Council of theEuropean Union
Brussels, 12 December 2022
(OR. en)15936/22
Interinstitutional File:2022/0906 (COD)

LIMITEJUR 789
COUR 41
INST 455
CODEC 1996

NOTE
From:

General Secretariat of the Council

To:

Delegations

Subject:

Amendment to Protocol No 3 on the Statute of the Court of Justice of
the European Union

Delegations will find attached a letter dated 30 November 2022 from Mr. Koen Lenaerts,
President of the Court of Justice of the European Union, to Mr. Mikuláš Bek, President of theGeneral Affairs Council, transmitting a request to amend Protocol No 3 on the Statute of the
Court of Justice of the European Union, as well as the text of the proposed amendments and its
annexes.

15936/22

LIMITEEN

COURT OF JUSTICEOFTHE EUROPEAN UNION

President

Luxembourg, 30 November 2022
Mr Mikuláš Bek

President of the General Affairs
Council
Council of the European Union
175, rue de la Loi
B-1048 Bruxelles
Dear Mr President,
With reference to the second paragraph of Article 281 of the Treaty on the
Functioning of the European Union and Article 106a(1) of the Treaty establishing
the European Atomic Energy Community, I have the honour of transmitting
herewith, to you, as well as to the President of the European Parliament, thepresent request to amend Protocol No 3 on the Statute of the Court of Justice of
the European Union.
This request is made against a background of sustained high levels of
judicial activity marked by both the volume and complexity of cases brought
before the Court of Justice. The request aims, first, to lay down the specific areasin which the General Court is to have jurisdiction, pursuant to Article 256(3) of
the Treaty on the Functioning of the European Union, to hear and determine
questions referred for a preliminary ruling under Article 267 of that Treaty and,second, to extend the material scope of the mechanism for the determination ofwhether an appeal is allowed to proceed, which entered into force on 1 May 2019.
The amendments to the Statute that follow from the present request,
annexed to this letter in all official languages of the European Union, areexplained in detail in the statement of reasons to which I respectfully refer you.
I remain at your disposal should you require any further clarifications andinvite you to accept, Mr President, the assurance of my highest consideration.
Yours faithfully,
Koen Lenaerts

Rue du Fort Niedergrünewald – L-2925 LUXEMBOURG

Request submitted by the Court of Justice pursuant to the second paragraph of
Article 281 of the Treaty on the Functioning of the European Union, with a view toamending Protocol No 3 on the Statute of the Court of Justice of the European
Union

Introduction
Made on the basis of the second paragraph of Article 281 of the Treaty on the
Functioning of the European Union, the present request for amendment of Protocol No 3
on the Statute of the Court of Justice of the European Union (‘the Statute’) pursues a
twofold objective.
It seeks, first, to lay down the specific areas in which the General Court is to havejurisdiction, pursuant to Article 256(3) of the Treaty on the Functioning of the European
Union, to hear and determine questions referred for a preliminary ruling by the courts ofMember States under Article 267 of that Treaty.
It seeks, second, to include within the scope of the mechanism for the determination ofwhether an appeal is allowed to proceed, which entered into force on 1 May 2019,
appeals brought against decisions of the General Court handed down in respect ofdecisions of boards of appeals of offices, bodies or agencies of the Union which alreadyexisted on the abovementioned date but which are not yet referred to in the firstparagraph of Article 58a of the Statute, and to extend that mechanism to the disputes
referred to in Article 272 of the Treaty on the Functioning of the European Union,
relating to arbitration clauses contained in a contract concluded by or on behalf of theUnion, whether that contract be governed by public or private law.
Those two proposals are made against the background of constant increase in theworkload of the Court of Justice and seek to allow that court to continue to fulfil its
mission conferred on it by the authors of the Treaty, consisting in ensuring, in a timely
manner, ‘that in the interpretation and application of the Treaties the law is observed’. 1
I. The transfer, to the General Court, of jurisdiction to hear and determine
questions referred for a preliminary ruling under Article 267 of the Treaty on the
Functioning of the European Union in specific areas laid down by the Statute1

See Article 19(1) of the Treaty on European Union.

