The Gazette 1989

GAZETTE

FEBRUARY

1989

the Members of the Court often have to search around the annexes (exhibited at particular stages as they crop up in the argument) to produce a coherent, connected story. There is much to be said in cases with a lot of documents for a - bundle to be agreed either in chronological order, or in particular sections, so that the documen- tation is more readily usable. Only infrequently are there interlocutory hearings: they can, however, be valuable in sorting out the really important issues, and deciding, where there are several parties, which advocate deals with which issues, so as to avoid all covering the same ground. Some- times counsel can discuss these matters between themselves and make suggestions to the Court as to the future conduct of the proceedings. The fact that the procedure is primarily written does not mean that the oral hearing is not important. The Court, partly because of the heavy case load and partly because the Continental judges are more used to dealing with documents, has, it is true, limited speeches to thirty minutes or two of fifteen minutes when the

case is before a chamber of three judges and an advocate general. Where, however, the case needs and justifies longer, then an application should be made to the President for an extension — which if good reasons are given is frequently granted — though English counsel, perhaps to their surprise, discover how much, given the content of the written pleadings, they can say in thirty minutes. It is rarely necessary to go into the facts in any depth at the oral hearing: they are in the report for the hearing and the best way to lose the attention of the Court is to begin with a long factual recital. Facts which it is desired to emphasis can be stressed as part of the relevant argument. Nor since all the relevant decisions of the Court should have been referred to in the written pleadings, is it necessary to recite long passages from earlier judgments or opinions (which themselves are citable and frequently cited). The punchlines, with the necessary references, are sufficient. At one stage, counsel regularly read, and sometimes still do read, their speeches. Such a practice is

summarised. If something has not been understood or is not wholly accurate the attention of the Registrar should be drawn to it immediately in writing, even though at the end of the day it is for the judge reporter to decide whether to amend his report. At the least the point should be made at the hearing or in the preliminary interview which takes place just before the hearing. Although the decision whether or not to refer a question to the Court under Art. 117 of the Treaty is entirely within the discretion of the national judge, counsel can play an important role in assisting the formulation of the questions. The precise formulation is important — not least to ensure that a question of Community law is raised, since the Court will not decide what national legislation means or whether specifically it violates the Treaty or a relevant rule of law. Some references to the Court — I do not suggest they come from the United Kingdom — fail to present the material in the appropriate form. There is everything to be said for following the form common in the English case stated; a section containing, and headed "the facts"; a section explaining how the issues have arisen, defining the question and summarising the arguments each way; it is also valuable to have a preliminary view of the judge as to the answer. The pleadings of the party who desires to take part in the reference will have to be written without seeing the pleadings of the other side; they should therefore deal with all the major arguments which need to be put forward or answered. Annexes to pleadings in both types of case are important. There is no discovery or opportunity for interrogatories or to ask for further and better particulars, though if the documents in possession of the other side have not been supplied it is possible to ask the Registrar to tell the judge reporter that the documents are essential for the case. Then, if satisfied that they are needed, the Court will itself ask for them, or put questions to elicit further facts in the knowledge of the other side. It has not been the practice of the Court to prepare "bundles" of such annexes as a separate working document, In the result,

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