COMMISSION OPINION on the draft amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union, presented by the Court of Justice on 26 March 2018
Date: 2018-07-11
Institutions: European Commission, Legal service
Subjects: Court of Justice (EU), judicial reform, operation of the Institutions

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 11.7.2018 COM(2018) 534 final  COMMISSION OPINION on the draft amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union, presented by the Court of Justice on 26 March 2018  
 
 
COMMISSION OPINION 

on the draft amendments to Protocol No 3 on the Statute of the Court of Justice of the 
European Union, presented by the Court of Justice on 26 March 2018 

Having regard to the Treaty on the Functioning of the European Union, and in particular the 
second paragraph of Article 281 thereof, 

1. 

I.  

2. 

On 26 March 2018, the Court of Justice of the European Union submitted a request 
under  the  second  paragraph  of  Article  281  of  the  Treaty  on  the  Functioning  of  the 
European Union (‘TFEU’) to the European Parliament and the Council to amend its 
Statute.  First,  the  Court  of  Justice  proposes  to  transfer  to  the  General  Court 
jurisdiction to adjudicate at first instance in actions under Article 108(2) TFEU and 
in actions for failure to fulfil obligations under Articles 258 and 259 TFEU, subject 
to certain categories of these actions being reserved to the Court. Second, the Court 
of  Justice  proposes  to  transfer  to  the  Court  of  Justice  jurisdiction  to  adjudicate  in 
actions  for  annulment  lodged  by  Member  States  against  Commission  decisions 
linked to a failure properly to comply with a judgment delivered by the Court under 
Article  260(2)  and  (3)  TFEU.  Third,  the  Court  of  Justice  proposes  establishing  an 
initial admission  mechanism for certain appeals before the Court  of Justice. Lastly, 
the  Court  of  Justice  proposes  a  number  of  amendments  designed  to  ensure  greater 
terminological consistency between its Statute and the Treaties. 

General considerations  

As  the  Court  of  Justice  explains  in  its  request  and  the  accompanying  explanatory 
memorandum,  this  request  follows  on  from  the  changes  made  to  the  judicial 
architecture of the Union in 2015 and 2016 by increasing the number of judges of the 
General Court between the end of 2015 and 1 September 20191 and by transferring 
powers to the General Court to rule on disputes between the Union and its servants 
under  Article  270  TFEU2.  In  this  context,  the  Union  legislator  asked  the  Court  of 
Justice to submit two reports to it, each accompanied, as appropriate, by requests for 
amendments  to  the  relevant  provisions  of  the  Statute:  a  first  report,  by  the  end  of 
2017, on possible changes in the division of powers between the Court of Justice and 
the  General  Court  for  preliminary  rulings  under  Article  267  TFEU,  and  a  second 
report, by the end of 2020, on the operation of the General Court and, in particular, 
on the efficiency of the General Court, the effectiveness of and need for an increase 
in  the  number  of  judges  to  56,  resource  efficiency  and  the  further  establishment  of 
specialised chambers and/or other structural changes3. 

1 

2 

3 

the  European  Parliament  and  of 

Regulation  (EU,  Euratom)  2015/2422  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). 
Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on 
the transfer to the General Court of jurisdiction at first instance in disputes between the European Union 
and its servants (OJ L 200, 26.7.2016, p. 137). 
Article 3 of Regulation (EU, Euratom) No 2015/2422. 

1 

 
 
                                                            
3. 

4. 

5. 

6. 

7. 

8. 

9. 

4 

On 14 December 2017 the Court of Justice presented the first of these two reports4. 
In  the  report  the  Court  of  Justice  considers  that  there  is  no  need,  at  this  time,  to 
propose a transfer to the General Court of part of the Court’s jurisdiction with respect 
to  preliminary  rulings,  taking  into  account,  on  the  one  hand,  the  central  place 
occupied  by  references  for  a  preliminary  ruling  in  the  legal  order  of  the 
European Union and, on the other, the need for the General Court to reorganise itself 
and  adjust  its  working  methods  following  the  decision  to  increase  the  number  of 
General Court judges. In limine in the report the Court of Justice states that further 
changes  could  be  made  to  the  division  of  powers  between  the  Court  and  the 
General Court, in particular as regards the processing of direct actions and, as far as 
the  Court  of  Justice  is  concerned,  as  regards  the  processing  of  appeals.  These 
changes form the subject of this request. 

