On 1 September 2024, a significant amendment to the Statute of the Court of Justice of the European Union (the "Statute") entered into force. This amendment will bring an end to the current exclusive jurisdiction of the Court of Justice of the European Union ("ECJ") in preliminary reference procedures. From 1 October 2024 onwards, jurisdiction will be transferred from the ECJ to the General Court of Justice of the European Union ("EGC") in six specific areas. Furthermore, the amendment introduces transparency-enhancing procedural changes for preliminary reference procedures and extends the current mechanism to exclude appeals brought against decisions of the EGC.

The amendment is part of a broader reform of the EU jurisdictional framework to enhance judicial efficiency and, in this regard, takes advantage of a previous judicial reform that increased the number of judges in the EGC. The amendment consists of the following three pillars: (i) transfer of jurisdiction from the ECJ to the EGC for certain preliminary reference procedures, (ii) procedural changes for preliminary reference procedures and (iii) extension of the current mechanism to exclude appeals to the ECJ. Since the two main functions of the ECJ are to give preliminary rulings and to hear appeals on points of law against the judgments and orders of the ECJ, the amendment represents a significant change.

Preliminary rulings

Preliminary rulings are rulings following a preliminary reference procedure initiated by a national court of an EU Member State. This procedure can be initiated by lower courts and must be initiated by a court of last resort in cases where uncertainties arise regarding the interpretation or validity of EU law. The procedure is therefore a keystone of the EU judicial system, ensuring the consistent application of EU law.

Transfer of jurisdiction from ECJ to EGC

The possibility of conferring jurisdiction on the EGC for preliminary reference procedures in certain types of cases has existed for over two decades. It is now used in response to the increasing number of pending preliminary reference procedures and the average time taken to deal with them. To ensure that the ECJ can continue to safeguard the unity and consistency of EU law and render high-quality judgments, transferring jurisdiction to the EGC in specific areas was considered necessary.

The amendment to the Statute confers jurisdiction on the EGC in six specific areas that represent approximately 20% of all preliminary reference procedures and that have given rise to a substantial body of ECJ case law. The ECJ retains jurisdiction over cases that also concern other areas or that in any event raise independent questions of a fundamental nature. Concretely, jurisdiction is thus transferred from the ECJ to the EGC in cases that exclusively concern questions of EU law within one of the following areas:

• The common system of value added tax
• Excise duties
• The Customs Code
• The tariff classification of goods under the Combined Nomenclature
• Compensation and assistance to passengers in the event of denied boarding or of delay or cancellation of transport services
• The system for greenhouse gas emission allowance trading
  
  

The ECJ initially decides on the distribution of cases between the ECJ and EGC. National courts may therefore continue to refer their preliminary questions to the ECJ. The EGC may reassess the ECJ's distribution decision and may refrain from assuming jurisdiction over cases that require a decision of principle likely to affect the unity or consistency of EU law.

To ensure legal certainty and transparency regarding the distribution of cases, future judgments of the ECJ and the EGC must provide reasons why the court in question is competent to hear and determine a preliminary question. To ensure equivalent guarantees in all preliminary reference procedures, the amendment entails an obligation to align the procedural rules of the EGC with those of the ECJ. In this regard, the EGC judges must elect from among themselves judges who will perform the duties of Advocate General for a renewable period of three years.

Procedural changes for preliminary reference procedures

Apart from the transfer of jurisdiction from the ECJ to the EGC in specific areas, the amendment to the Statute entails some procedural changes that apply to all preliminary reference procedures. First, all requests for a preliminary ruling must now be notified to the European Parliament, the Council of the European Union and the European Central Bank, which may then decide whether they wish to exercise their right to submit statements of case or written observations. Second, the public disclosure of such statements or observations of all parties involved (within a reasonable period after the case has ended) will now be the rule, as opposed to the current practice of making individual disclosure upon request. In this regard, a party may only object to the publication of its own statement/observation.

Appeals on points of law against judgments and orders of the EGC

Hearing appeals on points of law against judgments and orders of the EGC is another central function of the ECJ. Article 256 of the Treaty on the Functioning of the European Union allows the scope of this function to be determined by the Statute. The amendment now extends the existing mechanism under the Statute for the determination of whether an appeal is allowed to proceed. In cases that are covered by the mechanism, appeals are only allowed if the ECJ decides that the case raises an issue that is significant with respect to the unity, consistency or development of EU law.

According to ECJ statistics, a high number of appeals are brought against EGC decisions. To maintain the efficiency of appeal proceedings and to allow the ECJ to focus on appeals that raise important legal questions, the mechanism for determining whether an appeal is allowed has been extended in two ways.

First, independent boards of appeal within EU bodies, offices or agencies have been added to the list of relevant boards of appeal whose decisions fall in principle under the EGC's jurisdiction of first and last resort. The list now consists of the following boards of appeal:

• 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

Second, a new category for exclusion has been added for some EGC cases concerning decisions on contracts containing an arbitration clause. In principle, the EGC now has jurisdiction of first and last resort for disputes relating to the performance of contracts containing an arbitration clause – between an EU institution, body or agency and a private party – which do not raise issues that are significant for the unity, consistency or development of EU law.

The impact of the amendment

While the amendment represents a significant change to the two main functions of the ECJ, it remains to be seen to what extent it will allow the ECJ to manage its work more effectively, especially in the long run. It is also uncertain what other, possibly unforeseen, effects the amendment may bring about. For example, time will tell whether the previous judicial reform that increased the number of judges in the EGC will reduce the average time taken to deal with preliminary reference procedures, especially as the barrier for national courts to ask preliminary questions to the EGC might be lower. Furthermore, the amendment may potentially allow the ECJ to become more akin to an EU constitutional court and the EGC to become more akin to an EU supreme court.

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