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Jersey & Guernsey Law Review – October 2007

LITIGATING IN LUXEMBOURG

David Vaughan CBE QC and Margaret Gray BL[1]

Introduction

1       The role of the advocate in litigation is always to persuade the bench resolving the dispute before it to find in favour of the party on whose behalf he pleads. This role is the same, whether the advocate appears before the Royal Courts of Justice or the Court of Justice. Precisely how the advocate goes about attaining his goal and any demystification of the so-called art of the advocate is beyond the scope of this essay,[2] which deals with how Community law and the Court of Justice affect the way the advocate carries out his task. However, it can be said that before the Luxembourg court,[3] as before national courts, the advocate who adheres to certain touchstones will go some way to success. As a long-standing former member of the Luxembourg bench has said, ‘[t]he basic rules of advocacy apply as much in pleading before the European Court of Justice as before any court or tribunal in the United Kingdom: know your court; know your procedure; and know what you are trying to achieve.”[4]

2       Yet anyone attending a hearing at the Court of Justice will realise that an advocate appearing before it must do a little more than to adhere to those basic rules; he must adjust his matchplay. As Sir David Edward puts it “[t]he technique of pleading before the Court of Justice needs to be different because the nature of the court is different, the procedure is different and the forms of action are different.’[5] The advocate before the Court of Justice therefore finds himself playing the same game but according to a different rule book. That rule book is affected by the nature of the Court’s jurisdiction set down by the Treaties, and by its procedural rules governed by the Treaties, the Statute of the Court and its Rules of Procedure.[6] He also finds himself playing in unfamiliar conditions, those conditions being affected, in particular, by the melding of a number of legal families, systems and traditions, and the language régime which requires the Court to work on a daily basis in over 20 languages.[7] After all, the Court of Justice is ‘unlike any other court in the world’.[8]

3       This essay, written in honour of Professor Sir Francis Jacobs, considers some of the ways in which litigating before the Court of Justice is different from litigating before national courts, and how those differences affect the manner in which the advocate appearing in Luxembourg performs his task. The first part of the essay will address the question of who goes to court in Luxembourg and why.It looks at two specific questions: (a) what issues are litigated in Luxembourg; and (b) who may appear before the Court as parties and as legal representatives. This gives some context to an understanding of the role and task of counsel before the Court. The second part of the essay considers the way in which the Court’s unique methods of working affects the written and oral stages of proceedings and the judgment, as well as the specific role played by advocates in those proceedings. The third part considers the impression that an advocate can make upon the Court, in particular, where its judgments have recorded a discernible win on the part of a claimant, or the reception into the case law of a legal principle enshrined in a national legal system. The final part addresses briefly the role of the advocate beyond Luxembourg.

4       Sir Francis Jacobs is no stranger to Kirchberg courtroom battles on both sides of the bar and this essay is the poorer for not having had the benefit of his sound opinion on the subject that it addresses. He would, however, in all likelihood, agree with those seasoned EU law practitioners who have commented that appearing before the Court of Justice affords those who have ‘taken the trouble to learn the different legal techniques an unrivalled chance to appear in the challenging environment of a multi-national court with Judges coming from different backgrounds, different legal traditions and different political and social philosophies.’[9]

5       Although this essay was originally prepared on the basis that the lawyers concerned and the cases referred would be in the main from the United Kingdom, it is also of significance to Jersey and Guernsey advocates.  Although the Channel Islands do not form part of the European Community territories by virtue of Article 227 EC, Protocol 3 to the United Kingdom Accession Treaty signed on 22 January 1972 provides that exceptionally the EU rules on customs matters and on agricultural products and restrictions against discrimination will apply,[10] and accordingly in appropriate cases the courts of Jersey and Guernsey can and do refer cases to the European Court of Justice under Article 234 EC.[11]  There have also been cases in both jurisdictions where European Community issues formed an important part of the argument and where references in other circumstances might have been made (see for example Jersey Fisherman’s Association Limited v States of Guernsey).[12]  Other cases referred to the Court of Justice by courts of other jurisdictions have concerned Channel Islands interests (see for example Case C-452/03 RAL (Channel Islands) Limited which concerned a company incorporated in Guernsey, Case C-27/00 Omega Air which concerned a company controlled and operated in Sark (but incorporated in the Isle of Man) and Case C-491/04 Dolland & Aichison Ltd (goods supplied by a company established in Jersey)).

PART I: WHO GOES TO COURT IN LUXEMBOURG?