The Commission shares the concern of the Court of Justice to strike the best possible 
balance in the division of powers between the Court and the General Court.  

However, without prejudice to the observations made below on various aspects of the 
Court’s  request,  the  Commission  is  not  convinced  of  the  appropriateness,  at  this 
stage, of making structural changes to the division of powers between the Court and 
the General Court. 

Indeed,  the  Commission  shares  the  view  of  the  Court  of  Justice,  expressed  in  the 
explanatory memorandum accompanying the request, that ‘the impact of the reform 
of the structure of the EU courts has yet to be fully ascertained’. That finding, made 
in  relation  to  the  possibility  of  transferring  some  of  the  powers  associated  with 
preliminary  rulings  to  the  General  Court,  is  equally  valid  for  the  proposal  of  the 
Court  of  Justice  to  transfer  certain  powers  in  respect  of  actions  for  failure  to  fulfil 
obligations.  

On  the  one  hand,  actions  for  failure  to  fulfil  obligations  are  a  key  instrument  for 
monitoring  the  application  of  Union  law.  Any  change  concerning  the  way  these 
actions are processed is therefore an extremely delicate undertaking; this is also the 
case  for  references  for  a  preliminary  ruling.  On  the  other  hand,  the  process  of 
increasing  the  number  of  judges  of  the  General  Court  will  not  be  completed  until 
September  2019,  so  integrating  the  newly  appointed  judges  and  their  staff  into  the 
General  Court’s  organisational  structure  will  remain  a  major  challenge  for  the 
institution. While welcoming the statistical trend, which suggests a reduction in the 
length  of  proceedings  before  the  General  Court,  we  feel  it  would  be  premature  to 
draw firm conclusions and transfer an additional workload to the General Court. It is 
precisely  for  those  reasons  that  the  Union  legislator  invited  the  Court  of  Justice  to 
submit a report on the operation of the General Court by the end of 2020. 

In  addition,  as  the  Commission  will  explain  in  greater  detail  below,  the  transfer  of 
certain  powers  relating  to  an  action  for  failure  to  fulfil  obligations,  as  proposed  by 
the  Court  of  Justice,  is  not  such  as  to  achieve  the  objective  of  relieving  the  Court, 
but,  on  the  contrary,  raises  serious  structural  questions,  as  would  be  the  case  for  a 
partial transfer of jurisdiction in preliminary rulings. 

The Commission therefore takes the view that it would be better to await the report 
on the operation of the General Court to be submitted by the Court of Justice by the 

Report  submitted  pursuant 
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. 

to  Article 3(2)  of  Regulation  (EU,  Euratom)  2015/2422  of 

2 

 
 
                                                            
II.  

10. 

11. 

end of 2020 before making any further changes to the division of powers between the 
Court and the General Court which really will have the effect of relieving the Court. 
However,  the  Commission  shares  the  view  of  the  Court  of  Justice  that  it  is  now 
possible to limit the admission of appeals in the specific cases proposed by the Court 
of Justice in so far as this change has no structural impact and is therefore unlikely to 
pre-empt subsequent decisions. 

On  the  request  to  transfer  to  the  General  Court  jurisdiction  in  principle  at 
first instance in actions under Article 108(2) TFEU and in actions for failure to 
fulfil obligations under Articles 258 and 259 TFEU  

This request is based on three proposed amendments to the Statute. It is also linked 
to  the  request  to  transfer  to  the  Court  jurisdiction  to  adjudicate  in  actions  for 
annulment  lodged  by  Member  States  against  Commission  decisions  relating  to  a 
failure  properly  to  comply  with  a  judgment  delivered  by  the  Court  under 
Article 260(2) and (3) TFEU (see section III). 

