Requests for preliminary rulings made by courts of EU Member States have always been dealt with by the European Court of Justice (CJEU). National courts refer requests for preliminary rulings in cases where they require clarity on the interpretation of EU law. As such they play an important role in shaping EU customs law. Over the years the CJEU handled numerous customs cases on tariff classification, customs valuation, origin and procedural customs law.
Due to capacity restraints at the CJEU, an alternative distribution of jurisdiction between the CJEU and the lower EU General Court is proposed by the CJEU. More specifically, the CJEU requests that the EU Commission propose a change to the Treaty of the Functioning of the EU (TFEU), such that preliminary ruling requests for, amongst others, VAT and customs matters, are to be submitted to the General Court. The CJEU proposes the following article to be added to the TFEU:
Article 50b 1. The General Court shall have jurisdiction to hear and determine requests for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union that come exclusively within one or several of the following specific areas:
– the common system of value added tax;
– excise duties;
– the Customs Code and the tariff classification of goods under the Combined Nomenclature;
– compensation and assistance to passengers;
– the scheme for greenhouse gas emission allowance trading.
The parameters or guiding principles used to come up with this selection of specific areas relate to (i) the need to be clearly identifiable, (ii) the amount of principle issues it raises, (iii) the preventing of inconsistencies or divergences in case-law, and (iv) the number of references for a preliminary ruling they attract.
The CJEU furthermore requests the establishment of a single court responsible for receiving the requests for a preliminary ruling and for ensuring compliance with the distribution of jurisdiction between the CJEU and the General Court in preliminary ruling matters. This single court is to ensure that cases that pertain only to – one or more of – the aforementioned specific areas are referred to the General Court. Cases regarding the specific areas but also including other areas of EU law remain within the CJEU’s competence.
Lastly, the request provides procedural guarantees for ensuring that the CJEU and the General Court deal with requests for a preliminary ruling in the same manner. These include the (i) introduction of specialized chambers within the General Court, (ii) appointing an Advocate General in each preliminary ruling case, and (iii) opening of the possibility of sitting in a formation of an intermediate size between the chambers of 5 Judges and the Grand Chamber composed of 15 Judges.
The amendment of the TFEU will follow the ordinary legislative procedure. The request was made in December 2022, and will only be effective once it is adopted and the amended TFEU is published in the Official Journal of the EU. The official request, which includes current statistics on Customs and VAT cases and text of the proposed legislative amendment, is available here.