The Gazette 1989

GAZETTE

JANUARY 1989

Litigating in Luxembourg The following article is reprinted from the Journal "Counsel" and appears here with the kind permission of the publishers.

A growing, if still small, number of members of the Bar —both silks and juniors now come to Luxembourg so regularly that they are thoroughly familiar with the procedure of the Court and the techniques most likely to be effective there. This article, which the Editorial Board has asked me to write, is not for them. It is for those who do not come often or who may be asked to come for the first time.

It is, therefore, crucial that the claim should set out clearly the facts and all grounds relied on and that it should annex the relevant documents. The pleadings are, therefore, normally longer than pleadings in an English action and the content is different. Arguments have to be developed in writing and cannot simply be left for the oral hearing and the Court is strict in not allowing new grounds to be intro- duced in the reply. This does not necessarily mean that excessive length is to be encouraged — particularly in the reply and in the rejoinder which really are intended to give an opportunity to answer the arguments of the other side. In my opinion, there is now a tendency for the reply and the rejoinder to be too long — what has already been said in the claim and defence is repeated, often at greater length. This should be discouraged — not least because the pleadings will have to be translated into French as the working language of the Court. There is much to said, partly for clarity, partly because Continental judges are used to it, for setting out, after a statement of the relevant facts, each ground of attack seriatim, developing the arguments relevant to that case. Because of the vast amount of paper which is put before Members of the Court, it is important to make sure that the strongest arguments are put emphatically and strikingly so that they cannot be lost in a mass of words. This may sound very elementary but there are not infrequent occasions when the mass of words conceals the critical point. Indeed there are occasions when it is both possible and desirable to say that no reply or rejoinder will be filed or merely a formal reply can be filed stating that all the arguments in the other side's pleadings have already been dealt with. When the report for the hearing is received it is no less essential to ensure that the fundamental arguments have been correctly

on such a reference or in a direct action to challenge decisions of the Commission relating to breaches of the competition or antidumping rules; more rarely in direct actions challenging the validity of other forms of decision, since most Community legislation does not satisfy the test of being of "direct and individual concern" to a particular trader, since it makes rules applying to a sector of industry, agriculture or commerce.

Their number is likely to increase, not just because the Court now receives some 400 new cases a year (as opposed to less than 200 seven years ago and far less when the United Kingdom joined the Community) but because of the likelihood of a further increase following the adoption of the 300 measures which it is planned will be in force in time for the market without frontiers in 1992. What are the essential features of our procedure, are there obvious pitfalls to avoid? The procedure varies to some extent according to the type of case before the Court — there are (a) staff cases (which in the majority of cases are conducted in French and which normally go straight to a Chamber of three judges and an advocate general, even though sometimes they raise interesting and difficult questions of administrative law); (b) direct actions where the Commission contends that a member State is in breach of the Treaty and where usually only member States take part in the proceedings; (c) direct actions where Community legis- lation is challenged as being ultra vires, in breach of the Treaty, or as having been adopted in violation of some essential procedural require- ment — usually brought by member States, except where the instrument adopted is in form or in substance a Decision addressed to, or of direct and individual concern to, an individual or a limited company; (d) references for a preliminary ruling as to the interpretation or validity of a Community instrument, or as to the interpretation of the Treaty, made by national courts to the European Court. The English barrister is most likely to find himself at Luxembourg

by Sir Gordon Slynn, Advocate General of the Court of Justice of the European Communities.

The essential difference between the two types of case is that in direct actions the applicant can put in two pleadings — a claim and a reply, answered by a defence and a rejoinder. In reference by a national court the parties in the main proceedings, like member States and the Community institutions, file only one pleading — a difference which affects the nature of the lawyer's submissions at the oral hearing. In both types of case, however, it is essential to bear in mind that the procedure is fundamentally written. The judges will receive a preliminary report prepared by the judge reporter, often after discussion with the advocate general assigned to the case, which summarises the arguments and makes proposals for the future conduct of the case (which the lawyers do not see); and a report for the hearing which summarises, though often in some detail, the facts and the arguments of the parties (and which is supplied to the parties).

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