First,  by  inserting  Article 51(2)  into  the  Statute,  the  Court  of  Justice  proposes  to 
transfer  to  the  General  Court  jurisdiction  to  adjudicate,  at  first  instance,  in  actions 
under  Article  108(2)  TFEU  and  in  actions  for  failure  to  fulfil  obligations  under 
Articles  258  and  259  TFEU,  subject  to  certain  categories  of  these  actions  being 
reserved  to  the  Court5.  The  first  subparagraph  of  Article  51(2)  of  the  Statute,  as 
proposed by the Court of Justice, would provide as follows: 

‘The General Court shall have jurisdiction to hear and determine, at first instance, 
actions  based  on  the  second  subparagraph  of  Article  108(2),  Article  258  or 
Article 259 of the Treaty on the Functioning of the European Union, except for, as 
regards  actions  based  on  one  of  the  latter  two  provisions,  actions  seeking  a 
declaration that a Member State has failed to fulfil its obligations under the Treaty 
on  European  Union,  Title  V  of  Part  Three  of  the  Treaty  on  the  Functioning  of  the 
European Union or an act adopted on the basis of that title.’ 

12. 

Second,  the  Court  of  Justice  proposes  to  establish  a  mechanism  whereby  the 
General Court,  either  of  its  own  motion  or  at  the  request  of  a  party,  can  refer  a 
specific  case  to  the  Court,  and  to  add  for  that  purpose  the  second  and 
third subparagraphs of Article 51(2) of the Statute, worded as follows: 

‘Where the case calls for a decision of principle or where exceptional circumstances 
so  justify,  the  General  Court  may,  on  its  own  motion  or  at  the  request  of  a  party, 
refer the case to the Court for a ruling by the latter. 

The  request  referred  to  in  the  preceding  subparagraph  shall  be  submitted,  as 
appropriate,  in  the  application  initiating  proceedings  or  within  the  two  months 
following service of the application on the defendant.’ 

Third, the Court of Justice proposes a derogation regime for the handling of appeals 
lodged with it against decisions of the General Court on actions for failure to fulfil 
obligations. To that end, the Court of Justice proposes adding a fourth paragraph to 
Article 61 of the Statute reading as follows: 

From a purely editorial perspective, the Commission wonders whether, in order to achieve the objective 
pursued  by  the  Court  of  Justice,  this  list  should  not  also  include  actions  brought  by  the  Commission 
specifying a lump sum or penalty payment as provided for in Article 260(3) TFEU, since these actions 
constitute a special case amongst actions based on Article 258 TFEU. 

3 

13. 

5 

 
 
                                                            
14. 

15. 

16. 

17. 

18. 

‘By  way  of  derogation  from  the  first  paragraph,  the  Court  shall  examine  all  the 
relevant elements of fact and law and shall give a final ruling on the dispute where it 
declares an appeal brought against a decision of the General Court delivered under 
Article 51(2) of this Statute to be well founded.’ 

Firstly, the Commission raises the question of whether the amendments proposed by 
the Court of Justice are likely to achieve the desired objective, namely to relieve the 
Court of Justice. 

The Commission has examined the impact the proposed transfer would have had if it 
had been applicable in the three years preceding the request of the Court of Justice, 
i.e.  between  1  April  2015  and  31  March  2018.  During  that  period,  84  cases  were 
lodged by the Commission pursuant to Article 258 TFEU, one case was lodged by a 
Member  State  pursuant  to  Article  259  TFEU  and  two  cases  were  lodged  by  the 
Commission  pursuant  to  Article  108(2)  TFEU.  Of  these  87  cases,  according  to  the 
criteria  proposed  by  the  Court  of  Justice,  seven  would  have  remained  within  the 
jurisdiction  of  the  Court  by  virtue  of  being  based  on  a  violation  of  the  Treaty  on 
European  Union  (‘TEU’)  or  Title  V  of  Part  Three  TFEU.  As  such,  the 
Court of Justice would have been relieved of 78 cases in that period, i.e. 26 per year. 
Given the number of new cases lodged on average in 2015, 2016 and 2017 (i.e. 715 
cases),  this  decrease  would  have  accounted  for  barely  3.6 %  of  the  Court’s  total 
annual judicial workload. This number should be reduced further in view, firstly, of 
appeals lodged with the Court of Justice against decisions of the General Court and, 
secondly, the potential for certain cases to be referred to the Court of Justice on the 
grounds  that  they  entail  decisions  of  principle,  or  where  this  is  justified  by 
exceptional circumstances. 

It  follows  that  the  transfer  as  proposed  by  the  Court  of  Justice  would  have  only  a 
negligible impact on the Court’s workload. On the other hand, this would lead to a 
not insignificant increase in the number of cases dealt with by the Union courts as a 
whole.  

Secondly,  the  Commission  is  of  the  opinion  that  the  proposed  amendments  raise 
important structural concerns. 

