The CJEU reform and its impact on IP matters

On 1 September 2024, Regulation (EU, EURATOM) 2024/2019 (‘Regulation’), Amendments to the Rules of Procedure of The General Court [2024/2095] and Amendments to the Rules of Procedure of the Court of Justice [2024/2094] entered into force and brought significant changes to the Statute of the Court of Justice of the EU (‘Statute’), the Rules of Procedure of the Court of Justice of the EU (‘RoP CJEU’) and the Rules of Procedure of the General Court (‘RoP GC’). The main purposes of the reform are to reduce the workload of the Court of Justice of the EU (‘CJEU’) and to increase transparency of the judicial process. The press release on the reform can be found here.

The most important changes are the following:

1. Shift of competencies for preliminary rulings

As of 1 October 2024, references for preliminary rulings in the following six areas will be heard by the General Court:

• The common system of VAT;
• Excise duties;
• The Customs Code;
• The tariff classification of goods;
• Compensation and assistance to passengers in the event of denied boarding or of delay or cancellation of transport services;
• The system for greenhouse gas emission allowance trading.

Even if one of these areas of law is concerned, the CJEU retains jurisdiction to hear and determine requests for a preliminary ruling that raise independent questions relating to the interpretation of primary law, public international law, general principles of EU law or the Charter of Fundamental Rights of the EU.

This means that national courts can influence the jurisdiction to some extent by including a question on the interpretation of the Treaty on the Functioning of the EU or the Charter of Fundamental Rights of the EU.

Although IP and IP-related subject matter is not among the competencies transferred to the General Court, the competence shift might have an impact on the duration of all proceedings before the General Court.

This is not just due to the additional workload for the General Court without increasing the number of judges but also because the General Court will be supported by Advocate Generals in the proceedings for a preliminary ruling (Art. 49a Statute). The Advocate Generals are selected from among the judges of the General Court. This will also bind capacity, which cannot be used for other cases.

According to the Judicial Statistics for the Year 2023, the average length of proceedings before the General Court was 18.2 months. This is already quite long and the additional workload is unlikely to shorten the duration.

The Regulation is nevertheless optimistic in Recital 5:

the General Court is currently in a position to be able to deal with the increase in workload that will follow from the transfer of jurisdiction to give preliminary rulings in some specific areas.

2. Publication of submissions in preliminary ruling proceedings

According to the new Art. 23(5) Statute,

Statements of case or written observations submitted by an interested person pursuant to this Article shall be published on the website of the Court of Justice of the European Union within a reasonable time after the closing of the case, unless that person raises objections to the publication of that person’s own written submissions.

The publication aims at increasing the accountability and build trust in the EU as well as in EU law and to strengthen transparency and openness of the judicial process (Recital 4 Regulation).

An objection to the publication does not need to contain reasons and cannot be challenged by another party. In case of a reference for a preliminary ruling before the CJEU, the objection to the publication must be submitted to the Court’s registry in a separate document no later than three months after the delivery of the judgment or service of the order closing the proceedings.

The details of the publication and objection are governed by Art. 202(3) RoP GC and Art. 96(3) RoP CJEU.

3. Extension of mechanism of ‘pre-approval’ of appeals to the CJEU

The amendment to the Statute also provides for an extension of the mechanism for the determination of whether an appeal is allowed to proceed (Recitals 22 to 24 Regulation). Since May 2019, appeals brought against decisions of the General Court concerning a decision of the European Union Intellectual Property Office, the Community Plant Variety Office, the European Chemicals Agency and the European Union Aviation Safety Agency must be admitted by the CJEU if they raise an issue that is significant with respect to the unity, consistency or development of EU law.

Now, this also applies to appeals brought against a decision of the General Court concerning a decision of an independent Board of Appeal of the following EU institutions:

• European Union Agency for the Cooperation of Energy Regulators;
• Single Resolution Board;
• European Banking Authority;
• European Securities and Markets Authority;
• European Insurance and Occupational Pensions Authority;
• European Union Agency for Railways.

Furthermore, it applies to

• Decisions of the General Court concerning a decision of an independent Board of Appeal, set up after 1 May 2019 within any other body, office or agency of the EU, which has to be seised before an action can be brought before the General Court;
• Decisions of the General Court relating to the performance of a contract containing an arbitration clause, within the meaning of Art. 272 TFEU.

This is meant to maintain the efficiency of appeal proceedings and allow the CJEU to focus on appeals that raise important legal questions (Recital 22 Regulation).

4. Submission of statements by EU bodies

The European Parliament, the Council and the European Central Bank will be notified of references for a preliminary ruling and have the right to submit statements of case or written observations (Recitals 25 et seq. Regulation).

This right already existed but was limited to acts which those institutions have adopted and whose validity or interpretation was in dispute in the particular case.

5. Broadcasting of hearings

Hearings of the CJEU and the General Court may be broadcast (Artt. 110a and 219 RoP GC, Art. 80a RoP CJEU).

The broadcast will be live when it relates to the delivery of judgments or opinions, and with a delay when it relates to oral pleadings. The parties may object to the broadcast but the Courts will ultimately decide on whether to broadcast or not.

Recordings will be available on the CJEU’s website for a maximum period of one month after the close of the hearing.

6. Deletion of Art. 191 RoP GC

The Amendments to the Rules of Procedure of The General Court [2024/2095] also meant saying goodbye to Art. 191 RoP GC because it was deleted.

Art. 191 RoP GC was the last article in Title IV of the RoP GC, which dealt (and still deals) with IP matters, and declared Title III of the RoP GC applicable. The reason for this reference was that Title III (concerning direct actions to the General Court) contained (and still contains) important provisions relating to the representation of the parties, the time limits, hearings and judgments, which Title IV did and does not.

The reason for the deletion of Art. 191 RoP GC is that Title III is directly applicable to IP proceedings now. The reform broadened the meaning of ‘direct action’ in Art. 1(2)(j) RoP GC to cover 

all of the actions that may be brought before the General Court, with the exception of requests for a preliminary ruling.

Comment

If Weird Al Yankovic had made a song about this reform, he might have borrowed from Elvis Presley:

A little less regulation, a few more judges please!

With more and more regulation coming from the EU it does not seem very likely that the number of cases will decrease – the opposite can be expected. A long-term solution to an increasing caseload would have been to increase the number of judges at the CJEU accordingly.

And while we are at it: Specialised chambers for matters that frequently come before the Court of Justice (like IP) would also be a good idea – which reminds me of another Elvis Presley song: If I can dream… 

 

The picture is by Franco Garcia and used under the licensing terms of Pexels.com.