Statistics concerning the judicial activity of the General Court - 2023

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Comments on the statistics of the General Court for 2023

By Vittorio Di Bucci, Registrar of the General Court

For the first time since taking office on 5 June 2023, I have the honour of putting pen to paper to comment on the annual statistics relating to judicial activity. Like my predecessor, Emmanuel Coulon, I believe that it is an essential exercise to trace the evolution of litigation, to assess certain consequences of the legislative, regulatory and decision-making activity of the institutions and bodies of the European Union, and to evaluate the effects of choices made by the General Court.

To enable a correct reading of the statistics for 2023, it is necessary to highlight, first of all, a series of 404 cases brought in October 2023 (T‑620/23 to T‑1023/23), which are essentially identical, since the actions concern the amendment of the additional voluntary pension scheme for Members of the European Parliament and relate to ‘institutional law’ (see Table No 4, below). That series of cases had a huge impact on the number of cases brought, which for the first time in the history of the General Court exceeds a thousand, totalling 1 271. If those cases, which were joined, were accounted for as a single case, the number of actions brought would be 868 and would be close to the figures for previous years (904 in 2022, 882 in 2021 and 847 in 2020).

Cases brought: the first cases concerning the regulation of digital markets and certain fluctuations in other areas

A new dispute concerning the regulation of digital markets and services arose in 2023, following the adoption by the European Union of Regulation (EU) 2022/2065 (the Digital Services Act (DSA)) and Regulation (EU) 2022/1925 (the Digital Markets Act (DMA)). The first constitutes a body of rules applicable to online intermediaries and platforms, which is implemented both by the national authorities and by the Commission and, when implemented by the Commission, may give rise to actions before the General Court (two in 2023: Zalando v Commission, T‑348/23, and Amazon Services Europe v Commission, T‑367/23). The second act is a piece of legislation which specifically applies to the major digital companies by making them subject to obligations in relation to their designation as ‘gatekeepers’. It is for the Commission, subject to review by the EU judicature, to designate those companies and apply those rules to them. Three applicants have already brought four actions before the General Court to challenge decisions taken in the context of the gatekeeper designation procedure (Bytedance v Commission, T‑1077/23; Meta v Commission, T‑1078/23; and Apple v Commission, T‑1079/23 and T‑1080/23). Measures of internal organisation were adopted to prepare the Court for that new dispute and for actions which could relate to another legislative innovation, namely Regulation (EU) 2022/2560 on foreign subsidies. Under those measures, it should be noted that the General Court decided to amend the decision on the criteria for the assignment of cases to Chambers (OJ 2023 C 286, p. 2).

As regards the traditional types of dispute before the General Court, a slight increase may be observed in the fields of the civil service (82 cases compared with 66 in 2022) and intellectual property (310 compared with 270 in 2022).

Litigation concerning restrictive measures has continued to contribute to the General Court’s activity, but to a lesser extent than in 2022; 63 cases were brought in 2023 compared with 103 in 2022. The vast majority of new cases in this area (41 cases out of 63) relate to the series of restrictive measures adopted by the European Union in 2022 in respect of natural persons and entities in the context of the conflict between Russia and Ukraine. In numerous pending cases primarily dealing with restrictive measures, the applicants modified their applications on the basis of Article 86 of the Rules of Procedure in order to challenge the renewal or amendment of the measures concerning them, instead of bringing new actions contesting those decisions. The advantage of this is that it makes it possible to examine several acts in the context of the same case, but it also makes litigation more burdensome and more complicated to manage, above all if an application is modified when the hearing is imminent or in progress. The General Court is considering amending its Rules of Procedure on that point to provide that any modification of the application must be carried out within a short period of time after service of the General Court’s decision to open the oral part of the procedure. This would make it possible to retain a certain degree of flexibility as regards the rules applicable to disputes concerning the renewal and amendment of acts adopted by the institutions of the European Union, while minimising the disadvantages currently encountered by the General Court.

The number of cases in the field of economic and monetary policy, which includes inter alia banking law, continues to rise every year, with 56 new cases brought in 2023. Given that most of those cases concern banks’ annual contributions to the Single Resolution Fund and that the eight-year initial contribution period is coming to an end, that figure could fall over the coming years.