First, in contrast to other direct actions, in which  - in  most  cases  - the protagonists 
are  natural  or  legal  persons  and  institutions  of  the  Union,  in  actions  for  failure  to 
fulfil  obligations,  the  protagonists  are  two  Member  States  or  an  institution  of  the 
Union  and  a  Member  State.  As  the  second  paragraph  of  Article  40  of  the  Statute 
illustrates,  actions  between  Member  States  and  cases  between  an  institution  of  the 
Union  and  a  Member  State  are  distinct  from  other  actions.  As  such,  actions  for 
failure  to  fulfil  obligations  are  more  comparable  to  direct  actions,  which  would 
continue to be reserved to the Court of Justice pursuant to Article 51 of the Statute in 
its revised form. Lastly, the objective of actions for failure to fulfil obligations is to 
ensure  that  a  Member  State  complies  with  the  obligations  arising  from  Union  law 
and not, as is the case with other direct actions, to obtain a judgment annulling an act 
or establishing a failure to act. 

19. 

Next,  as  with  proceedings  for  a  preliminary  ruling,  a  Union  court  before  which  an 
action for failure to fulfil obligations has been brought must be able to hand down a 
ruling  within  a  short  period  of  time  with  the  force  of  res  judicata  on  the  matters 
referred  to  it.  The  introduction  of  a  two-tier  system  of  jurisdiction  for  actions  for 
failure to fulfil obligations would extend the judicial phase of the action and threaten 

4 

 
 
20. 

21. 

22. 

23. 

24. 

to  turn  it  into  a  long-term  legal  dispute  with  a  negative  political  impact  on 
compliance with Union law.  

Pending the data which the Court of Justice will have to submit by the end of 2020 
on  the  operation  of  the  General  Court  and  any  measures  that  could  be  taken  as  a 
result, the Commission assumes that actions for failure to fulfil an obligation would 
not  be  dealt  with  more  quickly  at  first  instance  by  the  General  Court  than  they 
currently are by the Court.  

In a significant number of cases, the duration of appeal proceedings would be added 
to the duration of the dispute at first instance. In principle, only actions for failure to 
fulfil  obligations  which  it  has  not  been  possible  to  resolve  in  administrative 
proceedings are brought before the Union court. In such cases, the parties might tend 
to  exhaust  all  available  legal  remedies  and  the  duration  of  the  appeal  proceedings 
could often be equivalent to that of the first-instance proceedings.  

The  Commission  notes  that  the  Court  of  Justice  has  proposed  to  introduce  a 
derogation regime for processing appeals against judgments of the General Court in 
the  context  of  actions  for  failure  to  fulfil  obligations.  This  regime  would  prevent  a 
case  being  referred  back  to  the  General  Court  if  the  Court  of  Justice  upheld  the 
appeal but found that the state of the proceedings did not permit it to give judgment. 
However, this poses significant practical difficulties (for example, would the points 
of  fact  which  the  General  Court  had  not  assessed  at  first  instance  have  to  be 
examined  in  the  pleadings  in  the  event  that  the  Court  upheld  the  appeal;  in  such 
cases, would proceedings have to be re-opened?). It is therefore not possible either to 
determine whether this measure could make a real contribution to reducing the length 
of proceedings. 

Extending the length of proceedings is likely not only to prolong legal uncertainty for 
the  authorities,  economic  operators  and  the  general  public,  but  also  to  entrench  a 
dispute and, potentially, non-compliance with Union law, which has already been the 
subject  of  administrative  proceedings  without  a  satisfactory  solution  being  found. 
Extending the judicial phase would delay the moment when the Member State which, 
beyond all doubt, has failed to fulfil its obligations must take the necessary steps to 
bring that infringement to an end. An extension would therefore entrench situations 
of  inequality  of  Member  States  before  the  Treaties,  contrary  to  the  fundamental 
principle laid down in Article 4(2) TEU. 

