A New System for Preliminary Rulings for the European Courts in Luxembourg has been Proposed – the General Court as new Instance for Certain Cases
The Court of Justice of the European Union (the “ECJ”) and the General Court in Luxembourg have a very important role to play as the interpreters of EU law. To ensure consistency in the application of EU law throughout the Union, national courts in the EU Member States may request so-called preliminary rulings from the ECJ. The national court thereafter issues its judgment based on the facts in the case, but the interpretation of EU law made by the ECJ through the preliminary ruling may affect a large number of companies or citizens across the EU. Today, the ECJ has exclusive competence to issue preliminary rulings but this may change soon.
Request from the ECJ to transfer certain competence to the General Court
In December 2022 the ECJ issued a request to the Parliament and the Council to reform the Statute of the Court and transfer preliminary references to the General Court within certain areas. The six areas that are suggested to be transferred to the General Court are the Customs Code, compensation to passengers, excise duties, greenhouse gas emission allowance trading and VAT. It is expected that this will lead to a significant reduction in the workload of the ECJ, since such requests represent, on average, about 20% of all requests for a preliminary ruling each year.
It is suggested that requests from national courts must be submitted to the ECJ and that the ECJ will then transmit the request to the General Court after verifying that it comes exclusively within the General Court’s areas of competence. There will however be an exceptional possibility for the General Court to refer the case to the ECJ if it considers that the case ‘requires a decision of principle likely to affect the unity or consistency of Union law’.
Procedural guarantees
There are three proposals that aim to ensure procedural guarantees for the parties in the national proceedings. Firstly, there will be specialized chambers dealing with the new categories of cases. The General Court, that already has specialized chambers in staff matters and trademark cases, will thereby get more specialized in the above areas. Secondly, as a rule, there will be an Advocate General assigned to preliminary ruling cases also before the General Court. Thirdly, the General Court is suggested to have an enlarged number of between 5 and 15 members in its rulings if needed.
Some underlying statistics regarding the increase of preliminary rulings and timelines for judgments
The proposed reform is a response to the increased number of requests for preliminary rulings in recent years, affecting the handling times of these cases. In 2016 there were 470 requests for preliminary rulings, in 2019, 641 requests, and 567 requests in 2021. The average length for dealing with preliminary ruling cases increased from 15 months in 2016 to 16.7 months in 2021.
On a separate note – a need for more requests for preliminary rulings from the Swedish courts
On a separate note, the Swedish courts have not been on the forefront when it comes to requesting preliminary rulings – despite a rather obvious need for such rulings in many cases where claims from one or both parties have been denied by the courts. The unwillingness to seek guidance from the ECJ has attracted criticism over the years from the European Commission, academics and practitioners in EU law. In 2021 there were for example five requests for preliminary rulings from Swedish courts while there were ten from Finnish courts and six from Danish courts according to the statistics from the ECJ. Germany on the other hand was the country requesting most preliminary rulings in 2021, with 106 requests. The three Member States requesting the lowest number of preliminary rulings were Estonia, Greece and Slovakia with two requests each. More frequent requests for preliminary rulings from the Swedish courts is also something that hopefully will change in the future.
A lot of details and the timeline for the proposed reform remain to be seen and we will follow these developments.