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

• Author: Dimitris Liakopoulos
• Pages: 80-104

LESIJ NO. XXV, VOL. 2/2018

LEGAL BASIS AND “TRASVERSAL” INTERPRETATION OF THE ULTIMATE

REFORMS OF THE EUROPEAN UNION JURISDICTIONAL SYSTEM

Dimitris LIAKOPOULOS

Abstract

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

1

, 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

d.i.liakopoulo@gmail.com). ORCID ID: 0000-0002-1048-6468. The present work is updated until September 2018.

1

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.

2

A. Sinnaeve, States aid procedures: Developments since the entry into force of the proceural regulation, in

Common Market Law Review, 2007.

3

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.

4

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

2

, 258 and 259 TFUE

3

,

secondly, in attrib uting to the CJEU the

treatment of actions for annulment

4

linked to

the failure to properly implement a judgment

pronounced by the latter under Article 260

TFEU and, thirdl y, to institute a prior

Dimitris LIAKOPOULOS 81

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

5

to the judicial

architecture of the European Union.

2. The legal basis of the CJEU's

request

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)

6

.

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

5

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.

6

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.

7

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.

8

M. Cremona, C. Kilpatrick, EU legal acts challenges and t ransformations, Oxford University Press, 2018, p.

99, 146, 162, 174, 188, 192, 201.

9

Seems different the nature of art. 257 TFUE.

powers to the EGC for other categories of

appeals.

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

7

. 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

8

. 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

TUE

9

.

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