The  Commission  also  notes  that  the  Court  of  Justice  does  not  propose  to  give 
suspensive  effect  to  the  lodging  of  an  appeal,  which  would  effectively  deprive  the 
proceedings  before  the  General  Court  of  much  of  their  useful  effect,  while  also 
substantially extending the length of proceedings as a whole. Even if the lodging of 
an  appeal  does  not  have  suspensive  effect,  the  introduction  of  a  two-tier  system  of 
jurisdiction  is  likely  to  undermine  actions  for  failure  to  fulfil  obligations  as  an 
instrument which ensures the uniform application of Union law in the interests of all 
Member States, economic operators and the general public. It could have the effect 
of delaying not only the moment at which failure to fulfil obligations is definitively 
established but also the point in time at which, at the request of the Commission, the 
Court recognises in accordance with Article 260(2) TFEU that a Member State has 
not taken the necessary measures to comply with the judgment of the Court.  

25. 

Third, the Commission doubts that the criteria put forward by the Court of Justice to 
determine the cases that would remain under the exclusive jurisdiction of the Court 
are such as to achieve the desired objective, namely to transfer to the General Court 

5 

 
 
only  those  cases  which,  by  virtue  of  the  complaints  and  arguments  invoked,  are 
similar to those which the General Court deals with on a routine basis and to reserve 
to the Court of Justice those cases which may, as indicated by the Court of Justice in 
the  explanatory  memorandum  accompanying  the  request,  ‘have  constitutional 
aspects’6.  

The Commission is well aware that distinguishing between different types of action 
for  failure  to  fulfil  obligations  is  a  complex  exercise.  To  that  extent,  actions  for 
failure to fulfil obligations are no different to references for a preliminary ruling. The 
Court of Justice highlighted these difficulties in its report of 14 December 2017. 

In  so  far  as  the  Court  of  Justice  proposes  that  actions  seeking  a  declaration  that  a 
Member State has failed to fulfil its obligations under the Treaty on European Union 
be  reserved  to  the  Court,  the  Commission  would  point  out  that,  under  case-law,  it 
regularly - albeit on an ancillary basis - alleges an infringement of the provisions of 
that Treaty, in particular of the obligation of sincere cooperation (Article 4(3) TEU). 
However,  reliance  on  such  a  complaint  has  no  impact  on  whether  an  action  has  a 
‘constitutional’ aspect or not7.  

Moreover,  while  it  is  true  that  actions  brought  under  Title  V  of  Part  Three  of  the 
TFEU establishing the area of freedom, security and justice8 regularly raise questions 
of interpretation or validity that are particularly sensitive and urgent, that is not the 
case  for  all  actions  brought  on  that  basis9.  On  the  other  hand,  a  large  number  of 
actions brought under other areas of the TFEU regularly raise very sensitive and new 
issues, which sometimes have a ‘constitutional aspect’ or are particularly urgent, so 
that  a 
the 
Commission’s efforts to ensure compliance with the law in the Union10.  

jurisdiction  risks  considerably  undermining 

two-tier  system  of 

The Court of Justice proposes that the General Court may, of its own motion or at the 
request of one of the parties, refer a specific case to the Court of Justice where it calls 
for  a  decision  of  principle  or  where  exceptional  circumstances  so  justify,  The 
Commission doubts that the proposed criteria are such as to avoid major difficulties 
of interpretation. The Commission considers that, in any event, this choice should be 
based on objective factors, in particular where the parties take opposing positions on 
whether a case should be referred. 

Within that context, the Commission understands the rules proposed by the Court of Justice as meaning 
that any actions which invoke complaints in one of the listed categories will be reserved to the Court 
even if they also - or even mainly - invoke other complaints. 
The Commission notes that in the draft Regulation annexed to its request, the Court does not propose 
adding  actions  for  failure  to  fulfil  obligations  which  invoke  an  infringement  of  the  Charter  of 
Fundamental Rights of the European Union to the list of actions which may not be transferred to the 
General Court. However, in the explanatory memorandum accompanying the request, those actions are 
mentioned among those which often raise particularly sensitive and urgent questions. This issue should 
in any case be clarified. 
With  a  view  to  consistency,  instruments  in  the  field  of  police  and  judicial  cooperation  in  criminal 
matters adopted before the entry into force of the Lisbon Treaty should also be taken into consideration. 
See for example Case C-130/17 seeking a declaration that Bulgaria had failed to fulfil its obligations to 
establish a single point of contact for the exchange of electronic certificates for access to biometric data 
in identity documents pursuant to Commission Decision C(2009)7476 of 5 October 2009. 
See  for  example  Case  C-441/17  seeking  a  declaration  that  Poland  had  failed  to  fulfil  its  obligations 
under  Article  6(3)  of  Council  Directive  92/43/EEC  of  21  May  1992  on  the  conservation  of  natural 
habitats and of wild fauna and flora by approving an appendix to the forest management plan for the 
Białowieża Forest District. 