The jurisdiction of the Court: the various forms of proceedings

6       An advocate either signing his name at the foot of pleadings to be lodged at the Registry of the Court or opening the doors of one of its courtrooms and stepping inside can find himself representing any one of a number of different parties to the various forms of proceedings litigated there. The principal forms of proceedings for which the Court has jurisdiction are: (i) direct actions; (ii) appeals; and (iii) references for preliminary rulings, typically pursuant to Article 234 EC.[13]

7       Direct actions are so-called because they are brought directly before the Court by Community institutions or Member States. They arise most frequently where the Commission brings infringement proceedings against a Member State pursuant to Article 226 EC. In those cases, an advocate may be defending a Member State put in the dock by the Commission and brought before the Court to answer for its failure to meet obligations arising under the Treaties. Another type of proceeding arises whereby Member States and Community institutions may directly challenge certain Community measures seeking their annulment pursuant to Article 230 EC.[14] Thus, on rare occasions, counsel may be involved in proceedings where the institutions[15] go head-to-head before the Court.  Even less likely to arise are those cases where one Member State has brought another before the Court pursuant to Article 227 EC. In each of these direct actions, the Court is a “court of judicial review. It is not a ‘trial court’. It is concerned with fact-finding only within very strict limits and the procedures available are not intended to cope with complex disputes of fact or opinion”.[16]

8       Appeals lie as regards questions of law and may only be brought against judgments and orders of the Court of First Instance. As appeal proceedings often concern trade mark or competition matters, it is common to find ‘legal persons’, such as companies, before the Court.[17] ‘Natural persons’, that is, individuals, may also appear as appellants, although their main route to the Court of Justice is by way of a reference for preliminary ruling.

9       References for preliminary ruling have for some years represented about half of the cases on the Court’s docket. National courts may, and sometimes must, refer a question concerning clarification of a point of Community law to the Court, in order to determine whether national legislation complies with that law. A reference may also seek the review of the validity of a Community act. The aim of the procedure is to ensure the effective and uniform application of Community legislation and to prevent divergent interpretations. This is the type of proceeding in which a British advocate is most likely to become involved. He may represent either a private client or the United Kingdom[18] as parties to the proceedings before the court which has sent the reference.[19] In those cases, the advocate will most likely have already played a formative role in shaping the conduct of the litigation before the case arrives at the Registry in Luxembourg, by assisting the national court with framing the questions and drafting the order for reference. In a significant number of other cases, a British advocate may act for the United Kingdom when it submits observations on a reference which has been sent by a court of another Member State.[20] It is by this procedure that a wide variety of questions of law falling within the scope of the Treaties which are matters of immediate pressing concern to individual litigants and also represent points of general public importance to European citizenry at large are answered by the Court on a daily basis.

Litigants and advocates

10     The principal forms of proceedings outlined above dictate that there are certain ‘repeat players’ before the Court, namely the Community institutions, and the Member States. They must be represented by an agent appointed for each case, who may be assisted by an adviser or by a lawyer.

11     As regards the Community institutions, members of their respective internal legal services usually act as their agents before the Court.[21] An agent of the Commission appears in almost every case. At oral hearings for reference proceedings, the Commission provides a reassuring point of constancy, occupying the advocates’ table sited at the far left-hand side of the court room and exercising its conventionally acquired right to make its observations after the other parties have had their turn.

12     The United Kingdom is represented by an agent of the European Division of the Treasury Solicitor’s Department, which conducts all of the government’s litigation in Luxembourg. In most cases, the Treasury Solicitor’s Department is assisted, both at the written and oral stage, by a barrister.[22] On rare occasions and where the constitutional importance of the case so requires, the Attorney General himself may appear. In recent years, Lord Goldsmith QC has appeared in a few significant cases,[23] notably the Article 227 EC action brought by Spain against the United Kingdom by which it alleged that the United Kingdom had infringed Community law by virtue of the arrangements made by it for the inhabitants of Gibraltar to vote in European Parliament elections.[24] The Law Officers of the Crown made a number of appearances in the series of Factortame and related cases. Sir Nicholas Lyell QC, (as he then was) represented the United Kingdom on the application for interim measures requesting an order suspending the application of the nationality requirements in sections 13 and 14 of the Merchant Shipping Act 1988[25] as Solicitor General, and at the hearing of Brasserie du Pêcheur and ex parte Factortame[26] on the issue of the conditions for State liability as Attorney General.

13     Other parties, namely those individuals and legal persons involved in reference and appeal proceedings, are generally represented by the lawyers who acted on their behalf before the national courts. Litigants in person may appear in reference proceedings.

