This contribution is a part of the EU Regulation Reside Symposium on the 2024 Reform of the Statute of tthe Court docket of Justice of the EU. Earlier Op-Eds had been authored by Takis Tridimas , Kieran Bradley, Dominik Düsterhaus, Corinna Wissels & Tom Boekestein, Jonathan Wildemeersch, Paul Dermine and Chiara Amalfitano. Extra Op-Eds on this subject might be revealed quickly on EU Regulation Reside.
One of many main challenges of the 2024 Reform of the Statute of the Court docket is the potential impression that the disaggregation of the interpretative operate of the preliminary ruling process could have on the unity of EU regulation. Amongst the safeguards foreseen by Regulation 2024/2019 bringing in regards to the reform (see, usually, the earlier Op-Eds on this Symposium by Takis Tridimas and Dominik Düsterhaus), the evaluation process stands out as the final word clef de voûte. It furnishes an ex submit healing avenue to reinstate coherence and treatment situations the place the disharmony between the EU Courts could pose a severe danger to the unity and consistency of EU regulation, harming not solely the credibility of the preliminary ruling process, but in addition that of the judicial assure of EU regulation as designed within the Treaties. On this regard, nonetheless, the reform is not any reform in any respect: removed from establishing a brand new mechanism, the reform regulation resorts to a procedural avenue designed and controlled ever for the reason that Treaty of Good.
The evaluation process is a sui generis process, with fairly distinctive options. Established in Article 246(2) and (3) TFEU, it exceptionally permits the Court docket of Justice to evaluation the rulings of the Normal Court docket that are, in precept, last. Certainly, the evaluation process was created by the Treaty of Good as a corrective mechanism of ultima ratio for the conditions wherein the Normal Court docket was known as to rule as a Supreme Court docket. This was the case when the Normal Court docket was appearing as an appellate court docket to the Civil Service Tribunal and can now, for the primary time, be the case when the Normal Court docket offers a ruling below the preliminary ruling process.
The peculiarities of the ‘evaluation process’, generally referred to within the EU jargon by its French denomination – réexamen –, are rooted within the bold designs of the Court docket of Justice. Certainly, the Treaty itself says little about this process, past emphasising its distinctive character. Paragraphs 2 and three of Article 256 TFEU foresee, for the 2 forms of the evaluation process, that the choices of the Normal Court docket, each below its (deceased) appellate jurisdiction and its (new) preliminary ruling jurisdiction, ‘could exceptionally be topic to evaluation by the Court docket of Justice … the place there’s a severe danger of the unity or consistency of Union regulation being affected’. These are the relatively minimal standards outlined by the Treaty, upon which the Statute has constructed a brand new process with relatively uncommon options.
One could say that it’s the Statute (and never a lot the Treaty) that has granted the réexamen its distinctive character. The Statute defines not solely the levels of the process, but in addition its actors and the consequences of the evaluation rulings. The set off of the process is positioned in institutional palms, as solely the First Advocate Normal can ‘suggest’ that the Court docket evaluation a Normal Court docket resolution inside one month after its supply (Article 62). The Statute additionally foreshadows the réexamen as an pressing process, preserving on the similar time the potential of the events talked about in its Article 23 to lodge statements or written observations (Article 62a). On the subject of preliminary ruling selections handed down by the Normal Court docket, with out overtly talking about ‘suspension’, the Statute offers that the solutions given by the Normal Court docket solely take impact after the deadlines to set off the evaluation process have expired. The place a evaluation process is opened, the ‘solutions topic to evaluation’ will take impact solely on the finish of such process, being ultimately substituted by the solutions given by the Court docket of Justice in case the proposal for a réexamen is upheld (Article 62b).
All these options make of the réexamen a process fraught with tensions, because of the a number of (and infrequently contradictory) pursuits which it goals to deal with. Though it isn’t a treatment managed by the events, the events do take part within the proceedings. Its final goal is to make sure the unity and consistency of the EU authorized order – aligning it with a process within the curiosity of the regulation. And but, it doesn’t nonetheless resign to bringing the consequences of the reviewed ruling onto the events. Regardless of the excessive stakes and the inherent complexity of the instances that sometimes contain problems with precept, the process is designed to operate with urgency at each stage.
