I. Introduction
The General Court has been the source of passionate debates lately. A frustrated reform has led to a successful one that has put the Court of Justice of the European Union (‘the CJEU’ as an institution) in the limelight of public attention. The reform, namely the proposal for the enlargement of the number of judges at the General Court, ensued in a loud rift between the CJEU and the European Parliament, and then it led to an internal battle within the Court, in which several judges of the General Court openly rejected the proposal they would eventually have to apply. Academic writing and blogging has been furiously opposed to the reform too, with a level of animosity hardly envisaged in past debates about the Union’s judicial system. It was only a matter of time before the reform’s poisoned environment reached the press, as it eventually did at the worst possible time, shortly before the UK’s referendum on membership of the European Union (EU).Footnote 1
The reform could not have had a poorer start. However, now that it is in force and the dust has begun to settle, the reform can be analysed in a more serene setting. In fact, the enlargement of the General Court deserves a thorough analysis, as the details begin to unfold and it becomes obvious that its impact goes well beyond the organisational confines of the General Court. The reform has shaken up the EU’s jurisdictional system, with important consequences for the Court of Justice (as a judicial body) as well. As time goes by, it becomes evident that what appeared to be a modest adjustment in the General Court’s organisation, has become the most relevant overhaul of the EU judiciary since the creation of the Court of First Instance in 1989.
This article scrutinises the different strands of reform introduced in the General Court and the Court of Justice. The impact of the reform on both courts is asymmetrical in both scope and time: whilst the General Court is the first jurisdiction to notice the impact of the reform almost in an immediate way, the Court of Justice will be more affected in a longer timeframe. The General Court will go through intense and profound changes in the months immediately after the entry into force of the reform. The Court of Justice will see the changes reflected in a longer time-span that will take several years to show. The overall outcome will be a very different judicial creature to the Court we knew until 2016, but one that will be better equipped to deal with the future’s challenges.
II. The reform
After four years of intense discussion, including a failed reform initiative to enlarge the General Court with twelve additional judges,Footnote 2 on 16 December 2015 the Council and the European Parliament finally agreed on a reform of the General Court that would double the number of judges therein. The reform was introduced by way of an amendment to Protocol No 3 on the Statute of the Court of Justice of the European Union.Footnote 3 The ordinary procedure was used to amend the Statute of the Court of Justice of the European Union, thus allowing the Council to vote on the reform by qualified majority and a simple majority of the European Parliament.
The reform could not have been simpler. A new Article 48 was introduced in the Statute, whereby
The General Court shall consist of:
(a) 40 Judges as from 25 December 2015;
(b) 47 Judges as from 1 September 2016;
(c) 2 Judges per Member State as from 1 September 2019.Footnote 4
The purpose of the reform is to double the number of judges sitting in the General Court by 1 September 2019. Therefore, rules have been set out to synchronise the termination of mandates of the new judges, in order to ensure that the mandates of half the members of the General Court expire every three years.Footnote 5
The doubling of judges has been made at the expense of the Civil Service Tribunal, which has been extinguished as a specialised jurisdiction and its seven members engulfed by the new and enlarged General Court. In fact, the second round of enlargement, that took place on 1 September 2016, is comprised of six of the seven judges sitting at the Civil Service Tribunal, thus putting an end to the sole specialised jurisdiction in the CJEU’s history.