1While requests for a preliminary ruling made by the courts of Member States of theUnion have, to date, always been dealt with by the Court of Justice, the possibility ofentrusting the General Court of the European Union with dealing with some of thoserequests has nevertheless formally existed for over 20 years. At the Intergovernmental
Conference which led to the signing of the Treaty of Nice on 26 February 2001,
Article 225 of the Treaty establishing the European Community was amended with aview to conferring on the General Court jurisdiction which until then it did not have,namely to ‘hear and determine actions or proceedings referred for a preliminary rulingunder Article 234, in specific areas laid down by the Statute’. 2
Inserted into the Treaty against the background, at that time already, of a significant
increase in the workload of the two courts associated with the start of the third phase of
the Economic and Monetary Union and the recent entry into force of the Treaty of
Amsterdam, the possibility of a partial transfer to the General Court of the Court ofJustice’s jurisdiction to give preliminary rulings was regarded, by the Court of Justiceitself, as one of the possible routes to take to avoid the overloading of the courts, inaddition to measures such as the transfer to the General Court of new categories of direct
actions, the creation of judicial review chambers or the filtering of appeals. 3
Notwithstanding the existence of that provision, no change was made, at that time, to the
distribution of jurisdiction between the Court of Justice and the General Court as regards
questions referred for a preliminary ruling. In the years which followed the entry into
force of the Treaty of Nice on 1 February 2003, priority was given to the establishment of
the European Union Civil Service Tribunal and to the transfer to the General Court of allactions for annulment and actions for failure to act which, until then, had been allocatedto the Court of Justice, with the exception of some categories of interinstitutional actions
or actions brought by Member States against acts of the legislature of the Union.
References for preliminary rulings remained within the exclusive jurisdiction of the Courtof Justice, which, in addition, went on to adopt a number of significant amendments to its
Rules of Procedure and a number of measures of internal organisation which had aconsiderable effect on both the number of cases closed by the Court of Justice and on the
average length of time for dealing with cases, which was one of the major concerns that
had given rise to the abovementioned reflections on the future of the judicial system of
the European Union.
The question of a partial transfer of jurisdiction to give preliminary rulings from the
Court of Justice to the General Court was placed on the agenda once again in the context

2

That article corresponds in essence to the current Article 256 of the Treaty on the Functioning of theEuropean Union, whereas Article 234 to which it refers corresponds, subject to terminology changes, to thecurrent Article 267 of the Treaty on the Functioning of the European Union.
3
See, in that regard, the document reflecting on the ‘future of the judicial system of the European Union’,sent to the Council in May 1999 (Doc. 8208/99 of the Council of 11 May 1999), and the contribution
submitted by the Court of Justice and the General Court, a year later, in the context of theIntergovernmental Conference.

2

of the reform of the judicial framework of the Union, adopted in 2015, 4 but again failed,at that time, to lead to the Statute actually being amended with a view to laying down thespecific areas in which the General Court could exercise jurisdiction to give preliminary
rulings. At the invitation of the legislature of the Union to submit, by 26 December 2017,a report on possible changes to the distribution of jurisdiction for preliminary rulings, inparticular in the light of the doubling of the number of Judges of the General Court in thecontext of the abovementioned reform, the Court of Justice took the view, in that report,
submitted to the European Parliament, the Council and the Commission on 14 December
2017, that there was no need, at that time, to make changes to that distribution. 5
The Court of Justice referred, in that regard, to the challenges inherent in that undertaking
but also, and above all, to the fact that the requests for a preliminary ruling brought
before the Court of Justice were dealt with expeditiously – the average length of time for
dealing with such requests was then 15 months; meanwhile, the reform of the judicial
framework of the Union was still underway. Several Judges of the General Court had yet
to be appointed and measures linked, inter alia, to the internal organisation of the General
Court following from the reform had yet to be adopted.
Five years later, however, the situation is very different.
First, the number of requests for a preliminary ruling brought before the Court of Justicehas followed an upward trend and has resulted, for several years, in the gradual increasein the length of proceedings owing to the difficulty for the Court of Justice to deal, as
expeditiously as before, with requests that are not only more numerous but also
increasingly complex or sensitive. 6
Second, the reform of the judicial framework of the European Union has now been fully
carried out. Since July 2022, the General Court has had 2 Judges per Member State,
namely a total of 54 Judges; it has, in recent years, carefully considered its internalorganisation and working methods which has led, in particular, to a partial specialisationof that Court’s chambers, more proactive case management and increased referral ofimportant or complex cases to extended formations, composed of 5 Judges. Those
4

See Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December
2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ L 341,
24.12.2015, p. 14).
5
Report submitted under Article 3(2) of Regulation (EU, Euratom) 2015/2422 of the European Parliamentand of the Council of 16 December 2015 (emphasis added). That report, which is available in all official
languages of the Union, can be consulted at the following website of the institution:
https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-01/en_2018-01-12_08-43-52_183.pdf.
6While the Court of Justice was seised, in 2016, of 470 requests for a preliminary ruling, that number
increased, three years later, to 641 requests, and to 567 requests in 2021. During that same period, theaverage length for dealing with preliminary ruling cases increased, for its part, from 15 months in 2016 to
15.5 months in 2019 and 16.7 months in 2021. By 30 September 2022, the number of requests for apreliminary ruling brought since the start of the year increased to 420, whereas the average length for
dealing with preliminary ruling cases was 17.3 months. For a more detailed overview of cases brought
before the Court of Justice during the period from 1 January 2017 to 30 September 2022 and the
proportion, in that regard, of requests for a preliminary ruling, see the table in Annex I to the present
request.

3

developments place the General Court in a good position to be able to hear and determine
not only a larger number of cases, 7 but also new cases which do not come solely within
the jurisdiction that it has enjoyed until now.
In those circumstances, the Court of Justice takes the view that it is necessary, in theinterests 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 theEuropean Union and to lay down, in the Statute, the specific areas in which the General
Court is to be called upon to hear and determine questions referred for a preliminary
ruling under Article 267 of that Treaty (1). This is the subject matter of the first part ofthe present legislative request, which also specifies, in the interests of increased legal
certainty, the court responsible for ensuring compliance with the distribution ofjurisdiction between the Court of Justice and the General Court in preliminary rulingmatters (2) and the procedural guarantees required in order to ensure that requests for apreliminary ruling transferred to the General Court are dealt with in the best possible
manner (3).
(1) The specific areas in which the General Court is called upon to hear and determine
the requests for a preliminary ruling
As is apparent from the wording of the first subparagraph of Article 256(3) of the Treaty
on the Functioning of the European Union, the jurisdiction of the General Court to hearand determine questions for a preliminary ruling under Article 267 is not a generaljurisdiction, extending to all areas covered by Union law. Its jurisdiction to give
preliminary rulings is to be exercised in specific areas, which presupposes, by definition,that the requests for a preliminary ruling made by the courts of Member States arefocused on those areas and do not raise questions regarding the interpretation or validityof Union law of a horizontal nature.
More specifically, four parameters or guiding principles have guided the Court of Justicein its consideration as regards the laying down of the specific areas in which the General
Court could be called upon to take up the Court of Justice’s jurisdiction to give
preliminary rulings.
The first of those parameters relates to the need for the areas dealt with by the General
Court to be clearly identifiable upon reading the request for a preliminary ruling andsufficiently separable from other areas governed by Union law in order not to give rise to
doubts as to the precise scope of the questions put by the national courts and,
consequently, the jurisdiction of the General Court to deal with them.
The second and third parameters relate, respectively, to the identification of areas whichraise few issues of principle and for which there is a substantial body of case-law of the7This statement, which is also based on the number of cases that have been brought before the General
Court since the adoption of Regulation 2015/2422, does not take account of any potential increase in its
workload linked to the development of the legislative and regulatory activity of the Union, in particular in
the digital sphere.

4

Court of Justice, capable of guiding the General Court in the exercise of its new
jurisdiction and of preventing the potential risk of inconsistencies or divergences in thecase-law.
Lastly, the Court of Justice has focused on identifying areas giving rise to a number ofreferences for a preliminary ruling that is sufficiently high for the transfer of requests fora preliminary ruling to the General Court in the areas concerned to have a real impact on
its workload. A transfer of only a few cases – even if they relate to specific areas – would
not lead to the desired reduction in the workload of the Court of Justice.
On that basis – and after carrying out an in-depth analysis of the relevant statistics
relating to the cases closed by the Court of Justice between 1 January 2017 and
30 September 2022 8 – the Court of Justice has identified six areas that correspond to theabovementioned parameters: the common system of value added tax, excise duties, theCustoms Code and the tariff classification of goods under the Combined Nomenclature,compensation and assistance to passengers, and the scheme for greenhouse gas emission
allowance trading.
Those areas, which are listed in the paragraph 1 of the new Article 50b whose insertion in
the Statute is proposed, 9 are clearly defined and sufficiently separable from other areas
covered by Union law, are governed by a limited number of acts of secondary legislation
and, as is apparent from the abovementioned statistics, rarely give rise to judgments ofprinciple since, out of a total of more than 630 cases, only 3 were dealt with by the Grand
Chamber of the Court of Justice during the period in question. Those areas have,furthermore, given rise to abundant case-law on the part of the Court of Justice, whichshould considerably limit the risks of divergences in the case-law.
While the transfer, to the General Court, of the Court of Justice’s jurisdiction to give
preliminary rulings made in the abovementioned areas should lead to a significant
reduction in the workload of the Court of Justice, since such requests represent, on
average, roughly 20% of all requests for a preliminary ruling brought before the Court ofJustice each year, it is still necessary to set out the arrangements for the distribution ofjurisdiction between the Court of Justice and the General Court and the arrangements for
dealing with requests for a preliminary ruling by the General Court. This is the purpose of
Article 50b(2) and (3).
(2) A single court responsible for receiving the requests for a preliminary ruling and for
ensuring compliance with the distribution of jurisdiction between the Court of Justice and
the General Court in preliminary ruling matters
In so far as the distribution of jurisdiction between the Court of Justice and the General
Court in preliminary ruling matters is governed by a substantive criterion and requests forpreliminary ruling may be mixed in nature and contain questions relating to several areas,
it is important for the referring courts not themselves to decide the question whether their8
9

