EU Procedural Law Revisited: The Reformed EU Judicial Architecture between the Statute of the Court of Justice and the Rules of Procedure

Table of Contents: 1. Introduction: scope and purposes of the analysis. – 2. The partial transfer of preliminary references from the Court to the General Court. – 2.1. The scope of the General Court’s jurisdiction on preliminary references. – 2.2. The guichet unique mechanism. – 2.3. The procedure for hearing and determining preliminary references at the General Court. – 2.4. The revision of preliminary rulings issued by the General Court. – 3. The new rules on transparency and participation in preliminary reference proceedings. – 4. The extension of the scope of application of the filtering mechanism on appeal. – 5. Not a conclusion but… rather a way forward.

Abstract: The article provides a critical assessment of the 2024 reform of the Statute of the Court of Justice of the European Union, combining the analysis of the amended provisions of Protocol No 3 and the Rules of Procedure of both the Court of Justice and General Court. To that aim, the contribution takes a procedural standpoint on the topic, with a view to paving the way to the various perspectives featured in the Special Section. Focusing on the transfer of jurisdiction on preliminary references, the article discusses the rationales behind the selection of ‘areas of law’ subject to devolution, thereby disclosing that the reform leaves a ‘variable geometry’ scope to the Court of Justice for being involved in cases in any domain of EU law. That part of the analysis is complemented by assessing the new filing and distributing mechanism for preliminary references (guichet unique), the revision mechanism for preliminary rulings issued by the General Court, and the latter’s new procedural framework for treating preliminary references. While the procedure has been designed in a way to mirror that already applied by the Court of Justice, the article argues that the General Court’s distinctive features may significantly impact the way in which it deals with preliminary references. The analysis then discusses the design and consequences of the new provisions on participation in preliminary references and publication of parties’ written submissions, as well as the rationales and impact of extending the scope of application of the prior admission on appeal mechanism.

Keywords: Court of Justice – Statute of the Court of Justice – Rules of Procedure – transfer of preliminary references – transparency – prior admission on appeal.

1.   Introduction: scope and purposes of the analysis

The year 2024 will be remembered as a crucial turning point for the EU judicial architecture. In March, the Parliament and Council adopted Regulation (EU, Euratom) 2024/2019 amending the Statute of the Court of Justice of the European Union, notably – although not exclusively – to partially transfer jurisdiction on preliminary references to the General Court.[1] To implement the reform, the Court of Justice and the General Court amended their respective Rules of Procedure in July, whose modifications became effective from 1 September 2024.[2] After updating the Rules of Procedure’s implementing documents – with particular emphasis on the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings[3] and the Practice rules for the implementation of the Rules of Procedure of the General Court[4] – the reform finally became operational on 1 October 2024.

These measures constitute the final step of a procedure initiated in 2022 on the proposal of the Court itself[5] and envisaging a true Copernican revolution. Commonly considered as the Court’s ‘jewel in the crown’, the preliminary reference procedure had previously remained in the exclusive jurisdiction of the Court of Justice, the latter amounting to the only interlocutor in judicial dialogue for national courts. Still, the Treaties did not provide that the jewel shall necessarily remain in the Court’s crown exclusively. Indeed, the first mention of the possibility of transferring parts of jurisdiction in the preliminary ruling procedure to the General Court came more than twenty years ago, in the context of the 2001 Nice Treaty amendments. It was formalised in what is now Article 256(3) of the Treaty on the Functioning of the European Union (TFEU), which provides that ‘[t]he General Court shall have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute (emphasis added)’.[6]

The design of that option was motivated by the necessity for taking some burden off the Court of Justice, which is one of the reasons why the General Court (then, the Court of First Instance) was established in the first place in 1989. The reality was that, decade after decade, the workload of the Court was constantly on the rise, driven in part by the functional and geographical enlargement of the EU. The greatest portion of cases the Court was dealing with came in the framework of the preliminary ruling procedure. The duration of those cases was likewise extending, which at some point meant that on average national courts were waiting for the Court’s reply for more than two years. Ironically, the very success of cooperation between the Court and national courts seemed to be damaging the prospects of their continuous cooperation. And although the malaise was obviously coming from this ‘input’ side, ie through an increased pressure from the national level, the Court’s response was always going after the ‘output’ side only, ie strengthening its processing and production capacities.[7] Over time, possible solutions were sought everywhere except in transferring partial jurisdiction over preliminary rulings to the General Court. The Court was focused on other procedures and institutional aspects, which in a broader perspective form pieces of the same continuous process of rethinking and adjusting ‘on the move’ the EU judicial architecture. We therefore saw the establishment of the first (and, so far, only) specialised jurisdiction – the Civil Service Tribunal, which operated from 2006 until 2015. This was followed by an increase in the number of judges of the General Court, in the course of which there was some disagreement between two EU courts.[8] Yet another novelty concerned the ‘filtering’ of appeals to the Court of Justice against rulings of the General Court which reviewed decisions of boards of appeal of some EU agencies.[9] But the ‘enabling clause’ for the preliminary ruling procedure in the Treaties remained unused for more than two decades, although good opportunities were presenting themselves along the way.[10]

In the context of the 2015 enlargement of the General Court, the Court of Justice decided not to make any moves in that direction. It considered that the time was not right because the General Court was still going through changes that led to doubling the number of its judges, and the Court thought it had put its own docket under control. But in 2022, the Court of Justice changed its mind. The number of preliminary references was becoming too high, and their complexity ever greater, and the Court felt that it was not handling them in a timely and efficient manner as it used to.[11] At the same time, the reform of the General Court was over, and the enlarged and refreshed version of it appeared capable of taking some extra work.[12] All this led the Court to finally put out a proposal for the reform of the preliminary ruling procedure aimed at ensuring a proper administration of justice by two EU courts. The EU institutions and the Member States were largely positive about the Court’s vision of reform, which paved the way for swift negotiations and adoption of the finally agreed Regulation.[13] The latter obliges the Court to update the EU legislators in four years’ time about the progress in the implementation of the reform,[14] with a view to exploring further options for change, which shows that the ‘transformation [of] the Union courts’ will carry on.[15]

As part of the Special Section ‘Perspectives on the Reformed EU Judicial Architecture’, this article explores the novelties introduced by the 2024 reform of the Statute of the Court of Justice from a procedural viewpoint. In this respect, the transfer of preliminary references to the General Court constitutes the most notable novelty (2). Still, it is not the only one: Regulation (EU, Euratom) 2024/2019 also introduced provisions to enhance transparency and open justice in preliminary references procedures (3) and expanded situations in which appeals on points of law against rulings of the General Court are subjected to the Court’s prior admission (4). These three aspects will be assessed in more detail in the following sections, thus providing a way forward to the various perspectives of analysis developed in the Special Section (5).

2.   The partial transfer of preliminary references from the Court to the General Court

2.1.  The scope of the General Court’s jurisdiction on preliminary references

The core of the transfer of jurisdiction on preliminary references lies in the newly introduced Article 50b of the Statute of the Court of Justice, whose first paragraph details the boundaries of the General Court’s competence in that respect. According to that provision,

‘The General Court shall have jurisdiction to hear and determine requests for a preliminary ruling under Article 267 [TFEU] that come exclusively within one or several of the following specific areas: (a) the common system of value added tax; (b) excise duties; (c) the Customs Code; (d) the tariff classification of goods under the Combined Nomenclature; (e) compensation and assistance to passengers in the event of denied boarding or of delay or cancellation of transport services; (f) the system for greenhouse gas emission allowance trading (emphasis added)’.

