ECJ will no longer deal with air passenger rights in future

In 1988, the European General Court (EGC) was established to relieve the European Court of Justice (ECJ). This primarily served as the first instance for actions brought by individuals and Member States against the Commission. Now, almost 40 years later, the EGC is taking over some subject areas from the ECJ in order to relieve the latter once again. Since September 1, 2024, it is no longer the ECJ but the EGC that decides on requests for preliminary rulings under Art. 267 TFEU on Regulation 261/2004. Other areas such as the common system of VAT, the Customs Code, consumer tax and the system for trading greenhouse gas emission allowances are also affected by the change.

To this end, not only was a new paragraph 3 added to Art. 256 TFEU, but Art. 50 b) was also inserted into the Statute of the European Courts. In practice, it should be noted that questions referred to the ECJ will continue to be addressed by national courts. The latter then examines whether the request relates exclusively to the area covered by Regulation 261/2004 – in which case the request would be forwarded to the ECJ – or whether a fundamental ruling on a specific legal issue must be issued by the ECJ. There is no provision for a subsequent referral from the EGC to the ECJ. The new development does not change the validity of previous ECJ decisions, as these will remain the guiding principles for future proceedings before the ECJ. However, a new court also offers the aviation industry the opportunity for the new judges to decide questions on air passenger rights from a new perspective and to take the circumstances of air traffic into account more when weighing up interests. The airlines are therefore also required to support the ECJ in reaching a decision by submitting specific and detailed arguments.

Jurisdiction was changed primarily because the number of requests for preliminary rulings from national courts has risen to 67.7% over the last 20 years as the EU has steadily expanded, of which the subject areas in question account for around 24%. This has led to ever longer processing times at the ECJ, which most recently amounted to 17 months.

In view of the new tasks, the number of staff at the ECJ has been increased. The small chambers with five judges generally deal with questions referred for a preliminary ruling on Regulation 261/2004. It remains to be seen whether the distribution of referrals will in future be such that individual chambers are specifically responsible for air passenger law.

This development should be viewed positively, as court proceedings will no longer drag on massively and there is a chance that case law could become more airline-friendly within the existing framework.