Advancing a Multi-Perspective Assessment of the Reformed EU Judicial Architecture: An Introduction to the Special Section

‘The most relevant overhaul of the Union’s judiciary since the creation of the Court of First Instance in 1989’.[1] ‘The genie out of the bottle’.[2] ‘A milestone in the incremental process of transformation of the EU judicial architecture’.[3] Much has already been said about the 2024 landmark reform of the EU judicial architecture, especially concerning its focal point: the partial transfer of jurisdiction on preliminary references from the Court of Justice to the General Court. Even if comparatively less considered in the literature, the two other key novelties introduced by the reform – the new regime for publication of written pleadings and participation in preliminary reference proceedings, as well as the extension of the scope of the prior admission on appeal mechanism – have not slipped through the scholarly cracks. Hence, editing a Special Section on the 2024 amendments to the Statute of the Court of Justice of the European Union,[4] one year after their adoption and following extensive scholarly contributions previously published,[5] may at first sight appear as a futile or untimely effort. 

Upon closer look, the peculiar features and profound implications of the reform under analysis still require further reflection. There are at least two reasons for that. First, most scholarly analyses on the subject have been published before or in the wake of the reform becoming operational in October 2024. The early practice developed over the last eight months, leading the General Court to finally render its first preliminary ruling[6] in the same days as we finalise this Introduction, warrants consideration. On the one hand, it paves the way to provide fresh new insights for addressing interrogatives that have previously emerged – such as the Court’s approach to attributing the preliminary references to the General Court under the so-called guichet unique mechanism, the role of Advocates General at the General Court, as well as the impact of the dividing line between the Court and General Court’s jurisdiction on national judicial authorities’ drafting of preliminary questions. On the other hand, the recent practice is liable to raise even new questions on the evolution of the EU judicial architecture.

Secondly, the 2024 reform of the Statute of the Court of Justice of the European Union has previously been assessed from a predominantly procedural standpoint. Assessing the novelties introduced after their full implementation provides a propitious time for expanding the scope of the analysis to a multi-perspective approach. That is the main objective of this Special Section and its key methodological underpinning. Indeed, the recently introduced amendments address sensitive structural features of the EU judicial system and pave the way for a profound rethinking of its architecture in the near future. The implications of the reform extend well beyond the procedural dimension, as they involve substantive issues that need to be addressed. In particular, is the reform effectively attaining the objectives featured in the narratives surrounding its early drafting? How is the reform renewing the relationship between the Court of Justice and the General Court? In which way has the role of judges and Advocates General at the General Court evolved? How do the new rules on transparency in preliminary reference proceedings square with the principle of open justice? And, finally, in which direction is the EU judiciary evolving?

To address these issues, while sticking to a legal normative approach, the Special Section develops a multi-perspective assessment that enables a comprehensive picture of the reformed EU judicial architecture and its potential evolution from various angles. To that aim, we have gathered several authors giving voice to the diverse standpoints featured in this publication project. In particular, this publication brings together and puts into dialogue the perspectives of analysis of both insiders and outsiders to the EU judiciary. Given their position and background, the former – including a Judge at the General Court, an Advocate General at the Court of Justice and a référendaire – are arguably best placed to address the reform’s early impact on the role and tasks of the main actors on the stage of the EU judicial system. Conversely, academic authors complement the analysis by taking broader perspective angles, thus addressing the evolution of the EU judicial architecture as a whole.

To enhance dialogue between the different perspectives of analysis, the Special Section is organised into two parts published in distinct issues of European Papers. Each of the two parts features contributions authored by both academics and insiders to the Court of Justice of the European Union. Such a structure enables fruitful exchanges and interrelations with different perspectives within and between the two Issues, thereby contributing to the Special Section’s underlying objective.

Against these conceptual and methodological premises, a disclaimer should be made. One perspective that is not covered in our special section – at least not directly – is that of national courts. While some national judges have previously commented on the broader issues raised by the reform of the Statute of the Court of Justice of the EU,[7] such contributions remain limited in the scholarly panorama. To date, the academic literature has only a handful of interventions specifically addressing the position of national courts within the framework of the reformed preliminary ruling procedure.[8] However, it is worth noting that a couple of national judges we invited to contribute to our special section and reflect on the reform from the perspective of national courts declined to do so, expressing doubts as to whether the position of national judges would be significantly be touched upon by this reform. Of course, we cannot be sure whether this sentiment among national judges is widely shared or merely incidental, or whether this will change – towards a greater or even lesser interest – when the full implications of the reform become known. Still, it is important to mention this caveat in the introduction to our Special Section, with hopes that this ‘third wheel’ of the EU judicial machinery – the Union ordinary courts which hold general jurisdiction in the application of EU law – will be involved in the formal and informal discussions concerning the future of the EU judiciary. After all, on their willingness to engage with the two EU courts and to implement their rulings in good faith depends the effectiveness of the entire endeavour. The importance of this point explains why, even if not explored from the perspective of national judges, the latter aspect has been incidentally addressed by other contributions to this publication project.

