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NUMERO 3 - 06/02/2019

 The draft amendments to CJEU's Statute and the future challenges of administrative adjudication in the EU

The emergence of quasi-judicial authorities embedded within EU agencies is attracting a growing attention in the legal debate. The discussion is usually developed either on a sector-based approach (i.e. analysing in depth role, composition, powers, procedures of each Board of Appeal), or a comparative one (i.e. highlighting differences and similarities among them and identifying, also looking to national experiences, their legal roots). Moreover, because of the intense reforms that the EU judicial system has been facing over the last years, the studies on EU agencies’ Boards of Appeal have recently been linked also with the ones on the future of the EU judicial architecture, bringing in the general discussion on the latter the experiences related to the former. Building on the results collected with the ‘classic’ approach and bringing a step forward the recent trend of analysing Boards of Appeal in the broader context of the evolving EU judicial system, the present article is devoted to the discussion of the draft amendments to the Protocol n. 3 on the Statute of the Court of Justice of the European Union (hereinafter, CJEU). Even though this proposal is still under negotiations, a general assessment can already be made (or, perhaps, it should be made, exactly because of the possibility to further elaborate the draft amendments). Looking in particular to what is more relevant for the purposes of this study, it should be noted that the proposed reform aims at introducing a filter mechanism according to which an appeal brought before the General Court against a decision taken by a Board of Appeal can subsequently be challenged before the Court of Justice only if it raises an issue that is significant with respect to the unity, consistency or development of EU law. This proposal can be favourably acknowledged in principle, opening very interesting scenarios for the evolution of the Boards of Appeal and potentially enhancing the efficiency of the EU system of judicial protection. However, making Boards of Appeal bodies whose decisions are potentially able to elude the scrutiny by the Court of Justice seems to be a turning point in the experience of EU administrative adjudication that should be carefully evaluated. With the proposed reform, Boards of Appeal might well evolve from a detached form of administrative review into a first instance judicial model of scrutiny, much more integrated into the EU system of judicial protection than the actual paradigm. Their decision will be brought to the attention of the Court of Justice only on the basis of the will of one of the parties, since no mechanism of ‘public enforcement’ such as the art. 256(2) TFEU review procedure is envisaged. Moreover, looking to the judicial statistics, it stands out quite clearly that currently there is no need (in terms of workload at the Court of Justice) of a filter mechanism in fields other than trademarks and designs. This notwithstanding, the reform proposal is drafted in general terms, thus giving the impression that the EU legislator is laying the legal and political basis for an evolution of the Boards of Appeal. Finally, the fact that the original wording of the draft amendments defines Boards of Appeal as ‘independent administrative bodies’ sounds as a further confirmation that the reform currently under negotiations might well be able to revolutionise the role and the very nature of the Boards of Appeal. As it is well known, Boards are far from being independent judges, because according to an established case-law ‘there is continuity in terms of their functions’ between the Boards and the agency within which they have been established. Therefore, this study aims at highlighting the importance of the proposed reform for the EU system of administrative review, which is something that is rarely discussed by those who look at the broader picture of the evolution of the EU system of judicial protection. In particular, it assesses the possible impact of the proposed reform both for the Boards of Appeal (in terms of amendments in the procedures that will have to be followed, composition, independence, jurisdiction) and for the EU judicial system in general (in terms of workload reduction for the Court of Justice, possible specialization at the General Court, judgments’ quality)… (segue)

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