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Max Planck Institute Luxembourg for Procedural Law Research Paper Series | N° 2020 (2)

Special Issue

Yearbook on Procedural Law of the

Court of Justice of the European Union

First Edition – 2019

Edited by

Daniel Sarmiento

Professor of EU Law

Complutense University of Madrid

Hélène Ruiz Fabri

Director

Max Planck Institute Luxembourg

Burkhard Hess

Director

Max Planck Institute Luxembourg

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http://www.mpi.lu/

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MPILux Research Paper Series | N°2020 (2) 1

Yearbook on Procedural Law of the Court of Justice of the European Union

First Edition – 2019

Daniel Sarmiento, [email protected]

Hélène Ruiz Fabri, [email protected]

Burkhard Hess, [email protected]

Articles last updated: November 2019

Foreword

The chapters contained in this yearbook have been composed by the participants of the first edition

of the Forum on Procedural Law of the Court of Justice of the European Union held on Monday, 25

February 2019 at the Max Planck Institute Luxembourg for Procedural Law. The scope of the Forum

was twofold. First, it set out to tackle cutting-edge procedural issues which arise in the Court's

proceedings and case-law. Second, it provided an update on general procedural issues. The Forum

took its name from the intention to have an open dialog among specialists of EU Law and Procedural

Law and to foster comparison with other courts, be they domestic or international.

Keywords

Court of Justice of the European Union, Procedural Law, Litigation, Preliminary References,

Infringement Actions, Appeals on Points of Law, Action of Annulment

Cite as

Daniel Sarmiento, Hélène Ruiz Fabri, and Burkhard Hess (eds), Yearbook on Procedural Law of the Court

of Justice of the European Union -- 2019 (First edition, 2020) MPILux Research Paper Series 2020 (2),

[www.mpi.lu]

Author Name, ‘Title of Chapter’ in Daniel Sarmiento, Hélène Ruiz Fabri, and Burkhard Hess (eds),

Yearbook on Procedural Law of the Court of Justice of the European Union – 2019 (First edition, 2020)

MPILux Research Paper Series 2020 (2), [www.mpi.lu]

mailto:[email protected]

mailto:[email protected]

http://www.mpi.lu/news-and-events/2018/february/01-02/open-justice/

http://www.mpi.lu/news-and-events/2018/february/01-02/open-justice/


Table of Contents Foreword....................................................................................................................................................................... 1

Section I. General Reports on Current Procedural Issues

Chapter 1: Infringement Actions Before the General Court: The Past, Present and Future of the

Judicial Architecture of the Union ............................................................................................................ 7

Alicja Sikora

Chapter 2: Filtering of Appeals on Points of Law Before the Court of Justice ...................................... 31

Crístian Oró Martínez

Chapter 3: Standing Requirements of Private Parties in Actions for Annulment

Concerning Regulatory Acts: The State of Affairs 10 Years After the Entry into Force of the

Lisbon Treaty .............................................................................................................................................. 49

Jonathan Wildemeersh

Section II. Recent Case Law and Decisions

Chapter 4: The Autonomy of EU Law Meets Investment Arbitration: Case C-284/16 Achmea ........ 77

Holger P. Hestermeyer

Chapter 5: The Jurisdiction of the ECJ to Give Preliminary Rulings on the Validity of CFSP Decisions:

The Rosneft Judgment................................................................................................................................ 95

Carmen Martínez Capdevila

Chapter 6: Dispute Resolution Among Member States at the Court of Justice on the Basis of

Article 273 TFEU: A Comment on C-648/15 Austria v Germany .................................................... 105

Janek Tomasz Nowak

Chapter 7: What’s in a Recommendation? ................................................................................................ 129

Roberto Mastroianni

Chapter 8: Commission c/ France: Un rappel nécessaire de l’inégalité inhérente au dialogue des

juges au sein de l’Union européenne ................................................................................................ 143

Araceli Turmo

Chapter 9: Can’t see the Forest for the Trees? Penalties Under Article 279 TFEU ........................... 157

Luca Prete


Section I General Reports on Current Procedural Issues


Chapter 1 Infringement Actions Before The General Court: The Past, Present And Future Of The Judicial

Architecture Of The Union

Alicja Sikora

The normative indeterminacy is often invoked as the rationale for conferring upon judges the mission

of shaping the substance of the notion of law.1 This is particularly true in the context of the EU legal

order given the constitutive role of the Court of Justice of the European Union (hereinafter the ‘Court

of Justice’ and the ‘Court’) in the process of the European legal integration, realized through the

invocation of the constitutional fundaments of the Union. The Court of Justice ‘deduces a

comprehensive demand for legal protection from the constitutional qualities of the Treaties’ while

widening ‘the content of the norm text’ and also its own jurisdiction.2 This role of the Court hinges, in

particular, upon the legitimacy of judicial decisions which must stem from ‘the individualizing

procedural structure and the democratic approval of the law subsequently applied by the courts’.3

Fundamental for inducing compliance with the EU normative framework, the legitimacy extends to the

principle of loyalty and solidarity. The observance of those principles is essential in the process of

constructing and sharing both implicit and explicit common goods within the EU legal order.4 The

judicial instruments – and, primarily, the infringement actions against Member States of the Union –

PhD (European Law). Lecturer, Jagiellonian University (Cracow). Chercheuse associée, Université Saint-Louis (Brussels). Former

(2004-2017) référendaire at the Court of Justice of the EU. Currently, legal advisor, Council of the EU. All views expressed are

strictly personal.

1 A. Stone Sweet, The Judicial Construction of Europe, 1st edn, OUP 2004, p. 9.

2 Ch. Möllers, ʻPouvoir Constituant - Constitution - Constitutionalisationʼ, in A. von Bogdandy, J. Bast, Principles of European

Constitutional Law, 3rd edn, Hart Publishing 2010, p. 193.

3 Ch. Möllers, Three Branches, A Comparative Model of Separation of Powers, 1st edn, OUP 2013, p. 157.

4 For distinction between loyalty and solidarity see, M. Klammert, The Principle of Loyalty in EU law, 1st edn, OUP 2014, p. 36. For

the concept of explicit and implicit common goods, see N. Walker, ʻThe place of European lawʼ, in G. de Búrca, J.H.H Weiler (eds.),

The Worlds of European Constitutionalism, 1st edn Cambridge University Press 2012, p. 67.


can be viewed as guarantees of the principles of loyalty and solidarity. Through their application, the

Court accomplishes its constitutional role foreseen by the Treaties.

Against this background, this contribution considers a particularly knotty and still hypothetical

issue of the transfer of jurisdiction from the Court of Justice to the General Court of the European

Union (hereinafter the ‘General Court’) in relation to the infringement actions against Member States

of the Union under, inter alia, Article 108(2) TFEU and Articles 258 and 259 TFEU. Although seemingly

confined to a purely procedural dimension, the question of determining the jurisdiction competent to

establish a violation of EU law by a Member State pervades the constitutional status of the Court of

Justice in its role as constitutional adjudicator.5 Likewise, the issue under discussion touches upon the

very nature of the infringement procedure and the legal consequences of the judgement of the Court

declaring that a Member State has failed to fulfill an obligation under the Treaties.6 Transferring to the

General Court jurisdiction to adjudicate at first instance the infringement actions requires a dynamic

reconstruction of the historical edifice of such actions. The related debate revolves around the core

legal concepts of the EU legal order such as the principle of effective judicial protection, as well as the

requirement of effective and efficient enforcement of EU law. Above all, the transfer of jurisdiction in

infringement actions implies discussing the past, present, and the future of the judicial architecture of

the Union.

This contribution will approach the question of transfer of jurisdiction from three fundamental

perspectives. The first discusses the original mission of the General Court as well as the current

distribution of jurisdiction between the Court of Justice and the General Court following the 2019

amendment of the Statute of the Court of Justice. In this part the attempts relating to the transfer of

jurisdiction between the two EU Courts regarding infringement actions will be discussed. The second

perspective concerns the rationale of the infringement actions in the Union’s model of controlling

compliance, including the growing relevance of the financial penalties for non-execution of the

judgement of the Court in the meaning of Article 260 TFEU. In the light of the recent case-law of the

Court of Justice the significance of infringement actions is twofold. On the one hand, those actions

constitute the constitutional, rule of law related case-law pertaining to the EU’s constitutional core, its

5 E. Sharpston, G. De Baere, ʻThe Court of Justice as a Constitutional Adjudicatorʼ, in A. Arnull et al. (eds.) A Constitutional Order of

States?, 1st edn, Hart Publishing 2011, pp. 123–150.

6 A. Sikora,ʻFinancial penalties for non-execution of judgements of the Courtʼ, in A. Łazowski, S. Blockmans, Research Handbook

on EU Institutional Law, 1st edn, Edward Elgar 2016, p. 324-353, at 326-328.


‘very foundations’.7 On the other hand, they consist of highly technical, complex litigation requiring

expertise and double degree of legal control. The third, prospective approach will lead to the question

whether the infringement actions are ‘transferable’ to the General Court. In this regard, the question

which arises is not only the one whether following the unprecedented reform of the General Court

which resulted in doubling a number of its members, this court is adequately prepared to step into

the field of compliance control. Changes in the distribution of areas of jurisdiction between the Court

of Justice and the General Court in general, and with respect to the infringement proceedings in

particular, should constitute an opportunity to address, in a holistic manner, the vision of the EU

judicial system for the future.

1. The EU Judiciary in the Evolutionary Perspective

As recalled by Advocate General F. Jacobs, ‘the role of the Court of Justice is always and necessarily

evolving: the process of implementing the EU treaties is an evolving process ’, the case-law of the EU

judiciary evolves, the interpretation of the EU primary and secondary evolves, if it is to remain a living

instrument.8 Equally, the history of the EU judicial system has been a process of progressive evolution.

The most far-reaching change in its history took place in 1989 with the decision to establish the Court

of First Instance9 and ever since that date the Court of Justice has constantly, progressively evolved.10

It is common knowledge that the Court of First Instance was created out of desire to maintain

the efficiency and quality of judicial scrutiny in the Community legal system.11 Thus, the mission of the

Court of First Instance was inspired by the concern to improve the quality and effectiveness of judicial

control at the European level through a relief of the caseload of the Court of Justice. At the time of its

‘inevitable’12 creation, and in the course of successive extensions of its jurisdiction, the Court of First

7 In the sense of the Kadi judgment (Case C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and

Commission, EU:C:2008:461, paras 303-304).

8 F. Jacobs, ʻThe Court of Justice in the Twenty-First Century: Challenges Ahead for the Judicial System ?ʼ in : The Court of Justice

and the Construction of Europe, 1st edn, Springer 2013, pp. 49-59, at 50.

9 Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities (88/591/ECSC, EEC,

Euratom) (OJ L 319, p. 1–8). The Court of First Instance has become operational on the 31 October 1989, see Decision of the

President of the Court of 11 October 1989 establishing a Court of First Instance of the European Communities (OJ L 317, p. 48–

48).

10 F. Jacobs, ʻThe Court of Justice in the Twenty-First Century: Challenges Ahead for the Judicial System ?ʼ ibid, at 50.

11 A. Collins, ʻThe Time Factor in Proceedings, in: De 20 ans à l’horizon 2020ʼ, Actes du colloque, Cour de justice de l'Union

européenne, Luxembourg 2011, pp.77-92, at 77.

12 G. Slynn, ʻCourt of First Instance of the European Communitiesʼ, (1989), 9 Northwestern Journal of International Law &

Business, Issue 3, 542.


Instance was entrusted with the handling of cases alleviating the caseload of the Court of Justice, which

enabled the latter to focus on its fundamental mission to ensure the uniformity and coherence of

Community (EU) law.13 With the flow of time, the Court of First Instance has delivered an autonomous,

substantial contribution to the legitimacy of the EU judiciary. The straightforward caseload backlog

rationale was nevertheless raison d’être of the first EU judicial reform. As pointed out by President

Rodriguez Iglesias, the creation of the Court of First Instance was not preceded by a comprehensive

reflection of the European judicial model. It was rather a ‘pragmatic response’ to the increasing

workload of the Court of Justice.14 Years ago, one of the most critical voices towards the Court of

Justice, prof. H. Rasmussen, used a term of ‘non-system’ in relation to the EU judicial system,15 by which

he meant that the EU judicial system was characterised by ‘undeniable absence, of systematic thinking

over how that system, ought ideally to be organized, architecture, division of competences, rules on

standing, and the rest’.16 Although these critical remarks must necessarily be taken with a grain of salt,

they capture what should be avoided by any judicial reform. Since, notwithstanding its weaknessses

the EU judicial system has on various instances ‘proved remarkable’,17 understanding of the reform of

the EU judicial system should nowadays address an ambitious challenge of a constantly changing

nature of the EU legal order. It is true that this legal order is anchored invariably in the principle of rule

of law18 and the quality of justice understood as the foundation for the legitimacy of EU courts.19 One

cannot nevertheless forget that ‘[f]or courts, continuous change and dynamic expansion mean

constant pressure on workload, production, and length of proceedings. ’20

Throughout the subsequent modifications of the Treaties encompassing the amendments to

the Statute of the Court of Justice, the improvement of the functioning of the EU judiciary was

13 K. Lenaerts, ʻLe Tribunal de première instance des Communautés européennes : regard sur une décennie des activités et sur

le rapport du double degré d’instance au droit communautaireʼ, (2000), Cahiers du droit européen, N°3-4, 323.

14 G. Carlos Rodríguez Iglesias, ʻL’évolution de l’architecture juridictionnelle de l’Union européenneʼ in : The Court of Justice and

the Construction of Europe, 1st edn, Springer 2013, pp. 37-59, at 37.

15 The term ‘non-system’ was used in the context of the relationship between the national and EU judges, see H. Rasmussen,

‘Remedying the Crumbling EC Judicial System’, (2000) 37, Common Market Law Review, 1071.

16 Ibid.

17 F. Jacobs, ʻThe Court of Justice in the Twenty-First Century: Challenges Ahead for the Judicial System ?ʼ, ibid., at 50.

18 T. von Danwitz, ʻThe Rule of Law in the Recent Jurisprudence of the ECJʼ (2014) 37 Fordham International Law Journal, Issue 5,

1311, referring to W. Hallstein, ʻDie EWG—Eine Rechtsgemeinschaft. Rede anlasslich der Ehrenpromotionʼ, Universitat Padua,

12. Marz 1962, in : Europäische Reden, 1979, 341, 343–344.

19 J.M. Sauvé, ʻLes critères de la qualité de la justice, in : De 20 and à l’horizon 2020, Actes du colloque, Cour de justice de l'Union

européenne, Luxembourg 2011, pp. 27-48 ; P. Paczolay, Predictability and stability of judicial decisions, in De 20 and à l’horizon

2020, Actes du colloque, Cour de justice de l'Union européenne, Luxembourg 2011, pp. 55-62.

20 A. Meij, ʻ Courts in transition: Administration of justice and how to organize itʼ (2013) 50 Common Market Law Review, 3, 4.


indisputably the fundamental objective, as notably illustrated by the establishment of the EU Civil

Service Tribunal.21 The creation of the Civil Service Tribunal which alleviated the workload of the

General Court regarding the staff cases, answered a specific call made in Declaration No 16 made at

the occasion of the signature of the Treaty of Nice.22 The far-reaching changes introduced by the

Lisbon Treaty coupled with the conferral upon the Charter of Fundamental Rights of the same legal

value as the Treaties, strengthened the rule of law in the EU by focusing attention on the substance of

the competences of the EU Courts rather than the structure and distribution of the areas of

jurisdiction.23 Subsequent amendments of the Statute of the Court of Justice and the Rules of

Procedure of both EU courts aimed at the good administration of justice through the adoption of

internal organizational measures such as the introduction of the position of a vice-president and the

adaptation of the configuration of the chambers. 24 The position of a vice-president was equally

created in the General Court. 25 Nevertheless, it is common knowledge that the General Court kept

facing alarming structural backlog,26 which raised concerns, reflected in the case-law of the Court,27

from the point of view of compatibility with the principle of a fair trial within a reasonable time as

guaranteed by Article 47 of the Charter of Fundamental Rights, but also by Article 6(1) of the European

Convention of Human Rights and Fundamental Freedoms. Following a particularly complex legislative

process in years 2011 – 2015 the Statute of the Court of Justice was amended by adoption of the

Regulation 2015/2422 (hereinafter ‘2015 reform’).28 This significant reform of the EU Courts was rightly

21 Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ L 333,

p. 7–11).

22 Declaration 16 relating to Article 225a of the EC Treaty (1), adopted when the Treaty of Nice was signed on 26 February 2001.

‘16. Declaration on Article 225a of the Treaty establishing the European Community

The Conference asks the Court of Justice and the Commission to prepare as swiftly as possible a draft decision establishing a

judicial panel which has jurisdiction to deliver judgments at first instance on disputes between the Community and its servants’.

23 F. G. Jacobs, ‘The Lisbon Treaty and the Court of Justice ʼ, in : A. Biondi, P. Eckhout, S. Ripley (eds.), EU Law After Lisbon, 1st edn,

OUP 2012, p. 197-212.

24 Draft amendments to the Statute of the Court of Justice of the European Union and to Annex I thereto see, document of the

Council doc. 8787/11, available at https://www.consilium.europa.eu/en/documents-publications/public-register/. Regulation

(EU, Euratom) No 741/2012 of the European Parliament and of the Council of 11 August 2012 amending the Protocol on the

Statute of the Court of Justice of the European Union and Annex I thereto (OJ L 228, p. 1–3). Decision of the Court of 23 October

2012 (O.J. 2012, L300/47). For an overview, see M. Gaudissart, ‘La refonte du règlement de procédure de la Cour de justiceʼ,

(2012) Cahiers de droit européen, N°3, 603.

25 Regulation (EU, Euratom) No 741/2012 of the European Parliament and of the Council of 11 August 2012 amending the

Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto (OJ L 228, 23.8.2012, p. 1–3), see

Article 47 of the Statute of the Court of Justice as amended by the Regulation n° 741/2012.

26 A. Meij, ‘Courts in transition: Administration of justice and how to organize itʼ, ibid., see Council document 8787/11.

27 Case C-385/07 P Der Grüne Punkt - Duales System Deutschland v Commission Grüne Punkt, EU:C:2009:456.

28 Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol

No 3 on the Statute of the Court of Justice of the European Union (OJ L 341, p. 14–17).

https://www.consilium.europa.eu/en/documents-publications/public-register/


considered as ‘the most radical transformation of the EU judicial architecture since the establishment

of the General Court in 1989’.29 Although reported to be a success story, 30 the Civil Service Tribunal

ceased to exist by virtue of the 2015 reform and the number of judges of the General Court was

doubled according to the mechanism of the gradual increase of the number of its members.

While the appraisal of the consequences of the 2015 reform is beyond the scope of this

contribution, the discussion on the transfer of jurisdiction in relation to the infringement actions is

undoubtedly one of the upshots of the Lisbon Treaty and of the unprecedented 2015 reform of the

EU judiciary.31 The decision to abolish the Civil Service Tribunal and to double the number of judges

of the General Court implies further questions as to the mission of the re-shaped General Court.

In the aftermath of the Nice treaty reform of the European judiciary J.H.H. Weiler wrote the

following: ‘A Court of First Instance with new-found dignity, Judicial Panels and all the rest not-

withstanding, Europe continues to drive in its rusty and trusted 1950 model with the steering wheel

firmly in the hands of the Court of Justice’. 32 Today, for the first time since the treaty of Nice which

contained ‘the embryo for a fundamental re-allocation of jurisdiction between the EU courts’, 33 we are

facing in a palpable, measurable way a new chapter in the process of search for the new dynamism of

the European courts. Given the constant increase of cases, the Court of Justice seems to be ready to

hand over novel areas of its jurisdiction to the General Court, while retaining the nucleus of the

constitutional litigation. The question remains however whether in relation to the transfer of

jurisdiction regarding infringement proceedings all relevant stakeholders have intention to push for

the ‘statistic-driven reform’ as has been qualified by A. Alemano and L. Pech the 2015 reform of the

29 A. Alemanno, L. Pech, ‘Thinking Justice outside the docket : A critical assessment of the reform of the EU’s Court system’, (2017)

54 Common Market Law Review, 129.

30 A. Meij, ‘Courts in transition: Administration of justice and how to organize itʼ, ibid., House of Lords EU Committee, 14th Report

of Session 2010–11, 6 April 2011, ‘The Workload of the Court of Justice of the European Union’, HL Paper 128, para 56; see also

H. Kramer, ‘The European Union Civil Service Tribunal: A new Community court examined after four years of operationʼ, (2009)

46 Common Market Law Review, 1873.

31 See, Amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union, doc. 7586/18, p. 9;

Commission Opinion on the draft amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union,

presented by the Court of Justice on 26 March 2018, COM(2018) 534 final/2.

32 J.H.H. Weiler, Epilogue: ‘The Judicial Apres Niceʼ in G. de Burca, J.H.H Weiler (eds.), The European Court of Justice, Oxford, 2001,

pp. 215-226, at 217.

33 K. Lenaerts, I. Maselis, K. Gutmann, EU Procedural Law, 2nd edn, OUP 2014, p. 38, A. Tizzano, ‘La Cour de justice après Nice :

le transfert des compétences du Tribunal de première instanceʼ, (2002) Revue du droit de l’Union européenne, N°4, 665; G.

Vandersanden, ‘Le systeme juridictionnel communautaire apres Niceʼ, (2003) Cahiers de droit europeen, N° 1-2, 3; B. Vesterdorf,

‘The Community Court System Ten Years from Now and Beyond: Challenges and Possibilitiesʼ, (2003) 28 European Law Review,

N° 3, 303.


General Court, 34 or have we finally reached a stage of substantive, holistic reflection on the EU model

of justice ? In other terms, have we grasped the common thread of what the EU courts have been, are,

and should be or are we using procedural reforms as fragmentary, reactive and not prospective

response ?

As provided for in Article 3 of Regulation 2015/2422, the Court of Justice has been invited to

draw up, by December 2017, a report for the European Parliament, the Council and the Commission

on possible changes in the distribution of areas of jurisdiction between the Court of Justice and the

General Court with respect to preliminary rulings. Furthermore, the Union legislator invited the Court

of Justice to submit a report on the operation of the General Court by the end of 2020. Accordingly, in

December 201735 the Court of Justice presented the first report in which it expressed no need of

partial transfer to the General Court of the Court’s jurisdiction with respect to preliminary rulings given

the central place occupied by the judicial dialogue mechanism in the EU legal order and expected

reorganization and adaptation of the General Court working methods following its recent reform.36

The report contained nevertheless a suggestion of further changes that could be made to the division

of powers between the Court and the General Court, in particular as regards the direct actions and

appeals.

Consequently, on 26 March 2018, the Court of Justice submitted a request under Article 281(2)

TFEU to the European Parliament and the Council to amend Protocol No 3 on the Statute of the Court

of Justice of the European Union.37 The proposal contained, three principal components consisting in,

first, the transfer to the General Court of the jurisdiction to adjudicate, at first instance, on infringement

proceedings under Article 108(2) and Articles 258 and 259 TFEU, secondly, the conferral upon the

Court of Justice of the jurisdiction to adjudicate in actions for annulment lodged by Member States

against Commission decisions linked to a failure properly to comply with a judgment delivered by the

Court under Article 260(2) and (3) TFEU and imposing financial penalties and thirdly the introduction

34 See A. Alemanno, L. Pech, ‘Thinking Justice outside the docket : A critical assessment of the reform of the EU’s Court system’,

ibid..

35 Report of the Court of Justice on possible changes to the distribution of competence for preliminary rulings under Article 267

TFEU. http://data.consilium.europa.eu/doc/document/ST-15995-2017-INIT/en/pdf

36 It is worth noting that the Court of Justice also rejected the possibility of conferring on the General Court any responsibility

for dealing with questions referred for a preliminary ruling under Article 267 TFEU, notwithstanding this possibility being

explicitly foreseen in the TFEU.

37 Amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union, see doc. 7586 of 28 March 2018,

containing a letter from the President of the Court of Justice of the European Union, forwarding to the President of the Council

of the European Union a request for the amendment of Protocol n° 3 on the Statue of the Court of Justice of the European

Union, available at https://www.consilium.europa.eu/en/documents-publications/public-register/.

http://data.consilium.europa.eu/doc/document/ST-15995-2017-INIT/en/pdf



of the filtrage des pourvois, for certain categories of appeals, consisting of a procedure whereby the

Court of Justice first determines whether certain appeals are allowed to proceed.

Within the ‘infringement action field’ the Court of Justice expressed a clear wish to retain

jurisdiction with respect to the certain types of actions. First, actions that have a constitutional aspect

among which the Court identified as : actions seeking a declaration that a Member State has failed to

fulfil obligations under the Treaty on European Union, including violation of the Charter, and actions

brought in the area of freedom, security and justice 38. Secondly, the Court of Justice decided to retain

jurisdiction with respect to actions requiring urgent treatment and actions based on Article 260 TFEU,

involving the possible imposition of a lump sum or a penalty payment on the Member State. Thirdly,

the Court has proposed to establish a mechanism whereby the General Court, either of its own motion

or at the request of a party, can refer a specific case to the Court, “where the case calls for a decision of

principle or where exceptional circumstances so justify”. Finally, the Court of Justice proposed a derogation

regime for the handling of appeals lodged against the judgements of the General Court within the

‘infringement action field’ whereby the Court could examine both question of fact and of law.39

A detailed and partly critical analysis of this proposal in relation to the transfer of the

infringement proceedings to the General Court has been elaborated by the European Commission. 40

Beyond expressing doubts of whether the amendments proposed by the Court of Justice are likely to

achieve the desired objective, namely to relieve the Court of Justice of a significant part of its workload,

the Commission raised important structural concerns. In particular, the Commission pointed to the

specific nature of action for failure to fulfil obligations where the protagonists are two Member States

or an institution of the Union and a Member State. Furthermore, the Commission broadly elaborated

on the counterproductive risks of delaying the proceedings. The introduction of a two-tier system of

jurisdiction would imply legal uncertainty and would have a negative impact on the process of reaching

compliance with EU law. In this context, the Commission highlighted relevance of res judicata given

that defaulting Member State has to be given clarity as to how the infringement was identified and

38 Which, according to the Court often raise questions of interpretation or validity that are particularly sensitive and urgent, that

are difficult to reconcile with there being a right of appeal in those areas.

39 See, Amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union, doc. 7586/18 : ‘By way of

derogation from the first paragraph, (which limits the scope of appeals to the points of law) the Court shall examine all the

relevant elements of fact and law and shall give a final ruling on the dispute where it declares an appeal brought against a

decision of the General Court delivered under Article 51(2) of this Statute to be well founded.’

40 The Council Working Party on the Court of Justice examined this proposal at its meetings on 20 April, 8 June and 18 July 2018.

The Commission gave its opinion on the request by the Court of Justice of the European Union on 11 July 2018 (document

11076/18), available at https://www.consilium.europa.eu/en/documents-publications/public-register/.



what is the scope of an obligation to execute the judgement stating violation of EU law. The

Commission’s report, which encapsulated a number of concerns about the horizontal impact of the

proposal from the Court of Justice, was one of the factors which led the Court of Justice to withdraw

the part of the proposal concerning the transfer, to the General Court, of the jurisdiction in the field

of infringement proceedings.

Consequently, the Court of Justice submitted in August 2018 a modified proposal for the

amendment of the Statute which did not contain the infringement limb. 41 The Court of Justice

recognized in this context the wishes of a number of parties to wait until the benefits of the reform of

the structure of the courts of the European Union have been fully realised. Regarding the relevant

areas of jurisdiction, the redrafted proposal of the Court contained two main elements: first, exclusive

jurisdiction over the litigation concerning imposition of financial penalties under Article 260 TFEU will

be reserved to the Court of Justice, second, in the interests of the proper administration of justice, the

Court of Justice will apply a system of filtrage des pourvois. On 23 October 2018, the Commission gave

a favourable opinion on the modified draft.42 This is equally the substance of the reform which was

endorsed by adopting on 17 April 2019 the Regulation 2019/629 amending Protocol No 3 on the

Statute of the Court of Justice of the European Union (hereinafter the ‘2019 reform’).43

The 2019 reform has been rightly presented as enhancing the efficiency of judicial

proceedings before the Court of Justice. 44 First, the purpose of the last amendments in relation to the

new filtering mechanism is to set out detailed rules for the implementation of the mechanism whereby

the Court determines whether an appeal should be allowed to proceed. Appeals brought in cases

which have already been considered twice, first by an independent board of appeal, then by the

General Court, will not be allowed to proceed before the Court of Justice unless it is demonstrated

41 The Court of Justice presented on 10 August 2018 a modified request which contained only those parts of the proposal which

were unproblematic. This modified request was sent for written observations to Member States (document 11887/18).

42 Commission Opinion of 23.10.2018 on the draft amendments to Protocol No 3 on the Statute of the Court of Justice of the

European Union, presented by the Court of Justice on 26 March 2018 and amended on 10 August 2018, document 13587/18

available at consilium.europa.eu

43 Regulation of the European Parliament and of the Council of 17 April 2019 (OJ L 111, 25.4.2019, p. 1).

44 Council of the EU, Press release, 09.04.2019, available at: https://www.consilium.europa.eu/en/press/press-

releases/2019/04/09/more-efficient-rules-for-handling-appeals-before-the-eu-court-of-justice/

https://www.consilium.europa.eu/en/press/press-releases/2019/04/09/more-efficient-rules-for-handling-appeals-before-the-eu-court-of-justice/

https://www.consilium.europa.eu/en/press/press-releases/2019/04/09/more-efficient-rules-for-handling-appeals-before-the-eu-court-of-justice/


that they raise an issue that is significant with respect to the unity, consistency or development of EU

law.45

Second, the conferral upon the Court of Justice of the exclusive jurisdiction over litigation

concerning a lump sum or a penalty payment imposed on a Member State pursuant to Article 260(2)

or (3) TFEU addresses the issue of systemic consistency. Under the current legal framework the Court

of Justice enjoys exclusive jurisdiction to rule on the compliance with EU law and on which the

Commission cannot encroach, while checking whether a Member State has properly executed a

judgement delivered by the Court. In fact, the rights and duties of Member States may be determined

and their conduct appraised only by a judgement of the Court of Justice.46 Yet, when adjudicating on

an action for annulment brought by a Member State against the Commission’s decision adopted in

the follow-up of a judgment delivered by the Court of Justice under Article 260(2) or (3) TFEU, the

General Court can encounter serious difficulties where the Commission and the Member State

concerned disagree on the adequacy of the measures adopted by that Member State to comply with

the judgment of the Court of Justice. In exercising its jurisdiction in the context of the legality control

the General Court could not impinge on the exclusive jurisdiction reserved to the Court of Justice and,

therefore, could not rule on issues relating to the infringement which had not been previously decided

by the Court of Justice. Consequently, the competence to rule on the legality of the decision of the

Commission for the recovery of penalty payments or lump sums from the Member State concerned

is now reserved to the judicial body which imposed the financial penalty at hand, meaning the Court

of Justice.

Finally, according to the Regulation 2019/629 the partial transfer to the General Court of the

jurisdiction in the field of infringement proceedings under Articles 258, 259 and 108 TFEU should be

‘examined at a later stage’, after the submission of the report on the functioning of the General Court

provided for in Article 3(1) of Regulation 2015/2422. The debate on the transfer of the jurisdiction in

infringement actions has thus been only postponed and, given the constant increase in the number

of cases brought before the Court of Justice, it will be certainly addressed after December 2020. The

latest legislative modification constitutes just a stone in the edifice of the EU judiciary. A wider,

45 Specifically, the new rules will apply to appeal procedures emanating from one of the following EU agencies and offices: the

European Union Intellectual Property Office; the Community Plant Variety Office; the European Chemicals Agency; and the

European Union Aviation Safety Agency, see Regulation 2019/629.

46 These issues have been extensively debated in the Opinion of Advocate General Jääskinen in case C-292/11, Commission v

Portugal, ECLI:EU:C:2013:321. See also judgment in Case C-292/11, Commission v Portugal, ECLI:EU:C:2014:3.


horizontal analysis of the structure of the EU courts and the system of enforcement and compliance

within the EU legal order is inevitable.

2. Multifaceted Nature of the Infringement Actions in EU law

According to Advocate General Tesauro ‘failure to comply with the duty of respecting the obligations

under the Treaty constitutes a vulnus to the essential factors of equilibrium of the system, that is

principle of non-discrimination and solidarity.47 Scholars emphasise convincingly that the ‘complete

and coherent system of judicial review of acts of the Member States is just as much a fundamental

component’ of the Les Verts formula heralding a Community based on the rule of law.48 Consequently,

‘infringement actions, by their very nature, have a constitutional dimension’.49

The mission of the Court of Justice consists, according to Article 19(1) TEU, in ensuring that in

the interpretation and application of the Treaties the law is observed. By obtaining a declaration from

the Court of Justice that the conduct of a Member State infringes EU law, action for infringement leads

to the obligation for the Member State concerned to terminate that conduct and remedy the

infringement.50 Classical explanations of a failure to fulfill obligations under EU law range from the

divergence of opinion on the correct interpretation of EU law, to ‘a natural wish to protect national

interest deemed to be endangered by some Community action’ – and those explanations remain valid

also at the current stage of EU law.51 An action under Article 258 TFEU corresponds thus to an

‘appropriate remedy’52 to relieve these tensions. As stressed by the Court of Justice in 1960 ‘[The Article

88 ECSC] infringement procedure provides means to enforce the Treaty and is the ultima ratio by

which the Community interest recognized by the Treaty may be made to prevail over the inertia and

47 G. Tesauro, ‘La sanction des infractions au droit communautaireʼ (1992) 32 Rivista di diritto europeo, 477, quotation in : R.

Mastroianni, ‘The Enforcement proceudre under Article 169 of the EC Treaty and the Powers of the European Commission :

Quis Custodiet Custodesʼ, (1995) 1 European Public Law, Issue 4, 535.

48 Case 294/83, Les Verts v Parliament, EU:C:1986:166, para 23, see K. Lenaerts, ‘The Rule of Law and the Coherence of the Judicial

System of the European Unionʼ, (2007), 44, Common Market Law Review, Issue 6, pp. 1625, 1636.

49 K. Lenaerts, ‘The role of the Court of Justice, Court of First Instance and specialised tribunals in the long-termʼ, Colloquium on

the Architecture of the EU Judiciary in : Papers from the Colloqium on the Judicial Architecture of the European Union, 2004,

CCBE.

50 Cases 15 - 16/76, France v Commission, EU:C:1979:29, para 27.

51 J. Mertens de Wilmars, I. M. Verougstraete, ‘Proceedings against Member States for failure to fulfill their obligationsʼ, (1970) 7

Common Market Law Review, Issue 4, 385, 386.

52 Ibid., 386.


the resistance of the Member States’.53 The status of infringement proceedings has naturally evolved

from ultima ratio and policy driven procedure to a common and intense tool of supervision and

compliance.54 Nevertheless, as noted by scholars, ‘it is the only action in which the Court engages in

the direct assessment of the compatibility of national measures (as well as other types of national

practices)’ with EU law. 55 Thus, notwithstanding a number of legal remedies and principles available

in the framework of the ‘decentralized implementation’ of EU law56 the institutional procedure

provided for in Articles 258-260 TFEU ‘remains an essential tool of EU law enforcement against

Member States’.57 The key actor of this mechanism, the Commission is given a duty of a ‘continuous

supervision of the actions of the Member States’.58 This centralized model of enforcement remains

equally one of the unique features of the EU legal order.59

Gradually, the aspiration of EU law to impose itself as an efficient legal system has led to the

establishment in the Maastricht Treaty of financial penalties in the case of non-compliance with

judgement of the Court stating a breach of EU law by a Member State.60 The groundbreaking

judgement of the Court of Justice in case Commission v. France,61 has strengthened the compliance

discipline, in a not obvious interpretation of the letter of the treaty, by allowing for the cumulation of

two categories of financial sanctions within the meaning of Article 260(2) TFEU.62 The Lisbon Treaty

added further elements towards increasing the effectiveness of the EU law. Not only did it shorten the

pre-litigation phase of the Article 260(2) TFEU proceedings, but it also altered infringement

proceedings under Article 258 TFEU by setting up, in a new Article 260(3) TFEU, the new Commission’s

53 Case 20/59, Italy v High Authority, EU:C:1960:33, see J. Mertens de Wilmars, I. M. Verougstraete, ‘Proceedings against Member

States for failure to fulfill their obligationsʼ, ibid.

54 L. Prete, B. Smulders, ‘The Coming Age of Infringements Proceedingsʼ, (2010) 47 Common Market Law Review, Issue 1, 9.

55 K. Lenaerts, ‘The Rule of Law and the Coherence of the Judicial System of the European Unionʼ, ibid.

56 See Opinion of Advocate General Szpunar in Case C-543/17, Commission v Belgium, EU:C:2019:322, point 43, footnote 24.

57 L. Prete, B. Smulders, ‘The Coming Age of Infringements Proceedingsʼ, ibid.,10.

58 H. G. Schermers, ‘The Law as it stands against Treaty violations by Statesʼ, (1974) 1 Legal Issues of European Integration, 111.

59 U. Everling, ‘Les actions en manquement et l’identité des États membres de l’Union européenneʼ, in :, L’État souverain dans le

monde d’aujourd’hui: mélanges en l’honneur de Jean-Pierre Puissochet, A. Pedone 2008, p. 97, 98; A. Arnull, The European Union and

its Court of Justice, 2nd edn, OUP 2013, p. 34.

60 I. Kilbey, ‘The Interpretation of Article 260 TFEU (ex 228 EC)’, (2010) European Law Review, 370; P. Wennerås, ‘A new dawn for

Commission enforcement under Articles 226 and 228 EC : General and Persistent (GAP) Infringements, Lump sums and Penalty

Payments’, (2006) 43 Common Market Law Review, Issue 1, 31 ; P. Wennerås, ‘Making effective use of Article 260 TFEU’, in : J.

András, D. Kochenov, The Enforcement of EU Law and Values: Ensuring Member States' Compliance, OUP 2017, pp. 79 - 98, A. Sikora,

Sankcje finansowe w razie niewykonania wyroków Trybunału Sprawiedliwości Unii Europejskiej’, Wolters Kluwer 2011.

61 Case C-304/02, Commission v France, EU:C:2005:444.

62 K. Leanerts, ‘The Rule of Law and the Coherence of the Judicial System of the European Unionʼ, ibid.


competence to ask for the financial penalties in case of non-communication of transposition measures

by the Member States. In a recent case Commission v. Belgium, the Court of Justice for the first time

63 authoritatively determined the interpretation of Article 260(3) TFEU. In his elaborated analysis,

Advocate General Szpunar focused on the applicability of Article 260(3) TFEU where ‘information

concerning the transposition measures notified to the Commission is unrelated to the provisions of

the directive’ and suggested to dismiss the Commission’s action in relation to the financial penalties

request.64 The Court of Justice interpreted ‘obligation to notify the measures transposing a directive’

as encompassing sufficiently clear and precise information in relation to the transposition of a

directive. Thus, according to this recent judgment of the Court of Justice, Member States are required

to indicate in the framework of the notification national measures which amount to the transposition

of each of the directive’s provisions. The Court has nevertheless clearly indicated that the assessment

of a correct nature of a transposition goes beyond the scope of applicability of Article 260(3) TFEU.65

Finally, the issue of financial penalties has surprisingly revived recently in the context of interim

measures under article 279 TFEU as demonstrated by the ‘Białowieża’ case (Commission v. Poland).66

More generally, in the light of the recent judicial developments, the constitutional dimension

of infringement proceedings is constantly growing. Indeed, as noted in the legal literature ‘even for

well-established Member States the record on the observance of the rule of law is not beyond doubt.’67

Recent Commission’s actions under Article 258 TFEU pursue Member States measures undermining

the core foundations of the Union such as the rule of law and the independence of the national

judiciary68, as well as autonomous violations of the Charter of Fundamental Rights.69 Interim measures

63 As noted by Advocate General Szpunar, ‘the Court has already been seised of numerous cases in which the Commission

requested the application of Article 260(3) TFEU. However, all of them have, to date, been resolved between the Member State

concerned and the Commission before judgment was delivered, which led the Commission to discontinue the proceedings in

each of those cases, sometimes at the very last moment,’ see, Opinion, of Advocate General Szpunar in Case C-543/17,

Commission v Belgium, EU:C:2019:322, point 5. See Opinions of Advocate General Wathelet in case C‑320/13, Commission v

Poland, EU:C:2014:2441 and of Advocate General Tanchev in case C‑569/17, Commission v Spain, EU:C:2019:271, point 71. The

Commission discontinued the proceedings in both cases, see orders of the Court in case C-320/13, Commission v Poland,

EU:C:2015:221 and in case C-569/17, Commission v Spain, EU:C:2019:654. Cf. N. Wahl, L. Prete, ‘Between certainty, severity and

proportionality: some reflections on the nature and functioning of Article 260(3) TFEU’ (2014) European Law Reporter, N°6, 170.

64 See Opinion, of Advocate General Szpunar in Case C-543/17, Commission v Belgium, EU:C:2019:322, points 58-81.

65 Ibid., point 59.

66 See order of the Court in case C-441/17 R, Commission v Poland, EU:C:2017:877.

67 T. von Danwitz, The Rule of Law in the Recent Jurisprudence of the ECJ, ibid., 1311, 1341.

68 See Case C-619/18, Commission v Poland, EU:C:2019:531. Cf. case C-286/12, Commission v Hungary, EU:C:2012:687.

69 Case C-235/17, Commission v Hungary, EU:C:2019:432.


order adopted by the Court of Justice in case Commission v. Poland70 regarding forced retirement of

judges of the Polish Supreme Court is of fundamental importance for the rule of law in the EU. The

Court has imposed on Poland the obligation not only to suspend the application of the contested

national legislation, but also to restore status quo ante and make sure that judges may return to the

exercise of their judicial functions. There can be no doubt that such an unprecedented measure could

not be adopted by any other Court than the Supreme Court of the Union. In the judgement in this

case the Court of Justice expressed credo of the Union as it stands. The Court recalled the necessary

respect of common values referred to in Article 2 TEU.71 More importantly, the statement of a failure

to fulfill obligations by Poland has been preceded, in line with the earlier judgment in Associação

Sindical dos Juízes Portugueses,72 by the interpretation of Article 19(1) TEU insofar as this provision

requires Member States to provide, on the one hand, remedies that are ‘sufficient to ensure effective

legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by

EU law’ and, on the other, to ensure that ‘the bodies which, as ‘courts or tribunals’ within the meaning

of EU law, come within its judicial system in the fields covered by EU law meet the requirements of

effective judicial protection’. In this solemn judgement the independence of the national judiciary

viewed as the essence of the right to effective judicial protection and the fundamental right to a fair

trial, has been elevated to the status of a safeguard of the rule of law in the Union as a whole.

It is also worth mentioning that in 2018, for the first time in the history of Article 258 TFEU, the

Court of Justice has declared a judicial infringement in the context of judicial dialogue in the meaning

of Article 267 TFEU. In the judgment Commission v. France,73 the Court found that the French Council

of State has failed to refer a preliminary ruling request to the Court. This important development

shows that the so called ‘attitude of self-restraint’ in the field of judicial infringements, as referred to

by judge Timmermans years ago, is no longer true.74

In parallel, it must be stressed that the proceedings for failure to fulfil obligations under Article

258 TFEU have moved away from their original function as a normative and objective supervisory

mechanism. Those proceedings have increasingly become a method of challenging not only legislative

70 Order of the Court in case C-619/18 R, Commission v Poland, EU:C:2019:575.

71 Case C-619/18, Commission v Poland, EU:C:2019:531, para 42.

72 Case C‑64/16, Associação Sindical dos Juízes Portugueses, EU:C:2018:117.

73 Case C-416/17, Commission v France, EU:C:2018:811.

74 C.W.A. Timmermans, ‘Use of infringement procedure in case of judicial errors’, in : The European Union : An ongoing process of

integration – Liber amicorium A. E. Kellermann, Cambridge University Press 2004, p. 155-163, at 157.


deficiencies, but also the conduct and practices of national authorities. Two striking examples of this

evolution are infringements involving national administrative practice75 and the concept of structural

and generalised infringements, resulting from a general administrative practice (GAP).76 It is thus clear,

as recalled by Advocate General Jääskinen in case Commission v. Portugal, the operative part of a

judgment delivered pursuant to Article 258 TFEU ‘is capable of encompassing a wide range of legal or

factual phenomena amounting to infringements of EU law, beyond merely confirming an

incompatibility between EU law and a provision of national law’.77

These developments are of particular relevance in the field of the EU environmental

protection. In this area, the instances of violation of the EU legislative framework require not only the

procedural tools which allow a detailed fact finding and cross-examination, but equally the availability

of accelerated procedure and interim measures application in order to remedy irreparable

environmental harm. In its role of the guardian of the Treaties, the Commission is confronted with a

number of significant challenges of this nature when faced with instances of misapplication of the EU

environmental legislation, where ‘time is of the essence in securing an immediate cessation of activity

liable to cause or continue to cause ecological damage’.78 Since the state of compliance in the field

environmental protection is persistently considered as unsatisfactory, the transfer of jurisdiction to

the General Court, which was created for the cases that require intensive fact-finding and has an array

of procedural tools developed in direct actions, might give rise to the new administrative and judicial

attitude, which could very well fit the purposes of EU environmental protection.

Last but not least, the practice under Article 259 TFEU must be mentioned. Although few

judgements have been delivered to date by the Court of Justice,79 they represent a particular model

of compliance control, often highly marked by political and historical grievances.80 Yet, it is interesting

75 A. Sikora, ‘Administrative Practice as a Failure of a Member State to Fulfil its Obligations Under Community Law’, (2009) 2

Review of European and Administrative Law, No. 1, 5; M. Lottini, ‘Correct Application of EU Law by National Public Administrations

and Effective Individual Protection: The Solvit Network (December 1, 2010) ’, (2010), 3 Review of European and Administrative

Law, N° 2, 5.

76 See Opinion of Advocate General Jääskinen in case C-292/11P, Commission v Portugal, EU:C:2013:321.

77 Ibid., point 27.

78 M. Hedemann-Robinson, ‘Enforcement of EU Environmental Law and the Role of Interim Relief Measures’, (2010) 19 European

Energy and Environmental Law Review, 204, 207.

79 Cases 141/78, France v United Kingdom, EU:C:1979:225; C-388/95, Belgium v Spain, EU:C:2000:244; C-145/04, Spain v United

Kingdom, EU:C:2006:543; C-364/10, Hungary v Slovakia, EU:C:2012:630; C‑591/17, Austria v Germany, EU:C:2019:504. See pending

case C-457/18, Slovenia v Croatia. Some of the Article 259 TFEU applications have been withdrawn before the final ruling of the

Court, see cases 58/77, Ireland v France and C-349/92, Spain v United Kingdom.

80 T. von Danwitz, The Rule of Law in the Recent Jurisprudence of the ECJ, ibid.,1342.


to note that in the abandoned Court’s proposal of 26 March 2018, actions under Article 259 TFEU

were to be transferred without any reservations to the General Court. Surprisingly, after very modest

use of this provision throughout the years, recent cases prove a certain revival of the inter-State

litigation before the Court of Justice. As demonstrated by the recent judgement in case Austria v.

Germany,81 in which Austria alleged discriminatory treatment on grounds of nationality resulting from

the measures adopted by Germany in the field of motor vehicles, Article 259 TFEU cases might also

have important economic impact. The currently pending case Slovenia v. Croatia82 arises from the

historical litigation over the border between the two Member States and, subject to the confirmation

of the competence of the Court of Justice, might have substantive impact at international level. While

these cases do not seem to be comparable to the traditional constitutional litigation as far as Union

law is concerned, and sometimes indeed raise more political than legal issues, this very aspect of

political sensitivity and the relatively limited number of cases under Article 259 TFEU does not plead,

at first sight, in favour of their transfer to the General Court.

3. Prospects for the Future – Infringements Before the General Court?

Following the 2019 judicial reform which announces that the distribution of areas of jurisdiction

between the Court of Justice and the General Court in relation the infringement proceedings is only

temporarily on hold,83 one must raise a question to what extent the General Court’s mission fits with

the model of compliance control established through the infringement proceedings in the EU legal

system. According to the Council Decision of 24 October 1988, the main purpose of establishing the

CFI was ‘[t]o improve the judicial protection of individual interests in cases evolving the examination of

complex facts and to enable the Court of Justice to concentrate its activities on the fundamental task

ensuring uniform interpretation of Community law’.84 Measured against the reasons that led to the

creation of the General Court in 1989, this judicial institution of the Union may be considered as having

met the expectations.

81 Case C-591/17, Austria v Germany, EU:C:2019:504.

82 See, pending case C-457/18, Slovenia v Croatia.

83 See Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 17 April 2019 amending Protocol

No 3 on the Statute of the Court of Justice of the European Union (OJ L 111, 25.4.2019, p. 1).

84 Council Decision of 24 October 1988 establishing the Court of First Instance (OJ L 319, 1988, p. 1).


As noted by Prof. J. Schwarze, the General Court is regarded as ‘a true administrative court of

the European Union’,85 the administrative court focusing on making individual justice. Thus, the

question is how to strike a balance between, on the one hand, the functioning of administrative,

factual, technical jurisdiction endowed with the competence to rule over failure to fulfill obligations

under EU law, and, on the other, the need to preserve supreme and constitutional litigation for the

Court of Justice and to maintain legal certainty and procedural efficiency within the system of European

justice.

The idea of transferring the infringement actions to the General Court is obviously not new. It

is a natural offspring of a long-standing debate on the future of the EU judiciary. Already in 2006

President Vesterdorf commented on the future scope of the Court of Justice jurisdiction as limited to

the interinstitutional litigation, appeals and cases brought before the Court of First Instance that raise

new constitutional questions which would be thus transferred to the Court of Justice.86 Regarding the

transfer of jurisdiction in relation to the infringement actions it was, nevertheless, admitted that

Member States may be unwilling to abandon a ‘privilege de juridiction’ given that it is agreed that only

the highest Court hears and determines cases in which the Member State acts as a defendant.