This provision reveals the willingness of Parliament, the Council, and the Court of Justice itself to clearly define the dividing line between the jurisdiction of the Court and the General Court regarding preliminary references.[16] This element emerges not only from the wording of Article 50b of the Statute, but also from the explanations provided by the Court proposal.[17] Indeed, the choice of these six subject matters follows from their ‘clearly identifiable’ nature, making them ‘sufficiently separable from other areas governed by Union law’.[18] Furthermore, the Court’s proposal stressed that the subject matters at issue are characterised by a limited number of acts of secondary law.[19] These two characteristics would make it possible to distinguish preliminary questions falling within these areas ‘upon reading the request for a preliminary ruling’[20] at its filing.

Still, ensuring a clear division of competence between the two judicial bodies is not the only rationale underpinning Article 50b(1) of the Statute. Indeed, three additional criteria have guided the selection of the subject matters transferred. First, the Court’s proposal added that the areas of jurisdiction on preliminary references transferred to the General Court shall also be characterised by a consistent and consolidated case-law ‘capable of guiding the General Court in the exercise of its new jurisdiction and of preventing the potential risk of inconsistencies or divergences in the case-law’.[21] Second, the areas of law referred to in Article 50b(1) of the Statute shall give rise to ‘few issues of principle’, which shall conversely be reserved for the Court of Justice’s jurisdiction. Finally, those subject matters shall represent a considerable share of the previous ECJ’s workload, thus resulting in the transfer of a sufficient number of cases from the latter to the General Court.[22]

These considerations unveil that two additional – and perhaps opposing[23] – rationales underpin the definition of the scope of the General Court’s jurisdiction on preliminary references under Article 50b(1) of the Statute. On the one hand, the last criterion points to the effectiveness of the reform. As previously underlined, the reduction of the ever-growing workload of the Court constitutes a crucial objective driving the partial transfer of jurisdiction on preliminary references.[24] Therefore, attaining that goal would have been nullified if the General Court’s resulting jurisdiction only comprised an insignificant number of preliminary questions. As outlined in the literature, the areas of law subject to devolution represent a considerable share – about 20 per cent[25] – of the total amount of preliminary rulings, thus potentially paving the way to a reduction of 13-14 per cent of the total workload of the Court of Justice.[26] Still, if individually considered, the six subject matters at issue do not have an equal impact on the Union courts’ workload, as VAT cases constitute the vast majority in this respect. This element led some scholars to contend that, without the transfer of VAT preliminary references to the General Court, the reform would have lacked added value from a workload distribution perspective.[27]

On the other hand, the first and second criteria previously considered aim to ensure that the division of competence on preliminary references between the two judicial bodies does not affect the uniform and coherent interpretation of EU law. This rationale entails an imbalanced position between the Court of Justice and the General Court. Indeed, the legislative willingness to keep issues of principle in the hands of the Court of Justice (ECJ) and confer jurisdiction to the General Court only in domains characterised by a consistent case-law unveils a bias underlying the reform’s structure, which appears to envisage the General Court as less suited than the Court of Justice to hear and determine preliminary references.[28] Arguably, this bias reflects a genuine concern from the Court of Justice and the EU legislature, particularly in light of the reform’s profound implications for the EU’s judicial architecture. Still, several critical readings on this point have emerged in the literature. Indeed, scholars pointed out that a potential contradiction lies in the Court’s emphasis on the guidance provided by a consistent body of case-law in the six domains transferred. Indeed, whereas the case does not pose a ‘serious risk of the unity or consistency of Union law being affected’ so as to trigger the extraordinary review by the Court of Justice,[29] nothing would now prevent the General Court from departing from the Court of Justice’s case-law when adjudicating over preliminary references.[30] This observation appears convincing from a legal viewpoint. However, such a scenario may hardly be realised. As contended by other authors, the very rationales driving the selection of the areas of law subject to devolution – such as ensuring that previous case-law is ‘capable of guiding the General Court in the exercise of its new jurisdiction’[31] – would probably lead the former to be deferential towards previous ECJ case-law.[32]

Concerning the merits of the areas of law composing the General Court’s new jurisdiction, scholarship has emphasised that the reform implies a departure from one of the logics underlying the Treaty of Nice.[33] Indeed, the architecture underpinning Article 256 TFEU would have envisaged the General Court to be competent to hear and determine preliminary references dealing with those specific matters on which it already exercises jurisdiction on appeal.[34] This argument envisioned an inherent parallelism between the General Court’s competence in, respectively, appeals against judgments rendered by specialised tribunals and preliminary references. However, such a model was never implemented: the one and only specialised tribunal ever established dealt with an area of EU law – civil service at Union institutions, bodies and agencies – in which domestic courts have no competence and thus preliminary references may hardly be issued. Furthermore, the Nice model was already overcome in 2015, when the Civil Service Tribunal was dissolved. Instead of creating further specialised tribunals, the number of judges at the General Court was doubled.[35] From this perspective, the reform under analysis can be seen as a new step in the direction initiated by the 2015 amendment to the ECJ Statute, which paved the way for a new judicial architecture where the General Court retains its competence in direct actions and acquires an even more enhanced role.[36]

As a further element sparking criticism in literature, it has been noted that the six areas of law under analysis do not align with those sectors that have represented the largest share of litigation before the General Court, such as competition and intellectual property law.[37] Moreover, no transfer of jurisdiction on preliminary references has been envisaged for those areas of law that, in the context of direct actions, are litigated in cases falling within the scope of the ‘prior admission on appeal’ mechanism pursuant to Article 58a of the Statute.[38] As argued in the literature, such an alternative solution would have been consistent with the underlying rationale of the filtering mechanism itself: limiting access to the Court of Justice in certain domains and empowering the General Court as a de facto last resort instance for cases already heard by the boards of appeals of EU agencies.[39]

While these critical remarks are convincing from a systematic viewpoint, the overall architecture of the reform can arguably explain the choices of the EU legislature under analysis. Indeed, the 2024 amendments to the Statute are driven by the willingness to avoid broad exclusions of the Court of Justice from any domain.[40] In the context of direct actions, competition law and intellectual property cases already fall primarily within the General Court’s jurisdiction. The same consideration applies to cases governed by the filtering mechanism of Article 58a of the Statute, as the latter significantly limits appeals against judgments issued by the General Court. If these areas of law were subject to the devolution of jurisdiction on preliminary references, such an arrangement would greatly restrict the Court of Justice’s ability to shape case-law in these domains. Conversely, the reform of the Statute leaves the Court of Justice with a ‘variable geometry’ scope for being sufficiently involved in hearing and determining cases in any domain of EU law. On the one hand, the Court of Justice retains its competence to hear and determine preliminary references touching upon issues which already fall primarily under the scope of the General Court’s jurisdiction in the context of direct actions. On the other hand, the Court of Justice devolves its jurisdiction on preliminary references in some areas of law which do not constitute the key part of the General Court’s workload. As a result of such a ‘variable geometry’ architecture, the Court of Justice is still endowed with sufficient wiggle room to shape the case-law in any domain of the EU legal order.

