Changes and challenges go hand in hand

doi:10.1017/CBO9781139924795.007

6 - Changes and challenges go hand in hand

Accessibility of the preliminary ruling procedure before an overloaded Court within the area of Freedom, Security and Justice post-Lisbon

from Part II - The individual: at the centre and in the periphery

Published online by Cambridge University Press: 05 August 2016

Agata B. Capik

Edited by

Nuno Ferreira and

Dora Kostakopoulou

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Nuno Ferreira: Affiliation:
University of Sussex
Dora Kostakopoulou: Affiliation:
University of Warwick

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Type: Chapter
Information: The Human Face of the European Union
Are EU Law and Policy Humane Enough?
, pp. 133 - 154

DOI: https://doi.org/10.1017/CBO9781139924795.007 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2016

6 Changes and challenges go hand in hand Accessibility of the preliminary ruling procedure before an overloaded Court within the area of Freedom, Security and Justice post-Lisbon

1 Introduction

Following the rejection of the Constitutional Treaty,Footnote ¹ the ‘period of reflection’ resulted in a Reform Treaty,Footnote ² which was envisaged to enhance the European Union’s ability to meet the challenges of the twenty-first century. The amended Treaties, designed to yield more efficient legislative and administrative structures, brought about significant changes in the functioning of the EU institutions.Footnote ³ This applied also to the Court of Justice (CJEU) and to the procedures applicable before it.Footnote ⁴

Among all the modifications in the system of judicial review introduced by the Reform Treaty, the main step comprised undoubtedly a major reform of the area of Freedom, Security and Justice (AFSJ) and, consequently, the Court’s jurisdiction in that field of EU law, resulting from setting aside the earlier pillars’ division.Footnote ⁵ The amendments to the competences of the CJEU and to the procedures applicable before it were designed to make the Court more accessible for individuals. Accessibility would be achieved, inter alia, by speeding up the procedure, on the one hand, and by extending the Court’s competences, on the other. This would attribute a more humane dimension to the judicial protection provided at the EU level.

The post-Lisbon system of the judicial protection of individuals in the AFSJ has been formally enhanced in a double fashion.Footnote ⁶ On the one hand, the scope of the application of the provisions regarding the preliminary ruling procedure has been extended, albeit subject to transitional provisions.Footnote ⁷ On the other hand, the Charter of Fundamental Rights of the European Union (CFR)Footnote ⁸ attached in the Annex to the Treaties, reaffirming expressis verbis the right of access to the court,Footnote ⁹ has become part of the primary law level in accordance with the provisions of Article 6 TEU. At first sight, it might seem that individuals’ access to the Court in the field of the AFSJ has been eased. However, it is also noteworthy that, while introducing the general applicability of the preliminary ruling procedure and thus naturally increasing the number of incoming cases, the Lisbon Treaty has not brought about any revision of the structure and functioning of the CJEU. The possibilities of certain reforms introduced, inter alia, in Nice,Footnote ¹⁰ regarding this procedure,Footnote ¹¹ have still remained on paper only.Footnote ¹² Luckily, however, significant steps have been taken by the CJEU itself. In particular, the revised Rules of Procedure and the Statute of the CJEUFootnote ¹³ have increased the Court’s efficiency by reducing the duration of proceedings. In addition, the more detailed regulation of the urgent preliminary ruling procedure (procédure préjudicielle d’urgence, PPU),Footnote ¹⁴ the only ‘version’ within the system of preliminary references dedicated particularly and solely to AFSJ matters, reflects the role this procedure plays in increasing the efficiency of the CJEU.

The following analyses reflect on these reforms with a view to ascertaining whether the functioning of the preliminary ruling procedure within AFSJ in the post-Lisbon era is humane enough. This chapter aims to examine the impact of the procedural modifications on the system of judicial protection offered to individuals in the EU and to reflect on how the latter could become more responsive to their needs. The discussion is, thus, structured as follows. An overview of the shortcomings of the previously designed system and of the modification of the preliminary ruling procedure after Lisbon will be given (Section 2) and critically evaluated (Section 3). This evaluation will be concluded by a proposal of ensuring the right to access to the Court for individuals by not only changing the competences of the Court but also adapting its current architecture to these needs (Section 4). In this context, reference will be particularly made to the PPU regime, addressing a (re-)definition of the competence area for a ‘designated chamber’ and its way of work, while aiming at ensuring a humane functioning of the CJEU in the future, and providing for an effective judicial protection for individuals enforcing their rights at the EU level.

2 Preliminary ruling procedure within the Freedom, Security and Justice area before and after Lisbon

For an effective enforcement of individuals’ rights, access to justice is of an essential nature. It is commonly known that the latter seems to be mainly granted at the European level by the provisions of Article 263 (4) TFEU, setting up, however, still quite strict locus standi requirements.Footnote ¹⁵ Therefore whenever a natural or legal person cannot directly challenge the measures of general application under Article 263 (4) TFEU because they do not satisfy the admissibility conditions, they may do so before the national courts and ask these courts to make a reference to the CJEU on validity under Art. 267 TFEU. Consequently, being an element of a complete and coherent system of judicial review, the preliminary ruling procedure, as envisaged in the provisions of Art. 267 TFEU,Footnote ¹⁶ shall ensure not only the ‘utmost uniformity in the application of Community law and establish for that purpose effective cooperation between the Court of Justice and national courts’,Footnote ¹⁷ but at the same time serves as the main channel for challenging the legality of EU legal acts on the part of individuals.

Notably, however, within the areas of law covered by Justice and Home Affairs this feature of the preliminary ruling procedure had been only a theoretical possibility, for a number of reasons, particularly due to the lack of CJEU’s jurisdiction. Despite the fact that the Amsterdam Treaty,Footnote ¹⁸ following its objective to create the AFSJ, essentially changed the judicial powers of the CJEU within an area of police and judicial cooperation in criminal matters as well as added to the complexity of the preliminary ruling references system by its limitation under ex-Article 68 EC,Footnote ¹⁹ an effective access to the court via this procedural channel remained, however, significantly restricted in the pre-Lisbon era. For these reasons, the removal of these limitations as well as the duration of this procedure were issues of great concern during the process of drafting the Reform Treaty.Footnote ²⁰

2.1 Police and judicial cooperation in criminal matters

Before Lisbon, the jurisdiction of the CJEU in the field of police and judicial cooperation in criminal matters was governed by the primary law provisions providing for a declaration by which the Member State ‘shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings’Footnote ²¹ on validity and interpretation of framework decisions and decisions on the interpretation of conventions established under the previous Title VI TEU as well as ‘on the validity and interpretation of the measures implementing them’.Footnote ²² Such a declaration itself could have differed significantly, as each Member State could have chosenFootnote ²³ whether the request for a preliminary ruling would be subject to the decision of any domestic courtsFootnote ²⁴ or only of a ‘court or tribunal of that State against whose decisions there is no judicial remedy under national law’.Footnote ²⁵ Therefore, the cognition of the CJEU in this area of EU law was in fact considerably curtailed, in the end depending on the political will of a particular Member State,Footnote ²⁶ firstly to accept (and therewith allow) the Court’s jurisdiction, and secondly to decide which domestic courts should be concerned by the declaration. The mechanism of a preliminary ruling suffered thus in particular from the lack of a formal, legally binding obligation to make referencesFootnote ²⁷ and, further, of erga omnes effect of the judgments.Footnote ²⁸ It goes thus without saying that individuals have been unequally protected in the different Member States, as they could not profit from the jurisprudential approach given by the third pillar measure, whereas the preliminary ruling has been the only action specifically foreseen there for individuals.Footnote ²⁹ Such an unequal and curtailed judicial protection questioned significantly the effectiveness of an access to the court.