14     Two features of the legal profession in the United Kingdom are particularly noteworthy at this point. The first feature is the existence and nature of an independent bar whose members are free to act for all parties across the board, the ability to do so and to give objective advice being considered a valuable part of the legal service provided.[27] This is the so-called ‘cab rank rule’, and it would be difficult to find someone who exemplifies its effect more than Sir Francis Jacobs himself who, according to the record, has appeared before the Court for the European Parliament,[28] Commission[29] and Council,[30] and not only for the United Kingdom[31] but also for the Grand Duchy of Luxembourg,[32] as well as for individuals[33] and companies.[34] In practice, therefore, this means that Members of the Court of Justice may be, and often are, faced with the same advocate making submissions on behalf of the United Kingdom in one set of proceedings and against it in another.[35] This applies also to members of the Bar of Ireland.[36] While this ability of an advocate to switch horses is not a particularly noteworthy feature of litigation before the English courts, it may be considered more unusual in Luxembourg, where the institutions and other Member States tend to be represented by government agents who are unassisted by external lawyers.[37] It is well-recognised that professional independence brings certain advantages for clients.[38]

15     The second feature is the ability to develop a specialised practice. While lawyers – either a solicitor or barrister – with an exclusively EU law practice are rare, there are many competition, public, employment, intellectual property or tax lawyers whose practices are very heavily Community law based. Although EU law extends far beyond those subjects, familiarity with the principles upon which the Treaties are based and with Community law practice and procedure breeds expertise and inspires confidence in clients. Often practitioners in these core fields are instructed when EU law issues arise in other fields. There is, therefore, considerable truth in the suggestion that the consideration of issues of Community law and, in particular, the making of Article 234 EC references is ‘the province of a small, exclusive coterie of courts serviced by a specialist Bar’.[39]

16     But good advocacy crosses boundaries, and there is no reason to suppose that Community law ought necessarily to be the preserve of a specialist few. As Lord Denning pointed out as long ago as 1974, all lawyers qualified in the law of Member States are Community lawyers, who must all speak and think of Community law and of Community rights, a subject that will be re-visited at Part IV below.

PART II: HOW DOES THE COURT WORK?

How the Court’s working methods affect the role of the advocate

17     The procedures and internal organisation of the Court, which are governed by the Treaties, the Statute of the Court and its Rules of Procedure, as well as by some unwritten rules and conventions, determine its working methods. These working methods in turn affect the role played by an advocate in the Court’s proceedings and the manner in which he carries out his task. Some of the particular and, in some instances, peculiar, ways in which the Court works are examined below.

18     First, as regards the lodging of written pleadings, strict time limits are laid down, which may be extended only in certain proceedings and in exceptional circumstances. The Court has complete control over this aspect of procedure. Unlike in proceedings before the English courts, it is not possible for the parties to agree between themselves to extensions of time for the service of particular documents. A party who ignores or fails to meet court imposed time-limits does so at his own peril.[40]

19     Secondly, extending the subject-matter of pleadings beyond the original scope may be difficult and, in some instances, impossible. As regards references, Sir David Edward warns that since the Rules of Procedure require notice of the reference to be published in the Official Journal and the text to be sent to the Member States and institutions, ‘the Court is reluctant to entertain new points which go beyond the scope of what has been notified and even more reluctant to hear oral argument on points that are not at least foreshadowed in the written pleadings’.[41]

20     Thirdly, once registered, a case will be allocated by the President to a chamber of judges and to a Judge Rapporteur. The Judge Rapporteur is responsible for the conduct of the case. This responsibility includes drafting a report summarising the issues of fact and law arising and the arguments of the parties, which is called a Report for the Hearing, and a purely internal report for presentation to the Members at their weekly administrative meeting, which is called a Preliminary Report. The Judge Rapporteur also has carriage of draft judgments of cases assigned to him. Furthermore, convincing a few dissenting voices is not enough, as the Court of Justice delivers one collegiate judgment, and, in questions of law coming before it, is a court of last resort. The successful advocate must therefore rally the Judge Rapporteur, or another tenacious member of the formation, as well as a majority of the bench, to his side; otherwise, his client’s cause is doomed.

21     There is no overt specialisation of particular chambers; cases are allocated to chambers and Judges Rapporteurs on a fairly random basis, and a matter could be heard by any formation. It is therefore not unusual for the judge from a particular Member State to be absent from a formation sitting either in a reference sent from a court in his Member State or in an infringement action against his Member State. In those circumstances, there may be an additional responsibility on an advocate to provide details on points of substantive law or procedure pertaining to a national legal system which are necessary for a full understanding of the case. Sir David Edward has confirmed that, as regards references -

[…] although the Court is in theory concerned only with questions of law, it frequently has to undertake what amounts to a process of preliminary ‘fact-finding’ on points of pure fact or aspects of national law or some of both. The member of the Court belonging to the country from which the reference comes from may be able to help, as may the Court’s Research and Documentation Division. But the Court has to rely heavily on the parties, and particularly on the Commission, to fill in the factual and legal background.[42]