Regulation 2015/2422 also includes a mandate addressed to the CJEU, whereby it is requested to draw up a report, using an external consultant, addressed to the European Parliament, the Council and the Commission, on the functioning of the General Court.Footnote 6 In particular, the report ‘shall focus on the efficiency of the General Court, the necessity and effectiveness of the increase to 56 Judges, the use and effectiveness of resources and the further establishment of specialised chambers and/or other structural changes’.Footnote 7
Also as a result of Regulation 2015/2422, the Rules of Procedure of the General Court have been amended in July 2016. The amendments introduce some of the procedural peculiarities of the Civil Service Tribunal, in particular its rules on amicable settlements.Footnote 8
III. The reasons underlying the reform
According to the Institutions that proposed and enacted the reform, its raison d’être and purpose is based exclusively on efficiency. In the CJEU’s proposal for reform, seconded in full by the Council and the European Parliament in the recitals of Regulation 2015/2422, the reform is justified in order to deliver a more expedient service as a result of the constant rise in the number of cases before the General Court.Footnote 9 According to the recitals, this rise has taken place in combination with a growing variety of subject-matters, putting further pressure on the General Court’s ability to handle its docket. Therefore,
Suitable measures of an organisational, structural and procedural nature, including, in particular, an increase in the number of Judges, should be taken to address this situation. Making use of the possibility provided for by the Treaties of increasing the number of Judges of the General Court would allow for a reduction within a short time of both the volume of pending cases and the excessive duration of proceedings before the General Court.Footnote 10
The number of cases has indeed grown considerably in the past years. In 2000 the General Court’s input reached 398 cases, in stark contrast to the 912 lodged in 2014.Footnote 11 The delays in the General Court’s competition cases have become a bone of contention that has inflicted damage on its reputation as an efficient jurisdiction. Damages claims for undue delays have been successful in the recent past, albeit in a rather convoluted way in which the General Court itself is the competent jurisdiction to hear claims against its own actions.Footnote 12 Change was definitely needed and the reform intends to address these concerns.Footnote 13
However, the data is, as always, subject to interpretation. Indeed, the workload of the General Court tripled from 2000 to 2014, but its members almost doubled during the years of the great enlargement of the EU, in which twelve new Member States joined, together with twelve new judges and plenty of new staff to assist them. It is also well known that industrial property cases comprise a significant part of the General Court’s docket, whilst competition cases, as a result of the Commission’s more pro-active approach towards bargaining and transaction, have decreased compared to past years.Footnote 14 And as far as damages actions are concerned, it must be highlighted that these are exceptional remedies granted by the Court of Justice under strict conditions only.
In fact, some voices from the General Court, through the reports and oral submissions of some of its members before the European Parliament, were highly critical of the reform and considered that the goals could be equally achieved through simpler and less costly means.Footnote 15 In particular, it was suggested that the creation of a specialised jurisdiction competent to hear industrial property cases would unburden the General Court of a considerable number of cases, allowing it to deal with the more time-consuming cases on competition and restrictive measures. However, these arguments were rejected by the CJEU in a press release issued on 28 April 2015.Footnote 16 The Council, the Commission and the European Parliament agreed.
Further criticism arrived from academic circles. In a series of internet posts by Alberto Alemanno and Laurent Pech, the authors rightly argued that the reform was not addressing the genuine issues underlying the EU’s judiciary, which have more to do with quality rather than quantity.Footnote 17 In their opinion, the fact that a quantitative-based reform was launched with no data or evidence-tested analysis is not a promising start. Also, the authors highlight the CJEU’s transparency problems and how the entire process of reform became as opaque as some of the worst practices of the Institution. Overall, most commentators consider that the formal reasons justifying the reform, as they appear in the recitals of Regulation 2015/2422 and in the CJEU’s proposal, are either misguided or dishonest. Whether they are the former or the latter, the genuine effects of the reform will only be properly understood once it has been put into practice.
IV. The General Court after the reform
Shortly after the entry into force of the reform, the General Court gave early signs of adjustment to the new framework. In fact, the first consequences of the reform were hardly a surprise: new chamber formations had to be introduced, the issue of specialised chambers had to be addressed (particularly with the prospect of the well-functioning Civil Service Tribunal being put to rest), as well as other matters resulting directly from the reform. Other consequences were not so obvious and require further time. As will be argued, the long-term impact of the reform will also depend on the General Court’s ability and talent in putting it into practice.