6 

26. 

27. 

28. 

29. 

6 

7 

8 

9 

10 

 
 
                                                            
30. 

III.  

31. 

32. 

IV. 

33. 

34. 

In  conclusion,  the  Commission  is  of  the  opinion  that  the  transfer  proposed  by  the 
Court  of  Justice  of  some  actions  for  failure  to  fulfil  obligations  would  have  a 
negligible  impact  on  the  workload  of  the  Court  but  would  significantly  extend  the 
judicial phase of actions for failure to fulfil obligations, which could undermine these 
actions as an instrument which ensures the uniform application of Union law in the 
interests  of  all  Member  States,  economic  operators  and  the  general  public.  In 
addition, this transfer would give rise to problems of consistency in case allocation 
between the Court of Justice and the General Court. 

On  the  transfer  to  the  Court  of  jurisdiction  to  adjudicate  in  actions  for 
annulment lodged by Member States against Commission decisions relating to a 
failure  properly  to  comply  with  a  judgment  delivered  by  the  Court  under 
Article 260(2) and (3) TFEU.  

The  Court  of  Justice  proposes  to  add  a  point  (c)  to  Article 51(1)  of  the  Statute 
whereby  actions  for  annulment  brought  by  Member  States  against  Commission 
decisions  relating to  a  failure properly  to comply  with  a judgment delivered by the 
Court under Article 260(2) and (3) TFEU would be reserved to the Court. 

The  Commission  endorses  the  objectives  which  this  proposal  to  amend  the  Statute 
seeks  to  achieve.  This  amendment  would  make  it  possible  to  prevent  actions  for 
annulment being brought against acts of the Commission for the recovery of penalty 
payments  or  lump  sums  from  the  Member  State  concerned  other  than  with  the 
judicial body which imposed the penalty payment or lump sum11. 

On the initial admission of certain appeals by the Court of Justice 

The  Court  of  Justice  proposes  incorporating  a  new  Article  58a  worded  as  follows 
into the Statute: 

‘Where  the  seising  of  an  independent  administrative  body  is  a  prerequisite  of  an 
action  being  brought  before  the  General  Court,  an  appeal  brought  against  the 
decision  of  the  General  Court  shall  not  proceed  unless  the  Court  of  Justice  first 
decides that it should be allowed to do so. 

An appeal shall be allowed to proceed, in accordance with the detailed rules set out 
in  the  Rules  of  Procedure,  where  it  raises,  wholly  or  in  part,  an  issue  that  is 
significant with respect to the unity, consistency or development of EU law. 

Where the appeal is not allowed to proceed, the reasons for the decision not to allow 
it to proceed shall be stated.’ 

The  Commission  endorses  the  objectives  which  this  proposal  to  amend  the  Statute 
seeks to achieve. This concerns appeals brought against judgments and orders of the 
General  Court  concerning  decisions  which  have  already  been  examined  by  an 
independent  administrative  authority  and  have  thus  already  been  subjected  to  a 
two-tier review of legality, as is the case, in particular, for decisions on trade marks 
taken by the European Union Intellectual Property Office (EUIPO)12. With regard to 
these  decisions, it is  proposed to  restrict the admission  of appeals to cases where  a 
decision  of  the  General  Court  might  adversely  affect  the  unity,  consistency  or 
development of Union law. 

11 

12 

See  Judgment  of  the  General  Court  of  29  March  2011,  Portugal  v  Commission,  T-33/09, 
ECLI:EU:T:2011:127, paragraphs 66 and 67.  
Regulation  (EU)  2017/1001  of  the  European  Parliament  and  of  the  Council  of  14  June  2017  on  the 
European Union trade mark (OJ L 154, 16.6.2017, p.1). 

7 

 
 
                                                            
35. 

36. 

37. 

38. 

39. 

40. 

13 

14 

15 

As  the  Court  of  Justice  notes  in  the  explanatory  memorandum  accompanying  the 
request, given that appeals against EUIPO decisions represent a large proportion of 
appeals lodged each year, this amendment would significantly reduce the workload 
of the Court. 

