COMMISSION OPINION on the draft amendment to Protocol No 3 on the Statute of the Court of Justice of the European Union, presented by the Court of Justice on 30 November 2022
Date: 2023-03-10
Institutions: European Commission, Legal service
Subjects: Court of Justice of the European Union, appeal to the Court (EU), institutional structure, judicial reform, operation of the Institutions, transfer of competence

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   EUROPEAN COMMISSION  Brussels, 10.3.2023  COM(2023) 135 final 2023/0070 (COD)  COMMISSION OPINION on the draft amendment to Protocol No 3 on the Statute of the Court of Justice of the European Union, presented by the Court of Justice on 30 November 2022  
 
 
COMMISSION OPINION 

on the draft amendment to Protocol No 3 on the Statute of the Court of Justice of the 
European Union, presented by the Court of Justice on 30 November 2022 

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  30  November  2022,  the  Court  of  Justice  of  the  European  Union  submitted  a 
request  to  the  European  Parliament  and  the  Council  under  the  second  paragraph  of 
Article 281  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU)  to 
amend Protocol  No 3 on the Statute of the Court of Justice of the European Union 
(the Statute). The main part of that request is to make use of the possibility provided 
for in the first subparagraph of Article 256(3) of the Treaty on the Functioning of the 
European Union to  transfer to  the General  Court jurisdiction to hear and determine 
questions referred for a preliminary ruling under Article 267 of that Treaty in specific 
areas laid down by the Statute. A new Article 50b would be inserted into the Statute 
for  this  purpose.  The  second  part  is  a  proposal  to  extend  the  mechanism  for  the 
determination of whether an appeal is allowed to proceed provided for under Article 
58a  of  the  Statute,  which  would  be  consolidated  and  replaced.  These  two  parts  are 
accompanied by a proposal for a specific amendment to Article 50 of the Statute as 
regards the composition of the chambers of the General Court. 

General considerations  

As the Court of Justice explains in its request and in the accompanying explanatory 
memorandum, the main part of this request is made in the context of the extension of 
the reform of the judicial framework of the Union, decided in 2015, which led to the 
doubling  of  the  number  of  judges  in  the  General  Court1.  The  Court  of  Justice 
highlights  the  significant  increase  in  both  the  number  of  requests  for  a  preliminary 
ruling and the average duration of proceedings. The Court of Justice also stresses that 
the aim of strengthening the General Court, in line with the aforementioned reform, 
has  now  been  achieved  and  the  General  Court  has  begun  to  adapt  its  working 
methods  in  order  to  improve  the  coherence  and  effectiveness  of  the  proceedings 
falling within its jurisdiction. As regards the second part of the request, the Court of 
Justice  proposes  extending 
the 
determination of whether an appeal against a judgment or order of the General Court 
is allowed to proceed to include, on the one hand, other independent boards of appeal 
of offices, bodies or  agencies of the European Union  and, on the other hand, cases 
referred to in Article 272 TFEU relating to the performance of a contract containing 
an arbitration clause. 

in  20192,  for 

the  mechanism, 

introduced 

3. 

The Court of Justice justifies its request on the basis that both courts need to be able 
to  perform properly the  tasks assigned to  them by  the Treaties, taking into account 
the developments described in the previous paragraph.  

4. 

The Commission fully shares the objective of this reform. 

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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). 
Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 14 April 2019 
amending  Protocol  No  3  on  the  Statute  of  the  Court  of  Justice  of  the  European  Union  (OJ L 111, 
25.04.2019, p. 1). 

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5. 

6. 

7. 

8. 

II.  

9. 

10. 

It is essential that the Court of Justice is able to fulfil its role as the supreme judicial 
body of the Union. In order to do so, it must be able to focus more on cases which 
raise  issues  of  fundamental  importance  to  the  Union  legal  order,  by  devoting  all 
necessary resources to the handling of those cases and, where this proves necessary, 
by  deepening  dialogue  with  national  courts,  including  courts  of  last  instance,  to 
ensure the unity of the Union legal order. 

Moreover,  it  seems  essential  that  the  expertise  specific  to  the  General  Court  in 
dealing with technical and complex cases, as well as the additional resources of the 
General Court resulting from the reform of the judicial framework of the Union, be 
placed fully at the service of individuals. 

For those reasons and in view of the constant increase in the number of requests for a 
preliminary ruling, which must be dealt with expeditiously in order to enable national 
courts  to  guarantee  individuals  respect  for  the  right  to  an  effective  remedy,  the 
Commission agrees with the Court of Justice that, despite the difficulties inherent in 
such an operation, it has become necessary for the Court of Justice and the General 
Court  to  share  jurisdiction  over  requests  for  a  preliminary  ruling.  Nonetheless,  the 
Commission  sets  out  below  some  comments  on  the  main  part  of  the  request 
submitted by the Court of Justice. 