A. Short-term impact of the reform
1. Chamber formation
Doubling the number of judges entails a profound restructuring of the internal division of labour among judges. It is therefore hardly surprising that the traditional three-judge chamber composition has come under question, favouring broader collegiate forms of decision-making. In an interview shortly after the entry into force of the reform, the President of the CJEU, Koen Lenaerts, a former judge at the General Court himself, suggested that the General Court should change the standard three-judge chamber formation and adjust it to the Court of Justice’s standard, based on five-judge chambers.Footnote 18 His suggestion seems to have been adopted by the General Court, which now facilitates the resort to a five-judge formation, although the ordinary formation of the Court remains that of a three-judge chamber.
At first sight, the new system looks similar to the one in place for the Court of Justice, with the possibility of adjudicating complex cases in a chamber of five judges. However, at the Court of Justice, the decision to attribute the case to a chamber is previously decided by the General Meeting of the Court, a plenary formation that includes the Advocates General and the Registrar. In contrast, the General Court assigns cases following a rota between chambers, and it leaves each chamber to decide whether the case merits a five or a three-judge formation.
It is still too early to judge the overall effects of the new formations, but it is reasonable to predict the judges’ preference to rule in three-judge chambers. This has been the general rule for many years at the General Court and it has worked well in the past. Enlarging the number of judges in a chamber risks delaying the decision-making process, particularly when judges are used to a three-judge deliberation system, in which a high degree of interaction exists following years of collegiate work done in an efficient and professional way. Adapting such practices to the workings of a five-judge chamber might become challenging and time-consuming, thus risking the main goal of the reform: to accelerate the handling of cases.
The criteria for allocating a case to a five-judge chamber are yet unclear. The benefits of the Court of Justice’s system, in which a single, plenary-based meeting sets a common standard, provides a certain degree of predictability. For example, industrial property cases could be considered to be three-judge chamber material as a general rule, with exceptions decided on a case-by-case basis. The same approach, but reversed, could be applied to competition cases, on the assumption that they deserve five-judge chambers as a general rule. However, chambers might be reluctant to accept any kind of presumption of relevance or suitability of pre-established formations.
Despite the differences, it may be that the General Court is slowly mutating into a jurisdiction more similar to the Court of Justice. This mutation builds on the adoption of the five-judge formation as mentioned above, and the introduction of a fifteen-judge Grand Chamber, under the last reform of the Rules of Procedure, enacted and recast in 2015.Footnote 19 The Court of Justice has been operating under three standard formations: Grand Chamber, five and three-judge chambers, leaving the plenary formation for truly exceptional cases. The General Court is now much closer to this arrangement.
However, it is somewhat paradoxical that a General Court with more than 50 judges by 2019, intended to provide an efficient and streamlined decision-making process, is beginning to resemble (at least in its formations) the appellate jurisdiction that it is not supposed to be. If the purpose of the reform is to turn the General Court into a fully equipped jurisdictional machine, mostly focused on output and productivity, the General Court must be wary of using larger chamber formations that tend to delay procedures, rather than accelerate them.
2. Specialised chambers
As a result of the repeal of the Civil Service Tribunal, it is conceivable that the General Court will introduce specific measures to ensure a certain degree of expertise and specialisation, at least in staff cases. The creation of a civil service chamber in the General Court was an option that could have justified the end of a jurisdiction that worked efficiently during its lifetime. However, as the implementation of the reform has begun to unfold, there doesn’t seem to be any interest in the General Court to create specialised chambers of any kind.
