Statistics concerning the judicial activity of the Court of Justice - 2022

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A brief overview of the main statistical trends over the past year

By Marc-André Gaudissart Deputy Registrar of the Court of Justice

This contribution, which was previously included in the body of the Annual Report of the Court of Justice of the European Union – Judicial Activity, is intended, as it is every year, to provide a brief overview of the main trends that emerge from a reading of the judicial statistics for the past year. This article looks at the subject matter, origin and nature of the cases brought before the Court in 2022 and provides some guidance on the data relating to the cases closed by the Court.

Although the past year ended on a somewhat positive note in that respect, with the number of cases closed exceeding the number of cases brought, with a slight decrease compared with the previous year, it was also marked by an increase in the average time taken to deal with preliminary ruling cases, which raise increasingly complex and sometimes very sensitive issues. It is in that context that a legislative request was made by the Court on 30 November 2022 to extend the material scope of the mechanism to determine whether an appeal should be allowed and to effect a partial transfer of the preliminary ruling jurisdiction of the Court of Justice to the General Court in order to enable the latter to rule on questions referred by the national courts under Article 267 TFEU in specific matters determined by the Statute.

Cases brought

As already mentioned, the number of cases brought before the Court of Justice in 2022 (806 cases) was slightly down on the previous year, when 838 new cases were registered by the Registry. That decrease concerns both requests for a preliminary rulings and appeals brought against decisions of the General Court, but it is limited in scope and, above all, does not fundamentally affect the breakdown of litigation by type of case, since references for preliminary rulings and appeals alone still account for more than 90% of all cases brought before the Court of Justice (with, respectively, 546 new requests for a preliminary ruling and 209 appeals, all categories taken together, that percentage even amounted to 93% in 2022).

In the light of those figures, the share taken by direct actions in the cases brought in 2022 (4.60%) appears relatively small, even though the number of such actions (37) increased slightly last year compared with the previous year, when they had reached an all-time low (with only 29 new cases). Among the actions for failure to fulfil obligations brought in 2022, particular mention should be made of the first action brought against a third State – the United Kingdom – on the basis of Article 87(1) of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. [1][2]

Whether by way of a preliminary ruling, direct action or appeal, the cases brought before the Court in 2022 once again covered an extremely wide range of matters. With just under 100 cases (95), the area of freedom, security and justice continued to occupy a prominent place in the Court’s activity, along with litigation relating to taxation, consumer protection and protection of personal data, with several requests for a preliminary ruling made to the Court in the latter area aimed at further clarifying the contours of the Court’s case-law on the interpretation of the General Data Protection Regulation. [3] The number of cases in the field of intellectual property, which was previously quite high, has decreased quite sharply over the past year, from 83 new cases in 2021 to only 49 cases in 2022, whereas in other, more traditional fields, there was an increase in the number of new cases. That occurred, in particular, for cases relating to the four fundamental freedoms, but also for cases brought in the areas of agriculture, competition and public procurement, as well as in the field of civil service.

As regards the geographical origin of the requests for a preliminary ruling submitted to the Court over the past year, the number of cases was relatively stable compared with the previous year. As in 2021, Germany, Italy and Bulgaria continued to lead the 'geographical' ranking of references (with, respectively, 98, 63 and 43 requests for a preliminary ruling submitted to the Court in 2022), but Bulgaria was closely followed by Spain and Poland, whose courts referred 41 and 39 cases to the Court in the same year. With 34 cases, the number of requests for a preliminary ruling submitted by the Austrian courts remained fairly close to the level of the previous year (37 requests in 2021), while with 28, 29 and 30 requests respectively, the Netherlands, Romanian and Belgian courts remain regular correspondents with the Court. There has also been a significant increase in the number of references made by the Portuguese courts, which submitted questions in 28 cases to the Court in 2022 (compared with 20 references in 2021).

Finally, in the area of urgent litigation, there was a significant decrease in the number of applications for the expedited procedure or for the urgent procedure. While that number peaked in 2021 (with as many as 90 applications), it fell to 54 applications over the past year. No request for the application of the expedited procedure resulted in the actual initiation of that procedure in 2022, whereas the urgent preliminary ruling procedure was initiated on seven occasions in cases concerning both the interpretation of the rules on the grant or withdrawal of international protection and in cases relating to judicial cooperation in civil or criminal matters, concerning, inter alia, the right to interpretation and translation in criminal proceedings and the implementation of the principle ‘ne bis in idem’ enshrined in Article 54 of the Convention implementing the Schengen Agreement.