As regards the second part of the reform and the specific amendment to Article 50 of 
the Statute, the Commission has no particular remarks to make and is able to give a 
favourable opinion on this subject. 

The  transfer  to  the  General  Court  of  jurisdiction  to  hear  and  determine  the 
questions referred for a preliminary ruling under Article 267 TFEU in specific 
areas 

II.1 Choice and definition of specific areas 

In its choice of specific areas, the Court of Justice explains that it was guided by four 
parameters. First, the need for those areas to be clearly identifiable and sufficiently 
separable; second, that they raise few issues of principle; third, that there is already a 
substantial body of case law on the area; fourth, that the choice enables a sufficiently 
high  number  of  references  for  a  preliminary  ruling  to  be  transferred.  Using  these 
parameters, the Court of Justice identified the following specific areas: the common 
system  of  value  added  tax;  excise  duties;  the  Customs  Code  and  the  tariff 
classification of goods in the Combined Nomenclature; compensation and assistance 
to passengers; the system for greenhouse gas emission allowance trading. 

The  Commission  approves  the  choice  of  parameters  used  by  the  Court  of  Justice. 
Adding  other  parameters,  such  as  the  issue  of  whether  the  cases  relating  to  the 
specific areas entail significant budgetary implications, would jeopardise the aim of 
transferring  a sufficiently  high  number of references for a preliminary ruling to  the 
General  Court  to  relieve  the  Court  of  Justice  and  to  enable  the  General  Court  to 
develop a real and significant practice. The Commission thus welcomes the choice of 
specific areas identified. In particular, there is a significant body of case law in these 
areas on which the General Court can rely, even if, as is the case with all areas of EU 
law, those areas are liable to legislative changes which may lead the General Court to 
develop new case law3. 

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This  could  be  the  case,  in  particular,  following  the  adoption  of  the  new  Customs  Code,  replacing 
Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying 
down the Union Customs Code, OJ L 269, p. 1. 

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11. 

12. 

13. 

14. 

15. 

16. 

17. 

18. 

The  Commission  approves  the  approach  proposed  by  the  Court  of  Justice  not  to 
make a distinction between requests for a preliminary ruling regarding interpretation 
and those regarding validity. 

As regards the definition of those specific  areas,  it may  be useful to  clarify  further 
the areas in which jurisdiction over preliminary rulings is transferred to the General 
Court, while retaining the flexibility necessary to ensure that those areas are defined 
so as to ensure their allocation in such a way that takes into account developments in 
the acquis. This aim could, for example, be achieved by including in the recitals of 
the proposed Regulation an abstract but sufficiently precise description of the various 
components of each specific area concerned, at the time of adoption of the reform.  

In any event, it should be noted that the decision to transfer an incoming request for a 
preliminary ruling is without prejudice to any decision that the General Court may be 
required to take pursuant to the second subparagraph of Article 256(3) TFEU and the 
precise provisions that should be inserted into the Rules of Procedure of the General 
Court in that regard. 

II.2  The  condition  that  a  request  for  a  preliminary  ruling  falls  ‘exclusively 
within one or several of the specific areas’ 

The Court of Justice proposes that the General Court acquire jurisdiction to hear and 
determine  requests  for  a  preliminary  ruling  which  fall  ‘exclusively  within  one  or 
several  of  the  specific  areas’,  so  that  a  request  for  a  preliminary  ruling  involving 
issues relating both to those specific areas and to other areas would remain with the 
Court of Justice. 

The Commission agrees with this approach in principle. However, it considers that it 
would be preferable to clarify, preferably in the recitals to the draft Regulation, what 
is meant by ‘exclusively within one or several of the specific areas’ in the situation 
that regularly arises, in which a request for a preliminary ruling includes issues both 
of interpretation or validity of provisions of a Union act falling within one or several 
of  the  specific  areas,  and  of  issues  of  interpretation  of  primary  law  provisions, 
general principles of law or the Charter. 

According to the Commission, the fact that a request for a preliminary ruling requires 
an  interpretation  of  whether  the  rules  relating  to  specific  areas  are  consistent  with 
primary or international law, or even where the request includes an issue relating to a 
specific legal act the substantive content of which is equivalent to general principles 
of law or the Charter, should not preclude transfer to the General Court. 