Yet the introduction of specialised chambers in the General Court tempted the drafters of the judicial reform, as well as other institutions participating in that reform. In its 2011 Opinion on the first reform proposal, the Commission pointed to the possibility of creating specialised chambers, and so did the Court of Justice in 2015.Footnote 20 , Footnote 21 Although there is no mandate in this regard in Regulation 2015/2422, its Article 3 requests the CJEU to include in the report that it shall submit by 26 December 2020 considerations regarding, inter alia, the ‘establishment of specialised chambers’.Footnote 22
The fact that Regulation 2015/2422 has not introduced any provisions on the creation of specialised chambers may be seen as a good reason against ad hoc or permanent specialisations. In fact, the Court of Justice has also avoided any formal specialisation among its chambers, although some of its judges tend to assume some expertise in certain subject areas. This has also been the practice of the Court of First Instance and of the General Court until 2009 and 2015 respectively.
Shortly after the entry into force of the reform, the General Court decided not to specialise its chambers. In a plenary conference, a broad majority of members of the General Court decided to leave things as they currently stand, conditional to a reform of the rules of attribution of cases to reporting judges.Footnote 23 It is the intention of the General Court to introduce efficient and transparent criteria of attribution that will allow a judge to assume a certain expertise in areas of the law needing further development.Footnote 24 Whether this future method will succeed is subject to debate, and the example of the Court of Justice could cast some doubts over the adequacy of preferring specialised judges to specialised chambers. It is true that a specialised judge will frequently deliberate in the same chamber, thus contributing to the specialisation of that chamber itself. However, individual expertise in a single judge, coming from a national legal tradition, is a practice that might contribute to the development of a customised case law, a personal and individual, rather than collective case law, which is not consistent with the consensus-oriented deliberation of the EU courts.
Nevertheless, practical difficulties in creating specialised chambers probably justify the General Court’s current stance. In order to fully profit from the expertise of judges sitting in a specialised formation, it is necessary to ensure a certain degree of stability in the post, something that might be difficult to ensure in a Court where some appointments made by Member States still have a political flavour. Furthermore, Member States will not be happy to know that their appointee will be sitting in a trademark chamber during his or her mandate at the Court, whilst others will sit in high-profile state aid and competition cases, where sensitive national interests might be at stake. The risk of creating first and second-rank judges, depending on the chambers in which they sit, is a price too high to pay and would eventually damage the General Court’s image and authority. Leaving things as they currently stand might be the right decision, needing reconsideration only in the context of a future Treaty reform.
3. Long-term impact of the reform
Doubling the size of a court entails enormous changes in the workings of any jurisdiction. From the personal relations to the size of chambers, including the role of assistants and legal secretaries, everything can change dramatically by simply adding new judges. History shows that enlarging a court has enormous transformative consequences, including in the substance of the case law. Roosevelt’s threat to ‘pack’ the Supreme Court is a timely example, but so is the enlargement of the CJEU in 2004 and 2007.Footnote 25 Anyone who worked at the Luxembourg courts before and after the enlargement will admit that the institution became a very different one after its number of judges grew from 15 to 27.Footnote 26
The General Court can be expected to change its style of reasoning and the physiognomy of its decisions. This may not be the result of a premeditated decision, but a consequence of other measures resulting from the reform. For example, the need to expedite procedures will demand a certain degree of caution on the part of the chambers, particularly if we take into account that the translation directorate’s resources will not be enlarged despite the reform. Issuing more decisions in a timely manner will require shorter judgments if they are to be translated within a reasonable timeframe. The lengthy and detailed analysis that we are familiar with, particularly in competition and state aid cases, may have to come to an end, at least in minor cases. This change could be reinforced by the fact that more cases may be handled by five-judge chambers, where the need to compromise and reach more complex agreements among judges may also lead to more synthetic and concise decisions. Ultimately, a series of unintended consequences could have a considerable impact on the content, style and aspect of the General Court’s decisions.