Considering the foregoing, it should be appreciated that the Lisbon Treaty repealed the provisions of ex-Article 35 EU and, thus, enabled any domestic court or tribunal to request a preliminary ruling from the CJEU.Footnote ³⁰ Consequently the jurisdiction of the CJEU to give preliminary rulings has become obligatory,Footnote ³¹ strengthening the judicial protection – and therewith a right to access to justice – of individuals at the EU level. However, as the transitional provisions applied till the end of November 2014, it still remains to be seen whether access to justice will indeed be ensured after that date, when indeed all domestic courts and tribunals of all EU Member States will be able to refer questions regarding police and judicial cooperation in criminal matters to the CJEU.Footnote ³²

2.2 Policies related to free movement of persons

Similarly to the area of police and judicial cooperation in criminal matters, the possibility of use of the request for a preliminary ruling of the CJEU was limited also with regard to the Title IV EC, which covered ‘visas, asylum immigration and other policies related to free movement of persons’. The provisions of ex-Article 68 EC had in fact foreseen a fundamental derogation from the classical model of preliminary ruling procedure within the scope of application of EU law, stipulating that solely the ‘courts or tribunals against whose decisions there is no judicial remedy’ were entitled to refer a case to the CJEU considering interpretation and validity with regard to the Title IV EC.Footnote ³³ Furthermore, there was no court, which could raise questions ‘on any measure or decision taken pursuant to Article 62 (1) relating to the maintenance of law and order and the safeguarding of internal security’.Footnote ³⁴ Admittedly, the provisions of ex-Article 68 EC did not mention any other provisions of EC law than that of ex-Article 234 EC for safeguarding the rights of individuals by means of judicial remedies, thus granting the access to the court at EU level in this sensitive field of EU law.Footnote ³⁵ This should have been, however, interpreted in the extensive way, by presuming that there was no limitation for the other actions under the provisions of ex-Article 68 EC as they have been in use by the individuals.Footnote ³⁶ One could argue however that it was not the rule.

Following Lisbon, the urgent matters regarding visas, asylum, immigration and the other policies related to free movement of personsFootnote ³⁷ can be referred to the CJEU by any national court or tribunal for preliminary rulings. The CJEU henceforth has become competent to rule on measures taken on grounds of public policy in connection with cross-border controls. It is worth noting here that the domestic courts of the Member States have welcomed this opportunity which is, inter alia, reflected by the increasing number of cases referred in this field of EU law to the CJEU.Footnote ³⁸

2.3 Lisbon evaluated: brand new Rules of Procedure

As noted above, the former limitations to the Courts’ jurisdiction as set up previously in Title IV EC and in Title VI EU regarding the preliminary references system have been successfully abolished.Footnote ³⁹ Consequently, under the Treaty of Lisbon the preliminary ruling procedure has become subject to the general regulation, applicable through all legislative measures foreseen in the founding Treaties,Footnote ⁴⁰ in accordance with the provisions of Article 267 TFEU. Therefore, one might possibly argue that an eased access to the court has been granted to individuals at the EU level. However, whereas the protection of individuals’ rights has been strengthened,Footnote ⁴¹ one could also point out that the reforms have had some unintended consequences, which tend to undermine their objective. A natural consequence of the extension of the Court’s jurisdiction, namely an increase in its workload, was not taken into consideration despite the fact that it might have a significant impact on the duration of the proceedings within the AFSJ in the future, that is, following the end of the transitional period.

Having said this, the EU judicial system post-Lisbon logically faced a new challenge, reflected by the growing amount of cases referred by national courts for a preliminary ruling within the AFSJ.Footnote ⁴² Interestingly enough, despite the gradual increase of the number of cases submitted in course of the preliminary references procedure, the length of the proceeding so far has not been extended, on the contrary – slightly reduced.Footnote ⁴³ Nevertheless, considering the gradual shift in the number of references in the field of ASFJ, the duration of proceedings in this sensitive area of law might become problematic in the near future, as – after 1st of December 2014 – all courts and tribunals from those Member States which did not submit any declaration under the previously binding regime of Article 35 EU are enabled to also send cases to Luxembourg.

The CJEU has been attuned to this challenge. In 2011 it submitted to the Council draft amendments to the Rules of Procedure (RoP)Footnote ⁴⁴ aimed at improving efficiency, i.e. reducing the duration of proceedings, while providing a number of simplification measures and granting henceforth an important position to references for a preliminary ruling.Footnote ⁴⁵ Admittedly, the key objective of the new RoP, namely, to deal with the growing caseload within a reasonable period of time by introducing a number of measures that should encourage cases to be dealt with swiftly and efficiently has been attained. Those measures include the possibility of the CJEU adopting a decision with a view to limiting the length of written pleadings or observations lodged before it,Footnote ⁴⁶ or the relaxation of the preconditions for the Court’s adoption of a reasoned order, particularly where the answer to the question referred by a national court or tribunal for a preliminary ruling admits no reasonable doubt.Footnote ⁴⁷ Finally, the RoP provide also for the possibility for the President of the Court to submit a reference for a preliminary ruling to an expedited procedure on his own motion, when the nature of the case requires that it be dealt with within a short(er) time.Footnote ⁴⁸

All in all, the amendments to the RoP before the CJEU have been so far proven successful as far as duration of the preliminary ruling procedure is concerned.Footnote ⁴⁹ Whether such an outcome will be equally positive when the Lisbon amendments became fully applicable remains to be seen in the very near future.

3 Urgent preliminary ruling procedure: a feasible panaceum?

The maxim ‘Justice delayed is justice denied’ has been frequently cited with respect to references made within the AFSJ,Footnote ⁵⁰ an area of EU law where time and sensitivity to the rights of human beings matter in a considerable way.

To be able to deal with at least certain types of cases within a reasonable time, the CJEU – responding to the Presidency ConclusionFootnote ⁵¹ and the subsequent proposal from the European CommissionFootnote ⁵² – introduced a special model of the preliminary ruling procedure, reflecting the urgency naturally attributed to sensitive spheres of individuals’ rights within the AFSJ. The urgent version of the preliminary reference procedure facilitates access to the CJEU by individuals. Interestingly, this type of procedure was drafted in parallel to the amendments included in the Lisbon Treaty. Therefore, one might wonder whether the EU legislator has missed an opportunity to reform the architecture of the preliminary reference system by drawing inspiration from the functional specifics of the urgent regime.

