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.

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

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.

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).

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