Likewise, the added value of the transfer was not regarded as necessarily bringing about a significant

gain in efficiency.87 In 2005, President Lenaerts regarded clearly as impossible to elaborate a criterion

for the division of jurisdiction between the Court of Justice and the General Court which ‘would direct

infringement actions raising constitutional issues immediately to the former court’.88 Thus, a

mechanism whereby the ‘General Court either of its own motion or upon the request of both the

applicant and the defendant, could refer an infringement case to the Court of Justice especially where

it required a decision on a point of principle likely to affect the unity or consistency of Community law’

has been put forward.89

85 J. Schwarze, Access to the Courts under the Rule of Law, in: De 20 ans à l’horizon 2020, Actes du colloque, Cour de justice de

l'Union européenne, Luxembourg 2011, pp. 115-127, at 118.

86 B. Vesterdorf, ‘A constitutional court for the EU? ’, (2006) 4 International Journal of Constitutional Law, Issue 4, 607.

87 Ibid., 617.

88 K. Lenaerts, ‘The Future Organisation of the European Courts’, in : P. Demaret (ed.) Dynamiques Juridiques Européennes, (2007)

2 College of Europe Studies, 129,145.

89 Ibid., 145.


In this respect, it is true that the possibility for the EU Court to declare an infringement by a

Member State lies at the heart of the European Union legal system since the Treaty of Paris.90 Yet, one

of the constitutive features of the EU legal order and of its judicial system is the capacity to evolve. The

General Court has successfully fulfilled the role of the juge des faits in the most complex and

challenging fields of the EU economic constitution. The essential contribution of the General Court to

the development of EU law has shaped the substance of the EU legal system in the areas of

competition and State aid law, trademark and design protection, public procurement, access to

documents, economic governance etc. It has successfully ensured the model of the control of legality

in fundamental areas such as control of administrative acts of institutions, bodies and agencies

concerning authorization of chemicals, agricultural pesticides, pharmaceutical products. Yet,

notwithstanding the economic constitutional dimension of its activities, the General Court does not

make part of what has been qualified in the legal literature as the ‘Europäische

Verfassungsgerichtsverbund’.91 This probably explains a hidden mistrust as to the conferral upon the

General Court of the mission to judge upon the non-compliance with EU law and the difficulties in

abandoning the abovementioned privilege de jurisdiction by the Member States. Likewise, the attitude

of the Commission can be qualified as particularly cautious. Some might wonder whether the crucial

difference in the status of the fundamental Advocate General before the Court of Justice and General

Court does not strengthen these aprioris. Beyond the constitutional litigation discourse, the partial

transfer to the General Court of infringement proceedings boils down to the questions of respect of

imperatives of legal certainty, predictability and stability of justice and doubts as to the detailed

operation of a double degree of jurisdiction in relation to the first instance judgement stating a failure

to fulfill obligations. The concerns relate to the length of proceedings and the respect of the rights of

defense of Member States in institutional litigation before the EU Courts.

As a result of the 2019 amendment of the Statute, the Court of Justice now enjoys the exclusive

competence under Article 260 TFEU to review the decision of the Commission adopted in the process

of execution of Article 260 TFEU judgement. Although this solution corresponds to the role of the

Court which extends to promoting the unity and the consistency of the EU law, it fits less well with the

idea of conferring the jurisdiction over the infringement proceedings to the General Court in the

future. The rationale of this amendment, which was one of the consequences of the still relatively

90 Infringement procedure made an integral part of the 1951 European Coal and Steal Community Treaty, see Article 88 ECSCT

(Treaty of Paris).

91 A. Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts. Der Europäische Verfassungsgerichtsverbund’,

(2010) 6 European Constitutional Law Review, 175.


recent litigation related to the adoption of financial penalties does not plead against the partial or total

transfer of infringement cases to the General Court. Yet, modifying the areas of jurisdiction in relation

to infringement procedures requires a stronger justification than just a procedural transfer reasoned

by the constant increase in the number of cases brought before the Court of Justice.

There are strong arguments in favour of the change of jurisdiction in relation to the

compliance control, which go beyond the caseload backlog rationale coupled with the expediency

imperative. First, the nature of the concept of infringement has profoundly changed over time. The

concept of infringement evolved from relatively limited and easily identifiable violations at the level of

enactment of legal acts into a highly technical, hybrid phenomenon appearing at the level of

application of legal norms and requiring expertise knowledge. Consequently, infringement cases

require an appraisal of complex facts and intertwined elements of fact and law. The General Court

seems to be the natural forum for hearing such cases. Secondly, in the proceedings for failure to fulfil

obligations, it is for the Commission to prove the existence of the alleged infringement and to provide

the Court with the information necessary for it to determine the existence of the infringement. The

Commission may not rely on any presumption for that purpose.92 Given that the General Court was

intended to fulfil the role of a fact-finding judicial body with particular expertise in cases concerning

complex factual and economic assessments, it was also given extensive investigatory powers in the

Rules of Procedure.93 The procedural instruments developed by the General Court in the cases calling

for an intensive factual examination, such as competition litigation, seem to be well adapted for the

in-depth analysis of the evidence of alleged breach of EU law, which nowadays often characterize

infringement cases. The examination of factual evidence also includes the issues of dealing with

sensitive information, where the General Court has also developed substantial expertise.

The list of concerns and disadvantages remains nevertheless substantial. First, it remains true

that it is not feasible to clearly separate the so-called ‘constitutional’ jurisdiction, to be reserved to the

Court of Justice, from the ‘general’ jurisdiction, which could be transferred to the General Court. This

is certainly not possible in case of infringement proceedings in general. The solution advocated by the

Court in its first proposal reflects the 2005 model referred to above which has been proposed in the

legal literature. It is the case by case mechanism of renvoi to the Court of Justice whereby ‘where the

92 See in particular, case C‑356/13, Commission v Poland, EU:C:2014:2386, para 104 and the case-law cited.

93 Notably measures of organization of procedure and measures of inquiry (fr. mesures d’organisation et mesures d’instruction),

see chapter IV of the Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1). Cf. A. Arnull, The European

Union and its Court of Justice, ibid., p. 25.


case calls for a decision of principle or where exceptional circumstances so justify, the General Court may,

on its own motion or at the request of a party, refer the case to the Court for a ruling by the latter’. 94 The

application of this mechanism raises a question as to the predictability of the administration of justice

from the perspective of the defendant Member State and the Commission, both parties being left in

a procedural suspense until the competent court is determined. Likewise, the scope of the Court’s

discretion in this regard, including the formation of the Court of Justice competent to decide upon the

request will have to be clarified, in particular whether the Court of Justice might send the case back to

the General Court. The timely treatment of a case might be affected if the request of the transfer could

be submitted either in the application initiating proceedings or within the two months following service

of the application on the defendant, and if, in the end, the request was to be rejected.

Secondly, perhaps the most controversial issue is the availability of an appeal. In this respect,

it remains true that ‘the relationship between the two Courts is obviously at its most critical in relation

to appeals’.95 If the Court wishes to strengthen its role as constitutional adjudicator96 or supreme court

of the Union97, the proposal of a case by case mechanism of renvoi to the Court of Justice could be

given a more horizontal scope. Constitutional renvoi allowing for the transfer of a particularly sensitive

constitutional litigation to the Court of Justice could apply to the whole set of remedies available before

the General Court. In exchange, the General Court would have to be considered as a ‘natural Court’

for more and more actions, including, infringement proceedings. Another horizontal solution could

reside in the fundamental reform of the system of appeals before the EU Courts. If the General Court

was awarded a general competence to rule on infringement actions, the Court of Justice should not

be obliged to examine every single appeal in an infringement case, but should have a possibility to

choose cases lodged for appeal taking into account their constitutional dimension. Such solution

would both reinforce the role of the General Court and allow the Court of Justice to fulfill its mission

of promoting the unity and consistency of the EU law as a supreme Court of the Union.

Thus, among the most sensitive reasons pleading against general or partial jurisdiction of the

General Court in the field infringement proceedings, as noted in the Opinion of 25 July 2018 of the

94 See proposed amendments of Article 51 of the Statute of the Court, in : Amendments to Protocol No 3 on the Statute of the

Court of Justice of the European Union, doc. 11887/18, available at : https://www.consilium.europa.eu/en/documents-

publications/public-register/.

95 G. Slynn, ‘Court of First Instance of the European Communities’, (1989) 9 Northwestern Journal of International Law & Business,

Issue 3, 542, 549.

96 E. Sharpston, G. De Baere, ‘The Court of Justice as a Constitutional Adjudicator’, ibid..

97 B. Vesterdorf, , ‘A constitutional court for the EU?’, ibid..




Commission, one could raise the uncertainty regarding res judicata of the judgment of the General

Court declaring an infringement of a Member State at first instance – and the length of the ensuing

procedure of appeal which would have adverse impact on the state of compliance.

Regarding the timing, the only answer consists in strengthening the authority and quality of

justice delivered by the General Court. Although it is argued that two-tier court system would improve

the quality of legal protection98, this argument does not address the risk of extended duration of

proceedings. In this regard, the selective and reformed system of appeals could be the only

substantive response. Regarding res judicata, it follows from the case-law of the Court that ‘a finding in

a judgement having the force of res judicata that the Member State concerned has failed to fulfill its

obligations amounts to a prohibition having the full force of law on the competent national authorities

against applying a national rule recognized as incompatible with the Treaty, and, if the circumstances

so require, an obligation on them to take all appropriate measures to enable Community law to be

fully applied’.99 The Court of Justice also specified that res judicata ‘extends only to the matters of fact

and law actually or necessarily settled by’ the Article 258 TFEU judgement.100 Given that appeals do

not, as a matter of principle, have suspensory effect unless the Court decides otherwise, adaptations

as to the effects of the judgement delivered at first instance would be necessary. Equally, the

consequences of inadmissibility of infringement action under Article 258 TFEU before the General

Court in the context of a potential appeal would have to be specifically addressed, including the

possibility to raise the issue of inadmissibility separately, as well as the conditions under which the

Court could decide to judge on the substance of appeal or refer the case-back for a second

assessment to the General Court.

Thirdly, the applicability of Article 260(2) and (3) TFEU must be considered insofar as financial

penalties would be imposed according to two different models depending on the nature of the

infringement procedure. In cases of general jurisdiction, applicability of Article 260 TFEU would be

triggered after two-tier judicial control (the judgement of the General Court and the judgement of the

Court under appeal and if the derogation system was adopted the Court would examine under appeal

all the relevant elements of fact and law). Paradoxically, in case of the constitutional infringements,

applicability of Article 260 TFEU would be triggered as a result of a non-execution only of a judgement

98 K. Lenaerts, ‘The role of the Court of Justice, Court of First Instance and specialised tribunals in the long-term’, ibid..

99 See order of the Court in joined cases 24-97/80R, Commission v France, EU:C:1980:107, para 16. For further reading, see H.

Schermers, D. F. Waelbroeck, Judicial Protection in the European Union, 6th edn, Kluwer 2001, p. 1302.

100 See Case C-526/08, Commission v Luxembourg, EU:C:2010:379, para 27.


of the Court of Justice under Article 258 TFEU. In this context, the two-tier judicial control offers to a

recalcitrant Member State a broader time frame in order to address the infringement as compared to

a Member State faced only with one instance of legal control. While a lengthy execution of a judgment

stating a failure to fulfill obligation may be compensated at the stage of imposition of financial

penalties, there is clearly a risk of different treatment in the scope of application of Article 260(2) TFEU.

Fourthly, although ‘the impact of the [2015] reform of the structure of the EU courts has yet

to be fully ascertained’,101 it is clear that the transfer of jurisdiction in infringement actions will require

further adaptations of the Court of Justice’s internal governance with particular emphasis on the inter-

institutional handling of cases. Likewise, internal coherence, transparency and communication within

the General Court would have to be strengthened starting from the moment the infringement case is

lodged before it. One should also revisit the role of Advocate General at the General Court and the

criteria of her/his participation in the treatment of cases. The costs of the proposed transfer should

naturally be subject to budgetary scrutiny, but since both institutions may rely on the existing

framework and internal know-how, financial considerations do not seem to amount to an impediment.

Finally, the transfer of jurisdiction between the EU Courts should contribute to a wider

reflection on the model of enforcement in EU law system and the model of EU justice. Although the

idea of a broader reform of ‘a governance structure which is no longer fit for purpose considering the

massive transformation of the EU judicial branch since 1951’102 has been convincingly advocated in

the legal literature, it seems that at the current, post 2015 reform stage, the need to ensure stability

of a recently reformed General Court does not allow for much of revolutionary steps. Yet, this does

not mean refraining from a thorough, prospective reflection, in particular, with respect to the

supervision and enforcement of EU law. From a systemic point of view, infringement procedure as it

is currently designed, is not up to the task of resolving urgent breaches.103 Among various proposals

that have been voiced in the institutional fora and in legal doctrine over the years, the one which

regularly comes back consists in granting the Commission the power to make infringement findings

and adoption of financial penalties via a decision. In order for this solution to be fully effective, the

Commission’s decision would have to trigger the legal effects which are currently reserved to the

101 See Amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union of 26 March 2018, doc.

7586/18 available at https://www.consilium.europa.eu/register/en/content/int?typ=ADV

102 See A. Alemanno, L. Pech, ‘Thinking Justice outside the docket : A critical assessment of the reform of the EU’s Court system’,

ibid..

103 A. Gil Ibanez, ‘The ‘standard’ administrative procedure for supervising and enforcing EC Law : EC Treaty Articles 226 and 228’,

(2004) 68 Law and Contemporary Problems, 135.

https://www.consilium.europa.eu/register/en/content/int?typ=ADV


Court’s judgement.104 The rationale and efficiency of the pre-litigation phase under Article 258 TFEU

would have to be adapted accordingly. All in all, before simply transferring the existing instrument in

the meaning of Article 258 TFEU to the General Court further thought might be needed to develop a

model of European administrative infringement proceedings.105 In particular, such issues as

prioritization of cases, enhanced transparency and strengthened role of private parties have been

suggested in the legal doctrine. 106 The fundamental principles at stake are the unity and consistency

of the EU legal order as well as legal protection of individuals and market operators, since the

enforcement of EU law constitutes ‘a part of the system of judicial protection enshrined in the

Treaties’.107

To conclude, ‘whatever the answers to all these questions may be, the hard fact remains that

something needs to be done’108 and this ‘something’ must be adequate and proportional to the

challenge of both boosting and ensuring compliance with the EU legal order and effective

administration of justice before the EU Courts.

104 L. Prete, Infringement Proceedings in EU Law, 1st edn, Kluwer 2017, p. 374.

105 A. Gil Ibanez, The ‘standard’ administrative procedure for supervising and enforcing EC Law : EC Treaty Articles 226 and 228’,

ibid.,158.

106 L. Prete, Infringement Proceedings in EU Law, ibid., pp. 355-358.

107 K. Lenaerts, I. Maselis, K. Gutman, EU Procedural Law, ibid., p. 159.

108 M. van der Woude, ‘Judicial Reform and Reasonable Delay’, (2012) 3 Journal of European Competition Law & Practice, No. 2,

123.


Chapter 2 Filtering of Appeals on Points of Law Before the

Court of Justice

Crístian Oró Martínez

1. Introduction

1.1 The Notion of Filtering of Appeals

The notion of ‘filtering’ of appeals does not exist, as such, in the procedural provisions applicable to

the Court of Justice.1 Indeed, neither the Statute of the Court of Justice of the European Union2 (the

Statute of the CJEU) nor the Rules of Procedure of the Court of Justice3 (the Rules of Procedure)

mention such notion. However, filtering mechanisms relating to appeals do exist in the procedural

tools of the Court of Justice. Therefore, from a non-formalist point of view, the filtering of appeals can

be said to relate to those procedural mechanisms that allow for the preliminary assessment of appeals

in order to take procedural decisions at an early stage of the procedure.

The Rules of Procedure currently provide for two types of filtering mechanisms relating to

appeals. The first mechanism is foreseen in Article 181 of the Rules of Procedure and allows the Court

of Justice to dismiss an appeal by reasoned order, at any stage of the procedure, in those cases where

the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded. The second, more

recent mechanism is set out in Article 58a of the Statute of the CJEU and Articles 170a and 170b of

the Rules of Procedure. These provisions establish a mechanism by means of which the Court of

Lawyer at the Research and Documentation Directorate of the CJEU. The views expressed here are those of the author and

do not reflect the position of the CJEU.

1 ‘Court of Justice’ and ‘Court’ will be used to refer to the judicial body, while ‘Court of Justice of the European Union’ or ‘CJEU’ will

be used when referring to the institution comprising both the Court of Justice and the General Court.

2 Protocol No 3 on the Statute of the Court of Justice of the European Union, annexed to the Treaties ([2016] OJ C202/210), as

amended by Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council, of 6 July 2016, on the transfer

to the General Court of jurisdiction at first instance in disputes between the European Union and its servants ([2016] OJ

L200/137) and by Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council, of 17 April 2019, amending

Protocol No 3 on the Statute of the Court of Justice of the European Union ([2019] OJ L111/1); for a consolidated version, see

https://curia.europa.eu/jcms/jcms/p1_219149/en/.

3 Rules of Procedure of the Court of Justice of 25 September 2012 ([2012] OJ L265/1), as amended on 18 June 2013 ([2013] OJ

L173/65), on 19 July 2016 ([2016] OJ L217/69) and on 9 April 2019 ([2019] OJ L111/73); for a consolidated version, see

https://curia.europa.eu/jcms/jcms/P_91447/.

https://curia.europa.eu/jcms/jcms/p1_219149/en/

https://curia.europa.eu/jcms/jcms/P_91447/


Justice must decide at the outset of the procedure whether certain appeals may be allowed to

proceed.

1.2. The Reasons for the Filtering of Appeals

The main reason justifying the existence of filtering mechanisms is the fact that, in the last years, there

has been a trend towards the increase in the number of cases brought before the Court of Justice.

Indeed, in 2012, 632 cases were brought; in 2013, 699 cases; in 2014, 622 cases; in 2015, 713 cases;

in 2016, 692 cases; in 2017, 739 cases; in 2018, 849 cases. As of 31 October 2019, 822 cases have

been brought, which permits to conclude that, in all likelihood, a new record number of cases will be

attained at the end of the year.4

Looking at these figures, and especially to those corresponding to the last three years, one

can certainly conclude that the trend towards the increase in the number of cases lodged with the

Court of Justice is consolidated. Moreover, and more significantly, since 2017 there has been a yearly

rise of more than 100 cases. One of the main factors accounting for this sustained increase is the

reform of the structure of the courts of the Union undertaken in late 20155 that has led, in three

phases, to the enlargement of the General Court from one judge per Member State to two judges per

Member State. This enlargement has had an impact on the number of cases decided by the General

Court, and consequently on the number of appeals brought before the Court of Justice. In the

framework of the same reform, the dissolution of the Civil Service Tribunal on 1 September 2016, and

the ensuing transfer to the General Court of jurisdiction at first instance in disputes between the Union

and its servants,6 has also had an impact on the increased workload of the Court of Justice, since it is

the court with jurisdiction for appeals in staff cases.

As a result of the increase in its caseload, the Court of Justice is facing a delicate situation. On

the one hand, it endeavours to maintain its capacity to render judgments as swiftly as possible and

without unnecessary delays. But on the other hand, it has virtually no room for manoeuvre in terms

of manpower. Unlike the number of judges of the General Court, the number of judges of the Court

4 As of 31 October 2018, 694 cases had been brought, that is to say 128 cases less than as of 31 October 2019. It is thus highly

likely that the total number of cases brought by the end of the year largely exceeds the figures of 2018.

5 By Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council, of 16 December 2015, amending

Protocol No 3 on the Statute of the Court of Justice of the European Union ([2015] OJ L341/14).

6 By Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council, of 6 July 2016, on the transfer to the

General Court of jurisdiction at first instance in disputes between the European Union and its servants ([2016] OJ L200/137).


of Justice cannot be increased without a reform of Article 19(2) TEU.7 As regards staff working directly

for the members of the Court of Justice, and more generally for all the services of the institution, there

is also hardly any room for manoeuvre, mostly due to budgetary constraints. In this regard, it should

be noted that the increase in the number of cases has an impact on most services of the institution,

and in particular on the translation service. That is because virtually all the documents in a given case

need to be translated into French, for internal working purposes, and an important number of

documents (those that are served on or notified to third parties) need to be translated into the

remaining official languages.

An efficient way to tackle such a situation is to resort to the procedural tools available to the

Court of Justice, so as to be able to devote only the necessary resources to cases that can be swiftly

dealt with and, consequently, focus on complex or novel cases that require a higher degree of time

and resources. The Court of Justice has been exploring new paths in this regard in recent years. One

of these paths has consisted in proceeding to an internal redistribution of tasks regarding certain

types of procedures and fully exploiting all the resources that are already at the disposal of the Court

of Justice. This relates both to existing procedural resources and to staff resources. Indeed, the

members of the Court of Justice can benefit from the support not only of their direct staff, but also of

different services that can provide legal and procedural assistance to the Court in carrying out its

duties. These services are, for example, the Registry of the Court and the Research and Documentation

Directorate.

As regards appeals brought before the Court of Justice against decisions of the General Court,

the first adjustment of this type was carried out in 2016, when it was decided to fully exploit the

potential of Article 181 of the Rules of Procedure. This was achieved by the setting up of a new method

for the in-house treatment of appeals in certain areas (below, section 2). The second adjustment,

however, required an amendment of the Statute of the CJEU and of the Rules of Procedure, so as to

allow for the creation of a fully-fledged ‘filtering mechanism’, namely the procedure to allow an appeal

to proceed (below, section 3).

7 According to which ‘[t]he Court of Justice shall consist of one judge from each Member State. […] The General Court shall

include at least one judge per Member State.’


2. The Filtering of Appeals Based on Article 181 of the Rules of Procedure

Article 181 of the Rules of Procedure reads as follows:

Where the appeal or cross-appeal is, in whole or in part, manifestly inadmissible or

manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-

Rapporteur and after hearing the Advocate General, decide by reasoned order to

dismiss that appeal or cross-appeal in whole or in part.

In 2016, a new in-house system was put in place to make better use of this provision in certain areas

of law, namely intellectual property, public procurement by the EU institutions, access to documents

and staff cases. The reason why those areas were selected is that they were the ones in which the

proportion of cases decided by reasoned order based on Article 181 of the Rules of Procedure was

higher. Therefore, the Court of Justice proceeded to an internal redistribution of tasks in order to

swiftly identify, at an early stage of the procedure, appeals brought in one of these four areas of law

that can be dismissed as manifestly inadmissible or manifestly unfounded and, consequently, where

the case can be disposed of by reasoned order rather than by judgment.

This new system did not require an amendment of procedural rules, but rather an adjustment

of the internal workflow within the Court of Justice, involving an increased participation of the Advocate

General. This increased participation finds its basis in Article 181 of the Rules of Procedure, according

to which the Court of Justice may decide by reasoned order ‘after hearing the Advocate General.’

Generally, this simply means that before adopting a reasoned order dismissing an appeal as manifestly

inadmissible or manifestly unfounded, the Advocate General is heard in the course of the internal

exchange of views on procedural issues between, on the one hand, the judges of the competent

Chamber and, on the other hand, the Advocate General. However, when it comes to orders based on

Article 181 of the Rules of Procedure that are adopted in accordance with the system that was set up

in 2016, the Advocate General is formally heard. In this context, the formal view of Advocates General

takes the form of a so-called ‘position’, in order to distinguish it from their Opinions.

This is apparent from the text of this type of orders. After the introductory part, these orders

indicate that, on a given date, ‘the Advocate General took the following position’ and go on to

immediately reproduce, in full, that position.8 The position states the reasons according to which, in

8 See, for some recent examples, Case C-293/19 P Et Djili Soy Dzhihangir Ibryam v EUIPO, EU:C:2019:814, para 7, Case C-728/18

P EM Research Organization v EUIPO, EU:C:2019:781, para 4, or Case C-228/19 P ETI Gıda Sanayi ve Ticaret v EUIPO, EU:C:2019:777,

para 5.


the Advocate General’s view, the grounds of appeal are manifestly inadmissible and/or manifestly

unfounded. This reasoning constitutes the (usually sole) basis on which the Court adopts its reasoned

order.

Aside from the increased participation of the Advocate General, the system put in place in

2016 aims at identifying as early as possible appeals in the four abovementioned areas of law that

could be disposed of on the basis of Article 181 of the Rules of Procedure. Indeed, the wording of this

provision states that the Court of Justice may resort to it ‘at any time,’ that is to say even before the

written part of the procedure has closed or even before the appeal application is served on the other

parties to the relevant case before the General Court.9 That is the key feature allowing to fully exploit

the potential of Article 181: making use of it at the earliest possible moment, so that cases can be dealt

with efficiently, swiftly and using only the strictly necessary resources. In that regard, the Research and

Documentation Directorate assists the Court of Justice by carrying out a preliminary analysis of appeals

brought in those four areas of law. That analysis seeks, in particular, to help the Court of Justice identify

at the earliest possible stage of the procedure, those appeals which could potentially be disposed of

by reasoned order. The reason why this preliminary analysis is carried out by the Research and

Documentation Directorate is that it is a service comprised of lawyers coming from all the Member

States, and hence who are able to analyse the appeal irrespective of the language in which it has been

drafted. That implies that the first assessment of the appeal can be carried out quickly, without having

to wait until the translation of the appeal is available. This preliminary analysis is thus carried out on

the sole basis of the decision of the General Court under appeal and the original version of the appeal

itself.

If as a result of that preliminary analysis it appears that the appeal could be dealt with by

reasoned order on the basis of Art 181 of the Rules of Procedure, the case is then immediately brought

to the attention of the Judge-Rapporteur and the Advocate General in charge of the case. The Judge-

Rapporteur and the Advocate General can thus give priority to the examination of the case. If they

both conclude that the appeal is manifestly inadmissible and/or manifestly unfounded, they can trigger

the application of Article 181 at a very early stage of the procedure.

There are a number advantages linked to the early flagging of this type of appeals. For

example, it permits to save time, as the appeal will not need to be subject to the ordinary procedure,

which consists of a written part and, when required, of an oral part. The case can thus be swiftly

9 Naômé C, Appeals Before the Court of Justice of the European Union (OUP 2018), para 11.182.


decided without being subject to the several steps and deadlines of the ordinary procedure. Moreover,

since the appeal will not need to be served on the other parties to the relevant case before the General

Court, this system avoids the need to translate the appeal application (and, if the case were notified,

all documents submitted by the different parties allowed to take part in the procedure) into languages

other than French.10 The French translation is however in any event required for the Judge-Rapporteur

and the Advocate General to make their decision. This system thus avoids unnecessary translations

and redundant work by different services of the Court of Justice, but above all by the Judge-Rapporteur

and the Advocate General.

Coming back to the procedure, once the Judge-Rapporteur and the Advocate General have

expressed their view that the appeal can be disposed of by means of Art 181 of the Rules of Procedure,

the Advocate General drafts her or his position as to why the ground or grounds of appeal can be

dismissed as manifestly inadmissible or manifestly unfounded. On the basis of that position, a three-

judge Chamber will render the reasoned order. As previously indicated, that order systematically starts

by reproducing the position of the Advocate General in its entirety. In a vast majority of cases, the

order will then simply state: ‘For the same reasons as those given by the Advocate General, the appeal

must be dismissed as being [manifestly inadmissible and/or manifestly unfounded].’ This implies that

the Court of Justice can adopt an order without having to elaborate a reasoning other than the one

put forward by the Advocate General in her or his position, which is simply taken up in the order.

It should be noted that this system does not prevent the judges of the competent Chamber from

having to analyse the grounds of appeal and the assessment of those grounds made by the Advocate

General and, as the case may be, add additional ones. That is because the three-judge Chamber

adopting the reasoned order is by no means bound by the position of the Advocate General. It remains

free to indicate that the order is based only on some of the arguments put forward by the Advocate

General or to add additional arguments to those advanced by the Advocate General.11 This is however

not done very often: indeed, a great majority of reasoned orders are solely based on the position of

10 Similarly, and unlike judgments, which are as a matter of principle translated into all official languages, a number of orders

taken by the Court of Justice, among which reasoned orders based on Art 181 of the Rules of Procedure, are only translated

into the language of the case. However, this saving of time and translation resources is not linked to the early flagging of the

case, but simply to the fact that the case is decided by reasoned order.

11 In those cases, the reasoned order, after reproducing the position of the Advocate General, will add the necessary additional

arguments and finish by indicating that ‘For those reasons and for those given by the Advocate General, the appeal must be

dismissed as being [manifestly inadmissible and/or manifestly unfounded]’: see, for example, Case C-538/17 P Murphy v EUIPO,

EU:C:2018:47, para 8; Case C-463/18 P CeramTec v EUIPO, EU:C:2019:18, para 15; Case C-744/18 P Volkswagen v EUIPO,

EU:C:2019:437, para 9; or Case C-795/18 P FCA US v EUIPO, EU:C:2019:525, para 21.


the Advocate General, without adding other arguments or reformulating those of the Advocate

General.

As a final note, it is perhaps worth highlighting that the use of Art 181 of the Rules of Procedure

is not limited to the four areas of law to which the system put in place in 2016 applies. This provision

can indeed be used for appeals brought in any area of law other than intellectual property, public

procurement by the EU institutions, access to documents and staff cases. However, in those cases

there will not be a preliminary analysis and flagging by the Research and Documentation Directorate

and the reasoned order, if applicable, will be adopted following the ordinary mechanism, ie the Court

of Justice will decide after hearing the Advocate General within the internal exchange of views, but

without the latter taking a formal position that can be incorporated into the reasoned order.

3. The New Filtering Mechanism: The Procedure to Allow an Appeal to Proceed

3.1. The New Filtering Mechanism: Legislative Background

On 1 May 2019 came into force a new provision inserted in the Statute of the CJEU, namely Article

58a.12 In parallel, a new chapter 1a was inserted in Title V (‘Appeals against decisions of the General

Court’) of the Rules of Procedure. That chapter, entitled ‘Prior determination as to whether appeals

under Article 58a of the Statute should be allowed to proceed’, consists of two provisions: Articles

170a and 170b.13 All these provisions aim at setting up a procedure whereby the Court of Justice is

required to decide whether certain categories of appeals should be allowed to proceed, which

amounts to the first fully-fledged filtering mechanism available for the Court of Justice.

The creation of this procedure had been envisaged by the Court of Justice for quite some

time.14 Already in 1999, the President of the Court of Justice presented the Council of Justice Ministers

with a number of proposals and ideas on the future of the judicial system of the European Union.

These proposals and ideas had the objective of addressing some problems that the Court of Justice

was facing, namely ‘the increase in the volume of cases, the consequent lengthening of the time

12 See Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council, of 17 April 2019, amending Protocol

No 3 on the Statute of the Court of Justice of the European Union ([2019] OJ L111/1).

13 See the ‘Amendments to the Rules of Procedure of the Court of Justice’, [2019] OJ L111/73.

14 See Naômé (n 9), paras 11.226-11.228.


needed to deal with them and the congestion which may be expected to occur in the translation

service of the institution.’15 One of the ideas suggested was the creation of

a mechanism for filtering appeals to the Court of Justice from decisions of the Court

of First Instance. Such a filtering system could be applied, in particular, to cases which

have already been the subject of an initial review even before being referred to the

Court of First Instance, as in the case of Community trade mark proceedings.16

The reform of the Statute of the CJEU that brought about the adoption of Article 58a was

based precisely on that idea: creating a filtering mechanism for certain categories of appeals in view

of the increasing number of cases brought before the Court.

As to the appeals to which this new procedure applies, the proposal of reform arose from the

observation that a significant number of appeals dismissed as manifestly unfounded or manifestly

inadmissible were brought in cases which had already been considered twice, and had thus already

been subjected to a two-tier review of legality: initially by an independent board of appeal and then by

the General Court.17 The existence of this double review of legality arguably justifies the setting up of

a filtering mechanism that avoids a systematic three-tier model of review. A third review of legality may

thus only be triggered where a specific and serious concern of legality can be identified by the

appellant.

On 26 March 2018, the Court of Justice of the European Union transmitted a request under

the second paragraph of Article 281 TFEU for an amendment of the Statute of the CJEU, which had

four principal components. Besides a proposal for a partial redistribution of competences between

the Court of Justice and the General Court, it proposed the introduction, for certain categories of

appeals, of a procedure whereby the Court of Justice would first determine whether those appeals

were allowed to proceed.18

The Commission was not favourable to making changes to the division of powers between the

Court of Justice and the General Court at that point in time, as that issue would better assessed in the

light of the report on the operation of the General Court that is to be submitted by the CJEU by the

15 Press Release No 36/99, of 28 May 1999, available at <https://curia.europa.eu/en/actu/communiques/cp99/cp9936en.htm>.

16 Ibid.

17 See Recital 4 of Regulation 2019/629.

18 The contents of the request of the CJEU are reproduced in the Commission Opinion of 11 July 2018, COM(2018) 534 final.

https://curia.europa.eu/en/actu/communiques/cp99/cp9936en.htm


end of 2020.19 However, it considered that it was possible to establish a mechanism to limit the

admission of appeals in a number of specific cases, in so far as this change, unlike the other changes

proposed by the Court of Justice, would have no structural impact and would therefore be unlikely to

pre-empt subsequent decisions.20

In view of the opinion of the Commission and of the views expressed by some other

stakeholders, the CJEU amended the proposal and invited the Union legislator to prioritise the

establishment of the procedure to allow appeals to proceed and to postpone the request concerning

the transfer to the General Court of the jurisdiction to adjudicate, at first instance, on certain

categories of infringement proceedings.21 In accordance with this invitation, the reform of the Statute

of the CJEU was approved by the European Parliament on 13 March 2019 and by the Council on 9

April 2019. Regulation 2019/629 was published in the Official Journal on 25 April 2019 and Article 58a

of the Statute of the CJEU came into force on 1 May 2019.22 The accompanying amendments to the

Rules of Procedure, which introduced Articles 170a and 170b, were published and came into force on

the same dates.

3.2. The Scope of the Procedure to Allow an Appeal to Proceed

In its final version, Article 58a of the Statute of the CJEU starts by identifying the categories of appeals

that are subject to the new filtering mechanism. According to the first two paragraphs of this provision:

An appeal brought against a decision of the General Court concerning a decision of

an independent board of appeal of one of the following offices and agencies of the

Union shall not proceed unless the Court of Justice first decides that it should be

allowed to do so:

(a) the European Union Intellectual Property Office;

(b) the Community Plant Variety Office;

(c) the European Chemicals Agency;

19 Pursuant to Article 3(1) of Regulation 2015/2422.

20 Commission Opinion of 11 July 2018, COM(2018) 534 final, point 9.

21 See Recital 5 of Regulation 2019/629.

22 Article 3 of Regulation 2019/629 clarifies that the new procedure set up by Article 58a does not apply to cases which were

already pending before the Court of Justice on 1 May 2019. However, it does apply to appeals lodged on or after that date even

if the decision of the General Court under appeal was delivered before that date: Case C-421/19 P Primed Halberstadt

Medizintechnik v Prim, EU:C:2019:745, paras 8-10.


(d) the European Union Aviation Safety Agency.

The procedure referred to in the first paragraph shall also apply to appeals brought

against decisions of the General Court concerning a decision of an independent board

of appeal, set up after 1 May 2019 within any other office or agency of the Union,

which has to be seised before an action can be brought before the General Court.

Therefore, under Article 58a of the Statute of the CJEU, the procedure applies to appeals

brought against judgments and orders of the General Court concerning decisions of four offices and

agencies of the Union, and in particular of the European Union Intellectual Property Office (EUIPO). A

significant proportion of the workload of the General Court concerns appeals against decisions of the

EUIPO, and consequently appeals against decisions of the General Court in the field of intellectual

property account for a large part of the appeals lodged with the Court of Justice.

Article 58a thus identifies, in its first paragraph, all the existing agencies and bodies of the

Union that are to be considered as having an independent board of appeal and hence falling within

the scope of application of this provision. In its second paragraph, it clarifies that the filtering

procedure should also apply concerning any board of appeal set up after 1 May 2019 and which has

to be seised before an action can be brought before the General Court. This formulation seems to

respond to the concerns expressed by the Commission regarding the initial draft of this provision,

which simply referred to ‘independent administrative bodies’ without clarifying this notion or

identifying the specific bodies that would qualify as such.23 The Commission also suggested that it be

made clear that, in terms of independence, the key feature in this context is functional independence,

and hence proposed mentioning that the procedure concerned bodies ‘whose members are not

bound by any instructions when taking their decisions.’24 This clause was not included in Article 58 of

the Statute of the CJEU, which simply refers to the notion of an ‘independent board of appeal.’

However, it seems clear that functional independence is the decisive criterion to identify whether any

board of appeal established in the future complies with the conditions set up by the second paragraph

of that provision.

23 Commission Opinion of 11 July 2018, COM(2018) 534 final, point 39.

24 Ibid., point 41.


3.3. The Criteria for (Not) Allowing an Appeal to Proceed

The third paragraph of Article 58a of the Statute of the CJEU sets out the criteria according to which

the Court of Justice must determine whether an appeal may or may not be allowed to proceed: ‘An

appeal shall be allowed to proceed, wholly or in part, in accordance with the detailed rules set out in

the Rules of Procedure, where it raises an issue that is significant with respect to the unity, consistency

or development of Union law.’

The notion of an ‘issue that is significant with respect to the unity, consistency or development

of Union law’ is a novel one and will therefore have to be defined by the case-law of the Court. It is

however partially similar to the criteria identified by Article 256(2) TFEU25 for allowing the review of

decisions given by the General Court as a result of appeals lodged against decisions of the now extinct

Civil Service Tribunal.26 According to that provision, the review procedure is an exceptional mechanism

that may be used where there is a serious risk of the unity or consistency of Union law being affected.

Only six cases have been subject to the review procedure,27 of which the last28 two are still pending.

According to Article 62 of the Statute of the CJEU, it is the First Advocate General who must

assess whether there is such a serious risk of the unity or consistency of Union law being affected. If

that is the case, she or he may propose that the Court of Justice review the decision of the General

Court. A specific five-judge Chamber, the so-called ‘reviewing Chamber,’ must then decide, on the basis

of the proposal of the First Advocate General, whether or not the decision should be reviewed. If the

reviewing Chamber agrees with that proposal and considers that the decision should be reviewed, a

25 Which reads as follows: ‘The General Court shall have jurisdiction to hear and determine actions or proceedings brought

against decisions of the specialised courts.

Decisions given by the General Court under this paragraph may exceptionally be subject to review by the Court of Justice, under

the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Union

law being affected.’

The same criteria are also mentioned in Article 256(3) TFEU, which allows granting jurisdiction for preliminary references to the

General Court ‘in specific areas laid down by the Statute’. To this day, this faculty has not been used by the EU legislature.

26 This means that the review procedure, similarly to the procedure set out by Article 58a of the Statute of the CJEU, concerns

cases that have already been considered twice: first by the Civil Service Tribunal and then by the General Court.

27 Cases C-197/09 RX-II Review of M v EMEA; C-334/12 RX-II Review of Arango Jaramillo and Others v BEI; C-579/12 Review of

Commission v Strack; C-417/14 RX-II Review of Missir Mamachi di Lusignano/Commission; C-542/18 RX-II Review of Simpson v Council;

and C-543/18 RX-II Review of HG v Commission.

28 Because with the dissolution of the only specialised court ever created under EU law, the Civil Service Tribunal, review

procedures can no longer be triggered.


judgment on the substance of the case is given by the same Chamber, unless the Court of Justice

decides to assign the case to a Chamber composed of a greater number of judges.29

The Court of Justice has not, in the four review judgments rendered to this day, established a

definition of the notion of ‘a serious risk of the unity or consistency of Union law being affected.’

However, it follows from the case-law of the Court that four non-cumulative assessment criteria

relating to that notion can be identified, as noted by Advocate General Wathelet in his View of 3 March

2015 in case C-417/14 RX-II Review of Missir Mamachi di Lusignano/Commission:30 (i) whether the

judgment of the General Court may constitute a precedent for future cases; (ii) whether the General

Court has departed from the established case-law of the Court of Justice; (iii) whether the errors of the

General Court relate to a concept that does not pertain solely to the law relating to the employment

of European Union officials but is applicable regardless of the matter at issue; and (iv) whether the

rules or principles with which the General Court failed to comply occupy an important position in the

European Union legal order.31

These criteria may arguably serve as a point of departure for the interpretation of Article 58a

of the Statute of the CJEU. However, one should bear in mind that both notions are not identical. If

one looks at the wording of both provisions, it appears that the criteria set out in Article 58a of the

Statute of the CJEU are broader than the criteria for review foreseen in Article 256(2) TFEU. To be sure,

where the latter requires ‘a serious risk of the unity or consistency of Union law being affected,’ the

former applies where the appeal ‘raises an issue that is significant with respect to the unity, consistency

or development of Union law.’ In short, Article 58a covers a broader range of ‘threats’ to EU law,

including its development, which is arguably a broader notion than its unity or consistency. Moreover,

Article 58a does not require proving the existence of a ‘serious risk’ but of an (again arguably broader)

‘issue that is significant.’

Consequently, the actual scope of the test set out by Article 58a of the Statute of the CJEU

when it comes to triggering the procedure to allow an appeal to proceed will have to be assessed in

light of the case-law of the Court of Justice. As of 31 October 2019, 20 reasoned orders have been

29 See also Articles 62a and 62b of the Statute of the CJEU and Articles 191 to 193 and 195 of the Rules of Procedure.

30 ECLI:EU:C:2015:593, paras 54-55. See also Lenaerts K, Maselis I and Gutman K, EU Procedural Law (OUP 2014) para 17.02.

31 In it review judgment in case C-417/14 RX-II Review of Missir Mamachi di Lusignano/Commission, ECLI:EU:C:2015:588, paras 54-

57, the Court based its finding of a risk for the unity of EU law on the fourth criterion identified by Advocate General Wathelet

in his View in the same case. Indeed, the Court held that ‘the rules on the jurisdiction of the courts of the European Union, as

laid down by the FEU Treaty and also by the Statute of the Court of Justice and the Annex thereto, form part of primary law and

are central to the EU legal order. Respect for those rules, beyond the issues involved in being the only jurisdiction for EU civil

service disputes, constitutes a fundamental requirement in that legal order and is crucial in ensuring the unity of EU law.’


rendered: two of these reasoned orders32 dismissed the appeal as inadmissible for lack of compliance

with the formal requirements prescribed by Article 170a(1) of the Rules of Procedure,33 and the

remaining 18 reasoned orders34 have not allowed the appeal to proceed.

It follows from this initial case-law that a request that an appeal be allowed to proceed must,

in any event, set out clearly and in detail the grounds on which the appeal is based, identify with equal

clarity and detail the issue of law raised by each ground of appeal, specify whether that issue is

significant with respect to the unity, consistency or development of EU law and set out the specific

reasons why that issue is significant according to that criterion. As regards, in particular, the grounds

of appeal, the request that an appeal be allowed to proceed must specify the provision of EU law or

the case-law that has been infringed by the judgment under appeal, explain succinctly the nature of

the error of law allegedly committed by the General Court, and indicate to what extent that error had

an effect on the outcome of the judgment under appeal.35

Where the error of law relied on results from an infringement of the case-law, it is not sufficient

to simply invoke that the General Court has departed, in its decision, from the established case-law of

the Court of Justice. Instead, the request that the appeal be allowed to proceed must explain, in a

succinct but clear and precise manner, first, where the alleged contradiction lies, by identifying the

paragraphs of the judgment or order under appeal which the appellant is calling into question as well

as those of the ruling of the Court or the General Court alleged to have been infringed, and secondly,

the concrete reasons why such a contradiction raises an issue that is significant with respect to the

unity, consistency or development of EU law.36

The Court of Justice has also noted that the existence of an issue related to the development

of EU law, as one of the reasons justifying a request that an appeal be allowed to proceed, cannot be

32 Case C-412/19 P Pan v EUIPO, EU:C:2019:616, and Case C-499/19 P Lupu v EUIPO, EU:C:2019:683.

33 Below, section 3.4.

34 Case C-613/19 P Porsche v EUIPO, EU:C:2019:905; Case C-599/19 P Rietze v EUIPO, EU:C:2019:903; Case C-614/19 P Porsche v

EUIPO, EU:C:2019:904; Case C-582/19 P Holzer y Cia v EUIPO, EU:C:2019:891; Case C-577/19 P KID-Systeme v EUIPO,

EU:C:2019:854; Case C-586/19 P L'Oréal v EUIPO, EU:C:2019:845; Case C-587/19 P L'Oréal v EUIPO, EU:C:2019:844; Case C-588/19

P L'Oréal v EUIPO, EU:C:2019:843; Case C-589/19 P L'Oréal v EUIPO, EU:C:2019:842; Case C-590/19 P L'Oréal v EUIPO,

EU:C:2019:841; Case C-460/19 P Stada Arzneimittel v EUIPO, EU:C:2019:803; Case C-461/19 P All Star v EUIPO, EU:C:2019:797;

Case C-426/19 P Hesse v EUIPO, EU:C:2019:778; Case C-421/19 P Primed Halberstadt Medizintechnik v Prim, EU:C:2019:745; Case

C-444/19 P Kiku v CPVO, EU:C:2019:746; Case C-375/19 P Wirecard Technologies v EUIPO, EU:C:2019:714; Case C-369/19 P Herrero

Torres v EUIPO, EU:C:2019:620; and Case C-359/19 P Meblo Trade v EUIPO, EU:C:2019:591.

35 Case C-614/19 P Porsche v EUIPO, EU:C:2019:904, para 17; Case C-613/19 P Porsche v EUIPO, EU:C:2019:905, para 15; Case C-

582/19 P Holzer y Cia v EUIPO, EU:C:2019:891; and Case C-577/19 P KID-Systeme v EUIPO, EU:C:2019:854, para 13.

36 Case C-613/19 P Porsche v EUIPO, EU:C:2019:905, para 15; Case C-599/19 P Rietze v EUIPO, EU:C:2019:903, para 11; and Case

C-586/19 P L'Oréal v EUIPO, EU:C:2019:845, para 16.


justified simply by invoking the absence of case-law of the Court on the matter addressed by the

General Court. The fact that an issue of law has not been examined by the Court of Justice does not

thereby mean that that issue is necessarily one of significance with respect to the development of EU

law. The appellant must hence demonstrate that significance by providing detailed information not

only on the novelty of that issue, but also on the reasons why that issue is significant in relation to the

development of EU law.37

Furthermore, the Court of Justice has also held that the significant issue with respect to the

unity, consistency or development of Union law must arise from the decision of the General Court

under appeal, and not from the decision of the board of appeal that was contested before the General

Court.38

3.4. The Procedural Configuration of the Procedure to Allow an Appeal to Proceed

As previously noted, the third paragraph of Article 58a of the Statute of the CJEU establishes that an

appeal can be allowed to proceed, ‘wholly or in part, in accordance with the detailed rules set out in

the Rules of Procedure.’ The fourth paragraph of that provision indicates that ‘[t]he decision as to

whether the appeal should be allowed to proceed or not shall be reasoned, and it shall be published.’

The detailed procedural arrangements of this filtering mechanism are hence to be found in the Rules

of Procedure.

The Court of Justice, as already noted, has adopted an amendment consisting in the insertion

of a new chapter in its Rules of Procedure, placed immediately after the chapter relating to the ‘Form

and content of the appeal, and form of order sought’ (Articles 167 to 170) and before the chapter

dealing with ‘Responses, replies and rejoinders’ (Articles 171 to 175). This is structurally logic, since the

rules set out in the new chapter, composed of Articles 170a and 170b, establish a new requirement

for the lodging of an appeal, in the absence of which the appeal will not be allowed to proceed and

will not be served on the other parties to the relevant case before the General Court, as required by

Article 171 of the Rules of Procedure.

Article 170a of the Rules of Procedure is entitled ‘Request that the appeal be allowed to

proceed.’ Pursuant to paragraph 1 thereof, the appellant is obliged to annex to the appeal, as a

separate document, a request that the appeal be allowed to proceed. In that request, the appellant

37 Case C-577/19 P KID-Systeme v EUIPO, EU:C:2019:854, para 18, and Case C-461/19 P All Star v EUIPO, EU:C:2019:797, para 16.

38 Case C-599/19 P Rietze v EUIPO, EU:C:2019:903, para 15.


needs to state the issue raised by the appeal that is significant with respect to the unity, consistency

or development of European Union law and containing all the information necessary to enable the

Court of Justice to rule on that request. If there is no such request, the Vice-President of the Court

shall declare the appeal inadmissible.39

It follows from this provision that the filing of a separate request is an essential requirement

as to the admissibility of the appeal. That first control of formal admissibility is carried out by the Vice-

President of the Court, in line with the specific role of overview and harmonization that the Vice-

President has been charged with in the context of the procedure to allow appeals to proceed.

Paragraph 2 of Article 170a concerns the formal requirements of the request. On the one

hand, it cannot exceed seven pages. On the other hand, it must comply with all the formal

requirements contained in the Practice Directions to parties concerning cases brought before the

Court.40 Paragraph 3 of the same provision establishes that the failure to comply with the formal

requirements set out in paragraph 2 can be remedied. In such a case, the Registrar is charged with

the task of prescribing a reasonable time-limit within which the appellant is to put the request in order.

If the appellant fails to do so, the Vice-President of the Court must decide, on a proposal from the

Judge-Rapporteur and after hearing the Advocate General, whether the non-compliance with that

formal requirement renders the appeal formally inadmissible.