3.1 Business as usual in its quick fashion

The urgent preliminary ruling procedure is currently governed by Article 23a of the Protocol on the Statute of the Court of Justice,Footnote ⁵³ implemented by the Articles 107–114 of its RoP.Footnote ⁵⁴ Contrary to the accelerated procedure,Footnote ⁵⁵ the PPU regime applies solely to the questions related to the AFSJ, particularly

in the case of a person detained or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situationFootnote ,⁵⁶ or
in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European law depends on the answer to the question referred for a preliminary ruling.Footnote ⁵⁷

Further, an explicit reference to the PPU regime, introduced by the Lisbon Treaty, is contained in the provisions of Art. 267 TFEU, expecting the CJEU to act within the minimum delay whenever the question referred is raised in a case concerning a person in custody.Footnote ⁵⁸ Such legal construction reflects primarily the idea that proceedings in this particular area of EU law tend to be urgentFootnote ⁵⁹ and that the existing models of preliminary ruling procedureFootnote ⁶⁰ were not sufficient to appropriately address this urgency.Footnote ⁶¹

Because of its nature and especially because of its objectives, the urgent model of the preliminary ruling procedure significantly differs from what is known from the classical references made under the provisions of Article 267 TFEU.

Firstly, this procedure simplifies the various stages of the proceedings before the CJEU, which doubtlessly calls for praise.Footnote ⁶² The said simplification concerns in particular the written part of the proceeding, where the participation is limited to the parties of the main proceedings, the Member State from which the reference is made, European Commission and eventually other EU institutions, if an act issued by them is subject to the reference.Footnote ⁶³ Further, the written part of PPU proceeding might be significantly shortened or even omitted in cases of extreme urgency, whereas a hearing under PPU regime is always a rule.Footnote ⁶⁴ Moreover, the Advocate General is to be heard in each case dealt with, within the urgent procedure; this does not mean that the Advocate General has to hand down an opinion (called under PPU regime ‘view’).Footnote ⁶⁵

Secondly, the referring court may still order protective measures to safeguard the interests of the parties pending the judgment of the Court, particularly those regarding the national administrative measure based on an EU act, which is a subject of a reference for a preliminary ruling on validity.Footnote ⁶⁶

Thirdly, the use of the urgent preliminary procedure is to be decided by the CJEU,Footnote ⁶⁷ generally only on the basis of a reasoned request submitted expressis verbis from the referring court. Simplifying the application of the PPU regime by domestic judiciaries, there is no need to submit such a request in a separate document. Nevertheless, for practical reasons it should be considered to request the PPU in a separate written submission, chapter or cover letter, in a form that enables the CJEU to establish immediately that the file has to be dealt with in a particular way.Footnote ⁶⁸ In order to be enabled to act so, certain formal conditionsFootnote ⁶⁹ are foreseen which have to be fulfilled by the request to be answered under the PPU regime.Footnote ⁷⁰

One could argue that such an explicit request from the domestic court might be problematic since the different notions of the declaration under ex-Article 35 EU still applied till the end of the transitional period, but first and foremost the PPU has to be requested only where it is absolutely necessary (for the Court to give its ruling on the reference as quickly as possible).Footnote ⁷¹ Thus, if the national court does not explicitly request the application of the PPU regime, the CJEU may nevertheless consider it ex officio,Footnote ⁷² whenever it appears to be required by the nature or the particular circumstances of the case.Footnote ⁷³ In the latter case the President will refer the matter to the designated Chamber dealing with the urgent preliminary ruling procedure, since the latter is empowered to decide whether the PPU regime will apply.Footnote ⁷⁴

The creation of such a special ChamberFootnote ⁷⁵ for handling the references under the urgent preliminary ruling procedure was introduced with particular regard to efficiency.Footnote ⁷⁶ The composition of that Chamber is determined in accordance with the RoPFootnote ⁷⁷ on the day the case is assigned to the Judge-Rapporteur if the application of the PPU regime is requested by domestic judiciaries, or, if the application of that procedure is considered at the request of the President of the Court, on the day that request is made.

Finally, in order to avoid potential delays resulting from traditional exchange of documents, the proceedings under the PPU regime are for the most part conducted electronically.Footnote ⁷⁸ All this ensures increasing efficiency in the operation of an overloaded Court.Footnote ⁷⁹ Indeed, all of the cases submitted thus far under the PPU procedure were adjudicated within the prescribed time limit of three months.Footnote ⁸⁰ However, due to the strict procedural requirements foreseen for the PPU regime, especially these regarding the short time limits for particular stages of the procedure, there is – as the practical experiences have shown – a certain need to (re-)define the competence area for such a Chamber in order to ensure proper functioning of the CJEU in the future. This issue is discussed below.

4 Granting a humane face to the Court of Justice

The reforms discussed in the foregoing sections have enhanced the jurisdiction of the CJEU and have facilitated individuals’ access to it. The Reform Treaty, the CJEU’s initiatives and the provisions of the CFR have resulted in the strengthening of judicial protection under the European Union law. However, they have also opened a Pandora’s box since the number of cases reaching the CJEU is increasing.Footnote ⁸¹ In this respect, the crucial question is how access to justice can be made more effective. The effectiveness in the context of the preliminary ruling procedure relates to its – so far still – questionable durationFootnote .⁸² Although the procedural system at EU level is quite complex and there is in fact only limited space left for a substantial improvement,Footnote ⁸³ one might nevertheless re-think a division of competences within the Court itself and possibly re-consider a sort of ‘specialisation’ within the AFSJ. Against this background, a question arises as to whether the current architecture of the CJEU might be seen as sufficient enough to ensure that judgment in the course of the preliminary ruling procedure will come out indeed within ‘reasonable time’, particularly in AFSJ matters, granting a humane oriented judicial protection.

4.1 Designated Chamber: a thinkable step towards re-organisation?

The debate regarding the re-organisation of the architecture of the CJEU in fact is not a new feature.Footnote ⁸⁴ Bearing in mind that preliminary ruling procedure constitutes the main type of proceedings before the Luxembourg judiciaries,Footnote ⁸⁵ being at the same time the main channel of protection of individuals’ rights, its procedural conduct logically merits special attention.

Certainly, the reduction of the proceeding duration from 23 to an average of 15 months over the past decadeFootnote ⁸⁶ demonstrates a clear progress in this regard. Nevertheless, considering the need of ensuring effective access to justice for individuals a question arises whether the present length of the preliminary ruling procedure satisfies this need and whether reforms are needed in the future.

Reforms in this could take two forms. Firstly, there exists the possibility of establishing a ‘specialised Chamber’,Footnote ⁸⁷ as a separate judicial body, handling the cases pending within the AFSJ. Having a reasonable number of cases,Footnote ⁸⁸ the specialised court could have dealt with them – in the course of the classical version of the preliminary ruling procedure – obviously within a shorter time than it is today. Such a solution, however, does not reflect the wishes of the Luxembourg judiciaries, who are in general not willing to increase the number of judges.Footnote ⁸⁹ Additionally, such a potential increase of the number of the members of the CJEU would have had also not inconsiderable financial implications, which are currently not foreseen in the EU budget.Footnote ⁹⁰

Secondly, a successful functioning of the PPU model, ‘equipped’ with the specially designated Chamber could be envisaged. The possible amendments in functioning of such a Chamber should be considered, especially in the light of the argumentation of the CJEU that the current architecture used in the course of the PPU regime ‘has proved to be particularly demanding for the Chamber concerned’,Footnote ⁹¹ particularly due to the short deadlines and, thus, a significant pressure while dealing with the case.