This approach could encourage the General Court to make use of some instruments at its disposal which have hardly been applied in practice under the past rules. For example, the General Court is entitled to appoint an Advocate General as one of its members.Footnote 27 This possibility was used in the past, but it has been side-lined more recently for reasons that have not been disclosed.Footnote 28 However, under the current rules it could make sense to rely on an Advocate General, particularly in a context of shorter and concise decisions needing additional input that might not be available in a five-judge chamber. This option would only be feasible if the acting Advocate General manages to deliver his Opinion in a timely manner and without affecting his other jurisdictional duties. The past experience of Advocates General at the General Court might prove to sit uncomfortably with the current demands, but the case of Advocates General dealing with urgent preliminary references, or with preliminary analysis of appeals (as will be further explained) proves that the Advocate General can be flexible and efficient depending on the demands of the procedure.
Furthermore, the rise in the number of judges will also entail a considerable increase in the number of legal secretaries. If each judge is to rely on three legal secretaries (as is the rule today) a total number of 168 legal secretaries will assist the chambers and the judges at the General Court. This number is close to becoming unmanageable if the General Court’s recruitment policy is to rely on the sole decision of the judge for whom the legal secretary will work. Filters to ensure the capacity and professional skills of legal secretaries will probably have to be put into place if the General Court intends to have a highly competent and fully operative body of lawyers working to support more than 50 judges. This might lead the General Court to introduce greater requirements for recruitment, more transparency in the selection process and/or a system based on a list of preselected lawyers for selection by the judges.
The spectacular rise of legal secretaries will exert even further pressure on the working language of the CJEU. French has been and still is the working language in both jurisdictions, but its declining influence and the diminishing number of non-native lawyers with fluency in French make it harder for the CJEU to recruit a cosmopolitan and nationally-diverse body of legal secretaries. As long as French continues to be the sole working language of the CJEU, the pool for legal secretaries is likely to appeal to Belgian and French nationals mostly, and this tendency will grow in the years to come.Footnote 29 It is questionable whether Member States will be willing to allow this, as it would consolidate and eventually give a considerable political advantage to French-speaking Member States in terms of visibility and influence in such a vital institution. A gradual shift towards a bilingual regime in which English and French co-exist as official internal languages, as is the case of the European Court of Human Rights, may become inevitable following the reform.
But the reform will also have an impact on the substance of the case law. For example, it is possible that the enlargement of the General Court will lead to a more frequent resort to the Grand Chamber, which has been scarcely used in the past. Deciding cases in a Grand Chamber formation will legitimise the General Court in making more principled decisions, something that it has struggled to do in the past, as it ruled in smaller five-judge chambers. The opportunity of ruling in a Grand Chamber with fifteen sitting judges, will allow the General Court to engage with complex constitutional issues, and those issues will benefit from two highly deliberative decisions in both jurisdictions. The quality of the case law would improve, or at least the legitimacy of the final decision would be considerably reinforced.
In addition, the fact that a larger number of judges will have more resources at their disposal, and a need to justify their use, might even contribute to a softening of the interpretation of the rules on standing under Article 263(4) TFEU. This is not a decision for the General Court to take alone, for it will be conditioned by the Court of Justice’s case law as an appellate jurisdiction. However, the restrictions individual plaintiffs must face to prove standing could be loosened by a General Court which now has the means to handle some increase of its caseload.
V. The Court of Justice and the reform
Although the main addressee of the reform is the General Court, the indirect impact of the measures on the Court of Justice should not be underestimated. In fact, shortly after the reform came into force, the first signals of change at the Court of Justice began to appear. In the following section four signs of adjustment will be highlighted.
A. Appeals on points of law
Due to the increase of productivity at the General Court, it is to be expected that appeals on points of law brought to the Court of Justice will increase. The exact scope of the growing docket is still a mystery, but the reallocation of staff cases back to the General Court and the rise of productivity will bring more applicants on appeal at the Court of Justice. In order to address this risk, the Court of Justice has introduced an experimental procedure for the handling of appeals solved by way of Article 181 of the Rules of Procedure of the Court of Justice, confined for the time being to cases on EU trademarks and procurement, but with the possibility of expanding it to other areas of the law.
