316 / 336
but through the headphones, to an interpreter—and of
course the quality of the interpretation varies enor-
mously, and, however good it is, it is not like listening
to a solicitor directly.
So written pleadings (in direct actions) and written
observations (in references for preliminary rulings),
dominate, because they can be properly translated at
leisure, and one can then read the translations.
The procedure differs slightly as between direct
actions and references for preliminary rulings. The pro-
cedure in staff cases is the same as in direct actions,
except that they are heard by a Chamber instead of by
the full Court.
Requisite pleadings
In direct actions there are four pleadings—the Ap-
plication, the Defence, the Reply and the Rejoinder.
The Application is the document that originates the
proceedings and at the same time sets out the Defen-
dant's case. The Reply and Rejoinder are optional.
As I have tried to indicate, pleadings in direct
actions are not intended to fulfil the same limited pur-
pose that pleadings fulfil in an Irish Court. They are
the main vehicle for the parties to present their cases
to the Court. Each party sets out in his pleadings not
only what he says the facts are, but also his 'sub-
missions of law, the arguments in support of those
submissions and the authorities on which he relies. He
annexes to his pleadings any documentary evidence on
which he relies, and if he wants any witness to be
called, he says so in his pleadings.
Another thing that differentiates proceedings in this
Court from proceedings in an Irish Court is that the
parties do not in general serve documents on each
other, or deliver them to each other. Pleadings are
lodged at the Registry of the Court and it is the job
of the Registry to serve them on the other party or
parties. For this purpose, parties to direct actions are
required to have an address for service in Luxembourg.
What this means, in practice, for parties represented
by Irish Solicitors, is that their Solicitors have to have
a Luxembourg agent, who can, so far as the Rules go,
be anybody at all with an address in Luxembourg, but
is usually an avocat from Luxembourg.
1
When an Application originating a case arrives at
the Registry, the case is given a number e.g. 1/75
for the first case of 1975, and it is at once assigned by
the President to one of the Judges, to act as Rapporteur,
and to one of the Advocates General.
At the close of pleadings, the Court decides whether
any issue of fact raised in the pleadings needs to be
determined by wh?t is called a "preparatory inquiry".
The judic al technique here is rather like that of an
order for a Chancery inquiry in the High Court. An
inquiry may be conducted either by the full Court,
or by a Chamber or by the Judge Rapporteur,
with, in every case, the Advocate-General. Such an
inquiry may involve the personal appearance of one
or more of the parties, or the production of further
documents or information by the parties, or the exam-
ination of witnesses, or experts' reports, or an inspection
of the place or thing in question.
But inquiries are rare. Most cases go straight to a
hearing.
After the hearing there is an adjournment during
which the Advocate-General writes his opinion and it
is, so far as necessary, translated. About three weeks
later he delivers it. Then, after another adjournment,
the judgment is delivered.
In references for preliminary rulings the procedure
is very similar, except initially. The National Court or
Tribunal making the reference sends its order for refer-
ence direct to the Registry of this Court. It is then
translated into all the other Community languages and
served by the Registry on the parties, on the Member
States, on the Commission, and on the Council if an
act of the Council is in issue. Within two months, any
of these may submit written observations on the ques-
tion or questions referred. In practice, the Commission
always submits observations, the parties normally do
so, and Member States sometimes do so. There are
usually no preparatory inquiries, as the questions re-
ferred are pure questions of law. There is then a hear-
ing which the parties are not obliged to attend, al-
though they usually do and the Commission almost
always does. As there is only one round of written
observations, the hearing is the only opportunity the
parties have of commenting on each other's observa-
tions. The hearing is followed in the usual way after
an adjournment by the Advocate-General's opinion,
and after another adjournment by the ruling of the
Court.
The Court, as I have said works fast. A preliminary
ruling is normally given within between four and eight
months of the receipt of the order for reference at the
Registry. Direct actions take rather longer, but seldom
more than a year.
Costs awarded by the Court
A reference for a preliminary ruling is considered to
be a step in the proceedings before the National Court
or Tribunal concerned and the costs therefore to be a
matter for that Court or Tribunal, except that the
Community Court can grant legal aid to any party out
of its own funds. This is a particularly valuable power
particularly in social security cases.
In direct actions costs are awarded by the Court on
very much the same sort of principles as apply in an
Irish Court. The main difference is that detailed
taxations are unknown. The parties are expected in
general to agree the quantum of costs. If they fail to
agree, the quantum is assessed by a Chamber on prin-
ciples that appear to me to be similar to those of our
Schedule II. I should also add that, in direct actions,
the Court can also grant legal aid.
One can sum up the role of the Court in the
European Communities in the words of Article 164
of the EEC Treaty—(there are Articles in the same
terms in the other two founding Treaties). Article 164
says : "The Court of Justice shall ensure that in the
interpretation and application of this Treaty the law is
observed"". There you really have it all. European inte-
gration
is founded on the rule of law,
and the Court
is the central instrument to ensure that practical effect
is given to that ideal.
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