However, the Commission would make the following points. 

First, as regards trade marks, the cases brought before the Union courts are, on the 
one  hand,  direct  actions  against  EUIPO  decisions  on  which,  in  principle,  the 
General Court  rules  in  last  instance,  and,  on  the  other,  references  for  a  preliminary 
ruling  for  which  the  Court  of  Justice  is  and  remains  exclusively  competent.  It  is 
therefore  essential  to  avoid  divergence  in  case-law  via  the  appeal  admission 
mechanism. 

In contrast to the review procedure laid down in Articles 256(2) and (3) TFEU and 
Article 62 of the Statute,13 the Court of Justice proposes that all the rules governing 
this exceptional procedure be laid down in the Rules of Procedure. The Commission 
has no objection in principle as this would enable the rules to be adapted more easily 
on  the  basis  of  acquired  experience.  However,  the  Commission  considers  that  an 
in-depth evaluation of these rules should take place before the relevant section of the 
Statute  is  amended,  taking  account,  in  particular,  of  the  experience  acquired  in  the 
course  of  the  review  procedure  as  currently  laid  down  in  Articles  256(2)  and  (3) 
TFEU  and  Article  62  of  the  Statute  and  of  the  specific  needs  of  the  policy  area 
chiefly concerned, i.e. trade mark law. The Commission takes note of the preliminary 
indications  provided  in  the  explanatory  memorandum  accompanying  the  Court’s 
request  and  proposes  that  a  discussion  be  held  as  soon  as  possible  and  without 
awaiting  the  adoption  of  the  amendments  to  the  Statute  on  the  basis  of  the  draft 
amendments to the Rules of Procedure. 

Next, the Commission takes the view that, in the interests of legal certainty, what is 
meant  by  the  notion  of  ‘independent  administrative  body’  should  be  clarified. 
Several options appear possible.  

A  first  option,  which  would  provide  all  the  requisite  legal  certainty,  would  entail 
incorporating an exhaustive list of these bodies into Article 58a of the Statute: first of 
all, the boards of appeal of the EUIPO, but also the boards of appeal of other bodies 
mentioned by the Court of Justice in the explanatory memorandum to the request [the 
Community  Plant  Variety  Office  (CPVO)14,  the  European  Chemicals  Agency 
(ECHA)15]  or  other  bodies  in  the  same  situation  [such  as  the  European  Aviation 

The Commission also notes the difference in wording between Article 256(2) TFEU (‘Decisions given 
by  the  General  Court’)  and  the  proposed  text  of  Article  58a  of  the  Statute  (‘the  decision  of  the 
General Court’). Whereas in the first case all decisions, including any interim or procedural decisions 
(within  the  limit  of  the  general  rules  on  appeals),  could  form  the  subject  of  a  request  for  review,  the 
second case could be understood as meaning that the initial admission procedure would apply solely to 
the decision of the General Court closing proceedings. 
Council  Regulation (EC)  No 2100/94 of 27  July 1994  on  Community  plant variety  rights  (OJ  L 227, 
1.9.1994, p. 1). 
Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 
concerning  the  Registration,  Evaluation,  Authorisation  and  Restriction  of  Chemicals  (REACH), 
establishing  a  European  Chemicals  Agency,  amending  Directive  1999/45/EC  and  repealing 
Council Regulation  (EEC)  No  793/93  and  Commission  Regulation  (EC)  No  1488/94  as  well  as 
Council Directive  76/769/EEC  and  Commission  Directives  91/155/EEC,  93/67/EEC,  93/105/EC  and 
2000/21/EC (OJ L 396, 30.12.2006, p. 1). 

8 

 
 
                                                            
41. 

42. 

V.  

43. 

44. 

45. 

VI.  

46. 

16 

17 

18 

Safety Agency (EASA)16]. This option would, of course, entail the need to amend the 
Statute in the event of a new body being created with the power to adopt acts which 
could be subject to the provisions of Article 58a of the Statute. Since the entry into 
force of the Lisbon Treaty, the Statute can be amended using the ordinary legislative 
procedure, which will normally be the same as that required to adopt the act creating 
the body in question. 