Article 170a thus essentially deals with the formal requirements that the request that the

appeal be allowed to proceed must comply with. Regarding the requirements as to the substance of

that request, Article 170a states that the latter must, first, set out the issue raised by the appeal that

is significant with respect to the unity, consistency or development of Union law and, second, contain

all the information necessary to enable the Court of Justice to rule on the request. In that respect, it

seems clear, especially having regard to the first reasoned orders adopted by the Court of Justice,41

that the burden of proving that the appeal raises an issue that is significant with respect to the unity,

consistency or development of EU law rests exclusively with the appellant. It seems that the Court, in

particular the Judge-Rapporteur and the Advocate General, will only assess the issues set out by the

39 This declaration of inadmissibility should be automatic. However, during the first months of application of the new procedure,

the Court of Justice has preferred to adopt a lenient approach and allow appellants to put their appeals in order by submitting

the request prescribed by Article 170a(1) of the Rules of Procedure. See, in this regard, Case C-412/19 P Pan v EUIPO,

EU:C:2019:616 and Case C-499/19 P Lupu v EUIPO, EU:C:2019:683.

40 [2014] OJ L31/1.

41 See Case C-599/19 P Rietze v EUIPO, EU:C:2019:903, para 6; Case C-613/19 P Porsche v EUIPO, EU:C:2019:905, para 13; Case

C-461/19 P All Star v EUIPO, EU:C:2019:797, para 10; or Case C-444/19 P Kiku v CPVO, EU:C:2019:746, para 11.


appellant in the request accompanying the appeal. One can however wonder what would happen if

the Court considered that an appeal (and hence, indirectly, the decision of the General Court under

appeal) raises such an issue but the appellant failed to identify that issue in the request referred to in

Article 170a. In view of the rationale behind the new mechanism, it seems that a formalist approach

should prevail and, thus, that such an appeal should not be allowed to proceed. The case-law of the

Court will confirm whether that is the case, or whether especially significant risks, in particular

regarding the unity or consistency of EU law, may justify (of course within the limits of the pleas and

arguments raised by the appellant) a more proactive role by the Court.

The decision on the request is taken, pursuant to Article 170b(2) of the Rules of Procedure, by

a three-judge Chamber specially established for each appeal (referred to as the ‘Chamber determining

whether appeals may proceed’). That Chamber is always presided over by the Vice-President of the

Court, in order to guarantee a harmonised and coherent approach regarding all appeals falling within

the scope of application of Article 58a of the Statute of the CJEU. The other two members of the

Chamber are the Judge-Rapporteur and the President of the Chamber of three Judges to which the

Judge-Rapporteur is attached on the date on which the request is made. The decision is taken on a

proposal from the Judge-Rapporteur and after hearing the Advocate General.

Article 170b(2) of the Rules of Procedure establishes that the decision shall take the form of a

reasoned order. This is linked to the fourth paragraph of Article 58a of the Statute of the CJEU, that

further specifies that the decision must be published. In terms of legal certainty, it is unquestionably

important that such decisions be published. Indeed, the guidance of the Court will be of paramount

importance for appellants when drafting their requests in accordance with Article 170a. Therefore, in

this respect, it is rather unfortunate that reasoned orders are normally not available in all official

languages, but only in French and in the language of the case, where that language is not French. In

view of the novel character of this filtering mechanism and of the rather drastic effects of a decision

not allowing an appeal to proceed, it seems important that some decisions of the Chamber

determining whether appeals may proceed be made available in all official languages. This would most

certainly be the case as regards decisions allowing an appeal to proceed, that may in all likelihood

provide guidance for future appellants. To date, two reasoned orders that have not allowed the appeal

to proceed have been translated into an important number of other official languages,42 thus helping

42 Case C-613/19 P Porsche v EUIPO, EU:C:2019:905 and Case C-614/19 P Porsche v EUIPO, EU:C:2019:904.


stakeholders to have a facilitated access to the initial case-law of the Court of Justice regarding this

new mechanism.

Paragraph 4 of Article 170b of the Rules of Procedure determines that where the Court of

Justice decides that the appeal should be allowed to proceed, wholly or in part, the proceedings shall

continue in accordance with the ordinary procedure for appeals set out by the Rules of Procedure. It

is also noted that the reasoned order adopted by the Court must be served, together with the appeal,

on the parties to the relevant case before the General Court and should specify, where the appeal is

to be allowed to proceed in part, the pleas in law or parts of the appeal to which the response must

relate.

3.5. Concluding Remarks

The mechanism put in place with the adoption of Article 58a of the Statute of the CJEU and Articles

170a and 170b of the Rules of Procedure has arguably brought about what can be seen almost as a

revolution in the field of appeals in certain areas of law. Indeed, after 6 months of application of this

procedure, no case has yet been allowed to proceed. The mechanism is certainly acting as a stringent

filter.

The rigorous application, by the Court of Justice, of the new provisions surely accounts in part

for this result. However, the lack of familiarity of practitioners with this new mechanism has in all

likelihood also had an impact on their (so far) lack of success in arguing why their appeal meets the

requirements set out by these provisions. The initial case-law of the Court of Justice on this new area

of law will most likely provide a valuable guidance for future appellants, so that they can adjust their

requests to the new conditions established by the Union legislature. The publication of some of the

reasoned orders adopted pursuant to these new provisions in all official languages is thus a sensible

decision, in the interest of legal certainty. The coming months will offer new opportunities, for all

stakeholders, to take stock of this novel area of the case-law of the Court of Justice.


Chapter 3 Standing Requirements of Private Parties in

Actions for Annulment Concerning Regulatory Acts: The State of Affairs 10 Years After the

Entry into Force of the Lisbon Treaty

Jonathan Wildemeersch

1. Introduction

The citizen’s access to judicial reviews is one of the essential components of the rule of law (Etat de

droit). The conditions that determine the admissibility of actions for assessment of validity are,

therefore, far from insignificant. From the beginning, the Treaty of Rome allowed ‘private parties’ –

whether natural or legal persons – to bring an action for annulment before Union judge. However, the

conditions relating to the standing of these applicants (locus standi) were interpreted in a restrictive

manner in the early years by what is now the Court of Justice of the European Union.1

To speak only of law that is in force at the time of writing, Article 263(4) of the Treaty on the

Functioning of the European Union (the ‘TFEU’) authorises any natural or legal person to bring

proceedings ‘against an act addressed to that person or which is of direct and individual concern to

them, and against a regulatory act which is of direct concern to them and does not entail implementing

measures’.2 Only this third possibility is ‘new’, in that it was added to the first two when the Treaties

were modified by the Lisbon Treaty. As the subject of the book in which this contribution is written is

changes in EU procedural law, I will deal only with this third and final way of gaining access to the Union

judge.

PhD (European Law). The author is Professor at the University of Liege (Belgium), he is also référendaire at the European Court

of Justice. The author’s comments are strictly personal and do not bind the institutions in which he works. He can be contacted

at [email protected]

1 The Court of Justice of the European Union is one of the seven institutions of the European Union. It includes the Court of

Justice and the General Court (art 19(1) TUE). For the first of them, I will use alternatively ‘Court’ or ‘Court of Justice’.

2 Emphasis added.


The last part of the final sentence of Article 263(4) TFEU – hereinafter referred to as ‘Article

263(4) in fine’ – requires the fulfilment of three conditions for the action brought by a natural or legal

person to be admissible: the requirement of a regulatory act, an act which is of direct concern to him,

and the absence of an implementing measure. However, it should not be forgotten that, apart from

these conditions specific to the locus standi of the applicant, they will also have to establish their

‘interest in bringing proceedings’ or, in other words, their interest in obtaining the annulment of the

act undertaken.

Ten years after the entry into force of the Lisbon Treaty, I believe that it is evident that it is still

only in exceptional cases that private parties reach the courtroom of the Union judge. In this respect,

it is not certain that the slight opening provided by the Scuola Elementare Maria Montessori v

Commission judgment3 in November 2018 – hereinafter referred to as ‘Montessori’ – will not be limited,

if not to the particular relevant facts, then at least to the particular situation of the competitor of

beneficiaries of State aid compatible with Union law.

2. Interest in Bringing Proceedings

Although it is often forgotten, the applicant must prove their interest in bringing proceedings.

According to the Court, the ‘interest in bringing proceedings’ is defined as the interest in having the

contested act annulled.4 In more explicit terms, the annulment must be of itself capable of having legal

consequences; 5 the action must be likely, if successful, to procure an advantage for the applicant.6 In

addition, the interest in bringing proceedings must be vested and current.7 It may not concern a future

3 ECJ, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, C-622/16 P to C-624/16 P,

ECLI:EU:C:2018:873.

4 See, to that effect, ECJ, judgment of 17 September 2015, Mory and Others v Commission, C-33/14 P, ECLI:EU:C:2015:609,

paragraph 55.

5 See, to that effect, ECJ, judgments of 24 June 1986, AKZO Chemie v Commission, 53/85, ECLI:EU:C:1986:256, paragraph 21; of

17 September 2015, Mory and Others v Commission, C-33/14 P, ECLI:EU:C:2015:609, paragraph 55 and of 7 November 2018,

BCP Lux 2 and Others v Commission, C-544/17 P, ECLI:EU:C:2018:880, paragraph 28.

6 See, to that effect, judgments of 13 July 2000, Parliament v Richard, C-174/99 P, ECLI:EU:C:2000:412, paragraph 33; of 17

September 2015, Mory and Others v Commission, C-33/14 P, ECLI:EU:C:2015:609, paragraph 55 and of 7 November 2018, BCP

Lux 2 and Others v Commission, C-544/17 P, ECLI:EU:C:2018:880, paragraph 28.

7 See, for example, ECJ, judgment of 7 November 2018, BCP Lux 2 and Others v Commission, C-544/17 P, ECLI:EU:C:2018:880,

paragraph 29.


and hypothetical situation.8 That interest must, in the light of the purpose of the action, exist at the

stage of lodging the action and continue until the final decision.9

The condition relating to the interest in bringing proceedings cannot be confused with those

relating to locus standi, namely the requirement to be directly and individually concerned be the

disputed act laid down in Article 263(4) TFEU.10 If the Court itself may have blurred the distinction by

ruling that ‘the requirement that the binding legal effects of the measure being challenged must be

capable of affecting the interests of the applicant by bringing about a distinct change in his legal

position [– namely the interest in bringing proceedings – ] overlaps with the conditions laid down in

the fourth paragraph of Article 263 TFEU’ 11, it has since clarified the situation. In Mory and Others v

Commission (C-33/14 P), the Court ruled that ‘an interest in bringing proceedings and locus standi are

distinct conditions for admissibility which must be satisfied by a natural or legal person cumulatively in

order to be admissible to bring an action for annulment under the fourth paragraph of Article 263

TFEU’.12 The distinction suggested by R. Barents is relevant: the interest in bringing proceedings

determines the right to bring an action for annulment, the conditions relating to the direct and

individual effects restrict it.13

The difference between the two conditions is reflected in their examination. While standing

represents the legal relationship between the applicant and the contested act, the interest in bringing

proceedings arises from a factual examination.14 This interest cannot therefore be assessed in

abstracto, but in the light of the applicant’s personal situation: what would be useful effect of annulling


paragraph 56.

9 Ibid, paragraph 57.


paragraphs 59 and 62. On the distinction between ‘interest in bringing proceedings’ and locus stand, see P. CASSIA, L’accès des

personnes physiques ou morales au juge de la légalité des actes communautaires (Paris, Dalloz, 2002, n° 506 to n° 525). For a

more nuanced argument that the interest in bringing proceedings is not a condition separate from that imposed by the fourth

paragraph of Article 263 TFEU (ex Article 230(4) EC), “[c]elle-ci n’[étant] en fait qu’une définition et qu’une précision de celle-là”,

see M. CANEDO, ‘L’intérêt à agir dans le recours en annulation du droit communautaire’ [2000], Revue trimestrielle de droit

européen, 451.

11 ECJ, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C-463/10 P, ECLI:EU:C:2011:656, paragraph.

Emphasis added.

12 Paragraph 62. Emphasis added.

13 R. BARENTS, Remedies and Procedures before the EU Courts (European Monograph Series, vol 97, Wolters Kluwer, 2016, n°

6.02).

14 See, to that effect, P. CASSIA, L’accès des personnes physiques ou morales au juge de la légalité des actes communautaires

(Paris, Dalloz, 2002, n° 522 and n° 524).


the act for that person? Thus, the possibility of an action for damages suffices to justify such an interest

in bringing proceedings, in so far as that interest is not hypothetical. The interest in bringing

proceedings for annulment could even arise from any action before the national courts in the context

of which the possible annulment of the contested act before the EU Courts is likely to benefit the

applicant.15 In that regard, the Court recently pointed out that, given the

inextricable links’ between the contested decision before the General Court and the

decision involved in the litigation before the national court, it is not ‘because the

subject matter of the ... action brought before the national court [is] not the same as

that of the action brought before the General Court, [that] a possible annulment of

the contested decision could not in any way affect the [national] courts’ assessment

of the action brought before them.16

The condition to have an interest in bringing proceedings ‘suppose, plus simplement, que le requérant

établisse que l’acte mis en cause affecte de façon suffisamment directe et certaine sa situation

juridique ou matérielle de telle sorte que l’arrêt est susceptible de lui procurer une satisfaction effective,

fût-elle purement morale’.17

Until now, the condition of the interest in bringing proceedings has played only a limited role

in the admissibility of actions for annulment.18 However, it may allow a relaxation of the conditions

relating to locus standi in that it alone constitutes an adequate brake on any popular actions (actiones

popularis). Indeed, as the Belgian Constitutional Court pointed out, the interest in bringing proceedings

for annulment must be distinguished from the interest that everyone has to see that legality is

respected, because ‘[a]dmettre un tel intérêt pour agir reviendrait à admettre le recours populaire, ce

15 See, to that effect, judgments of 17 September 2015, Mory and Others v Commission, C-33/14 P, ECLI:EU:C:2015:609,

paragraphs 79 and 81 and of 7 November 2018, BCP Lux 2 and Others v Commission, C-544/17 P, ECLI:EU:C:2018:880, paragraphs

44 and 45.

16 ECJ, judgment of 7 November 2018, BCP Lux 2 and Others v Commission, C-544/17 P, ECLI:EU:C:2018:880, paragraph 55. In

that case, the contested act before the national court was a decision of the Portuguese authorities to put the bank Banco Espírito

Santo into resolution and the creation, at the same time, of a temporary credit institution (a ‘Bridge Bank’), to which the sound

business activities of Banco Espírito Santo SA were transferred. The act contested before the General Court was precisely the

decision of the Commission under which the injection of EUR 4 899 million capital by the Portuguese authorities into that ‘Bridge

Bank’ constituted State aid that was compatible with the internal market under Article 107(3)(b) TFEU.

17 S. VAN RAEPENBUSCH, Les recours des particuliers devant le juge de l’Union européenne (Brussels, Bruylant, 2012, 40).

Emphasis added.

18 See, to that effect, S. VAN RAEPENBUSCH, ibid, 39.


que le Constituant n’a pas voulu’19. This reflection can be applied, mutatis mutandis, to constitutional

litigation under European Union law. Indeed, although the interest in bringing proceedings is not

expressly mentioned by the Treaties, the Court of Justice ruled that it was ‘an essential and

fundamental prerequisite for any legal proceedings’.20 Even if, in principle, an applicant has to prove

their interest in bringing proceedings21, it must be noted that, as an absolute bar to proceeding, the

European Union Courts may consider the question at any time, even of their own motion22.

This restriction to access to the courts, and therefore to the right to an effective remedy,

seems to me legitimate. Indeed, it is intended only to ensure that the judge does not receive requests

for legal opinions on general or hypothetical matters.23 It is not incongruous to see the notion of

interest in bringing proceedings as an essential component of the sound administration of justice.24

In this context, the need to demonstrate an interest in bringing proceedings for annulment is, logically,

indifferent to the contested act (legislative or not). Consequently, even if the conditions relating to the

standing should be interpreted more broadly, the interest in bringing proceedings would be likely, in

itself, to adequately curb the congestion of the Union’s courts. According to Fr. Berrod, it is even ‘la

fonction de l’intérêt à agir [que] de filtrer les recours, de manière à éviter l’encombrement inutile du

prétoire’.25 It is rather paradoxical to note, in this respect, that there was a time when the Court of

Justice itself stated that ‘acts of primary legislation must escape neither the control of Parliament nor

the effective control to the courts at the suit of private parties’, and proposed, in that context, that all

19 Belgian Constitutional Court (at this time, Court of Arbitration), judgment n°8/90 of 7 February 1990, Scholzen, paragraph

B.6.2. in fine.

20 ECJ, judgment of 17 September 2015, Mory and Others v Commission, C-33/14 P, ECLI:EU:C:2015:609, paragraph 58. It is

generally accepted that this principle was first affirmed by the Court in an order of 31 July 1989, S. / Commission, C-206/89 R,

ECLI:EU:C:1989:333, paragraph 8.

21 ECJ, judgment of 7 November 2018, BCP Lux 2 and Others v Commission, C-544/17 P, ECLI:EU:C:2018:880, paragraph 33.

22 For an example, see GC, judgment of 18 March 2009, Shanghai Excell M&E Enterprise et Shanghai Adeptech Precision v Council,

T-299/05, ECLI:EU:T:2009:72, paragraph 42.

23 S. VAN RAEPENBUSCH, ‘L’intérêt à agir dans le contentieux communautaire’, in Mélanges en hommage à Georges Vandersanden.

Promenade au sein du droit européen (Brussels, Bruylant, 2008, 381).

24 See, to that effect, P. CASSIA, L’accès des personnes physiques ou morales au juge de la légalité des actes communautaires

(Paris, Dalloz, 2002, n° 513).

25 Fr. BERROD, La systématique des voies de droit communautaires (Paris, Dalloz, 2003, n° 792). See also the conclusion of M.

Canedo (M. CANEDO, ‘L’intérêt à agir dans le recours en annulation du droit communautaire’ [2000] Revue trimestrielle de droit

européen 451).


‘acts of subordinate legislation [namely, in the French version, “les actes communautaires de droit

dérivé”] are open to challenge by private parties having a direct interest’. 26

Unfortunately, as we will now see, forty years later this it is not the way followed by the Court

in its interpretation of Article 263(4), in fine, TFEU.

3. The Three Conditions for Bringing an Action for Annulment on the Basis of Article

263(4), in fine, TFEU

Article 263(4), in fine, TFEU imposes three conditions for bringing an action for annulment before the

General Court as a private party: the contested act must be a regulatory act, it must directly concern

the applicant, and it does not require an implementing measure.

3.1. A Regulatory Act

The first of the three conditions provided for in Article 263(4), in fine, TFUE restrains the acts that can

be challenged on this basis. It can only be a ‘regulatory act’. Surprisingly, although the notion of

‘regulatory act’ was new in the lexicon of the Treaties, the Lisbon treaty did not define it. It was

nevertheless the first to be interpreted by the Union’s courts. Thus, in its judgment in Inuit, the Court

upheld the decision of the General Court and, consequently, the interpretation according to which the

regulatory act is a non-legislative act of general application.27 This choice is debatable.28 However, that

limitation of the notion is now acquired, as recently expressly confirmed in Montessori.29

26 Suggestions of the Court of Justice on European Union, Bull. E.C., suppl. 9-75, 17 to 21, esp. 18.

27 GC, order of 6 September 2011, Inuit and Others v Parliament and Councill, T-18/10, ECLI:EU:T:2011:419 and ECJ, judgment of

3 October 2013, Inuit Tapiriit Kanatami and Others v. Parliament and Council, C-583/11 P, ECLI:EU:C:2013:625. On the order of

the General Court, see M. WATHELET and J. WILDEMEERSCH, ‘Recours en annulation: une première interprétation restrictive du

droit d’action élargi des particuliers ?’ [2012] Journal de droit européen 75. Among many comments on Inuit, A. ARNULL, ‘Arrêt

“Inuit”: la recevabilité des recours en annulation introduits par des particuliers contre des actes réglementaires’ [2014] Journal

de droit européen 14; Fr.-V. GUIOT, ‘L’affaire Inuit : une illustration des interactions entre recours individuel et équilibre

institutionnel dans l’interprétation de l’article 263 du TFUE’ [2014] Revue trimestrielle de droit européen 389; A. KORNEZOV,

‘Shaping the New Architecture of the EU System of Judicial Remedies: Comment on Inuit’ [2014], European Law Review 251 ; and

P.-A. VAN MALLEGHEM and N. BAETEN, ‘Before the law stands a gatekeeper - Or, what is a “regulatory act” in Article 263(4) TFEU

?’ [2014] Common Market Law Review 1187.

28 See, for example, the point of view of Advocate General Wathelet in his Opinions delivered on 29 May 2013, Stichting Woonpunt

and Others v Commission, C-132/12 P, ECLI:EU:C:2013:335 and Stichting Woolinie and Others v Commission, C-133/12 P,

ECLI:EU:C:2013:336. For an exhaustive examination of that question, see J. WILDEMEERSCH, Contentieux de la légalité des actes

de l’Union européenne. Le mythe du droit à un recours effectif (Brussels, Bruylant, Coll. Droit de l’Union européenne-Thèses,

2019, 240 to 264).


ECLI:EU:C:2018:873.


The qualification of the regulatory act within the meaning of the fourth paragraph of Article

263 TFEU is therefore fairly straightforward. First of all, it must be determined whether the disputed

act is a legislative act. To do this, it is sufficient to identify the procedure that led to its adoption. This

approach is not entirely satisfactory30 but is supported by the definition of the legislative act in Article

289(3) TFEU.31 To my knowledge, the Court has never ruled on the matter. However, it is unlikely to

question this methodology when the Court has, in another context, confirmed that ‘a legal act [could]

be classified as a legislative act of the European Union only if it ha[d] been adopted on the basis of a

provision of the Treaties which expressly refers either to the ordinary legislative procedure or to the

special legislative procedure’.32 Secondly, if the act in question has not been adopted by a legislative

procedure, it is still necessary to ensure that it is nevertheless of general application. Here too, the

Montessori case gives the Court the opportunity to confirm the settled case-law that an act of general

application is an act which ‘applies to objectively determined situations and produces legal effects with

regard to categories of persons envisaged in a general and abstract manner’.33

This judgment is also significant because it rejects, in a particularly clear manner, the idea put

forward by the Commission that there could be a sub-category of non-legislative acts of general

application which do not fall within the scope of Article 263(4), in fine, TFEU. The Court rejects any error

in law by the General Court in this regard and states, on the contrary, that ‘the concept of ‘regulatory

act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU extends to all

non-legislative acts of general application’.34

This conclusion was, however, logical since the Court had already ruled in the field of State aid

(such as in Montessori) under former Article 230 EC (current Article 263 TFEU) that the Commission’s

decisions that allow or prohibit a national scheme are of general application. Thus, the Court stated

30 Indeed, this definition excludes from the scope of Article 263(4), in fine, TFEU legislative acts in the material sense of the term

which do not necessarily have to be adopted at the end of a legislative procedure (ordinary or special). To that regard, see M.-

E. BARTOLONI, ‘La nozione di ‘atto regolamentare’ nell’interpretazione offerta dalla Corte di giustizia dell’Unione europea e i suoi

riflessi sul ricorso individuale di invalidità’ [2014] 8 Diritti umani e diritto internazionale, 249, esp. 251; A. BOUVERESSE, ‘De

l’incidence des considérations organiques dans le contentieux de la légalité’ [2015] Revue trimestrielle de droit européen 63.

31 Under Article 289(3) TFEU: “Legal acts adopted by legislative procedure shall constitute legislative acts”.

32 ECJ, judgment of 6 September 2017, Slovakia and Hungary v. Council, C-643/15 and C-647/15, ECLI:EU:C:2017:631, paragraph

62.



34 Montessori, paragraph 28. Emphasis added.


that ‘that case-law may be applied to the third limb of the fourth paragraph of Article 263 TFEU’.35

Indeed, ‘the issue of whether or not an act is of general application concerns an objective characteristic

of the act which cannot vary according to the different limbs of the fourth paragraph of Article 263

TFEU’.36 As stressed by Advocate General Wathelet, a contrary interpretation would lead to an

inconsistent solution since

the issue of whether Commission decisions on State aid are of individual or general

application would be likely to vary — vis-à-vis one and the same applicant! —

depending on whether the admissibility of an action for annulment is assessed on the

basis of the second or third limb of the fourth paragraph of Article 263 TFEU. In the

latter case, the Commission decision would be an act of individual application

whereas, in the context of the second limb — which could always be relied on in the

alternative by an applicant — the same decision would have general application.37

Furthermore, by being more restrictive, this other interpretation would be contrary to the objective at

the origin of Article 263(4), in fine, TFEU, which was to relax the conditions of admissibility for

annulment actions brought by natural or legal persons.38

To conclude on the concept of regulatory act, it may be important to note that the fact that a

Commission decision on an aid scheme is accompanied by a recovery order does not preclude that

decision as being regarded as of general application – although such an order concerns individually

the beneficiaries of the aid scheme concerned – provided that the decision on the aid scheme as such

applies to objectively determined situations and produces legal effects for categories of persons

considered in a general and abstract manner. 39

3.2. Direct Concern

The second condition required by Article 263(4), in fine, TFEU is identical to one of the two

requirements prior to the Lisbon Treaty: the contested act must be of direct concern for the applicant.

The definition of that condition is constant and identical in the two hypotheses envisaged in Article

35 Montessori, paragraph 32.

36 Idem.

37 Opinion delivered by Advocate General Wahtelet, 11 April 2018, Scuola Elementare Maria Montessori v Commission, C-622/16

P to C-624/16 P, ECLI:EU:C:2018:229, point 48.

38 See, to that effect, Montessori, paragraph 32 and Opinion of Advocate General Wahtelet, point 49.

39 See, to that effect, Montessori, paragraphs 34 to 36.


263(4) TFUE. The condition that a natural or legal person must be directly concerned by the act against

which the action is brought

requires two cumulative criteria to be met, namely, first, the contested measure must

directly affect the legal situation of the individual and, second, it must leave no

discretion to its addressees who are entrusted with the task of implementing it, such

implementation being purely automatic and resulting from the EU rules alone without

the application of other intermediate rules. 40

Stable in its application, that condition has recently undergone a strange evolution, the origin of which

can be found in the T & L Sugars and Anicav cases (hereinafter referred to as ‘T & L Sugars’ and ‘Anicav’).41

In T & L Sugars and Sidul Açúcares v Commission, the appellants were undertakings engaged in

the refining of imported cane sugar. In a very restrictive appreciation of the direct concern and in

contrast to its advocate general – according to whom ‘it [was] not disputed that, as refiners of

imported cane sugar, the appellants ha[d] an interest in bringing proceedings for the annulment of

those regulations and [were] directly concerned by them’42 –, the Court stated that the contested

measures were not of direct concern to them because those measures applied only to European

sugar producers. In Anicav, the appellants were industrial processors of fruit. However, the contested

provisions applied only to fruit and vegetables processed by organisations of producers. In those

circumstances, the Court held that the mere fact that the appellants were placed at a competitive

disadvantage on account of the contested provisions was not sufficient for the view to be taken that

their legal position was affected.

On the ground of that case-law, the Commission pleaded in Montessori that the General Court

erred in law by inferring the direct concern of the applicants on the sole basis that they might

potentially compete with the beneficiaries of the national measures in question. For the Commission,

it was therefore not sufficient to show that the contested measure had a ‘theoretical and potential’

effect on the market of a competitor of the beneficiary of the aid at issue. On the contrary, the


ECLI:EU:C:2018:873, paragraph 42 and case-law cited.

41 ECJ, judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284) and of 17 September

2015, Confederazione Cooperative Italiane and Others v Anicav and Others (C‑455/13 P, C‑457/13 P and C‑460/13 P, EU:C:2015:616).

42 Opinion delivered by Advocate General Cruz Villalón, 14 October 2014, T & L Sugars and Sidul Açúcares v Commission, C‑456/13

P, EU:C:2015:284, ECLI:EU:C:2014:2283, point 51.


applicants had to demonstrate that the decision in question had a ‘concrete and tangible’ effect on

their situation.43

Advocate General Wathelet considered that argument unfounded, the requirement of a

‘concrete and tangible’ affect leading to overly factual assessment being confused with the individual

affect which is precisely not required by Article 263(4), in fine, TFEU.44 In his view, the particularly

stringent applications of the condition relating to direct concern applied in T & L Sugars and Anicav

should be limited to the specific circumstances of those cases. Indeed, if

it may seem artificial to consider that the appellants in T & L Sugars and Sidul

Açúcares v Commission and Confederazione Cooperative Italiane and Others v Anicav and

Others were not present on the same markets as the ‘producers’ covered by the

contested provisions, the fact remains that the contested regulations directly

produced their effects only on the legal situation of those producers, which the

appellants were not. Only those producers fell within the scope of the contested

measures.45

On the other hand, in the context of an action against a Commission decision on State aid, Advocate

General Wathelet saw

no reason to declare invalid the case-law of the General Court – developed on the

basis of the judgments of the Court of 17 January 1985, Piraiki-Patraiki and

Others v Commission (11/82, EU:C:1985:18, paragraphs 6 to 10), and of 28 January

1986, Cofaz and Others v Commission (169/84, EU:C:1986:42, paragraph 30) – to the

effect that a competitor of the beneficiary of aid is directly concerned by a Commission

authorisation decision where the aid has already been granted or where the Member

State’s intention to provide the aid is not in doubt.46

On the contrary, the Court found that the argument was well founded. It held that the direct concern

of a private party challenging a decision of the Commission in relation to national measures in the field

43 See judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, C-622/16 P to C-624/16 P,

ECLI:EU:C:2018:873, paragraph 40 and Opinion of Advocate General Wathelet in that case, point 53.

44 See, to that effect, Opinion delivered by Advocate General Wahtelet, 11 April 2018, Scuola Elementare Maria Montessori v

Commission, C-622/16 P to C-624/16 P, ECLI:EU:C:2018:229, points 53 to 56.

45 Opinion of Advocate General Wathelet, point 61.

46 Opinion of Advocate General Wathelet, point 62.


of State aid, ‘cannot be deduced from the mere potential existence of a competitive relationship, such

as that found in the judgments under appeal.’47 However, I must admit that I find this nuance subtle

since the Court does not seem to share the Commission’s willingness to see the applicants

demonstrate, at the stage of the assessment of the admissibility of the action for annulment, the

‘concrete and tangible’ effects on the contested decision.

On the basis of old case-law – namely the sole Cofaz judgment of 28 January 1986,48 also cited

by Advocate General Wathelet in support of his Opinion – the Court sees the possibility of a direct

effect on the applicants’ legal situation in the infringement which the Commission’s decision has on

their right not to be subject to competition distorted by the national measures concerned. 49 After only

finding that the applicants were active on the same service market and on the same geographical

market as the beneficiaries of the national measures which are the subject of the Commission

decision, the Court considered that they

have adequately explained the reasons why the decision at issue was liable to place

them in an unfavorable competitive position and, consequently, that that decision

directly affected their legal situation, in particular their right not to be subject in that

market to competition distorted by the measures in question.50

Although the Court found that the General Court erred in law on that issue, nowhere in the judgment

do I see that finding something other than the eventual consequences of a potential existence of

competitive relationship. In any case, with the authorisation of what I would qualify as a ‘superficial

analysis’, the Court removes the confusion suggested by the Commission: it maintains the difference

between, on the one hand, the direct concern – which concerns the applicant’s legal situation – and,

on the other hand, the individual concern (not required by Article 263(4), in fine, TFEU) – which

concerns the applicant’s factual situation.51 As L. Carmosino pertinently wrote in the conclusion of his

comments on Montessori, ‘the most thorny aspect of th[is] criteria [of direct concern] is the degree of

factual analysis required to determine that a decision will affect the legal position of the claimant.

47 Judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, C-622/16 P to C-624/16 P,

ECLI:EU:C:2018:873, paragraph 46. Emphasis added.

48 ECJ, judgment of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 30.



50 Judgment Montessori, paragraph 50.

51 On that « confusion », see Opinion of Advocate General Wathelet, points 54 à 58.


Indeed, it seems like the more factual an analysis gets, the more it becomes an assessment of

individual concerns’.52

Moreover, by using, on the one hand, ‘the right not to be subject to competition distorted’ and,

by limiting, on the other hand, the T & L Sugars and Anicav judgments to Common Agricultural Policy,

53 the Court seemed to open the way to a facilitated recognition of the direct effect in other fields of

EU law.54. In a previous comment on Montessori, I had in particular thought about anti-dumping

measures.55 Indeed, to quote the terms used by the Court in relation to the rules on State aid, the

objective of these measures is also ‘precisely to preserve competition’.56 The Court has, however,

already rejected that hypothesis. Indeed, the Court recently confirmed, on the basis of two old

judgments from the 1980s,57 that measures imposing anti-dumping duties are liable to be of direct

and individual concern to producers and exporters of the product at issue who are alleged to be

involved in dumping on the basis of data concerning their commercial activities.58 But, on the other

hand, while the judgments previously cited did not address that issue, the Court also states that ‘it is

apparent from that case-law that an undertaking cannot be considered directly concerned by a

regulation imposing an anti-dumping duty solely on account of its capacity as a producer of the

product subject to the duty, since the capacity of exporter is essential in that regard. It is apparent

from the wording of the case-law cited in the preceding paragraph that whether certain producers

52 L. Carmosino, ‘Direct Concern in State Aid Direct Actions: A Review of the Scuola Montessori Case’ [2019] 1 European State Aid

Law Quarterly 71, esp. 75.

53 Judgment Montessori, paragraphs 51 and 52.

54 Some had precisely found this distinction contradictory, since the maintenance of effective competition on the markets for

agricultural products is one of the objectives of the common agricultural policy and the common organisation of the markets.

See, to that effect, Kr. KECSMAR, ‘L’affrontement des courants pédagogiques débouchant sur la précision des conditions de

recevabilité des recours en annulation à l’encontre d’actes réglementaires et de la notion d’activité économique en matière

d’enseignement public/privé’ [2018] 4 Revue des affaires européennes 747, esp. 752. The author refers to the judgment APVE and

Others (ECJ, judgment of 14 November 2017, C-671/15, ECLI:EU:C:2017:860, paragraph 48).

55 J. WILDEMEERSCH, ‘A propos de l’arrêt “Scuola Elementare Maria Montessori c. Commission”: la porte du prétoire européen

s’entrouvre enfin” [2019] Journal de droit européen 12, esp. 14.


ECLI:EU:C:2018:873, paragraph 52. According to the Court, “the adoption of anti-dumping duties is not a penalty relating to

earlier behaviour but is a protective and preventive measure against unfair competition resulting from dumping practices” (ECJ,

judgment of 3 October 1991, Industries des poudres sphériques v Council, C-458/98 P, ECLI:EU:C:2000:531, paragraph 91.

Emphasis added).

57 ECJ, judgments of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68,

paragraphs 11 and 12, and of 7 May 1987, NTN Toyo Bearing and Others v Council, 240/84, EU:C:1987:202, paragraph 5.

58 ECJ, judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels, C-465/16 P, ECLI:EU:C:2019:155, paragraph

73. See also judgment of the same day in Council v Marquis Energy, C-466/16 P, ECLI:EU:C:2019:156, paragraph 48.


and exporters of the product at issue are directly concerned by a regulation imposing anti-dumping

duties is connected, in particular, with the fact that they are alleged to be involved in dumping

practices. A producer that does not export its production to the EU market, but simply sells it on its

national market, cannot be alleged to be involved in dumping’.59 Although this statement was

unprecedented, 60 and made not a single reference to Montessori but based solely on the T & L Sugars

and Anicav cases, the Court ruled then that

while the regulation at issue [imposing a definitive anti-dumping duty on imports of

bioethanol originating in the United States of America] may indeed place US

bioethanol producers at a competitive disadvantage, such a fact, if proven, cannot of

itself allow the view to be taken that their legal position was affected by the provisions

of that regulation and that those provisions were, therefore, of direct concern to

them.61

In those circumstances, contrary to what was hoped for after Montessori, the demonstration of a direct

concern by the infringement of the right not to be subject to distorted competition cannot be used to

challenge anti-dumping measures. This possibility probably even seems to be limited to the field of

State aid.

3.3. The Contested Act Does Not Entail Implementing Measure

Like the first condition required by Article 263(4), in fine, TFEU, the third condition also concerns the

contested act. Under the terms of this provision, the regulatory act in question ‘does not entail

implementing measures’. First of all, four years after the entry into force of the Lisbon Treaty, the Court

merely set out a ‘methodology’ to be applied in order to determine if a regulatory act entails an

implementing measure without actually perceiving what the term ‘entail’ meant (judgment of 19

December 2013, Telefónica v Commission, C-274/12 P, ECLI:EU:C:2013:852 – hereinafter referred to as

‘Telefónica’) (3.3.1.). Then, it took a further four years to obtain a real ‘practical information’ in this

respect and a kind of definition of the concept of ‘entail’ within the meaning of Article 263(4) TFEU

(judgments of 13 March 2018 Industrias Quimicas del Vallés v Commission, C-244/16 P,

ECLI:EU:C:2018:177 and European Union Copper Task Force v Commission, C-384/16 P,

59 Judgment Council v Growth Energy and Renewable Fuels, paragraph 74. See also judgment Council v Marquis Energy, paragraph

49.

60 See, to that effect, F. PERALDI-LENEUF Europe [2019] April commentary 144.

61 ECJ, judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels, C-465/16 P, ECLI:EU:C:2019:155, paragraph

81. See also judgment of the same day in Council v Marquis Energy, C-466/16 P, ECLI:EU:C:2019:156, paragraph 56.


ECLI:EU:C:2018:176 – hereinafter referred to as ‘Industrias Quimicas’ and ‘European Union Copper Task

Force’) (3.3.2.). However, its interpretation of the term ‘entail’ is particularly broad, which automatically

limits the particular parties’ access to the Union judge. By applying, for the first time in Montessori, the

idea that Article 263(4) TFUE cannot be interpreted as requiring the applicant to bring an ‘artificial

proceedings’ before a national court, the Court finally counterbalanced its earlier case-law and slightly

opened the door to the European courtroom. (3.3.3.).

3.3.1. A Methodology for Assessing the Existence of an Implementing Measure

With Telefónica, the Court started from the postulate that the concept of ‘regulatory act which does

not entail implementing measures’ has to be interpreted in the light of the objective of Article 263(4),

in fine, TFEU which consists in preventing an individual from being obliged to infringe the law in order

to have access to a court.62 Then, the Court set out three preliminary remarks, which are all parameters

to be taken into account in order to identify the existence of an implementing measure within the

meaning of Article 263(4), in fine, TFEU.63

First, where a regulatory act entails implementing measures, judicial review of compliance with

the European Union legal order is ensured irrespective of whether those measures are adopted by the

European Union or the Member States.64 This assertion had already been made in the Inuit judgment65

and can be justified, according to the Court, by the entire system of remedies applicable within the

Union’s legal order. Indeed,

where responsibility for the implementation of such acts lies with the institutions,

bodies, offices or agencies of the European Union, natural or legal persons are

entitled to bring a direct action before the European Union judicature against the

implementing acts under the conditions stated in the fourth paragraph of Article 263

TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality

of the basic act at issue. Where that implementation is a matter for the Member

States, those persons may plead the invalidity of the basic act at issue before the

62 ECJ, judgment of 19 December 2013, Telefónica v Commission, C-274/12 P, ECLI:EU:C:2013:852, paragraph 27.

63 See, to that effect, C. BUCHANAN and L. BOLZONELLO, ‘Another Step towards a Definition of “Implementing Measures”’ [2016]

European Journal of Risk Regulation 223, esp. 225.

64 Telefónica, paragraph 29.

65 ECJ, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v. Parliament and Council, C-583/11 P, ECLI:EU:C:2013:625,

paragraph 93.


national courts and tribunals and cause the latter to request a preliminary ruling from

the Court of Justice, pursuant to Article 267 TFEU.66

Second, the Court held that the question of whether a regulatory act entails implementing

measures should only be assessed by reference to the position of the person pleading the right to

bring proceedings. Consequently, it is therefore irrelevant whether the act in question entails

implementing measures with regard to other persons.67 This second criteria could play an important

role, especially after Montessori, as I will explain later. Third, in order to determine whether the measure

being challenged entails implementing measures, ‘reference should be made exclusively to the

subject-matter of the action and, where an applicant seeks only the partial annulment of an act, it is

solely any implementing measures which that part of the act may entail that must, as the case may be,

be taken into consideration’.68 It is therefore not a question of carrying out a global and abstract

examination of the contested act.

The application of those parameters to the provision challenged in the Telefónica case – the

article of a Commission decision setting out the partial incompatibility with EU law of an aid scheme –

provides other lessons. On the one hand, implementing measures within the meaning of 263(4), in

fine, TFEU need not be expressly provided for by the provision at issue but may be implicitly required.

On the other hand, those measures do not necessarily have to be adopted by a Union institution or

body but may have to be adopted by Member States. Thus, in Telefónica, the Court held that

Article 1(1) of the contested decision is concerned exclusively with declaring the

scheme at issue incompatible with the common market. It does not define the specific

consequences which that declaration has for each taxpayer. Those consequences will

be embodied in administrative documents such as a tax notice, which constitutes as

such an implementing measure that Article 1(1) of the contested decision ‘entails’

within the meaning of the final limb of the fourth paragraph of Article 263

TFEU. Consequently, the General Court was correct in holding, in paragraph 44 of the

order under appeal, that the measures for giving effect to the decision as to

incompatibility – including in particular the measure consisting of rejection of an

application for grant of the tax advantage at issue, a rejection which Telefónica will





also be able to contest before the national courts – are implementing measures in

respect of the contested decision.69

This methodology is now constantly recalled by the Court.70 It has also since clarified that the lack of

discretion of the author of the implementing measure is, contrary to what prevails in the direct

concern analysis, irrelevant in the identification of an implementing measure within the meaning of

Article 263(4) TFEU. Despite the doctrinal controversy,71 the Court is particularly clear on that point: ‘it

is entirely irrelevant … whether those measures are of a mechanical nature’.72 In other words, the

condition relating to the absence of implementing measures is not the same as that of direct

concern.73

In these circumstances, it is not an exaggeration to say that the ‘chances’ of identifying an

implementing measure are high. However, this possibility has been significantly worsened following

Industrias Quimicas and European Union Copper Task Force.

3.3.2. The Concept of ‘Entail’ within the Meaning of Article 263(4) TFEU

We therefore had to wait eight years for a more precise analysis of the main element of the last

condition laid down in Article 263(4), in fine, TFUE, namely the scope of the word ‘entail’. It is the appeals

69 Telefónica, paragraphs 35 and 36.

70 See, for example, ECJ, judgments of 27 February 2014, Stichting Woonpunt and Others v Commission, C-132/12 P,

EU:C:2014:100, paragraphs 50 and 51; of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284,

paragraphs 29 to 32; of 13 March 2018, Industrias Quimicas del Vallés v Commission, C-244/16 P, ECLI:EU:C:2018:177, paragraphs

42 to 47; of 13 March 2018, European Union Copper Task Force v Commission, C-384/16 P, ECLI:EU:C:2018:176, paragraphs 35 to

40; of 6 November 2018, Scuola Elementare Maria Montessori v Commission, C-622/16 P to C-624/16 P, ECLI:EU:C:2018:873,

paragraphs 58 to 61.

71 See, for example, S. PEERS and M. COSTA, ‘Judicial review of EU Acts after the Treaty of Lisbon; Order of 6 September 2011,

Case T‑18/10 Inuit Tapiriit Kanatami and Others v. Commission & Judgment of 25 October 2011, Case T‑262/10 Microban v.

Commission’ [2012] 8 European Constitutional Law Review 82, esp. 96; A. ALBORS-LLORENS, ‘Sealing the fate of private parties in

annulment proceedings? The General Court and the new standing test in article 263(4) TFEU’ [2012] 71 The Cambridge Law

Journal 52, esp. 55; C. WERKMEISTER and others, ‘Regulatory Acts within Article 263(4) TFEU – A Dissonant Extension of Locus

Standi for Private Applicants’ [2010-2011] 13 CYELS, 311, esp. 326 and 329; M. RHIMES, ‘The EU Courts Stand Their Ground: Why

Are the Standing Rules for Direct Actions Still So Restrictive?’ [2016] 9 (1), 103, esp. 130. Compare also the Opinion of Advocate

General Wathelet in Stichting Woonpunt and Others v Commission (C-132/12 P, ECLI:EU:C:2013:335) with Opinion delivered by

Advocate General Cruz Villalón in T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284,

ECLI:EU:C:2014:2283).

72 ECJ, judgment of 13 March 2018, Industrias Quimicas del Vallés v Commission, C-244/16 P, ECLI:EU:C:2018:177, paragraph 47.

See also ECJ, judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C-456/13 P, EU:C:2015:284,

paragraphs 41 and 42, and of 10 December 2015, Kyocera Mita Europe v Commission, C-553/14 P, EU:C:2015:805, paragraph 46.

73 ECJ, order of 14 July 2015, Forgital Italy v. Council, C-84/17 P, ECLI:EU:C:2015:517, paragraph 43 (available only in Italian and

French: “la condition relative à l’absence de mesures d’exécution ne se confond pas avec celle de l’affectation directe”.)


brought by Industrias Químicas del Vallés and European Union Copper Task Force (EUcoTF) against

two orders of the General Court that have made this possible.74

Industrias Químicas del Vallés is a company that imports an active chemical substance,

metalaxyl, into Spain and commercialises plant protection products containing this active substance

in several other Member States. EUCoTF is an association of producers of copper compounds, some

of whom hold marketing authorisations for plant protection products containing such a substance.

However, on 11 March 2015, following the adoption by the Commission of Regulation 2015/408, 75

both copper compounds and metalaxyl were included in the ‘list of candidates for substitution’. This

inclusion results in the application of a different regime for approving the active substance (as well as

obtaining or renewing a marketing authorisation and mutual recognition) from that applicable to other

plant protection products, those regimes being governed by Regulation 1107/2009. 76 Industrias

Químicas del Vallés and EUCuTF therefore brought an action for annulment against Regulation

2015/408 before the General Court. However, the General Court considered, on the one hand, that

the applicants were not individually concerned by the contested regulation and, on the other hand,

that this regulation entails implementing measures within the meaning of Article 263(4), in fine, TFEU.

Their actions were therefore deemed inadmissible.

First of all, it should be note that Regulation 2015/408 was adopted on the basis of Regulation

1107/2009. Relating to the existence of implementing measures, the appellants argued before the

Court that the General Court erred in law because the measures identified as ‘implementing measures

entailed by the contested act’ were not taken on the basis of Regulation 2015/408 but on the basis of

Regulation No 1107/2009. Indeed, the contested act merely established the list of candidates for

substitution submitted to the new regime laid down by Regulation 1107/2009. As Advocate General

Wathelet put it, the legal problem was therefore that of knowing

whether the verb ‘entail’ used in [Article 263(4), in fine, TFEU] refers solely to

implementing measures adopted on the immediate basis of a regulatory act ‘B’ or

whether its scope can be extended to acts adopted on the basis of an earlier

74 GC, orders of 16 February 2016, Industrias Quimicas del Vallés v Commission, T-296/15, ECLI:EU:T:2016:79 (appeal C-244/16 P)

and of 27 April 2016, European Union Copper Task Force v Commission, T-310/15, ECLI:EU:T:2016:265 (appeal C-384/16 P).

75 Commission Implementing Regulation (EU) 2015/408 of 11 March 2015 on implementing Article 80(7) of Regulation (EC)

No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market

and establishing a list of candidates for substitution, OJ 2015 L 67, p. 18.

76 Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of

plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414, OJ 2009 L 309, p. 1.


regulation ‘A’, but on account of the adoption of regulation ‘B’, which is essential for its

application, that is to say in an indirect sequential chain or, in effect, as a repercussion’

implication.77

According to him, ‘the verb “entail” used in the final limb of the fourth paragraph of Article 263 TFEU

must be interpreted as referring solely to implementing measures which are necessarily adopted on

the immediate basis of a regulatory act”78 in order to have ‘an immediate causal link’79 with it. Although

this interpretation was consistent with the objective of Article 263(4), in fine, TFUE and the source of a

greater guarantee of legal certainty – since the identification of an implementing measure would be

easier and more certain – the Court did not follow this interpretation. On the contrary, the Court held

that

the wording of the final limb of the fourth paragraph of Article 263 TFEU does not

require, for a measure to be classified as an implementing measure of a regulatory

act, that that act is the legal base of that measure. [Thus, a] same measure may be an

implementing measure both of the act the provisions of which constitute its legal base

and of a different act ... where all or part of the legal effects of the latter act will be

produced, vis-à-vis the applicant, only through the intermediary of that measure.80

This interpretation is probably the most regrettable for applicants, since it allows an unlimited search

for an enforcement act. Let us judge: the Court has already used this case-law to justify the

inadmissibility of an action by considering an act prior to the contested act as a measure implementing

it! After that, everything therefore seems to be authorised on the basis of the Químicas and the

European Union Copper Task Force judgments.

This occurred in Internacional de Productos Metálicos v Commission.81 Internacional de

Productos Metálicos is an incorporated company whose main activity consists of importing and

77 Opinion delivered by Advocate General Wahtelet, 6 September 2017, European Union Copper Task Force v Commission, C-

384/16 P, ECLI:EU:C:2017:634, point 46 (see also his Opinion of the same day in Industrias Químicas del Vallés v Commission, C-

244/16 P, ECLI:EU:C:2017:635, point 39).

78 Opinion in European Union Copper Task Force v Commission, point 64 (see also Opinion in Industrias Químicas del Vallés v

Commission, point 57).

79 Opinion in European Union Copper Task Force v Commission, point 58 (see also Opinion in Industrias Químicas del Vallés v

Commission, point 51).

80 ECJ, judgements of 13 March 2018, Industrias Quimicas del Vallés v Commission, C-244/16 P, ECLI:EU:C:2018:177, paragraph 72

and European Union Copper Task Force v Commission, C-384/16 P, ECLI:EU:C:2018:176, paragraph 65.