Closed cases

While the number of cases brought in 2022 decreased slightly, the number of cases closed by the Court over the past year showed an opposite trend: from 772 cases in 2021, the number of cases closed by the Court increased to 808 cases in 2022. That was certainly an excellent result since, with the exception of 2019 – during which the Court settled no less than 865 cases – the threshold of 800 cases closed in one year had never been crossed.

Since they represent the bulk of the cases brought before the Court, references for a preliminary ruling and appeals unsurprisingly constitute the majority of the cases closed by the Court, with the latter ruling on no fewer than 564 requests for a preliminary ruling and 196 appeals in 2022. Nevertheless, over the past year, the Court was also called upon to rule on a number of important actions for failure to fulfil obligations or actions for annulment, including the actions brought by, respectively, Hungary and the Republic of Poland against Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget. [4] At its plenary session, the Court rejected the pleas relied on by those two States against the abovementioned regulation and thus validated the link, established by that regulation, between respect for the rule of law and the proper implementation of the budget of the European Union, in accordance with the principles of sound financial management. [5]

In a different vein, the Court’s decision on the request for an Opinion submitted by the Kingdom of Belgium concerning the compatibility of the draft modernised Energy Charter Treaty with the Treaties, and in particular Articles 19 TEU and 344 TFEU, is also noteworthy. In its Opinion, delivered on 16 June 2022, the Court (Fourth Chamber) declared that request inadmissible on the ground that it was premature, as the Court did not have sufficient information on the content of the envisaged agreement – and, in particular, on the scope of Article 26 of that agreement concerning the settlement of disputes between an investor and a contracting party – to rule on its compatibility with the Treaties. [6]

Although the total number of judgments, Opinions and orders adopted by the Court over the past year (732) was slightly higher than in the previous year (708), what will however attract the reader’s attention is the even more significant share taken up by orders of a judicial nature, particularly in relation to appeals. While that share amounted to 37% of the appeals closed in 2020 and 47% in 2021, it rose to almost 57% in 2022, which is much higher than the percentage of appeals disposed of by way of judgment. Several factors explain that increase: it is, on the one hand, due to the sustained activity of the Chamber determining whether an appeal should be allowed, which once again ruled on a large number of appeals brought against decisions of the General Court relating to decisions of the Boards of Appeal of the European Union Intellectual Property Office [7] and, on the other hand, due to increased use of the possibilities offered by Articles 181 and 182 of the Rules of Procedure. While the latter article had been applied only once, in 2019, no fewer than six cases were closed on the basis of Article 182 in 2022. [8]

Whether for preliminary ruling cases or appeals, the increased use of orders partly explains another striking feature of the past year, namely the high number of cases closed by the three-judge Chambers. In 2022, those cases accounted for more than 50% of all cases closed by the Court (compared with 36% for cases closed by the five-judge Chambers). By way of comparison, in the preceding year, those figures were 45% of the total for the three-judge Chambers and 40% for the five-judge Chambers.

A similar trend can be observed with regard to cases disposed of by the Vice-President of the Court. As a large number of appeals were brought in 2022 against decisions of the General Court rejecting an application for leave to intervene or against decisions taken by the General Court under Articles 278 or 279 TFEU, the Vice-President, who is responsible for dealing with those type of appeals, had to give a large number of decisions in 2022. The number of his orders was thus twice as high as in the preceding year.

By contrast, the number of cases closed by the Grand Chamber remained very stable over the past year. With 77 cases closed by that formation in 2022, the Court remained within the average of the preceding four years, with the number of cases closed by the Grand Chamber, by way of judgment or by order, ranging between 70 and 83 cases.

The reduction in the average time taken to deal with cases is another logical consequence of the increased use of orders, since it enables the Court to rule, without an oral part or even a written part of the procedure, on the cases brought before it. In 2022, the average time taken to deal with cases, all types of cases combined, was thus 16.4 months, thereby a slight decrease compared with the previous year (16.6 months in 2021).

A more detailed analysis of the statistical data reveals, however, a more mixed picture, since, although the average time taken to deal with appeals has fallen sharply, from 15.1 months in 2021 to 11.9 months in 2022, it has continued to increase in direct actions and, above all, in preliminary rulings. While the average time taken to process requests for a preliminary ruling was 15 months in 2016 and 15.5 months in 2019, it has gradually increased to 15.9 months in 2020, 16.7 months in 2021 and 17.3 months in 2022. That increase is due to the growing complexity of the cases brought before the Court, which require an increasingly detailed examination of the questions put forward by the referring courts, but it is a cause for concern for the Court because the length of time it takes to deal with cases adds to the length of the national proceedings. Any increase in the length of time taken by the Court to deal with cases therefore has an immediate impact on the overall length of proceedings before the referring court and on the latter's ability to decide the case before it. That is one of the factors behind the legislative request mentioned in the following lines.