In the recent case of Bopp v EUIPO, the Court of Justice has referred for the first time to the ‘position’ of the Advocate General, including it in its entirety in the text of the judgment, and lacking any legal reasoning of the chamber, attaching itself to the Advocate General’s advice.Footnote 30 The Court quoted the Advocate General’s position and came to the conclusion that ‘on the same grounds as those adopted by the Advocate General, the appeal must be dismissed’.Footnote 31
This working method was instituted in the spring of 2016 and has required no changes of the Rules of Procedure.Footnote 32 So far, there has been no announcement and parties will certainly be surprised to see that the Advocate General’s ‘position’, and not the Court’s position, is the decisive criterion in solving their appeal. However, the practice seems perfectly in line with the Treaties, the Statute of the Court and the Rules of Procedure, that do not preclude in any way a reference to the reasoning of the Advocate General, needless to say a full attachment of the chamber to the Advocate General’s ‘position’.
This new policy introduces a notable change to the role of the Advocate General, and one could wonder whether it reinforces its position within the Court, or whether it undervalues it. The fact that a chamber relies entirely on the reasoning of the Advocate General, to the point of including it as the reasoning of the judgment, is a sign of recognition of the Advocate General’s role with no precedent in the Court’s history. It could be interpreted as a sign of weakness of the Court, and as evidence of the transformation of the Advocate General into a type of ‘super legal secretary’, entrusted now with the task of drafting judgments too. Of course the Advocate General will draft his Opinion independently from the relevant Chamber, but the fact that that Chamber accepts the written text of the Advocate General and brings it into the reasoning of the judgment is very telling.
It is obvious that the Court has introduced this working method as a means to accelerate the treatment of appeals on points of law, in anticipation of abundant and maybe unmanageable numbers in the future. The decision to confine it to trademark and procurement cases is perfectly reasonable, considering that industrial property cases make up for almost 50% of the General Court’s docket, whilst procurement cases are also frequent and complex, raising issues of national contract law that require a considerable amount of resources. It is not clear whether this practice will extend to other areas of the law (such as staff cases, anti-dumping, restrictive measures) but it is certain that it has changed the way in which the Advocate General participates in cases solved by way of an Order pursuant to Article 181 of the Rules of Procedure. The fact that the new practice allows Advocates General and Judges to de facto share the task of ruling in minor cases (something that traditionally fell exclusively on the shoulders of the Judges and their cabinets) might be a first sign of a greater involvement of the Advocate General in the jurisdictional tasks of the Court of Justice.
B. Transfer of jurisdiction to the General Court to hear preliminary references
The increase of appeals on points of law, particularly of appeals dealing with minor legal issues, will exert considerable pressure on the Court of Justice’s resources. Furthermore, there are currently hundreds of preliminary references being brought to the Court of Justice on matters also of minor relevance or of a technical character.Footnote 33 These requests for a preliminary reference are generally solved by a chamber of three judges with no Opinion of the Advocate General, and generally involve issues of customs law or VAT. As the number of appeals increase, the handling of technical preliminary references will be a burdensome and consuming task that will eventually deprive the Court of Justice of valuable resources when handling important and principled cases. Therefore, the possibility of transferring jurisdiction to hear preliminary reference in specific areas, which is expressly provided in Article 256(3) TFEU, is likely to be at the forefront of any future reform of the Court.
The transfer of preliminary references to the General Court is an option enshrined in the Nice Treaty, when the Court of Justice’s most ambitious reform took place, mostly in preparation of the enlargement to the new Member States. In anticipation of a growing number of preliminary references from 28 different jurisdictions, the Treaty provided that the Council and the European Parliament, by way of a reform of the Statute of the Court, can grant jurisdiction to the General Court to hear preliminary references in specific areas. This provision has not been put into practice to date, and the Court of Justice has given no sign whatsoever of its willingness to make use of it. This is understandable in light of the General Court’s delay in the handling of cases during the last years, but also due to the fact that the Court of Justice’s docket has not been particularly under stress since the 2004 and 2007 enlargements.