81 ECJ, judgement of 18 October 2018, Internacional de Productos Metálicos v Commission, C-145/17 P, ECLI:EU:C:2018:839.


supplying iron or steel fasteners within the national territory. Pursuant to EU Regulations, the Spanish

tax authorities ordered it to pay customs duties, anti-dumping duties and VAT, together with interest

for late payment, totaling EUR 672 943,20. Those amounts were, in part, contested by the appellant

before the Spanish courts. In parallel, the Commission adopted a new regulation repealing the

definitive anti-dumping duty at the origin of the Spanish tax authorities’ decision. 82 However, under

Article 2 of that regulation, the repeal of the anti-dumping duties took effect from the date of the entry

into force of that regulation and did not serve as a basis for the repayment of the duties collected

prior to that date. Internacional de Productos Metálicos decided to bring an action for annulment against

that regulation before the General Court, which dismissed the action as being manifestly inadmissible,

in particular because, according to it, the contested act would entail implementing measure.83

The Court upheld the order of the General Court by judgment of 18 October 2018. Indeed,

after having recalled the criteria in Telefónica, the Court rejected the idea pleading by the appellant

that a provision that merely repeals anti-dumping duties does not require any implementing measure

for it to produce legal effects. According to the Court,

although it is true, as the appellant submits, that the repeal of the anti-dumping duties

by the regulation at issue does not depend, as such, on the adoption of implementing

measures for those duties to expire, the fact remains that Article 2 of that regulation, in

particular in so far as it provides for the expiry of those duties from the date of its entry into

force and excludes any retroactive effect, can materialise, as regards the appellant, only

through measures taken by the national authorities for the purpose of collecting the anti-

dumping duties in question before that date.84

According to the Court, an implementing measure within the meaning of Article 263(4), in fine, TFEU

can therefore be an act adopted, in the past, on the basis of the act which is in fact repealed by the

contested act. Even if, for Internacional de Productos Metálicos, it cannot be excluded that it may still

ask the national court hearing the tax dispute refer a preliminary ruling to the Court on the validity of

82 Commission Implementing Regulation (EU) 2016/278 of 26 February 2016 repealing the definitive anti-dumping duty imposed

on imports of certain iron or steel fasteners originating in the People’s Republic of China, as extended to imports of certain iron

or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not, OJ 2016 L 52, p. 24.

83 GC, order of 25 January 2017, Internacional de Productos Metálicos v Commission, T-217/16, EU:T:2017:37.

84 ECJ, judgement of 18 October 2018, Internacional de Productos Metálicos v Commission, C-145/17 P, ECLI:EU:C:2018:839,

paragraph 57. Emphasis added.


the Commission’s regulation, the identification of a implementing measure in an act prior to the

contested act seems nevertheless strange.

In those circumstances, the only hope lies in the possibility of demonstrating the artificiality of

the national procedure that the applicant would have to bring if they were not authorised to bring an

action for annulment before the Union judge. The Court recognised that hypothesis, for the first time,

in Montessori.

3.3.3. The Opening of the ‘Artificial Proceeding’

In Montessori, the applicants had challenged before the Commission several Italian legal provisions

which granted tax exemption to non-commercial entities – in particular the Church – carrying on

certain activities in real estate owned by them, such as educational or accommodation activities. In its

decision, the Commission acknowledges that the first contested tax provision constitutes State aid

incompatible with the internal market and unlawfully put into effect. However, it does not order its

recovery. It also considers that the other tax provision at issue and the exemption provided for by the

new tax regime do not constitute State aid within the meaning of Article 107(1) TFEU.

The Commission considers the action for annulment brought against its decision inadmissible

because its decision would entail implementing measures within the meaning of Article 263(4), in fine,

TFEU. Indeed, according to the Commission, the applicants could have applied for the tax treatment

accorded to their alleged competitors, brought an action before the national court against the refusal

of the administration and, on that occasion, challenged the validity of the Commission decision. The

General Court, therefore, erred in law by not following this argument, which was nevertheless in

accordance with the logic of Telefónica.

While falling within the classic interpretative framework of Article 263(4) TFEU – which requires

that exclusive attention be paid to the position of the person pleading the right to bring proceedings

and to the subject-matter of the action and according to which the automatic nature of a measure

does not affect its qualification as an implementing measure – the Court considered that the situation

of competitors of the beneficiaries of a measure which does not constitute State aid was different

from that of the beneficiaries of such aid.

If it was clear that the Commission decision did not require implementing measures in so far

as it considered one of the tax provisions to constitute State aid but did not order its recovery, 85 the

85 See Montessori, paragraph 62 and Opinion delivered by Advocate general Wathelet, point 69.


same was not necessarily true for the part of the decision concerning the disputed measures

compatible with the Treaty. Indeed, as the Commission pointed out in its appeal, it follows from the

Court’s case-law that the beneficiary of an aid scheme can, in so far as they satisfy the conditions laid

down in national law to be eligible for that scheme, request the national authorities to grant them the

aid (considered incompatible with the internal market by the Commission or compatible subject to

compliance with certain conditions) and contest the act refusing to grant this request before the

national courts on the ground that the Commission decision is invalid in order to encourage those

courts to refer questions to the Court for a preliminary ruling on its validity. 86 The Court held that this

case-law, however,

cannot be applied to the situation of the competitors of beneficiaries of a national

measure that has been found not to constitute State aid within the meaning of Article

107(1) TFEU ... The situation of such a competitor differs from that of the beneficiaries

of aid referred to by that case-law, in that the competitor does not satisfy the

conditions laid down by the national measure in question for eligibility for that aid. In

those circumstances, as the Advocate General observes in point 71 of his Opinion, it

would be artificial to require that competitor to request the national authorities to

grant him that benefit and to contest the refusal of that request before a national

court, in order to cause the national court to make a reference to the Court on the

validity of the Commission’s decision concerning that measure.87

From a theoretical point of view, the distinction made by the Court is questionable. Indeed, Telefónica’s

situation – the origin of the case-law that the Court refuses to apply here – seems to me to be similar

to that of the applicants in Montessori. It is true that, unlike these applicants, Telefónica was the

beneficiary of a State aid found to be contrary to Union law. However, on the one hand, the recovery

order did not concern the aid received by Telefónica and, on the other hand, for the period covered

by the recovery order it had renounced the benefit of the aid at issue.88 In these circumstances, the

possibility of obtaining an ‘implementing measure’ from the Spanish State for Telefónica seemed

equally artificial since it was certain that this company would not be subject to a recovery order and

86 See, to that effect, ECJ, judgments of 19 December 2013, Telefónica v Commission, C-274/12 P, EU:C:2013:852, paragraphs 36

and 59.

87 Montessori, paragraphs 65 and 66. Emphasis added.

88 See, to that effect, Opinion delivered by Advocate General Wathelet in Montessori, 11 April 2018, C-622/16 P,

ECLI:EU:C:2018:229, point 70 and note 46.


could not hope to benefit from the aid in the future, since the aid had already been abolished at the

time of the judgment. It was therefore also not ‘eligible’ for the aid in question.

At this time, I do not know, therefore, if Montessori announces a u-turn in the way the Court

interprets Article 263(4), in fine, TFEU or an approach limited to the ‘competitors’ of the beneficiaries

of State aid. In any event, the consecration of the theory of ‘artificial litigation’ must be approved. 89.

This approach to the condition relating to the absence of an implementing measure seems to me to

be in line with the objective pursued by the amendment of the conditions of access to the court

reviewing the legality and with Article 47 of the Charter of Fundamental Rights, which guarantees

effective remedy that is within a reasonable time, inexpensive and leads to a smooth efficient access

to the competent judge. It is therefore to be hoped that this thesis will be supported – and accepted

– in circumstances other than that of the competitor of the beneficiary of State aid.

The pending case Associazione GranoSalus v Commission (C-313/19 P) should soon give the

Court the opportunity to confirm whether or not it wishes to open its courtroom. By the action brought

before the General Court, the Associazione GranoSalus seeks the annulment of Commission

Implementing Regulation (EU) 2017/2324 of 12 December 2017 renewing the approval of the active

substance glyphosate.90

89 The ‘ordinary course of business theory’ developed by the Tribunal, which is quite similar to that relating to the ‘artificial

situation’, gives rise to certain hopes. In two judgments of 14 January 2016, the General Court held that for a regulatory act to

‘entail’ implementing measures, it was essential that in the ordinary course of business, Union bodies, offices or agencies or

national authorities adopt measures to implement the regulatory act and to give effect to its consequences for each of the

operators concerned (see, to that effect, only available in French, GC, judgments of 14 January 2016, Tilly-Sabco v Commission,

T-397/13, ECLI:EU:T:2016:8, paragraph 43 and Doux v Commission, T-434/13, ECLI:EU:T:2016:7, paragraph 44). According to the

General Court, it is therefore not sufficient for an operator to have the possibility of artificially obliging the administration to

adopt a measure subject to appeal, because such a measure does not constitute a measure that the regulatory act ‘entail’ (see,

to that effect, Tilly-Sabco v Commission, T-397/13, paragraph 45 and Doux v Commission, paragraph 46). In these two cases, the

General Court found that the regulation set the amount of export refunds that could be granted at zero and that the

presentation of an export license was not required for the export of the products in question. It concluded that, in the normal

course of business, no application for export licenses would be submitted to the national authorities. On the basis of that

finding, it held that the contested regulation did not entail any implementing measures. I agree with this analysis. Finally, it must

be noted that although the judgment in Tilly-Sabco v Commission was appealed, the question of the admissibility of the action

was not discussed or raised ex officio by the Court (ECJ, judgment of 20 September 2017, Tilly-Sabco v Commission, C-183/16 P,

ECLI:EU:C:2017:704). The General Court again used this idea in a judgment of 13 September 2018 in the restrictive measures

field, in relation to provisions of a Council decision concerning restrictive measures in view of Russia’s actions destabilising the

situation in Ukraine, especially provisions on access to the capital market and export restrictions (ECJ, judgment of 13 September

2018, Gazprom Neft v Council, T-735/14, ECLI:EU:T:2018:548, paragraph 102).

90 Commission Implementing Regulation (EU) 2017/2324 of 12 December 2017 renewing the approval of the active substance

glyphosate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the

placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No

540/2011, OJ 2017 L 333, p. 10.


However, by order of 14 February 2019,91 the General Court applied the Quimicas and

European Union Copper Task Force ruling to the letter and declared the action inadmissible. It is true

that the facts of the Associazione GranoSalus v Commission case are very similar to those of Quimicas

and European Union Copper Task Force since the contested regulation merely, as the General Court

found, renews the approval of the active substance ‘glyphosat’. On the other hand, it is the Member

States which will, if necessary, renew the marketing authorisation on the basis of the contested

regulation, the General Court seeing in these future acts ‘measures of implementation’ of the

contested regulation within the meaning of Article 263(4), in fine, TFEU. The Court could therefore very

well uphold the Order of the General Court and dismiss the appeal.

However, it does not seem totally irrelevant to consider an application of the recent Montessori

case-law in that the introduction of an action against the national implementing measure identified by

the General Court in its Order would be ‘artificial’. Indeed, the General Court recalls in a relevant way

the settled case-law of the Court according to which

in order to determine whether a regulatory act entails implementing measures, it

should be assessed by reference to the position of the person pleading the right to bring

proceedings and it is irrelevant whether the act in question entails implementing measures

with regard to other persons.92

In the present case, however, the applicant is defined in the General Court’s Order as representing

wheat producers who ‘as a result of their ethical or scientific convictions, which are set out in the

applicant’s articles of association, ... do not use that active substance [,that means the glyphosate]’.93 In

this context, it must be noted that the implementing measures identified by the General Court do not

relate to the applicant’s situation but to that of other persons in so far as these wheat producers

actually intend to oppose the placing on the market of plant protection products containing glyphosate

rather than seeking authorisation to place such products on the market.

In these circumstances, if the Court were to confirm – which it has done systematically since

the Telefónica judgment – that it is necessary to focus exclusively on the applicant’s position in

91 GC, order of 14 February 2019, Associazione GranoSalus v Commission, T-125/18, ECLI:EU:T:2019:92.

92 GC, order of 14 February 2019, Associazione GranoSalus v Commission, T-125/18, ECLI:EU:T:2019:92, paragraph 73, the General

Court referring to judgments of the Court of 19 December 2013, Telefónica v Commission, C-274/12 P, EU:C:2013:852,

paragraph 30, and of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C-456/13 P, EU:C:2015:284, paragraph 32.

Emphasis added.

93 Paragraph 59 of the order under appeal. Emphasis added.


assessing the existence of an implementing measure, I do not see how the Associazione Nationale

Granosalus (or one of its members) could ‘benefit’ from the implementing measure identified by the

General Court since the members of the applicant are precisely against the use of glyphosate. It

therefore seems certain that the members of the Associazione Nationale Granosalus will not apply for

a marketing authorisation of the glyphosate. We would therefore rather be in a situation similar to that

of Montessori. Indeed, to paraphrase the Court, it would seem to me ‘artificial to require [the applicant

or one of its members] to request the national authorities to grant him [a marketing authorization of

glyphosate] and to contest the refusal [or the granting] of that request before a national court, in order

to cause the national court to make a reference to the Court on the validity of the Commission’s

decision concerning that measure’94 even though the use of this substance would apparently be

contrary to the association’s statutes. However, it cannot be ruled out that the Court may have wished

to limit the hypothesis of an ‘artificial dispute’ to competitors of beneficiaries of a national measure

that has been considered not to constitute State aid within the meaning of Article 107(1) TFEU.

4. Conclusion

Ten years after that the Treaty of Lisbon entered into force, we now have a more precise definition

of the scope of the ‘new’ way that can be used by private parties to bring an action for annulment

before a Union Judge in order to challenge the validity of a regulatory act which is of direct concern to

them and does not entail implementing measures.

However, it must be noted that the interpretation of Article 263(4), in fine, TFEU which

facilitates that access, is particularly restrictive. First, legislative acts are excluded. Fortunately, it is

accepted that a regulatory act within the meaning of Article 263(4), in fine, TFEU extends to all non-

legislative acts of general application.95 Second, Article 263 TFEU does not require that a regulatory

act constitute the legal basis for another measure in order for the latter to be regarded as an

implementing measure for that regulatory act. This means that the same measure may be an

implementing measure both of the act the provisions of which constitute its legal base and of a

94 ECJ, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, C 622/16 P to C 624/16 P,

EU:C:2018:873, paragraph 66.

95 See, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, C-622/16 P to C-624/16

P, ECLI:EU:C:2018:873, paragraph 28.


different act where all or part of the legal effects of the latter act will be produced, vis-à-vis the

applicant, only through the intermediary of that measure.96

The only realistic hope of opening up direct access to the judge reviewing legality lies in the

fact that if it can be demonstrated that it would be ‘artificial’ to request the act identified as a

‘implementing measure’ of the regulatory act at issue – or, to use the terms of the General Court,

would not be requested in ‘ordinary course of business’ – 97 for the sole purpose of being able to bring

proceedings before national courts, then an action for annulment will be admissible on the basis of

Article 263(4), in fine, TFUE.98 However, it cannot be excluded that the Court may want to limit the

scope of this ‘exception’ to the competitors of the beneficiaries of a legal State aid. The answer to that

question is in the hands of the Court. We should know the answer soon.99

96 See, to that effect, ECJ, judgements of 13 March 2018, Industrias Quimicas del Vallés v Commission, C-244/16 P,

ECLI:EU:C:2018:177, paragraph 72 and European Union Copper Task Force v Commission, C-384/16 P, ECLI:EU:C:2018:176,

paragraph 65.

97 See, to that effect, GC, judgments of 14 January 2016, Tilly-Sabco v Commission, T-397/13, ECLI:EU:T:2016:8, paragraph 43 and

Doux v Commission, T-434/13, ECLI:EU:T:2016:7, paragraph 44 and of 13 September 2018, Gazprom Neft v Council, T-735/14,

ECLI:EU:T:2018:548, paragraph 102.

98 See, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, C-622/16 P to C-624/16

P, ECLI:EU:C:2018:873.

99 See the appeal lodged in Associazione GranoSalus v Commission case (C-313/19 P). This contribution was completed on 25

June 2019. The case was still pending on 31 January 2020.

Section II Recent Case Law and Decisions


Chapter 4 The Autonomy of EU Law Meets Investment

Arbitration: Case C-284/16 Achmea

Holger P. Hestermeyer*

On 6 March 2018 the Court of Justice handed down its eagerly awaited Achmea judgment, holding that

a provision such as art. 8 of the Bilateral Investment Treaty (BIT) between the Netherlands and the

Czech and Slovak Federative Republic contradicts EU law. The decision has sent a shockwave through

the investment law community.1 Since it was handed down, the case has been discussed and criticised

in numerous case notes and articles,2 and, more importantly, it has been invoked before national

courts in set-aside proceedings and in attempts to prevent the enforcement of awards,3 as well as in

a number of investment arbitrations, albeit without much success.4 This case note will put Achmea into

its context, present the case and discuss its impact. The discussion will include later developments

* Dr. Holger P. Hestermeyer, Reader in International Dispute Resolution at King’s College London. The author thanks Ms. A

Stauffer for help with the final formatting of the text.

1 C Fouchard and M Krestin, ‘The Judgment of the CJEU in Slovak Republic v. Achmea – A Loud Clap of Thunder on the Intra-EU

BIT Sky’ (Kluwer Arbitration Blog, 7 March 2018) <http://arbitrationblog.kluwerarbitration.com/2018/03/07/the-judgment-of-the-

cjeu-in-slovak-republic-v-achmea/> accessed 7 November 2019.

2 See only R Klages, ‘Autonomie sticht Schiedsklausel’ [2018] Europäische Zeitschrift für Wirtschaftsrecht 217; C D Classen,

‘Autonomie des Unionsrechts als Festungsring?’ [2018] Europarecht 361; M Lahouazi, ‘L’arrêt « Achmea » ou les dissonances

entre l’arbitrage d’investissement et le droit de l’Union européene’ [2018] Revue du droit de l’Union européenne 217; P

Nacimiento and S Bauer, ‘Das Achmea-Urteil des EuGH – und nun?’ [2018] Betriebs-Berater 1347; A Ciampiu, ‘Perché il diritto

europeo rimanga com’è, la nozione autonoma di “giurisdizione nazionale” deve cambiare’ [2018] Giurisprudenza italiana 1977;

E Gaillard, ‘L’affaire Achmea ou les conflits de logiques’ [2018] Revue critique de droit international privé 616; J Hillebrand Pohl,

‘Intra-EU investment arbitration after the Achmea case’ [2018] European Constitutional Law Review 767; S Hindelang,

‘Conceptualisation and application of the principle of autonomy of EU Law’, [2019] European Law Review 383.

3 For set-aside proceedings see eg Svea Court of Appeal, T 8538-17, T 12033-17 of 22 February 2019 (currently under appeal),

the Achmea case itself: BGH I ZB 2/15 order of 31 October 2018, for attempts to prevent the enforcement see Novenergia II v

Spain (DDC), Spain’s Memorandum of Law in Support of Motion to Dismiss and to Deny Petition to Confirm Foreign Arbitral

Award, 16 October 2018. Most recently the US District Court for the District of Colombia held the arbitral award rendered in

the Micula case, discussed infra, to be enforceable against Romania despite the Achmea judgment. Micula v Government of

Romania, Case No. 17-cv-02332 (DDC 11 September 2019).

4 Eg Vattenfall AB v Germany, ICSID Case No ARB/12/12 Decision on the Achmea Issue of 31 August, 2018; Marfin v Cyprus, ICSID

Case No ARB/13/27 Award of 26 July 2018; UP and C.D Holding Internationale v Hungary, ICSID Case No ARB/13/35 Award of 9

October 2018; CEF Energia v Italy, SCC Arbitration V(2015/158) Award of 16 January 2019; Landesbank Baden-Württemberg v Spain,

ICSID Case No ARB/15/45 Decision on an objection to jurisdiction of 25 February 2019 (currently unpublished); United Utilities

(Tallinn) v Estonia, ICSID Case No ARB/14/24 Award of 21 June 2019; Rockhopper v Italy, ICSID Case No ARB/17/14 Decision on

the intra-EU jurisdictional objection of 26 June 2019; Cube Infrastructure Frund v Spain, ICSID Case No ARB/15/20 Award of 15

July 2019 (currently unpublished).


such as the Court’s decision in Opinion 1/17 on the investment provisions in the Comprehensive

Economic and Trade Agreement (CETA) between Canada and the EU.5

1. Setting the Stage for Achmea

Achmea brings together two bodies of law – EU law and investment law. To enable readers from the

EU law world to fully appreciate the judgment it is worthwhile to explain, briefly, what investment

arbitration is, set out the distinction between intra-EU investment treaties and treaties with third

countries, describe the division of competences for the negotiation of investment agreements and

illustrate the difficulties involved in the interplay of EU law and investment law by recounting the Micula

case. The final line of development that requires some words before we can discuss the Achmea case

itself is the concept of autonomy of the EU legal order. As this is a case note, I shall keep the treatment

of all of these questions rather brief.

1.1. Investment Arbitration

Investment arbitration, often referred to as ‘investor-state dispute settlement’ (ISDS), refers to the

arbitration of a dispute between an investor who invests in another country (the ‘host state’) and that

country. The right to arbitrate an investment dispute can be based on national law, a contract or a

treaty between the home state of the investor and the host state. It is the third of these scenarios that

is of interest to us, i.e. treaty-based arbitration, nowadays the most common type of investment

arbitration. As a treaty- based system, international investment law is a sub-system of public

international law, albeit one with unusual features.

Most commonly, it is a ‘bilateral investment treaty’, a BIT, that provides for investment

arbitration, but there are also multilateral treaties or more comprehensive bilateral trade and

investment agreements containing provisions providing for ISDS. Besides such provisions on

investment arbitration, investment treaties (or investment chapters in more comprehensive

agreements) commonly contain substantive provisions on the protection of investment: They define

basic concepts such as ‘investment’ and impose a number of obligations on the state with regard to

the treatment of the investor. Some of the most common obligations imposed on the state in such

agreements are a duty to treat the investment fairly and equitably and a prohibition of expropriating

or nationalising an investment directly or indirectly except for a public purpose, following the due

5 Opinion 1/17 (CETA), ECLI:EU:C:2019:341.


process of law, in a non-discriminatory manner and for payment of prompt, adequate and effective

compensation amounting to the fair market value of the investment.6

Procedurally, most BITs provide for dispute resolution between the investor and the state. They

are thus among the few public international law regimes that provide access to dispute resolution to

non-states. BITs do not regulate every detail of how such arbitration proceedings are conducted but

refer to existing rules such as the ICSID Convention7 or UNCITRAL rules, often allowing the investor to

choose which rules it will use. The arbitration can result in an award of damages and such awards can

be enforced world-wide, under the ICSID Convention or under the 1958 New York Convention,8

depending on the rules under which the proceedings were conducted.

1.2. Intra-EU BITs and Other BITs

EU Member States have traditionally been amongst the most active negotiaters of bilateral investment

treaties (BITs). The EU distinguishes between intra-EU BITs, BITs between two Member States – often

originally concluded between a Member State and an accession country, and BITs with third countries.

By 2016 EU Member States had negotiated 1,384 BITs with third countries.9 There were an additional

196 intra-EU BITs in force at the time of the Achmea case.10 More than half of the currently 2,353 BITs

in force thus include at least one EU Member State as a party.11

The EU Commission has for some time regarded BITs between Member States as

incompatible with EU law, even though it favoured BITs as instruments to prepare a country for the

accession to the Union.12 It has, accordingly, asked Member States to terminate these BITs. Ireland

6 See eg the 2008 German Model BIT, the 2012 US Model Bilateral Investment Treaty, the 2012 SADC Model Bilateral Investment

Treaty Template with Commentary, the 2019 Netherlands Model Investment Agreement as well as C Brown (ed), Commentaries

on Selected Model Investment Treaties (OUP 2013).

7 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (adopted 18 March 1965,

entered into force 14 October 1966) 575 UNTS 159.

8 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958, entered into force 7 June

1959) 330 UNTS 3.

9 S Schacherer, ‘Can EU Member States Still Negotiate BITs with Third Countries?’ (IISD Investment Teaty News, 10 August 2016)

<https://www.iisd.org/itn/2016/08/10/can-eu-member-states-still-negotiate-bits-with-third-countries-stefanie-schacherer/>

accessed 7 November 2019.

10 Case C-284/16 Achmea, Opinion of AG Wathelet, ECLI:EU:C:2017:699, para 3.

11 UNCTAD Investment Policy Hub, <https://investmentpolicy.unctad.org/international-investment-agreements> accessed 7

November 2019.

12 Achmea, Opinion of AG Wathelet (n 10), para 40.


and Italy ended their intra-EU BITs in 2012 and 2013 respectively. In 2015 the Commission initiated

infringement proceedings against five Member States asking them to terminate their intra-EU BITs.13

To the contrary, Member States’ BITs with third countries are not frowned upon. A regulation

explicitly provides for the continuation in force of those BITs until they will be replaced by treaties

concluded by the EU. The Commission may even authorise the negotiation of new Member State

BITs.14

An awkward middle ground is occupied by the Energy Charter Treaty (ECT),15 ratified by all

Member States and the EU as well third countries. The treaty provides for investor-state dispute

settlement and works both in an intra-EU and third party scenario, although its application in intra-EU

cases is the subject of heated debate.16

1.3. The Division of Competences for Investment Law

The EU itself originally did not have an explicit competence in the area of investment law. That changed

with the Treaty of Lisbon. The common commercial policy (art. 207 TFEU), an exclusive competence of

the EU,17 now explicitly includes ‘foreign direct investment’. A closer analaysis shows, however, that the

EU’s competence in the field remains limited. The Court of Justice interpreted the scope of the EU’s

competence in Opinion 2/15. It held that ‘foreign direct investment’ means investments by persons of

a third State in the EU and vice versa ‘which enable effective participation in the management or

control of a company carrying out an economic activity’ and that the scope of the provision includes

the protection of such foreign direct investment.18 The competence does not include the protection

of other (non-direct) foreign investment such as portfolio investments.19 The Court also ruled that

setting up an investor-state dispute settlement system under which an investor can decide not to

submit a dispute to a Member State’s court, but directly to arbitration is not purely ancillary to the EU’s

13 See European Commission, ‘Press Release: Commission asks Member States to terminate their intra-EU bilateral investment

treaties’ (European Commission Press Release Database, 18 June 2015) <https://europa.eu/rapid/press-release_IP-15-

5198_en.htm> accessed 7 November 2019.

14 European Parliament and Council Regulation (EU) 1219/2012 establishing transitional arrangements for bilateral investment

agreements between Member States and third countries [2012] OJ L 351, art 3, 7 ff. The regulation is conspicuously silent on

intra-EU BITs.

15 Energy Charter Treaty (adopted 17 December 1994, entered into force 16 April 1998) 2080 UNTS 95.

16 Achmea, Opinion of AG Wathelet (n 10), para 43.

17 See art 3(1)(e) TFEU.

18 Opinion 2/15 (Free Trade Agreement with Singapore), ECLI:EU:C:2017:376, para 82.

19 Ibid, paras 225 ff.


exclusive competence, but instead requires the Member States’ consent.20 These limits of the EU’s

exclusive competence imply that the EU has to conclude investment agreements as mixed

agreements.

As the EU has concurrently been held to have rather extensive competences in the area of

trade, this has made it attractive for the EU to split comprehensive trade and investment agreements

into an EU only trade agreement and a mixed investment agreement to prevent the delay of the

conclusion of trade agreements by the investment component.21

Given these complexities surrounding the EU’s competence for the conclusion of investment

agreements, it is perhaps not surprising that Member States have remained important players in

negotiating BITs: By mid-2016 the Commission had already given 93 authorisations to Member States

to open new BIT negotiations.22Despite these limitations, the EU has become a leading force in

investment treaty reform, advocating for a multilateral investment court and spearheading a global

debate at UNCITRAL.23

1.4. The Micula Case

The EU’s relationship with investment law at the time of Achmea cannot be properly understood

without bearing in mind the Micula case. The Micula brothers had invested in Romania starting in the

1990s, benefiting from investment incentives that Romania had granted to investors in some of its

disfavoured regions. During Romania’s accession process to the EU, these incentives were considered

as state aid that was incompatible with the EU acquis communautaire and Romania accordingly

repealed the incentives effective February 2005 in preparation for its accession to the EU in 2007. The

Micula brothers commenced arbitration against Romania under the BIT between Sweden and

Romania. The arbitral tribunal set up for the dispute found in 2013 that Romania had violated the

20 Ibid, para 292. On the decision see M Bungenberg, ‘The Common Commercial Policy, Parliamentary Participation and the

Singapore Opinion of the CJEU’ [2017] Zeitschrift für Europearechtliche Studien 383 ff; D Kleimann and G Kübek, ‘The Singapore

Opinion and the End of Mixity as We Knew It’ (Verfassungsblog, 23 May 2017) <https://verfassungsblog.de/the-singapore-opinion-

or-the-end-of-mixity-as-we-know-it/> accessed 7 November 2019.

21 As a consequence of Opinion 2/15 the EU split its Agreements with Singapore and Vietnam into two separate agreements.

See S Hindelang and J Baur, ‘Stocktaking of Investment Protection Provisions in EU Agreements and Member States’ Bilateral

Investment Treaties and Their Impact on the Coherence of EU Policy’ in Study Requested by the INTA Committee, EU Investment

Protection after the ECJ Opinion on Singapore (Policy Department for External Relations, 2019).

22 Schacherer (n 9).

23 See Negotiating Directives for a Convention Establishing a Multilateral Court for the Settlement of Investment Disputes, Council of

the EU Doc. 12981/17 of 20 March 2018. See also UNCITRAL Working Group III (Investor-State Dispute Settlement Reform),

Possible Reform of Investor-State Dispute Settlement (ISDS), Un Doc A/CN.9/WG.III/WP.142 of 18 September 2017 and the

subsequent work of the working group III.


obligation to grant fair and equitable treatment of the investments and ordered Romania to pay more

than EUR 80 million as damages.24 The award put the EU into a difficult situation. After all, it had

regarded the repealed Romanian incentives program as illegal state aid. It accordingly decided that

the payment of the compensation awarded by the arbitral tribunal would constitute state aid in breach

of EU law and that Romania would have to recover any money actually paid out.25 The Micula brothers

attacked this decision before the General Court of the EU.26 While that case was pending, Romania

found itself in a catch-22: on the one hand it had an obligation to pay the award, on the other it was

prohibited from doing so. Romania’s attempt to resolve this situation through the annulment of the

award failed.27 The standoff between the investment law system and EU law continued when Achmea

was decided.28

In June 2019, however, the General Court decided to resolve the standoff by annulling the

Commission decision on state aid.29 Whether that solution will stand depends on the Court of Justice,

as the Commission lodged an appeal against the judgment of the General Court in August 2019.30

1.5. Autonomy of the EU Legal Order

Some final introductory words should be dedicated to the concept of ‘autonomy’ in the EU legal order.

At the beginning of its life as a supranational legal order the EU legal system had to stake out and

defend its autonomy from the national legal systems of Member States. The Court of Justice famously

did so in cases like Van Gend & Loos31 and Costa v. Enel,32 in which it held that EU law has direct effect

and supremacy. It established the EU legal system as ‘a new legal order of international law for the

benefit of which the states have limited their sovereign rights’,33 so that

24 Micula v Romania, ICSID Case No ARB/05/20 Award of 11 December 2013.

25 Commission Decision (EU) 2015/1470 on State aid [2015] OJ L 232/43.

26 Cases T-624/15, T-694/15 and T-704/15 European Food SA and Others v European Commission [2019].

27 Micula v Romania, ICSID Case No ARB/05/20 Decision on Annulment of 26 February 2016.

28 See G Croisant, ‘Micula Case: The General Court Quashes the Commission’s Decision and Rules that the Award is Not State

Aid’ (Kluwer Arbitration Blog, 19 June 2019) <http://arbitrationblog.kluwerarbitration.com/2019/06/19/micula-case-the-general-

court-quashes-the-commissions-decision-and-rules-that-the-award-is-not-state-aid/> accessed 7 November 2019.

29 The Commission had wrongly applied its powers retroactively to events predating Romania’s accession. Cases T-624/15, T-

694/15 and T-704/15 European Food SA and Others v European Commission, ECLI:EU:T:2019:423, para 92.

30 Case C-638/19 P Commission v European Food and Others. After the finalisation of this contribution, Romania reportedly

paid the award because of enforcement measures against its air control company and its stakes in two energy companies. L

Bohmer and L E Peterson, ‘Romania Round-up’ (IAReporter, 17 December 2019).

31 Case 26/62 Van Gend & Loos [1963] ECR 1.

32 Case 6/64 Costa v ENEL [1964] ECR 585.

33 Van Gend & Loos (n 31).


the law stemming from the treat[ies], an independent source of law, could not,

because of its special and original nature, be overridden by domestic legal provisions,

however framed, without being deprived of its character as [Union] law and without

the legal basis of the [Union] itself being called into question.34

It had created the principle of autonomy of EU law in everything but name.

As the system of EU law developed and the EU began to take on a more important role in

external relations, the capacity of the EU legal order to set out what its law is, its ‘autonomy’, was no

longer just threatened from Member States, but also from international law.35 The Court of Justice

faced a difficult task in this regard: it had to protect the autonomy of EU law, while at the same time

ensuring that the EU remained an open, cooperative player in the international legal order. Before

Achmea, the Court had expressed the principle of autonomy most authoritatively in Opinion 2/13 on

the EU’s accession to the ECHR,36 building on decisions such as Opinion 1/0937 on the Unified Patent

Litigation System and Opinion 1/9138 on the system of judicial supervision of the EEA Treaty.

Dogmatically, the Court took its cue from the principle of sincere cooperation in art. 4(3) TEU under

which Member States have to ensure the application of and respect for EU law in their territories, art.

267 TFEU setting up the preliminary ruling procedure and thereby ensuring the uniform interpretation

of EU law, and art. 344 TFEU, under which Member States ‘undertake not to submit a dispute

concerning the interpretation or application of the Treaties to any method of settlement other than

those provided for therein’. It deduced from these principles that ‘an international agreement

providing for the creation of a court responsible for the interpretation of its provisions and whose

decisions are binding on the institutions, including the Court of Justice, is not, in principle, incompatible

with EU law’, but that any such agreement would have to ensure that there is no adverse effect on the

autonomy of the EU legal order.

In particular, any action by the bodies given decision-making powers …, as provided

for in the agreement envisaged, must not have the effect of binding the EU and its

34 Costa v ENEL (n 32).

35 J Odermatt, ‘When a Fence Becomes a Cage: The Principle of Autonomy in EU External Relations Law’ [2016/2017] EUI Working

Paper MWP.

36 Opinion 2/13 (Accession to the ECHR), ECLI:EU:C:2014:2454.

37 Opinion 1/09 (Unified Patent Litigation System) [2011] ECR I-1137.

38 Opinion 1/91 (EEA) [1991] ECR I-6079.


institutions, in the exercise of their internal powers, to a particular interpretation of

the rules of EU law.39

2. Achmea

While the Court had ruled on the compatibility of aspects of some member states’ bilateral investment

treaties with third countries in the past,40 Achmea presented it for the first time with the opportunity

to address the relationship of EU law and intra-EU BITs head-on.

2.1. Facts

At the origin of the case lies an investor-state dispute between Achmea,41 a Dutch company, and the

Slovak Republic under the BIT concluded in 1991 between the Netherlands and the Czech and Slovak

Federative Republic, to which the Slovak Republic succeeded in 1993 as a successor State. Achmea

had invested in the Slovak health insurance market after the Slovak Republic had liberalized it in 2004.

Reforms in 2006 and 2007 reversed the liberalisation, however.42 It was that reversal that led Achmea

to commence an investor-state arbitration against the Slovak Republic.43

During the arbitration the Slovak Republic objected to the jurisdiction of the arbitral tribunal

arguing that with the Slovak accession to the EU in 2004 the BIT would have to be considered

terminated under art. 59 of the Vienna Convention on the Law of Treaties (VCLT),44 inapplicable under

art. 30 VCLT because of a conflict with EU law, inapplicable because of the direct effect and primacy of

EU law or inapplicable because the matter is non-arbitrable under EU law. The panel45 rejected these

39 Opinion 2/13 (Accession to the ECHR) (n 36), paras 182–4.

40 Case C-205/06 Commission v Austria [2009] ECR I-1301; Case C-249/06 Commission v Sweden [2009] ECR I-1335; Case C-118/07

Commission v Finland [2009] ECR I-10889.

41 The claimant was originally called Eureko, but for simplicity’s sake shall be referred to as Achmea throughout. Similarly,

subsidiaries shall not be identified by name.

42 Amongst the measures adopted were a requirement that all profits from health insurance be used for healthcare purposes

and a prohibition for health insurance companies to sell their insurance portfolio to another health insurance company.

43 The measures were attacked in other fora, as well. The Slovak Constitutional Court held the prohibition of the distribution of

profits to be unconstitutional. It was abolished in 2011. Case C-284/16 Achmea, ECLI:EU:C:2018:158, para. 8. Achmea also filed

a complaint leading to an infringement procedure (No 2008/4268) in which the Commission sent the Slovak government a

formal notice pointing out that the prohibition of the distribution of profits constitutes an unjustified restriction on the freedom

of capital movements. Commission Decision (EU) 2015/248 on the measures SA.23008 (2013/C) (ex 2013/NN) implemented by

Slovak Republic for Spoločná zdravotná poisťovňa, a. s. (SZP) and Všeobecná zdravotná poisťovňa, a. s. (VZP) [2014] OJ L 41, n

8.

44 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

45 The arbitrators in the case were Vaughan Lowe, Albert Jan van den Berg and V.V. Veeder.


jurisdictional objections46 and issued an award in favour of Achmea for EUR 22.1 million plus interest.47

The award was rendered under UNCITRAL rules and Frankfurt, Germany, had been selected as seat

of the arbitration, so that German law applied as lex loci arbitri. This allowed the Slovak Republic to file

an application to set aside the award before German courts. Having lost before the Oberlandesgericht

Frankfurt am Main the Slovak Republic appealed to the Bundesgerichtshof, which stayed the

proceedings and referred three questions to the Court of Justice, namely whether art. 344 TFEU

(question 1), or art. 267 TFEU (question 2) or art. 18(1) TFEU (question 3) precludes the application of

an investor-state arbitration clause in an intra-EU BIT in a situation such as the one at hand.

2.2. Decision

The Court of Justice assigned the case to the Grand Chamber. An unusual 16 Member State

governments made submissions.48 Achmea certainly hoped to win the case after Advocate General

Wathelet proposed that the cited provisions do not preclude an investor-state dispute settlement

clause in intra-EU BITs. Those hopes were dashed, however, when the Court did not follow its Advocate

General. In the opinion of the Court of Justice, articles 267 and 344 TFEU must be interpreted as

precluding an investor-state dispute settlement clause such as art. 8 of the BIT at issue in intra-EU

BITs. The Court did not address art. 18(1) TFEU.

2.2.1. The Principle of Autonomy

The Court did not address art. 267 and 344 TFEU separately, but instead fused them as the normative

basis for the principle of autonomy, which it then based its judgment on. It accordingly starts its

argument by recounting the tenets of the principle.49 It recalls that under art. 344 TFEU Member States

undertook not to submit a dispute concerning the interpretation or application of the Treaties to any

method of settlement other than those provided for in the treaties. It then locates the origin of the

concept of autonomy in the constitutional characteristics of the EU legal order: an independent source

of law, primacy and direct effect, giving rise to ‘a structured network of principles, rules and mutually

interdependent legal relations binding the EU and its Member States’, including shared values

contained in art. 2 TEU, which in turn gives rise to mutual trust between Member States that EU law

46 Eureko v Slovak Republic, PCA Case No 2008-13 Award on Jurisdiction, Arbitrability and Suspension of 26 October 2010. The

Slovak Republic commenced set-aside proceedings. See OLG Frankfurt, Beschluss vom 10.5.2012, 26 SchH 11/10.

47 Achmea v Slovak Republic, PCA Case No 2008-13 Final Award of 7 December 2012.

48 States that have repeatedly acted as respondents in investment arbitrations supported the Slovak Republic, States that tend

to be regarded as home states of investors tended to support Achmea. Achmea, Opinion of AG Wathelet (n 10), paras 34 ff.

49 Achmea (n 43), paras 32-37.


will be implemented and respected by other Member States’, as required by the duty of sincere

cooperation in art. 4(3) TEU.50

The autonomous system of EU law is preserved through a judicial system intended to ensure

consistency and uniformity of EU law, safeguarded by the key element of the preliminary ruling

procedure in art. 267 TFEU.

2.2.2. The Application of the Principle of Autonomy

Having set out the principle of autonomy, the Court proceeds to examine whether the arbitration

clause in Achmea, art. 8 of the BIT, violates the principle of autonomy. To do so, the Court analyses

whether the BIT sets up a mechanism for settling disputes between an investor and a Member State

that might concern the interpretation or application of EU law without ensuring the full effectiveness

of EU law.51 The Court’s analysis proceeds in three steps.

Firstly, it asks whether the disputes, which the arbitral tribunals would resolve, are liable to

relate to the interpretation or application of EU law. The Court considers this to be the case, as the

arbitral tribunal shall, under art. 8(6) of the BIT, decide ‘on the basis of the law, taking into account …

the law in force of the Contracting Party concerned’ and relevant agreements between the parties,

both of which bodies of law include EU law.52

Secondly, the Court asks whether the arbitral tribunal is integrated into the EU judicial system,

in particular whether it is a court under art. 267 TFEU. If that were the case, the effectiveness of EU

law would be safeguarded by well-established EU law mechanisms. The Advocate General had

proposed to conclude that an arbitral tribunal under the BIT constitutes a court within the meaning of

art. 267 TFEU.53 Such an approach seems, indeed, desirable and would resolve problems of

incoherence in the system. However, the previous case law of the Court of Justice, much criticised54

and in a slow process of change,55 made this a jump too large for the Court of Justice. It disagreed with

50 The known rule of law problems within some Member States have led to the justifiable criticism that this basis of the autonomy

of EU law is more dogma than reality. S Wernicke, ‘Autonomie und Häresie’ [2018], Neue Juristische Wochenschrift 1644, 1646.

51 Achmea (n 43), para 56.

52 Ibid, paras 39–42. Art. 8(6) of the BIT reads: ‘The arbitral tribunal shall decide on the basis of the law, taking into account in

particular though not exclusively: - the law in force of the Contracting Party concerned; - the provisions of this Agreement, and

other relevant agreements between the Contracting Parties …’.

53 Achmea, Opinion of AG Wathelet (n 10), paras 84–131.

54 B Hess, ‘The Fate of Investment Dispute Resolution after the Achmea Decision of the European Court of Justice’ (2018) 3 MPI

Luxembourg Research Paper Series 10–12.

55 See Case C-377/13 Ascendi Beiras Litoral e Alta, EU:C:2014:1754.


its Advocate General and considered arbitral tribunals established under a BIT not to constitute a

court entitled to make a reference to the Court of Justice under art. 267 TFEU.56 This ruling seems

correct in the light of how arbitral tribunals understand their task. No matter how desirable their

integration into the EU system might be, it is unlikely they would use the referral mechanism in art.

267 TFEU.

The Court then, thirdly, wonders whether the EU law mechanisms to ensure the uniform

interpretation of EU law could come in through another way, namely whether the arbitral award is

subject to review by a Member State court allowing questions of EU law to be clarified through the

preliminary ruling procedure. The Court did not consider this to be the case. While in Achmea itself a

set-aside proceeding in a German court under § 1059 of the German ZPO was made possible, this

was only the case because Frankfurt had been selected as the seat of the arbitration leading to the

application of German law as lex loci arbitri. Furthermore, a set-aside proceeding generally only allows

a limited review of the arbitral award. The Court of Justice explicitly considers this to be acceptable for

commercial arbitration, referring to Eco Swiss57 and Mostaza Claro,58 but not for investment arbitration

in light of the autonomy of EU law.59

Even though these three steps seemed sufficient for the Court to consider the principle of

autonomy to be violated, the Court then adduces an important caveat: It recalls its case law that an

international agreement establishing a court responsible for the interpretation of its provisions with

binding effect on the EU is in principle not incompatible with EU law. The Achmea scenario, however,

was different in the Court’s opinion, as art. 8 of the BIT at issue calls into question the principle of

mutual trust between Member States and the preservation of the nature of EU law: first of all disputes

under the BIT may relate to the interpretation of EU law, secondly the agreement was not concluded

by the EU but by Member States.60

56 Achmea (n 43), paras 43–49.

57 Case C-126/97 Eco Swiss, C-126/97 [1999] ECR I-3055.

58 Case C-168/05 Mostaza Claro [2006] ECR I-10421.

59 Achmea (n 43), paras 50–55.

60 Ibid, paras 57–58.


3. The World After Achmea

The effects of Achmea are potentially far-reaching.61 Just how far-reaching they are has been and

continues to be the subject of much passionate debate. This last section will discuss the impact of the

judgment on ISDS cases, on intra-EU BITs and on BITs with third countries. But first it will address and

critique the concept of autonomy as defined in Achmea.

3.1. The Autonomy of EU Law

The Court does not err when it sees a larger principle at play behind art. 344, 267 TFEU, 4(3) TEU. The

coherence and uniformity of EU law, its autonomy, is clearly a principle that Member States wanted to

protect. The Court has detached that concept from its normative basis in the cited provisions and

transformed it into a larger – and currently not entirely coherent – principle.

Looking at previous cases, that principle appears to be breached where a court outside of the

EU system gets to adjudicate on the division of competences between the EU and Member States with

binding effect on the EU. The principle can also be violated where the preliminary ruling mechanism

is threatened or a court outside the EU system obtains control over EU law.62 These instances do not

exhaust the potential of the principle of autonomy: given the Court’s reference to the constitutional

setup of the EU and art. 2 TEU, it is not unreasonable to assume that the principle goes beyond

procedural aspects focusing on EU control over the legal system and includes substantive ones such

as the rule of law.63

In the constellation presented by Achmea the risk to the autonomy of EU law arises from

another court interpreting EU law. Art. 344 TFEU plays a key role in such cases, but the Court no longer

examines (and clearly has moved beyond) the wording of art. 344 TFEU.64 As a result, it is not easy to

understand what measure precisely would offend the principle of autonomy. Achmea seems to have

further weakened the contours of the principle. Surely the mere fact that someone outside the EU

system interprets EU law alone cannot suffice to create a risk to the autonomy of EU law, given the

existence of private international law. But who exactly and in what situation should not be entitled to

61 See the various issues raised by N Lavranos and T Singla, ‘Achmea: Groundbreaking or Overrated?’ [2018] Zeitschrift für

Schiedsverfahren 348.

62 F de Abreu Duarte, ‘Autonomy and Opinion 1/17’ (European Law Blog, 31 May 2019)

<https://europeanlawblog.eu/2019/05/31/autonomy-and-opinion-1-17-a-matter-of-coherence/> accessed 7 November 2019.

63 Hindelang (n 2).

64 PS Stöbener de Mora, ‘Das Achmea-Urteil zum Intra-EU-Investitionsschutz’ [2018] Europäische Zeitschrift für Wirtschaftsrecht

363, 365; R D Miller, ‘Autonomie des Unionsrechts versus Schiedsgerichtsbarkeit’ [2018] Europäische Zeitschrift für

Wirtschaftsrecht 357, 359.


interpret EU law? It would be helpful for the Court in this regard to further develop its caveat in Opinion

2/13 quoted above that the external court’s ruling ‘must not have the effect of binding the EU and its

institutions, in the exercise of their internal powers, to a particular interpretation of the rules of EU

law’.

Arguably, Achmea misidentifies the risk to the autonomy of the EU system. It emphasises the

importance of a systemic, uniform interpretation of EU law with the Court of Justice in a commanding

position and regards the mere inclusion of EU law as applicable law in an intra-EU BIT as a risk to the

EU’s autonomy. However, it fails to analyse just how probable and far-reaching the actual application

of EU law under a BIT would be.65 The most severe challenge that investment law has posed for EU

law in practice – the Micula case – could not be resolved by excluding EU law from the applicable law

of an investment tribunal, but – quite to the contrary – might be mitigated by allowing an investment

tribunal to take EU law into account.66 The principle of autonomy post Achmea remains in need of

further refinement.

3.2. Achmea in ISDS cases

While the principle of autonomy of EU law has become more entrenched (albeit lacking in contours)

in EU law under Achmea, its impact on pending ISDS cases has been limited. Even before Achmea,

respondent Member States had repeatedly and unsuccessfully raised objections to the jurisdiction of

investment arbitral tribunals based on EU law.67 After Achmea, raising an ‘Achmea objection’ to

jurisdiction became good practice in investment arbitrations against EU Member States. These

objections, too, have routinely been rejected by arbitral tribunals. In some cases, they have been

dismissed as untimely or waived.68 Even where tribunals have engaged with the substance of the

objections, though, they have not succeeded. In cases involving extra-EU BITs Achmea can be easily

distinguished.69 But in intra-EU cases the objection has not faired better. If one searches for the

underlying reason for this beyond the mere technical argument, it is that arbitral tribunals are set up

under an investment treaty to resolve a defined dispute before them. They draw their legitimacy from

that treaty. Accordingly, they argue through the prism of that treaty as their constitutional document

65 R D Miller (n 64), 360.

66 Stöbener de Mora (n 64), 364–365.

67 Lavranos and Singla (n 61), 353.

68 Antaris v Czech Republic, PCA Case 2014-01 Award of 2 May 2018, para 73; Antin Infrastructure Services Luxembourg v Spain,

ICSID Case No ARB/13/31 Award of 15 June 2018, para 58.

69 CMC Muratori Cementisti CMC Di Ravenna SOC. Coop. V. Mozambique, ICSID Case No. ARB/17/23 Award of 24 October 2019,

paras 336-338.


rather than perceiving themselves as part of an integrated EU legal system.70 EU law only enters their

analysis through the VCLT, not through the concepts of direct effect and primacy. Even before Achmea

the arbitral tribunal in RREEF Infrastructure (G.P.) Limited v. Spain expressed this conundrum clearly

when it stated that the investment agreement on which its jurisdiction is based “is the ‘constitution’ of

the Tribunal. … Therefore, in case of any contradiction between [this agreement] and EU law, the

Tribunal would have to ensure the full application of its ‘constitutional’ instrument, upon which its

jurisdiction is founded.”71

One might wonder whether this conceptual prism changes where there is a risk than an award

will be set aside by national courts in EU Member States, i.e. where an arbitral tribunal does not act

under an international regime that assures its award cannot be set aside by national courts. The first

scenario applies to tribunals operating under e.g. UNCITRAL rules with a seat in the EU (as was the

case in Achmea). The second scenario is that of a tribunal operating under ICSID rules or, to a lesser

extent, other rules but with a seat outside the EU. In practice, this difference has not appeared to lead

to different outcomes.