Against this backdrop, one might consider the establishment of such a ‘designated Chamber’ on a permanent basis, i.e. for a longer period of time than it is called for today,Footnote ⁹² equipping it with a general competence to deal with the cases falling within the AFSJ. It is certainly not argued that all of these cases touching upon AFSJ matters should be dealt with in the course of the urgent preliminary ruling procedure. On the contrary, the urgency requirementsFootnote ⁹³ have proved to be satisfactorily drafted and responsive to individuals’ needs. Furthermore, the urgent preliminary ruling itself can indeed work efficiently only when the number of cases to be dealt with under this regime will remain limited. Hence, the urgency requirement should be applied further in the same manner.

Nevertheless, some elements of the functioning of the PPU regime could easily be used also while conducting the classical model of the preliminary ruling procedure in the cases in AFSJ dealt with by the ‘designated Chamber’, working on a permanent basis. In particular the use of new technologies would call for further considerations, especially if one would think of the complexityFootnote ⁹⁴ of the general model of the preliminary ruling procedure.Footnote ⁹⁵

5 Drawing a more humane conduct of the preliminary ruling procedure in AFSJ

The foregoing discussion highlighted a paradox in the administrative functioning of EU legal order: on the one hand, the preliminary ruling procedure provides a coherent and complete system of judicial review, on the other hand, however, the possibilities of activating it in the sensitive – and of pivotal importance for individuals – areas of law was significantly curtailed, both internally and externally.Footnote ⁹⁶ These limitations reflected at the same time the boundaries on the principle of effectiveness in general and in particular – on principle of effective judicial protection, i.e. on the right of access to the court.Footnote ⁹⁷ The latter was seriously affected under the previously binding provisions, since the individuals did not have the possibility to use the channel of preliminary references to enforce their rights granted at the EU levelFootnote ⁹⁸ or this possibility was considerably curtailed. Bearing in mind that both domestic and EU institutions have to ensure the protection of rights of individuals stemming from the EU legal order,Footnote ⁹⁹ the amendments within the preliminary references system, introduced under the Treaty of Lisbon, were important. Especially the possibility to make the preliminary request within the area of Freedom, Security and Justice by all domestic courts, and not only by the highest instance courts, has vitally enhanced the effectiveness of judicial protection. Similarly, the desirability of speeding up requests for preliminary ruling made by domestic courts in this sensitive area of law (where the fundamental rights of individuals are at stake) calls for praise.

Nevertheless, inevitably, any remedy discussed in the Court of twenty- eight jurisdictions necessarily illustrates the set of problems of such a composition, namely inter alia, inadequate admissibility or time-limit requirements, i.e. the length of time required for a final decision, especially when the procedure on the domestic level is already before the court, against whose decisions there is no judicial remedy under national law. Obviously, this issue seems to be pivotal under the PPU regime, mainly because of the very nature of the matters to be dealt with within this track of the preliminary ruling procedure.

Considering such circumstances, it should be noticed that the CJEU will soon face the fact that there were most probably a lot of cases pending currently before national courts (of lower instances) relating to asylum, migration or involving family law problems whose resolution is urgent.Footnote ¹⁰⁰ Thus, for a number of reasons of a procedural and substantive nature, related both to the efficiency of judicial protection (i.e. access to the court) and to the length of the proceeding, the Court will be faced with the necessity to change its architecture to a more humane one, which will enable it to deal with the emerging challenges in a way considering that judicial protection will be indeed effectively ensured for individuals seeking the enforcement of their rights.

The consistency of the jurisprudence at the European Union level and the structural efficiency of the latter require rather that the preliminary references system should remain the competence of the CJEU.Footnote ¹⁰¹ Such a ‘structural’ efficiency should be thus ensured at the internal level of the CJEU by means of certain modifications of its internal organisation. The separated ‘designated Chamber’ working on permanent basis,Footnote ¹⁰² dealing with the cases concerning the AFSJ, including those brought under the PPU regime, within shorter time limits, could be one of the possible solutions which would possibly make the way to the Court in these sensitive matters much shorter than it is nowadays. Assuming that the examination of the urgency would be kept at the same level as it is today, such a ‘AFSJ-Chamber’ would ensure that individuals can rely on the right to effective judicial protection with a view to protecting the substantive rights which EU law confers on them.

The CJEU might thus consider departing from its unwillingness to increase the number of judges and to establish the ‘specialised chamber’ towards an accommodation of the principle of effective judicial protection of individuals. This holds particularly true in the light of the recent developments regarding the reform of the Court of Justice. Since the CJEU successfully submits, one after the other, the new proposals regarding the amendments to its functioning, the opportunity to re-think also the impact of the potential increase of the number of cases related to AFSJ area on the Court’s workload and, thus, on the length of proceeding in these disputes is already given. To this end, if the duration of the procedure in competition cases becomes finally a central argument for the increase in the number of judges at the General Court, all the more it seems both appropriate and justified to consider this factor also with regard to the disputes having the fundamental rights at stake.

More than five decades have passed since Van Gend en Loos framed the humane face of the EU, so the time is surely ripe to stick to its own words and apply this seminal ruling also to the procedural context, ensuring that the individual rights, in particular the right to access to the court, are effectively protected.

Footnotes

Earlier versions of this paper/chapter were presented at the Fifth Pan-European Conference on EU Politics, University of Oporto/University Fernando Pessoa, Porto, Portugal and at the seminar of the Liverpool European Law Unit (LELU), University of Liverpool, Liverpool, UK. The author wishes to thank Nuno Ferreira and Dora Kostakopoulou for their kind invitation to the project at hand and valuable comments on the early version of this paper. The author also wishes to thank the participants at the seminar in Liverpool for the fruitful discussion and Garth Hall for his linguistic guidelines. The usual disclaimer applies.

¹ OJ EU 2004 C310/1.

² Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in Lisbon, 13 December 2007, OJ EU 2007 C306/1.

³ The amendments brought by the Lisbon Treaty entered into force on 1 December 2009. The last consolidated version of the Treaties was published in OJ EU 2012 C326/1.

⁴ ‘[A]part from the consequences resulting from the European Union acquisition of legal personality and from abandonment of its three-pillar structure, the Treaty of Lisbon introduces reforms relating both to the jurisdiction of the Court of Justice and to the procedures before the three courts of which it is composed’. Foreword of President V. Skouris, CJEU Annual Report of 2009, p. 1. The re-named Court of Justice has published a brief summary of all amendments regarding the structure and functioning of the institution, Court of Justice of the European Communities, Press and Information, Press Release No. 104/09, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2009-12/cp090104en.pdf [accessed 29.03.2014].

⁵ See, inter alia, S. Peers, ‘Mission accomplished? EU Justice and Home Affairs Law after the Treaty of Lisbon’ (2011) 48 CMLRev, pp. 661–693. For more detailed analysis of the institutional framework and the substance of all JHA measures, see also S. Peers, EU Justice and Home Affairs Law, 3rd edition (Oxford: Oxford University Press, 2011) and C. Ladenburger, ‘Police and Criminal Law in the Treaty of Lisbon: A New Dimension for the Community Method’ (2008) 4 EuConst, pp. 20–40; S. Carrera, F. Geyer, ‘The Reform Treaty and Justice and Home Affairs: Implications for the Common Area of Freedom, Security and Justice’ [in:] E. Guild, F. Geyer, Security versus Justice? 288–308, 289.