Those statistics are set out in Annexes 2 and 3 to the present request.
See Article 2 of the proposed regulation.

5

request for a preliminary ruling comes within the jurisdiction of the Court of Justice orwithin that of the General Court. For reasons of legal certainty and expedition,
Article 50b(2) of the Statute therefore provides that, as is the case at present, every
request for a preliminary ruling made under Article 267 of the Treaty on the Functioningof the European Union must be submitted to the Court of Justice and that it is that courtthat will transmit the request to the General Court after verifying, in accordance with thedetailed rules set out in its Rules of Procedure, that that request comes exclusively within
one or within several of the specific areas to which Article 50b(1) of the Statute refers.
It is important to state, in that regard, that the verification carried out by the Court ofJustice in that context does not consist of an assessment of whether it is appropriate torefer the case before the General Court or to leave it with the Court of Justice, in the lightof the interest of the questions referred for a preliminary ruling. That verification seeks
exclusively to ensure compliance with the principle of conferral of jurisdiction, as
Article 256(3) of the Treaty on the Functioning of the European Union does not confer on
the General Court any jurisdiction to rule on questions referred for a preliminary rulingthat do not come within one or within several of the specific areas laid down by the
Statute. A request for a preliminary ruling which covers, simultaneously, the areas listed
in Article 50b(1) of the Statute and areas not within the scope of that article will therefore
be dealt with by the Court of Justice, whereas a request relating exclusively to one orseveral of the areas referred to in that article will automatically be transferred to theGeneral Court, irrespective of the issues at the heart of the case or the importance of thequestions referred.
As a matter of course, the transfer of a request for a preliminary ruling to the General
Court is without prejudice to the option that that court has of referring the case to the
Court of Justice if it considers that the case ‘requires a decision of principle likely toaffect the unity or consistency of Union law’ or to the possibility, for the Court of Justiceitself, to review the decision of the General Court ‘where there is a serious risk of theunity or consistency of Union law being affected’. 10 That review should, however, be
exceptional. As the lodging of a request for a preliminary ruling with the Court of Justiceentails the staying of the proceedings pending before the referring court while awaiting
the reply of the Court of Justice or the General Court to the questions put by that referring
court, the General Court dealing with the request should, in principle, be final.
In that context, in order to promote a uniform approach to the manner in which requests
for a preliminary ruling are dealt with by the Court of Justice and the General Court,
those two courts have taken the view, in the preparation of the present legislative request,that the national courts, the parties to the dispute in the main proceedings and the otherinterested persons referred to in Article 23 of the Statute should be provided with several
procedural guarantees.
(3) Procedural guarantees essential for ensuring that the Court of Justice and theGeneral Court deal with requests for a preliminary ruling in the same manner
10

See, in that regard, the wording of the second and third subparagraphs of Article 256(3) of the Treaty on
the Functioning of the European Union.