22     Fourthly, the case will also be allocated an Advocate General who has responsibility for it as it moves through the procedural stages. Provided that the matter is not dealt with by reasoned order or otherwise without an Opinion,[43] it is the duty of the Advocate General to assist the Court, by acting with complete impartiality and independence to provide reasoned submissions on cases. The Advocate General may make counsel’s role either more easy or more difficult. An Advocate General’s Opinion may accept and improve upon certain of counsel’s arguments, and adopt a conclusion finding in favour of the party he represents. It may reject counsel’s arguments either in favour of those submitted by other parties or on an entirely new basis put forward by an Advocate General himself. Even the most cursory glance at the European Court Reports demonstrates that a fuller account of counsel’s submissions is recorded in Opinions than in judgments; that is the case now more than ever, since the Court has, in recent years, significantly reduced the proportion of its judgments that sets out the parties’ arguments. Equally, Opinions discuss in more detail comparative principles in national legal systems, particularly when they fall to be considered in cases of constitutional importance and often provide more explicit reasoning for the derivation of a particular principle of Community law from national principles.[44] In the absence of dissenting opinions from the Court, an Advocate General’s Opinion which was not followed may provide a source of inspiration to advocates wanting to push the boundaries in a particular field of law.

23     Fifthly, the Court has a unique language régime, which is shaped by two principal factors. In the first place, a case has its own language of procedure, generally the language chosen by the applicant. Exceptionally the Court may, on reasoned request, permit an advocate for a party to address the Court in a language other than the language of the case. Member States plead in one of their official languages, and consequently many official languages of the Community are used daily. In the second place, the Court’s internal working language is French, which is used to draft the reports prepared by the Judge Rapporteur and is also used for the process of judicial deliberation among the Members. This language régime means that the written submissions of a British advocate will be translated, certainly into French, and possibly also into other languages.[45] Oral submissions at the hearing will be interpreted for the benefit of the other parties before the Court and the Members.

24     Finally, the workings of the Court are the product of an on-going process of the mixing of a number of legal families, systems and traditions, given that ‘the members and staff of the Court, as well as those who plead before it, have been bred in a variety of legal traditions spanning the historic divide between the so-called Civil Law and Common Law systems’.[46] Allowances may have to be made to accommodate such differences, and pleaded cases adjusted accordingly. As Judge Schiemann put it, ‘What is a self-evident truth to a French lawyer is frequently not a self-evident truth to an English lawyer, and vice versa.’[47]

The written and oral procedure

25     It seems obvious, but is worth repeating that, the procedure before the Court of Justice comprises two parts, written and oral,[48] which is then followed by a period of deliberation before judgment is handed down. The Court’s working methods and its emphasis on comprehensive written pleadings means that, at the written stage, effective advocacy is equally, if not more, important than it is at the oral stage.

26     The written procedure consists of the communication to the parties and to the institutions of the Communities whose decisions are in dispute, of applications, statements of case, defences and observations, and of replies, if any, as well as of all papers and documents in support or of certified copies of them.[49] Pleadings are very different from the pithy formal style of those drafted by counsel from the British Isles and, by contrast, “are expected to contain a full and authoritative statement of the relevant arguments of law and (where applicable) of fact.” In particular, in reference proceedings, their purpose is “to suggest the answers which the Court should give to the questions referred to it, and to set out succinctly, but completely the reasoning on which those answers are based”.[50]

27     A number of characteristics of the Court’s working methods identified in at 17 - 24 above require counsel to take particular care when drafting pleadings.[51] First, the need to translate documents. A lovingly crafted pleading over which the draftsman has laboured for hours in order to pin down that elusive phrase or the perfect bon mot may not survive the translation process: ‘Counsel should always keep in mind, when drafting observations, that the pleadings will not necessarily be read by the judges in their original form or their original language […] treasured nuances – especially of legal language – may be lost or obscured.’[52] Pleadings which are not clearly structured or sign-posted may also fail to get the message across so effectively once translated. Documents indispensable to a proper understanding of the case must be annexed to the pleadings; however, given that annexes are not, as a rule, translated, essential passages of annexes ought to be included in the body of the pleading to ensure translation.[53] Secondly, the preparation of the Report for the Hearing and the significance of that report as a basis for the proceedings means that submissions ought to be capable of summary and easy presentation to the Members.[54] Thirdly, the need to address principles which may be peculiar to a national legal system and which are not necessarily familiar, at least in a certain form or by or under a particular label, to all parties, requires a draftsman to take particular care when explaining legal provisions or principles which may be obvious to him but whose relevance and importance are not as clear to those who have qualified in another jurisdiction.[55] The first reference from the United Kingdom courts in the Factortame cases,[56] which requested the Court to consider the principle in English law that there was no right to obtain injunctions against the Crown, is one such example. Another is that of Courage and Crehan,[57] where the Court of Appeal requested that the Court of Justice consider the compatibility with Community law of the English legal principle prohibiting a party to an illegal agreement to claim damages from the other party.