In the field of State aid, the circumstantial rise in the number of actions brought in 2022 (68 new cases) did not materialise in 2023. The upturn in activity in this field was connected with the filing, in 2022, of numerous actions contesting the Commission decision on the aid scheme implemented by Portugal for the Madeira Free Zone, proof that the activity of the General Court is dependent on the acts adopted by the institutions and bodies of the European Union and on challenges to the legality of those acts. Ten new cases were registered in that field in 2023 – the lowest number since 1993, when jurisdiction was conferred on the General Court to hear actions brought by individuals in the field of State aid.

Lastly, competition cases remain at historically low levels, with 13 new cases in 2023.

Figures reflecting the activity of the General Court

With 904 cases closed in 2023, the General Court has improved on the average of the previous years. It has also managed to reduce the number of pending cases, since the number of closed cases surpasses that of new cases by 36, if the 404 essentially identical cases are accounted for as a single case. On that basis, the 1 438 cases pending as of 31 December 2023 mark a slight improvement on the 1 474 cases which were pending a year earlier. Increased progress could be made in 2024, when the General Court should be able to close certain large groups of cases. This appears to confirm that the General Court is in a position to absorb the transfer of part of the jurisdiction to give preliminary rulings, scheduled for autumn 2024, and thus reduce the workload of the Court of Justice.

Some points to note:

almost 14% (13.61%) of cases were disposed of by extended five-judge formations, which confirms the upward trend in referrals to extended formations of the Court already observed in 2022 (12%; 123 cases disposed of by an extended formation in 2023 compared with 100 in 2022). Extended formations primarily deliver judgments, but it is also possible for them to make orders (ten in 2023, eight in 2022);
79% of cases were closed by three-judge formations, compared with 82% in 2022. This drop can be explained by the increased frequency of referrals to extended formations, as explained above;
one case was closed by the General Court sitting as the Grand Chamber after the Court of Justice, ruling on an appeal, referred the case back to the General Court (Venezuela v Council, T‑65/18 RENV, concerning restrictive measures in view of the situation in Venezuela);
nine cases were decided by a single judge (eight judgments, one order), compared with two in 2022 and three in 2021;
the number of applications for interim relief rose slightly (41 in 2023 compared with 37 in 2022), as did the number of closed interim relief proceedings (40 in 2023 compared with 37 in 2022);
59% of the cases closed in 2023 were closed by judgment and 41% by order. 66% of the cases closed by judgment were closed with a hearing.

There was a significant increase in the number of hearings (286 hearings compared with 241 in 2022 and 240 in 2021), for 419 cases pleaded (303 in 2022 and 290 in 2021). It should be noted that ten joint hearings covering a total of 70 cases pleaded were organised in 2023. Since 1 April 2023, Article 106a of the Rules of Procedure has provided for the possibility to organise joint hearings of two or more cases which are not joined. One such joint hearing covered a total of 42 cases pleaded (in the group of cases Caixabank and Others v Commission, T‑700/13, concerning State aid granted by Spain in favour of certain economic interest groupings and their investors in the form of a tax regime applicable to certain finance lease agreements for the purchase of ships, also known as the ‘Spanish Tax Lease System’).

No hearings with videoconference were held during this past year, even though new rules on the use of videoconferencing entered into force on 1 April 2023. Although this possibility was initially made available where a party was prevented from travelling to the General Court’s premises due to the health crisis caused by the Covid-19 pandemic, Article 107a of the Rules of Procedure now provides that a party may request the use of videoconferencing where security or other serious reasons (e.g. a strike in the air transport sector) prevent that party's representative from participating in a hearing in person. The reason for this development lies in the fact that the pandemic has ended.

The average duration of proceedings increased slightly in 2023, standing at 18.2 months for cases closed by judgment or by order (compared with 16.2 months in 2022 and 17.3 months in 2021), and 21 months (compared with 20.4 in 2022 and 20.3 in 2021) if only cases closed by judgment are taken into account. In that regard, it should be noted that the average duration of proceedings in the latter category ranges between an average of 37.1 months for competition law cases or 34.1 months for State aid cases and 13.7 months for intellectual property cases. The closure of several complex cases or groups of cases, in particular in the fields of State aid and competition, has contributed to the increased duration of proceedings.