The case law on the Achmea objection illustrates these thoughts. Most of the awards treating

the objection published so far have been rendered in arbitrations between an EU Member State and

an investor from another EU Member State based on the ECT. Some of these tribunals have merely

distinguished Achmea, arguing that the judgment only concerned bilateral investment treaties and did

not extend to the ECT. This was the approach of the arbitral tribunal in Masdar v. Spain.72 Other

tribunals have undertaken a broader analysis of how EU law can be taken into account in investment

arbitration by way of the VCLT and the limits of this exercise. This was done by the arbitral tribunal in

Vattenfall v. Germany (later largely followed by the Eskosol tribunal). The tribunal pointed out that it

derived its jurisdiction from an agreement to arbitrate under the ECT, limited by the outer limits set

out in the ICSID Convention, as the investor chose to arbitrate under that Convention as provided for

in the ECT.73 It regarded EU law as not applicable to the determination of its jurisdiction. It could merely

be taken into account when interpreting the legal provisions giving the tribunal jurisdiction under art.

70 See the description in Eskosol S.P.A. in liquidazione v Italy, ICSID Case No ARB/15/50 Award of 7 May 2019, paras 178–186.

71 RREEF Infrastructure (G.P.) Limited v Spain, ICSID Case No ARB/13/30 Decision on Jurisdiction of 6 June 2016, paras 74–75 (italics

deleted).

72 Masdar Solar & Wind Cooperatief U.A. v Spain, ICSID Case No ARB/14/1 Award of 16 May 2018, paras 678–683. The arbitral

tribunal found support for its position in the opinion of Advocate General Wathelet. Spain has requested the annulment of the

award.

73 Interpreting art. 26 of the ECT the Tribunal held that the provision did not exclude ISDS between an EU Investor and another

EU Member State.


31(3)(c) VCLT, but such an exercise could not result in barring jurisdiction between two parties to the

ECT. The Tribunal could also not deduce any such bar to its jurisdiction by applying rules on conflicts

between treaties such as art. 30 VCLT or treaty modification (art. 41(1) VCLT), as – following Masdar v.

Spain - it considered that there was no such conflict. According to the Tribunal Achmea applies to BITs

only, not to a multilateral treaty including non-EU parties. Erring on the side of caution the Tribunal

also could not reach the result applying the provisions of the VCLT arguendo.74 Other tribunals broadly

followed the lead of these two cases,75 adding some of their own considerations. Thus, the Arbitral

Tribunal in Eskosol v. Italy pointed out that the ECT does not raise concerns about interpreting EU law

as part of the applicable law.76 Tribunals arguing under the threat of set-aside proceedings so far have

not seen any reason to diverge from this line of cases, as is illustrated by the Tribunal in Greentech v.

Italy.77 In that case, Italy did, indeed, commence set-aside proceedings and the Svea Court of Appeal

stayed the execution of the award.78 Several other ECT-based awards have similarly been challenged

in set-aside proceedings.79

The Achmea objection has not fared better in tribunals basing their jurisdiction on a BIT. The

arbitral tribunal in Marfin v. Cyprus dismissed the objection, arguing that it applies international law,

not EU law. Under international law, the tribunal argued, only art. 30, 59 VCLT could lead to the

displacement of the BIT and the tribunal found neither of the two provisions applicable, as the BIT and

the EU treaties do not relate to the same subject matter. Curiously, after pointing out that it has not

applied EU law, the arbitral tribunal states that the law of Cyprus (which includes EU law) is applicable

to the dispute alongside public international law.80 The Tribunal in UP and C.D Holding Internationale v.

Hungary pursued a different line of argument, emphasising that its jurisdiction was based on the ICSID

Convention, i.e. a multilateral treaty, without the possibility of a set-aside proceeding under the lex loci

arbitri. The tribunal distinguished Achmea, arguing that the Court of Justice relied on German law

applying to the arbitration, including judicial review of the award. Achmea, so the tribunal, did not refer

74 Vattenfall AB v Germany (n 4), paras 92 ff.

75 See Rockhopper Itala S.P.A. v Italy, ICSID Case No ARB/17/14 Award of 26 June 2019, para 172.

76 Eskosol S.P.A. in liquidazione v Italy (n 69), paras 167–177.

77 Greentech Energy Systems v Italy, SCC Arbitration V (2015/095) Award of 23 December 2018, paras 395–403.

78 Judgment of 28 March 2019, Svea Court of Appeal, Case no T 3229-19.

79 Namely Athena/Greentech v Spain, CEF Energia v Italy, Novenergia v Spain. In the latter case the Svea Court of Appeal refused to

refer questions relating to intra-EU ISDS under the ECT to the Court of Justice. See J Dahlquist, ‘Setback for Spain’ (IAReporter, 25

April 2019); J Dahlquist, ‘Intra-EU Awards Piling up on Stockholm Court Docket’ (IAReporter, 26 May 2019).

80 Marfin v Cyprus (n 4), paras 577–597, see in particular para 580.


to the ICISD Convention and consent to arbitrate under it. The tribunal also states that even if the BIT

underlying the case was held to be terminated, the case would have to continue. Even though one can

agree with the outcome, the argument of the tribunal is not fully convincing, as its summary of Achmea

emphasises aspects of the facts of the case that were not the focus of the Court’s legal argument and

because of the peculiar neglect of the underlying BIT in the tribunal’s argument.81 Finally, intra-EU BIT-

based cases have also been subject to set-aside proceedings.82

3.3. The Fate of Intra-EU BITs

After Achmea, one issue appears to be settled: The future for intra-EU BITs looks very bleak, indeed.83

The Court’s reasoning shows that at least in theory it would not have been entirely necessary

to draw this conclusion. After all, the key argument in the case was that Member States had entitled

an outside body to interpret EU law in a BIT through the BIT’s provision on the applicable law.84 If we

take this concern of the Court seriously, not all intra-EU BITs would offend the autonomy of EU law.

However, reality has passed this issue by and has vindicated authors like Burkhard Hess who

regard such an approach as overly formalistic and emphasise that indeed all intra-EU BITs have

become legally suspect.85 22 Member States issued a declaration in January 2019 stating that ‘all

investor-State arbitration clauses contained in bilateral investment treaties concluded between

Member States are contrary to Union law and thus inapplicable’. Amongst others, the Member States

announced that they would terminate all BITs concluded between them.86 On 24 October 2019 EU

Member States reached an agreement on a multilateral treaty terminating intra-EU BITs – in itself a

81 UP and C.D Holding Internationale v Hungary (n 4), paras 252–267. Hungary has requested the annulment of the award.

82 Eg PL Holdings v Poland, SCC Case No 2014/163; J Dahlquist, ‘Intra-EU Awards Piling up on Stockholm Court Docket’ (IAReporter,

26 May 2019).

83 Lavranos and Singla (n 61), 350; S Simon and J Müller, ‘Das Achmea-Urteil des EuGH und die Auswirkungen auf

Streitbeilegungsmechanismen im Rechtsraum der EU‘ [2018] Neue Juristische Online-Zeitschrift 961, 963; R D Miller, ‘Autonomie

des Unionsrechts versus Schiedsgerichtsbarkeit‘ [2018] Europäische Zeitschrift für Wirtschaftsrecht 357, 362.

84 Some commentators have accused the Court of confounding the use of EU law as facts (e.g. when determining whether an

EU act breaches investment arbitration) and its use as applicable law, as Prüfungsmaßstab. This criticisim is misplaced as the BIT

at issue in the case does, indeed, make EU law part of the applicable law of the investment tribunal.

85 B. Hess, The Fate of Investment Dispute Resolution after the Achmea Decision of the European Court of Justice, MPI

Luxembourg Research Paper Series 2018 (3), see also J. Brauneck, Multilateraler Gerichtshof und EuGH-Achmea-Urteil: Das

Ende aller EU-mitgliedstaatlich vereinbarten Schiedsgerichte?, EuR 2018, 429, 431; A. Lang, Die Autonomie des Unionsrechts

und die Zukunft der Investor-Staat-Streitbeilegung in Europa nach Achmea, EuR 2018, 525, 537.

86 Declaration of the Representative of the Governments of the Member States of 15 January 2019 on the Legal Consequences

of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union.


rather unusual measure.87 At the time of writing the wording of the treaty has not yet been released.

The situation is somewhat more complicated with regard to the ECT. In the declaration Member States

agreed that intra-EU ISDS under the ECT would have to be disapplied, but for the moment they merely

agreed to discuss whether additional steps are necessary.88

3.4. The Fate of BITs with Third Parties, the CETA Opinion

Some authors argued that Achmea’s shadow is even longer and reaches BITs of Member States and

of the EU with third parties.89 They argue that the risk of an arbitral tribunal being empowered to

interpret the laws of the parties – and thus EU law – is not limited to intra-EU BITs.

In its Opinion 1/17,90 the Court of Justice has now had the opportunity to clarify its position

with regard to investment agreements of the EU with non-EU Member States. The Opinion concerned

the Investment Chapter of the CETA Agreement between the EU and Canada, which contains

innovative provisions on ISDS that commence a systemic change in the direction of setting up an

investment court. In its ruling the Court repeated that EU law does not, in principle, preclude the

conclusion of an international agreement setting up a tribunal outside of the EU system with the power

to interpret the agreement. However, to satisfy the tenets of the autonomy of the EU order, the

tribunal set up by the treaty has to comply with two conditions: it may not be endowed with ‘any power

to interpret or apply EU law’ other than the agreement itself91, nor may it be empowered to ‘issue

awards which have the effect of preventing the EU institutions from operating in accordance with the

EU constitutional framework.’92 The Court found itself satisfied as to both of these requirements.93 The

87 European Commission, ‘EU Member States agree on a plurilateral treaty to terminate bilateral investment treaties’ (European

Commission, 24 October 2019). The use of the term ‘plurilateral’ is as notable as the coordinated termination of bilateral treaties

in a multilateral treaty.

88 Declaration of the Representative of the Governments of the Member States of 15 January 2019 on the Legal Consequences

of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union. One of the reasons for

Member States’ hesitance with regard to the ECT is that litigation in this regard is pending before the Svea Court of Appeal. D.

Charlotin & L. E. Peterson, EU Member States Announce Scheme to Terminate all Intra-EU BITs and Warn Investor Community to Not

Initiate New Claims, IAReporter 17 January 2019.

89 See eg Simon and Müller (n 82), 964; D Thym, ‚Todesstoß für autonome Investitionsschutzgerichte‘ (Verfassungsblog, 8 March

2018) <https://verfassungsblog.de/todesstoss-fuer-autonome-investitionsschutzgerichte/> accessed 7 November 2019.

90 Opinion 1/17 (n 5).

91 According to the case law of the Court of Justice international agreements of the EU are an integral part of EU law. Case C-

181/73 Haegeman [1974] ECR 449, para 5

92 Opinion 1/17 (n 5), paras 106–119.

93 Ibid, paras 120–161. The second prong – a novelty in the CETA Opinion – gives rise to a number of detailed requirements

which deserve a much more thorough discussion than is possible in this context. In this regard (and with regard to further

requirements not related to autonomy imposed on ISDS in the decision) see M Bungenberg and C Titi, ‘CETA Opinion – Setting

Conditions for the Future of ISDS’ (EJIL Talk, 5 June 2019) <https://www.ejiltalk.org/ceta-opinion-setting-conditions-for-the-future-

of-isds/> accessed 7 November 2019.


Court explicitly distinguished Achmea, emphasising that Achmea concerned an intra-EU constellation

raising issues with regard to the EU law principle of mutual trust. Those issues do not arise in relations

between the Union and a non-Member State.94

Even though the decision addresses EU agreements, it seems likely that its holding can be

extended to Member State BITs as well.95 This would imply that in principle ISDS in Member State BITs

with third parties remains legal – but comes with conditions attached. Even though the CETA Opinion

thus brought important clarity to the status of ISDS in BITs between the EU or its Member States and

third States, it raises new questions with regard to the autonomy of EU law. The second prong of the

Court’s test seems to confirm that the principle of autonomy goes beyond mere control over EU law

and includes substantive issues. The principle thus continues to develop dynamically – and will

continue to be an object worthy of further examination.

94 Opinion 1/17 (n 5).

95 Already with regard to Achmea C D Classen, ‘Autonomie des Unionsrechts als Festungsring?‘ [2018] Europarecht 361, 369.


Chapter 5

The Jurisdiction of the ECJ to Give Preliminary Rulings on the Validity of CFSP Decisions: The

Rosneft Judgment

Carmen Martínez Capdevila*

In the present work, I will examine the Rosneft judgment, where the ECJ proclaims its jurisdiction to

give preliminary rulings on the validity of CFSP acts.1 It is indisputably one of the most important rulings

delivered by the Court in the field of EU external action since the entry into force of the Treaty of

Lisbon. Its constitutional significance must be underlined from the outset of this work.

1. Factual Background to the Dispute

Let us briefly remember the factual background to the dispute. Rosneft is a Russian company, named

in a CFSP Decision providing for restrictive measures (Decision 2014/512) and in a Regulation,

containing more detailed provisions to give effect to said Decision (Regulation 833/2014). This

company brought an annulment action against the CFSP Decision and the Regulation before the

General Court.

A month later, while the action was still pending in Luxembourg, Rosneft brought an

application for judicial review before the High Court of Justice (England & Wales), Queen´s Bench

Division (Divisional Court). The application concerned primarily the national measures adopted by the

United Kingdom in order to implement the two EU acts previously mentioned. In that context, Rosneft

pleaded the invalidity of the CFSP Decision and the Regulation on a number of grounds. The High

Court of Justice decided to stay the proceedings and to refer three questions to the ECJ for a

preliminary ruling.

* Senior Lecturer of Public International Law and EU Law at the Universidad Autónoma de Madrid.

1 C-72/15 Rosneft [2017] EU:C:2017:236.


By the first question, the referring court seeked to ascertain whether the Court had jurisdiction

to give a preliminary ruling, under Article 267 TFEU, on the validity of an act adopted on the basis of

provisions relating to the CFSP, such as Decision 2014/512.

2. The Judgment of the Court of Justice

In its answer to this first question, the Court proclaimed its jurisdiction to give preliminary rulings in

the field of the CFSP to monitor compliance with Article 40 TEU, but also to review the legality of the

decisions providing for restrictive measures against natural or legal persons.

The Court had no difficulties in proclaiming its jurisdiction to monitor compliance with Article

40 TFEU. In fact, the Court devoted only two paragraphs to the issue. The essence can be found in

paragraph 62, where the Court observes that the Treaties do not make provision for any particular

means by which such judicial monitoring is to be carried out; consequently, all the means are

acceptable. In application of the law to the facts of the case, the Court concluded in paragraph 63: ‘...

[T]he Court has jurisdiction to give a preliminary ruling on a request for a preliminary ruling concerning

the compliance of Decision 2014/512 with Article 40 TEU’.

The Court´s jurisdiction to issue preliminary rulings on the validity of CFSP decisions

prescribing restrictive measures against natural or legal persons was less obvious. In fact, some

Advocates General and some scholars had excluded it in the past.2 The Court asserted its jurisdiction

on the basis of mainly three arguments.

Its first argument was based on the wording of Article 24 TEU, which establishes the

jurisdiction of the Court to review the legality of CFSP restrictive measures, without specifying a

particular procedure for that purpose. According to the Court, reference by Article 24 TEU to Article

275 TFEU (which only provides for the action for annulment brought by individuals) does not seek to

determine the type of procedure under which the Court may review the legality of certain decisions,

but rather the type of decisions whose legality may be reviewed by the Court, within any procedure

that aims at such a review of legality.

2 See Opinion procedure 2/13 [2014] EU:C:2014:2475, Opinion of AG Kokott, paras 89-103; C-263/14 European Parliament v

Council (Agreement EU-Tanzania) [2015] EU:C:2015:729, Opinion of AG Kokott, n 15; and, C-455/14 P H v Council [2016]

EU:C:2016:212, Opinion of AG Wahl, para 79. For an overview of the different doctrinal positions on whether there was a place

for the preliminary ruling procedure in the CFSP, see Andrés Sáenz de Santa María P, ‘Mejorando la lex imperfecta: tutela judicial

efectiva y cuestión prejudicial en la PESC (A propósito del asunto Rosneft)’ (2017) 58 Revista de Derecho Comunitario Europeo

871, 887-88.


Secondly, the Court pointed out the complementary character of the actions for annulment

and the preliminary references on validity as means provided by the Treaties to review the legality of

EU acts. The Court repeated here the recurring idea that the TFEU ‘has established, by Article 263 and

277, on the one hand, and Article 267, on the other, a complete system of legal remedies and

procedures designed to ensure judicial review of the legality of European Union acts, and has

entrusted such review to the Courts of the European Union’.3

Finally, the Court invoked Article 47 of the Charter of Fundamental Rights of the EU, which

proclaims the principle of effective judicial protection. In the Court´s view, this principle implies that

the exclusion of the Court´s jurisdiction in the field of the CFSP has to be interpreted restrictively.

3. Comments

I would like to make four comments with respect to the Rosneft judgment, related to what it says

(comments 3.1 and 3.2), and also to what it implies (comments 3.3 and 3.4). Additionally, I will also

address what the Rosneft case shows in terms of the relation between the ECJ and national courts

(comment 3.5).

3.1. The Contrived Interpretation of the Treaties

Most authors commenting the Rosneft judgment have welcomed the extension of ECJ jurisdiction in

the CFSP field, as it introduces the preliminary ruling procedure to assess the legality of EU restrictive

measures, while the action for the annulment is the sole means expressly foreseen in the Treaties.4

I argue that the argument according to which the reference by Article 24 TEU to Article 275

TFEU points not to the type of procedure under which the Court may review the legality of this kind of

decisions, but rather to the type of decisions whose legality may be reviewed by the Court, in the

framework of any procedure, is quite contrived.5

3 Para 66.

4 This judgment adds itself to other pronouncements with which the ECJ has maximized its jurisdiction in the CFSP (see C-439/13

P Elitaliana [2015] EU:C:2015:753; 455/14 P H v Council, cit. n 2; C-658/11 European Parliament v Council (Agreement EU-Mauritius)

[2014] EU:C:2014:2025; and, C-263/14 European Parliament v Council (Agreement EU-Tanzania), cit. n 2).

5 For G Butler, ‘there is no doubt that [the Court] had to be slightly inventive given what is clearly a shortcoming in the drafting

of the Treaties’ (‘A Question of Jurisdiction: Article 267 TFEU Preliminary References of a CFSP Nature’ (2017) 1 European Papers

201, 207). In the same vein, P Andrés Sáenz de Santa María has referred to the ‘creative’ interpretation of the ECJ in this point

(n 2, 893); and, I Bosse-Platière considers that in Rosneft the Court delivers ‘une interpretation particulièrement extensive et

audacieuse des traités’ (‘Le juge de l´Union, artisan de la cohérence du système de contrôle juridictionnel au sein de l´Union

européenne, y compris en matière PESC’ (2017) 3 Revue trimestrielle de droit européen 555, 556).


This argument would be convincing if Article 24 TEU was expressed in the current terms (that

is, acknowledging the jurisdiction of the Court ‘to review the legality of certain decisions as provided

for by the second paragraph of Article 275 of the [TFEU]’) and Article 275 TFEU would have referred to

another matter than that of the control by the ECJ over the CFSP. But the content of Article 275 TFEU

is not that; this provision concerns also, like Article 24 TEU, the scope of the ECJ jurisdiction in the

framework of the CFSP. And it does it in very similar, but more detailed, terms than Article 24 TEU: It

declares that the Court has no jurisdiction with respect to the CFSP, but it admits that the Court can

monitor compliance with Article 40 TEU and rule on the annulment actions brought by individuals

against CFSP decisions providing for restrictive measures against natural or legal persons.

Holding that the Court has a preliminary ruling jurisdiction to assess the validity of EU

restrictive measures ignores Article 275 TFEU, a provision that, let us insist, like Article 24 TEU,

concerns the ECJ jurisdiction in the field of the CFSP, mentioning as the sole means for reviewing the

legality of such measures the action of annulment.6

In conformity with the rules on treaty interpretation codified by Articles 31 and 32 of the

Vienna Convention on the Law of Treaties, in view of the ambiguity resulting from difference in their

wording between Article 24 TEU and Article 275 TFEU, the Court should have had recourse to the

preparatory work of these two provisions, which were added by the Treaty of Lisbon. If the Court had

considered their origin, it would have given more weight to Article 275 TFEU, which was the original

provision. Article 275 TFEU comes from Article III-376 of the Treaty establishing a Constitution for

Europe, which was the sole reference to the role of the ECJ in the CFSP field, and its meaning (it

mentioned the annulment proceedings instituted by natural or legal persons) was crystal-clear.7 But

By contrast, S Poli believes that ‘[t]he Court is right to hold that Articles 24(1) TEU and 275(1) TFEU do not determine the type

of procedure under which the EU judicature may review the legality of certain decisions, but rather the type of decisions whose

legality may be controlled by the Court’ (‘The Common Foreign Security Policy after Rosneft: Still imperfect but gradually subject

to the rule of law’ (2017) 6 Common Market Law Review 1799, 1822).

6 J. Juret wonders whether, by contradicting the wording of Article 275 TFEU by virtue of other elements of a different nature,

the Court could have weaken the authority of the Treaties (‘L´arrêt Rosneft (C-72/15): vers une normalisation ou une

complexification du contrôle juridictionnel de la Politique étrangère et de sécurité commune?’ 03/2017 College of

Europe/College d´Europe, Department of European Legal Studies, Case Notes, 6).

7 According to this provision:

‘The Court of Justice of the European Union shall not have jurisdiction with respect to Articles I-40 and I-41 [which enunciated

the specific provisions relating to, respectively, the CFSP and the CSDP] and the provisions of Chapter II of Title V concerning

the common foreign and security policy and Article III-293 insofar as it concerns the common foreign and security policy.

However, the Court shall have jurisdiction to monitor compliance with Article III-308 [corresponding to current Article 40 TEU]

and to rule on proceedings, brought in accordance with the conditions laid down in Article III-365(4) [on the action for

annulment], reviewing the legality of European decisions providing for restrictive measures against natural or legal persons

adopted by the Council on the basis of Chapter II of Title V’.


the negotiators of the Treaty of Lisbon decided to bring together in title V, chapter 2, of the TEU all the

provisions concerning the CFSP; so they included, in Article 24, the provision that we are commenting

upon. The purpose was not to extend the ECJ jurisdiction over CFSP decisions providing for restrictive

measures, but simply to present a synthetic version of the content of Article 275 TFEU.

Besides, recognition of the preliminary ruling procedure as a mechanism allowing the ECJ to

review the legality of CFSP restrictive measures, blurs the distinction between monitor compliance with

Article 40 TEU (that can occur through any procedure) and review the legality of restrictive measures

(for which Article 275 TFEU provides for a specific procedure).

3.2. The Principle of Effective Judicial Protection and the Preliminary Ruling Procedure

In the Rosneft judgment the Court makes use of the principle of effective judicial protection to

introduce the preliminary ruling procedure as a means to review the legality of CFSP restrictive

measures against natural or legal persons.

The Court is particularly insistent on the argument: ‘[G]iven that the implementation of a

decision providing for restrictive measures against natural or legal persons is in part the responsibility

of the Member States, a reference for a preliminary ruling on the validity of a measure plays an

essential part in ensuring effective judicial protection, particularly, where, as in the main proceedings,

both the legality of the national implementing measures and the legality of the underlying decision

adopted in the field of the CFSP itself are challenged within national legal proceedings’; 8 ‘the principle

of effective judicial protection (…) implies that the exclusion of the Court’s jurisdiction in the field of the

CFSP should be interpreted strictly’; 9 ‘provided that the Court has, under Article 24(1) TEU and the

second paragraph of Article 275 TFEU, jurisdiction ex ratione materiae to rule on the validity of

European Union acts, that is, in particular, where such acts relate to restrictive measures against

natural or legal persons, it would be inconsistent with the system of effective judicial protection

established by the Treaties to interpret the latter provision as excluding the possibility that the courts

and tribunals of Member States may refer questions to the Court on the validity of Council decisions

prescribing the adoption of such measures’.10

8 Para 71; emphasis added.




The situation reminds us the UPA judgment.11 Where the Court refused to relax its

interpretation of the ‘individual concern’, as a condition for the individuals´ standing under Article 263

TFEU, and left the responsibility of ensuring effective judicial protection to national courts and

tribunals.

After recalling that the European Community was a community based on the rule of law and

that individuals were therefore entitled to effective judicial protection of the rights they derived from

the Community legal order, the Court held in UPA that the Treaty had established a complete system

of legal remedies and procedures designed to ensure judicial review of the legality of acts of the

institutions, and had entrusted such review to the ECJ. It also stated that, under that system, where

natural or legal persons could not, by reason of the conditions for admissibility laid down in current

Article 263 TFEU, directly challenge Community measures of general application, they were able,

depending on the case, either indirectly to plead the invalidity of such acts before the ECJ under

current Article 277 TFEU or to do so before the national courts and ask them, since they have no

jurisdiction themselves to declare those measures invalid, to make a reference to the Court of Justice

for a preliminary ruling on validity. The Court then concluded that ‘it is for the Member States to

establish a system of legal remedies and procedures which ensure respect for the right to effective

judicial protection’;12 and, in that context, in accordance with the principle of sincere cooperation, it

stated that ‘national courts are required, so far as possible, to interpret and apply national procedural

rules governing the exercise of rights of action in a way that enables natural and legal persons to

challenge before the courts the legality of any decision or other national measure relative to the

application to them of a Community act of general application, by pleading the invalidity of such an

act’.13

In the Rosneft judgment the Court conceives again the preliminary ruling procedure as the

mechanism ensuring effective judicial protection within the EU system. Relaxing, in the light of this

principle, the interpretation of Article 263 TFEU, as far as the standing of individuals in concerned, is

clearly anathema to the Court.14 Given such attitude, the solution always lays in Article 267 TFEU.

11 C-50/00 P Unión de Pequeños Agricultores [2002] EU:C:2002:462.

12 Para 41.

13 Para 42.

14 In this sense, J. Juret considers ‘ironique ... de voir la Cour défendre une ouverture plus grande du contrôle de légalité en

contournant le recours en annulation alors qu´elle a maintenu malgré les années la rigueur de ses conditions de recevabilité’

(‘L´arrêt Rosneft...’, n 6, 6).


However, there is a distinction in the Court´s position towards the Treaties in these two cases.

While in UPA the Court refused to play with the interpretation of the Treaties (more specifically of

current Article 263 TFEU), in Rosneft the Court clearly does so (with Article 24 TEU). Extending the locus

standi of individuals in the framework of the action for annulment is, indeed, anathema to the Court.

3.3. The Incidence of the TWD Case Law

When assessing the impact of the Rosneft judgment, it is important to recall the TWD case law.15

It is well known that according to this case law, those persons who, unquestionably, had the

right to bring an action of annulment against an EU act and failed to exercise that right within the two-

months period established by Article 263 TFEU, cannot, at a later time, challenge the legality of such

act before a national court in order that the national court refers a preliminary ruling to the Court. The

act has become definitive in their respect.

Given that the locus standi under Article 263 TFEU of the persons named in a CFSP decision

providing for restrictive measures is beyond doubt,16 the TWD case law implies that those persons can

challenge the legality of the decision containing their names before a national court only if they have

previously brought an action for annulment against it.17 In other words, the period of two months

prescribed by Article 263 TFEU extends its effects to Article 267 TFUE. Or, said differently, the persons

listed in a CFSP decision prescribing restrictive measures cannot circumvent the mandatory time limit

laid down in Article 263 TFEU.

In the Rosneft case, this company could plead before the High Court of Justice (England &

Wales) the unlawfulness of the Decision 2014/512, because it had filed timely an action for annulment

against it before the General Court.

Unfortunately, in the judgment the Court does not highlight this circumstance, although it

mentions, on a purely theoretical level, the TWD case law.18 Seemingly the Court was reluctant to

15 C-188/92 TWD Textilwerke Deggendorf [1994] EU:C:1994:90.

16 See, in this respect, Joined Cases C-478/11 P to C-482/11 P Gbagbo [2013] EU:C:2013:258, para 57; C-440/14 P National

Iranian Oil Company [2016] EU:C:2016:128, para 44; and, C-200/13 P Bank Saderat Iran [2016] EU:C:2016:284, para 20.

17 In this sense, see Poli, ‘The Common Foreign...’, n 5, 1824.

18 In paragraph 67, dealing with the interrelation between the action for annulment and the request for preliminary ruling, the

Court holds:

‘It is inherent in that complete system of legal remedies and procedures that persons bringing proceedings must, when an

action is brought before a national court or tribunal, have the right to challenge the legality of provisions contained in European

Union acts on which a decision or national measure adopted in respect of them is based, pleading the invalidity of that decision

or measure, in order that the national court or tribunal, having itself no jurisdiction to declare such invalidity, consults the Court

on that matter by means of a reference for a preliminary ruling, unless those persons unquestionably had the right to bring an


introduce any element that could reduce the scope of its preliminary reference jurisdiction in relation

to decisions providing for restrictive measures. But, whether the Court explicitly alludes to it or not,

that limitation deriving from the TWD case law exists and it would have been convenient, for didactical

purposes, that the Court would have made this clear.

Because usually it is the listed people who challenge the legality of said decisions before the

national courts, the proclamation of the ECJ jurisdiction to rule on preliminary rulings to assess the

validity of EU restrictive measures has an incidence more limited than a reading of the Rosneft

judgment ignoring the TWD case law could lead to believe. If those people did not seek the annulment

by the ECJ of the decisions containing their names, they will be barred from challenging their legality

indirectly, before a national court. It is good to keep it in mind.

3.4. The Relevance of the ECJ Jurisdiction to Give Preliminary Rulings on the Validity of CFSP

Restrictive Measures

Despite of the above, the practical importance of the Rosneft judgment cannot be ignored.

First, because it allows that individuals not listed in a decision prescribing restrictive measure,

whose standing to bring proceedings under Articles 263 and 275 TFEU was therefore not obvious, call

into question the lawfulness of that decision before a national court in an action brought against the

measures taken by the national authorities to implement it. The A and Others case comes to mind as

a perfect example here.19

In June 2010, the Dutch Minister of Foreign Affairs adopted designation orders in respect of A

and three more people (A and Others) on the basis of the national Regulation on sanctions for the

suppression of terrorism, resulting in the freezing of their respective financial resources. The Minister

took into consideration that these persons were involved in raising funds for the Liberation Tigers of

Tamil Eelam (LLTE); it also took into account the inclusion of LLTE in the list of entities whose funds

were to be frozen, according to EU law. In their appeal before de Raad van State, A and Others argued,

inter alia, that the LTTE was not a terrorist organisation, because the conflict between that entity and

the Government of Sri Lanka had to be regarded as an armed conflict within the meaning of

international humanitarian law. They asserted that the inclusion of that entity on the list of those

action against those provisions on the basis of Article 263 TFEU and failed to exercise that right within the period prescribed

(see, to that effect, judgments of 15 February 2001, Nachi Europe, C-239/99, EU:C:2001:101, paragraphs 35 and 36, and of 29

June 2010, E and F, C-550/09, EU:C:2010:382, paragraphs 45 and 46)’.

19 C-158/14 A and Others [2017] EU:C:2017:202.


whose funds were to be frozen was, accordingly, unlawful. In this context the Raad van State submitted

several questions to the ECJ. By its first question, the referring court asked whether it was obvious,

within the meaning of the TWD case law, that actions for annulment against the EU acts which included

and then maintained the LTTE on the list of those whose funds were to be frozen, brought before the

General Court by persons in a situation such as that of the appellants in the main proceedings, would

unquestionably have been admissible.

The Court answered in the negative. It took into consideration that the appellants in the main

proceedings were not themselves included in the EU list. It noted also that it was not obvious that they

were ‘individually’ concerned by those acts for the purposes of Article 263 TFEU; indeed, according to

the Court, the inclusion of the LTTE on the list of those whose funds were to be frozen was of general

application with regard to persons other than that entity. Lastly, the Court observed that the situation

of A and Others was directly affected, not by the EU acts relating to that inclusion, but by the imposing

of sanctions based solely on Netherlands law, which took into account, among other factors, that

inclusion.

The A and Others case illustrates particularly well why allowing the preliminary ruling procedure

to be used to review the legality of EU restrictive measures can be extremely useful for not-listed

persons, whose standing under Article 263 TFEU would not have been beyond doubt. These

individuals have the chance to challenge those measures through national courts.

But having ultimately access to Article 267 TFEU can be of interest also to those persons of

unquestionable standing and who, in fact, introduced a direct action against a CFSP restrictive

measure. It allows those persons to contest the legality (thus blocking the effects) of the national

measures enacted to implement the CFSP restrictive measure before the ECJ has annulled it. The

preliminary reference procedure offers to those individuals another means of defence.

3.5. The Deference of the ECJ Towards the High Court of Justice (England & Wales)

The last issue that I would like to draw the attention to is the respect shown by the ECJ to the High

Court of Justice (England & Wales).

It must be recalled that the High Court of Justice decided to stay the proceedings and to send

a request for a preliminary ruling to the ECJ, although it was aware that an action for annulment was

pending before the General Court. Instead of staying proceedings until a final decision was delivered

by the ECJ on such an action for annulment, the High Court submitted its questions to the Court. And

the whole procedure before the General Court adapted to this circumstance.


In fact, in application of Article 54 of Statute of the Court of Justice of the EU, the General Court

stayed the proceedings before it until the Court of Justice delivered its judgment in the Rosneft case.20

Notice that the ECJ gave priority to the reference for a preliminary ruling, despite its preference

(openly confessed in the Georgsmarienhütte judgment21) in favour of the action for annulment as a

means for reviewing the legality of EU acts.22 Notwithstanding this preference for a direct action before

the ECJ, in the Rosneft case the Court respected the freedom accorded to national courts in the

Masterfoods judgment, namely the freedom to refer a question to the Court for a preliminary ruling

instead of waiting until a definitive decision has been given in the action for annulment.23

This deference shown by the ECJ towards the national courts cannot be a surprise. After all,

the ECJ needs the co-operation of national courts in order for the ‘complete system of legal remedies

and procedures’ designed by the Treaties to run smoothly and be effective.

20 T-715/14 Rosneft [2018] EU:T:2018:544.

21 C-135/16 Georgsmarienhütte [2018] EU:C:2018:582.

22 ‘The action for annulment, which is complemented by the possibility of appealing against the ruling of the General Court,

provides a particularly appropriate procedural framework for the thorough examination, both parties being duly heard, of legal

and factual questions ...’ (para 19).

23 C-344/98 Masterfoods [2000] EU:C:2000:689, para 55.


Chapter 6 Dispute Resolution Among Member States at the

Court of Justice on the Basis of Article 273 TFEU: A comment on C-648/15 Austria v Germany

Janek Tomasz Nowak

1. Introduction

Article 273 TFEU allows EU Member States to elect the Court of Justice by way of a special agreement

as a forum to decide any dispute between them that relates to the subject matter of the EU Treaties.

While this basis for jurisdiction was already included in the ECSC Treaty1, the Court had to wait 66

years until it could exercise it for the first time. The judgment in Austria v Germany2, therefore, merits

our attention, in particular from a historical and a procedural perspective. Historical, because it marks

a new step in the ever-expanding role of the Court of Justice, this time as a forum of choice for

international dispute resolution between sovereign states. Procedural, because it allows for the

clarification of several issues regarding the application of Article 273 TFEU that have remained open

so far.

The case comment is structured as follows. The first part consists of a brief explanation of the

facts of the case and the mechanism by which the Article 273 procedure was activated. In the second

part, I will analyse the four conditions for establishing the jurisdiction of the Court under Article 273

TFEU. The nature of the Court’s powers under Article 273 TFEU will be considered in the third part,

followed by a fourth part on enforcement. The issue of applicable law will not be discussed here as it

MPI Luxembourg – KU Leuven – MCI Innsbruck. I wish to thank Dr. Kathleen Gutman and dr. Edoardo Stoppioni for their very

helpful comments on earlier drafts. I also want to express my utmost gratitude to Prof. dr. Daniel Sarmiento for having given

me the chance to contribute to this forum. All mistakes remain my own.

1 Art 89 ECSCT. Also, from an early stage, this provision was used to confer jurisdiction upon the Court of Justice by way of a

special agreement. See, inter alia, the Agreement on the establishment of through international railway tariffs [1955] 9 OJ 701

(DE, FR, IT, NL), English special ed: Series I Ch 1952-1958, 25.

2 Judgment of 12 September 2017, Austria v Germany, C-648/15, EU:C:2017:664.

http://curia.europa.eu/juris/document/document.jsf?text=&docid=194281&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=6866445


is not a matter exclusive to Article 273 TFEU procedures3 and given the subject-matter of the case

probably more relevant from a tax law perspective,4 which is not the focus of this case comment.

2. Summary of the Case

The case concerns a dispute between Austria and Germany on the interpretation of a provision of the

Austrian-German Double Taxation Treaty5 (DTT) regarding their respective powers to tax income in

the form of interest generated by financial instruments. Article 11(1) DTT stipulates that income in the

form of interest is taxed by the State of residence or establishment of the beneficiary. However, Article

11(2) DTT provides that income from rights or debt-claims with participation in profits may also be

taxed in the State in which the income arises. Since interest may be the type of income provided for

both in Article 11(1) and Article 11(2) DTT, Article 23 DTT obliges both States to apply the offset method,

meaning that the State that has the power to tax under Article 11(1) DTT will offset any taxes paid in

the other State under Article 11(2) DTT.

Bank Austria AG, located in Austria within the meaning of Article 11(1) DTT, obtained

certificates from Landesbank NRW, a bank located in Germany. These certificates conferred an

entitlement to an annual payment of interest to their holders. The issue in dispute was whether these

certificates were a participation in profits within the meaning of Article 11(2) DTT. Germany claimed

this was the case and taxed the interests on the basis of Article 11(2) DTT. This meant that Austria

could not tax the interests in full but had to apply the offset mechanism provided for in Article 23 DTT.

Austria, however, did not agree with the qualification given to it by the German tax authorities and

taxed the interests obtained by Bank Austria AG in full on the basis of Article 11(1) DTT.

Bank Austria AG, faced with a problem of double taxation, lodged a request for the initiation

of the so-called Verständigungsverfahren (‘mutual agreement procedure’) provided for in the DTT6,

pursuant to which Austria and Germany are obliged to consult each other to solve the issue of double

3 Cf J. Odermatt, ‘The use of international law by the Court of Justice of the European Union’ (2015) 17 Cambridge Yearbook of

European Legal Studies 121.

4 J. Luts and C. Kempeneers, ‘Case C-648/15 Austria v Germany: Jurisdiction and powers of the CJ to settle tax treaty disputes

under Article 273 TFEU’ (2018) 27 EC Tax Review 5; F. Avella, ‘Using EU law to interpret undefined tax treaty terms: Article 31(3)(c)

of the Vienna Convention of the Law of Treaties and Article 3(2) of the OECD Model Convention’ (2012) World Tax Journal 95.

5 Abkommen zwischen der Republik Österreich und der Bundesrepublik Deutschland zur Vermeidung der Doppelbesteuerung

auf dem Gebiete der Steuern vom Einkommen und vom Vermögen (2002) BGBl III 182, 1129.

6 Art 25(1) DTT.

https://www.bmf.gv.at/steuern/int-steuerrecht/DBA-Liste.html#heading_G


taxation.7 That procedure was concluded unsuccessfully, upon which Bank Austria AG applied to

Austria to bring the issue before the Court of Justice on the basis of Article 25(5) DTT.8 Being obliged

to do so by the DTT, Austria seized the Court of Justice and asked it to rule that the certificates did not

constitute debt-claims with participation in profits and to order Germany to refrain from continuing to

tax the interest concerned and to reimburse the taxes unduly levied. Conversely, Germany asked the

Court of Justice to rule that the certificates did constitute debt-claims with participation in profits, and

to order Austria to apply the offset mechanism provided for in the DTT and to reimburse the taxes

unduly levied.

The Court of Justice sided with Austria and held that the certificates did not constitute debt-

claims with participation in profits.9 It refrained, however, from issuing an injunction to Germany to

stop taxing the interests. The Court considered its interpretation as sufficient in this regard.10 It also

did not uphold the request to order the reimbursement of the taxes unduly levied because it did not

have the necessary information before it to proceed accordingly11, the Court being wary of ‘possible

interference with existing procedures potentially pending before the courts of either of the two

States’.12

3. Issues of Jurisdiction

Four cumulative conditions have to be met before the Court of Justice can accept jurisdiction on the

basis of Article 273 TFEU, namely (i) that a dispute exists (ii) between Member States (iii) relating to the

subject-matter of the Treaties (iv) submitted to the Court following a special agreement. I will address

each of these conditions in the following subheadings in light of the judgment in Austria v Germany.

7 Arts 25(2)-(4) DTT.

8 Art 25(5) DTT: Können Schwierigkeiten oder Zweifel, die bei der Auslegung oder Anwendung dieses Abkommens entstehen,

von den zuständigen Behörden nicht im Verständigungsverfahren nach den vorstehenden Absätzen dieses Artikels innerhalb

einer Frist von drei Jahren ab der Verfahrenseinleitung beseitigt werden, sind auf Antrag der Person im Sinne des Absatzes 1

die Staaten verpflichtet, den Fall im Rahmen eines Schiedsverfahrens entsprechend Artikel 239 EG-Vertrag vor dem Gerichtshof

der Europäischen Gemeinschaften anhängig zu machen.

9 Austria v Germany, para 54.

10 ibid, para 55.

11 ibid, para 56.

12 ibid, para 57.


3.1 Existence of a Dispute

Part of the doctrine13 as well as the Advocate General in his Opinion14 appear to consider that Article

273 TFEU only lists three conditions for jurisdiction: (i) the existence of a dispute between Member

States (ii) related to the subject-matter of the Treaties (iii) submitted to it by way of a special agreement.

By reading Article 273 TFEU in this way they fail to acknowledge that the requirement that a dispute

exists is a self-standing condition for jurisdiction, separate from the condition that the dispute must

exist between Member States. The oversight may be explained by the fact that the existence of a

dispute as a separate condition to establish the Court’s jurisdiction is largely alien to an EU law context,

also in Article 259 procedures opposing two Member States.

The nature of an Article 273 procedure between two Member States is, however, different

from an Article 259 procedure. Although the Court is still acting as an EU institution in such a

procedure15, the dispute submitted to it does not concern the interpretation or application of the EU

Treaties but a dispute of international law between two sovereign states. This creates an interesting

hybrid situation. On the one hand, the Court as an EU institution is bound by the EU Treaty framework

and must respect the limitations that come with it. On the other hand, the Court is called upon to

decide a dispute that falls outside the scope of the EU Treaty framework and follows an international

law logic.16 It is in hybrid situations like these that procedural concepts alien to EU law may become

relevant, even though the Court’s procedural rules for direct actions will apply in principle.17

13 C. Gaitanides, ‘AEUV Art. 273 (ex-Art. 239 EGV) [Zuständigkeit auf Grund eines Schiedsvertrages]’ in H. von der Groeben, J.

Schwarze and A. Hatje (eds), Europäisches Unionsrecht Kommentar (7th edn, Nomos, 2015) no 6; U. Karpenstein, ‘AEUV Art. 273

Zuständigkeit auf Grund eines Schiedsvertrages’ in E. Grabitz, M. Hilf, M. Nettesheim and M. Athen (eds), Das Recht der

Europäischen Union: EUV/AEUV (Beck, 2019) no 8; U. Ehricke, ‘AEUV Art. 273 [Zuständigkeit auf Grund eines Schiedsvertrages]’ in

R. Streinz (ed), EUV/AEUV Kommentar (3rd edn, Beck, 2018) no 6. It should be pointed out that Karpenstein nevertheless analyses

the existence of a dispute as a separate and thus fourth condition (no 10). The same goes for Ehricke (no 7). He subsumes it,

however, in the condition that the dispute must relate to the subject-matter of the Treaties. Such an approach can also be

found in K. Lenaerts and others, EU Procedural Law (OUP, 2014) 698. I believe it is henceforth better to speak of four instead of

three conditions as subsuming the condition that a dispute exists in another condition fails to acknowledge the importance of

that condition as an element of jurisdiction under Art 273 TFEU.

14 Opinion of Advocate General P. Mengozzi of 27 April 2017, Austria v Germany, C-648/15, EU:C:2017:311, points 33-34.

15 S. Cremer, ‘AEUV Art. 273 (ex-Art. 239 EGV) [Zuständigkeit auf Grund eines Schiedsvertrages]’ in C. Callies and M. Ruffert (eds),

EUV/AEUV Kommentar (5th edn, Beck, 2016) no 1; Ehricke (n 13), no 9; Karpenstein (n 13), no 2.

16 Note also that the applicable law is not EU law but international law, save when parties have stipulated otherwise: Gaitanides

(n 13), no 10; Cremer (n 15), no 4; Ehricke (n 13), no 9; Karpenstein (n 13), no 10. This also appears from the judgment in Austria

v Germany, para. 38.

17 K.P.E. Lasok, Lasok’s European Court practice and procedure (3rd edn, Bloomsbury, 2017) 1287.

http://curia.europa.eu/juris/liste.jsf?language=en&jur=C%2CT%2CF&num=c-648/15&parties=&dates=error&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&alldocrec=alldocrec&docdecision=docdecision&docor=docor&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoor=docnoor&docppoag=docppoag&radtypeord=on&newform=newform&docj=docj&docop=docop&docnoj=docnoj&typeord=ALL&domaine=&mots=&resmax=100&Submit=Rechercher


Such is the case for the requirement that a dispute must exist before initiating proceedings,

which is a key requirement for international dispute settlement bodies to establish jurisdiction.18 For

example, in the case law of the International Court of Justice (ICJ), the question of the existence of a

dispute is a preliminary issue that needs to be addressed before all other matters, it being ‘the primary

condition for the Court to exercise its judicial function’.19 The ICJ has defined the notion as ‘a

disagreement on a point of law or fact, a conflict of legal views or of interests between two persons ’.20

It requires the parties to ‘hold clearly opposite views concerning the question of the performance or

non-performance of certain international obligations’21 over which the ICJ has been asked to rule. This

implies some form of awareness of the fact that a dispute exists, without there being a need for prior

negotiations22, a formal diplomatic protest23 or ‘notice of an intention to file a case is not required as

a condition for the seisin of the Court’.24 The disagreement should not even have been stated expressly

but may be inferred from the attitude of a party.25 The ICJ’s approach has thus been rather flexible26;

parties barely ran into trouble when it came to the existence of a dispute.27 However, in the recent

Marshall Islands cases the ICJ applied the following test: ‘a dispute exists when it is demonstrated, on

the basis of the evidence, that the respondent was aware, or could not have been unaware, that its

18 See, for example, B.I. Bonafé, ‘Establishing the existence of a dispute before the International Court of Justice: Drawbacks and

implications’ (2017) 45 Questions of International Law 3; H. Thirlway, ‘Quelques observations sur le concept de dispute (différent,

contestation) dans la jurisprudence de la C.I.J.’ in M. Kamga and M.M. Mbengue (eds), Liber Amicorum Raymond Ranjeva (Pedone,

2013) 611; A. Garrido-Muñoz, ‘Dispute’ in M. Wolfrum (ed), Max Planck Encyclopedias of International Law: Max Planck Encyclopedia

of Public International Law (2018 update, OUP, 2018), no 1; P. Palchetti, ‘Dispute’ in H. Ruiz Fabri (ed), Max Planck Encyclopedias

of International Law: Max Planck Encyclopedia of International Procedural Law (OUP, 2019), no 1.

19 Nuclear Tests (Australia v France, New Zealand v France) [1974] ICJ Rep 253, para 55.

20 Mavrommatis Palestine Concessions (Greece v Great Britain) (Jurisdiction) PCIJ Rep Series A No 2, 11.

21 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia) (Preliminary Objections)

2016 ICJ Rep 26, para 50.

22 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) (Preliminary Objections) 1998 ICJ Rep 322,

para 109.

23 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia), para 72

24 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), para 39.

25 ibid, para 89.

26 E. Stoppioni, ‘Decentring the ICJ: A critical analysis of the Marshall Islands judgments’ (2017) 45 Questions of International Law

65, 68.

27 Cf C.J. Tams, ‘The contentious jurisdiction of the Permanent Court’ in C.J. Tams and M. Fitzmaurice (eds), Legacies of the

Permanent Court of International Justice (Martinus Nijhoff, 2013) 34 ff.


views were “positively opposed” by the applicant’.28 It also underscored that while ‘the moment on

which the existence of a dispute is determined is the date of the application to the ICJ’,29 the filing of

an application in itself could not serve as proof that opposing views existed.30 The ICJ then went on to

dismiss the cases because no dispute existed.31

It should be pointed out that Marshall Islands is considered part of a rather new development,

the ICJ seemingly adopting a stricter and more formal approach towards jurisdiction.32 Traditionally,

the requirement that a dispute exists is considered primarily as a means for the ICJ to safeguard its

judicial function in contentious proceedings and to distinguish its contentious jurisdiction from its

advisory jurisdiction.33 The approach in Marshall Islands departs from this34 and is believed to serve

other purposes, such as the protection of the rights of the respondent party35 or a stimulus for parties

28 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands

v India) (Jurisdiction and Admissibility) 2016 ICJ Rep 255, para. 38; Obligations concerning Negotiations relating to Cessation of the

Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan) (Jurisdiction and Admissibility) 2016 ICJ Rep 552, para.

38; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands

v United Kingdom) (Preliminary Objections) 2016 ICJ Rep 833, para 41.