Article 3(2) of Regulation 2015/2422 invites the Court of Justice to submit a report before 26 December 2017 in which the Court is called to take a position on the transfer of jurisdiction of preliminary references to the General Court.Footnote 34 By that date the institution will have a clearer outlook of the impact of the reform on the number of appeals being brought to the Court of Justice. Also, the evolution of preliminary references will be more accurate by then, showing a clearer pattern of references by subject-matter that will allow the Institution to identify the areas of the law which might be eligible for transfer to the General Court.
The challenges of transferring preliminary references to the General Court should not be underestimated. It is true that the General Court will have sufficient resources to deal in a skilled and proficient way with any references brought by national courts. However, no matter how well the General Court handles this new task, there are structural difficulties ahead that deserve being addressed.
First, in a jurisdiction with nine five-judge chambers and a tendency to solve cases in chambers of three judges, there is a considerable risk of lack of consistency. This has already been mentioned (Part IV.A.1 above) but it is relatively mitigated by the role of an effective appeal system. However, no appeals are in sight for judgments of the General Court in preliminary reference procedures. Areas of highly technical expertise, such as VAT or customs law, could be answered in very different ways by different chambers. In fact, the purpose of the transfer of jurisdiction could be undermined if highly technical cases, which deserve technical expertise from judges, end in a myriad of chambers, dispersed among judges of very different backgrounds and sensitivities.
Second, the transfer will reopen the discussions about the review procedure, now put to rest after the termination of the Civil Service Tribunal. According to Article 256(3) TFEU, decisions of the General Court in preliminary reference procedures may be subject to discretionary review by the Court of Justice. This procedure was put into practice during the time of existence of the Civil Service Tribunal, but the Court of Justice was not impressed with that procedure. In the CJEU’s amended proposal for judicial reform, the Court was in fact rather critical and that criticism provided an additional argument in support of the abrogation of the Civil Service Tribunal.Footnote 35 Yet, if the General Court is to be granted jurisdiction to hear preliminary references, the review procedure will be back.
It remains to be seen whether the review procedure is truly efficient or not. In the short lifetime of the procedure the Court of Justice provided some useful guidance in certain areas of the law. It also played the role of scrutiniser of General Court last-instance decisions: the Court of Justice occasionally overruled some judgments on appeal.Footnote 36 Although scarcely used, the review procedure allowed the Court of Justice to scrutinise the practice of the General Court that probably increased the latter’s awareness and proficiency in ruling on appeals in staff cases. Furthermore, the review procedure not only dealt with staff matters, but also with issues of procedure of considerable importance, such as fundamental rights and questions of jurisdictional principle.Footnote 37
However, whilst review procedures in staff cases dealt with a single specialised area of the law, it is to be expected that a transfer of preliminary references will cover a broad range of subject matters. VAT, EU trademarks and customs law are the obvious candidates, but nothing would stop further transfers in other areas which might be handled by the General Court as well, such as public procurement or excise duties. In these circumstances, with several areas of the law involved, the review procedure would be more challenging to handle and it would demand a considerable effort on the part of the Court of Justice. No matter how well the General Court will perform its role in handing preliminary rulings, the Court of Justice will have to make a determination on every single judgment rendered by the General Court. As is known, the review procedure is instigated by a proposal of the First Advocate General. The way in which this has worked is not public, but we know that the decision to review a General Court judgment is a collective effort that involves the First Advocate General and a chamber of the Court of Justice. These resources will have to be mobilised on each and every preliminary ruling handed by the General Court. In the end, if the transfer is intended to alleviate the Court of Justice’s overburdened docket, there is a risk that the review procedure brings the burden back through the back door.
