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Horizontal effect of ‘paradigm shift’ in CJEU

A ‘paradigm shift’ in the EU judicial system has taken place with the recent amendment to the protocol of the Court of Justice of the European Union (CJEU), the vice-president of the European General Court (EGC) has said in Dublin.

Savvas Papasavvas told a DCU Brexit Institute event (9 October) that Regulation (EU, Euratom) 2024/2019 empowers the EGC, from the start of this month, to hear preliminary references and give preliminary rulings in cases that exclusively concern questions of EU law in six specific areas.

This is the first time that this has been the case.

Previously handled by the CJEU, these areas are:

• Common system of VAT,
• Excise duties,
• Customs Code,
• Tariff classification of goods,
• Compensation and assistance to passengers in event of denied boarding or of delay or cancellation of transport services, and
• System for greenhouse-gas-emission allowance trading.

“For 35 years, we [the ECG] have been dealing with direct actions and now we are also called upon to deal with preliminary reference procedures,” he said at DCU.

“We’re talking about new types of cases, new areas of law, and a totally different mindset and approach.

“The handling of these cases is very different to what we knew and what we were doing before, so we need to adapt,” said Judge Papasavvas in his keynote speech.

“The change creates an obligation on us to be able to handle these cases in an average of 15 or 16 months.

“The ECG is known for dealing with complex, fact-intensive cases – always with direct actions – involving a lot of preparation and often long hearings to correctly establish the facts and hear the points of view of the parties.

“This is not viable when you’re talking about handling preliminary rulings within 15 months.”

No preliminary reports

One of the ways the ECG is addressing this challenge so far is not to produce a preliminary report for the cases concerned.

“Delivered a month before a hearing, this internal document we use provides an analysis of a case by the reporting judge and could be anything from 50 to 400 pages long. For these new cases it would have to be more like 15-25 pages long,” Judge Papasavvas explained.

“Also, the idea of having a hearing for these new cases is certainly not a must, unless there are serious reasons for doing that.”

Under the new system, national courts will continue to send questions to the CJEU, which will decide whether the case falls into one of the six categories without raising any other substantial fundamental or constitutional issues.

Once that is confirmed, a dossier will be sent to the EGC.

“In these cases, we need to have the mindset of giving an answer on a question of EU law to a national judge that is not seen as a ready-made solution to the case at hand.

“The result should be sufficiently abstract for a national judge to see and implement that to the case that is before them. This is something that we need to learn and that needs to be taken into consideration,” noted Judge Papasavvas.

Substantial caseload

The six specific areas represent an estimated 20% of all preliminary reference procedures at EU level and account for a substantial body of CJEU case law to date.

“The ECG is fully aware that this is a unique opportunity for our court to handle a caseload that is of a constitutional nature and give interpretation that will have a horizontal effect.

“We take that extremely seriously and are determined to do our best to convince national courts of this, especially supreme courts which have been a bit more sceptical about these cases coming our way,” said Judge Papasavvas.

“The fact that a serious amount of case law exists for these cases should not be forgotten.

“At the end of the day, I believe it might prove a safer bet to have an EGC that is keen to learn and perform handling them, rather than a CJEU struggling with handling all that comes into its docket.”