The Court of Justice’s retained role in driving the evolution of case-law is further reaffirmed by the second paragraph of Article 50b of the Statute. According to this provision, the Court of Justice remains competent to hear and determine preliminary questions that, while falling within the General Court’s jurisdiction, ‘raise independent questions relating to the interpretation of primary law, public international law, general principles of Union law, or the Charter of Fundamental Rights of the European Union’. This provision was introduced through an amendment to the Court’s initial proposal presented by the Commission and aimed at preserving the unity and coherence of the EU legal order.[41] However, preliminary questions regarding the interpretation or validity of secondary law are often intertwined with interpreting primary law and the Charter. Indeed, national courts typically refer to such provisions in their reference, and sometimes this aspect is even more significant than interpreting the relevant secondary law. Looking at recent case-law, that would have been the case in Taricco[42] and Åkerberg Fransson,[43] which arose from VAT-related litigation but raised independent and profound issues concerning the interpretation of primary law and the Charter.[44] In a hypothetical scenario where the reform has already been in force, one could plausibly assume that such ‘constitutional’ cases would likely remain within the Court’s jurisdiction. Still, in preliminary references where secondary law provisions within the scope of the six areas referenced in Article 50b(1) of the Statute are intertwined with primary law, general principles, international law, or the Charter, a question arises regarding the extent to which hermeneutical issues concerning such sources are independent and separable from those concerning secondary law.[45] This matter may raise uncertainties about the correct allocation of cases between the Court of Justice and the General Court. However, this hurdle has been partially circumvented by the preliminary reference filing mechanism introduced by the reform – the so-called guichet unique – which is analysed in the following section.

2.2.  The guichet unique mechanism

To avoid domestic courts’ difficulties in predefining whether a given reference falls within the jurisdiction of the Court of Justice or the General Court, a single filing mechanism – commonly known as guichet unique – for all preliminary references has been enshrined in the third paragraph of Article 50b of the Statute.[46] As the name suggests, it requires that any preliminary question be presented solely to the Court of Justice. From a procedural perspective, the system is more clearly defined by Article 93a of the reformed Rules of Procedure of the Court of Justice. Once references are filed at the Court’s Registry, they are transmitted to the President, the Vice-President, and the First Advocate General of the Court of Justice.[47] After consulting with the Vice-President and the First Advocate General, the President shall direct the Registry to submit the reference to the General Court when the case falls exclusively within the six areas of law on which jurisdiction has been devolved.[48] Conversely, if the reference is outside the scope of those domains, the procedure continues before the Court of Justice. As suggested in the literature, the peculiar features and position of that evaluation within the reformed procedure imply that it should be based on a prima facie assessment, relying solely on the information contained in the referral.[49]

The allocation procedure is aggravated in cases where the President of the Court of Justice, after hearing the Vice-President and the First Advocate General, determines that the reference does fall under the scope of the General Court’s jurisdiction but also touches upon areas of law excluded from devolution or raises independent questions concerning the interpretation of primary law, public international law, general principles or the Charter. In such a scenario, the allocation cannot be decided by the President alone. Indeed, the latter shall refer the issue to the Court of Justice, which will decide within its General Meeting whether the case shall be transferred to the General Court.[50] The decisions adopted in the context of the guichet unique procedure are not subject to publication and, for the moment being, it is unclear whether they would be mentioned in the final judgment rendered by the Court of Justice or General Court.[51]

The guichet unique prevents domestic courts from finding themselves in the uneasy position of assessing alone whether their questions fall within the jurisdiction of the Court of Justice or the General Court. Such a burden would result in a disincentive to rely on the preliminary reference procedure and enter into dialogue with Union courts. However, both the appropriateness and composition of the guichet unique have been subject to criticism in recent literature.

On the one hand, scholars contended that the mechanism under analysis constitutes a sign of distrust towards the General Court, as it empowers the Court of Justice to act as the gatekeeper of the latter’s jurisdiction on preliminary references.[52] From a complementary viewpoint, it has been underlined that empowering the Court of Justice as the sole national courts’ interlocutor may entail framing the General Court’s jurisdiction on preliminary references as derivative rather than original.[53] This conclusion would be at odds with the wording of Article 256(3) TFEU, which states that the General Court ‘shall have jurisdiction (emphasis added)’.[54] Furthermore, recent scholarship questioned whether the guichet unique was necessary to enhance the swift allocation of cases between the two judicial bodies. Indeed, Article 256(3) TFEU already provides for the General Court to refer a question back to the Court of Justice if it lacks jurisdiction.[55]

On the other hand, some scholars construed the guichet unique as a solely procedural arrangement whose implications do not affect the original nature of the General Court’s jurisdiction on preliminary references.[56] That argument appears convincing from a theoretical viewpoint. However, it is undeniable that the procedure under analysis leaves a considerable margin of discretion in the hands of the President of the Court – and, in the cases foreseen by Article 93a(3) of the Rules of Procedure, to the General Meeting of the Court of Justice – in assessing which judicial body shall be competent to hear the case.[57] It is definitely too early to draw conclusions on the practice of the guichet unique procedure, as the reform has only been operational for a few months to date. Still, a liberal or more restrictive approach from the Court of Justice in applying this mechanism will have profound implications for the number of cases devolved to the General Court.[58] After all, the effectiveness of the reform largely depends on this element, at least from a workload management viewpoint.[59]

The second stream of criticisms concerns the guichet unique’s composition. Indeed, some scholars contended that the procedure for allocating references should have involved members of both the Court of Justice and General Court.[60] Others, conversely, proposed the guichet unique to be established within the General Court rather than the Court of Justice.[61] Both arguments have a common rationale: avoiding the risk of the Court of Justice being too restrictive and keeping for itself the vast majority of cases. However, the choice to involve the Court of Justice exclusively may be justified by the experience gained by the ECJ in treating preliminary questions.[62] This aspect should ensure that a decision on transferring the reference is made swiftly and without delay.[63] Moreover, Member States and EU institutions would hardly have accepted establishing the guichet unique at the level of the General Court.[64] This consideration confirms a sense of distrust – or at least cautiousness – towards enhancing the General Court as an interlocutor for national courts. From an opposite perspective, conferring the competence to receive preliminary references and allocate them to the General Court would have been consistent with one of the rationales driving the reform: empowering the Court of Justice as the ‘supreme’ or ‘constitutional’ judicial body of the Union, whose jurisdiction is reserved for profound questions of principle. However, the limited areas of law for which jurisdiction has been transferred prevents, at least for the time being, designing a similar judicial architecture.