These elements, already current within the textual content of the Statute, haven’t been modified by the 2024 Reform. Equally, the regulation of the evaluation process within the Guidelines of Process of the Court docket of Justice (Articles 191 to 195 thereof) has remained virtually unchanged. A technical enchancment has been launched into a brand new Article 193a by the draft amendments to the Guidelines of Process, whereby it’s foreseen that the Registrar will inform the Normal Court docket, the events and the referring court docket that no proposal to evaluation has been made by the First Advocate Normal, as a way to talk in a clear method that the Normal Court docket’s resolution has change into last.
Nevertheless, regardless of this obvious state of affairs of continuity, the usage of the réexamen process within the preliminary ruling ‘world’ introduces vital novelties and challenges. Earlier than exploring these, it’s crucial to contemplate the historical past of the réexamen, for the reason that earlier observe could comprise the important thing to deciphering essential elements of this distinctive process.
Throughout what we could name the ‘old fashioned’ réexamen, there have been sixteen situations wherein the First Advocate Normal proposed to make use of the evaluation process, out of which the Court docket reviewed six Normal Court docket selections (M./EMEA, C-197/09 RX II; Arango Jaramillo, C-334/12/RX-II; Fee/Strack, C-579/12 RX-II; Missir Mamachi di Luisgnano/Fee, C-417/14 RX-II; Simpson and HG, C‑542/18 RX‑II and C‑543/18 RX‑II). In a single case, the First Advocate Normal proposed the evaluation, with out nonetheless contemplating that the choice of the Normal Court docket posed a severe danger for the unity or consistency of EU regulation, the rationale for which the Court docket dominated that the formal necessities for triggering the réexamen had not been met (FV v Council, C-141/18 RX).
At first look, the quantity (6 out of 16) recommend a excessive likelihood of getting a case reviewed. Nevertheless, this isn’t the case when contemplating the broader context: the pool of doubtless reviewable instances was a lot bigger. The Normal Court docket (beforehand often known as the Court docket of First Occasion) acted as appellate jurisdiction in over 300 civil service instances.
The views of the Advocates Normal and the rulings of the Court docket on the ‘profitable’ opinions present some steerage as to the conditions wherein a réexamen could also be granted. For instance, Advocate Normal Wathelet (view in Missir Mamachi di Luisgnano/Fee, C-417/14 RX-II, level 54) listed the 4 evaluation standards which may very well be drawn from the earlier case-law as related to the willpower of whether or not the unity or consistency of EU regulation was affected:
‘– the judgment of the Normal Court docket could represent a precedent for future instances;
– the Normal Court docket has departed from the established case-law of the Court docket of Justice;
– the errors of the Normal Court docket relate to an idea that doesn’t pertain solely to the regulation referring to the employment of European Union officers however is relevant whatever the matter at challenge; and
– the principles or rules with which the Normal Court docket did not comply occupy an essential place within the European Union authorized order’.
Apparently, these standards seem to have impressed the 2024 reform of the Statute, not a lot by that includes within the guidelines governing the evaluation process – which stay unchanged – however by changing into embedded into the design of the mechanism which permits the ‘particular areas’ to be recognized and the particular instances to be transferred. Certainly, the existence of earlier case-law, in addition to the absence of questions of precept warranting the Grand Chamber’s involvement had been decisive elements in figuring out the ‘particular areas’. The standards for ‘retained jurisdiction’ outlined in Article 50b of the Statute for ‘impartial questions referring to the interpretation of major regulation, public worldwide regulation, common rules of Union regulation or the Constitution…’ could also be traced again to the thought of the ‘essential place’ {that a} rule occupies in EU regulation. The ‘encapsulation requirement’ additionally appears to be impressed by the desire to cowl conditions the place the problems underlying the necessity for a evaluation pertain to broader areas going past the ‘particular space’ of transferred jurisdiction involved.
From this angle, the réexamen process enhances the safeguards towards inconsistencies, as its new scope of software has been already fastidiously delineated to minimise dangers to the consistency and unity of EU regulation. This authorized framework, removed from being overcautious, is justified by the considerably completely different contexts wherein the réexamen is known as on in its ‘new age’.
First, making use of the réexamen within the context of the switch of jurisdiction in preliminary rulings significantly broadens its scope past the comparatively contained space of EU employees instances. The evaluation process will now be way more uncovered and impactful, because the potential ‘purchasers’ of the réexamen not solely embody EU civil servants, but in addition tons of of nationwide courts and litigants – doubtlessly hundreds of residents for the reason that preliminary ruling judgments settle the interpretation of EU guidelines past the particular case at challenge. This a brand new actuality places below the highlight the long run position of events in evaluation procedures, contemplating that this reform would possibly simply be the start of a extra common switch of preliminary ruling jurisdiction in the direction of the Normal Court docket.