⁶ Notably, the facilitated criteria of locus standi under the provisions of Article 263 (4) TFEU and the possibility of action for annulment under the provisions of Article 275 (2) TFEU although illustrating an access to the court for individuals, will not be discussed further as they go beyond the scope of the present contribution. See in this regard, inter alia, K. Lenaerts, ‘Challenges Facing the European Court of Justice after the Treaty of Lisbon’ (2010) Revista Română de Drept European, pp. 19–39, P. Craig, ‘The Treaty of Lisbon, Process, Architecture and Substance’, ELRev 2008, pp. 137–166; S. Van Den Jeught, ‘Le Traite de Lisbonne et la Cour de justice de l’Union européenne’ (2009) Journal de droit européen, pp. 297–303.

⁷ See Protocol (36) on Transitional Provisions, Art. 10, OJ EU 2007 C 306/159, OJ EU 2010 C83/289, lastly published OJ EU 2012 C326/322.

⁸ OJ EU 2010 C83/389, lastly published in OJ EU 2012 C326/391.

⁹ Art. 47 CRF. The provisions have been worded already in the text proclaimed in 2000, repeated in the currently binding act of 2007.

¹⁰ OJ EC 2001 C80/1.

¹¹ Recently reaching the level of around 60% of total number of cases coming to the CJEU each year.

¹² See Article 256 TFEU.

¹³ OJ EU 2012 L 265/1.

¹⁴ Introduced by the Council Decision of 20 December 2007 amending the Protocol on the Statute of the Court of Justice, OJ EU 2007 L24/42; Amendments to the Rules of Procedure of the Court of Justice, OJ EU 2008 L24/39 and OJ EU 2008 L92/12, entered into force on the 1st of March 2008, previously governed by the provisions of Article 104a RoP, currently covered by the provisions of Articles 107–114 RoP. It became fully applicable across the EU 1st of December 2014.

¹⁵ Ex-Article 230 (4) EC provided for more strict conditions to be fulfilled by natural or legal persons, applying the Plaumann jurisprudence; Cf. Judgment of 15 July 1963, Case 25/62, Plaumann & Co. v Commission of the European Economic Community [1963] ECR 95, ECLI:EU:C:1963:17.

¹⁶ And respectively in the provisions of Art. 150 EURATOM.

¹⁷ Cf. Case C-221/88, European Coal and Steel Community v Acciaierie e Ferriere Busseni SpA (in liquidation) [1990] ECR I-495, ECLI:EU:C:1990:84, para 13; Cf. also, inter alia, – Opinion of AG Lagrange [ECLI:EU:C:1962:3] in the first preliminary refererence sent to the Court in the Case 13/61, Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH and Maatschappij tot voortzetting van de zaken der Firma Willem van Rijn [1962] ECR 56, ECLI:EU:C:1962:11; Case 244/80, Pasquale Foglia v Mariella Novello [1981] ECR, 3045, ECLI:EU:C:1981:302, para. 14; joined Cases C-143/88 and C-92/89, Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn [1991] ECR I-415, ECLI:EU:C:1991:65, para. 26; joined Cases C-46 and C-48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-1029, ECLI:EU:C:1996:79, para. 33; C-2/06, Willy Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-411, ECLI:EU:C:2008:78, para. 42, following the opinion of AG Bot [ECLI:EU:C:2007:245], para. 101.

¹⁸ OJ EC C340/1.

¹⁹ See, inter alia, A. Arnull, ‘Taming the Beast? The Treaty of Amsterdam and the Court of Justice’ [in:] D. O’Keeffe and P.M. Twomey (eds.), Legal Issues of the Amsterdam Treaty (Oxford-Portland: Hart Publishing, 1999); A. Albors-Ilorens, ‘Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam’ (1998) 35 CMLRev. pp. 1273–1294; J. Monar, ‘Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation’ (1998) 23 ELRev. pp. 320–335; N. Fenelly, ‘Presenting a Legal Coherence within the New Treaty’ (1998) MJECL pp. 185–199; P. Eckhout, ‘The European Court of Justice and the “Area of Freedom, Security and Justice”: Challenges and Problems’ [in:] D. O’Keefee (ed.), Liber Amicorum in Honour of Lord Slynn of Hadley (The Hague / London / Boston: Kluwer Law International, 2000) pp. 153–166; B. Kuźniak, A. Capik, Traktat Amsterdamski Komentarz (Warszawa: C.H.Beck, 2001).

²⁰ The notion to ensure the efficient protection of individuals under Community law in a way of preliminary rulings was accompanying the most important changes regarding the previous third pillar’s matters during the ICG 2007, which resulted in the new provisions of Treaty of Lisbon.

²¹ Ex-Art. 35 (2) EU.

²² Ex-Art. 35 (2) EU.

²³ Cf. in this regard Court of Justice of European Communities, Research and Documentation Service, Jurisdiction of the Court of Justice to give preliminary rulings on police and judicial cooperation in criminal matters, March 2008, OJ UE 2008 L70/23 and OJ UE 2008 C69/1.

²⁴ Ex-Art. 35 (3) (b) EU.

²⁵ Ex-Art. 35 (3) (a) EU in principio.

²⁶ Interesting enough, such dependence on political will is perfectly illustrated by a Polish example: 10 July 2008 the Law on empowerment of the President of the Republic of Poland to submit a declaration acknowledging the jurisdiction of the Court of Justice of the European Communities pursuant to Art. 35 of the Treaty on the European Union [Ustawa o upoważnieniu Prezydenta Rzeczypospolitej do złożenia oświadczenia o uznaniu właściwości Trybunału Wspólnot Europejskich na podstawie art. 35 Traktatu o Unii Europejskiej, Dz. U. 2009, Nr 33, poz. 253] was passed by the government. The President, however, had questioned the constitutionality of the said law and brought it before the Constitutional Tribunal. The latter did not share the President’s view in its judgment of 18 February 2009 and unanimously held the above mentioned law compatible with the Polish Constitution. Following this judgment [Kp 3/08, Z.U. 2009/2A/9, MP 2009, Nr 13, poz. 170], the President signed the law, however had not submitted the declaration pursuant the provisions of ex-Art. 35 EU before the Treaty of Lisbon entered into force, repealing the provisions of ex-Article 35 EU. See, inter alia, A. B. Capik ‘Postępowanie prejudycjalne’ [in:] Łazowski A., Zawidzka-Łojek A. (eds.) Vademecum. Instytucje i porządek prawny Unii Europejskiej (Warszawa: Europrawo, 2013), pp. 283–308.

²⁷ Although some of the Member States (i.e. Czech Republic, Germany, Austria, Luxembourg, Netherlands), while submitting the declaration recognising the jurisdiction of the CJEU under ex-Article 35 EU, have reserved the right to launch the legislative measures in their domestic laws pursuant to that the obligation for the highest courts would be established Cf. Court of Justice of European Communities, Research and Documentation Service, Jurisdiction of the Court of Justice to give preliminary rulings on police and judicial cooperation in criminal matters, March 2008, OJ UE 2008 L70/23 and OJ UE 2008 C69/1.