28     The Court itself makes a number of helpful suggestions which ought to be borne in mind when drafting:[58] the case is examined on the basis of the pleadings, and in order to facilitate that examination, documents must be structured and concise and must avoid repetition; pleadings will, as a general rule, be translated, and in order to facilitate translation and to make it as accurate as possible sentences should be simple in structure and vocabulary should be simple and precise; and since the time needed for translation and for examination of the case-file is proportionate to the length of the pleadings lodged, the shorter the pleadings, the swifter the disposal of the case.[59] In other words ‘brevity, simplicity and clarity’.[60]

29     It has been observed that a persuasive and concise written argument not only has the effect of getting a party’s case off on the right track and getting into the mind of the judge, but may also create a point of reference for the Court as regards submissions made by the same party in future proceedings. In the words of one former senior judge -

“What has become more noticeable in recent years is the very high quality of British written pleadings, particularly those submitted by the United Kingdom government. More than one member of the Court has remarked that the quickest way to find out what a case is really about is to read the submissions of the UK government.”[61]

30     Written pleadings form the bulk of a case file and their examination constitutes a large proportion of the time spent by a Judge or Advocate General’s chambers when considering the merits of a case. Unlike in national proceedings, the Court’s rules do not allow for written skeleton arguments to be added to a file.[62] Neither is it the case that written submissions are generally accepted by the Court following the hearing, either before or after the Advocate General has presented his Opinion. Put simply, the importance of the written stage of proceedings cannot be over-stated.[63]

31     And yet, as with most litigation, it is the oral stage of proceedings which tends to capture the imagination. In all cases the purpose of the oral procedure and counsel’s role in it is clear. He must recall, if necessary, by way of a highly condensed summary, the positions taken by the parties, with emphasis on the essential submissions in support of which written argument has been presented. He may submit any new arguments prompted by recent events occurring after the close of the written procedure which, for that reason, could not be set out in the pleadings. He may be required to explain and expound the more complex points and those which are more difficult to grasp, and to highlight the most important points. Finally, he may be called upon to answer any questions put by the Court. The Court also observes that in references, ‘the oral procedure enables lawyers to reply briefly to the main arguments set out in other written observations. The oral procedure must, however, be seen as supplementing the written procedure and should involve no repetition of what has already been stated in writing’.[64]

32     The Court of Justice is a busy administrator of justice. This is reflected by the brief periods of time allotted to parties to make oral submissions and in the highly disciplined approach that the Court demands of those making them. As a general rule, the period initially allowed to each main party is limited to a maximum of 30 minutes, or 15 minutes before Chambers.[65] Interveners are allowed a maximum of 15 minutes.[66] A party’s counsel may optimistically indicate — either by letter to the Registry or in the private meeting with the Members of the Court before the hearing — that he intends to be briefer than the maximum allowable period. Where he does so, he is estopped from changing his mind.[67]

33     There is an on-going debate on the usefulness of the oral hearing. The inherent and inherited limitations are well-rehearsed.[68] An oral hearing which adds nothing to the case as set out in the written pleadings is clearly not worth the delay which it adds to the time taken for judgment to be handed down. However, in most proceedings, the oral hearing will be the final occasion on which to address those issues not dealt with in written submissions and to answer points made by other parties. This may be particularly important in references, where the exchange of observations is simultaneous and there is no further opportunity to lodge written pleadings in reply to the observations of other parties. A point which is often made as regards the Advocate General’s Opinion, but which may also apply to the hearing, is that it is only at that stage that the significance of certain issues will be clear to the Members of the Court.[69]

34     As with any proceedings before any court, it is clear that in certain cases effective oral advocacy can influence the outcome. In those circumstances, the advocate plays a vital role. It is also clear that it is the art of knowing what not to say as much as the art of knowing what to say that counts.[70] This is particularly so in Luxembourg, where timing is tight and where a number of parties may be making similar or identical submissions. The United Kingdom, which is the last of the Member States to appear at the oral hearing, has, and often takes, the opportunity to be more selective and focused in its submissions, avoiding the repetition of points which have been made clearly by other parties. The Notes for the Guidance of Counsel give general encouragement to parties to adopt such an approach. In some cases, parties have coordinated submissions successfully.[71] This practice continues to find favour with the Court,[72] although it does have its limitations.