As anticipated, the allocation of cases by the guichet unique does not preclude a subsequent transfer of the reference from the General Court to the Court of Justice and vice-versa. Indeed, the second phrase of Article 256(3) TFEU stipulates that ‘where the General Court considers that the case requires a decision of principle likely to affect the unity or consistency of Union law, it may refer the case to the Court of Justice for a ruling’. This provision is complemented by Article 54(2) of the Statute, which provides that the General Court must refer the case to the Court of Justice if it finds that it lacks jurisdiction. On the same grounds, also the Court of Justice may reassign a preliminary reference to the General Court, which cannot declare itself incompetent. As noted in the literature, the two provisions under analysis are worded differently. On the one hand, Article 54(2) of the Statute frames the transfer as a duty upon the Court of Justice and General Court, as they ‘shall refer’ the case at issue when the pertinent conditions are met. On the other hand, Article 256(3) TFEU states that the General Court ‘may’ refer the case, thus suggesting it enjoys a certain margin of discretion in this respect. Therefore, the question arises: is the General Court faced with a duty or an option to reassign the preliminary reference where it concerns a question of principle pursuant to Article 256(3) TFEU?

Against this issue, two partially divergent positions have emerged. On the one hand, some scholars contended that referral in this context should be construed as an option, thus reflecting ‘judicial comity rather than hierarchy’[65] between the Court of Justice and the General Court. On the other hand, it has been argued that the General Court has indeed a margin of discretion to assess the existence of a question of principle ‘likely to affect the unity or consistency of Union law’ as emerging from the case.[66] However, transferring the case to the Court of Justice amounts to a duty insofar as such a requirement is met. From a systematic viewpoint, this conclusion seems to be supported by the operation of the review mechanism enshrined in the same provision, which allows the Court to exceptionally re-examine preliminary rulings of the General Court when they impact ‘the unity or consistency of the Union law’.[67]

From a procedural perspective, it is noteworthy that Article 207 of the Rules of Procedure of the General Court establishes separate arrangements for different types of referrals to the Court of Justice.[68] First, should a preliminary question be erroneously transmitted to the General Court, the Registrar immediately transfers it to the Court’s Registry. Second, should the General Court find that the question does not fall under the scope of its jurisdiction in preliminary references, the decision to refer back the question to the Court of Justice is adopted by order of the Chamber after having heard the Advocate General to which the case had been assigned. Finally, the more complex procedure is envisaged if the General Court’s competent Chamber finds that the reference entails a ‘decision of principle likely to affect the unity or consistency of Union law’ pursuant to Article 256(3) TFEU. After hearing the Advocate General, the Chamber may propose to the plenum of the General Court to refer the case to the Court of Justice. This procedural arrangement should be welcomed, as it ensures symmetry between, on the one hand, the assessment made by the General Meeting of the Court of Justice after receiving a preliminary reference raising ‘independent questions’ pursuant to Article 50b of the Statute and, on the other hand, the evaluation of ‘decisions of principle’ carried out by the plenum of the General Court under Article 256(3) TFEU. These two assessments entail substantially comparable features; therefore, if the one carried out by the Court of Justice within the guichet unique procedure warrants particular caution such as involving its General Meeting, the same procedural arrangement shall apply mutatis mutandis to the General Court, thus devolving the decision to its plenum.

Finally, it must be underlined that the referral of the case to the Court of Justice pursuant to Article 256(3) TFEU may occur even after the conclusion of the written phase of the procedure before the General Court. In such a scenario, Article 114b of the Rules of Procedure of the Court of Justice requires the President to allow interested parties designated in accordance with Article 23 of the Statute to submit further written observations.[69]

2.3.  The procedure for hearing and determining preliminary references at the General Court

To make sure that the General Court will be able to ‘mimic’ what the Court of Justice does when dealing with preliminary references, several organisational and procedural arrangements were built into the Statute and implemented by the Rules of Procedure of the Court of Justice and General Court respectively.[70]

The first concerns the General Court’s specialised chambers which may be assigned to deal with the questions referred by national courts.[71] There is currently one such chamber, which is effectively asked to function as a ‘mini-Court of Justice’.[72] It is composed of two formations and comprises the Vice-President of the General Court and two or four judges (from a pool of ten in total), who are assigned to one of these formations on a rotational basis.[73] The idea behind establishing specifically designated chambers is to ensure consistency in the treatment of preliminary references by the General Court. Moreover, specialisation in the areas of law subject to devolution, in the longer run, is meant to capitalise on the expertise of judges of those chambers and their référendaires, thus making the proceedings quicker and more efficient and the outputs of better quality.[74] This is something that has already been happening at the General Court in the context of direct actions, given the existing practice of assigning staff and intellectual property cases to specific chambers. While it would purportedly aim at ensuring the quality of output in the preliminary ruling procedure, specialisation of chambers is not a formal requirement at the Court of Justice. Therefore, this procedural guarantee might be seen as an expression of doubt concerning the General Court’s capacity to deal with this procedure, at least in this initial phase of operating the reform.[75]

The default formations in which the General Court will deal with preliminary references will number three or five judges. But there is also the possibility of convening an ‘intermediate chamber’, which is the second arrangement introduced by the reform.[76] The size of this formation was meant to be flexible and was supposed to have between five (as the default formation) and fifteen judges (as the Grand Chamber).[77] The reason why preliminary references should not be heard by the Grand Chamber of the General Court is that this formation is typically convened ‘[w]henever the legal difficulty or the importance of the case or special circumstances so justify’),[78] and it might be that these cases will raise questions of principle which should be referred back to the Court of Justice in accordance with Article 256(3) TFEU. Moreover, since the Grand Chamber involves fifteen judges, some judges who are not members of the specialised chambers might be involved in dealing with the preliminary references, which could defeat the purpose of establishing specialised chambers in the General Court and giving them the exclusive right to handle these cases. In any event, the Rules of Procedure of the General Court eventually stipulated that this intermediate chamber is composed of nine judges.[79] It will be assigned with more important and difficult cases, where a decision of particular significance in one of the specific areas of law delegated to the General Court will be required, as well as when Member States or EU institutions that are parties to the proceedings so request.

The third and final arrangement concerns Advocates General. It was envisaged that one or more judges sitting in the chambers specialised for preliminary references might be assigned with the role of Advocate General.[80] All judges of the General Court choose among their ranks those that will perform the tasks of Advocates General. Two of them were initially elected for this duty.[81] Their term is three years and can be renewed once.[82] They will not sit as judges in the preliminary ruling cases during the length of their mandate as Advocates General, nor will they belong to the chamber to which the preliminary reference has been assigned.[83]

Of course, Advocates General will not deliver their opinions in every preliminary reference decided by the General Court, since this does not happen in every case before the Court of Justice either. In particular, it is a general rule that those opinions are not delivered in cases that raise no new points of law.[84] This aspect may question the need of having Advocates General for preliminary references at the General Court in the first place. Indeed, jurisdiction was transferred to the General Court in the areas where there is ‘a substantial body of case-law of the Court of Justice which is capable of guiding the General Court’ in dealing with preliminary references.[85] Perhaps even in these areas new points of law may emerge now and then. But in practice, this was never the sole criterion that determined whether an opinion of Advocate General will be delivered. Other aspects were often decisive, if only informally, such as clarity of the existing case-law, existence of conflicting lines of rulings (typically delivered by different chambers), complexity of legal questions, prospects for reversing earlier precedents, or political sensitivity of the case.[86] With this in mind, designating Advocates General can be understood as a measure concerned with ‘legitimacy and equal treatment’, which is there to reassure Member States, their courts, and all parties appearing in this procedure before the General Court that preliminary references will be treated in the same way as those that end up before the Court of Justice.[87] Still, it will be interesting to see how often this will happen. The possibility of having judges of the General Court acting as Advocates General in other procedures was there even before the recent reform,[88] but was used only several times in the first years of the (then) Court of First Instance.[89] Perhaps, also this time we may see more opinions being delivered during first years, as a means for summarising the ‘substantial body of case law’ developed by the Court of Justice, which judges might find useful and informative when deciding the case.[90] The Court of Justice similarly suggested that the ‘twofold consideration’ of the case – by Advocates General and Judges Rapporteurs (in deliberation with other judges) – could ‘contribute to the strength of the analysis carried out by [the General Court]’ and ‘usefully supplement, qualify or enrich’ it.[91]

