The ECJ as the EU Court of Appeal: Some evidence from the appeal case-law on the non-contractual liability of the EU

Legal scholarship has devoted limited attention to the appeal procedure before the Court of Justice of the European Union. However, appeal judgments have assumed renewed importance following the recent EU judicial reform in 2015. Firstly, the centralisation of the appeal procedure in the hands of the General Court (GC) and the Court of Justice (ECJ) has further strengthened the ECJ’s role as a court of appeal of the EU legal order. Secondly, the number of appeal judgments delivered by the ECJ has drastically increased.

The scope of this article is twofold: it presents findings on how the ECJ exercises its role as court of appeal; it also seeks to initiate an academic debate on how the appeal procedure shapes the judicial dialogue between the GC and the ECJ in the interpretation of EU law. For this purpose, the article firstly investigates how the ECJ interprets the notion of ‘pleas of law’ and ‘complex factual assessment’. Since appeals may cover only questions of law, these notions are pivotal in determining the limits of the ECJ jurisdiction when reviewing the decisions of the GC. Secondly, it analyses the interpretative methods used by the ECJ on appeal, and the divergent judicial interpretations of EU law followed by the GC at first instance. Thirdly, it analyses the balancing of individual rights and general interest in the context of this procedure, and the instances in which the ECJ has reviewed the balance struck by the GC. Far from being merely doctrinal research, this analysis offers evidence of how the ECJ interprets EU law on appeal, and provides guidance to practitioners and academics as to procedural and substantive aspects of this procedure. As a case study, the paper focuses on the EU case-law issued on appeals concerning the non-contractual liability of EU institutions.