²⁸ See inter alia the cases 66/80, International Chemical Corporation v. Administrazione delle Finanze dello Stato [1981] ECLI:EU:C:1981:102, paras 12–13; Case 250/80, Anklagemyndigheden v Hans Ulrich Schumacher, Peter Hans Gerth, Johannes Heinrich Gothmann and Alfred C. Töpfer [1981] ECLI:EU:C:1981:246.

²⁹ There was no complete system of actions and procedures designed to ensure the legality of the acts of institutions under former Title VI EU, as individuals could bring neither actions for annulment nor claims in damages against the measures adopted under third pillar. Under the regime of ex-Article 35 EU, the possibility of an action for annulment was limited to the Member States and Commission with regard to the Framework Decisions and Decisions. See, however, C-354/04, Gestoras Pro Amnistía, Juan Mari Olano Olano and Julen Zelarain Errasti v Council of the European Union,[2007] ECLI:EU:C:2007:115; See further in that regard, inter alia, S. Peers, EU Justice and Home Affairs Law, 2nd edition (Oxford: Oxford University Press, 2006).

³⁰ With regard to the acts only adopted after 1st of December 2009, i.e. after the Lisbon Treaty has entered into force.

³¹ Falling under the regime of Art. 267 TFEU.

³² Since the introduction of the urgent preliminary ruling procedure, there has been a constant increase of the number of cases referred to the CJEU within the Area of Freedom, Security and Justice, from 26 cases in 2009 through 38 cases in 2010, 44 cases in 2011, 56 cases in 2012 to 59 references in 2013. Cf. Annual Reports of the CJEU, 2009, 2010, 2011, 2012 and 2013, respectively.

³³ Art. 68 (1) EC in fine. Notably, however, at the same time the provisions of ex-Article 68 EC extended the scope of application of ex-Article 234 EC (Article 267 TFEU).

³⁴ Art. 68 (2) EC.

³⁵ See further, inter alia, A. B. Capik, ‘Shorter way to court – System of preliminary references procedure under the umbrella of principle of effective judicial protection’ [in:] D. A. Frenkel (ed.) International Law, Conventions and Justice (Athens: ATINER, 2011), pp. 159–179.

³⁶ Thus, the action for annulment or the infringement procedure, as foreseen previously in the EC Treaty provisions, should have been seen rather as an effective mechanism for protection of individuals under the former Title IV EC. Contrary to this, it was not the case by the provisions regarding the Title VI EU, where the CJEU’s jurisdiction was foreseen for these form of actions, which were expressis verbis mentioned in the Treaty’s provisions. Cf. P. Eckhout, ‘The European Court of Justice and the “Area of Freedom, Security and Justice”: Challenges and Problems’ [in:] D. O’Keefee (ed.) Liber Amicorum in Honour of Lord Slynn of Hadley (Kluwer Law International, 2000), pp. 155.

³⁷ Particularly judicial cooperation in civil matters and recognition and enforcement of judgments, deportation orders as well as child custody.

³⁸ Since the amendments brought by the Treaty of Lisbon have entered into force, the number of cases referred to the CJEU within the AFSJ has constantly increased. Whereas in 2009 there were seventeen cases referred to the CJEU in this field of EU law, one year later the number of references doubled. In 2011 there were already forty-four references made in the AFSJ matters, while 2013 ended with fifty-nine cases referred to the CJEU for the preliminary ruling in that field. Cf. Annual Report of the Court of Justice of the European Union, respectively, 2009, 2010, 2011 and 2013.

³⁹ With an exemption provided for in the provisions of Article 10 of the Protocol 36 with regard to the acts in the field of the former third pillar, which had been adopted before the Treaty of Lisbon has entered into force, OJ UE 2007 C306/159. With regard to the acts adopted after 1st of December 2009 the CJEU enjoys its jurisdiction as provided for in the provisions of Article 267 TFEU.

⁴⁰ This is also supported by the amendments put forward within the system of legal instruments available at the EU law level in accordance with the provisions of Article 288 TFEU.

⁴¹ Also by inserting paragraph four to the wording of Article 267 TFEU.

⁴² Whereas in the past (1993–2009) the total number of references remained constantly at the level between 200 and 300 a year, in 2013 the number of references for the preliminary ruling rose to 450 (continuing to grow since 2010 – 385 references, 2011 – 423 references and 2012 – 404 references). At the same time, the number of FSJ cases submitted for a preliminary ruling has more than doubled in 2013 (56 cases) in comparison with the year 2008 (26 cases). Cf. Annual Reports of the CJEU 2009, 2010, 2011, 2012 and 2013, respectively.

⁴³ Noteworthy, since the introduction of the urgent preliminary ruling procedure (PPU), the length of the (classical) proceeding has been kept relatively constant at the level of around 16.5 months (16.8 months in 2008; 17.1 months in 2009; 16.1 months in 2010; 16.4 months in 2011; 16.3 months in 2013), having reached its shortest duration (15.7 months) in 2012. Cf. Annual Reports of the CJEU 2008, 2009, 2010, 2011, 2012 and 2013, respectively.

⁴⁴ Together with certain amendments to the Statute of the CJEU, inter alia, the removal of the obligation of the Judge-Rapporteur in a case to draw up a report for the hearing. Draft Amendments to the Statute of the Court of Justice of the European Union and to Annex I thereto, 22 March 2011, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-04/projet_en.pdf [accessed 29.03.2014]; for an overview see, inter alia, A.W.H. Meij, Amending the Statute of the EU Courts (20) MJ 1/2013, pp. 127–132.

⁴⁵ A separate title was introduced. With regard to preliminary ruling regime, the amendments to the RoP have been followed by the adaptation of the Information note on the preliminary ruling, Recommendations of the Court to national courts and tribunals in relations to the initiation of preliminary ruling proceedings, OJ EU 2012 C 338/1. The latter replaced the previous Information note, drafted for the first time in 1996, completed by the CJEU and published in OJ EU for the first time in 2005 [OJ EU 2005 C143/1], then lastly amended in 2009, OJ EU 2009 C297/1.

⁴⁶ Art. 94 RoP, previously contained in the Information note on references from national courts for a preliminary ruling, OJ EU 2005 C143/1 and OJ EU 2009 C297/1.

⁴⁷ Art. 99 RoP.

⁴⁸ Art. 105 RoP. Previously the use of the expedited procedure was only possible at the request of the referring court or tribunal.

⁴⁹ As demonstrated by the CJEU statistics in its recent Annual Report, the duration of the classical model of the preliminary ruling amounted to 16.3 months. The slight increase compared with 2012 (15.6 months) is not regarded by the CJEU as ‘statistically significant’. Cf. Annual Report 2013, p. 3.

⁵⁰ See further, inter alia, K. Lenaerts, ‘Challenges facing the European Court of Justice after the Treaty of Lisbon’ (2010) Revista Română de Drept European, pp. 19–39.

⁵¹ Presidency Conclusions, Brussels, European Council, 4 and 5 November 2004, 14292/1/04, para. 3.1.

⁵² Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, the Committee of the Regions and the Court of Justice of the European Communities, Adaptation of the provisions of Title IV of the Treaty establishing the European Community relating to the jurisdiction of the Court of Justice with a view to ensuring more effective judicial protection, 28 June 2006, COM(2006) 346 final.