Besides these pragmatic concerns, a more fundamental question arises: what those few judges of the General Court will make of their second ‘hat’ of Advocate General that they will occasionally wear? Some scholars have already stressed the ‘dual personality’ they will be expected to have.[92] But this may be easier said than done. The way of thinking of a judge, who decides collectively and has to negotiate the final content of the ruling with other judges (the ruling they will all sign off) differs from the way of thinking of an Advocate General, who decides and writes for themselves, and can be bolder and take more risk in exploring possible solutions to legal problems that are presented to the Court. It may be difficult or inconvenient to switch from one mode to the other from time to time, and this may be one of the reasons why the judges of the General Court initially did not pick up the practice of assigning the role of Advocate General among themselves.[93]

At the same time, given that many EU judges arrive to Luxembourg from academia – assuming that professors are fairly inclined to critical thinking and do not mind being ‘mavericks’ – perhaps it will not be so hard to find a couple of them among fifty-four who will be able ‘to extricate themselves from their decision-making role in order to take a step back’[94] and gladly propose to adjust or reverse the established case-law. It is reasonable to expect that the degree of involvement and proactiveness of Advocates General may be a crucial factor to determine how much the General Court will be deferential to the Court of Justice’s established case-law or, conversely, depart from it. In the long term, this new attempt to revive the image of a judge who acts as Advocate General, if it takes hold in practice, might affect our understanding of the role of Advocates General more generally.[95]

On that same note, judges of the General Court who are used to hearing and deciding certain types of cases might need some time to adjust to the peculiarities of the preliminary ruling procedure. The big question is, then, how the ‘culture transition’ will work.[96] The General Court mostly decides in direct actions and technical areas of law, which are heavily fact-driven, reliant on expert knowledge, and require a careful assessment of evidence. This impacts its style of reasoning, makes its rulings lengthy and detailed, and orients it towards finding concrete solutions to individual questions, akin to a first instance court, rather than coming up with abstract solutions that are generalisable and replicable, akin to a supreme court.[97] However, the latter approach is inherent in the preliminary ruling procedure, which the General Court now gets to curate in several areas of law. In the framework of that procedure, national courts are solely responsible for the evaluation of facts. The General Court is going to only interpret EU law, in a more or less abstract manner, which will then fall on the referring courts to apply in solving concrete disputes.[98] So, some ‘rewiring of the judicial mind’ will have to happen at the General Court when it starts replying to questions of interpretation submitted by national courts.[99] It will be expected to put aside its ‘fact-finding mentality’ which dominates in direct actions while simultaneously putting trust in the referring court’s assessment of facts, and switch to ‘statutory interpretation’ mode to adopt interpretations of EU law at a proper level of generality which can later on be applied in more factual circumstances.[100]

At the moment, it is uncertain what kind of longer-term impact the various procedural arrangements concerning the preliminary ruling procedure will have, which have been transplanted from the Court of Justice to the General Court. However, this is an open issue that only future practice will shed light on. Among more sceptical voices, Bobek has contended that the existing knowledge tells us that ‘while the outer shell (in terms of procedures and institutional appearances) may be changed relatively easily, the inner culture (writing and reasoning style, culture of deliberation and participation) is much more resistant to change’.[101] At the same time, the legal and professional background of individual judges at the General Court – who are experts in EU law and well aware of how the instance above them operates – will also impact their ‘inner culture’ and influence the way they approach preliminary references.

Beyond these question marks concerning the identity of General Court judges that will deal with preliminary references, the new jurisdiction and procedures in their hands may open a range of new possibilities compared to previous practice. Although it should formally remain the same as before the Court of Justice, the General Court may look to adjust the way in which national courts’ requests are being handled, experiment with the procedural steps, suggest alternative interpretations of substantive law (or the way of interpreting EU law more generally), and so on.[102] For instance, it could more frequently request additional clarifications from the referring courts,[103] to get better context about the questions the latter have posed. This is something that the Court of Justice has rarely done under Article 101 of the Rules of Procedure, yet it has the potential of improving the dialogue between the judicial interlocutors, and not only concerning points of national law.[104] Or it could make greater use of the possibility of deciding the case by reasoned order whenever the precedent of the Court of Justice (or at certain point, of the General Court itself) already exists or the answer to the question of interpretation of EU law can be inferred from the existing case-law or that answer is obvious beyond reasonable doubt.[105] This is especially so given that the General Court will deal with preliminary references on specific areas of law in which ‘a substantial body of case-law of the Court of Justice’ has been amassed.[106]

The General Court may also deal with the questions of validity of EU law in the preliminary ruling procedure in a more robust way, similarly to how it addresses same questions in direct actions, which involves more opportunities for the parties to exchange written submissions and greater reliance on external expertise.[107] This would differ from how the Court of Justice deals with references raising questions of validity of EU law, yet may motivate it to sharpen its own scrutiny, if nothing ‘to avoid looking like an unwilling or deferent jurisdiction, in contrast with its more incisive lower court’.[108] In the same way, the General Court may adopt bolder and more creative interpretations of EU law, being shielded by the inexistence of a formal appeal against its judgments in the preliminary ruling procedure through which the Court of Justice could discipline the General Court by striking down its overly ambitious holdings, as sometimes it did in the past.[109]

2.4.  The Revision of Preliminary Rulings Issued by the General Court

The need to preserve the uniformity of EU law after the General Court delivers its preliminary ruling is reflected in the procedural ex post corrective safeguards the Court of Justice has at its disposal. This complements ex ante preventive safeguards also placed under the Court’s watch (the guichet unique mechanism for allocating jurisdiction, discussed above), and in tempore self-control exercised by the General Court itself (remitting the cases that fall outside its jurisdiction or that require a decision of principle that can affect the uniformity of EU law, also discussed above).[110]

As is well known, in the preliminary ruling procedure parties will not have the possibility to bring an appeal before the Court of Justice against the decisions of the General Court. Still, Article 256(3) TFEU gives to the Court the possibility to exceptionally review those decisions. The third sentence of this provision thus says that ‘[d]ecisions given by the General Court on questions referred for a preliminary ruling may exceptionally be subject to review by the Court of Justice […] (emphasis added)’. It follows that, as a general rule, the answer of the General Court given to the referring court will be final. Moreover, the review by the Court of Justice should not only be exercised exceptionally,[111] but also proceed on limited grounds. As the same sentence of Article 256(3) TFEU adds, it should happen only ‘where there is a serious risk of the unity or consistency of Union law being affected’.

