Legal Basis And 'Trasversal' Interpretation Of The Ultimate Reforms Of The European Union Jurisdictional System

AuthorDimitris Liakopoulos
LESIJ NO. XXV, VOL. 2/2018
The present work focuses on the analysis of the latest reform of the EU jurisprudential
system which started in 2011 and has been completed on March 2018. The purpose of the
analysis is to interpret the need for these reforms, the time needed, the reasons and the
effectiveness they will have for the next few yea rs. Obviously, the analysis is based on the
articles of the Lisbon Treaty and the rich jurisprudence offered up until now to interpret and
better understand the division of competences and the new dispute system of the Union.
Keywords: CJEU, Treaty of Lisbon, Reg. 2015/2422, Specialized courts, division of
powers, judges' doubling, art. 51 of the Statute of CJEU.
1. Introduction
On Mar ch 26, 2018, the Court of
Justice of the European Union (CJEU) filed
a request, pursuant to art. 281
, second sub-
paragraph, of the Treaty of Functioning of
the Europ ean Union (TFEU) aimed at
modifying Protocol no. 3 of its Statute.
Recipients of the request ar e, of course, the
co-legislators of the E uropean Union,
namely the European Parliament (EP) and
the Council that should adop t the proposed
Regulation acco rding to the ordinary
legislative proced ure referred to in art. 294
Full Professor of European Union Law at the Fletcher School-Tufts University (MA in international law and
MA of Arts in Law and diplomacy). Full Professor of International and European Criminal and Procedural Law at
the De Haagse Hogenschool-The Hague. Attorney at Law a New York and Bruxelles (e-mail ORCID ID: 0000-0002-1048-6468. The present work is updated until September 2018.
S. Van Der Jeught, Le traitè de Lisbonne et la Cour de justice de l'Union europèenne, in Journal de Droit
Europèen, 2009, p. 294. J.V. Louis, La “reforme” du statut de la Cour, in Cahier de droit europèen, 2011, p. 10.
A. Sinnaeve, States aid procedures: Developments since the entry into force of the proceural regulation, in
Common Market Law Review, 2007.
R. Barents, The Court of Justice after the Treaty of Lisbon, in Common Market Law Review, 2010, p. 710. C.
Barnard, S. Peers, European Union law, Oxford University Press, 2017, p. 586.
J. Sladič, Rules on procedural time-limits for initiating an action fro annulment before the Court of Justice of
the EU: Lesser-known questions of admissibility, in The Law & Practice of International Courts and Tribunals, 2016,
p. 154.
TFEU. According to the President of the
CJEU, to the Presid ent of the EP, this
question i s b ased on three main axe s
consisting, first, in transferring to the
General Court (EGC) (former Tribunal for
First Instance) the power in principle to give
judgment, at first instance, on actions for
failure to fulfill obligations based on Articles
108, paragraph 2
, 258 and 259 TFUE
secondly, in attrib uting to the CJEU the
treatment of actions for annulment
linked to
the failure to properly implement a judgment
pronounced by the latter under Article 260
TFEU and, thirdl y, to institute a prior
LESIJ NO. XXV, VOL. 2/2018
admission procedure for certain categories
of appeals. Furthermore, the application
contains a proposal for terminological
coordination. The CJEU's request for justice
fits into the context of the changes already
made in 2015 and 2016
to the judicial
architecture of the European Union.
2. The legal basis of the CJEU's
The CJEU's request is based on articles
256, par. 1, and 281, second sub-paragraph,
TFEU, as well as article 106 bis, par. 1 of the
Treaty establishing the European Atomic
Energy Community (EAEC)
Article 256, par. 1, TFEU establishes,
in order, (i) which are the competences of
the EU EGC, (ii) the Statute of the CJEU can
provide that the EGC is competent for other
categories of appeals and (iii) the decisions
of the EGC itself can be appealed to the
CJEU. This provision does not in fact
constitute the operative and procedural legal
basis of the request presented by the CJEU,
but only the provision which r efers to the
Statute of the CJEU for the attribution o f
See Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015
amending Protocol No 3 on the Statute of th e Court of Justice of the European Union (GUUE, L 341/14) and
Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer
to the General Court of jurisdiction at first instance in disputes between the European Union and its servants. Article
3 of Regulation no. 2015/2422 also provides that by December 26, 2020, the CJEU shall establish, with the help of
an external consultant, a report on the functioning of the EGC, addressed to the EP, the Council and the EC. This
report will focus in particular on the efficiency of the EGC and on the use of resources allocated to it, on the
effectiveness of doubling the judges and on the appropriateness of setting up specialized sections and/or introducing
other structural changes. In particular, with reference to the future appointments of the judges of the EGC, the Union
legislators have been asked to consider the issue of gender balance, considered “of fundamental importance” (recital
11 of Regulation No. 2015/2422) and pursued with a progressive modification of the EGC partial renewal system
(through a revision of article 9 of the Statute), in such a way as to bring the governments of the Member States to
propose two judges simultaneously, in order to favor the choice of a woman and a man.
F. Jacobs, The Court of Justice in the twenty-first century, in A. Rosas, E. Levits, Y. Bot, (eds), The Court of
Justice and the construction of Europe. Analysis and perspectives on sixty years of case -law, Springer Publishing
House, 2013, p. 53.
D. Sarmiento, The reform of the General Court: An exercise in minimalist (but radical) institutional reform, in
Cambridge Yearbook of European Legal Studies, 2017, p. 239.
M. Cremona, C. Kilpatrick, EU legal acts challenges and t ransformations, Oxford University Press, 2018, p.
99, 146, 162, 174, 188, 192, 201.
Seems different the nature of art. 257 TFUE.
powers to the EGC for other categories of
Article 281, second sub-paragraph,
TFEU is the appropriate legal basis for the
adoption of a Regulation which makes
changes to the Statute of the CJEU
. As is
well known, it is a peculiarity of the
European Union Treaties to allow certain
modifications of primary law (Treaties and
Protocols) through the adoption of deeds that
are formally of secondary law
. Although it
is questionable whether this right is left to
the legislator of the Union, it is clear that it
greatly facilitates the reforms deemed
appropriate of some parts of primary law,
avoiding recourse to the co mplex procedure
for revising the Treaties referred to in art. 48
Article 281, sub-paragraph 2, TFEU
also constitutes an exception to the power of
legislative initiative normally held by the
European Commission (EC), since the
CJEU may also make a request in the event
of amendments to its Statute. Ho wever, the
provision co ntained in the same norm o f a
prior opinion of the EC which allows the EU
legislator to have more objective, even
technical, elements at his disposal seems

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