On the other hand, a request for a preliminary ruling which raises questions which do 
not relate as such to the  interpretation of an act falling within one of those specific 
areas but, for example, to provisions of primary law, general principles of law or the 
Charter should remain within the jurisdiction of the Court of Justice even if the legal 
context  of  the  main  proceedings  falls  within  one  of  those  specific  areas.  The  same 
approach  should  be  followed  where  a  referring  judge  simultaneously  submits 
questions  relating  to  the  interpretation  or  validity  of  the  provisions  of  a  Union  act 
falling within one or several of the specific areas and separate questions relating to 
the interpretation of primary law provisions, general principles of law or the Charter. 

Finally,  it  would  also  be  preferable  to  specify  the  arrangements  for  allocating 
requests  for  a  preliminary  ruling  which,  in  addition  to  issues  falling  within  one  or 
more of the specific areas, explicitly or implicitly  raise issues of the jurisdiction of 
the Court of Justice or admissibility (conditions laid down in Article 267 TFEU and 
the  Rules  of  Procedure).  The  Commission  sees  no  compelling  reasons  against  the 

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transfer  of  such  requests  to  the  General  Court,  since  the  conditions  relating  to  the 
jurisdiction of the Court of Justice or the admissibility of requests for a preliminary 
ruling must from now on be applied by both courts. 

II.3 The transfer procedure 

19. 

As  regards  the  transfer  procedure,  the  draft  Regulation  merely  provides  that  all 
requests  for  a  preliminary  ruling  are  to  be  submitted  to  the  Court  of  Justice.  The 
Court  of  Justice,  after  verifying  that  the  conditions  discussed  in  the  preceding 
paragraphs have been met in accordance with the detailed rules set out in its Rules of 
Procedure,  will  transmit  each  request  for  a  preliminary  ruling  falling  within  the 
specific areas to the General Court. 

20. 

The Commission has no objections to this basic rule of the transfer procedure.  

21. 

22. 

23. 

24. 

II.4 The detailed rules and procedure applicable to the handling of requests for 
a preliminary ruling by the General Court 

The  Court  of  Justice  proposes  that  the  General  Court  hear  the  preliminary  ruling 
cases  transferred  to  it  in  chambers  designated  for  that  purpose,  in  accordance  with 
the detailed rules set out in the Rules of Procedure of the General Court. The Court 
of Justice also proposes that an Advocate General be designated in all cases, again in 
accordance with  the detailed rules set  out  in  the Rules of Procedure of the General 
Court, it being understood that such designation does not mean that an Opinion will 
systematically be delivered in all cases. 

The Commission supports the greater specialisation of the Chambers of the General 
Court.  This  is  all  the  more  important  since  the  handling  of  the  preliminary  ruling 
cases  transferred  to  it  will  require,  in  addition  to  expertise  in  the  specific  areas,  a 
mastery  of  the  detailed  rules  of  the  preliminary  ruling  procedure,  which  differs 
significantly from the procedures for which the General Court has been responsible 
until now. The Commission considers that this reform could provide an opportunity 
for the General Court to continue its reflection on the more general introduction of a 
degree of specialisation to the Chambers. 

Furthermore, the Commission considers that the General Court should include in its 
Rules  of  Procedure,  and  effectively  apply  in  practice,  all  the  detailed  rules  of 
procedure enabling requests for a preliminary ruling to  be dealt with  expeditiously, 
including,  in  particular,  the  possibility  of  deciding  a  case  without  a  hearing  or 
without  the  Advocate  General’s  Opinion,  or  by  reasoned  order.  In  addition,  the 
Commission considers that it would be particularly appropriate for the General Court 
to  adopt  a  practice  ensuring  that,  in  cases  in  which  an  Opinion  is  delivered,  it  is 
delivered  very  quickly  after  the  hearing,  if  there  is  one,  so  as  not  to  delay  the 
deliberation of the case and the decision of the General Court. 

Finally,  as  regards  the  designation  of  Advocates-General,  the  Commission  has  no 
objections  as  such  to  the  provision  proposed  by  the  Court  of  Justice  in  the  draft 
amendment  to  the  Statute.  Nonetheless,  the  Commission  considers  that  particular 
attention should be paid  to the arrangements for appointing the Advocates-General, 
who will be chosen from among the judges of the General Court, in accordance with 
Article 49 of the Statute. The Commission suggests exploring the option of providing 
that  a  judge  belonging  to  a  Chamber  other  than  that  to  which  the  request  has  been 
assigned fulfil the role of Advocate-General for a certain period, to be no shorter than 
three years, either for all requests for a preliminary ruling assigned to that Chamber, 
or  for  requests  for  a  preliminary  ruling  falling  within  one  or  more  of  the  specific 
areas. 

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III.   Conclusion 

25. 

The Commission gives a favourable opinion on the draft amendment to Protocol No 
3  on  the  Statute  of  the  Court  of  Justice  of  the  European  Union,  presented  by  the 
Court of Justice on 30 November 2022. 

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