The mechanism envisaged by Article 256(3) TFEU has been further elaborated in the Statute. From its provisions, we can see that the réexamen procedure should be as expedient as possible. It proceeds in the following steps. First, it can be initiated only by the First Advocate General. As provided in Article 62 of the Statute, within one month after the delivery of the ruling of the General Court, the First Advocate General can propose to the Court of Justice to review that ruling if he considers that the condition from the third sentence of Article 256(3) TFEU has been met.[112] Then the Court has another month to decide whether to review the General Court’s decision. During this period, the General Court’s decision is suspended and is not binding for the referring judge. It means that its decisions in the preliminary ruling procedure will be subject to a certain ‘period of ineffectiveness’ by default.[113] If the Court of Justice does not open the review, the referring court will spend in total two months waiting for the answer to its questions and for the General Court’s ruling to take full effect. If the Court decides otherwise, then the referring court will wait for several additional months, until the review is completed in an urgent procedure.[114] Before the Court of Justice, the interested parties that appeared before the General Court will have the opportunity to submit written observations, and the Court may decide to hold oral hearings where necessary.[115] If the review is upheld, the answers to the questions of interpretation of EU law given by the Court of Justice will replace the answers initially given by the General Court.[116]

As we can see, the review procedure is premised upon several considerations, which are not necessarily complementary. Hence, as Iglesias Sánchez wrote, its initiation does not depend on the parties’ request, yet the parties take part in the proceedings before the Court of Justice. And although it is triggered only in exceptional situations, which involve hard and principled questions of interpretation that may put the unity and consistency of EU law at serious risk, the review procedure is supposed to be urgent.[117]

How and when the preliminary ruling procedure comes to an end before the General Court will largely depend on how often the Court of Justice will decide to hit the ‘review button’.[118] Some insights might be found in the corresponding procedure from Article 256(2) TFEU concerning review of the General Court’s rulings on appeal against decisions of the now defunct Civil Service Tribunal,[119] which laid dormant during the last decade. During the times of the Civil Service Tribunal, the review was rarely activated. There were sixteen cases in which the First Advocate General proposed to the Court to review the ruling of the General Court. Given that in the same period the General Court delivered more than 300 rulings on appeal in the civil service cases, the First Advocate General proposed the review approximately once in every twenty instances.[120] The Court eventually granted the review in six cases.[121] So, the Court was willing to follow the proposal for review approximately once in every three instances.

In its review decisions, the Court of Justice adopted certain assessment criteria against which it determined whether the unity or consistency of EU law was seriously affected. Those included whether the ruling of the General Court may set the precedent for the future cases, or whether the General Court departed from the established case-law of the Court, or whether the rules or principles of EU law which the General Court misinterpreted have an important position in the EU legal order, or whether those rules and principles have systemic or horizontal application in different areas of EU law.[122] These criteria will arguably have to be refined and adjusted to the reviews that will take place in the future under Article 256(3) TFEU. This is because the logic of the reformed Statute is that the General Court is supposed to set new precedents when exercising jurisdiction in the areas of law that have been delegated to it.[123] It will also be interesting to see if and how the Court of Justice will assess whether the rulings of the General Court in these specific areas of law depart from its established case-law which does not necessarily pertain to those same areas. This will reopen the discussion about the so-called ‘horizontal’ and ‘vertical’ precedent in the EU judicial system, as well as the relationship between the two EU courts in shaping the case-law.[124] Moreover, it will be interesting to see whether the Court’s finding of the existence of ‘a serious risk of the unity or consistency of Union law’ will be impacted by developments in its approach to appeals against rulings of the General Court concerning decisions of boards of appeal of EU agencies, where the grant of leave is premised on finding that the questions raised are ‘significant with respect to the unity, consistency or development of Union law’.[125]

Scholars have made certain observations about what the future might tell us concerning the exercise and impact of the review procedure.[126] There seems to be no dispute that the rationale of the reform is to have the General Court taking over the interpretive authority in the areas that were placed under its control. So, the state of mind of EU judges should be concerned with ‘empowering’ instead of ‘limiting’ the General Court,[127] which would imply self-restraint and modesty on the part of the Court of Justice and courage and creativity on the part of the General Court. If things play out in this way, there may occur more interpretive divergences between the two EU courts that might affect the uniformity of EU law.[128] Consequently, the ‘new’ review procedure may have to be exercised more frequently than was the ‘old’ one before. This might be the case especially since the precedential value of the General Court’s decisions in the preliminary ruling procedure will affect a significantly larger number of actors – individuals and legal persons, national administrative institutions and courts – than its appellate decisions pursuant to Article 256(2) TFEU, which affected only EU civil servants.[129]

In exercising the review powers, the quest for uniformity will not be the only concern. It will have to be balanced against other concerns that motivated the reform of the Statute, such as efficiency and management of resources.[130] From this perspective, the performance of the review will also depend on how well the Court of Justice manages the guichet unique mechanism and whether it properly allocates cases between the two courts, particularly by assessing in the first step whether the case raises questions of principle. However, if the Court eventually starts investing more time and effort in controlling what comes before the General Court and doublechecking what comes out of it, hence ending up with more work than it used to have under the old system, then the entire reform could be futile, and the Court of Justice’s cure would come out as worse than the disease.

3.   The new rules on transparency and participation in preliminary reference proceedings

Further major novelties introduced by the reform of the Statute concern – once again – the preliminary ruling procedure before the Court of Justice and the General Court. The first thing to mention is the expanded list of EU institutions that can intervene and have their voices heard in the preliminary ruling procedure. Article 23 of the Statute now provides that every reference for a preliminary ruling sent from national courts has to be notified not only to the parties before the referring court, every Member State, the European Commission, and EU institution(s) whose action or omission is the subject matter of the reference, but also to the European Parliament, the Council, and the European Central Bank.[131] These institutions will thus be able to submit observations in every case in which they have particular interest,[132] contributing further to the development of EU law through judicial procedure after they have taken part in the enactment of specific legal acts. Since the Parliament will likely use every opportunity to intervene in the preliminary ruling procedure before the Court of Justice and General Court, this might translate to more inclusiveness and democratic input in the decision-making of the two EU courts, and potentially greater perceived legitimacy of their final rulings which may affect many public and private interests.