35     As regards the structure, content and delivery of submissions, there are a few golden rules. It has been remarked that if seeking guidance on the structure of oral submissions, ‘the tradition of the Bars of the common law countries may serve as a model’.[73] One experienced member of the Luxembourg bench advises that it ‘is best to begin the speech by indicating what points it is intended to cover and to make clear, as the speech proceeds, when counsel is moving from one point to another. This will help both the interpreters and the judges. It is not necessary to rehearse facts which are set out in the Report for the Hearing. But it is useful to draw attention, very briefly, to the salient features of the case from the client’s point of view so as to put the arguments in context’.[74]

36     When tailoring the content of submissions, if particular issues or questions have been raised by the Court either in writing or immediately before the hearing, this will give a steer as to what points counsel ought to dwell on in his speech. Oral submissions need to be carefully balanced to take account of the fact that not all members of the Court will be equally familiar with the issues in the case. At that stage, the Advocate General is likely to have formed a clear view of the case, and may even have a draft Opinion with him at the oral hearing. The Judge Rapporteur and other members who have deliberated similar cases may also have a view as to the direction that a judgment may take. Others, by contrast, may have had less opportunity to review the pleadings and may be less familiar with the legal principles raised; in those circumstances, experienced advocates have suggested that these members ‘may be more receptive to broader submissions on the merits’.[75]

37     The practice of delivering prepared speeches, which is common to many advocates appearing before the Court of Justice, is rather different from the style of delivery and frequent interruptions to counsel’s arguments by the bench which is commonplace in the United Kingdom courts.  On the one hand, it is quite understandable that clients — particularly Member States — are keen to keep a close eye on what counsel will say. On the other hand, reading from a text is not a particularly valuable way of communicating with the bench and does not leave much room for spontaneity.  As ever, there is a happy medium, which is reckoned to produce a more successful outcome -

“[To read a speech] is much less likely to be effective than to speak from notes: the lawyer appearing before the European Court is still there as an advocate and a few strong submissions will catch the attention of the Court, attract the waverers, and maybe shake those who have already formed their preliminary view to the contrary on the basis of the pleadings.”[76]

38     In any event, there may be limits to the impact of the submissions of even the most silver-tongued advocates. Unlike their brethren at the Court of First Instance, judges at the Court of Justice do not, as a matter of course, deliberate over the outcome of the case immediately following the oral hearing, but rather wait for the circulation of a draft judgment by the Judge Rapporteur to discuss the merits of the case either on paper or at a deliberation of the chamber or both. The presentation of the Opinion of the Advocate General marking the close of the oral procedure, the preparation and proofing of a draft judgment, and the pressures of work at the Court requiring judges to sit in or consider a substantial number of cases means that it could be some time between the oral hearing and the deliberation before a judge is required to re-open the file. In that intervening period, he will have listened to lawyers pleading in many other cases. And yet, as the reports show, fragments of oral pleadings have, in some very occasional cases, proven sufficiently memorable to form an essential part of the Court’s reasoning and to warrant recording in the judgment.[77]

PART III: THE IMPACT OF ADVOCACY AND ADVOCATES ON THE COURT’S CASE LAW

39     Curia novit iura.[78] Bearing this in mind, it would be unwise to give undue weight to any suggestion that the outcome of cases before the Court of Justice may be significantly affected by the work of an advocate. Certainly, it is not easy to discern to what extent an advocate may have got into the mind of the Court, and to draw any meaningful conclusions on whether he was responsible for a successful outcome for his client and whether he may have left an impression on its jurisprudence.[79] However, the fact that an advocate, the principles of the legal system upon which he relies to found his arguments and the part played by advocacy itself in legal proceedings have, in some instances, influenced the course of litigation at the Court has been recognised by a number of commentators. Here a distinction can be made between the effect of advocacy generally on the Court’s procedure and its effect specifically on the substance of its case law.

40     Considering the Court’s procedure, first, the common law style of advocacy is acknowledged to have left a mark. Writing generally on the influence of English law on Community law, Sir Francis Jacobs made the following remark as regards the impression left by English counsel on the Court of Justice’s proceedings -

“Even more pervasive has been the effect of the European Court’s encounter with the English practitioner and with the English legal tradition: the English Bar has unquestionably had an impact on the character of the proceedings in the Court of Justice and given somewhat greater significance to the oral stage of the proceedings.”[80]

41     Sir Francis is not the only former member of the Court to hold this view. The late judge Mancini has also credited common law lawyers — in particular, the British and Irish judges — with having altered the character of the oral hearing: he referred to the advent of the ‘two insular judges’, and how their colleagues ‘loved their refusal to listlessly accept the kind of assistance which the lawyers were prepared to give them and started to act in similar fashion. As a result, interruptions are now more frequent and a question period has become a permanent feature of the hearings, much to their advantage in terms of usefulness and liveliness.’[81] Clearly these were welcome changes, although, as mentioned above, the utility of a hearing at the Court of Justice still suffers by comparison with that of one before the High Court.