6

Three procedural guarantees have thus been inserted into the Statute.
First, the first sentence of Article 50b(3) of the Statute provides that the General Court isto assign requests for a preliminary ruling to chambers designated for that purpose. That
designation of chambers – which is familiar to the General Court, that court having
previously successfully implemented it in respect of staff cases and intellectual property
cases – should facilitate the General Court’s handling of this new type of dispute, while
also promoting enhanced consistency in the treatment of requests for a preliminary rulingmade in the specific areas concerned, since they will all be dealt with by the samechamber(s) of the General Court.
Enshrined in the second sentence of Article 50b(3) of the Statute, the second guarantee inrespect of ensuring that requests for a preliminary ruling are dealt with in the samemanner by the Court of Justice and the General Court follows from the designation, by
the General Court, of an Advocate General in each preliminary ruling case to be dealt
with. In the same way as at the Court of Justice, that designation will not mean that
Opinions will systematically be delivered in such cases since, pursuant to the fifth
paragraph of Article 20 of the Statute – which applies to the General Court by virtue ofthe first paragraph of Article 53 of that Statute – a case may be adjudicated upon without
an Opinion by the Advocate General where it raises no new points of law, but willcontribute to the strength of the analysis carried out by that court, given that each casewill benefit, here as well, from twofold consideration, as the examination of the case fileby the Advocate General designated might usefully supplement, qualify or enrich theanalysis carried out by the Judge-Rapporteur in his or her preliminary report.
Lastly, in so far as some requests for a preliminary ruling, but also other cases, mightmerit the attention of more than 5 Judges, the present legislative request provides for anamendment to Article 50 of the Statute in order to provide the General Court with thepossibility of sitting in a formation of an intermediate size between the chambers of 5
Judges and the Grand Chamber composed of 15 Judges. It should not be necessary toconvene the Grand Chamber of the General Court in order to rule on questionstransmitted to the General Court for a preliminary ruling since, first, cases requiring adecision of principle such as those that usually come within the jurisdiction of the Grand
Chamber should be referred to the Court of Justice pursuant to the second subparagraphof Article 256(3) TFEU, and, second, on account of the number of Judges in the Grand
Chamber, Judges who are not in the chambers designated for that purpose could be led torule in preliminary ruling cases, which would be such as to undermine the guarantee
referred to in the first sentence of Article 50b(3) of the Statute. The third paragraph of
Article 50 provides in that regard that the Rules of Procedure of the General Court are togovern the composition of the chambers and the circumstances in which and conditions
under which the General Court is to sit in its different formations.
Taken together, all of the measures set out above should enable the General Court tomanage this new jurisdiction in the best possible manner, while also promoting the7uniform interpretation and application of Union law, irrespective of which court is called
upon to rule on the request for a preliminary ruling.
II. The extension, at the Court of Justice, of the mechanism for the determination ofwhether an appeal is allowed to proceed
While the first part of the present request to amend the Statute is relatively innovative, thesecond part is, by contrast, more limited in scope. It seeks merely to include within thescope of the mechanism for the determination of whether an appeal is allowed to proceed
appeals brought against judgments or orders of the General Court concerning decisions of
independent boards of appeal of offices, bodies or agencies of the Union that alreadyexisted when the abovementioned mechanism entered into force, on 1 May 2019, butwhich were not referred to in Article 58a of the Statute, and also to extend the mechanism
for that determination to appeals brought against decisions of the General Court handed
down pursuant to arbitration clauses.
When the mechanism for the determination of whether an appeal is allowed to proceed
was established, in 2019, it was made applicable to appeals brought against decisions of
the General Court concerning decisions of the independent boards of appeal of four
offices and agencies of the Union referred to expressly in the first paragraph of
Article 58a of the Statute, 11 and to appeals brought against decisions of the General
Court concerning a decision of an independent board of appeal, set up after 1 May 2019within any other office or agency of the Union, which are required to have been seised
before an action can be brought before the General Court. On 1 May 2019, there alreadyexisted other offices, bodies or agencies of the Union that also have an independent boardof appeal but that are not listed among the offices and agencies of the Union cited in thefirst paragraph of Article 58a of the Statute. Examples include the European Union
Agency for Railways, the European Banking Authority, the European Securities andMarkets Authority and the European Union Agency for the Cooperation of Energy
Regulators.
Since there is no particular reason justifying their non-inclusion in the abovementioned
list, it is therefore proposed, in the interest of enhanced consistency, to amend Article 58aof the Statute so as to add those offices, bodies or agencies which existed on 1 May 2019
to the list of four offices and agencies already referred to in that article and to makeprovision, here as well, for the examination of appeals brought against decisions of theGeneral Court concerning a decision of (one of) their board(s) of appeal being subject to
the Court of Justice determining whether those appeals are to be allowed to proceed. In
accordance with Article 58a(3), an appeal will not be allowed to proceed, wholly or inpart, unless it raises an issue that is significant with respect to the unity, consistency ordevelopment of Union law.
In the same vein, the Court of Justice proposes, furthermore, to extend the scope of themechanism for the determination of whether an appeal is allowed to proceed to appeals
11

The European Union Intellectual Property Office, the Community Plant Variety Office, the European
Chemicals Agency and the European Union Aviation Safety Agency, respectively.