It is now time to introduce the Special Section’s layout. The current Issue of European Papers features four articles in this respect. The first contribution – authored by us, Lorenzo Grossio and Davor Petrić – provides the introductory groundwork for the analyses developed in the following articles. Indeed, it advances a comprehensive assessment of the amended provisions of Protocol No 3 and the Rules of Procedure of both the Court of Justice and General Court from an institutional and procedural standpoint to pave the way to the perspectives featured in the Special Section.

The successive stream of analysis critically reviews the narratives underpinning the reform and their actual implications. Indeed, the literature and practice consistently framed the amendment of the Statute of the Court of Justice as an answer to three complementary needs. These are, in particular, to reduce the Court of Justice’s workload, take stock of the General Court’s specialisation in given fields, and enhance the Court of Justice as a supreme or constitutional court, whose access should be limited to questions of the crucial importance for the coherence and unity of the EU legal order. In his article, Jacopo Alberti reviews such narratives vis-à-vis the renewed features of the EU judicial architecture to offer an alternative account of the legacy of the 2024 reform.

The second perspective moves the focus of the analysis to the implications of an underexplored – yet profoundly significant – novelty introduced by the reformed Statute: the proactive publication of written submissions in preliminary reference procedures. In particular, Ilaria Fevola and Stefano Montaldo assess the new provisions on transparency through the prism of the principle of open justice, thus unveiling the paradigm shift underpinning the publication of submissions. Moreover, building upon a comprehensive assessment of the relevant early practice, their article addresses the key issues concerning the limits inherent in the publication arrangements defined by the reformed Statute.

An insider’s perspective concludes the first half of the Special Section. Judge Ornella Porchia reflects on the implications and implementation of the organisational set-up defined by the General Court to cope with the new jurisdictional functions assigned. By delving into the practice developed so far, her analysis yields some preliminary findings on some key issues. Among them, Judge Porchia examines whether the domestic courts tend to ‘strategically’ draft preliminary questions by including references to primary law, thus seeking their reference to be heard and adjudicated by the Court of Justice rather than the General Court. In this respect, the Author advances a negative answer and expresses positive expectations for the functioning of the new procedure before the General Court, which should lead to more areas of EU law being delegated to the General Court’s docket in the future.

The second half of the Special Section, published in Issue No 3, is kicked off by further reflections from an institutional perspective. By entering into dialogue with Jacopo Alberti’s findings, Tanja Hilpold develops a specific focus on the repositioning of the roles of the Court of Justice and the General Court. Against the prevailing emphasis on the ‘constitutionalisation’ of the Court of Justice resulting from the reform, this evolution appears to be grounded in a paradox, as empowering the Court of Justice’s constitutional nature entails decentralisation within EU courts and the ‘de-constitutionalisation’ of jurisdiction on preliminary references in certain subject matters. Does the renewed EU judicial architecture entail a strengthened dividing line between the Court of Justice and the General Court’s respective roles? Or, conversely, does it ultimately enhance proximity between the two judicial bodies? In her article, the Author provides fresh new insights into these crucial issues.

By relying on her experience as Advocate General at the Court of Justice, Tamara Ćapeta assesses the role of Advocates General at the General Court, providing a comprehensive analysis of the conceptual and practical issues associated with that role in the new field of jurisdiction conferred on the Bâtiment Thémis’s judicial body. To that end, the Author juxtaposes the procedural and advice-giving tasks assigned to Advocates General between the Court of Justice and the General Court, thereby particularly emphasising the different ways in which the two figures are called upon to address principled questions arising from preliminary references.

A further insider’s perspective on the reform is advanced by Leila Rezki. By complementing the General Court’s viewpoint developed by Judge Porchia, her contribution addresses the reform from the angle of the Court of Justice. As référendaire in the cabinet of the President of the Court of Justice, the Author’s analysis provides further insights into the early practice and, specifically, the Court’s approach in assigning references to the General Court within the so-called guichet unique procedure. 

Finally, Michal Bobek identifies common points and divergences that emerged from the multiple perspectives of analysis, thus drawing conclusions on the direction towards which the EU judicial architecture is currently evolving.

As we conclude this Introduction and wish every reader to enjoy delving into the analysis proposed in the Special Section, let us take this occasion to warmly thank all the authors for accepting to be part of this publication project and their insightful contributions. This Special Section would never have come to life without their effort and cooperation. In the same vein, we would like to thank the European Papers’ Editorial Board for the opportunity to edit the Special Section and their constant support throughout the whole publication process. We do hope that the articles featured in this Special Section will serve as helpful contributions for future scholarly and institutional discussions about the key questions surrounding the evolution of the EU judicial architecture, especially in relation to the report on the implementation of the recent reform, which the Court of Justice will publish in 2028.