Of the 1 841 cases pending before the General Court as of 31 December 2023 (that is the gross figure, including the 404 identical actions), 29% concern institutional law (as indicated, the 404 abovementioned cases are part of the 543 pending cases as of 31 December 2023 in that field), 13% relate to economic and monetary policy and 9.5% concern State aid. As regards the General Court’s areas of specialisation, intellectual property cases account for 18% of pending cases and staff cases represent 6% of them, figures which have remained stable compared to the previous year. As regards the formations of the Court, it may be noted that use of the Grand Chamber increased, so that at the end of 2023, there were six cases pending before it, falling into two groups, one concerning the Recovery and Resilience Fund and the other concerning restrictive measures.

Highlights of 2023 and outlook

In 2023, the General Court continued its policy of proactive case management and implemented new measures to process very large cases and large groups of cases as soon as they are registered. Those measures were also intended to facilitate the resumption of proceedings in certain groups of cases which had been stayed pending the outcome of appeals in cases identified as pilot cases. The aim is to streamline and expedite proceedings in the most complex cases, which will be assigned to Chambers and Judge-Rapporteurs in accordance with specific criteria, will follow an indicative timetable (subject to revision as the proceedings progress), and will benefit from greater resources and priority treatment by the team of readers of judgments (cellule des lecteurs d’arrêts) and the translation services.

Preparations for the partial transfer of jurisdiction to give preliminary rulings have gathered pace during the year and will continue in 2024. They include, in particular, the adaptation of the Statute of the Court of Justice of the European Union and of the procedural rules (Rules of Procedure, Practice Rules for the Implementation of the Rules of Procedure and secondary texts). A political agreement on the reform of the Statute was reached on 7 December 2023 and has since been confirmed by the European Parliament and the Council. The General Court has proposed draft amendments to its Rules of Procedure, which, following the agreement of the Court of Justice, will be sent to the Council in early 2024 for approval. The other texts, which are essentially the responsibility of the General Court alone, are also being prepared. Beyond amending the procedural rules, considerable work will also be required to adapt working structures, methods and workflows, adapt IT tools, and train staff to enable the General Court and its Registry to deal successfully with the first wave of requests for a preliminary ruling, scheduled for the last quarter of 2024.

The modernisation of the public service of justice, which contributes to the efficiency of the European judicial system, is also central to the General Court’s work. In addition to the measures taken in previous years to digitise the entire judicial process – from the, as a rule, mandatory filing of documents via the e-Curia application to the electronic signature of court decisions – work has also been undertaken by the Institution to create an integrated case management system (SIGA) and to enable the General Court to manage the arrival of preliminary ruling proceedings in 2024.

The work of the Registry of the General Court: insights into a continued high level of activity

The continued high level of activity of the Registry of the General Court is worthy of special note.

Several thresholds were crossed and records broken in 2023:

the threshold of 20 000 cases brought before the General Court since its creation, with the registration of Case T‑1148/23, PAN Europe v Commission, lodged on 8 December 2023;
the threshold of 1 000 cases brought in one year (1 271 cases) – while the lodging of the abovementioned 404 identical cases does not significantly add to the workload of the formations of the Court, it did have a considerable impact on the activity of the Registry, which was responsible for registering the cases, effecting service, publishing information notices in the Official Journal and preparing the joinder of cases;
a record number of procedural documents entered in the register (62 020);
a record number of written pleadings lodged at the Registry (5 264, other than applications);
the lowest rate of regularisation of applications initiating proceedings (22.9% compared with 31.96% in 2022 and 41.2% in 2021), as a result not only of the taking into account of the group of 404 cases, but also of the reduction in certain formalities in the context of the amendment of the Rules of Procedure and the publication on the Curia website of an aide-mémoire and indicative model applications;
a total of 1 762 453 pages were filed via the e-Curia application during the past year.

The Registry assisted the Court judges at 334 Chamber conferences (352 in 2022 and 338 in 2021) and 286 hearings.

Furthermore, 94% of documents were filed electronically using the e-Curia application, the use of which was made compulsory on 1 December 2018, subject to a few exceptions. In 2023, documents filed via e-Curia represented a volume of nearly two million pages (1 762 453). It should be noted that the use of the e-Curia application will not be compulsory in the context of preliminary ruling proceedings, but will be strongly encouraged because of the benefits it has for national courts, for the parties concerned and for the General Court.