8brought against decisions of the General Court relating to the performance of a contractconcluded by or on behalf of the Union and containing an arbitration clause, within themeaning of Article 272 of the Treaty on the Functioning of the European Union.
Unlike the cases referred to in Article 58a(1), the cases brought before the General Court
under an arbitration clause contained in a contract governed by public or private law
concluded by or on behalf of the Union have not benefited from prior examination by anindependent board of appeal before being referred for examination by the General Court,
but they do not require from the General Court anything beyond the application to thesubstance of the dispute of the national law to which the arbitration clause refers, and not
the application of Union law. In so far as appeals brought in that area are therefore not in
principle capable of raising issues that are significant with respect to the unity,
consistency or development of Union law, the Court of Justice envisages making themsubject to the same mechanism as the one applicable to appeals brought against decisionsof the General Court concerning the decisions of the abovementioned boards of appeal.
List of annexes:(1)

Cases brought before the Court of Justice between 1 January 2017 and
30 September 2022 – Breakdown by type of case(2)

Cases closed by the Court of Justice between 1 January 2017 and 30 September
2022 – Breakdown by type of case(3)

Preliminary ruling cases closed by the Court of Justice between 1 January 2017and 30 September 2022 in the specific areas referred to by the legislative request

9

REGULATION (EU, Euratom) 2022/… of THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL
of …
amending Protocol No 3 on the Statute of the Court of Justice of the European Union
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN
UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 256(3) and the second paragraph of Article 281 thereof,
Having regard to the Treaty establishing the European Atomic Energy Community, andin particular Article 106a(1) thereof,
Having regard to the request of the Court of Justice of 30 November 2022,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Commission of …,
Acting in accordance with the ordinary legislative procedure,
Whereas:(1) At the invitation of the European Parliament and the Council of 16 December 2015, 12
on 14 December 2017 the Court of Justice submitted to the European Parliament, theCouncil and the Commission a report on possible changes to the distribution ofjurisdiction 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 theview 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 togive preliminary rulings in certain specific areas could not be ruled out if the number andcomplexity 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 tostrengthen 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.
(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.
12

See Article 3(2) of Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Councilof 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union(OJ L 341, 24.12.2015, p. 14).

10

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 complexityand 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 theinterests 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 theEuropean 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 specificareas laid down by the Statute.
(3) The General Court is currently in a position to be able to deal with the increase inworkload 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. 13 Nevertheless, since the workload of theGeneral Court is closely related to developments in the Union’s activity, care should betaken to ensure that the General Court remains capable of fully exercising its powers ofreview in respect of the institutions, bodies, offices and agencies of the Union, if
necessary by means of increasing the number of its staff.
(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.
(5) The specific areas must moreover be determined taking into account the need torelieve the Court of Justice from having to examine a sufficiently high number ofpreliminary ruling cases so as to have a real impact on its workload.
(6) The common system of value added tax, excise duties, the Customs Code and thetariff classification of goods under the Combined Nomenclature meet all of theabovementioned criteria to be regarded as specific areas within the meaning of the firstsubparagraph of Article 256(3) of the Treaty on the Functioning of the European Union.
(7) The same is true of compensation and assistance to passengers and the scheme forgreenhouse gas emission allowance trading. In addition to the fact that those two areas
also meet the abovementioned criteria, the General Court is perfectly equipped toadjudicate on requests for a preliminary ruling in those areas, since their factual andtechnical context determines, to a large extent, the useful interpretation of the relevant
provisions of Union law.

13

Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December
2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ L 341,
24.12.2015, p. 14).

