As of 1 October 2024, following a recent amendment to Protocol No 3 on the Statute of the Court of Justice of the EU, preliminary reference procedures in specific areas are transferred from the Court of Justice to the General Court of the EU.
As of 1 October 2024, following a recent amendment to Protocol No 3 on the Statute of the Court of Justice of the EU (Court of Justice), preliminary reference procedures in specific areas are transferred from the Court of Justice to the General Court of the EU (General Court).
Preliminary rulings are decisions by the Court of Justice on the interpretation or validity of EU law at the request of national jurisdictions following a national dispute involving EU law. These rulings ensure a uniform application of EU law across all Member States and assist national courts with resolving such disputes.
The procedural rules for preliminary references are outlined in the Rules of Procedure of the Court of Justice (Rules of Procedure), which implement the principles set out in the Statute of the Court of Justice.
The reform addresses the increasing volume and complexity of such cases, introducing two key changes to the Rules of Procedure.
1. Preliminary reference procedures transferred to the general court in specific areas
The amendment transfers the jurisdiction to give preliminary rulings from the Court of Justice to the General Court in 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 delay or cancellation of transport services
- the system for greenhouse gas emission allowance trading
Every request for a preliminary ruling must still be directed to the Court of Justice, which will then determine whether the request falls exclusively within one or more of the specified areas and whether it should be transferred to the General Court.
The Court of Justice retains jurisdiction to give preliminary rulings on requests that raise independent questions of interpretation of primary law, public international law, general principles of EU law or the Charter of Fundamental Rights.
The Court of Justice can review the General Court’s preliminary rulings, at the proposal of the First Advocate General of the Court of Justice if there is a serious risk to the unity or consistency of EU law.
The procedures for preliminary rulings before the General Court will closely align with those of the Court of Justice. Since there are currently no Advocate Generals at the General Court, Judges will elect peers to fulfil this role for a renewable three-year term.
2. Procedural changes to all preliminary reference procedures
In addition to the partial transfer of jurisdiction to the General Court, the reform introduces two amendments that apply to all requests for preliminary rulings, irrespective of whether they fall within the six categories mentioned above.
First, in addition to notifying the Member States and the Commission, all requests for a preliminary ruling must now also be notified to the EU Parliament, the Council, and the European Central Bank. These institutions can now submit statements of case or written observations, if they consider they have an interest in the issue raised.
Second, statements of case and written observations will now be published on the Court of Justice’s website unless a party objects to the publication of its submissions. The purpose of this change is to enhance the openness and transparency of the procedure, which up until now only allowed the disclosure of such documents at an individual’s request.
What are the consequences?
In preliminary reference cases in the specific areas mentioned above, litigants may face ambiguity regarding the final judicial authority that is competent to resolve their request, as the Court of Justice may still retain jurisdiction if it considers that a referral raises questions of interpretation of primary law, public international law, general principles of EU law or the Charter of Fundamental Rights.
Furthermore, once the General Court has adopted a judgment in one of the specific areas, parties will need to wait an additional month before being certain that this decision is final and that it will not be subject to review by the Court of Justice. This could lead to extended proceedings.
In 2023, the Court of Justice received 518 requests for preliminary rulings. The reform will shift an estimated 20% of these cases to the General Court’s specialised chambers, but the effectiveness of this change will depend on its practical implementation.