29 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia), para 52; Application of the

International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary

Objections) 2011 ICJ Rep 70, para 30.


v India), paras 40 and 50; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear

Disarmament (Marshall Islands v Pakistan), paras 40 and 50; Obligations concerning Negotiations relating to Cessation of the Nuclear

Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom), paras 43 and 54.


v India), para. 56; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament

(Marshall Islands v Pakistan), para. 56; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to

Nuclear Disarmament (Marshall Islands v United Kingdom), para. 59.

32 Garrido-Muñoz (n 18), no 12 ff; A. Miron, ‘“Establishing the existence of a dispute before the International Court of Justice”:

Between formalism and verbalism’ (2017) 45 Questions of International Law 43; J. McIntyre, ‘Put on notice: The role of the dispute

requirement in assessing jurisdiction and admissibility before the International Court’ (2018) 19 Melbourne Journal of

International Law (2018) 1, 36. See, however, Stoppioni (n 26), 75.

33 Bonafé (n 18), 28. See also G.I. Hernández, The International Court of Justice and the judicial function (OUP, 2014) 63 ff. This sits

remarkably close to the requirement in the case law of the Court of Justice in the context of the preliminary reference procedure

that a dispute must exist before the referring judge, for the Court does not give advisory opinions. See Lenaerts and others (n

13), 87 ff.

34 V.-J. Proulx, ‘The World Court’s jurisdictional formalism and its lost market share: The Marshall Islands decisions and the quest

for a suitable dispute settlement forum for multilateral disputes’ (2017) 30 Leiden Journal of International Law 925, 930.

35 Bonafé (n 18), 20 ff.


to settle their disputes between themselves before going to court.36 Others see in it a purely political

move, allowing the ICJ to get around the contentious issue of nuclear disarmament.37 Generally, the

reception in the doctrine has been largely negative38 and it remains to be seen whether the ICJ will

continue on this stricter path of prior awareness.39 That being said, the stronger emphasis on prior

awareness is not limited to the case law of the ICJ40 and may thus be part of a wider trend to formalise

the pre-litigation phase in international dispute settlement.

As an EU procedural lawyer it is interesting to approach this debate through the lens of the

design of infringement procedures in the EU Treaties. It should be recalled that Articles 258-260 TFEU

provide for a mandatory pre-litigation procedure that has to be completed before a Member State

can be brought before the Court of Justice for having failed to fulfil its obligations under the EU

Treaties.41 In the pre-litigation procedure, the respondent party will be notified of the existence of a

dispute as well as the nature and the scope of the disagreement.42 This has a three-fold aim: allowing

parties to come to a settlement before resorting to court proceedings; the protection of the rights of

the respondent party; and ensuring a clear definition of the subject-matter of the dispute in

subsequent judicial proceedings.43 The underlying goals of the pre-litigation procedure thus largely

reflect the various policy objectives the doctrine ascribes to the ICJ’s approach to the requirement that

a dispute must exist – protection of judicial function44, rights of the respondent party45 and

encouraging prior settlement.46 With these strong parallels in mind, the pre-litigation phase of Article

258-260 procedures can be seen as the functional equivalent of the requirement in the case law of

36 Cf Palchetti (n 18), no 38; Y. Shany, Questions of jurisdiction and admissibility before international courts (CUP, 2016) 103. Note

that the ICJ outlined similar policy considerations in Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v Russian Federation), paras 124-125.

37 A. Bianchi, “Choice and (the awareness of) its consequences: The ICJ’s ‘structural bias’ strikes again in the Marshall Islands case”,

(111) AJIL Unbound 2017, 81-87; Stoppioni (n 26), 65.

38 For a summary of the relevant doctrine, see McIntyre (n 32), 3 ff.

39 Garrido-Muñoz (n 18), no 38; McIntyre (n 32), 40.

40 Garrido-Muñoz (n 18), no 15.

41 Lenaerts and others (n 13), 191.

42 ibid, 186 ff.

43 T. Materne, La procédure en manquement d’État (Larcier, 2012) 60.

44 McIntyre (n 32), 37 ff.

45 Bonafé (n 18), 20 ff.

46 Shany (n 36), 103.


the ICJ that a dispute must exist as a criterion for establishing jurisdiction. This may explain why the

requirement that a dispute exists is no explicit condition for establishing the Court of Justice’s

jurisdiction in disputes opposing the European Commission and a Member State or two Member

States47: the proceduralisation of the condition through the pre-litigation procedure implies that the

Court of Justice will limit its analysis to an evaluation of the relevant aspects of the pre-litigation

procedure. It may also explain why the condition has not been identified as a separate condition in

Article 273 TFEU by part of the doctrine and in the Advocate General’s opinion.

It cannot be presumed, however, that the requirement that a dispute exists has been the

subject of proceduralisation in disputes submitted to the Court on the basis of Article 273 TFEU. For

that reason, the condition that a dispute exists between Member States must be read as a dual

condition, namely that a dispute exists and that the dispute exists between Member States; and the

Court must analyse it as a separate condition. The former condition should not be subsumed in the

latter. This appears also from the judgment in Austria v Germany. The Court assessed in two paragraphs

whether the condition that a dispute existed between Member States was fulfilled. The goal of this

assessment was clearly not to verify whether Austria and Germany were indeed Member States of the

European Union but whether a dispute existed between them. The Court did not give any criteria to

assess the requirement as it was ‘beyond doubt’ that it was fulfilled,48 exactly because Austria and

Germany had proceduralised the condition through the procedure laid down in Article 25 DTT. It can,

however, not be excluded that the Court may have to embark upon a more detailed analysis in the

context of an application under Article 273 TFEU.

3.2 Between Member States

The second criterion did not require any assessment at all in this case. Both Austria and Germany are

Member States of the European Union. This does not mean that the requirement will always be

without problems. Issues may arise where Member States have decided to organise themselves

collectively outside the framework of the Treaties. Moreover, in some parts of the doctrine Article 273

TFEU is referred to as a basis for the Court’s jurisdiction in disputes between the EU and third states.

A more recent issue concerns the impact of a Member State ceasing to be a Member State of the

European Union on an Article 273 procedure.

47 Cf Palchetti (n 18), no 5.



3.2.1 Common Institutions

In the context of the ESM Treaty,49 the question arose whether the notion of Member State in Article

273 TFEU encompasses also common institutions set up by the Member States outside of the

framework of the Treaties. In its Pringle judgment, the Court decided that this is the case since the

European Stability Mechanism (ESM) solely consists of Member States.50 A dispute between the ESM

and a Member State would thus amount to a dispute between a group of Member States and a single

Member State. Therefore, Article 37(3) ESM Treaty meets the requirements listed in Article 273 TFEU.51

This rather flexible approach does not mean that every institution set up by the Member

States would qualify as a Member State for the purposes of Article 273 TFEU. The institution concerned

must truly be a common structure of a group of Member States; an embodiment of their common

will. That is, for example, not the case for the European Commission. Article 17(3), third para TFEU

states that the European Commission acts independently from the Member States. This does not

change when the European Commission is being tasked by way of an international agreement

concluded between EU Member States to perform duties that lay outside of the Treaty framework, for

such additional duties may not alter the essential character of the powers conferred upon the

European Commission by the Treaties.52 It cannot be disputed in this regard that their independent

exercise is an essential characteristic of the powers conferred upon the European Commission by the

EU Treaties. Further to this, it should be added that the additional duties conferred may not entail any

power for the EU institution concerned to make decisions of its own.53 The practice of using EU

institutions outside of the EU Treaty framework, which has been referred to as ‘institutional

borrowing’54, is thus limited to managerial and supervisory activities. This would exclude the power to

decide to bring a case before the Court of Justice.

This explains why the drafters of the Treaty on Stability, Coordination and Governance in the

Economic and Monetary Union (TSCG)55 did not rely exclusively on the European Commission to

49 2 February 2012, unpublished.

50 Judgment of the Court of 27 November 2012, Pringle, C-370/12, EU:C:2012:756, para 175.

51 ibid, para 176.

52 ibid, para 162.

53 ibid, para 161.

54 B. de Witte and T. Beukers, ‘The Court of Justice approves the creation of the European Stability Mechanism outside the EU

legal order: Pringle’ (2013) 50 Common Market Law Review 805, 845.

55 2 March 2012, Celex 42012A0302, unpublished.

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ensure the application and enforcement of the requirements of Article 3(2) TSCG.56 Article 8(1) TSCG57

invites the European Commission to report on the measures Member States have taken to comply

with the obligation laid down in Article 3(2) TSCG. This imposes an obligation on part of the European

Commission to monitor whether the budgetary position of a Member State is balanced or in surplus.

If the European Commission concludes that this is not the case, the matter will be brought before the

Court of Justice after the Member State concerned had been given the opportunity to submit

observations. So far this mirrors largely the pre-litigation phase of the infringement procedure in

Article 258 TFEU. It is, however, not the European Commission that will seize the Court of Justice. Article

8(1) TSCG puts the responsibility for bringing the matter before the Court of Justice on the other

Member States. The reason is twofold. On the one hand, the European Commission cannot be

considered as a Member State within the meaning of Article 273 TFEU58; it would thus not be able to

bring an admissible action. On the other hand, seizing the Court of Justice would entail a power to

make a decision of its own, which goes beyond the duties the European Commission can perform in

the context of institutional borrowing.

That being said, to ensure that judicial enforcement will actually take place Member States do

not have a margin of discretion.59 The Court must be seized when the European Commission

concludes that a Member State has failed to fulfil its obligations under Article 3(2) TSCG. This implies

that it is de facto the European Commission that will nevertheless trigger proceedings before the Court

56 The way in which the mechanism was designed must be distinguished from the reason why such a mechanism was set up

outside of the legal framework of the EU Treaties. This is because it would not have been possible to have recourse to

infringement proceedings as this is excluded by Art 126(10) TFEU.

57 Article 8(1) TSCG: The European Commission is invited to present in due time to the Contracting Parties a report on the

provisions adopted by each of them in compliance with Article 3(2). If the European Commission, after having given the

Contracting Party concerned the opportunity to submit its observations, concludes in its report that such Contracting Party has

failed to comply with Article 3(2), the matter will be brought to the Court of Justice of the European Union by one or more

Contracting Parties. Where a Contracting Party considers, independently of the Commission's report, that another Contracting

Party has failed to comply with Article 3(2), it may also bring the matter to the Court of Justice. In both cases, the judgment of

the Court of Justice shall be binding on the parties to the proceedings, which shall take the necessary measures to comply with

the judgment within a period to be decided by the Court of Justice.

58 In relation to the ESM Treaty, see A. Dimopoulos, ‘The use of international law as a tool for enhancing governance in the

Eurozone and its impact on EU institutional integrity’ in M. Adams, F. Fabbrini and P. Larouche (eds), The constitutionalization of

European budgetary constraints (Hart/Bloomsbury, 2014) 41, 56.

59 Editorial Comments, ‘A revival of the Commission’s role as guardian of the Treaties?’ (2012) 49 Common Market Law Review

1553, 1557. In this way Art 8(1) TSCG deviates from Art 258 TFEU, as the decision to initiate proceedings before the Court is of

a discretionary nature.


of Justice.60 The mechanism provided for in Article 8 TSCG appears thus to be a means to circumvent

the requirements of Article 273 TFEU and the Court’s case law on institutional borrowing. The

judgment in Austria v Germany demonstrates, however, that the Court is not likely to take any issue

with the mechanism in the context of Article 273 TFEU. According to the procedure laid down in Article

25 DTT, the Austrian State was obliged to seize the Court following a request of Bank Austria AG. It

was thus a private company that triggered the procedure before the Court, the Austrian State not

having any margin of appreciation. The notion of Member State in Article 273 TFEU thus appears to

be a formal one: proceedings must be started by a Member State or a group of Member States,

whether or not through the intermediary of a common institution. The question of whether the actual

bringing of the case before the Court is a discretionary exercise of sovereign power by that particular

Member State is not relevant. It suffices that an action is brought in accordance with the conditions

set out in the pre-existing agreement to which the Member State concerned is a party.

3.2.2 Third States

Article 273 TFEU does not provide a legal basis for the Court of Justice to act as a forum to settle

disputes between the EU and third states or between the Member States and third states. If an

international agreement concluded between the EU or its Member States and a third State provides

that the Court of Justice should settle any disputes that may arise from the application of the

international agreement, the legal basis for jurisdiction follows from that agreement and has nothing

to do with Article 273 TFEU.61 A third State is not a Member State.

60 P. Craig, ‘The Stability, Coordination and Governance Treaty: Principle, Politics and Pragmatism’ (2012) 37 European Law

Review 231, 246 ff.

61 The distinction between Art 273 TFEU and an international agreement with third states conferring jurisdiction upon the Court

of Justice is sometimes overlooked in the doctrine. See, for example, Lasok (n 17), 1288, fn 402. Both situations are different,

however, Art 273 TFEU only providing a basis for jurisdiction for disputes between Member States. The same goes for

agreements between Member States expanding the scope of the preliminary reference procedure, for example, the Protocol

of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the

enforcement of judgments in civil and commercial disputes. A preliminary reference made by a court of a Member State cannot

be characterised as a dispute between Member States within the meaning of Art 273 TFEU; not even in a broad understanding.

(contra, Editorial Comments, ‘Some thoughts concerning the Draft Treaty on a Reinforced Economic Union’ (2012) 49 Common

Market Law Review 1, 7, fn. 24.) Moreover, Art 273 TFEU actions fall within the category of direct actions and are thus of a

completely different nature. It thus appears that Art 273 TFEU could not have been the legal basis for conferring power upon

the Court of Justice to interpret the provisions of the Brussels Convention. (contra, G. Butler, ‘The Court of Justice as an inter-

state court’ (2017) 36 Yearbook of European Law 179, 197.) This begs the question of whether that conferral was done legally,

as the Protocol is not an international agreement between the EU and third states nor was the Treaty amendment procedure

followed. This is different compared to the situation under the EEA-Agreement, where the possibility for EEA state courts to

make references for a preliminary ruling to the Court of Justice was laid down in an international agreement between the EU

and third states: Agreement on the European Economic Area - Protocol 34 on the possibility for courts and tribunals of EFTA


Examples of this are the various agreements between the EU and a number of European mini-

states in the field of monetary cooperation62 or the ECAA-Agreement.63 The reference to Article 273

TFEU in the ECAA-Agreement is slightly misleading in that regard. Article 3 of Annex IV to that

agreement states the following: ‘The Court of Justice shall treat disputes submitted to it in accordance

with Article 20(3) in the same manner as those submitted to it in accordance with Article 239 of the EC

Treaty.’ This should not be understood as the Court of Justice having been given jurisdiction pursuant

to Article 273 TFEU but rather that the Court should exercise its jurisdiction under the same conditions

- obviously with the caveat that a party may also be a third state.

3.2.3 Departing Member States

The Court’s jurisdiction must exist throughout the whole of the procedure.64 When a Member State

would formally leave the European Union during an Article 273 TFEU procedure, the conditions for it

to have jurisdiction are no longer fulfilled and the Court should declare itself without jurisdiction.

Article 273 TFEU does not allow the Court to decide disputes between a Member State and a third

State.

This does not mean that the Court cannot be given jurisdiction to decide disputes between

the EU or its Member States and the departing Member State over matters relating to the exit of that

Member State after that state has become a third state. The basis for such jurisdiction should,

however, be created in the international agreement regulating the exit of that Member State and does

not concern Article 273 TFEU.

States to request the Court of Justice of the European Communities to decide on the interpretation of EEA rules corresponding

to EC rules [1994] OJ L1/204.

62 Art 10 Monetary Agreement between the European Union and the Principality of Andorra [2011] OJ C369/1; Art 12 Monetary

Agreement between the European Union and the Principality of Monaco [2013] OJ C310/1; Art 10 Monetary Agreement between

the European Union and the Vatican City State [2010] OJ C28/13; Art 10 Monetary Agreement between the European Union

and the Republic of San Marino [2012] OJ C121/5.

63 Multilateral agreement between the European Community and its Member States, the Republic of Albania, Bosnia and

Herzegovina, the Republic of Bulgaria, the Republic of Croatia, the former Yugoslav Republic of Macedonia, the Republic of

Iceland, the Republic of Montenegro, the Kingdom of Norway, Romania, the Republic of Serbia and the United Nations Interim

Administration Mission in Kosovo on the establishment of a European Common Aviation Area [2006] OJ L 285/1.

64 Cf Art 100(2) CJ Rules of Procedure.


3.3 Related to the Subject Matter of the Treaties

3.3.1 Introduction

Member States cannot submit every dispute between them to the Court of Justice on the basis of

Article 273 TFEU. Under that provision, the dispute must relate to the subject matter of the Treaties

for the Court to have jurisdiction. The notion ‘relates to the subject matter of the Treaties’ is, however,

not defined in the Treaties. Yet it is of fundamental importance to determine whether the Court of

Justice has jurisdiction over intra-Member State disputes that fall outside the scope of the Treaties.

Moreover, the way the notion is being interpreted will also have an impact on the exclusive jurisdiction

of the Court of Justice for intra-Member State dispute settlement regarding the application and

interpretation of the Treaties, and consequently determine which disputes Member States may bring

before other international dispute settlement bodies than the Court of Justice without breaching

Article 344 TFEU.

3.3.2 Three Spheres of Jurisdiction

Before trying to define the notion ‘relates to the subject matter of the Treaties’ it is important to set

out what is at stake here. It essentially comes down to two questions of jurisdiction, namely whether

the Court has jurisdiction to decide an intra-Member State dispute and whether that jurisdiction is

exclusive.

The notion ‘relates to the subject matter of the Treaties’ polices in the first place the boundary

between inter-state disputes of a purely international law nature and inter-state disputes that are

somehow connected with the EU Treaties. It is clear that the Court of Justice has no jurisdiction on the

basis of Article 273 TFEU to decide on a dispute that is of a purely international law nature, for example,

a dispute between two Member States over the demarcation of the continental shelf.65 Such a dispute

does not relate to the subject matter of the Treaties.

The vagueness of the notion ‘relates to the subject matter of the Treaties’ does not allow us

to precisely point out when a dispute is no longer purely of an international law nature but has a

connection with the EU Treaties sufficient enough for the Court to have jurisdiction pursuant to Article

273 TFEU. This should, however, not necessarily be a problem as the Court’s jurisdiction under Article

65 Karpenstein (n 13), no 12.


273 TFEU is not of an exclusive nature.66 Member States are free to resolve these disputes in a

different manner. There will thus be no consequences if Member States submit a dispute related to

the subject matter of the Treaties to another dispute settlement body than the Court of Justice.67

Conversely, Member States are not allowed to submit disputes between them to any other form of

dispute settlement if the Court of Justice has exclusive jurisdiction over the matter.68 In order to

determine the exclusive nature of the Court’s jurisdiction, the notion ‘dispute relating to the subject

matter of the Treaties’ should be considered together but distinguished from the notion ‘dispute

concerning the application or interpretation of the Treaties’, which originates in Article 344 TFEU.69 The

Court of Justice has exclusive jurisdiction for disputes concerning the application or interpretation of

the Treaties,70 Article 344 TFEU being an exclusive jurisdiction clause.71

The distinction between the two notions may be somewhat confusing at first sight. Surely, if a

dispute concerns the interpretation or application of the Treaties it also relates to the subject matter

of the Treaties? From a jurisdictional point of view, however, these two notions are mutually exclusive

and Article 344 TFEU explicitly prohibits Member States to submit a dispute concerning the

interpretation or application of the Treaties to any method of settlement other than those provided

therein. This implies that Member States must take recourse to the appropriate procedure provided

for such disputes in the Treaties to solve a dispute between them on the interpretation or the

application of the Treaties, which is an Article 259 procedure.

A clear distinction must thus be made between matters that come within the scope of Article

344 TFEU and matters that come within the scope of Article 273 TFEU. It is either one or the other.

The fact that it might be difficult in a particular case to distinguish between a matter that relates to the

interpretation or application of the Treaties and a matter that only relates to the subject-matter of the

Treaties does not detract from that principle.72 Jurisdiction cannot be at the same time exclusive and

66 The Court’s jurisdiction is thus not always exclusive. Contra, see T. Lock, The European Court of Justice and international courts

(OUP, 2015) 86.

67 Contra, see Butler (n 61), 200 ff.

68 Judgment of 30 May 2006, Commission v Ireland (MOX Plant), C-459/03, EU:C:2006:345.

69 Butler (n 61), 196.

70 Opinion of 14 December 1991, Draft Agreement between the Community, on the one hand, and the countries of the European Free

Trade Association, on the other, relating to the creation of the European Economic, 1/91, EU:C:1991:490, para 35.

71 Lock (n 66), 26.

72 An interesting example in this regard was Art 6 of the Internal Agreement on the measures and procedures required for

implementation of the Fourth ACP-EEC Convention [1991] OJ L229/301, which stated the following: “Disputes arising between


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non-exclusive. A choice between an Article 259 procedure and an Article 273 procedure does

therefore not exist,73 unless perhaps as a means to solve a question of jurisdiction.74

3.3.3 Which Disputes Relate to the Subject Matter of the Treaties?

As stated above, Article 259 and Article 273 procedures are mutually exclusive. This also means that

the notion ‘related to the subject-matter of the Treaties’ must refer to something else than the

interpretation or application of the Treaties, i.e. the interpretation of EU primary law or the

interpretation or validity of EU secondary law.

As a starting point, one may consider matters for which the Member States have retained an

exclusive competence, such as name legislation or income taxation. However, it is long-standing case

law of the Court that Member States may not exercise their exclusive competences in violation of rules

of EU law, eg free movement law75 or anti-discrimination law.76 The interpretation and application of

the Treaties thus goes beyond the areas for which the EU has competence to legislate and may also

concern the exclusive competences of the Member States. Disputes between Member States about

Member States concerning the Convention, the Protocols attached thereto or the Internal Agreements signed for

implementation of the Convention shall, at the request of the, earliest petitioner, be submitted to the Court of Justice of the

European Communities in the manner laid down in the Treaty and in the Protocol on the Statute of the Court of Justice annexed

to the Treaty”. This provision has been interpreted as an Art 273 TFEU special agreement (Ehricke (n 13), no 8; Karpenstein (n

13), no 3). However, one can immediately see the difficulties arising from such a reading. First, the Convention and its Protocols

were both instruments of EU law. Second, in disputes regarding EU international agreements, it cannot always be clearly

distinguished whether a matter falls within the exclusive competences of the Member States or is part of EU law. In case of the

latter, the dispute does not concern an Art 273 matter but must be dealt with in an Art 259 procedure. Advocate General M.

Poiares Maduro held in relation to such a difficulty: “This does not necessarily mean that Member States should always carefully

isolate the Community elements from a dispute between them in order to bring only those elements before the Court of Justice,

while submitting the rest of the dispute to another method of settlement. In theory, such a solution would be in line with Arts

292 EC or 193 EA. Yet, in practice it may be preferable to bring ‘hybrid disputes’ between Member States – concerning both

matters falling within and matters falling outside the scope of the Court’s jurisdiction – in their entirety before the Court under

Article 239 EC or Article 154 EA.” (Opinion of Advocate General M. Poiares Maduro of 18 January 2006, Commission v Ireland, C-

459/03, EU:C:2006:42, point 14, fn 9.) Art 6 of the Internal Agreement should thus rather be seen in light of this, namely as a

means to avoid the artificial break up of disputes and an obligation for Member States to bring all their disputes relating to the

Fourth Lomé Convention before the Court of Justice. From that point of view, Art 6 of the Internal Agreement could indeed be

read as an Art 273 TFEU special agreement. However, not all matters that were covered by Art 6 of the Internal Agreement were

Art 273 subject-matter, which raises the question of how the Court would have dealt with this kind of hybrid dispute from a

procedural point of view. After all, a dispute that concerns the interpretation and application of the EU Treaties must be dealt

with via the applicable procedure provided for in the EU Treaties, which is Art 259 TFEU. See also, Lock (n 66), 121 ff.

73 Butler (n 61), 193; Ehricke (n 13), no 7; Karpenstein (n 13), no 7 and 11. Contra, see Lasok (n 17), 1287, fn. 398; Y. Shany, The

competing jurisdictions of international courts and tribunals (OUP, 2003) 44 ff.

74 Lock (n 66), 166.

75 Judgment of 2 October 2003, Garcia Avello, C-148/02, EU:C:2003:539, para 25.

76 Judgment of 26 October 1999, Sirder, C-273/97. EU:C:1999:523, para 15.

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matters that concern their exclusive competences but that fall within the scope of the EU Treaties thus

qualify as disputes that relate to the interpretation or application of the Treaties and must accordingly

be settled by way of the 259 procedure. The distinction between competence and scope77 is therefore

not relevant to demarcate Article 259 and Article 273 procedures. We must look beyond the scope of

EU law to find an ‘objectively identifiable link with the subject-matter of the Treaties’.78

The case of Austria v Germany is an excellent illustration in this regard. The double taxation of

Bank Austria AG may, at first sight, be an issue of EU free movement law: a private party is being taxed

twice as a consequence of having obtained income in another Member State than its Member State

of residence. This would imply that the matter falls within the scope of EU free movement law and

thus qualifies as a dispute related to the interpretation or application of the Treaties. Hence, the

Article 259 procedure should apply at the exclusion of an Article 273 procedure. However, it appears

that the Court of Justice has adopted in its case law a strictly non-discrimination approach in tax

matters and not an obstacle approach as it does in other areas of free movement law. It has

consistently held that “the disadvantages which could arise from the parallel exercise of tax

competences by different Member States, to the extent that such an exercise is not discriminatory, do

not constitute restrictions prohibited by the EC Treaty”.79 An issue of non-discriminatory double

taxation falls thus outside the scope of the EU Treaties. Nevertheless, it cannot be denied that the

issue of double taxation is a matter related to the Treaties, as the suppression of double taxation

would be highly beneficial to the free movement of persons and capital.80 It is for this reason that the

matter in Austria v Germany came within the definition of ‘subject matter of the Treaties’.

A dispute is thus related to the subject matter of the Treaties for the purposes of Article 273

TFEU if it meets the following conditions:

- The dispute does not concern a matter that falls within an exclusive competence

of the EU;

- The dispute does not concern a matter subject to the exercise of a non-exclusive

competence by the EU;

77 A. Dashwood, ‘The limits of European Community powers’ (1996) 21 European Law Review 113.

78 Austria v Germany, para. 25.

79 Judgment of 16 July 2009, Damseaux, C-128/08, EU:C:2009:471, para 27.

80 Cf Opinion of Advocate General D. RUIZ-JARABO COLOMER of 26 October 2004, D. v Inspecteur van de Belastingdienst, C-376/03,

EU:C:2004:663, para 85.




- The dispute does not concern a matter that falls within the scope of EU law, eg

free movement law or discrimination law;

- The dispute concerns a matter that is related to the objectives of the Treaties, eg

the establishment of the functioning of the internal market;

- The dispute does not concern a matter related to the Euratom Treaty, as it should

then be brought under the equivalent provision of that Treaty (Article 154 EAECT).

More generally, it could be said that a dispute is related to the subject-matter of the Treaties if it

concerns a matter that is neither subject to EU regulation (competence) or affected by EU law

obligations (scope) but of which it could reasonably be said that a common approach would contribute

to achieving the objectives of the EU Treaties.

This reflects the idea behind the former Article 293 ECT, which encouraged Member States to

conclude conventions with each other to contribute to further European integration in areas where

the European Community had limited or no powers.81 After the enactment of the 1968 Brussels

Convention and other instruments in the area of European civil procedure82 as well as the

development of EU citizenship law83, the provision’s continued relevance mainly concerned company

law and taxation law.84 Whereas not much activity took place in the field of company law so far,

cooperation between Member States through bilateral agreements concerning double taxation has

been very intensive.85 Article 273 TFEU is often referred to in tax law doctrine as a means to settle

81 Ex Art 293 ECT: Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for

the benefit of their nationals:

- the protection of persons and the enjoyment and protection of rights under the same conditions as those accorded by each

State to its own nationals,

- the abolition of double taxation within the Community,

- the mutual recognition of companies or firms within the meaning of the second paragraph of Article 48, the retention of legal

personality in the event of transfer of their seat from one country to another, and the possibility of mergers between companies

or firms governed by the laws of different countries,

- the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and

of arbitration awards.

82 For an overview of this evolution, see B. Hess, Europäisches Zivilprozessrecht (Müller, 2010) 237 ff.

83 For an overview of this evolution, see C. Barnard, The substantive law of the EU, (6th edn, OUP, 2019) ch 9.

84 H. Hofmann, ‘Double tax agreements: Between EU law and public international law’ in A. Rust (ed), Double taxation within the

European Union (Kluwer Law International, 2011) 75, 82.

85 For an overview, see https://ec.europa.eu/taxation_customs/individuals/personal-taxation/treaties-avoidance-double-

taxation-concluded-member-states_en

https://ec.europa.eu/taxation_customs/individuals/personal-taxation/treaties-avoidance-double-taxation-concluded-member-states_en

https://ec.europa.eu/taxation_customs/individuals/personal-taxation/treaties-avoidance-double-taxation-concluded-member-states_en


disputes over these agreements.86 Also, historically Article 273 TFEU was considered to be a

complement to Article 293 ECT, providing an option for judicial dispute settlement for conventions

concluded between the Member States. It is thus not entirely a surprise that the first application of

Article 273 TFEU concerns a dispute on the interpretation of a double taxation treaty. The reach goes

further than former Article 293 ECT policy areas, however, as the European Schools Convention

demonstrates.87

3.4 Special Agreement

The fourth condition for the Court to have jurisdiction is that the dispute should be submitted to it by

way of a special agreement. It does not mean, however, that the agreement should be concluded after

a dispute has arisen or for a specific dispute only. In Pringle, the Court held that Article 273 TFEU does

not exclude the fact that such an agreement is given ‘in advance, with reference to a whole class of

pre-defined disputes’.88 This liberal approach is confirmed in Austria v Germany, the special agreement

being nothing more than a general clause in the DTT stipulating that the Court must be seized at the

request of the person concerned if the administrative procedure provided for by the DTT has not led

to an appropriate solution.

4. Powers of the Court in Article 273 TFEU Proceedings

The type of relief that can be sought in an Article 273 procedure is not defined in the Treaties. Does

this mean that Member States are completely free on this point or should they rather limit themselves

to the existing pallet of remedies that can be asked from the Court in proceedings relating to the

interpretation or application of the Treaties? Doctrine indicates that decisions of the Court following

Article 273 proceedings can be both declaratory and condemnatory in nature.89 It is, however, not

clear whether the Court can also issue injunctions since it lacks that power under the EU Treaties

outside the context of interim measures.90 Austria v Germany gave the Court the opportunity to clarify

the issue as both Member States had asked for injunctive relief. The Court avoided dealing with the

86 See inter alia, M. Züger, Arbitration under tax treaties: Improving legal protection in international tax law (Linde Verlag, 2001) 112

ff; Hofmann (n 84), 79.

87 Art 26 Convention defining the Statute of the European Schools [1994] OJ L212/3.

88 Pringle, para 172. This does in turn not exclude ad hoc agreements for a specific dispute. Contra, see Butler (n 61), 199.

89 Gaitanides (n 13), no 11.

90 Cf Opinion of Advocate General P. Mengozzi of 27 April 2017, Austria v Germany, C-648/15, EU:C:2017:311, point 57.



question, however, pointing out that the interpretative ruling spoke for itself.91 The question of

whether Member States can confer a power upon the Court of Justice through a special agreement it

does not have under the EU Treaties thus remained open.

The beginning of an answer may be found in the Court’s case law on ‘institutional borrowing’,

the practice by which the Member States conclude international agreements outside the framework

of the Treaties and task EU institutions with a number of duties under those agreements – and to

which I have referred earlier.92 Such practice is allowed as long as the ‘essential character of powers

conferred upon the institutions by the Treaties’ is not altered.93 This benchmark will undoubtedly also

inform the interpretation of Article 273 TFEU94, albeit in a less strict manner as Article 273 TFEU

provides an explicit legal basis for the use of the Court of Justice outside of the Treaty framework.95

The relevant question here is thus what the essential character of the powers of the Court is.

A first approach rests on the assumption that the powers of the Court under an Article 273

procedure must mirror the powers it has under the EU Treaties. It means that the Court cannot award

any type of relief other than the types of relief it can award under the EU Treaties. This is perhaps what

the drafters of the Treaty on Stability, Coordination and Governance in the Economic and Monetary

Union had in mind when drafting Article 8(2) TSCG, as it largely mirrors the Article 260 infringement

procedure.96 Under this approach Member States can be creative with procedural design albeit limited

to the options already present in the EU Treaties.97

A second approach would be to give Member States more freedom, allowing them to define

the powers of the Court within an Article 273 procedure and to provide for types of relief that differ


92 See supra, 0.

93 See supra, n 52.

94 Opinion of 8 March 2011, Draft Agreement on the European and Community Patents Court, 1/09, EU:C:2011:123, paras 75-76.

95 de Witte and Beukers (n 54), 844. Moreover, applying the same conditions for ‘institutional borrowing’ to the Court would

make it impossible to confer duties upon the Court outside of the Treaty framework. The condition that additional duties

conferred may not entail any power for the EU institution concerned to make decisions of its own is incompatible with the

essence of the Court’s functioning, namely issuing binding decisions in an independent manner. Nevertheless, the Court has

accepted jurisdiction conferred upon it for matters outside of the Treaty framework. Different conditions for institutional

borrowing thus apply to the Court compared to the European Commission or other EU institutions, bodies or agencies.

96 S. Peers, ‘The Stability Treaty: Permanent austerity or gesture politics’ (2012) 8 European Constitutional Law Review 404, 419

ff.

97 This is in itself not without criticism, however. See Craig (n 60), 242 ff.



from the types of relief available under the EU Treaties. Various authors have argued in favour of such

a liberal approach and the absence of a principled rejection of the claims for injunctive relief in Austria

v Germany may be indicative of where the Court stands on this point. In turn, this would mean that the

essential character of the powers of the Court does not concern the type of relief it can award but

must be found elsewhere. It is instructive in this regard to refer to Opinion 1/91, in which the Court

rejected the possibility for courts of EEA States to refer questions to it on the interpretation of the EEA

Agreement because its judgments would not be binding upon these courts.98 The Court stated that

‘[s]uch a situation would change the nature of the function of the Court of Justice as it is conceived by

the Treaty, namely that of a court whose judgments are binding’.99 It may thus rather be the binding

nature of its decisions that is the essential characteristic of the Court’s powers and not the type of

relief it can award.100 Following this approach, Member States have a lot of flexibility in Article 273

procedures and may confer powers upon the Court it does not have under the EU Treaties.

The Advocate General’s Opinion in the annotated case seems to follow the latter approach

but underscores that such a conferral of power would have to be done in advance by way of an explicit

provision in the special agreement.101 In absence of such a provision, the Court’s powers would

continue to be limited to the types of relief it can award under the EU Treaties, as it cannot be inferred

from the silence on this point that the drafters of the Treaties sought to include a power to award

injunctive relief in Article 273 proceedings.102 The fact that in the case at hand both Austria and

Germany applied for injunctive relief and therefore agreed in principle to the power of the Court to

98 Opinion 1/91, para 65.

99 ibid, para 61.

100 R. Baratta, ‘Legal issues of the “Fiscal Compact” – Searching for a mature democratic governance of the euro’, (2012) 4 Il

Diritto dell’Unione europea 647. See also Judgment of 28 March 1995, Kleinwort Benson, C-346/93, EU:C:1995:85, paras 23-24.

The binding nature of its decisions as essential to its own functioning has taken on a whole new meaning in more recent

decisions of the Court. Whereas previously it was rather used to invalidate constructions by which decisions of the Court would

only be of an advisory nature (Opinion 1/91, Kleinwort Benson), it has been turned into a means to safeguard the Court’s position

as the final court in matters of EU law and to shield its decisions from review. See, for example, Opinion of 18 December 2014,

Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 2/13,

EU:C:2014:2454, paras 178-214. This is not the place to start a debate on Opinion 2/13 or other decisions of the same nature,

such as Judgment of 6 March 2018, Achmea, C-284/16, EU:C:2018:158, paras 57-59. It corroborates, however, the reading that

the Court sees the binding nature of its decisions as the essential characteristic of its powers. It is directly linked to its exclusive

jurisdiction and the autonomy of the EU legal order, as appears also from paragraph 76 of Opinion 1/09. See also, A. Rosas,

‘The national judge as EU judge: Opinion 1/09’ in P. Cardonnel, A. Rosas and N. Wahl (eds), Constitutionalising the EU judicial

system. Essays in Honour of Pernilla Lindh (Bloomsbury, 2012) 105, 114.

101 AG Opinion in Austria v Germany, point 60.

102 ibid, point 59. See also Karpenstein (n 13), no 18.

http://curia.europa.eu/juris/liste.jsf?language=en&jur=C%2CT%2CF&num=&parties=benson&dates=error&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&alldocrec=alldocrec&docdecision=docdecision&docor=docor&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoor=docnoor&docppoag=docppoag&radtypeord=on&newform=newform&docj=docj&docop=docop&docnoj=docnoj&typeord=ALL&domaine=&mots=&resmax=100&Submit=Rechercher

http://curia.europa.eu/juris/document/document.jsf?text=&docid=160882&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=4467163



issue an injunction did not change the Advocate General’s position: consent should be given in

advance in the special agreement.103 The Court may see this differently though. The fact that the Court

did not reject the claims for injunctive relief in principle104 may also be indicative of a liberal approach

on this point, accepting such a power if no opposition appears from the submissions of the Member

States in the case before it.

5. Enforcement of Judgments Given Pursuant to Article 273 TFEU

Judgments of the Court are binding upon the Member States, also under an Article 273 procedure.105

This implies that Member States are under an obligation to give effect to it. In Austria v Germany, the

Court held in this regard that ‘[i]t is therefore for the Republic of Austria and the Federal Republic of

Germany to draw the proper inferences from the present judgment, by cooperating to that end in

good faith’.106 What would happen, however, if a Member State does not respect the outcome of an

Article 273 procedure? Under the EU Treaties, mechanisms exist to enforce judgments of the Court

against Member States that do not comply with them. Enforcement should here be understood in a

broad manner, encompassing both enforcement sensu stricto in accordance with Articles 280 and 299

TFEU and other procedures that may force Member States into compliance, such as the infringement

proceedings set out in Articles 258-260 TFEU. Do these mechanisms also apply to Article 273

decisions?

It is accepted in part of the doctrine that the provisions regarding enforcement sensu stricto

apply also to Article 273 decisions.107 The problem is that these provisions are only an effective means

of enforcement if the decision imposes specific pecuniary obligations upon a Member State. This

would not help when the Court is asked to decide on a dispute concerning the interpretation of a legal

provision, like in Austria v Germany. The use of the Article 260 procedure akin to the follow-up to an

Article 259 procedure is excluded by that same doctrine, however.108 Member States seeking to secure

compliance with Article 273 judgments may thus have to design their own enforcement mechanism

103 AG Opinion in Austria v Germany, points 60-61.


105 Art 91 Rules of Procedure of the Court of Justice.


107 Cremer (n 15), no 10; Gaitanides (n 13), no 11; Karpenstein (n 13), no 20; Ehricke (n 13), no 11.

108 Karpenstein (n 13), no 20.


in the special agreement, ideally giving the Court the power to impose pecuniary sanctions upon a

Member State that has failed to comply with the first Article 273 decision in a second Article 273

procedure, as a judgment imposing pecuniary obligations would then be enforceable in accordance

with Articles 280 and 299 TFEU. Such a mechanism can be found in Article 8(2) TSCG.109

Nonetheless, a judgment given by the Court following an Article 273 procedure is a decision

of an EU institution. This is not without consequences. Member States are under an obligation of

sincere cooperation, which includes taking ‘any appropriate measure, general or particular, to ensure

fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of

the Union’.110 Surely, a judgment of the Court given pursuant to an Article 273 procedure is an act of

an EU institution. Furthermore, the obligation laid down in Article 4(3) TEU is not limited in scope to

areas covered by EU law obligations but has a wider reach, requiring Member States to ‘facilitate the

achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment

of the Union's objectives’.111 This dovetails with one of the conditions for the Court to have jurisdiction

under Article 273 TFEU, namely that the solution of the dispute should somehow contribute to Treaty

objectives.112 It may then not be too farfetched to argue that the failure of a Member State to comply

with a judgment given by the Court in an Article 273 procedure on a dispute related to the subject-

matter of the Treaties amounts to a measure that could jeopardise the attainment of the EU’s

objectives, and therefore constitutes a violation of Article 4(3) TEU. This would mean that infringement

proceedings are possible, either on the basis of Article 258 or Article 259 TFEU, as Article 4(3) TFEU is

an actionable provision.113

That being said, it would also imply that the enforcement mechanism provided for by Article

8(2) TSCG is invalid, as the matter would be a dispute concerning the interpretation and application of

109 Article 8(2) TSCG: Where, on the basis of its own assessment or that of the European Commission, a Contracting Party

considers that another Contracting Party has not taken the necessary measures to comply with the judgment of the Court of

Justice referred to in paragraph 1, it may bring the case before the Court of Justice and request the imposition of financial

sanctions following criteria established by the European Commission in the framework of Article 260 of the Treaty on the

Functioning of the European Union. If the Court of Justice finds that the Contracting Party concerned has not complied with its

judgment, it may impose on it a lump sum or a penalty payment appropriate in the circumstances and that shall not exceed 0,1

% of its gross domestic product. The amounts imposed on a Contracting Party whose currency is the euro shall be payable to

the European Stability Mechanism. In other cases, payments shall be made to the general budget of the European Union.

110 Art 4(3), second para TEU.

111 Art 4(3), third para TEU.

112 See supra, 0.

113 Lenaerts and others (n 13), 162 and 200.


the Treaties and, following Article 344 TFEU, would have to be dealt with through the procedures

provided in Articles 258 or 259 TFEU. On such an interpretation, an Article 4(3) TEU approach would

exclude an Article 8(2) TSCG approach in this case. However, one may argue, and not without merit,

that in the specific context of excessive deficit procedures Article 126(10) TFEU also applies to the

situation in which a Member State does not respect the Court’s first judgment given pursuant to the

special agreement in Article 8(1) TSCG. This would exclude the possibility of bringing Articles 258-259

proceedings. Article 8(2) TSCG should then be read as a sanction mechanism for continued non-

compliance with Article 3(2) TSCG rather than for non-compliance with the Court’s judgment. On such

an intepretation, Article 8(2) TSCG would be compatible with Article 344 TFEU. But this still leaves open

the question of whether non-compliance with a judgment delivered pursuant to Article 273 TFEU in a

TSCG case can be considered as a distinct failure of a Member State to fulfil its obligations under the

Treaties, and thus rendering Articles 258-260 TFEU also applicable in an excessive deficit procedure

context.

6. Final Consideration

Article 273 TFEU looks like an uncontroversial provision at first sight. However, behind its apparent

straightforwardness lie many questions of procedure, some of them of fundamental importance. The

judgment in Austria v Germany allowed us to explore a number of these questions for the first time.

While some answers were provided by the judgment, many issues are still left open, such as the nature

of the powers of the Court, the avenues of enforcement of the Court’s judgments, the relationship

with Article 259 TFEU, or whether an Article 273 jurisdiction clause in a special agreement confers

exclusive jurisdiction.114 Given the Member States’ recent appetite to conclude international

agreements between them on matters relating to the subject-matter of the EU Treaties outside of the

Treaty framework115, it can be expected that we don’t have to wait another 66 years before this ‘odd

little Treaty article’116 reveals all its secrets.

114 Cf Butler (n 61), 201.

115 S. Peers, ‘Towards a new form of EU law?: The use of EU institutions outside the EU legal framework’ (2013) 9 European

Constitutional Law Review 37; B. de Witte, ‘The role of the Court of Justice in shaping the institutional balance in the EU’ in J.

Mendes and I. Venzke (eds), Allocating authority: Who should do what in European and international law? (Bloomsbury, 2018) 143,

155.

116 de Witte and Beukers (n 54), 844.


Chapter 7 What’s in a Recommendation?

Roberto Mastroianni*

1. Part 1

Can a recommendation adopted by the Commission with the aim of “encouraging Member States to

adopt specific measures to achieve a highter level of protection of consumers, players and minors

towards online gambling services”1 be subject to judicial review under EU Law? This is - in a nutshell -

the question that arose before the EU judicature in the Belgium v. Commission case, decided at the

final instance by the Grand Chamber of the Court of Justice on 20 February 20182.

In that judgment, the Court of Justice dismissed the appeal lodged by the Kingdom of Belgium

against an order of the General Court3 that declared the inadmissibility of the action seeking the

annulment of the above Recommendation. Applying the well-established ERTA4 test – i.e. taking into

consideration the wording and context of the act, its substance and the intention of the author – both

the General Court and the Court of Justice ruled that the Recommendation at stake was not a

challengeable act under Article 263 TFEU.

As apparent from the very articulated but divergent opinion of Advocate General Bobek and

from some critical reactions from legal scholarship5, the one above was not an easy case,

notwithstanding the clear wording of the TFEU that recommendations lie outside the perimeter of

both binding rules and legal scrutiny. The main reason of this difficulty seems to lie in the fact that –

as correctly pointed out by AG Bobek – the legal landscape of the EU is recently marked by a

* Professor of European Union Law at the University of Naples “Federico II” and Judge at the General Court of the European

Union. All views expressed are purely personal.

1 Commission Recommendation 2014/478/EU of July 14. 2014, on principles on the protection of consumers and players of

online gambling services and for the prevention of minors from gambling online OJ L 214, 19.7.2014, p. 38–46 (hereafter: “the

Recommendation” or “the contested recommendation”)

2 Case C-16/16 P, ECLI:EU:C:2018:79.

3 Order of 27 October 2015, Belgium v Commission, Case T‑721/14, ECLI:EU:T:2015:829.

4 Judgment of the Court of 31 March 1971, Commission of the European Communities v Council of the European Communities

(European Agreement on Road Transport), Case 22-70, ECLI:EU:C:1971:32.

5 See in particular A. Arnull, EU Recommendations and Judicial Review, in Eur Const. L. Rev., 2018, 609 ff.


proliferation of various soft law instruments6, and therefore it is expected that rules on access to the

European Courts should be adapted in order to respond to those developments.

As anticipated, the action for annulment had to face an apparently insurmountable obstacle:

the text of the TFEU. It may be useful therefore to recall briefly the three articles of the TFEU that come

into play in this context. Article 292, empowering the Commission with an apparently unlimited

competence to adopt recommendations, provided that they fall within the field of application of the

Treaties; Article 288, stating that recommendations are acts with no binding effects; Article 263,

excluding recommendations from the acts open to challenge before the European judicature. All these

three elements combined seem to unequivocally rule out any chance of bringing an action of

annulment against a Recommendation.

Hence, it may seem of no surprise that the Commission raised a plea of inadmissibility under

Article 114(1) of the Rules of Procedure of the General Court, and that the result of the case was in

line with that plea. Never the less, as we will see, this case presented some peculiarities - among which

the decision to publish the act in question in the L Series of the Official Journal rather than in the C

Series - that sparked a hot debate both inside and outside the European courts.

2. The Decisions of the EU Courts

Before dealing more in detail with the decisions of the two European Courts, it may be of some interest

briefly to remind the main arguments invoked by the Kingdom of Belgium to reply to the Commission’s

plea of inadmissibility. They can be summarized as follows. First, the applicant Member State

submitted that access to the European Courts in that case should be allowed, since the

Recommendation at stake entails «negative effects». In its opinion, for the reasons set forward in the

original application7, it infringes fundamental principles of EU Law like the principle of conferral, the

duty of sincere cooperation between EU Institutions and between Institutions and Member States, the

principle of effective judicial protection. Second, Belgium argued that the Recommendation at stake

was not a genuine recommendation, but in fact a «hidden directive», since it sought not only to

encourage certain normative interventions in the field of gambling activities, but rather to issue

6 See B. Bertrand, Les enjeux de la soft law dans l’Union européenne, in Revue de l’Union européenne, 2014, p. 73 ; F. Terpan. Soft

Law in the European Union - The Changing Nature of EU Law, in European Law Journal, 2015, p.68 .

7 Unfortunately, the original pleas are not reproduced in the decisions of the two Courts, limited to deal with the plea of

inadmissibility.


guidelines on the application of Articles 49 and 56 TFEU to those services. Third, according to Belgium

the Recommendation gives rise to «indirect legal effects», since not only Member States are subject to

an obligation to use their best endeavors to comply with it, but also national courts will have to take

the Recommendation into consideration according to the principles set out in the Grimaldi judgment8.

This should be sufficient, in the applicant’s view, to warrant judicial review.

Following the request of the Commission, by Order of 27 October 2017, the General Court

dismissed the action as inadmissible. In relation to the pleas put forward by the applicant Member

State, it observed that the act is not open to challenge since, in the light of its wording, content and

context, it is a «genuine recommendation» that ‘does not have and it is not intended to have binding

legal effects, with the result that it cannot be classified as a challengeable act for the purposes of Article

263 TFEU’9. In brief, the General Court underlined that the Recommendation at stake suggested but

did not require any normative interventions from Member States in order to achieve the intended

results. Second, alleged infringements of fundamental principles cannot justify an exception to the

absolute ban to proceedings imposed by the Treaty. Third, the mere publication in the L Series of the

OJ or slight linguistic differences in the versions of the Recommendation cannot invalidate the

conclusion. Finally, indirect effects as described in Grimaldi are typical effects of Recommendations

and cannot justify a different reading of the clear text of Article 263.

The Kingdom of Belgium’s appeal before the Court of Justice relied on three grounds. For the

purposes of this comment, it is sufficient to mention that it insisted on the point that the adoption of

any legal act within the meaning of Article 263 TFEU, even if not formally binding, produces legal effects

that should be open to challenge, and therefore the exclusion of recommendations should be

interpreted very narrowly. Consequently, it should be possible for the EU Courts to determine whether

by adopting the contested act the European institutions have observed general principles of EU law

such as the principles of conferral, sincere cooperation and institutional balance.