42     Secondly, there are other ways in which the English legal system has affected that of the European Community, such as influencing the Court’s approach to the role of precedent and to the overruling of its own previous judgments. Professor Arnull has suggested that since the Court’s encounter with the common law tradition it has been more explicit in its handling of its previous case law.[82]  Certainly, while the doctrine of precedent may not apply in the same way as in the English legal system, that may not necessarily be the same thing as saying that the Court is not – or does not consider itself to be – bound by its own decisions.[83] Others have feted the ‘significant contribution’ of the ‘refined case law technique of the common law, which caused the Court to become more, as it were, precedent-conscious and therefore more skilful in distinguishing cases or in correcting itself when it felt that a case had been wrongly decided.’[84] Mancini and Keeling refer to the fact that in the decades following the 1970s, the practice of citing previous judgments became more commonplace and there is evidence of an attempt to build up a body of jurisprudence. They also note that while ‘opinions may differ as to whether the common law influence was responsible for that change of approach, it is perhaps not without significance that when in 1990 the Court finally took the bold step of expressly overruling a previous judgment it did so at the instigation of a British advocate general.’[85]

43     Considering the substance of the Court’s case law, while the role of the advocate is designed to afford him the opportunity to exercise his talents of persuasion so that the bench may reach one conclusion over another, it would be unwise to overstate his case. There are, however, some instances where it can be said that an advocate has left indelible footprints in the sands of Community law. One such example is the case of Barber.[86] In those proceedings, the Court was required to rule on a number of questions regarding equal pay and equal treatment in the context of the right of a male employee to an early retirement pension on being made compulsorily redundant. The case is a frequently quoted example of the Court limiting the temporal effects of its judgment. Of particular note is the fact that the Court did so in response to the submissions of certain parties, namely the Commission and the United Kingdom.  In the judgment, the Court made the following remarks -

“In its written and oral observations, the Commission has referred to the possibility for the Court of restricting the effect of this judgment ratione temporis in the event of the concept of pay, for the purposes of the second paragraph of Article 119 of the Treaty […]. For its part the United Kingdom emphasized at the hearing the serious financial consequences of such an interpretation of Article 119 . The number of workers affiliated to contracted-out schemes is very large in the United Kingdom and the schemes in question frequently derogate from the principle of equality between men and women, in particular by providing for different pensionable ages.”[87]

44     Another example is, as has been suggested above, where a ‘striking or unusual phrase in written observations will sometimes find its way into the Report for the Hearing, the Opinion of the Advocate General or even the Judgment.’[88] David Anderson QC and Marie Demetriou refer to the phrase ‘dumping fence’, coined by the barrister assisting the Commission in NMB v Commission[89] and ‘introduced into the standard terminology of anti-dumping law when it was taken up by the Court in its judgment.’[90]

45     In certain cases, the influence of a particular line of argument will be clear from the result reached by the Court. This is evident from the judgment in the seminal case, particularly for lawyers, of AM & S Europe v Commission.[91] In that case, the applicant, supported by the United Kingdom and the Consultative Committee of the Bars and Law Societies of the European Community (CCBE), argued successfully in favour of the protection of the confidentiality of written communications between lawyer and client in the context of requests by the Commission to produce documents during an investigation pursuant to Article 14(3) of Regulation No 17. While each of those parties pursued the same result, it can be detected from the Report for the Hearing (and is a matter of some legal folklore) that the CCBE played a formative role.

46     The impact made by the United Kingdom on court judgments was measured by Sir David Edward over a period of time in 1996. Sir David examined judgments rendered in 70 cases, [92] of which the United Kingdom had intervened in 23.[93] He recorded that ‘in 11 of the cases in which the United Kingdom intervened, the arguments presented were wholly successful, in the sense that the Court’s judgment coincided with the government’s submissions both as to the result and as to the reasoning. In 3 cases, the judgment coincided with the government’s submissions as to the proper result, but arrived at that result by different reasoning. In 5 cases, the United Kingdom was successful on some points but not on others’ and he concluded that the ‘success rate of the United Kingdom is, by any standards, very high.’ This provides reason to suppose, therefore, that the practice of intervening may influence the outcome of cases and that a presence before the Court ought to continue to be encouraged.

PART IV: THE ROLE OF EUROPEAN ADVOCATES IN NATIONAL COURTS

47     Appearing before the Court of Justice is, unquestionably, one of the high points of a European lawyer’s career. However, it is more likely to be the case that a Euro lawyer will have to consider issues of the interpretation and application of EU law in national proceedings. and will find himself addressing a judge in London, rather than in Luxembourg. Just as before the Court of Justice, EU issues in national proceedings arise in diverse fields; they can be raised in a wide range of courts and tribunals.