11

(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 isnecessary, for reasons of legal certainty and expedition, for the referring courts notthemselves 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 willcontinue to have jurisdiction to adjudicate on requests for a preliminary ruling that,
notwithstanding that they may be connected to those specific areas, also concern otherareas, 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.
(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 ofJustice, 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.
(10) Having regard to the specific features of preliminary ruling proceedings as comparedwith direct actions over which the General Court has jurisdiction, it is appropriate toallocate requests for a preliminary ruling to chambers of the General Court designated forthat purpose.
(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 thechambers of five Judges and the Grand Chamber.
(12) The statistics of the Court of Justice also highlight a high number of appeals brought
against the decisions of the General Court. With a view to maintaining the efficiency of
appeal proceedings and allowing the Court of Justice to focus on the appeals that raise
important legal questions, it is appropriate to extend the mechanism for the determinationof whether an appeal is allowed to proceed, whilst ensuring that the requirements inherent
in effective judicial protection are met.
(13) With this in mind, it is necessary, first, to extend that mechanism to appeals whose
subject matter is a decision of the General Court concerning the decision of an
independent board of appeal of an office, body or agency of the Union which, on 1 May
2019, had such an independent board of appeal but to which Article 58a of the Statute of
the Court of Justice of the European Union does not yet refer. Such appeals concern cases
which have already been considered twice, initially by an independent board of appeal,

12then by the General Court, with the result that the right to effective judicial protection is
fully guaranteed.
(14) Second, it is necessary to extend the abovementioned mechanism to disputes relating
to the performance of contracts containing an arbitration clause, within the meaning of
Article 272 of the Treaty on the Functioning of the European Union. Those disputes
require the General Court merely to apply to the substance of the dispute the national law
to which the arbitration clause refers and thus do not raise, in principle, issues that are
significant with respect to the unity, consistency or development of Union law.
HAVE ADOPTED THIS REGULATION:
Article 1
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:‘The General Court shall sit in chambers of three or five Judges. The Judges shall electthe Presidents of the chambers from among their number. The Presidents of the chambersof five Judges shall be elected for three years. They may be re-elected once.
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 asingle Judge.
The Rules of Procedure shall govern the composition of the chambers and thecircumstances in which and conditions under which the General Court shall sit in its
different formations.’
Article 2
The following Article is inserted in the Statute:‘Article 50b
1. The General Court shall have jurisdiction to hear and determine requests for apreliminary 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.

13

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. Afterverifying, in accordance with the detailed rules set out in its Rules of Procedure, that therequest for a preliminary ruling comes exclusively within one or within several of theareas to which paragraph 1 refers, the Court of Justice shall transmit that request to theGeneral Court.
3. The requests for a preliminary ruling transmitted to the General Court shall beassigned, in accordance with the detailed rules set out in its Rules of Procedure, tochambers 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.’
Article 3
Article 58a of the Statute is replaced by the following:‘1. An appeal brought against a decision of the General Court concerning a decision of an
independent board of appeal of one of the following offices, bodies and agencies of theUnion shall not proceed unless the Court of Justice first decides that it should be allowed
to do so:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)

the European Union Intellectual Property Office;
the Community Plant Variety Office;the European Chemicals Agency;
the European Union Aviation Safety Agency;
the European Union Agency for the Cooperation of Energy Regulators;
the Single Resolution Board;
the European Banking Authority;
the European Securities and Markets Authority;
the European Insurance and Occupational Pensions Authority;
the European Union Agency for Railways.

2. The procedure referred to in paragraph 1 shall also apply to appeals brought against:– decisions of the General Court concerning a decision of an independent board of
appeal, set up after 1 May 2019 within any other office, body or agency of the Union,
which must be seised before an action can be brought before the General Court;– decisions of the General Court relating to the performance of a contract containing an
arbitration clause, within the meaning of Article 272 of the Treaty on the Functioning of
the European Union.
3. An appeal shall be allowed to proceed, wholly or in part, in accordance with thedetailed rules set out in the Rules of Procedure, where it raises an issue that is significant
with respect to the unity, consistency or development of Union law.

14

4. The decision as to whether the appeal should be allowed to proceed or not shall bereasoned, and it shall be published.’
Article 4
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 firstday of the month following the date of entry into force of this Regulation shall be dealt
with by the Court of Justice.
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.
Article 5This Regulation shall enter into force on the first day of the month following that of its
publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member
States.

15

Annex 1
Cases brought before the Court of Justice between 1 January 2017 and 30 September 2022
Breakdown by type of case

2017

%

2018

%

2019

%

2020

%

2021

%

2022 (1)%References for a preliminary ruling

533

72.1%

568

66.9%

641

66.4%

557

75.6%

567

67.7%

420

66.7%

Direct actions

46

6.2%

63

7.4%

41

4.2%

38

5.2%

29

3.5%

28

4.4%

Appeals (2)

147

19.9%

199

23.4%

266

27.5%

131

17.8%

232

27.7%

174

27.6%

Requests for an opinion

1

0.1%

0.0%

1

0.1%

1

0.1%

Special forms of procedure (3)

12

1.6%

2.2%

17

1.8%

10

1.4%

Total

(1)

739

19
849

966

737

0.0%

10
838

1.2%

0.0%

8

1.3%

630

Cases brought between 1 January 2022 and 30 September 2022.

