ORAL HEARINGS BEFORE
THE EUROPEAN COURT OF JUSTICE
Allan Rosas*
ABSTRACT
Th is article focuses on the organization of oral hearings at the European Court of Justice. It deals with both the decision to hold or not to hold an oral hearing, as a complement to the written part of the procedure, and the actual conduct of such hearings. Th is is done by drawing on the modifi cations introduced by the recast of the Rules of Procedure of the Court of Justice undertaken in 2012 and the Practice Directions to Parties adopted by the Court in 2013 as well as actual practice following the entry into force of the new Rules of Procedure. Th e article also draws upon the experience of the present author as a judge at the Court since 2002 and chairman of the Rules of Procedure Committee of the Court since 2009. What role does the oral hearing play in the overall handling of cases and what have been the most recent developments in this regard? Some attention will also be paid to fundamental rights concerns, notably the right to a fair and public hearing and its relevance for the organization and conduct of hearings. Th e article will not address the broader notion of ‘oral part of the procedure’ to the extent that it covers the Opinion of the Advocate General as well. Nor shall I consider in any detail the organization of oral hearings by the other Union Courts, that is, the General Court and the Civil Service Tribunal, where due to the nature of proceedings the oral hearing plays an even more important part than before the Court of Justice.
Keywords: oral hearing; Practice Directions to Parties; right to a fair and public hearing; Rules of Procedure of the European Court of Justice
* Dr.Jur., Dr.Jur. h.c., Dr.Sc.Pol. h.c.; Judge at the European Court of Justice, Senior Fellow of the University of Turku; Visiting Professor, College of Europe and University of Helsinki; former Armfelt Professor of Law, Åbo Akademi University and former Principal Legal Adviser and Deputy Director-General of the Legal Service of the European Commission.
§1. INTRODUCTION
Unlike the situation in many national supreme courts, oral hearings play an important role in the proceedings before the Court of Justice of the European Union, consisting of the Court of Justice, the General Court and, as a specialized tribunal, the European Union Civil Service Tribunal. Th is is particularly the case with respect to the General Court and the Civil Service Tribunal, which deal with direct actions brought by private parties and have jurisdiction to decide on questions of both law and fact, but oral hearings are still frequent also as far as the Court of Justice is concerned.
A complete recast of the Rules of Procedure of the Court of Justice, which entered into force on 1 November 2012, aims at improving the structure, language and usability of the Rules of Procedures as well as to simplify the procedures in order to render the Court more effi cient and ‘productive’.1 In the context of the latter objective, the new
Rules provide for an increased margin of appreciation for the Court to decide whether an oral hearing is held or not. Th ere are still good reasons, however, why an oral hearing will oft en be considered necessary before the Court of Justice as well. In infringement proceedings, brought by the Commission (or exceptionally a Member State) against a Member State for alleged failure to comply with EU law,2 the Court is called upon
not only to rule on a point of law but also to assess the factual situation. In addition, even when the Court’s jurisdiction is limited to questions of law (in particular, when acting on appeal), there may be a need to further clarify the applicable legal rules and the arguments of the parties.
More importantly still, the Court’s foremost task is to render preliminary rulings at the request of the courts of the Member States. For instance, in 2013 the Court of Justice was seized by 450 new requests for preliminary rulings, out of a total number of 699 new cases brought before the Court.3 In preliminary ruling proceedings, there is in
principle only one round of written observations and the oral hearing provides the fi rst and only opportunity for the interested persons who have the right to submit written observations4 to comment upon the written observations made by others.
1 Rules of Procedure of the Court of Justice, [2012] OJ L 265/1. See generally M.-A. Godissart, ‘La refonte
du règlement de procédure de la Cour de justice’, 48 Cahiers de droit européen 3 (2012), p. 603–669.
2 See Articles 258–260 of the Treaty on the Functioning of the European Union (TFEU).
3 Court of Justice of the European Union, Annual Report 2013 (Publications Offi ce of the European
Union, 2014), p. 84. According to Article 260(3) TFEU, some preliminary ruling cases (‘in specifi c areas laid down by the Statute’) could be transferred from the Court of Justice to the General Court. However, the Court of Justice does not envisage any such transfer at least for the time being, given that the docket of the General Court is far heavier (at the end of September 2014, a total number of more than 1500 cases were pending before the General Court as compared to the around 800 cases (counting joined cases not as one case but considered individually) pending before the Court of Justice).