48     Many areas of public and administrative law are affected by EU law. Often, the legality of domestic acts and measures falls to be tested by judicial review by reference to whether the act or measure in question is compliant with EU law. As an experienced public law practitioner has put it, ‘a breach of EC law is, therefore, an additional — and potentially very powerful — basis in an increasing number of cases for seeking relief in domestic judicial review proceedings.’[94] In employment cases before the tribunals and appellate courts, advocates have to interpret national legislation in the light of Directives, and are frequently required to consider provisions previously not the subject of judicial determination either by the national courts or the Court of Justice. On a daily basis, the Competition Appeal Tribunal, whose procedure is modelled closely on that of the Court of First Instance, applies competition law as developed by the Court of Justice. Before these and other national courts, in addition to relying upon the Treaties and EU secondary legislation, lawyers can draw on the general principles of Community law, such as proportionality, equal treatment, legitimate expectations and fundamental rights. Although there is a close connection between these principles and corresponding principles of English law, important distinctions remain and, in some cases, the notions have different substantive contents in EU as compared to domestic law. Lawyers may also rely on different interpretative techniques.  In addition UK Courts are becoming the preferred route for challenging EU legislation, in cases in which the rules of the court would make a direct challenge inadmissible.[95]

49     The Chancery Division is also likely to be faced with advocates pleading Euro points and citing both the ECRs and the EuLRs, not least because, as a general rule, claims involving points of competition law must be commenced there. The Patents Court, in particular, has always been a fertile ground for lawyers sowing the seeds of novel pleas founded on the Treaties. It should come as no surprise that Sir Francis, before making the significant contribution to the development of the Court of Justice’s jurisprudence on intellectual property for which he is widely acknowledged, was at the vanguard, appearing in such seminal cases as EMI v CBS.[96]

50     Lord Denning was right when he spoke of the giving effect to Community  law requiring a ‘great effort for the lawyers’.[97] This effort is not only for the lawyers, but also for the judges. Evidently, such efforts have been, and continue to be, made. As David Anderson QC commented -

“The number of references has never been very large, however, and increasingly the English courts have been showing the expertise and confidence to decide points of Community law for themselves. This is generally considered to be a positive tendency. It shortens litigation, and accords with calls from within the ECJ itself for “self-restraint” from national courts as regards references. It has also resulted in a number of statements by English courts of their own opinions, informed by the case-law of the ECJ, as to the future development on the general principles of Community law.”[98]

51     This is how a developed system of Community law ought to work. The extensive case law of the Court provides sufficient detail to enable national courts and tribunals, at least at first instance, to decide many cases for themselves with a sufficient degree of confidence and without the need for a reference, a tendency making itself felt in the various jurisdictions in the United Kingdom and also in Ireland. Since 1997, the most important judgments involving issues of Community law decided by the national courts or tribunals of England and Wales, Scotland, Northern Ireland and Ireland have been reported in the European Law Reports, enabling lawyers, judges and others to follow developments in these national jurisdictions; the breadth and depth of the decisions collected in the EuLRs is testament to the importance of judgments on Community law at the national level.[99]

52     Advocates do continue to have the opportunity to represent both private parties and the United Kingdom on references and direct actions before the Court of Justice. However, with the emphasis on national courts as fully empowered enforcers of Community law being stronger than ever,[100] all national lawyers ought, to a certain degree, also to consider themselves European lawyers. They will find that there are more of them than they might have thought. The General Council of the Bar provides support through the European Circuit of the Bar of England and Wales. Inaugurated in March 2001, it is the first Circuit to be founded in several hundred years, and, it has been said, marked a ‘major evolution for the Bar’.[101] Associations such as the Bar European Group[102] and the United Kingdom Association of European Lawyers, in which Sir Francis has been heavily involved, as well as the Law Society European Group, provide opportunities for lawyers to debate current issues and exchange professional experiences with their colleagues in their own and in other Member States.

Conclusion

53     Litigating in Luxembourg is a challenge. Carrying out his task before the Court can require the advocate to counter the positions of parties whose arguments are based on principles drawn from unfamiliar legal systems. It necessitates the translation and interpretation of his argument at various stages in proceedings. It requires adhering to strictly observed limits regarding both the points in time at which he can put his client’s case before the court and the length of time he has to make oral submissions.

54     But, in many ways, the real challenge for the advocate is, to borrow a phrase of David Pannick QC, ‘to find a point of law where none had previously been known to exist’. Despite the fact that now almost 35 years after the Treaty of Rome was first referred to in an English court and English advocates pleaded a case in Luxembourg, previously unknown points of law are still to be found in the application of the Treaties, legislation and general principles of EU law. The EU legal system, with its ever expanding jurisdiction, continues to represent a new dimension for the legal profession. By assisting his client to enforce existing rights or to unearth new ones, the advocate, through his role in the litigation process, is privileged to play a part.[103]

David Vaughan CBE QC has been a judge of the Courts of Appeal of Jersey and of Guernsey since 2000, and is a barrister practising at Brick Court Chambers, London.  Margaret Gray BL is a barrister practising at Brick Court Chambers, London and The Law Library, Dublin.  She was a legal secretary to Judges Macken and O’Caoimh at the Court of Justice of the European Communities from 2002 to 2005.

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