8 Judgment of 13 December 1999, Grimaldi (C-322/88, EU:C:1989:646), para 18. In that judgment the ECJ concluded that the

Recommendations that Mr. Grimaldi challenged with an action for annulment were “real” recommendations, and therefore

excluded any chance to contest its validity, but at the same time “in order to give a comprehensive reply to the question asked

by the national court”, it added that “it must be stressed that the measures in question cannot therefore be regarded as having

no legal effect. The national courts are bound to take recommendations into consideration in order to decide disputes

submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them

or where they are designed to supplement binding Community provisions” (emphasis added) .

9 Order of 27 October 2015, Belgium v Commission, Case T‑721/14, paragraph 37.


As previously mentioned, this request found the support of the Advocate General. In his

Opinion of 12 December 2017, he proposed that the Court of Justice set aside the General Court’s

ruling and find the action admissible.

While it is impossible to summarize his very intense and articulated Opinion within the word-

limit of this comment, in short, he asked the Court to adopt an approach consistent with the opening

on legal effects of Recommendation put forward by the Court in Grimaldi. In practice, he proposed to

extend and update the ERTA test in the light of the growing importance of soft-law, arguing on the

basis of the wording of that judgment and of Article 263 TFEU that «legal effects», even if the absence

of «binding force», are sufficient to allow a legal challenge of this kind of acts10.

In order to detect the legal effects relevant to this purpose, AG Bobek proposed a test based

on three factors: first, the degree of formalization and of definitiveness of the measure’s indirect

mechanism of enforcement; second, the content and the overall purpose of the contested act; third,

the presence of an indirect mechanism of enforcement in case of non-compliance by the addressees

of the act. Applying the test to the contested measure, he concluded that the Recommendation should

be open to legal scrutiny before the European Courts.

It is also important to note that, as an alternative solution in case the Court decided not to

follow his main proposal, AG Bobek asked the Court to give a definitive clarification on the effects of

recommendations for Member States, national courts and individuals. In short, he proposed to revisit

the Grimaldi doctrine by limiting the “substantive” ERTA test to the case of “atypical” acts, as the one at

stake in the latter dispute: consequently, recommendations adopted on the basis of the Treaty cannot

by definition entail any legal consequence and they cannot ever produce legal effects, irrespective of

their content. Under this formal approach, no legal challenge should then be allowed, without any need

to carry out an assessment of whether it is a genuine or spurious recommendation11.

The Court of Justice dismissed the appeal confirming the “substantive” approach. It noted that

“by establishing recommendations as a specific category of EU acts and by stating expressly that they

‘have no binding force’, Article 288 TFEU intended to confer on the institutions which usually adopt

recommendations a power to exhort and to persuade, distinct from the power to adopt acts having

binding force”12, but nevertheless confirmed that “in exceptional cases, the impossibility of bringing an

10 Opinion of AG Bobek, para 109 ff.

11 Opinion of AG Bobek, para 146 ff.

12 Kingdom of Belgium vs. European Commission, case C-16/16 P, paragraph 26.


action for annulment against a recommendation does not apply if the contested act, by reason of its

content, does not constitute a genuine recommendation”13. Contrary to the AG Opinion, it considered

the substance of the act and on the basis of “objective criteria” such as its content and the context in

which it was adopted, reached the conclusion that the contested Recommendation is a “real”

recommendation, not classified as a challengeable act under Article 263 TFEU.

3. Some Critical Comments. The Multifaceted Nature of Recommendations

As anticipated, this apparently unavoidable conclusion faces a few critical remarks.

At the outset, it is important to recall the multifaceted nature of Recommendations in the text

of the Treaties14. Admittedly, the situation is far from clear. A “typical” act formally nominated

“Recommendation” may in substance have different characteristics.

First, a “genuine” Recommendation under article 29215, 288 and 263, i.e. an act that the

Commission can adopt in order to invite other subjects (normally, Member States) to take specific

actions considered necessary to achieve a goal provided by the Treaties, without any intention to

impose obligations in that regard (“Recommendations… shall have no binding force”). The Commission

has recourse to this kind of acts with a certain frequency, in particular in cases where it considers that

differences in national legislations hinder the smooth functioning of the internal market but there is

no political consensus among Member States for the adoption of a different, binding act 16. Now,

access to justice for the annulment of similar acts seems clearly precluded by the text of the Treaty.

Nevertheless, as for other cases of universal or regional international organizations17, it cannot

be excluded that, under certain circumstances, they may produce an “effect de liceité” within the legal

order of that organization, so to justify, under certain circumstances, “legitimate expectations” for the

addresses of the Recommendation that comply with it.18 In practice, as regards Recommendations

13 Ibidem, paragraph 29.

14 Leaving aside Recommendations under the ESCS Treaty, that were mandatory acts under Article 14 of that text.

15 Specific provisions of the Treaties confirm this general competence, as in the case of Article 60 TFEU in the field of services

or Article 97 in the field of transport.

16 See for a “typical” example Commission Recommendation of 12 March 2014 on a new approach to business failure and

insolvency, OJEU L74/65 of 14 March 2014.

17 See for instance Article 10 of the UN Charter, concerning General Assembly Recommendations.

18 See on the legitimate expectation defense in infringement proceedings under the EU Treaties, L. Prete, Infringement

Proceedings in EU Law, Kluwer Law International 2018, p. 121 ff. See also AG Trstenjak Opinion of 25 March 2010 in Case C-

442/08. Commission v. Germany, points 110-114, ECLI: EU:C:2010:167.


adopted by the European Commission, like the one at stake in this case, a Member State accused of

a Treaty violation in an infringement procedure may have a convincing defense argument if it has

interpreted and applied a Treaty rule or a provision of a directive as suggested by that

recommendation.

For example, if a Member State decided to adopt the measure suggested in point 13, lett. a)

of Recommendation of 14 July 2014, then banning the broadcasting of any commercial communication

for on-line gambling services “in media, or around programmes, where minors are expected to be the

main audience”, it should not be accused of violation of the Treaty rules on free provision of services,

since the Commission has given an interpretation of the Treaty that includes such measures among

the “imperative requirements in the general interest” that Member States are allowed to invoke vis-à-

vis broadcasting services received from another member State. In short, as in the case of other acts

of soft-law such as Commission communications, guidelines and notices in the field of competition

and State aids law19, a “typical” Recommendation can produce direct binding effects only on its author.

The second genus is a “false” Recommendation, i.e. an act bearing the name but not sharing

the nature of a Recommendation as contemplated in Article 288, para 5. In this case – that correctly

both the Courts qualify as exceptional - we would be confronted with an act that, in the light of its text

and the intention of the author, has the characteristics of another, binding act, in particular of a

directive, for instance because it imposes a specific behavior with a (explicit or implicit) threat of

reaction in case of non-compliance. It seems consistent with the basic rules of EU law, including the

principle of conferred powers within the institutional framework of the European Union, that such a

patent violation of the Treaty should not be free of judicial control. In any event, while to my knowledge

no evidence of such an act can be found in legislative practice nor in the case-law of the European

Courts20, it is for that kind of acts that the Court left the door open for judicial review in Grimaldi, by

extending the ERTA test based on substance rather than form.

It is true that, as highlighted by AG Bobek, the ERTA case, unlike Grimaldi, concerned an act

not mentioned by the Treaty (a Council deliberation recorded in the minutes for a meeting). This may

have an impact on the intensity of the scrutiny, since a Recommendation are presumed to be non-

19 See among others Judgment of the Court of 2 December 2010, Holland Malt BV v European Commission, Case C-464/09 P,

ECR 2010, p. I-12443, ECLI:EU:C:2010:733.

20 In our case, the 2014 Recommendation was rather clear in excluding any intention of the Commission in that direction (“The

Recommendation does not interfere with the right of MS to regulate gambling services”), and only “invites” Member States to

notify the Commission of any measures taken pursuant to the Recommendation.


binding, but does not seem to be a sufficient argument to exclude in toto that in exceptional cases the

“substantial” approach may bring to different results.

Finally, an “atypical” Recommendation, that is an act that appears in specific provisions of the

Treaty and that, although sharing the name of the act listed in Article 288 TFEU, may produce legal

effects different to those of the typical act). In fact, in some Treaty provisions that denomination

appears as referred to acts that do not seem to share the same characteristics as the “genuine”

recommendation, for instance because they function as a proposal from the Commission to the

Council in a non-legislative procedure21. To complicate further the reader’s understanding, there are

even cases where the Treaty calls “recommendation” both a proposal from the Commission and the

final act to be adopted by the Council, as in the procedure against excessive deficit enshrined in Article

126 TFEU22, as well as in the procedure concerning the adoption by the Council of “broad guidelines

of the economic policies of the Member States and of the Union” under Article 121, paragraph 2.

In particular, from the text of Article 126 it appears that the Recommendations that the Council

can adopt under par. 9, even if they are not immediately binding, are necessary parts of a complex

procedure. They may lead to the adoption of a decision of the Council to impose specific measures

on a Member State aimed at reducing its excessive deficit. If the Member State concerned does not

act in accordance to the Council’s decision, the Council can adopt sanctions, including “fines of an

appropriate size”23.

21 See for instance Article 148, paragraph 4, concerning the monitoring of the Council on Member States employment policies.

22 See paragraphs 7, that reads as follows: “ Where the Council decides, in accordance with paragraph 6, that an excessive deficit

exists, it shall adopt, without undue delay, on a recommendation from the commission, recommendations addressed to the member

state concerned with a view to bringing that situation to an end within a given period. Subject to the provisions of paragraph 8,

these recommendations shall not be made public” (emphasis added).

23 Article 126 TFEU, paragraphs 8 to 11:

8. Where it establishes that there has been no effective action in response to its recommendations within the period laid down, the

Council may make its recommendations public.

9. If a Member State persists in failing to put into practice the recommendations of the Council, the Council may decide to give notice to

the Member State to take, within a specified time limit, measures for the deficit reduction which is judged necessary by the Council in

order to remedy the situation.

In such a case, the Council may request the Member State concerned to submit reports in accordance with a specific timetable in order

to examine the adjustment efforts of that Member State.

10. The rights to bring actions provided for in Articles 258 and 259 may not be exercised within the framework of paragraphs 1 to 9 of

this Article.

11. As long as a Member State fails to comply with a decision taken in accordance with paragraph 9, the Council may decide to apply

or, as the case may be, intensify one or more of the following measures:

- to require the Member State concerned to publish additional information, to be specified by the Council, before issuing bonds and

securities,


For our purposes, reference can also be made to the Recommendations that the Commission

can adopt under Article 117 TFEU, a provision included in the part of the Treaty dedicated to the

approximation of national laws24. Under paragraph 1 it states that “Where there is a reason to fear

that the adoption or amendment of a provision laid down by law, regulation or administrative action

may cause distortion within the meaning of Article 116, a Member State desiring to proceed therewith

shall consult the Commission. After consulting the Member States, the Commission shall recommend to

the States concerned such measures as may be appropriate to avoid the distortion in question”. Under

the following paragraph, “if a State desiring to introduce or amend its own provisions does not comply

with the recommendation addressed to it by the Commission, other Member States shall not be

required, pursuant to Article 116, to amend their own provisions in order to eliminate such distortion”.

In that case, it is difficult to exclude that the adoption or this particular kind of acts, considering their

effects under the Treaty, can be challenged by the recipient Member State (or by other Member

States). In any event, lack of practice on the application of such article does not permit to make

references to specific cases.

4. A Recommendation is a Recommendation

A second remark concerns the merits of the judgment. As anticipated, in my opinion what was at stake

before the Court was a challenge directed to a “genuine” Recommendation under Articles 292, 288

and 263: hence, the Court’s judgment was correct when it excluded that such an act was open to legal

scrutiny.

In the preamble of the act25, the Commission makes it clear that, in the absence of

harmonization at Union level, Member States are in principle free to set the objectives of their policy

on games of chance and to define the level of protection sought for the purposes of protecting the

health of consumers. It also underscores that such freedom is not unlimited: “while Member States

may restrict or limit the cross-border supply of online gambling services on the basis of public interest

- to invite the European Investment Bank to reconsider its lending policy towards the Member State concerned,

- to require the Member State concerned to make a non-interest-bearing deposit of an appropriate size with the Union until the excessive

deficit has, in the view of the Council, been corrected,

- to impose fines of an appropriate size.

The President of the Council shall inform the European Parliament of the decisions taken.

24 See for a comment A. Arena, Articolo 117, in A. Tizzano (ed.), Trattati dell’Unione europea, II ed., Milano, 2014, p. 1275 ff.

25 Recommendation, whereas no 5.


objectives that they seek to protect, they are nonetheless to demonstrate the suitability and necessity

of the measure in question”. Therefore, Member States “have a duty to demonstrate that the public

interest objectives are being pursued in a consistent and systematic manner”. Since the rules and

policies that Member States have introduced to pursue public interest objectives “vary considerably”,

the aim of the Recommendation is to “safeguard the health of consumers and players and thus also

to minimise eventual economic harm that may result from compulsive or excessive gambling. To that

end, it recommends principles for a high level of protection of consumers, players and minors as

regards online gambling services. In preparing this Recommendation, the Commission has drawn from

good practices in the Member States”. It can be inferred from this wording that what the Commission

is proposing is a set of principles framed according to its own interpretation of the “suitability and

necessity” of measures intended to protect users of gambling services and minors. It follows that, in

the opinion of the Commission, Member States’ compliance with the principles set out in the

Recommendation guarantees respect of Treaty rules on the free movement of services and excludes

that the Commission could start an infringement procedure for violation of such rules.

In line with the very nature of Recommendations, Member States may decide to follow or not

to follow this “invitation”. In fact, the Recommendation was ignored (and as we know even challenged

before the European Courts, in the case of Belgium26) in some Member States, while “implemented”

with the adoption of binding legal rules in others. Still, this is an autonomous choice that Member

States may adopt and even modify later, with no consequences whatsoever. The case of Italy is very

instructive in this respect. A legislative rule adopted in 201527, explicitly required media outlets and

online providers to operate in accordance with the principles set out in the Recommendation as

regards commercial communication of gambling services. Interestingly, the Italian provision extended

to traditional media the principles of the Recommendation, therefore beyond the latter’s scope of

application (on-line services). Some years later, the Italian Parliament adopted new rules28, introducing

a total ban of any form of advertising, including indirect advertising, relating to games or betting with

cash winnings, however carried out and on any means, including television or radio broadcasts, the

daily and periodical press, publications in general, posters and the internet. Both these legislations

26 It results from Paragraph 10 of the General Court Order that the Hellenic Republic and the Portuguese Republic applied for

leave to intervene in the proceedings in support of the form of order sought by the Kingdom of Belgium.

27 Law 28 December 2015, n. 208, Article 1, paragraph 937, in O.J.I.R. of 30/12/2015, n.302.

28 Decree-law 12 luglio 2018, n. 87, Article 9, in O.J.I.R.of 11/08/2018, n. 186.


cannot be contested in respect to the Recommendation, while they can still be challenged as to their

compliance with Treaty rules.

As to the ERTA test, it may be useful to recall that that judgment concerned an “unnominated”

act, not contemplated to the Treaty text, that is minutes of the Council relating to the conclusion of an

international agreement. In that judgment, the Court started from the assumption that the duty to

review the legality of an act expressly concerns acts “other than recommendations and opinions”29.

When the Court reaches its conclusion that the action for annulment must be open to any act that,

whatever their nature and form, is intended to have legal effect, it sought to open the door to the

review of acts that are not listed in (then) article 173 EEC. The rationale is intuitive: to avoid that acts

that impinge on the legal position of any subjects (Member States, other institutions, bur primarily

individuals) are excluded from any control of legality simply because the author of the act used a

denomination that differs from the list of binding acts ex article 288 TFEU. But it remains clear that an

act that is listed in that provision as a not binding act and that – by decision of the drafters of the

Treaties – should in principle be exempted form legal scrutiny, should receive the same treatment in

case the Institutions adopt an act that, while presented as a Recommendation, in reality has a different,

binding content.

In the case of “real” Recommendations, the goal of such a “genuine” act is precisely to suggest

a specific behavior to its addresses (in our case, the Member States), by indicating in a more or less

detailed fashion the “principles” that Member States should take into consideration if and when they

decide to deal with that specific issue. It is therefore difficult to blame a Recommendation to have

basically… done its job, as described by the Treaty. Accepting the other solution would in practice

bring about an exception to the admissibility rules governing action for annulment laid down in the

Treaty.

For the same reason, I believe that this conclusion cannot be influenced or reconsidered in

the light of the length, or the motivation, or the “intensity” of the Recommendations directed to the

Member States. First, there is nothing to suggest that a “genuine” Recommendation should be

detected or excluded on the basis of its length or of the precision of its “suggestions” to Member

29 Judgment of the Court of 31 March 1971, Commission of the European Communities v Council of the European Communities

(European Agreement on Road Transport), Case 22-70, paragraphs 38-39: «Under article 173, the Court has a duty to review

the legality "of acts of the Council ... other than recommendations or opinions ". Since the only matters excluded from the scope

of the action for annulment open to the Member States and the institutions are " recommendations or opinions " - which by

the final paragraph of article 189 are declared to have no binding force - article 173 treats as acts open to review by the Court

all measures adopted by the institutions which are intended to have legal force».


States. Even directives may be detailed, even if the Treaty appears to refer only to an “obligation de

résultat”. Second, although very articulated (31 points in the Preamble and 54 paragraphs), the

Recommendation follows a model that it is not difficult to find in many other cases. For example,

Recommendation of 12 March 2014 on a new approach to business failure and insolvency30 has a

length and intensity that are similar to that at stake here. Also in that case the Commission starts from

the assumption that national insolvency rules “vary greatly” in the range of procedures available to

debtors facing financial difficulties in order to restructure their business31, and these discrepancies

lead to disincentives for businesses wishing to establish in different Member States32. In the text of

the act the Commission “encourages” Member States to “put in place a framework that enables the

efficient restructuring of viable enterprises in financial difficulty and give honest entrepreneurs a

second chance”: it makes reference to various specific measures to that end but does not impose any

obligation. Finally, also in this case a final section of the act deals with supervision and reporting, still

using a language that excludes any legal consequences in case of non-compliance: “Member States

are invited to implement the principles set out in this Recommendation”.

5. Final Remarks

A third and final remark concerns the coherence of the European Courts’ solution as to direct

challenge of a Recommendation with the previous case-law of the Court, and in particular with the

solution reached in the Grimaldi judgment and confirmed in subsequent rulings33, according to which

a recommendation cannot confer rights on individuals to be invoked before national court but may

have “indirect” legal effects before the same courts.

The General Court’s approach appears correct when, in responding to the arguments of the

Kingdom of Belgium, it concluded that if a Recommendation could be challenged because of its

“indirect” legal effects, any “genuine” Recommendation could be open to legal action, in clear violation

of Article 263 TFEU, since those are the typical effects of that kind of acts34. In this regard, it is important

to underline the limited scope of Grimaldi: unlike the case of unimplemented directives, that according

30 OJEU, L 74 of 14.3.2014, pp. 65-70. Note that also in that case the act was published in the “L” series of the Official Journal.

31 Preamble, Whereas no. 2.

32 Ibidem, Whereas no. 4.

33 Inter alia, Judgment of 18 March 2010, Alassini, joined cases C-317/08, C-318/08, C-319/08 e C-320/08, ECLI:EU:C:2010:146

34 Order of the General Court, paragraph 44.


to the reading of the Court of justice can confer rights on individuals in specific situations, it only refers

to the duty of national courts to take Recommendations into consideration in order to decide disputes

submitted to them, in particular when: a) they cast light on the interpretation of national measured

adopted in order to implement them; b) they are designed to supplement binding EU provisions.

Now, taking Recommendations “into consideration” – while in practice may have a significant

impact on the solution of a dispute – in principle only means that, in interpreting the relevant

provisions of national or EU law that refer to that act, judges or national administration cannot ignore

its existence, but can still decide the case before them in a different manner as “suggested” in the act.

Is it typical of soft-law to produce “indirect” or other procedural effects before national courts, and in

fact the same solution can be found in the Court of Justice’s interpretation of other non-binding acts.

It is the case, for instance, of European Parliaments’ resolutions on the immunity of its members. In

the Marra judgment35 the Court concluded that even if the European Parliament, pursuant to a

request from the Member concerned, adopts, on the basis of its Rules of procedure, a decision to

defend immunity of a Member, that constitutes an opinion which does not have binding effect with

regard to national judicial authorities36. Never the less, the Court derived from the duty of sincere

cooperation between the European institutions and the national authorities, enshrined in Article 10

EC (now Article 4, paragraph 3, TEU) and reiterated in Article 19 of the Protocol on the Privileges and

Immunities of the European Communities, that “the European Parliament and the national judicial

authorities must cooperate in order to avoid any conflict in the interpretation and application of the

provisions of the Protocol”37. This means in practice that “where an action has been brought against a

Member of the European Parliament before a national court and that court is informed that a

procedure for defence of the privileges and immunities of that Member, as provided for in Article 6(3)

of the Rules of Procedure, has been initiated, that court must stay the judicial proceedings and request

the Parliament to issue its opinion as soon as possible” 38

A final comment on a question that could soon come to the attention of the Court of justice.

In Belgium v. Commission, after having excluded any chance to challenge the Recommendation at stake

via Article 263 TFEU, the Court reminds at para 44 that unlike Article 263, Article 267 TFEU confers on

35 Judgment of the Court (Grand Chamber) of 21 October 2008, Alfonso Luigi Marra v Eduardo De Gregorio (C-200/07) and

Antonio Clemente (C-201/07), . ECLI:EU:C:2008:579. See for a comment R. Mastroianni in Common Market Law Review, 2010, p.

1541 ss.





it jurisdiction to deliver a preliminary ruling on the validity and interpretation of all acts of the EU

institutions without exception. This is not surprising, since the Court repeats literally the conclusion

already reached in Grimaldi. What is new is the context. In Grimaldi such a statement was necessary

to justify the holding of the Court concerning its own jurisdiction to give a ruling on the interpretation

of a Recommendation as requested by the referring national court: the Court pointed out that, unlike

Article 173 EC (now Article 263 TFEU), Article 177 EC (now Article 267 TFEU) presents no textual

limitations on the type of acts potentially involved, and the Court has clarified for what limited extent

a preliminary reference for interpretation of a non- binding act such as a recommendation can be

necessary for the solution of a dispute before a national court (see above). In the judgment

commented here the same phrase has a different meaning, that is to maintain that if a

Recommendation cannot be challenged – even by a “privileged” applicant – with a direct action, this

does not exclude that the validity of the same act can be the object of a request for a preliminary

ruling under Article 267 TFEU.

Such a conclusion, not necessary in the context of that specific dispute, is nevertheless very

important and deserves much more attention than that allowed by this brief comment. Briefly, it is not

obvious that an act - a “true” recommendation - that for its own characteristics (and not for the

characteristics of the subject challenging it) and in particular for the lack of binding effects cannot be

subject to direct challenge can be contested indirectly via the preliminary ruling procedure, in principle,

on the same grounds that the Kingdom of Belgium invoked in the action under Article 263 TFEU

(violation of basic rules such as the general principles of sincere cooperation and of institutional

balance). Here the recurrent argument of the Court of Justice on the “complementarity” of the two

means of reviewing the legality of European Union acts39 does not seem to be pertinent, since there

is no question of ”compensation” via the preliminary ruling on validity of the limited access to justice

recognized to individuals in direct actions40.

One may wonder whether the coherence of the system of legal remedies should rather justify

the opposite solution, that is the exclusion of a scrutiny on the validity of a recommendation,

39 In Rosneft (Judgment of 28 March 2017, PJSC Rosneft Oil Company v Her Majesty's Treasury and Other, case C- 72/15,

ECLI:EU:C:2017:236) the Court confirmed that, in order to guarantee judicial protection of individuals, “requests for preliminary

rulings which seek to ascertain the validity of a measure constitute, like actions for annulment, a means for reviewing the legality

of European Union acts” .

40 Ibidem, paragraph 66: “The review of the legality of acts of the Union that the Court is to ensure under the Treaties relies, in

accordance with settled case-law, on two complementary judicial procedures. The FEU Treaty has established, by Articles 263

and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to

ensure judicial review of the legality of European Union acts, and has entrusted such review to the Courts of the European

Union”.


irrespective of the procedure. Considering the context of the dispute, the Court does not give further

explanations on this point. It will be very interesting to verify if this obiter dictum will have real

consequences in future litigation before national courts and before the Court of Justice.


Chapter 8 Commission c/ France : Un rappel nécessaire de

l’inégalité inhérente au dialogue des juges au sein de l’Union européenne

Araceli Turmo

Dans un arrêt du 4 octobre 201841, la Cour de justice a jugé pour la première fois que la décision d’une

juridiction statuant en dernier ressort de ne pas transmettre de renvoi préjudiciel constituait un

manquement au sens de l’article 258 TFUE. Contrairement à ce que l’on aurait pu attendre d’un

premier arrêt destiné à confirmer une menace pesant sur les juridictions suprêmes des États

membres en matière de renvoi préjudiciel, cet arrêt ne paraît a priori pas concerner une violation

particulièrement flagrante de l’article 267 §3 TFUE. Le manquement résulte de la décision du Conseil

d’État français de ne pas opérer un second renvoi dans un même litige. Le Conseil d’État considérait

à l’évidence avoir fait son devoir à l’égard de la Cour de justice et du renvoi préjudiciel42. Cette affaire

témoigne cependant de problèmes persistants dans la perception et l’utilisation du renvoi préjudiciel

par les juridictions nationales telles que le Conseil d’État43 et constituait de ce fait une parfaite occasion

de franchir cette nouvelle étape dans le contrôle des juridictions nationales par le contentieux de

l’Union européenne.

L’arrêt Commission c/ France marque un nouvel épisode d’une longue saga entamée devant

les juridictions administratives françaises à partir de 2001, lorsque des entreprises dont Accor et

Rhodia ont contesté les règles françaises relatives à la double imposition des dividendes.

L’administration avait rejeté leurs arguments contestant la conformité au droit de l’Union européenne

du système de l'avoir fiscal et du précompte, qui a pris fin en 200544. Les juridictions administratives

Université de Nantes

41 Affaire C-416/17 Commission c/ France [2018] EU:C:2018:811.

42 J.-D. Combrexelle, ‘Sur l’actualité du “dialogue des juges”’ [2018] AJDA 1929.

43 S. Gervasoni, ‘CJUE et cours suprêmes: repenser les termes du dialogue des juges?’ [2019] AJDA 150.

44 Article 93 de la Loi de Finances de 2004, Loi n° 2003-1311 du 30 décembre 2003 de finances pour 2004, JORF n° 302, 31

décembre2003, p. 22530.


françaises rejetèrent également ces arguments en première instance45 et en appel46 sans interroger

la Cour de justice. il fallut attendre que le Conseil d'État, saisi des affaires, opère un premier renvoi

préjudiciel47 et tranche en tenant compte de l'arrêt Accor qui confirmait la non-conformité de ce

système fiscal avec les articles 49 et 63 TFUE48. Dans ses arrêts49, le Conseil d'État applique la règle

dégagée dans l'arrêt Accor mais va au-delà en établissant modalités de répétition des sommes

indûment perçues, notamment les éléments de preuve exigibles et les règles de calcul des montants

remboursables. Il rejette à cette occasion l'inclusion dans ces montants des impôts prélevés sur les

sous-filiales établies dans d'autres États membres, tandis que la Cour de justice avait quelques

semaines auparavant semblé estimer que la solution contraire serait plus conforme au droit de

l'Union européenne dans une affaire portant sur un mécanisme britannique qui présentait certaines

similitudes50. Cet arrêt, qui aurait dû alerter le Conseil quant à la nécessité d’une clarification sur cet

aspect du droit de l’Union et donc d'un second renvoi préjudiciel, est écarté par la haute juridiction

administrative qui préfère trancher elle-même. Les entreprises s'en sont pourtant saisies pour

transmettre des plaintes à la Commission européenne en s'appuyant notamment sur cet aspect des

arrêts51. Ce sont ces plaintes qui sont à l’origine du recours en constatation de manquement formé le

10 juillet 2017 par la Commission.

La Commission avait formulé quatre griefs, les trois premiers visant des violations du droit

substantiel de l'Union par le Conseil d’État dans ses arrêts de 2012, le quatrième visant l'absence de

renvoi préjudiciel qui aurait permis au Conseil d’éclaircir les points sur lesquels la Commission lui

reprochait les premières violations. Suivant son avocat général, la Cour accueille le premier grief

portant sur le fond, qui visait la question de l'impôt perçu sur les sous-filiales, ainsi que le quatrième,

45 Tribunal administratif de Versailles 21 décembre 2006, n° 20440, Société Accor et n° 404552, Société Rhodia.

46 Cour administrative d’appel de Versailles 20 mai 2008, n° 07VE00529, Ministre de l’Économie, des finances et de l’industrie c/

Société Rhodia, et n° 7VE00530, Ministre de l’Économie, des finances et de l’industrie c/ Société Accor.

47 Conseil d’État 3 juillet 2009, n° 317075, Ministre de l’Économie et des finances c/ Société Accor.

48 Pour davantage de précisions sur l’arrêt Accor, voir: J.-L. PIERRE, « Non-conformité au droit de l’UE des dispositifs du précompte

et de l’avoir fiscal », Droit fiscal 2012, n° 3, p. 40 ; A. J. MARTÍN JIMÉNEZ, « Impuestos directos y libertades fundamentales - Sentencia

del TJUE (Sala Primera) de 15 de septiembre de 2011, Accor, Asunto C-310/09 », Revista espanola de Derecho Financiero 2012,

n° 153, p. 326.

49 Conseil d’État 10 décembre 2012, n° 317074, Ministre de l’Économie et des finances c/ Société Rhodia, et n° 317075, Ministre de

l’Économie et des finances c/ Société Accor.

50 Affaire C-35/11 Test Claimants in the FII Group Litigation [2012] EU:C:2012:707. Cet arrêt en suit un premier, en date du 12

décembre 2006 (affaire C-446/04 Test Claimants in the FII Group Litigation [2006] EU:C:2006:774). Le Conseil d’État avait pourtant

identifié ces arrêts mais son rapporteur public a estimé que la logique interne différente des systèmes français et britannique

permettait d'écarter ce précédent, sans suggérer un nouveau renvoi préjudiciel : Concl. N. Escaut ss CE 10 décembre 2012,

précité n. 9, §14.

51 Pt 14 de l’arrêt Commission c/ France.


estimant à juste titre que l'existence même d'un désaccord quand à l'interprétation correcte du droit

de l'Union sur ce point prouvait la nécessité d'un renvoi préjudiciel52. Le gouvernement français

arguait que les difficultés d'application du droit de l’Union rencontrées par le Conseil d’État étaient de

nature factuelle et que « le Conseil d’État était fondé à considérer que les réponses [...] pouvaient clairement

être déduites de la jurisprudence »53 de la Cour. Il s’agissait d'une référence très claire à la notion d’acte

éclairé admise dans l'arrêt CILFIT54 qui évitait soigneusement la notion d’acte clair, sur laquelle la Cour

s'est néanmoins prononcée.

Comme le démontre l'avocat général Wathelet55, le fait de constater pour la première fois un

manquement du fait d’une violation de l'article 267 §3 TFUE ne posait pas de problèmes particuliers

dès lors que la jurisprudence avait déjà bien établi le fait qu'une juridiction suprême d’un État membre

puisse causer un manquement56 ou engager la responsabilité de l’État en vertu du principe Köbler57.

Le fait qu'il s’agisse ici d’un second renvoi avait été noté par l'avocat général qui avait insisté sur

l’importance d’opérer des renvois complémentaires58 et établi un parallèle intéressant avec

l'obligation de respecter l'interprétation donnée par la Cour et l’obligation plus générale qu'ont les

États membres d'exécuter les arrêts constatant des manquements en vertu de l’article 260 TFUE59. Il

propose que la faculté de poser des questions préjudicielles complémentaires60 soit considérée

comme une obligation lorsque des incertitudes demeurent quant à l'interprétation du droit de

52 Pts 100-102 de l’arrêt.

53 Pt 104 de l’arrêt.

54 Affaire 283/81 CILFIT e.a. [1982] EU:C:1982:335. Sur cet arrêt, voir notamment: G. Bebr, ‘The Rambling Ghost of "Cohn-Bendit":

Acte Clair and the Court of Justice’ [1983] CMLRev. 439 ; K. Lenaerts, ‘La modulation de l'obligation de renvoi préjudiciel’ [1983]

CDE 471.

55 Pts 88, 90 et 91 des Conclusions de l'avocat général Wathelet présentées le 25 juillet 2016, dans l’affaire Commission c/

France, C-416/17, EU:C:2018:626.

56 Affaires C-129/00 Commission c/ Italie [2003] EU:C:2003:656; et C-154/08 Commission c/ Espagne [2009] EU:C:2009:695. Sur

ces arrêts, voir notamment : L. Rossi & G. di Federico, ‘Case C-129/00, Commission v. Repubblica Italiana, judgment of 9 December

2003, Full Court, nyr’ (2005) 42 CMLRev. 829 ; M. Lopez Escudero, ‘Case C-154/08, Commission v Spain, Judgment of the Court

(Third Chamber) of 12 November 2009’, (2011) 48 CMLRev. 227.

57 Affaire C-224/01 Köbler [2003] EU:C:2003:513. Sur cet arrêt, voir P. Wattel, ‘Köbler, Cilfit and Welthgrove: We Can't Go On

Meeting Like This’ (2004) 41 CMLRev. 177 ; D. Ruiz-Jarabo Colomer, ‘Once Upon a Time - Francovich: From Fairy Tale to Cruel

Reality?’ in M. Poiares Maduro & L. Azoulai (eds), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th

Anniversary of the Rome Treaty (Hart 2010) p. 405.

58 Pt 90 de l’arrêt Commission c/ France, qui vise l’article 19 §1 TUE et l’arrêt rendu dans l’affaire C-3/16 Aquino [2017]

EU:C:2017:209, ainsi que les Conclusions de l'avocat général Bot présentées le 11 juin 2015, dans l’affaire C-160/14 Ferreira da

Silva e Brito, EU:C:2015:390, pt 102.

59 Pt 92 des Conclusions de l’avocat général Wathelet, précitées n. 15.

60 Cette faculté a toujours été reconnue par la Cour de justice : affaires jointes 28 à 30/62 Da Costa [1963] EU:C:1963:6.


l’Union61. La Cour de justice n’aborde pas cet aspect de l’affaire et affirme simplement que le « doute

raisonnable » quant à l'interprétation du droit de l’Union suffit à constater l’obligation de renvoi et sa

violation en l’espèce62.

Cet arrêt confirme la portée très limitée des exceptions CILIFIT ainsi que l'importance du renvoi

préjudiciel pour garantir l'interprétation uniforme du droit de l'Union dans les États membres. Il ne

surprend pas véritablement, car il était attendu depuis l’arrêt Ferreira da Silva63 et constitue

l'aboutissement d'une jurisprudence qui remonte au moins aux arrêts Köbler et Commission c/ Italie

de 2003. L’effort de la Cour de justice pour concrétiser progressivement le contrôle opéré sur les

juridictions nationales et, en particulier, les juridictions suprêmes témoigne des difficultés qu'elle

rencontre pour les convaincre de participer de bonne foi au mécanisme établi à l'article 267 TFUE. Il

faut d'ailleurs noter une certaine ironie historique dans le fait que la juridiction visée par ce premier

arrêt en manquement, qui termine le travail de délimitation de l’exception de l’acte clair, soit justement

celle dont la réticence historique à l’égard du renvoi préjudiciel l’avait conduite à construire cette

exception64. Si les relations entre Cour de justice et Conseil d’État se sont beaucoup améliorées, la

réaction du Président de la Section du Contentieux du Conseil d’État, Jean-Denis Combrexelle65 à cet

arrêt témoigne de la persistance de ces problèmes et de la nécessité d’une réaffirmation par la Cour

de son autorité comme juridiction suprême de l’ordre juridique de l’Union européenne.

Par cet arrêt, la Cour de justice confirme la responsabilité des États membres du fait de leurs

juridictions (I) et rappelle les juridictions nationales statuant en dernier ressort à leurs obligations dans

le système juridictionnel de l'Union (II).

1. Une confirmation attendue de la responsabilité des États membres du fait des

actions de leurs juridictions suprêmes

L'arrêt Commission c/ France apporte une pierre supplémentaire à l'édifice du système juridictionnel

commun que la Cour de justice s'attache à construire en affirmant progressivement sa position à la

61 Pt 93 des Conclusions de l’avocat général Wathelet, précitées n. 15.

62 Pts 111-112 de l'arrêt Commission c/ France.

63 Affaire C-160/14 Ferreira da Silva e Brito e.a. [2015] EU:C:2015:565.

64 La notion d’acte clair avait été construite par le Conseil d’État pour justifier des décisions de ne pas transmettre certaines

questions préjudicielles à la Cour de justice : CE 19 juin 1964, n° 47007 Société des pétroles Shell-Berre.

65 J.-D. Combrexelle, précité n. 2.


tête d’un système juridictionnel de plus en plus fédéral66. Il peut en ce sens apparaître comme une

illustration supplémentaire du « mode constitutionnel » identifié par Daniel Sarmiento dans la

jurisprudence récente67. L’arrêt marque une étape importante dans la jurisprudence cherchant à

introduire davantage de verticalité dans ce système juridictionnel. Faute de disposer de mécanismes

hiérarchiques formels, la Cour de justice cherche à s'appuyer sur les mécanismes permettant

d'engager la responsabilité des États membres eux-mêmes pour peser sur les juridictions nationales.

Donner à la Commission la faculté d’employer la procédure du recours en manquement prévue à

l’article 258 TFUE n’est certainement pas une solution idéale pour garantir que les juridictions

nationales respectent leurs obligations, mais elle est l’une des deux seules solutions maladaptées dont

dispose la Cour pour compenser l’absence d’une procédure d’appel ou de pourvoi, l’autre étant la

responsabilité Köbler68.

L’impact produit par l’évènement que constitue cette première décision constatant un

manquement de ce type ne doit pas conduire à exagérer son importance du point de vue de

l’évolution du droit. Comme le démontrent en creux les motivations aisées de l’arrêt et des

conclusions, cet arrêt n’apporte pas réellement un nouveau développement du droit, il s’agit plutôt de

la première application d’une règle que la Cour de justice a progressivement établi. Le fait que les

juridictions suprêmes des États membres peuvent causer des manquements au droit de l’Union

européenne est établi de longue date bien que les premiers arrêts n’aient pas explicitement traité la

question de la source juridictionnelle du manquement ou la question particulière de l’absence de

renvoi préjudiciel en tant que manquement.

Dans le cadre du recours visé à l’article 258 TFUE, l’arrêt Commission c/ Italie identifiait dès

2003, bien qu’indirectement, une violation causée par la Corte di cassazione. Dans cette affaire, la

Cour de justice identifie un manquement dans l’absence de modification d’une disposition législative

dont l’interprétation constante par les juridictions était incompatible avec le droit de l’Union. La source

juridictionnelle de la violation n’est donc pas explicitement identifiée mais elle apparaît clairement, en

66 Cf. notamment: J. Komárek, ‘Federal Elements in the Community Judicial System – Building Coherence in the Community Legal

Order’ (2005) 42 CMLRev. 9 ; D. Halberstam, ‘Comparative Federalism and the Role of the Judiciary’ in K. Whittington e.a. (eds),

The Oxford Handbook of Law and Politics (Oxford University Press 2008) pp. 142-164.

67 D. Sarmiento, ‘On Constitutional Mode’, Despite Our Differences, 6 mars 2018, despiteourdifferencesblog.

wordpress.com/2018/03/06/on-constitutional-mode/.

68 D. Sarmiento, ‘Judicial Infringements at the Court of Justice – A Brief Comment on the Phenomenal Commission/France (C-

416/17)’, Despite Our Differences, 9 octobre 2018, despiteourdifferencesblog. wordpress.com/2018/10/09/judicial-

infringements-at-the-court-of-justice-a-brief-comment-on-the-phenomenal-commission-france-c-416-17 ; S. Gervasoni, précité

n. 3.


filigrane de la motivation et de la démonstration de l’existence d’un manquement car la même

disposition, interprétée différemment, n’aurait pas constitué un manquement. On sent dans ce choix

de la Cour de justice une certaine gêne vis-à-vis d’une sanction directe des agissements d’une

juridiction nationale. Cependant, s’il demeurait une quelconque incertitude, l’avocat général Geelhoed

indique dès le début de ses conclusions que l’affaire doit être reliée à l’affaire Köbler et soulève la

question des « conséquences qu’il y a lieu d’attacher à une jurisprudence nationale qui ne se conforme pas

aux dispositions du droit communautaire »69. L’arrêt Commission c/ Italie doit donc être considéré comme

le premier arrêt constatant un manquement du fait des juridictions nationales.

L’arrêt Commission c/ Espagne identifie plus directement un manquement causé par une

décision du Tribunal Supremo mais toujours sans traiter explicitement la question de la spécificité de

sa source juridictionnelle. La Cour de justice évite la question et se concentre plutôt sur la violation

elle-même. Cet arrêt aurait aussi pu être le premier à identifier un manquement du fait d’une décision

de ne pas renvoyer une question préjudicielle. L’Espagne arguait que l’objet de la plainte présentée

par la Commission était ambigu et qu’elle pouvait être interprétée comme visant la décision de ne pas

opérer un renvoi70. La Commission a écarté cet argument et s’est concentrée sur la violation du droit

matériel, toutefois le fait que la décision de ne pas opérer un renvoi ait été identifiée comme

fondement potentiel d’une plainte démontre que son apparition dans l’affaire Commission c/ France

n’est pas inattendue. Par ailleurs, cela illustre le lien inextricable entre violations matérielles du droit

de l’Union européenne et refus de poser une question préjudicielle: dans la plupart des cas, on peut

raisonnablement supposer qu’un renvoi aurait permis d’éviter la mauvaise interprétation ou

application du droit de l’Union. En ce sens, toute violation de l’obligation posée à l’article 267 §3 TFUE

crée un risque significatif de violation d’une autre norme de droit de l’Union.

Ce lien est évident dans l’autre pan de la jurisprudence concernant la sanction des violations

juridictionnelles du droit de l’Union, celui qui démarre avec l’arrêt Köbler dans la suite des arrêts

Francovich71 et Brasserie du pêcheur72. Dans l’arrêt Köbler, la Cour de justice affirme que le

Verwaltungsgerichtshof aurait dû maintenir son renvoi préjudiciel parce qu’il statuait en dernier

69 Conclusions de l’avocat général Geelhoed présentées le 3 juin 2003, dans l’affaire C-129/00 Commission c/ Italie,

EU:C:2003:319, pts 2-3.

70 Pt 44 de l’arrêt Commission c/ Espagne.

71 Affaires jointes C-6 et 9/90 Francovich et Bonifaci e.a. [1991] EU:C:1991:428.

72 Affaires jointes C-46 et 48/93 Brasserie du Pêcheur SA [1996] EU:C:1996:79.


ressort73. Ce constat est relié dans la motivation à la violation de la libre circulation des travailleurs par

la juridiction autrichienne. Le gouvernement autrichien avait défendu la position selon laquelle une

violation de l’obligation d’opérer un renvoi préjudiciel ne pouvait, en l’espèce, pas engager la

responsabilité de l’État, non parce qu’il n’avait pas été méconnu, mais parce que cet article n’était pas

susceptible de conférer des droits aux justiciables. La Cour ne répond pas sur ce point bien que sa

jurisprudence postérieure montre qu’elle ne partage pas cet avis. Cependant dans cette affaire, le fait

que l’interprétation correcte du droit de l’Union était incertaine paraît atténuer la gravité de la violation

du droit de l’Union74, ce qui témoigne de la volonté de ne pas heurter les juridictions suprêmes

nationales alors qu’une violation de l’article 267 §3 TFUE avait été constatée.

Dans l’affaire en cause au principal dans l’affaire Ferreira da Silva les demandeurs avaient

clairement fondé leur demande en dommages-intérêts sur deux violations reliées du droit de l’Union:

l’interprétation incorrecte d’une disposition de droit de l’Union par la cour suprême portugaise et sa

méconnaissance de l’obligation énoncée à l’article 267 §3 TFUE. La Cour constate une violation de cet

article pour la première fois depuis Köbler75. Elle n’indique pas explicitement si une violation de l’article

267 §3 TFUE peut en elle-même fonder une action fondée sur le principe Köbler mais ne l’exclut pas.

Un changement notable apparaît cependant, dès lors que le fait qu’il y ait eu une incertitude quant à

l’interprétation de la norme en cause n’apparaît plus comme une circonstance réduisant la gravité de

la violation mais, au contraire, comme preuve que la juridiction nationale ne pouvait trancher seule et

qu’un renvoi aurait dû être opéré.

L’arrêt Commission c/ France confirme cette évolution vers davantage de fermeté à l’égard des

juridictions nationales confrontées à des doutes quant à l’interprétation correcte du droit de l’Union.

La jurisprudence a confirmé le lien inhérent entre les arrêts Köbler et Commission c/ Italie de 2003 et

les efforts de la Cour de justice pour introduire de la verticalité dans un système juridictionnel privé

de toute relation strictement hiérarchique entre juridictions européennes et nationales. Les deux

menaces que constituent les actions en dommages-intérêts devant les juridictions nationales et les

73 Pts 117-118 de l’arrêt Köbler, précité n. 17.

74 Pt 122 de l’arrêt Köbler.

75 Dans l’arrêt Ferreira da Silva, la Cour de justice n’affirme jamais explicitement que la juridiction nationale a manqué à son

obligation en vertu de l’article 267 §3 TFUE, conformément à la pratique restreignant habituellement la portée du renvoi

préjudiciel à l’interprétation du droit de l’union. Cependant, l’avocat général Bot indique bien qu’« une juridiction nationale […]

telle que le Supremo Tribunal de Justiça, était tenue, dans des circonstances telles que celles en cause au principal, de saisir la

Cour d’un renvoi préjudiciel » et insiste sur la nécessité d’adopter une position stricte « quant au rappel de l’obligation de renvoi

qui pèse sur les juridictions nationales dont les décisions ne sont pas susceptibles d’un recours juridictionnel de droit interne »

(Conclusions de l’avocat général Bot présentées le 15 juin 2015, dans l’affaire C-160/14, Ferreira da Silva, EU:C:2015:390, pts 4

et 101).


recours en manquement devaient avoir pour effet de décourager les pratiques les plus néfastes à

l’application correcte du droit de l’Union dans les États membres en contraignant les juridictions, en

particulier celles qui se trouvent au sommet des systèmes juridictionnels nationaux, à respecter leurs

obligations.

Les affaires qui ont donné lieu à l’arrêt Commission c/ France illustrent parfaitement en quoi il

est indispensable que les juridictions nationales utilisent le mécanisme du renvoi préjudiciel afin

d’éviter des violations du droit de l’Union européenne. La doctrine française avait émis des doutes dès

2009, suite au premier arrêt du Conseil d’État, estimant que la question de l’imposition des sous-filiales

devrait être soumise à la Cour de justice76. Cependant, le rapporteur public en 2009 n’a pas vraiment

traité cette question, tandis que l’auteure des conclusions en 2012 a clairement estimé que le Conseil

pouvait de lui-même décider de la portée de l’arrêt Test Claimants, sans développer une argumentation

convaincante77. Le fait même que le rapporteur public l’ait invité à effectuer un distinguishing - au sens

du stare decisis - d’un précédent de la Cour aurait dû signaler au Conseil qu’un second renvoi était

nécessaire, car la portée d’un précédent ne peut être déterminée avec autorité que par son propre

auteur. La question de la pertinence d’une transposition de la règle énoncée dans Test Claimants à la

situation française ne pouvait être légitimement tranchée que par la Cour car il s’agissait bien d’une

question d’interprétation de la norme européenne78.

Bien que la violation de la règle de droit matériel paraisse de prime abord moins sérieuse ici

que dans d’autres situations, le fait que le Conseil d’État ait pensé qu’il pouvait déterminer seul la

portée d’un précédent de la Cour de justice et en écarter l’applicabilité dans cette affaire suffit bien à

identifier une violation de l’article 267 §3 TFUE. L’arrêt Commission c/ France marque la dernière étape

d’un durcissement progressif de l’attitude de la Cour face aux refus d’opérer des renvois préjudiciels,

qui se justifie non seulement par le souci d’assurer l’effectivité du droit de l’Union mais aussi par

l’affirmation du droit à une protection juridictionnelle effective.

76 F. Locatelli, ‘Accor et désaccords – affaire dite du précompte mobilier: “[...] Et pour la première fois dans le cadre d'un recours

en manquement […]”’ (2018) vol. 41 Droit fiscal, comm. 420, § 14, qui cite V. Daumas, ‘Distributions transfrontalières de

dividendes : avec avoir... ou pas ? »’ [2009] RJF p. 715.

77 Concl. N. Escaut, précitées n. 8, § 14.

78 Pt 100 des conclusions de l’avocat général Wathelet, précitées n. 15.


2. Un rappel nécessaire des obligations des juridictions suprêmes dans l'application du

droit de l’Union

La protection des droits que les justiciables tirent du droit de l’Union européenne passe

nécessairement et prioritairement par le renvoi préjudiciel. Cette affirmation, devenue un truisme en

droit de l’Union européenne, se justifie notamment par les limitations strictes de l’accès direct au juge

de l’Union européenne79. Le renvoi étant souvent la seule possibilité d’accès, même indirect, à une

interprétation autorisée ou à un contrôle de validité du droit de l’Union européenne, la coopération

des juridictions nationales est essentielle à la protection des justiciables. La jurisprudence de la Cour

européenne des droits de l’Homme confirme depuis quelques années cette analyse80 et a sans doute

encouragé la Cour de justice à franchir les dernières étapes vers l’affirmation de ce contrôle indirect

sur les juridictions suprêmes des États membres. A travers les constatations de manquement ou les

actions en responsabilité visant l’État, il s’agit en effet de rappeler les juridictions suprêmes des États

membres à leurs responsabilités. Si elles ne sont pas les seules concernées par l’obligation énoncée

à l’article 267 §3 TFUE, ces juridictions sont bien les premières visées dès lors qu’elles statuent en

dernier ressort et sont davantage susceptibles de permettre l’établissement, ou le maintien, de

jurisprudences nationales contraires à celle de la Cour de justice.

