Boards of Appeal (hereinafter, ‘BoAs’) have been established since 1994 for providing natural and legal persons with a first instance review of highly technical decisions taken by certain EU agencies. Since then, BoAs have proliferated in the EU institutional landscape, being established since almost 30 years, in very different and relevant policy fields, such as banking and finance, intellectual property, energy, aviation and railway safety, chemicals. Other bodies have been established within CFSP agencies, yet only for the purpose of dealing with civil service litigation. Another BoA has been proposed in the recent Regulation establishing the Anti Money Laundering Authority, current under negotiations.

Moreover, outliving the ‘specialised courts attached to the General Court’ provided for by Art. 257 TFEU, they have de facto taken their function as first instance reviewer of technical acts, as implicitly recognised by the new Art. 58a of CJEU Statute. Therefore, despite several doubts on their neither-administrative-nor-judicial nature (or, perhaps, exactly thanks to this hybridity?), the institutional model provided by the BoAs has succeeded.

Nevertheless, in the academic and institutional debates they have been often trapped in a sectorial-based approach. Their case-law is very well known within the professional community to which they belong, yet not outside it. There is often little awareness of their proliferation and the same European Commission still manage them from the perspective and for the needs of the policy field in which they operate. Certainly, this approach is to some extent unavoidable, given their technical specialisation, and it has also to be welcomed: BoAs are different one from the other and their heterogeneity is an added value, since it enables these bodies to satisfy the needs of each policy field and, thence, to better perform their role.

However, their growing quantitative and qualitative relevance, together with the current age of reforms in which the EU Judiciary is living in, calls for a new legal and political thinking.

BoAs are arising as the new institutional model for solving disputes in highly technical policy fields. This model does not necessarily imply the harmonisation of the existing bodies to a common pattern. Yet it calls for a discussion on the common problems that the latter face in performing their function and on the best practices that have to be implemented to deal with them. Moreover, this model does not necessarily need to evolve either towards an administrative or a judicial paradigm. Yet it calls for a reflection on how it can be better integrated with that of EU Courts, to increase the overall efficiency of the EU judicial system and, ultimately, the protection of individuals’ rights.

As a first and concrete step to this direction, the Jean Monnet Module on EU Specialized Judicial Protection has published the Common Database on EU Agencies’ Boards of Appeal, namely the first one-stop search engine that collects all decisions taken since 2018 by the Boards of Appeal established so far, together with the judgments, orders and opinions adopted by the General Court and the Court of Justice by way of appeal (for a deeper discussion on the Database’s collection methodology, see here). It aims at providing academics and practitioners with a new research tool that enables horizontal research on common topics such as the standard of review over the agency’s decisions; the individuals’ locus standi before the BoA itself; the definition of the acts reviewable by the latter; the requests of intervention of third parties; etc. Moreover, it gives the possibility to assess the consistency of BoAs’ decisions one with the other as well as with the settled CJEU case-law and to evaluate, from new perspectives, how these bodies could further evolve to enhance the efficiency of the EU judicial system.

So far, BoAs decisions were published on each agency’s website as a bare list of PDFs, often without a search engine nor specifying which decision had been challenged before the EU Courts and with which outcome. This has hindered comparative studies as well as the understanding of the relationship between the BoAs and the CJEU. Ultimately, this has also fostered that ‘silo mentality’ referred above, which nowadays looks quite outdated. In its own small way, the Common Database on EU Agencies’ Boards of Appeal aims at promoting a deeper (and not-only-sectoral) understanding of the BoA’s model.

To this end, the Jean Monnet Module on EU Specialized Judicial Protection has also launched a call for papers to collect innovative studies that, moving from an analysis of the BoAs’ case-law and their impact on the enforcement of EU Law, shed new light on their role and on the possible evolution of the EU system of judicial protection. The deadline for the submission of a 500 words abstract is 15^th October 2023. Selected papers will be presented at the Final Conference of the Jean Monnet Module on EU Specialized Judicial Protection, which will be held at the University of Ferrara in January 2024 with a high-level line-up of speakers from academia, EU institutions and the Boards of Appeal themselves. All the relevant information can be found here.

Posted on behalf of Prof. Jacopo Alberti, Chair of the Jean Monnet Module on EU Specialized Judicial Protection, University of Ferrara.