Second, the evaluation process has suffered from aggravated opaqueness up to now. A lot of the Court docket’s selections discovering that the evaluation couldn’t proceed had been restricted when it comes to their motivation and weren’t translated into all of the official languages (with some exceptions, resembling the choice in C-17/11 RX, Petrilli/Fee). The final results of preliminary ruling selections once more speaks to a better transparency and motivation of the choices whereby the Court docket decides to not evaluation a case: in instances the place the First Advocate Normal proposes a evaluation, which is then not been granted by the Court docket of Justice, adequate motivation is required so as not undermine the authority the preliminary ruling selections of the Normal Court docket – since gaining belief from nationwide courts is among the essential points for the success of the reform (see the Op-Ed by Corinna Wissels & Tom Boekestein).
Third, the expanded scope and variety of instances to which this process might be utilized necessitates a deeper reflection on the connection between the 2 EU courts. It’s exactly on this context the place the Court docket has explicitly acknowledged the chance of creating incorrect precedents as a key issue for triggering the evaluation of choices of the Normal Court docket, reinforcing the thought of vertical precedent. Nevertheless, concurrently, the switch of jurisdiction in preliminary ruling procedures throughout varied areas locations materials accountability on the Normal Court docket, positioning it as the final word arbiter and interpreter of EU regulation within the particular domains involved. This ‘new age’ of the réexamen offers a chance to reassess the jurisdictional interplay and hierarchy between each courts and the near-precedential worth of Court docket of Justice rulings (in addition to the precedential worth of the Normal Court docket rulings within the ‘particular areas’).
Fourth, the observe of the réexamen will unfold along with the opposite ex-ante ensures: the duty of the Normal Court docket to remit the instances fall outdoors its jurisdiction (Article 54 of the Statute) and the chance to refer instances again to the Court docket of Justice if it considers that the case requires a call of precept more likely to have an effect on the unity or consistency of Union regulation (Article 256(3)TFEU). The kind of prolific use of the réexamen by the First AG and its success charge earlier than the Court docket of Justice will gauge not solely of the effectiveness of those safeguards but in addition of the general framework for figuring out particular areas, in addition to of the ‘guichet distinctive’ system for allocating jurisdiction.
All in all, the distinctive character of this process and the case regulation of the Court docket making use of the ‘old fashioned réexamen’ clarify that this process is just not sure to catch all of the interpretative divergences that will emerge, however solely these which increase essential problems with precept. As already famous, the 2024 Reform of the Statute operates below the premiss that interpretative accountability for the particular areas has shifted to the Normal Court docket and that, on this context, a sure stage of dissonance could happen. The Court docket itself has confirmed that the existence of divergence within the case regulation, in addition to the truth that the Court docket has not but dominated on a selected challenge, don’t justify a evaluation, for the reason that case regulation in issues of civil service regulation was then solely for the Civil Service Tribunal and the Normal Court docket to develop (C-17/11 RX, Petrilli/Fee, para. 4). Will this place be maintained within the ‘new age’ of the réexamen with regard to all of the transferred ‘particular areas’? The heightened significance of making use of the evaluation process within the realm of preliminary rulings speaks to a cautious consideration of the position of the réexamen and the interpretation of the criterion of the ‘severe danger of the unity or consistency of Union regulation’. This want is intensified by the evolving case regulation regarding the parallel – but completely different – customary of addressing an ‘challenge that’s vital with respect to the unity, consistency or improvement of Union regulation’ within the framework of the filtering of appeals (see the Op-Ed by Kieran Bradley) – the place a seemingly decrease customary has been interpreted very restrictively. The standards for the réexamen that observe from the earlier case regulation, when utilized in mild of the peculiarities of the preliminary ruling process, could end in observe in a better charge of reviewability. Even when the réexamen will stay distinctive, the precedential worth that the preliminary ruling process enjoys by its very nature could extra simply attain the edge of seriousness contemplating that, as a common rule, ‘the judgment of the Normal Court docket could represent a precedent for future instances’. ‘Old-fashioned’ knowledge will relaxation in place however tailored to the circumstances of the ‘new age’ – interpretative divergence could merely quantity extra usually to a severe danger for the unity or consistency of Union regulation.
The submit Op-Ed: “Return of the Réexamen” appeared first on EU Regulation Reside.