L’arrêt Commission c/ France ne doit pas être lu comme un affront fait au Conseil d’État, mais

comme la suite logique d’une jurisprudence visant à responsabiliser les juridictions nationales, dans

laquelle la Cour saisit l’opportunité offerte par le recours en manquement formé par la Commission.

La Cour n’a pas choisi de viser le Conseil d’État ou la France, elle a choisi de saisir cette occasion de

réaffirmer son interprétation stricte des exceptions CILFIT et de trancher le litige d’une manière qui est

conforme à sa jurisprudence antérieure tout en permettant un progrès significatif dans l’élaboration

du droit procédural de l’Union. Le désaccord entre les juridictions nationales (en particulier les

juridictions suprêmes) et la Cour de justice sur la portée des exceptions CILFIT est connu de longue

date. Le dialogue des juges ne peut aboutir à une utilisation abusive de l’autonomie des juridictions

nationales qui conduit à rendre des décisions contraires au droit de l’Union, qui affectent directement

79 La Cour de justice s’appuie dans une jurisprudence constante sur l’appartenance des juridictions à un système juridictionnel

commun pour chercher à démontrer le respect du droit à une protection juridictionnelle effective dans l’Union européenne:

par exemple dans l’arrêt rendu dans l’affaire C-583/11 P Inuit e.a. c/ Parlement européen et Conseil [2013] EU:C:2013:625, pt 94

ss. Cette argumentation se retrouve également dans les écrits doctrinaux des membres de la Cour, cf. K. Lenaerts, ‘La

systémique des voies de recours dans l’ordre juridique de l’Union européenne’, in Promenades au sein du droit européen.

Mélanges en hommage à Georges Vandersanden (Bruylant 2009).

80 CourEDH 20 septembre 2011, n° 3989/07 et 38353/07, Ullens de Schooten c/ Belgique ; 6 décembre 2012, n° 12323/11,

Michaud c/ France ; 8 avril 2014, n° 17120/09, Dhahbi c/ Italie.


la protection effective des droits que ce droit confère aux justiciables, ou à de nouvelles divergences

dans son interprétation. Sans aller jusqu’à militer en faveur d’une relation purement verticale qui

mettrait en péril les avancées réalisées grâce à des relations plus informelles et horizontales, il est

légitime que, compte tenu de l’importance des juridictions nationales dans le système juridictionnel

de l’Union, la Cour chargée d’assurer l’uniformité de l’application et de l’application du droit de l’Union

puisse exercer un certain contrôle. Ce contrôle est rendu plus difficile si les juridictions nationales

statuant en dernier ressort et, en particulier, les juridictions suprêmes, ne lui renvoient pas des

questions d’interprétation importantes. Le système juridictionnel de l’Union ne peut pas se permettre

des relations purement horizontales entre ses niveaux européen et national s’il doit assurer une

cohérence suffisante dans l’application du droit et une protection suffisante des droits des justiciables.

Les risques qu’engendre l’utilisation de l’arrêt CILFIT par les juridictions suprêmes des États

membres pour élaborer des lectures différentes de l’article 267 §3 TFUE sont connus. Dans certains

cas, l’arrêt CILFIT semble avoir été considéré comme donnant carte blanche aux juridictions nationales

pour développer leur propre conception du renvoi préjudiciel81 et les encourageant à interpréter le

droit de l’Union par elles-mêmes si elle ne ressentent pas le besoin de transmettre une question à la

Cour. Cette interprétation du rôle du juge national - plus spécifiquement de la juridiction suprême -

est apparente dans la réponse du Président de la Section du contentieux du Conseil d’État à l’arrêt de

la Cour82. Il affirme que c’était aux juges nationaux qu’il « appartenait d’appliquer et d’interpréter tant le

droit primaire que le droit dérivé […] dans le respect des grands principes définis par Luxembourg » et que

« l’équilibre institutionnel et sans doute la sagesse commandent de ne pas cantonner le rôle des cours

suprêmes à celui de l’interprétation de l’évidence ». Il semble ainsi considérer que les juridictions

suprêmes des États membres telles que le Conseil d’État ont le devoir d’interpréter le droit de l’Union

et pas seulement de respecter les interprétations données par la Cour de justice et le Tribunal. Il est

certes possible d’arguer en faveur de cette position en défendant le principe de la coopération

horizontale, selon lequel les juridictions suprêmes nationales seraient considérées comme des

partenaires coopérant avec la Cour plutôt que comme des juridictions inférieures appliquant sa

jurisprudence, ou simplement en vertu de considérations plus prosaïques selon lesquelles des renvois

81 Concernant l’application problématique de CILFIT par les juridictions nationales statuant en dernier ressort, voir A. Arnull, ‘The

Use and Abuse of Article 177 EEC’ (1985) 52 Modern Law Review 622; D. Sarmiento, ‘Cilfit and Foto-Frost: Constructing and

Deconstructing Judicial Authority in Europe’, in M. Poiares Maduro & L. Azoulai (eds), précité n. 17, p. 192, spéc. pp. 196-197 ;

plus récemment F.-V. Guiot, ‘La responsabilité des juridictions suprêmes dans le renvoi préjudiciel: with great(er) power, (at last)

comes great responsibility ?’ [2016] CDE 575.

82 J.-D. Combrexelle, précité n. 2.


systématiques par les juridictions suprêmes alourdiraient à l’excès la charge de travail de la Cour de

justice.

La Cour de justice n’a cependant jamais partagé cette lecture du renvoi préjudiciel. En

témoignent les critères stricts établis dans l’arrêt CILFIT pour l’exception de l’acte clair83. La Cour a

toujours affirmé qu’une juridiction statuant en dernier ressort ne pouvait décider de ne pas opérer un

renvoi que si l’interprétation correcte s’impose avec une telle évidence « qu’elle ne laisse place à aucun

doute raisonnable »84, bien qu’aucun mécanisme hiérarchique direct ne lui permette d’imposer le

respect de ce critère. Ainsi, selon la jurisprudence de la Cour, elle seule est habilitée à répondre à des

questions sur l’interprétation du droit de l’Union. Il apparaît toutefois clairement que plusieurs cours

suprêmes ont, à l’instar du Conseil d’État, difficilement accepté les changements que l’appartenance à

l’Union européenne a introduits dans leurs systèmes juridiques et l’existence d’une juridiction

différente et hiérarchiquement supérieure dans l’ordre juridique de l’Union, qui est capable de créer

de nouveau principes et d’établir des interprétations qu’elles sont censées susciter et suivre. L’on sait

que le Conseil d’État a longtemps refusé de reconnaître l’effet direct et la primauté du droit de

l’Union85. Le principe Francovich86 n’a produit son plein effet en France que seize ans plus tard87. Il faut

reconnaître une nette amélioration de l’application du droit de l’Union au Conseil depuis une

quinzaine d’années, sous l’influence de certains membres et de rapporteurs publics tels que M.

Guyomar88. Cette amélioration est apparente dans les affaires Accor et Rhodia, puisqu’un premier

renvoi préjudiciel avait été opéré et que le Conseil avait tenu compte de la jurisprudence de la Cour,

comme en témoignent les conclusions des rapporteurs publics. Cependant, une interprétation

excessivement généreuse de la doctrine de l’acte clair demeure un aspect problématique de la

jurisprudence du Conseil d’État et d’autres juridictions suprêmes nationales89. Sous couvert du

83 D. Sarmiento, ‘Cilfit and Foto-Frost […]’, précité n. 41, p. 195.

84 Pt 16 de l’arrêt CILFIT.

85 Il est notoire que le Conseil d’État n’a accepté d’effectuer un contrôle de conventionnalité sur la base du droit de l’Union

européenne que dans un arrêt du 20 octobre 1989, Nicolo (Rec. Lebon p. 190). Il n’a reconnu l’effet direct des directives que

dans l’arrêt CE Ass., 30 octobre 2009, n° 298 348, Perreux.

86 CJCE 19 novembre 1991, précité n. 32.

87 Le Conseil d’État a introduit dans le droit administratif français un principe de responsabilité de l’État du fait des violations du

droit international par les actes législatifs en 2007 (CE Ass., 8 février 2007, n° 279522, Gardedieu), et u fait des violations du droit

de l’Union européenne par les décisions juridictionnelles en 2008 (CE, 18 juin 2008, n° 295831, Gestas).

88 S. Gervasoni, précité n. 3.

89 Ont notamment été étudiés les exemples du Hoge Raad néerlandais (cité dans H. van Harten, ‘The Application of Community

Precedent and acte clair by the Hoge Raad, A Case Study in the Field of Establishment and Services’ in D. Obvradovic & N.

Lavranos (eds.), Interface between EU Law and National Law (Europa Law Publishing 2007) p. 237) ; la Court of Appeal d’Angleterre

et du Pays de Galles (citée dans ACA-Europe, General Report for the 18th Colloquium of the Association of the Councils of State


dialogue des juges, cette notion est souvent employée pour éviter d’opérer des renvois préjudiciels

alors même qu’ils sont obligatoires selon une lecture stricte de la jurisprudence de la Cour.

Or, bien qu’il n’existe aucune hiérarchie formelle entre les juridictions nationales et la Cour de

justice, cette hiérarchie est bien réelle en ce qui concerne la légitimité de leurs interprétations

respectives du droit de l’Union. La Cour, juridiction suprême de l’ordre juridique de l’Union et de son

système juridictionnel, rend des arrêts qui font autorité en ce qui concerne le contenu et

l’interprétation des normes. Les juges nationaux participent à l’élaboration de cet ordre juridique mais

ne jouissent pas de la même légitimité dans leurs choix interprétatifs. En outre, compte tenu de

l’importance du renvoi préjudiciel pour protéger les droits fondamentaux, de tels refus de renvoyer

des questions préjudicielles doivent être considérés comme des violations des droits subjectifs que

les justiciables tirent du droit de l’Union90. En outre, contrairement à ce que suggère le Président

Combrexelle, le contexte politique actuel, dans lequel l’Union peut craindre une défiance accrue de la

part des institutions nationales, ne doit certainement pas conduire la Cour à abandonner ces

exigences91, précisément parce qu’elles sont des conditions indispensables à l’effectivité de

nombreuses garanties.

Le recours en manquement n’est clairement pas le mécanisme le plus approprié pour affirmer

un certain contrôle sur l’application du droit de l’Union par les juridictions nationales. Il demeure

cependant, avec le principe Köbler, la seule option à la disposition de la Cour. Les critiques formulées

suite à l’arrêt Köbler demeurent valables et sa mise en œuvre dans les ordres juridiques nationaux a

été difficile92. Le principe a toutefois été intégré, y compris dans les systèmes où aucune responsabilité

équivalente du fait des juridictions n’existait en droit national93. Surtout, la Cour de justice semble

percevoir ce principe comme un incitatif plutôt que comme un outil à utiliser fréquemment, qui

pourrait nuire à la sécurité juridique. De même, il ne faut sans doute pas s’attendre à ce que les

and Supreme Administrative Courts (ACA-Europe) held in Helsinki in 2002, www.aca-

europe.eu/images/media_kit/colloquia/2002/gen_report_en.pdf) ; voir également d'autres exemples cités par S. Gervasoni,

précité n. 3.

90 D. Simon, ‘Une première historique: La France condamnée en manquement pour défaut de renvoi préjudiciel par le Conseil

d’État’ [2018] Europe n° 11, repère 10.

91 Contra, J.-D. Combrexelle, précité n. 2.

92 Voir notamment les critiques formulées par des auteurs néerlandais: P. Wattel, précité n. 18, pp. 179-181; J. H. Jans, ‘State

Liability and Infringements attributable to National Courts: A Dutch Perspective on the Köbler Case’ in J. W. de Zwaal (ed.), The

European Union, an Ongoing Process of Integration: Liber amicorum Alfred E. Kellermann (T.M.C. Asser Press 2004) pp. 165-176.

93 L’introduction du principe Köbler dans le droit français a mis en cause des principes fondamentaux du droit administratif

français concernant la spécificité des institutions juridictionnelles et les conditions restrictives de la responsabilité de l’État: cf.

les Concl. De Salins ss CE 18 juin 2008, Gestas, n° 295831, RFDA 2008, p.755, et la note D. Pouyaud, RFDA 2008, p. 1178.


procédures en manquement deviennent un mécanisme fréquent de contrôle des juridictions, elles

doivent plutôt être une sorte d’épée de Damoclès rappelant aux juridictions nationales statuant en

dernier ressort leurs obligations dans le système juridictionnel de l’Union.

Plutôt qu’une réaction à un cas unique de violation grave de l’article 267 §3 TFUE, cet arrêt est

l’illustration des difficultés qu’ont les juridictions nationales à assimiler leur rôle dans le système

juridictionnel de l’Union. Dans cette affaire, les choses auraient sans doute été plus simples si les

juridictions de première instance ou d’appel avaient usé de leur faculté de transmettre un renvoi

préjudiciel plutôt que d’en laisser le monopole au Conseil d’État, ce qui aurait permis à la Cour de

justice d’apporter les précisions nécessaires plus tôt. Rien ne justifie l’application incohérente du droit

de l’Union par les juridictions qui se sont prononcées avant le Conseil d’État94, qui avaient pourtant

identifié des questions d’interprétation nouvelles. L’absence de questions préjudicielles par les juges

du fond a considérablement retardé le premier arrêt de la Cour de justice. Par ailleurs, le Conseil d’État

et d’autres juridictions suprêmes devraient revoir leur interprétation des exceptions de l’acte clair et

de l’acte éclairé et faire preuve de davantage de retenue dans leur approche du droit de l’Union et de

la jurisprudence de la Cour. Même en l’absence de violations particulièrement sérieuses du droit de

l’Union, les choix opérés à tous les niveaux du système juridictionnel administratif français illustrent

les problèmes persistants que la Cour de justice pouvait légitimement chercher à résoudre.

Il est peut-être regrettable, cependant, que ce manquement vise une affaire où un premier

renvoi avait été opéré - un fait que la Cour, contrairement à son avocat général, ne relève pas. Les

membres du Conseil d’État ont sans doute considéré qu’ils avaient fait leur devoir en adressant une

première série de questions à la Cour. Le problème résulte ici du fait qu’ils se sont considérés

compétents pour interpréter par eux-mêmes la jurisprudence de la Cour afin de résoudre les

problèmes subsidiaires qui se sont posés suite au premier arrêt. L’avocat général Wathelet proposait

dans ses conclusions de considérer que l’obligation d’opérer un renvoi s’accroît dans ces cas car elle

relève de la mise en œuvre du premier arrêt de la Cour95. Le fait que la question nécessaire pour

trancher le litige en cause au principal n’ait pas été abordée lors de la première saisine de la Cour,

mais était nécessaire pour appliquer son arrêt, aurait renforcé l’obligation de renvoi. On pourrait

également défendre la position inverse, selon laquelle le fait qu’une juridiction nationale a déjà opéré

un renvoi serait facteur atténuant. Dans cette affaire, le Conseil d’État avait montré qu’il était disposé

94 F. Locatelli, précité n. 36, § 4-11.

95 Pts 92-93 des conclusions de l’avocat général Wathelet, précitées n. 15.


à tenir compte de la jurisprudence de la Cour et à appliquer les règles énoncées dans l’arrêt Accor. Le

juge national doit également tenir compte d’autres facteurs, tels que l’allongement de la durée du litige

en cause au principal par exemple.

Si la Cour de justice avait évoqué cet aspect de l’affaire, elle aurait pu prendre position sur la

proposition de son avocat général et donner davantage de détails sur les distinctions possibles entre

différents types de violations de l’article 267 §3 TFUE et leurs gravités. La Cour semble avoir rejeté

l’idée d’une distinction entre un refus pur et simple d’opérer un renvoi préjudiciel et une décision de

ne pas en opérer un second, mais cette décision est regrettable car des précisions semblent

nécessaires. Ainsi, comment une juridiction nationale doit-elle décider si elle peut faire l’économie d’un

second renvoi dans une affaire, si les problèmes qui restent à résoudre relèvent de la mise en œuvre

concrète de la norme dans le litige en cours ou justifient de nouvelles questions d’interprétation ? Il

faudra attendre d’autres arrêts de la Cour de justice pour obtenir ces éclaircissements.

***

L’arrêt rendu le 4 octobre 2018 renforce l’aspect vertical du dialogue des juges dans l’Union

européenne, une évolution bienvenue qui révèle le plein potentiel d’une jurisprudence entamée il y a

une quinzaine d’années. Commission c/ France n’est, certes, pas une révolution mais il marque une

étape importante dans la relation entre les juridictions nationales et la Cour de justice. Évolution

logique du contentieux de l’Union, cet arrêt ne doit pas être perçu comme une attaque visant le

Conseil d’État ou la compétence des juridictions nationales pour appliquer le droit de l’Union ; il ne

contredit pas non plus CILFIT. Le dialogue des juges et la coopération doivent demeurer au cœur du

système juridictionnel de l’Union mais il est légitime de souligner que ace dialogue ne peut signifier

une absence totale de hiérarchie juridictionnelle si l'ordre juridique doit être cohérent. L’attitude

persistante de juridictions telles que le Conseil d’État à l’égard du renvoi préjudiciel illustre nécessité

d’un renforcement des mécanismes de contrôle au sein de ce système juridictionnel. Les juridictions

nationales, en particulier dans les États membres « historiques », devraient savoir éviter ce type de

situations. La (més)application du droit de l’Union par les juridictions françaises dans ces affaires suffit

à démontrer la légitimité de cette épée de Damoclès pendant au-dessus des juges nationaux lorsqu’ils

se prononcent en dernier ressort. Seul l’avenir nous dira si ce nouvel arrêt aura davantage de pouvoir

dissuasif que les précédents et si la coopération juridictionnelle dans l’Union européenne peut trouver

un nouvel équilibre.


Chapter 9

Can’t See the Forest for the Trees? Penalties Under Article 279 TFEU

Luca Prete

1. Introducton

In his Opinion of 16 November 1957, in the very first case of interim measures brought before the

then Court of Justice of the European Coal and Steel Community, Advocate General Roemer referred

to the procedure for interim measures as ‘a summary, expedited procedure which … has as its

objective a temporary measure which does not prejudice the substance of the case’. For that reason,

the applicable rules required from the applicant ‘only a prima facie case both from the factual and legal

points of view and not full proof of the necessity of the suspension of application applied for’. The

Advocate General went on to emphasise that ‘the main action cannot be entered into already in the

present procedure and the questions of fact and of law raised by the main action cannot yet be

conclusively decided.’1

Despite the absence of detailed rules in the ECSC Treaty2, Advocate General Roemer managed

to condense, in a few statements, the key features of that special procedure. Nowadays, more than

60 years after that first case, the procedure for interim measures before the Court of Justice of the

European Union is governed by similar rules and principles. The wording of the relevant FEU Treaty

provisions is not significantly different from the mentioned ECSC rules. Also, the subsequent case-law

of the EU Courts has, by and large, adhered to the concepts expressed by Advocate General Roemer

as far back as in 1957.

Among the over 1,000 cases dealt with by the EU Courts in procedures for interim measures

to date, it would be hard to identify many ground-breaking decisions. Even EU litigation experts would

probably struggle to mention decisions which might be regarded, with respect to proceedings under

Référendaire at the Court of Justice of the European Union and Guest Professor at the Vrije Universiteit Brussel. The views

expressed herein are, however, personal. The author would like to thank T. Joris, P. Wenneras and A. Feldman for useful

discussions and comments. This article reflects the state of the law on 31 December 2019.

1 Opinion in Case 18/57, Nold v High Authority, EU:C:1957:10, pp. 126-127.

2 See Article 39 of the ECSC Treaty and D.G. Valentine, The Court of Justice of the European Coal and Steel Community (Martinus

Nijhoff 1954) 110-113 and 169-172.


Article 279 TFEU, as being of a constitutional significance comparable to that of, just to give a few

examples, Plaumann or IBM3 with regard to actions for annulment, the Fisheries Control or MOX Plant

cases4 with regard to infringement proceedings, and Foto-Frost or CILFIT5 with regard to procedures

for a preliminary ruling.

However, the order given by the Court on 20 November 2017 in the Białowieska Forest case6 is

unquestionably an exception to that. That decision has, in fact, been hailed in legal doctrine as being

‘a first in the history of EU law.’,7 ordering ‘unprecedented legal measures’ to assert and protect the

Court’s authority.8

2. The Facts and the Procedure

The Białowieska Forest is one of the last well-preserved primeval forests in Europe, covering more

than 3,000 km2 between Poland and Belarus. For its unicity, it is protected as national park in both

countries, and it has been designated a UNESCO World Heritage Site and a Natura2000 site. The forest

is characterised, inter alia, by large quantities of dead wood and old trees, which create habitats for a

variety of animal species in need of protection.

In the early 2010s, the European Commission became concerned with the intensification of

active management activities in the Białowieska Forest. In particular, the Polish government allowed

an increase in the logging of trees and in the removal of dead trees, which were then sold for profit by

a state-owned company. Following an exchange of views under the EU Pilot pre-infringement

mechanism, and an on-site visit of its officials, on 17 June 2016 the Commission sent the Polish

authorities a letter of formal notice, pointing to possible breaches of certain provisions of the Habitats

3 Cases 25/62, EU:C:1963:17, and 60/81, EU:C:1981:264, respectively.

4 Cases C-304/02, Commission v France, EU:C:2005:444, and C-459/03, Commission v Ireland, EU:C:2006:345, respectively.

5 Cases C-77/83, EU:C:1984:91, and C-314/85, EU:C:1987:452, respectively.

6 Case C-441/17R, Commission v Poland, EU:C:2017:877.

7 D. Sarmiento,’ Provisional (And Extraordinary) Measures in the Name of the Rule of Law’ (Verfassungsblog, 24 November 2017)

<https://verfassungsblog.de/provisional-and-extraordinary-measures-in-the-name-of-the-rule-of-law> accessed 14 October

2019.

8 P. Tacik, ‘Poland’s Defiance Against the CJEU in the Puszcza Białowieska Case’ in C. Rauchegger and A. Wallerman (eds), The

Eurosceptic Challenge (Hart 2019) 69. Cf. also T. Joris, S. van der Jeught, ‘Het Europees Hof van Justitie oordeelt voor het eerst dat

het in een kortgedingprocedure voorlopige maatregelen kan opleggen op straffe van een dwangsom’ (2018) SEW, Tijdschrift

voor Europees en Economisch Recht 467.


and Birds Directives.9 That letter was followed, on 28 April 2017, by the issuance of a reasoned opinion,

which called on the Polish authorities to comply with it within one month. In the absence of a positive

response from those authorities, on 20 July 2017 the Commission brought proceedings under Article

258 TFEU before the Court.

On the same day, the Commission also lodged an application for interim measures. Essentially,

the Commission asked the Court to order the Polish authorities to halt the active forest management

operations, pending the judgment in the main action, except where there was a threat to public safety.

The Commission also requested that those measures be granted inaudita altera parte, owing to the

risk of serious and irreparable damage for the integrity of the site. The Vice-President of the Court,

having found the requirements of urgency and fumus boni iuris met, provisionally granted the

requested measures by order dated 27 July 2017.

However, in the following weeks, the Commission took the view that the Polish authorities had

deliberately ignored that order, as the contested operations continued unaffected. The Polish

authorities claimed, on the one hand, that those operations were necessary to ensure public safety

(in particular, to combat the spreading of the spruce bark beetle which was damaging the forest) and

thus did not infringe the Court’s order. On the other hand, however, those authorities started to openly

contest the authority of the Court.10 Thus, in a dramatic audition that took place before the Vice-

President of the Court on 11 September 2017, the question arose as to whether any means exists to

enforce compliance with an order issued under Article 279 TFEU. In the light of that discussion, on 13

September 2017, the Commission supplemented its application for interim measures by requesting

that the Court also order Poland to pay a periodic penalty payment if it failed to comply with the orders

made in those proceedings. On 28 September 2017, Poland submitted its written observations,

alleging that the Commission’s additional request was inadmissible and, in any event, unfounded. It

also requested that the Vice-President be disqualified from the case, and that the case be attributed

to the Grand Chamber.

9 Respectively, Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora

(OJ 1992 L 206, p. 7) and Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the

conservation of wild birds (OJ 2010 L 20, p. 7).

10 For a detailed account, P. Tacik, op. cit., 72 ff.


The case was assigned to the Grand Chamber,11 before which, on 17 October 2017, the parties

presented oral observations. On 20 November 2017, the Court adopted the final order in the

proceedings.

3. The Order of the Court of 20 November 2017

In its 119-point long order, the Court first found that the requirement of fumus boni iuris was met:

taking account also of the precautionary principle, the Commission’s action in the main proceedings

could not be considered prima facie to be without reasonable substance.12 Concerning the urgency,

the Court noted that the operations at issue had a negative impact on the habitats of the forest, likely

to give rise to serious and irreparable damage.13 Finally, with regard to the weighing up of interests,

the Court held that, in the absence of detailed information on the harm that the spruce bark beetle

might cause in the short term, it was more urgent to prevent the damage to the site deriving from the

operations at issue.14

On that basis, the Court decided that the measures requested by the Commission in its

original application, and provisionally granted by the Vice-President, had to be maintained. However,

as far as the exception relating to ‘public safety’ was concerned, the Court made clear that only those

operations that were strictly necessary and proportionate in order to ensure, directly and immediately,

the public safety of persons, on condition that other less radical measures were objectively impossible,

could be undertaken. Furthermore, the Court emphasized that the public safety exception had to be

interpreted strictly, and that it was for Poland to prove that the relevant conditions were satisfied each

time it intended to make use of it, ‘in particular by taking photographs before and after carrying out

the active forest management operations at issue’.15

Next, Poland’s request for the lodging of a security by the Commission in an amount equal to

the cost of the damage that, in its view, might have arisen as a result of compliance with the measures

requested (ca. EUR 750 million) was dismissed. The Court observed that there were no grounds for

11 The request to disqualify the Vice-President was, however, rejected as unjustified by a decision of the President of the Court.

12 Paras 31-42.

13 Paras 43-61.

14 Paras 62-79.

15 Paras 81-84.


believing that the European Union would be unable to meet any award of damages which could be

made against it in the future.16

Finally, the Court dealt with the most delicate and complex issue: the Commission’s additional

application. The Court recalled that the purpose of the procedure for interim relief is to guarantee the

full effectiveness of the final decision in the main action, thereby avoiding a lacuna in system of judicial

remedies. To that end, Article 279 TFEU confers on the Court the power to prescribe any interim

measures that it deems necessary. Although it is for the applicant to request the measures considered

appropriate, the Court must satisfy itself that the measures that it intends to order are sufficiently

effective to achieve their aim. The Court enjoys broad discretion to specify the subject matter and the

scope of the measures requested. If deemed appropriate, the Court may also adopt, where necessary

ex officio, any ancillary measure intended to ensure that its order is complied with. Such a measure

may include the imposition of periodic penalty payments. That measure must not be regarded as a

punishment, but merely as a means to encourage the relevant Member State to comply with the order.

The Court further stressed that that measure is not irreversible, as it in no way prejudices the future

decision in the main action17.

In the case at hand, the Court found it unnecessary to establish whether, as the Commission had

argued, the first order had not been complied with. There was enough evidence in the case-file for

doubting that Poland had complied, or that it intended to comply with the new order. Thus, if the new

order were to do no more than confirm the first order, there would be a risk that its effectiveness

would be limited. Against that background, the Court considered it necessary to ‘enhance the

effectiveness’ of the interim measures ordered by providing for a periodic penalty payment to be

imposed if Poland failed to comply with them immediately and fully. Poland was thus requested to

send to the Commission, within 15 days, details of all measures adopted in order to comply, detailing

and explaining the active forest management operations that it intended to continue because

necessary to ensure public safety. If the Commission was of the view that Poland had failed to comply

with the order, it could request that proceedings be resumed. In that case, it would have been for the

Commission to prove that Poland had not suspended the operations, and for Poland to establish that

their continuation was necessary to ensure public safety. The Court would then give a decision by way

of a new order. If the Court had found an infringement, it would order Poland to pay to the Commission

16 Paras 85-88.

17 Paras 89-108.


‘a periodic penalty payment of at least EUR 100,000 per day’, from the date of notification of the new

order until compliance was achieved, or until the judgment in the main proceedings was delivered.

Accordingly, the Court reserved its final decision on the Commission’s additional application.18

4. Can’t See the Forest for the Trees?

The Court’s order of 20 November 2017 is essentially based on two main arguments. The first

argument is the wording of Article 279 TFEU which refers to ‘any necessary interim measures’. The

Treaty places no limit on the type of interim measures that may be granted and, accordingly, the Court

enjoys broad discretion to order those that it sees fit. The second argument is that of effectiveness:

since the purpose of the procedure under Article 279 TFEU is to ensure the effectiveness of the

decision to be taken in the main proceedings, the Court must have the powers required to guarantee

that. A different reading of the provision would have, according to the Court, created a gap in the

system of judicial remedies laid down in the EU Treaties.

For many observers, the instinctive reaction to the Court’s order may have been,

metaphorically, to wonder whether the Court, by focusing on some trees (wording and effectiveness),

had failed to see the whole forest (the global picture resulting also from a number of other relevant

elements). In other words, regardless of the significance and persuasiveness of the arguments

referred to in the order, doubts could arise as to whether the Court had not overlooked several issues

that might have suggested a more restrictive interpretation of the provision in question.

In the first place, it must be borne in mind that, according to settled case-law, ‘although the

conditions for the Court’s jurisdiction must be interpreted in the light of the principle of effective

judicial protection, such an interpretation cannot have the effect of setting aside the conditions in

question, expressly laid down in the Treaties, without going beyond the jurisdiction conferred by the

Treaties on the EU Courts. While it is, admittedly, possible to envisage a system of judicial review

different from that established by the founding Treaties, it is for the Member States, if necessary, in

accordance with Article 48 TEU, to reform the system currently in force’.19

Seen from that perspective, the penalties provided for in Article 260(2) and (3) TFEU – which

were notably introduced only with amendments made by the Treaties of Maastricht and Lisbon –

18 Paras 109-119.

19 See especially Case C-50/00P, Unión de Pequeños Agricultores, EU:C:2002:462, paras 44-45.


appear to constitute leges speciales. It is thus unsurprising that, to date, the lack of means of

enforcement for interim measures was generally considered to be a lacuna in the EU Treaties.20

In the second place, the power of the Court to impose penalties under Article 279 TFEU might

sit uneasily with the purpose of the procedure for interim measures. The aim of the penalties seems

more one of enforcement: to ensure compliance with a decision of the Court. The objective of

maintaining the existing situation or restore the status quo ante,21 pending a decision in the main

action, is pursued rather indirectly. Interestingly, in the early 1980s the Commission lodged an

application for interim measures in the context of two infringement actions brought against France

during the so-called ‘sheepmeat war’. The purpose of that application was, ostensibly, to enforce

previous judgments of the Court which had remained dead letter.22 However, the Court dismissed the

application, finding no grounds to order the interim measures requested. The Court emphasised that

those measures consisted, in substance, in requiring France to comply with previous judgments of the

Court. The Court took the view that such kind of measures fell outside the scope of the Treaty provision

on interim measures. 23

In the third place, various lines of authority from the EU Courts with regard to the nature, type

and function of interim measures seem difficult to reconcile with the all-embracing approach taken in

the order at issue. The EU Courts have stated that the interim measures sought may not ‘exceed the

jurisdiction of the Court in interlocutory matters’,24 and ‘must not fall outside the scope of the final

decision which the Court may reach on the main application’.25 In addition, according to Article 162(4)

of the Rules of procedure of the Court and Article 158(4) of the Rules of procedure of the General

Court, those measures may have ‘only an interim effect’. The provisional nature of interim measures

has been considered to mean that those measures must not give rise to an irreversible situation and

should remain within the scope of the main action.26 Finally, the EU Courts have also held that an

20 See inter alia C.W.A. Timmermans, ‘La sanction des infractions au droit communautaire – Rapport communautaire’, FIDE

Report 1992, 26; and L. Prete, Infringement Proceedings in EU Law (Kluwer 2017) 396-397.

21 See Case 352/88R, Commission v Italy, EU:C:1989:55, para. 23.

22 On those procedures, see extensively T.C. Hartley, ‘Interim Measures Against France in the “Lamb War”’ (1980) European Law

Review 363.

23 Joined cases 24 and 97/80R, Commission v France, EU:C:1980:107.

24 See e.g. Case C-191/88R, Co-Frutta, EU:C:1988:418, para. 24

25 See, among others, Case T-18/01R-I, Goldstein, EU:T:2001:110, para. 14 and the case-law cited.

26 Opinion of AG Capotorti in Joined Cases C-24 and 97/80R, Commission v France, EU:C:1980:95, pp. 1338-1339.


application under Article 279 TFEU is admissible ‘where there is a sufficiently close link between the

interim measure sought and the subject-matter of the main action.27

Against that background, certain doubts may arise: may the imposition of penalty payments

be considered to remain within the scope of the main action? Is there a sufficiently close link between

the penalties and the subject-matter of the main action? Would the monies paid by a Member State

in default that subsequently succeeds in the main action nonetheless remain in the EU budget and, if

so, does that not give rise to an irreversible situation?

In this context, it may be worth adding that, although money payments as interim measures

have never been outright excluded by the EU Courts, such measures are normally not granted.28 More

generally, the Court’s practice of ordering measures which go beyond the mere suspension of the act

the validity or compatibility of which is disputed by the parties is ‘relatively meagre’.29 The Court has

traditionally shown a certain reluctance to order far-reaching measures imposing obligations of facere

on the defendant. 30

In the fourth place, admitting the possibility of imposing penalty payments under Article 279 TFEU

leads to the somewhat paradoxical situation that non-compliance with a judgment of the Court may

give rise to a penalty only after another set of (rather cumbersome and lengthy) proceedings, whereas

non-compliance with an order may be tackled in the context of the same (speedy) procedure in which

that order was issued. The fact that penalisation of non-compliance with provisional decisions is more

effective and rapid than penalisation of non-compliance with final decisions may seem

counterintuitive.

27 See Case T-78/04R, Sumitomo, EU:T:2004:204, para. 43.

28 See, in particular, Cases 33/80R, Albini and Others, EU:C:1980:138; C-393/96P(R), Antonissen, EU:C:1997:42; T-195/05R, Deloitte,

EU:T:2005:330; T-192/01R, Lior, EU:T:2001:282; and F-98/07R, Petrilli, EU:F:2007:203. On this issue, see W.T. Douma,

Natuurbescherming in kort geding voor het Europese Hof: een oplossing voor de instandhouding van het Poolse Bialowieza oerbos, JM

2017/96.

29 Cf. G. Bebr, Development of Judicial Control of the European Communities (Martinus Nijhoff 1981) 147.

30 See, to that effect, Case 25/62R, Plaumann, EU:C:1962:32, p. 124; Case 50/69R, Germany v Commission, EU:C:1969:42, pp. 450-

451, Case 88/76R, Exportation des Sucres, EU:C:1976:140, p. 1587; and Case C-352/88R, Commission v Italy, EU:C:1989:55, para.

23.


5. Or Has the Court also Seen the Forest?

It should be admitted that while a cursory reading of the order raises eyebrows, a thoughtful reflection

on the subject should dispel doubts about the soundness of the decision.

Preliminarily, it must be stressed that the decision at issue is an order issued in the context of

summary proceedings in which, evidently, time is of essence. The Court may not be expected, in those

circumstances, to answer in detail each and every argument put forward by the parties, let alone

explain why its findings are not called into question by provisions, principles or case-law which the

parties have not even invoked. A fortiori, it would be unrealistic to think that the Court could, in an

order adopted under Article 279 TFEU, engage in extensive discussions of a theoretical nature that

may not be truly relevant in the case at hand.

When the order at issue is examined in a broader context, several elements that justify the

Court’s approach emerge.

To begin with, the Court had already made clear that ‘the provisions on judicial protection in

the field of interim measures cannot be interpreted narrowly, as otherwise there would be the risk of

a lacuna in the Treaties’.31 Thus, although the Court cannot interpret the Treaty provisions in a manner

that extends its jurisdiction beyond the limits set out therein it does not mean that those provisions

should be given a narrow interpretation, particularly where that might lead to deprive them of

effectiveness. That seem to be especially the case for the procedure provided for in Article 279 TFEU,

in consideration of the specific function of the provision in the system of judicial remedies set out in

the Treaties and its broad formulation. Arguably, any measure … must mean any measure.

Moreover, it is undisputed that Article 279 TFEU applies also in the context of proceedings

brought under Article 258 TFEU: the first cases go back to the mid-1970s.32 More recently there have

also been a number of requests for interim measures in the context of infringement procedures

launched by the Commission, albeit not many.33

It is also generally accepted that, at this interlocutory stage, the Court may issue an order

requiring a Member State to do something, whereas that is not possible in the main action, since a

31 See e.g. Case C-399/95R, Germany v Commission, EU:C:1996:193, para. 46 and the case-law cited.

32 See, e.g. Cases 61/77R and 61/77R-II, Commission v Ireland, EU:C:1977:122 and EU:C:1977:126; Joined Cases 31/77R,

Commission v United Kingdom, and 53/77R, United Kingdom v Commission, EU:C:1977:86.

33 See Cases C-619/18R, Commission v Poland, EU:C:2018:1021; C-76/08R, Commission v Malta, EU:C:2008:252; and C-503/06R,

Commission v Italy, EU:C:2007:120.


judgment given under Article 258 TFEU is merely declaratory.34 Incidentally, that is by no means a

peculiarity of interim measures adopted in the context of infringement proceedings: that is also true

with respect of other forms of action before the EU Courts.35 In the light of the very wording of the

provision, it is clear that the range of possible measures under Article 279 TFEU is not predetermined.

As Advocate General Reischl pointed out in the Sea Fisheries case, that provision ‘is expressed in very

general terms and lays down no exceptions for certain types of procedures or measures’.36 More

recently, Lasok wrote: ‘there is in principle no limit (other than practicalities) to the type of measure

that the Court may order’.37 It is, in any event, undisputed that, on the basis of Article 279 TFEU, the

judge hearing the application for interim relief may issue, on a provisional basis, injunctions or

‘appropriate directions’ to the parties.38

With regard, then, to the effects of the measures that may be ordered, the Court has pointed

out that recourse to measures which give rise to irreversible effects are not excluded as matter of

principle. The Court has accepted that such measures may be granted ‘where the prima facie case

appears particularly strong and the urgency of the measures sought undeniable’.39 Those

requirements were obviously met in the Białowieska Forest case. Furthermore, as pointed out in

paragraphs 106-107 of the order, the imposition of penalty payments would have by no means

prejudiced the substance of the case in the main action, meaning the future final decision of the Court.

Finally, it is true that the EU Courts typically refuse to grant interim measures where alternative

avenues to avert the damage exist under EU and/or national law,40 and even more so when those

measures go beyond the mere suspension of the contested act.41 In the case at hand, however, there

was most probably no alternative avenue to protect the integrity of the natural site.42 In any event, it

34 See e.g. K. Lenaerts, I. Maselis, K. Gutman, EU Procedural Law (Oxford University Press 2014) 571.

35 See Cases T-44/98R-II, Emesa Sugar, EU:T:2000:100; and T-198/12R, Germany v Commission, EU:T:2013:245, especially para.

33.

36 Opinion in Case C-61/77R, Commission v Ireland, EU:C:1977:122, pp. 953-954.

37 K.P.E Lasok, Lasok’s European Court Practice and Procedure (3rd ed., Bloomsbury 2016) 640.

38 See, to that effect, Cases 118/83R, Muratori, EU:C:1983:225, para. 53; C-76/08R, Commission v Malta, EU:C:2008:252, para. 19;

and T-203/95R, Connelly, EU:T:1995:208, paras. 24-25

39 Case C-393/96P(R), Antonissen, EU:C:1997:42, para. 41.

40 See e.g. Cases C-310/85R, Deufil, EU:C:1986:58, para. 22; and T-417/05R, Endesa, EU:T:2006:41, para. 50.

41 See supra, footnotes 25, 29 and 30.

42 Not to mention alternative measures to protect the authority of the Court.


does not seem that the Polish Government had made any proposal in that regard. It is also worth

recalling, in this context, that damage to the environment is generally considered irreparable.43

6. Conclusions: A Welcome Development but Some Open Issues Remain

In the light of the above, there is little doubt that adjectives such as ‘revolutionary’ or ‘ground-breaking’

are not mere hyperbole when used to define the order at issue. It is equally evident that that decision

opens new scenarios for the enforcement of EU law against recalcitrant Member States. In particularly

serious and urgent cases, the Commission now has at its disposal a very effective tool that may force

Member States to comply without delay with any measure provisionally issued by the Court pursuant

to Article 279 TFEU. Thus, regardless of its controversial nature, the Court’s decision should be

welcomed for filling a gap in the Treaties. All the more so since, as this article has attempted to explain,

there are several elements which corroborate the Court’s findings, in addition to those referred to in

the body of the order. Indeed, the conclusion reached by the Court is not only supported by a textual

and teleological interpretation of Article 279 TFEU, but also by some considerations of a more systemic

nature.

The order at issue – which clearly affirmed the Court’s power to adopt the additional measures

requested by the Commission but refrained from applying them immediately – should also be praised

for its balanced approach44. In essence, the order warned the Polish authorities of the possible

consequences of their persistent failure to comply with their EU law obligations without, however,

imposing far-reaching measures the operational aspects of which could have given rise to further

judicial dispute, and the legitimacy of which could have fuelled an already tense political dialogue

between the authorities in Warsaw and Brussels. It must not be overlooked that this case is set against

the ongoing political45 and judicial46 confrontation between those authorities on the so-called ‘rule of

law backsliding’47 in Poland, in particular after the reforms of the national judiciary brought forward by

43 Case C-320/03R, Commission v Austria, EU:C:2004:231, para. 92.

44 Similarly, Sarmiento, op. cit., and G. D’Agnone, ‘Interim Relief in Commission v. Poland: the End Justifies the Means?’, dUE -

Osservatorio Europeo, December 2017, 15-16.

45 The Commission has issued several ‘Rule of Law Recommendations’ vis-à-vis the Polish authorities and, on 20 December

2017, activated the procedure under Article 7(1) TEU considering that there is a clear risk of a serious breach of the common

values referred to in Article 2 TEU.

46 See, especially, Case C-619/18, Commission v Poland, EU:C:2019:531, and the pending cases C-522/18, Zakład Ubezpieczeń

Społecznych; C-585/18, Krajowa Rada Sądownictwa; and C-824/18, AB and Others.

47 See e.g. K.L. Scheppele, L. Pech, ‘What is Rule of Law Backsliding?’ (Verfassungsblog, 2 March 2018)

<https://verfassungsblog.de/what-is-rule-of-law-backsliding> accessed 14 October 2019.


the current government. The Court’s strategy was clearly successful: the Polish authorities very quickly

announced their intention to comply with the ‘main’ interim measures ordered by the Court. At any

rate, the problem of possible non-compliance with those measures soon disappeared as, after an

accelerated procedure, on 17 April 2018, the Court delivered its judgment in the main action,

upholding the Commission’s claims in full.48 Therefore, any potential issue in the future will, if need be,

be handled under the traditional procedure of manquement sur manquement provided for in Article

260(2) TFEU.

That said, it must be recognised that the order at issue leaves a number of issues open.

To begin with, how will the procedure look like, when a Member State does not comply with

an order from the Court and the penalty payments fall to be applied? Paragraph 116 of the order does

give certain information on this point. In the case at hand, it was for the Commission to request that

proceedings be resumed and prove that Poland had not suspended the active forest management

operations. It was, on the other hand, for Poland to prove that any ongoing operation was justified

because necessary to ensure public safety. The Court was then to give a decision by way of a new

order. However, one cannot fail to note that, in the resumed procedure, the Court would have had to

carry out a substantive and final assessment of whether Poland had failed to comply with its first order.

Such an assessment is typical of a main action brought under Article 260(2) TFEU. It is, conversely, a

novelty in the context of a summary procedure where any determination by the Court is meant to be

provisional and the analysis is limited to the establishment of a prima facie case.

The Court’s accounting principles are also unclear: that is, how it arrived at the amount of the

daily penalty payment of ‘at least’ EUR 100,000. More importantly, had Poland not complied, what

criteria could have the Court made use of to fix the specific amount of the penalty to be ordered? 49

Interestingly (and regrettably), there was nothing on this point in the Commission’s additional

application.50 Furthermore, it is not a given that the principles laid down in the Commission’s

communications regarding Article 260(2) and (3) TFEU could, mutatis mutandis, be applied in this rather

different context. Indeed, the logic followed by those communications, and the criteria and parameters

48 Case C-441/17, Commission v Poland, EU:C:2018:255.

49 Cf. A. Łazowski, ‘Editorial - Winter Is Coming. The Polish Woodworm Games’ (2017) European Papers 801.

50 It was for that reason that the Polish Government argued that the Commission’s additional application breached its rights of

defence. The argument was not, prima facie, lacking any foundation: had the Court immediately ordered penalty payments of a

specific amount, one could have questioned whether the Polish authorities had been able to adequately present their views on

that matter.


used therein may, or may not, be easily transposable to a procedure under Article 279 TFEU.51 For

that reason, the Commission should probably consider to issue a new communication, or at least

amend the existing communications, in order to enhance transparency and predictability on this

matter.

From a more practical angle, what if penalty payments were finally imposed, but the

Commission’s main action was subsequently dismissed: were the monies paid by Poland to be paid

back (arguably, plus interest)? Logically, the answer should be negative: those monies were meant to

induce compliance with an order that was, as a matter of fact, not complied with. Accordingly, their

fate should not depend on the result of the main action. However, may that consequence be

reconciled with paragraph 102 of the order, in which the Court declared that penalty payments should

not ‘be seen as a punishment’?

Furthermore, the procedural stage(s) in which penalty payments may be ordered under Article

279 TFEU are yet to be clarified. First, can penalties be requested in the first application that starts the

procedure under Article 279 TFEU? A tentative answer should be positive, provided that the applicant

can prove that there are genuine doubts on the willingness of the defendant Member State to comply

with the measures requested to the Court. Second, are penalties under Article 279 TFEU available also

when the main action is brought pursuant to Article 260(2) TFEU? Again, there seem to be no grounds

to believe that they should not be available, but the articulation between the two sets of penalties

does not appear to be straightforward. 52 Third, when penalties are requested only after a first order

was issued (and presumably not complied with) – as it was the case in the Białowieża Forest case – may

the Court also impose a lump sum for the past infringement?53 If penalties under Article 279 TFEU are

not a ‘punishment’, the answer should logically be in the negative: the lump sum appears to ‘constitute

a penalty within the strict meaning of the term’.54 However, applying by analogy the reasoning followed

51 The Court’s acceptance of penalty payments under Article 279 TFEU raises the question of whether that measure is analogous

to that provided for in Article 260(2) and (3) TFEU. In the order at issue, the Court has expressly refused to qualify penalty

payments as a ‘punishment’: they aim at inducing Member States to comply with the main interim measures (paragraphs 99,

100 and 102 of the order). That is similar to what the Court has consistently stated with regard to penalty payments under

Article 260(2) TFEU (see e.g. Case C-387/97, Commission v Greece, EU:C:2000:356, para. 41).

52 On this issue, see P. Wenneras, ‘Saving a forest and the rule of law: Commission v Poland’ (2019) Common Market Law Review

551-553.

53 For a different approach on this issue, see R. Grzeszczak, I.P. Karolewski, ‘Bialowieza Forest, the Spruce Bark Beetle and the

EU Law Controversy in Poland’ (Verfassungsblog, 27 November 2017) <https://verfassungsblog.de/bialowieza-forest-the-spruce-

bark-beetle-and-the-eu-law-controversy-in-poland> accessed 14 October 2019.

54 Opinion of AG Jääskinen in Case C-241/11, Commission v Czech Republic, EU:C:2013:181, point 32. Cf. also Opinion of AG

Trstenjak in Case C-503/04, Commission v Germany, EU:C:2007:190, point 89; and Opinion of AG Mazak in Case C-121/07,

Commission v France, EU:C:2008:320, point 76.


by the Court in the context of proceedings under Article 260(2) TFEU, a positive answer cannot be

excluded altogether. One could argue that, although a lump sum does not prevent any infringement

in that procedure, it may contribute to prevent similar infringements in the future.55 In other words, it

would discourage Member States from failing to comply with similar orders given by the Court in other

procedures. It is, however, true that such a line of reasoning is certainly consistent with the logic of a

procedure under Article 260(2) TFEU, but it might not be in line with the rationale underlying the

procedure under Article 279 TFEU.56

Finally, we can only speculate as to whether penalties under Article 279 TFEU will be granted

only in circumstances as exceptional as those of the Białowieża Forest case.57 Few would disagree that,

quite apart from the particularly serious threat of environmental damage, the explicit refusal by Poland

to abide by a previous order of the Court called for some drastic measure, in line with the Latin adage

extremis malis extrema remedia. Yet, now that the principle is acquired, could penalty payments be

ordered also in more mundane situations? That is probably the most important question that, among

those identified, remains unanswered. Only future practice will tell.

In conclusion, it would seem that, in the Białowieża Forest case, the Court cannot be accused

of myopia: metaphorically speaking, it has seen both the trees and the forest. True, certain

interpretative issues remain unanswered but, given the novelty of the principles introduced with its

order of 20 November 2017, it was probably wise and prudent to leave those issues to be dealt with

in future cases.

55 See, to that effect, Case C-328/16, Commission v Greece, EU:C:2018:98, para. 118 and the case-law cited.

56 Whereas sanctions under Article 260(2) are also aimed at preventing similar infringements of EU law from recurring (see e.g.

Case C-70/06, Commission v Portugal, EU:C:2008:3, para. 35), the same might not hold true with regard to penalties under Article

279 TFEU.

57 Cf. P. Wenneras, op. cit., 548-550 and 557.

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