court must abide by the Court of Justice’s interpretation of EU law in rendering its own, final ruling in the national proceedings.

While the preliminary ruling procedure has proven an important tool for national courts, it has resulted in an ever-increasing caseload for the Court of Justice. In 2022 alone, the Court of Justice issued 564 preliminary rulings, representing 70% of all its judgments rendered in that year.[3] In the same year, the General Court—which is twice the size in terms of sitting judges—dealt with 904 proceedings. It is against this backdrop that the judicial reform was conceived as a means to shift a significant proportion of the Court of Justice’s caseload to the General Court. This in turn is meant to speed up the timeline of proceedings before the Court of Justice.

Reform

As a result of the reform, the jurisdiction to issue preliminary rulings is now divided between the Court of Justice and the General Court. While the Court of Justice retains jurisdiction in the vast majority of cases (including in competition law), it can now transfer to the General Court preliminary ruling requests which raise questions in six well-established areas of EU law. To ensure consistent and timely rulings in these six areas, the General Court has a new specialized chamber with twelve designated judges,[4] two of whom are called upon to act as Advocate General.[5]

Six areas within the General Court’s jurisdiction. The General Court now has jurisdiction to issue preliminary rulings pertaining to the following six areas, which together account for approximately 20% of all preliminary ruling references.[6] The six areas are the following: (i) the common system of value added tax; (ii) excise duties; (iii) the Customs Code; (iv) the tariff classification of goods under the EU combined nomenclature; (v) compensation and assistance to passengers in the event of denied boarding or of delay or cancellation of transport services; and (vi) the system for greenhouse gas emission allowance trading. Any other areas, including preliminary rulings on competition law, remain within the ambit of the Court of Justice.

Carve-outs from the General Court’s partial jurisdiction. The General Court’s jurisdiction to issue preliminary rulings in these six specific areas is subject to two important carve-outs:

First, the General Court’s jurisdiction is limited to preliminary rulings that only concern one or more of the six specific areas, to the exclusion of any other area. Conversely, the Court of Justice will handle all preliminary ruling references that raise questions both within and beyondthe six areas designated to the General Court.
Second, the General Court’s jurisdiction in these six areas does not cover preliminary ruling references which raise independent questions on the interpretation of: (i) primary EU law;[7] (ii) public international law; and/or (iii) general principles of EU law. Indeed, such proceedings remain within the jurisdiction of the Court of Justice.

In addition, the General Court will also be able to refer to the Court of Justice a case that falls within the General Court’s jurisdiction but requires a decision of principle likely to affect the unity or consistency of EU law. This referral mechanism will likely be of limited use, given the extensive body of rulings by the Court of Justice in each of the six areas.

Procedural safeguards. All preliminary ruling references must be submitted to the Court of Justice, which will in turn determine whether to remit the request to the General Court. The early screening process is designed to ensure that the General Court handles only the cases which fall within the scope of its jurisdiction. This is consistent with the rationale behind the reform: to transfer to the General Court only repetitive questions in areas with well-established case law by the Court of Justice. Once a case is allocated, the competent court must clearly state in its ruling why it is competent to hear and determine the question(s) referred.

Conclusion

This is a rare instance of reform to the jurisdictional split within the two-tier EU judiciary. While the partial transfer of jurisdiction from the Court of Justice to the General Court does not cover preliminary ruling requests in the field of competition law, the reform will likely reduce the (average) length of appeal proceedings before the Court of Justice. It remains to be seen what the exact impact will be on the total duration of EU litigation, including in competition law cases. This reform might also serve as precedent for further jurisdictional transfers in the future, potentially also in the field of competition law and/or merger control. For now, companies and practitioners alike can take comfort from knowing that all preliminary ruling questions pertaining to competition law will be tackled by the Court of Justice.

[1] Regulation (EU, Euratom) 2024/2019 of the European Parliament and of the Council of 11 April 2024 amending Protocol No 3 on the Statute of the Court of Justice of the European Union, OJ L/2024/2019.

[2] Court of Justice of the European Union Press Release 125/24, “Jurisdiction to hear and determine questions referred for a preliminary ruling is conferred on the General Court of the European Union in six specific areas,” August 12, 2024, available here.

[3] European Parliament Briefing PE 754.559, “Amending the Statute of the Court of Justice of the EU Reform of the preliminary reference procedure,” February, 2024, p. 3, available here.

[4] Court of Justice of the European Union Press Release 179/24, “Partial transfer of jurisdiction from the Court of Justice to the General Court: creation within the General Court of a Chamber specialising in preliminary ruling cases, and election of Advocates General,” October 10, 2024, available here.

[5] The following ten judges sit in the General Court’s new specialized chamber: Nina Półtorak, Tuula Riitta Pynnä, Johannes Christoph Laitenberger, Gerhard Hesse, Miguel Sampol Pucurull, Mirela Stancu, Gabriele Steinfatt, David Petrlík, Ioannis Dimitrakopoulos, and William Valasidis. In addition, the following two judges act as Advocate General: José Martín y Pérez de Nanclares and Maja Brkan.

[6] Court of Justice of the European Union, Press Release 125/24, “Jurisdiction to hear and determine questions referred for a preliminary ruling is conferred on the General Court of the European Union in six specific areas,” August 12, 2024, available here.

[7] Primary EU law covers: (i) the Treaty on the European Union; (ii) the Treaty on the Functioning of the European Union; and (iii) the Charter of Fundamental Rights of the European Union.