⁵³ This provision came into force on 1 March 2008, providing the legal basis for both, accelerated (or expedited) and urgent preliminary ruling procedure.

⁵⁴ On the day of its introduction, the urgent preliminary ruling procedure was laid out in the provisions of former Article 104b of RoP, replaced by more detailed provisions in course of the recent amendment of the Rules of Procedure before the Court of Justice of the European Union in 2012.

⁵⁵ Applicable in cases of extreme urgency and governed by the provisions of Aricle 106 RoP.

⁵⁶ Cf., inter alia, case Kadzoev, where the urgency stemmed from the fact that the interpretation of the Council Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [OJ EU 2008 L348/98] had a direct impact on the decision whether or not to release a third-country national, held in detention for more than three years, C-357/09 PPU, Said Shamilovich Kadzoev (Huchbarov), [2009] ECLI:EU:C:2009:741, para 32; case Santesteban Goicoechea, where the urgency stemmed from the fact that a person was in custody for the sole puropose of executing an extradition order under the Council Framework Decision 2002/584/JHA of 13 June on the European Arrest Warrant and the Surrender procedures between Member States [OJ EC 2002 L 190/1], C-296/08, Ignacio Pedro Santesteban Goicoechea, ECLI:EU:C:2008:457, para 33; case Jeremy F., where the urgency stemmed from the fact that interpretation of the EAW Framework Decision had an impact on the situation of the applicant in the main proceedings, who was deprived of liberty, and the resolution of the main proceedings might have had considerable influence on the length of that deprivation, C-168/13 PPU, Jeremy F. v Premier ministre, ECLI:EU:C:2013:358, para 29.

⁵⁷ Cf. Information Note on references from national courts for a preliminary ruling – Supplement following the implementation of the urgent preliminary ruling procedure applicable to references concerning the area of freedom, security and justice, point 7. [http://curia.europa.eu/jcms/upload/docs/application/pdf/2008-09/noteppu_2008-09-25_17-35-45_737.pdf], repeated in point 40 of Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2012/C 338/01), OJ EU 2012 C 338/1. In the very first case dealt with under PPU regime, Rinau, the urgency stemmed from the fact that a delay in determining the custody of the child under the provisions of Brussels II bis Regulation, would adversely affect the relationship between the child and one of the parents of this child. Cf. C-195/08 PPU, Inga Rinau, [2008] ECLI:EU:C:2008:406, paras 44–45. Cf. further case Povse, where the urgency stemmed from the fact that the contact between the child and her father had been broken. Consequently, a delayed decision on enforcement of the judgment (of an Italian court) ‘ordering return of the child to Italy would exacerbate the deterioration of the relationship between father and child and thereby increase the risk of psychological harm if the child were sent back to Italy’, C-211/10 PPU, Doris Povse v. Mauro Alpago, ECLI:EU:C:2010:400, para 35. See further also C-376/14 PPU, C v M, ECLI:EU:C:2014:2268.

⁵⁸ Article 267 intend 4.

⁵⁹ Without necessarily being under all circumstances inherently urgent. Cf. B. Wägenbaur, Court of Justice of the EU – Commentary to the Statute and the Rules of Procedure (Munich: C.H.Beck-Hart-Nomos, 2013), p. 351.

⁶⁰ A classical (Art. 267 TFEU and Art. 93 et seq. RoP) and accelerated (Art. 105 et seq. RoP) model of preliminary ruling procedure.

⁶¹ Cf. B. Wägenbaur, Court of Justice of the EU – Commentary to the Statute and the Rules of Procedure (Munich: C.H.Beck-Hart-Nomos, 2013), p. 352; A.B. Capik ‘Postępowanie prejudycjalne’ [in:] A. Łazowski and A. Zawidzka-Łojek (eds.), Vademecum. Instytucje i porządek prawny Unii Europejskiej (Warszawa: Europrawo, 2013), p. 306.

⁶² It has been, however, put forward already by the introduction of this urgent regime that its application entails significant constraints for the CJEU and for the parties and other interested persons participating in the procedure, particularly the Member States. Cf. point 6 of the (2008) Information Note on references from national courts for a preliminary ruling – Supplement following the implementation of the urgent preliminary ruling procedure applicable to references concerning the area of freedom, security and justice, point 7, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2008-09/noteppu_2008-09-25_17-35-45_737.pdf [accessed 28.07.2014].

⁶³ Since they have a command of the language of the case, the written procedure can be thus initiated immediately, omitting the long lasting translation processes. Cf. Report on the use of urgent preliminary ruling procedure by the Court of Justice, delivered to the Council in accordance with the statement annexed to its decision of 20 December 2007 [OJ EU 2008 L24/44], available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-07/en_rapport.pdf [accessed 29.07.2014].

⁶⁴ Art. 111 RoP.

⁶⁵ Cf. Art. 112 RoP in conjuction with Art. 23a of the Statute. Notably, however, in accordance with the CJEU’s practice, opinions, when presented in writing, are published unless the formation of the Court decides otherwise after the hearing the Advocate General.

⁶⁶ Although a reference for a preliminary ruling generally calls for the national proceedings to be stayed until the Court has given its ruling. Supplement following the implementation of the urgent preliminary ruling procedure applicable to references concerning the area of freedom, security and justice, accessible at http://curia.europa.eu/en/instit/txtdocfr/txtsenvigueur/noteppu.pdf [16 June 2014].

⁶⁷ The decision to deal with a reference for a preliminary ruling under the urgent procedure should be taken by the designated Chamber, acting on a proposal of the Judge-Rapporteur and after hearing the Advocate General. Art. 108 (1) RoP in principio.

⁶⁸ Cf. point 43 of Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2012/C 338/01), OJ EU 2012 C 338/1.

⁶⁹ Both, of formal and substantial nature.

⁷⁰ Especially, the request must set out the matters of fact and law, which establish the urgency and, in particular, the risks involved in following the normal preliminary ruling procedure. Besides justifying the application of that exceptional procedure the request should, in so far as possible, indicate the answer it proposes to the questions referred. Cf. Art. 107 (2) and points 41–44 of the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2012/C 338/01), OJ EU 2012 C 338/1.

⁷¹ Cf. also point 39 of Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2012/C 338/01), OJ EU 2012 C 338/1.

⁷² Art. 107 (3) RoP.

⁷³ Cf. point 37 of Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2012/C 338/01), OJ EU 2012 C 338/1.

⁷⁴ Art. 108 RoP. The decisions of that Chamber as to whether or not to initiate the urgent procedure do not include a statement of reasons.

⁷⁵ Such chamber is composed of five judges, designated for a period of one year.

⁷⁶ Enabling the Chamber to give a ruling without first going through the General Meeting of the Court.

⁷⁷ Art. 108§1 in conjuction with Art. 28§2 RoP.

⁷⁸ Both internally and those involving the parties and interested participants, by creation of ‘functional mailboxes’, specifically dedicated to the purposes of use of the PPU regime. Cf. Art. 114 in conjunction with Art. 106 RoP, Decision of the Court of Justice of 13 September 2011 on the lodging and service of procedural documents by means of e-Curia, OJ EU 2011 C289/7. Cf. in this regard also K. Lenaerts, ‘Accelerated and Urgency Procedures in the Area of Freedom, Security and Justice’ [in:] Baume, T. Elferink E.O. Poah P. Thiaville D. (eds.), Today’s Multilayered Legal Order: Current Issues and Perspectives (Zutphen: Paris Legal Publishers 2011), pp. 155–173, 161.