Pending cases

As at 31 December 2022, there were 1 111 cases pending before the Court, which, by two units, is the same number of cases as at 31 December of the previous year (1 113 cases). The bulk of those cases consisted of requests for a preliminary ruling (774 cases) and appeals (259 cases).

In order to be able to continue to deal with those types of cases in a satisfactory and timely manner, the Court, on 30 November 2022, therefore made a request to the EU legislature to amend Protocol (No 3) on the Statute of the Court of Justice of the European Union. That request has a dual purpose.

It aims, first, to extend the scope of the mechanism to determine whether an appeal should be allowed, referred to in Article 58a of the Statute, to appeals brought against decisions of the General Court relating to decisions of the independent Boards of Appeal of six EU bodies or agencies which were in place when the abovementioned mechanism entered into force on 1 May 2019 but which are not yet mentioned in Article 58a of the Statute, [9] as well as to appeals brought against decisions of the General Court given under Article 272 TFEU.

It aims, second, to exploit the possibility offered by Article 256(3) TFEU by effecting a partial transfer, to the General Court, of the Court of Justice’s jurisdiction to give preliminary rulings in six specific areas: the common system of value added tax, excise duties, the Customs Code and the tariff classification of goods in the Combined Nomenclature, compensation and assistance to passengers, and the scheme for greenhouse gas emission allowance trading.

Of course, that transfer of jurisdiction is without prejudice to the General Court’s power to refer the case to the Court of Justice if it considers that the case requires a decision of principle likely to affect the unity or consistency of EU law, as expressly provided for in the second paragraph of Article 256(3) TFEU, but it should nevertheless lead to a significant reduction in the workload of the Court of Justice (and enable it to concentrate on its other cases), since cases brought before it in the abovementioned areas currently account for approximately 20% of all preliminary ruling cases.

[1]     OJ L 29, 31 January 2020, p. 7.

[2]     Case C‑516/22, Commission v United Kingdom, in which the Commission essentially complains that the United Kingdom has failed to fulfil its obligations under the Treaties and the Withdrawal Agreement by reason of a judgment of the Supreme Court of that State ordering the enforcement of an arbitration award which the Commission, and subsequently the Court of Justice, found to be contrary to EU law. According to the applicant, the Supreme Court of the United Kingdom should have suspended the enforcement of that award pending the outcome of the proceedings pending before the EU courts or referred a question of validity to the Court of Justice under Article 267 TFEU, read in conjunction with Article 127(1) of the Withdrawal Agreement.

[3]     Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (OJ L 119, 4 May 2016, p. 1).

[4]     OJ L 433, 22 December 2020, p. 1, and corrigendum OJ L 373, 21 October 2021, p. 94.

[5]     Judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, and Poland v Parliament and Council, C‑157/21, EU:C:2022:98).

[6]     Opinion 1/20 (modernised Energy Charter Treaty) of 16 June 2022 (EU:C:2022:485).

[7]     In 2022, 41 orders were thus adopted by the Chamber determining whether an appeal should be allowed. In two cases (C‑801/21 P, EUIPO v Indo European Foods, and C‑337/22 P, EUIPO v Nowhere, the appeal was allowed and the proceedings therefore continue, in accordance with the relevant provisions of Title V of the Rules of Procedure of the Court.

[8]     These are, respectively, Cases C‑663/20 P, SRB v Hypo Vorarlberg Bank and C‑664/20 P, SRB v Portigon and Commission, closed by orders of 3 March 2022 (EU:C:2022:162 and EU:C:2022:161); Joined Cases C‑313/21 P and C‑314/21 P Council v FI and Commission v FI, closed by order of 22 December 2022 (EU:C:2022:1045); and Joined Cases C‑341/21 P and C‑357/21 P Commission v KM and Council v KM, also closed by order of 22 December 2022 (EU:C:2022:1042).

[10]   These are, respectively, the European Union Agency for the Cooperation of Energy Regulators, the Single Resolution Board, the European Banking Authority, the European Securities and Markets Authority, the European Insurance and Occupational Pensions Authority and the European Union Agency for Railways.

Statistics of judicial activity in a number of previous years can also be consulted on the Curia website in the ‘History' section.