Further changes are aimed at making the preliminary reference procedure more open and transparent. Such an effort falls in line with other initiatives the Court of Justice has recently made to open itself to the public, from scholars to media and citizens. The Court, for instance, unlocked its historical archives,[133] became active on social media, started publishing national courts’ references for preliminary ruling (originals and working translations to all official languages), and agreed to livestream hearings in some important Grand Chamber cases (which should gradually extend to all hearings).[134]

Against this background, with the entry into force of the reformed Statute comes a new regime of publishing written submissions of the parties taking part in the preliminary ruling procedure – private litigants, interveners, national governments, and EU institutions. These documents will now automatically be published on the website of the Court of Justice. Their publication will happen within a reasonable time after the case is closed.[135] Access to these submissions while the case is pending before the Court was excluded for the sake of ‘preserv[ing] the quality and serenity of the judicial proceedings’.[136]

However, every party, including EU institutions and national governments, can object to the publication of their submissions.[137] They need to communicate that within three months after the case is closed.[138] When they do so, they do not have to state any reasons. So, the Court of Justice and General Court will have no control over the parties’ objections.[139] They will just receive objections, automatically hold back the publication, and indicate on the website that the party in question objected to publication. Besides not having to be justified, those objections will not be challengeable before the EU courts either. The alternative, in which the EU courts would have to examine ex ante the merits of the objections to publication or review them ex post, would arguably be too costly in terms of time and effort required to perform those tasks. Still, even such a system indeed brings an important change in practice: ‘[p]roactive disclosure is now the rule, and confidentiality will require a formal objection, which will be announced on the Court’s website’, so that everyone will know who has ‘chosen secrecy over transparency’.[140] And after the case is closed, if private actors or Member States or EU institutions indeed object to the disclosure of their observations, citizens will still be able to request access to them from institutions other than the Court (typically, the Commission) relying on grounds provided in Regulation (EC) No 1049/2001, in line with the Grand Chamber’s ruling in Breyer.[141]

This novelty is supposed to contribute to good governance and greater transparency of judicial decision-making in the EU. It will provide citizens, national judges, and scholars with important insights into the reasons that might have motivated the Court’s judgments.[142] This is warranted especially given the Court’s ever greater involvement with constitutional controversies and human rights matters, mostly in the framework of the preliminary ruling procedure. As such, the publication could increase accountability and strengthen trust in the EU judiciary, and consequently in the EU judge-made law.[143] But all this could happen only if the parties’ submissions were published systematically. If the parties regularly objected to that[144] – which would not be improbable given that they do not have to provide any justification nor is there any remedy available against their objection – the whole purpose of the new rules would be defeated.[145]

It is also indicative that the publication of written submissions was not initially found in the Court’s proposal but was pushed for by the European Parliament in the later stages of the legislative procedure, in particular by MEPs René Repasi (S&D) and Patrick Breyer (Greens/EFA). The Court of Justice traditionally had a strict(er) approach to transparency and access to documents it holds, compared to other transnational courts.[146] It never proactively worked on enabling public access to case files,[147] despite calls from within its own ranks.[148] But this time the Parliament was unrelenting about transparency and used the opportunity to have its views integrated in the future setup of the EU judiciary, although not all of its proposals bore fruit.[149] The Court did manage to insert certain details that will make its everyday work easier, such as not having to check the parties’ objections to publication or review them.[150] The whole episode showed how the EU legislators are invested in institutional matters of the Court of Justice and that, at the end of the day, the Court (as every court) does not fully control its fate.[151]

Finally, the reformed Statute changes the way in which future amendments will be executed. A new provision was inserted to require that every request or proposal for the amendment of the Statute will be preceded by wide two-month public consultations.[152] These consultations about the developments of the EU judicial system should be open and transparent and ‘allow for the widest possible participation’.[153] Among the involved stakeholders should certainly be national judges and EU legal scholars.[154] The outcome of these consultations will be communicated among the EU judiciary and legislators and made publicly available. This is yet another confirmation of the awareness that the institutional fate of the Court of Justice is a matter of common concern for both EU institutions and the public.

Despite all the commendable novelties introduced by the reform of the Statute of the Court of Justice, the strive for more open and transparent judicial proceedings remains a work in progress. Issues with some potentially questionable practices remain, like anonymisation of the case names.[155] There is arguably still room for improvement, such as considering third-party interventions or amicus curiae briefs to provide additional inputs that represent diverse points of view and could be relevant to the interpretation of EU law, as seen in one of the unsuccessful amendments proposed by the European Parliament.[156] Another thing that seems to be ripe for reconsideration concerns the expert panel established by Article 255 TFEU and its internal workings in the process of selecting judges of the two EU courts.[157]

But the overall spirit of the recent reform speaks to an increased awareness of the Court’s importance in the Union’s institutional system in the new (digital) age. There appears to be a conscious effort to improve the way the Court makes its decisions, presents itself, and communicates with the public. The Court’s basic organisational and governing structures have remained unchanged since the early days of its establishment in the 1950s. While this has helped the Court stand on its feet and become efficient, the environment in which it operates in the 21st century has undergone dramatic changes. Different times need different court – namely, a more open, transparent, and accountable judicial institution.[158] The latest effort aligns the Court of Justice better with an essential (yet often overlooked) part of Article 1 of the Treaty on the European Union (TEU), which talks about ‘an ever closer union among the peoples of Europe’ in which – importantly – ‘decisions are taken as openly as possible […] to the citizen’.

4.   The extension of the scope of application of the filtering mechanism on appeal

The last amendment introduced by the 2024 reform addresses litigation concerning direct actions. The revised Article 58b of the Statute makes the mechanism for prior admission of appeals before the Court of Justice applicable to two categories of cases. On the one hand, the reform upholds the previous provision stipulating that the filtering mechanism applies to appeals against judgments of the General Court concerning decisions of independent boards of appeal established after 1 May 2019 within any body, office, or agency of the Union. Regarding those established before that date, the reform of the Statute expands the list of boards enshrined in the same provision to which the mechanism applies. The list previously featured only four boards, namely, those established within the European Union Intellectual Property Office, the Community Plant Variety Office, the European Chemicals Agency and the European Union Aviation Safety Agency. As a result of the 2024 reform, the list now includes 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 and the European Union Agency for Railways. On the other hand, the reform extends the application of the same filtering mechanism to all appeals against the General Court’s judgments rendered on the basis of an arbitration clause within the meaning of Article 272 TFEU.

In both cases, appeals will proceed before the Court of Justice only if they raise ‘an issue that is significant with respect to the unity, consistency or development of Union law’.[159] The procedure for the prior admission assessment is detailed by Articles 170a and 170b of the Rules of Procedure of the Court of Justice, which have not been amended after the 2024 reform of the Statute. In essence, they provide that such appeals shall be accompanied by an annexed request for the appeal to proceed, detailing in which way the case touches upon the unity, consistency, or development of EU law.[160] The decision on the matter is issued through an order by a Chamber presided by the Vice-president of the Court and comprising the Judge-rapporteur and the President of the Chamber of which the Judge-rapporteur forms part.[161]

The two amendments have a common deflationary rationale, as they aim to reduce the Court’s workload on appeal. However, the two areas of litigation to which the prior admissibility mechanism now applies deserve distinct considerations.

When adjudicating decisions of independent boards of appeals, the General Court essentially exercises appellate jurisdiction. The opportunity for individual applicants to initiate proceedings on the legality of acts by Union bodies and agencies before these boards is explicitly provided for by the Treaties.[162] When a board of appeals is established within a specific EU body or agency, its acts shall first be contested before that instance. The board’s decision may then be challenged through direct action before the General Court in accordance with Article 263 TFEU.

The regulatory framework governing proceedings before the boards of appeals is not uniform, as each has distinct characteristics stemming from the peculiarities of both its area of competence and respective EU body or agency.[163] As a result, boards are different in their design and do not offer identical guarantees of independence and impartiality.[164] Still, some commonalities also emerge. From an administrative perspective, boards of appeals traditionally maintain functional continuity with their respective bodies or agencies. On that basis, their power of review forms an integral part of the administrative procedure.[165] Against this background, in recent years, the regulatory framework for boards of appeals has exhibited a general trend towards progressively enhancing their adjudicatory – or quasi-judicial – nature and statutory independence from their respective EU bodies or agencies.[166] There is no opportunity to explore the rich academic discourse on this subject.[167] For the present analysis, it suffices to stress that the filtering mechanism for appeals against the General Court’s judgments on boards of appeals’ decisions constitutes a key manifestation of that trend.