⁷⁹ In this context it should be also noted that there are also some novelties concerning the translations and the language of the procedure in general.

⁸⁰ According to the CJEU’s statistics since its introduction the PPU regime has been granted in 20 cases dealt with within approximately 2 months (2009 – within 2.5 months, 2012 – 1.9 months). Cf. Annual Reports of the CJEU, respectively 2008, 2009, 2010, 2011, 2012 and 2013 as well as C-129/14 PPU, Criminal proceedings against Zoran Spasic, ECLI:EU:C:2014:586 and C-146/14 PPU, Basir Mohamed Ali Mahdi, ECLI:EU:C:2014:586.

⁸¹ Since the introduction of the PPU regime as well as amendments discussed above, the number of cases referred to the CJEU within the AFSJ has doubled and is constantly increasing.

⁸² Henry G. Schermers, Denis F. Waelbroeck, Judicial protection in the European Union, Kluwer Law International, 2000.

⁸³ Cf. F. G. Jacobs, The Court of Justice in the Twenty-First Century: Challenges Ahead for the Judicial System? [in:] A. Rosas, E. Levits, Y. Bot (eds.), Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law (The Hague: T.M.C. Asser Press, 2013), pp. 49–59, p. 53 and the 14th Report of the Session 2010–2011 of the House of Lords/European Union Committee, The Workload of the Court of Justice of the European Union, p. 27.

⁸⁴ The variety of solutions regarding the improvement of the efficiency in functioning of the CJEU has been presented, inter alia, by Sir Jacobs, ‘The Court of Justice in the Twenty-First Century: Challenges Ahead for the Judicial System’, pp. 49–69.

⁸⁵ 450 new references out of 699 new cases brought before the CJEU in 2013, and 428 new references out of 622 new cases reached the Court in 2014, cf. respectively Annual Report of the CJEU 2013, p. 2 and Press Release 27/15, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-03/cp150027en.pdf [accessed 7.03.15] as well as the Annual Report of the CJEU 2014, p. 9, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-04/en_ecj_annual_report_2014_pr1.pdf [accessed 10.04.2015].

⁸⁶ Duration of the preliminary ruling in 2003 has amounted 25 months, whereas in 2014 references were handled within average duration of 15 months. Cf. respectively Annual Report of the CJEU, 2004, p. 12 and Press Release 27/15, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-03/cp150027en.pdf [accessed 7.03.15] as well as the Annual Report of the CJEU 2014, p. 9, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-04/en_ecj_annual_report_2014_pr1.pdf [accessed 10.04.2015].

⁸⁷ Art. 257 TFEU.

⁸⁸ Currently around 60 per year, cf. Annual Report of the CJEU 2013, p. 32. The number of case might possibly however grow after 1st of December 2014. In 2014 there were 53 references for a preliminary ruling within the AFSJ, Annual Report of the CJEU 2014, p. 95, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-04/en_ecj_annual_report_2014_pr1.pdf [accessed 10.04.2015].

⁸⁹ See in this regard a brief overview Jacobs, ‘The Court of Justice in the Twenty-First Century: Challenges Ahead for the Judicial System’, pp. 49–59. Interestingly enough, however, the CJEU reacted positively to the initiative of Italian Presidency (Letter of 3 September 2014), to invite new suggestions regarding the procedures for increasing the number of judges in the General Court. The CJEU presented its proposals related to the General Court as a part of legislative initiative to the reform of the Statute of the Court of Justice of the European Union, which was approved by the European Parliament already 2011 in regard to the said Statute and Rules of Procedure before the CJEU. This proposal foresees to double the number of the judges at the General Court in three stages. Firstly, it is proposed to increase the number of judges by twelve in 2015, whereas the judges from the Civil Service Tribunal (CST) shall be included in this move. Hence, the CST should be merged with the General Court, which should take over the cognition on the cases before the CST. The second wave of increasing the number of judges by seven should take place 2016, when the General Court will be partially renewed. Thirdly, 2019 the last increase by nine should take place. For further details and, in particular, the reasoning of the CJEU provided to this reform, see Response of the Court of Justice to the Italian Presidency’s invitation to present new proposals on the procedures for increasing the number of Judges at the General Court of the European Union, letter of President V. Skouris of 13 October 2014, Council’s Document 14448/1/14, Rev 1, Brussels 20 November 2014, available at http://data.consilium.europa.eu/doc/document/ST-14448-2014-REV-1/en/pdf [accessed 7.03.2015].

⁹⁰ Further developments of this solution, such as problems of consistency of the CJEU’s jurisprudence, will be however left aside as going beyond of the scope of the present contribution.

⁹¹ Report of use of the urgent preliminary ruling procedure by the Court of Justice of January 2011, delivered to the Council in accordance with the statement annexed to its decision of 20 December 2007, p. 6.

⁹² From October to the end of September each year.

⁹³ As well as their use.

⁹⁴ Especially because of the number of participants, on one hand, and the language constraints, on the other. For academic analysis, see, inter alia, K.P.E. Lasok QC, ‘New procedures for expediting references for a preliminary ruling in the area of freedom, security and justice’, 48th London – Leiden Conference, Courting the European Union: Reflections on Preliminary References, 27th of June 2009, London [British Institute of International and Comparative Law and University of Leiden].

⁹⁵ According to the Article 23 of the Statute of the Court of Justice, the notification of the decision of domestic court shall be sent by the Registry ‘to the parties, to the Member States and to the Commission, and also to the Council or to the European Central Bank if the act the validity or interpretation of which is in dispute originates from one of them, and to the European Parliament and the Council if the act the validity or interpretation of which is in dispute was adopted jointly by those two institutions’.

⁹⁶ Internally, the limitation of the preliminary ruling procedure is to be seen in the curtailed jurisdiction of the ECJ in the third Pillar, as envisaged under the provisions of Article 35 EU. Externally, the limitation of preliminary ruling considers the curtailed competences of the courts at the domestic level.

⁹⁷ The right to effective judicial protection is an essential element within the EU legal order and is now enshrined in the provisions of Article 47 CFR.

⁹⁸ As the jurisdiction of the CJEU was excluded in all the Member States which had not submitted the declaration under the provisions of ex-Article 35 TEU.

⁹⁹ According to the jurisprudence on the principle of effective judicial protection. Cf., inter alia, C-312/93, Peterbroeck, Van Campenhout & Cie SCS v Belgian State, ECLI:EU:C:1995:437, C-263/02 P, Commission of the European Communities v Jégo-Quéré & Cie SA., ECLI:EU:C:2004:210.

¹⁰⁰ Which, however, could not have been referred to the CJEU so far because the jurisdiction of the latter had not been acknowledged in the declaration foreseen under ex-Article 35 EU by several Member States.

¹⁰¹ And not be shared with General Court, as foreseen by the Treaty of Nice.

¹⁰² The half of the usual six years of mandate could have served as a possible solution, especially considering the consistency of jurisprudence.

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