(2)

This row includes appeals brought under Article 56 of the Protocol on the Statute of the Court of Justice and also appeals against interim measures and appeals on intervention as referred to in Article 57 of that
Protocol.
(3)

The following are considered to be ‘special forms of procedure’: legal aid, taxation of costs, rectification, failure to adjudicate, proceedings to have a judgment by default set aside, third-party proceedings,
interpretation, revision, examination of a proposal of the First Advocate General to review a decision of the General Court, attachment proceedings and cases concerning immunity.

Annex 2
Cases closed by the Court of Justice between 1 January 2017 and 30 September 2022
Breakdown by type of case (1)

2017

%

2018

%

2019

%

2020

%

2021

%

2022 (2)%References for a preliminary ruling

447

63.9%

520

68.4%

601

69.5%

534

67.4%

547

70.9%

382

68.0%

Direct actions

37

5.3%

60

7.9%

42

4.9%

37

4.7%

30

3.9%

32

5.7%

Appeals (3)

198

28.3%

165

21.7%

210

24.3%

204

25.8%

183

23.7%

142

25.3%

Requests for an opinion

3

0.4%

0.0%

1

0.1%

0.0%

1

0.1%

1

0.2%

Special forms of procedure (4)

14

2.0%

2.0%

11

1.3%

2.1%

11

1.4%

5

0.9%

Total

699

15
760

865

17
792

772

(1)

The figures referred to (gross figures) show the total number of cases without account being taken of joinders of cases on the ground of similarity (one case number = one case).

(2)

Cases closed between 1 January 2022 and 30 September 2022.

562

(3)

This row includes appeals brought under Article 56 of the Protocol on the Statute of the Court of Justice and also appeals against interim measures and appeals on intervention as referred to in
Article 57 of that Protocol.
(4)

The following are considered to be ‘special forms of procedure’: legal aid, taxation of costs, rectification, failure to adjudicate, proceedings to have a judgment by default set aside, third-party
proceedings, interpretation, revision, examination of a proposal of the First Advocate General to review a decision of the General Court, attachment proceedings and cases concerning immunity.

Annex 3
Preliminary ruling cases closed by the Court of Justice between 1 January 2017 and 30 September 2022 in the specific areas
referred to by the legislative request
Table 1: Number of cases concerned *

2017

2018

2019

2020

2021

2022

Total

Value added tax

53

47

53

50

51

32

286

Excise duties

5

3

4

3

5

5

25

Customs Code

11

0

7

4

6

2

30

Tariff classification

5

6

6

7

7

1

32

Compensation and assistance topassengers

24

64

28

39

63

19

237

Greenhouse gas emission
allowance trading

3

5

3

3

6

1

21

101

125

101

106

138

60

631

* Where some cases cover several specific areas, they have naturally only been accounted for once and are classified in the column
concerning the principal area to which to relate.

Table 2: Percentage of the cases closed in the specific areas in relation to the total number of preliminary ruling cases
closed during the year in question

2017

2018

2019

2020

2021

2022

Total

Number of cases in the specificareas referred to by thelegislative request

101

125

101

106

138

60

631

Total number of preliminary
ruling cases closed

447

520

601

534

547

382

3 031

22.60%

24.04%

16.81%

19.85%

25.23%

15.71%

20.82%

Table 3: Procedural treatment of those cases during the period in question
Formation *Total
numberof casesGrand
Chamber

Value added tax

286

2

113

139

113

Excise duties

25

0

12

8

8

Customs Code

30

0

17

11

14

Tariff classification

32

0

0

29

2

Compensation and assistance topassengers

237

1

43

20

16

Greenhouse gas emission
allowance trading

21

0

11

7

10

631

3

196

214

163

Chamber of Chamber of
3 Judges
5 Judges

Opinions* The discrepancy between the total number of cases coming within an area and the sum of the cases
closed by the different formations can be explained, in essence, by the withdrawal of some cases,
which are disposed of by an order, adopted by the President, removing the case from the register.