The filtering mechanism was first introduced by the 2019 reform of the Statute, which followed by only three years the 2016 abolition of the Civil Service Tribunal and the doubling of judges at the General Court. As anticipated, these amendments implied a departure from the judicial architecture previously envisaged by the Treaty of Nice.[168] In turn, the decline of specialised tribunals enhanced the role and position of boards of appeals as specialised fora for administrative review on acts issued by EU bodies and agencies.[169] Together with the strengthening of their guarantees of independence and impartiality, that phenomenon reinforced the position of boards of appeals as quasi-judicial bodies whose review of the legality of administrative acts contributes to safeguarding the right to an effective remedy under Article 47 of the Charter.[170] The Court of Justice’s recent case-law has emphasised this feature. In Aquind, a case concerning a decision issued by the ACER Board, the Court of Justice upheld the latter’s quasi-judicial nature by affirming that it shall exercise a full review of the contested administrative act.[171] The General Court, in turn, operates as an appellate jurisdiction over decisions of boards of appeals which already exercised full review.

As noted by the Court of Justice on occasion of the 2019 reform, many successive appeals in ‘cases which have already been considered twice, initially by an independent board of appeal, then by the General Court, […] are dismissed by the Court of Justice because they are patently unfounded or on the ground that they are manifestly inadmissible’.[172] This consideration led the Parliament and Council, acting on the request of the Court, to establish a mechanism of prior admission of similar appeals, ‘to enable the Court of Justice to concentrate on the cases that require its full attention’. As underlined by the literature, the mechanism had a profound impact on litigation in those domains.[173] Indeed, only seven cases (all concerning EUIPO acts) adjudicated by the General Court have been reviewed by the Court of Justice since 2019.[174] Still, the 2022 proposal for amending the Statute underlined that other independent boards of appeals were already set up in 2019 while not mentioned in Article 58a of the Statute.[175] Therefore, their exclusion from the prior admissibility procedure appeared inconsistent with the overall rationale of the mechanism.[176] As a result, the 2024 amendment under analysis should be seen as a complement to the 2019 reform, as it broadened the scope of the filtering mechanism to the whole spectrum of the independent boards of appeals. But deflation is not the only rationale of the reform. Indeed, such an amendment consolidates the respective roles of EU Courts in litigation on acts adopted by Union agencies endowed with independent boards of appeals. While the General Court constitutes the appellate jurisdiction, the Court of Justice shall be seen as the last instance court whose access thereto is limited to questions of law touching upon the ‘unity, consistency or development of Union law’.[177]

Conversely, partially different considerations apply to extending the same filtering mechanism to appeals on cases brought before the General Court on the grounds of an arbitration clause under Article 272 TFEU.[178] In this domain, the General Court is not an appellate jurisdiction but a first-instance one. According to the Court of Justice’s 2022 request, questions concerning the unity of the EU legal order emerge only rarely from that stream of litigation, thus justifying the opportunity to limit access to appeals. It follows that the only rationale for extending the prior admissibility procedure designed for boards of appeals’ cases to Article 272 TFEU is to reduce the workload of the Court of Justice on appeals litigation.

5.   Not a conclusion but… rather a way forward

This article aimed to provide a critical assessment of the 2024 reform of the Statute of the Court of Justice from a procedural perspective. To that aim, the analysis has been complemented with relevant amendments to the Rules of Procedure of the Court and General Court. When bringing any scientific contribution to an end, concluding remarks are usually appropriate. Still, this article was not intended to conclude but rather to serve as a first step towards further analysis developed in the Special Section ‘Perspectives on the Reformed EU Judicial Architecture’. The underlying rationale of that publication project is to bring together different perspectives of analysis on the new EU judicial architecture, thus deepening the novelties introduced and their early application beyond the procedural dimension developed herein. This article thus provided the groundwork for the contributions featured in the Special Section, which address the many open questions stimulated by the reform from a multi-perspective viewpoint. Therefore, rather than concluding remarks, this final section provides a way forward to the subsequent lines of analysis.

Key interrogatives touch upon the implementation of the new EU judicial architecture and its future prospects. Indeed, recent scholarship underlined that the reform gives rise to several ‘known unknowns’,[179] which only time and further scholarly reflection will clarify. To provide just one example, uncertainties surround the reform’s effectiveness in addressing the issues driving the overall amendment of the Statute. On this point, divergent views have emerged. Some scholars argued that the reform would not be a structural solution to the Court’s overload but rather a temporary palliative.[180] Should the renewed workload management between the Court of Justice and General Court succeed in reducing the time for defining preliminary references, the reform would risk stimulating referrals from national courts even more, thus exacerbating current issues.[181]

Conversely, other authors raise concerns about the potential fear that national courts may perceive their questions as of lesser importance if examined by the General Court rather than the Court of Justice, thereby discouraging them from referring.[182] In response to such criticism, it has been noted that concerns in the academic and institutional discourse on the Court of First Instance’s feasibility to deal with important areas of EU litigation arose even when that judicial body was first established. After 35 years, such fears are now overcome and the General Court is a key protagonist in the EU’s judicial architecture.[183] Therefore, it appears reasonable to expect that successive practice would enable national judicial authorities to become accustomed to preliminary rulings issued by the General Court, thereby getting over potential distrust.[184]

The renewed centrality gained by the General Court in the EU judicial architecture may stimulate further reforms of the Statute of the Court of Justice in the near future. Still, it is quite challenging – at least for the time being – to determine whether the reform marks the first step of an already defined future evolutionary path.[185] Indeed, the 2024 reform can be seen as an experiment[186] which, if successful, may pave the way for further devolution of jurisdiction on preliminary references to the General Court.[187] We will know that in four years after the entry into force of the reformed Statute, when the Court of Justice will present a report to the EU legislative institutions analysing how the reform of the preliminary ruling procedure has progressed. If the system will be firing on all cylinders, the report may be accompanied with a request for amending the Statute, in particular to expand the list of specific areas in which the General Court will be deciding in the preliminary ruling procedure. That would be another indication of the course in which the EU judiciary seems to be heading – with the General Court ‘handling the bulk of the docket’ in a manner of a supreme court and the Court of Justice ‘deciding on points of principle and cases of constitutional relevance’ in a manner of a constitutional court.[188] Conversely, if the reform does not produce the desired results, the possibility of a different and even more profound rethinking of the EU judicial system remains open.[189] Against these various questions, only time and future practice will tell. Still, this piece and the other articles featured in the Special Section aim at paving the way – or, given the multiple perspectives developed, the ways – for the future assessment of the EU judicial architecture’s evolution.

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European Papers, Vol. 10, 2025, No 2, pp. 293-326
ISSN 2499-8249 - doi: 10.15166/2499-8249/833

** Postdoctoral Researcher and Senior Assistant, Department of European Public Law, Faculty of Law, University of Zagreb, davor.petric@pravo.unizg.hr.