Another  option  would  be  to  clarify  this  notion  in  the  Regulation  amending  the 
Statute. Accordingly, the clause ‘whose members are not bound by any instructions 
when taking their decisions’ could be added after the words ‘Where the seising of an 
independent  administrative  body  ...’.  This  option  could  give  rise  to  questions  of 
interpretation  where  the  terms  used  in  the  instruments  creating  new  bodies  are 
different  to  those  used  for  the  existing  bodies.  In  this  way,  however,  the  legislator 
would  at  least  make  it  clear  that  it  is  functional  independence  that  is  decisive  and 
sufficient in this context. The proposed wording corresponds to the terms used in the 
instruments which created the bodies referred to in point 4017. It would also appear 
appropriate  to  mention  these  bodies  in  the  recitals  to  the  Regulation  amending  the 
Statute. 

In  the Commission’s view, it should be made  clear that the grounds must be given 
not only for decisions to reject admission of appeals but also for decisions to accept 
admission of appeals. Lastly, these decisions should be made public. 

On certain amendments designed to ensure terminological consistency of certain 
provisions of the Statute with the Treaties 

The  Court  of  Justice  proposes  to  amend  Article  51  of  the  Statute  to  ensure 
consistency of terminology with Articles 263 and 265 TFEU. 
The Commission welcomes the proposed amendments18.  

However,  the  Commission  questions  the  addition  of  the  words  ‘other  than 
recommendations  or  opinions’  and  ‘intended  to  produce  legal  effects  vis-à-vis 
third parties’  to  Article  51(1)(a)(i)  of  the  Statute,  as  amended.  The  Commission 
understands the desired objective, i.e. to take over the wording of the first paragraph 
of Article 263 TFEU. However, it is concerned that the addition of those words, in 
the context of Article 51 of the Statute, could give rise to an erroneous  a contrario 
interpretation  whereby  acts  other  than  the  ones  specified  would  fall  within  the 
jurisdiction of the General Court. 

Conclusions 

In the light of the above, the Commission hereby delivers this opinion: 

Regulation (EC) No 216/2008 of 20 February 2008 of the European Parliament and of the Council on 
common  rules  in  the field of  civil aviation and establishing  a  European Aviation  Safety  Agency,  and 
repealing  Council  Directive  91/670/EEC,  Regulation  (EC)  No  1592/2002  and  Directive  2004/36/EC 
(OJ L 79, 19.3.2008, p. 1). 
See  Article  166(7)  of  Regulation  (EU)  2017/1001,  Article  47(3)  of  Regulation  (EC)  No  2100/94, 
Article 90(2) of Regulation (EC) No 1907/2006 and Article 42(2) of Regulation (EC) No 216/2008. 
In  this  context,  the  Commission  notes  that,  following  various  reforms  of  the  applicable  law,  there  is 
currently  no  legal  basis  enabling  the  Council  to  adopt  delegated  or  implementing  acts  relating  to 
trade defence measures within the meaning of Article 207 TFEU. The Commission therefore notes that, 
subject to transitional arrangements ensuring that cases pending can be heard by the General Court on 
the basis of these provisions (where appropriate after referral), the second indent of Article 51(1)(a)(i) 
of the Statute could be deleted. 

9 

 
 
                                                            
(a) 

(b) 

(c) 

(d) 

(e) 

the  Commission  considers  that it  would  be  appropriate to  await the report  on 
the operation of the General Court to be submitted by the Court of Justice by 
the  end  of  2020  before  making  structural  changes  to  the  division  of  powers 
between the Court and the General Court; 

the  Commission  is  not  in  favour  of  transferring  to  the  General  Court 
jurisdiction  to  adjudicate,  at  first  instance,  in  actions  under  Article  108(2) 
TFEU and in actions for failure to fulfil obligations under Articles 258 and 259 
TFEU; 

the  Commission  is  in  favour  of  transferring  to  the  Court  jurisdiction  to 
adjudicate  in  actions  for  annulment  lodged  by  Member  States  against 
Commission decisions relating to a failure properly to comply with a judgment 
delivered by the Court under Article 260(2) and (3) TFEU; 

the  Commission  is  in  favour,  subject  to  the  considerations  set  out  in  this 
opinion, of the introduction by the Court of an initial admission procedure for 
certain appeals; 

the  Commission  is  in  favour,  subject  to  the  considerations  expressed  in  this 
opinion, of the proposed amendments designed to ensure greater consistency of 
the terminology of the Statute with the Treaties. 

10