VI. A new Court?
The 2016 reform has brought about a new Court of Justice of the European Union. It is new in a discreet but sweeping way, inasmuch as it hardly touches the foundations of the system and yet is likely to profoundly change the way both jurisdictions work. The reform is a good example of how minor but finely-tuned changes in the law can dramatically change reality. This is true of the General Court, which will go through its most momentous reform in its almost three decades of existence. But it applies to the Court of Justice as well, a very relevant yet indirect addressee of the 2016 reform.
The General Court’s transformation will become fully visible once the jurisdiction has shifted into a genuine first instance Tribunal. From the inception of the Court of First Instance in 1989 until the current reform, the General Court went through a steady process of conversion that replicated many of the practices of the Court of Justice. Whether that was a voluntary policy or not, the truth is that the 2015 General Court strived to look more like a Supreme Court of the EU, subject only to appeals before a Constitutional Court of the EU (the Court of Justice), than a first instance jurisdiction. The 2016 reform has put a drastic end to this process by creating a result- and efficiency-oriented jurisdiction, in which speed and productivity shall be crucial.
Is there a risk that quality of the decisions of the General Court could change for the worst? Probably not.
Quality of judicial decisions is a complex issue that can be analysed from different angles, such as efficiency, coherence or scope of motivation. If quality entails that sufficient human resources are devoted in each individual case, then the reform will not imperil the quality of the case law of the General Court. If quality is a measure of the time invested in each case, there are no indications that the General Court will rule in haste or coming to rushed decisions that might risk the quality of its judgments.
If the willingness of a court to undergo full judicial review is another measure of quality, it is true that the General Court has traditionally undergone some complex factual scrutiny of economic analysis. However, this has not been reflected in the intensity of review adopted by the General Court. In fact, the General Court has been traditionally accused of undergoing a superficial and minimal review of legality based on the technical nature of many of the cases subject to review.Footnote 38 The current reform should not change this approach, but it could reverse the tendency towards a minimal review and shift the General Court’s traditional stance towards a more intensive review. This would be the result of the enlargement of the number of judges and the application of the strict selection criteria by the Committee of Article 255 TFEU. A growing number of competent and experienced judges may contribute to the development of a more intense approach towards judicial review in areas such as competition and industrial property. In fact, the new General Court, with its expedient procedures and new and enhanced human resources, will manage to handle cases in much speedier timeframes and, maybe, with a more demanding standard of scrutiny.
Whilst the General Court has felt the impact of the reform first, it will probably be for the Court of Justice to feel the long-term consequences. In the near future, it is probable that the Court of Justice will handle a considerably smaller number of preliminary references, but focused on new areas of the law and principled cases. Appeals will be limited to very specific points of law and the appellate jurisdiction of the Court of Justice will become, de iure or de facto, a discretionary jurisdiction. Considerable time will be spent in deciding what cases should be given leave to appeal and what preliminary reference rulings of the General Court should be reviewed. In parallel, the Court of Justice could become less involved (at least vis-à-vis the public) with complex and technical issues and thus be more inclined to deal with questions of principle.
In the course of time, the Court of Justice could act more as an adjudicator on points of constitutional principle and less as a generalist supreme court ruling in all areas of law and in cases of varying degrees of relevance. It could render fewer judgments every year, its case law could be more coherent. Its readers would be able to follow its judgments with more detail and the Court would rely more and more on the resources of an efficient and highly professional General Court. A Court of Justice with fewer cases to rule each year would allow its judges to invest more time in Grand Chamber cases, or in five-judge chamber cases that deserve further deliberation. By increasing the time devoted to new points of law or principled issues, the quality of decisions should increase, or at least the legitimacy of the process should improve. The Court of Justice would then find itself in a position to play the role of a constitutional court, in ways that were not possible in the past.
Therefore, what began as a means to solve a problem of efficiency at the General Court, may become the first step in a much more profound process of reform. Only time will tell if the reforms will deliver the goods, but if they do, the Court of Justice of the European Union will be a very different institution to the one it was in December 2015.