4 Th e term ‘interested person’ refers to the parties to main proceedings as well as the Member States and
institutions which, pursuant to Article 23 of the Statute of the Court (Protocol No 3 on the Statute of the Court of Justice of the European Union, annexed to the Treaty on European Union (TEU) and the
Th e present contribution focuses on the organization of oral hearings before the Court of Justice. As to the question of oral hearings before the General Court and the Civil Service Tribunal, it suffi ces to note that the organization of oral hearings is a rule which has few exceptions. Conversely, the current draft for new Rules of Procedure of the General Court, considered at the time of writing by the EU Council for eventual approval, provides for a modest increase in the margin of appreciation of that Court as to whether a hearing should be organized or not.5 With respect to the Court of Justice, I
shall discuss both the question as to whether oral hearings should be organized or not, including the impact of the 2012 Rules of Procedure for the organization of oral hearings and an assessment as to whether practice has changed as compared to the situation before, as well as the way oral hearings are currently being planned and actually conducted. At the end, an eff ort is made to assess the role and importance of oral hearings in the judicial activities of the Court of Justice as a whole. It should be emphasized that the focus will be on the oral hearing stricto sensu rather than the broader notion of ‘oral part of the procedure’, which encompasses the Opinion of the Advocate General, where applicable.6
§2. WHEN SHOULD AN ORAL HEARING BE HELD?
A look at the opening sentence of Article 20 of the Statute of the Court7 could give
the impression that oral hearings are always obligatory, irrespective of the applicable procedure or the requests of the parties: ‘[t]he procedure before the Court of Justice shall consist of two parts: written and oral’. Th e provision has not been interpreted in this way, however, and already the Rules of Procedure which preceded the 2012 Rules provided that an oral hearing was not necessary if no request to that eff ect had been
TFEU), are authorized to submit observations in the context of a reference for a preliminary ruling, see Article 1(2)(c) of the Rules of Procedure of the Court.
5 According to Article 106(3) of the Draft Rules of Procedure of the General Court, submitted by the
General Court for the approval of the Council, in agreement with the Court of Justice, on 14 March 2014, the Court may decide to rule on an action without an oral part of the procedure only if there is no request for a hearing. Th is corresponds to the system in force. Th e increased fl exibility would come mainly in draft Article 207(2), which provides for the possibility to proceed without an oral part even if there has been a request for a hearing but only with respect to appeal proceedings (appeals from the Civil Service Tribunal).
6 See Article 20(1) and (4) of the Statute of the Court. According to Article 20(4), the oral procedure shall
consist of not only a hearing but also the submissions of the Advocate General. Under Article 20(5), the Court may, however, decide that a case which does not raise new points of law be determined without a submission of the Advocate General. As will be elaborated below, the oral hearing may be omitted on certain conditions as well. If there is neither an Opinion of an Advocate General nor an oral hearing, there is no ‘oral part of the procedure’.
7 See Protocol No 3 on the Statute of the Court of Justice of the European Union, annexed to the Treaty
put forward by the parties or interested persons.8 Th ose Rules of Procedure made no
mention of oral hearings in cases where the Court was called upon to give an Opinion on the compatibility of an envisaged international agreement with Union law, and in practice, a hearing was not always organized in such cases.9 Article 198 of the new Rules
of Procedure leave this to the discretion of the Court; according to this provision, the Court ‘may decide that the procedure before it shall also include a hearing’.
More importantly, under the old Rules of Procedure, an oral hearing was normally not organized if the Court rendered a reasoned order instead of a judgment. Th is situation continues under the new Rules of Procedures. Article 53(2) provides that the Court, where ‘it is clear’ that it has no jurisdiction or where a request or an application ‘is manifestly inadmissible’, may ‘at any time’ decide to give a decision by reasoned order ‘without taking further steps in the proceedings’. And more generally, Article 87(j) of the Rules of Procedure on the content of a judgment provides that a judgment shall contain, ’where applicable, the date of the hearing’, while Article 89 of the Rules of Procedure on the content of an order, including some special requirements for a reasoned order, does not refer to hearings. Th at said, it cannot be excluded that a hearing could be exceptionally organized under some special procedures which may ultimately lead to an order, notably in the context of the application of interim measures.10
With the new Rules of Procedure, the margin of appreciation of the Court has been increased. Article 76 of the Rules of Procedure opens up with a clause in paragraph 1 providing that the parties and other interested persons may submit (within three weeks of having been informed of the closing of the written part of the procedure) ‘reasoned requests’ for a hearing. Paragraph 2 nevertheless authorizes the Court not to hold a hearing ‘if it considers, on reading the written pleadings or observations lodged during the written part of the procedure, that it has suffi cient information to give a ruling’. While this text makes no explicit mention of the request for a preliminary ruling submitted by a national court, it is clear that in preliminary ruling proceedings this request constitutes highly relevant material, not only in general but also with a view to determining whether an oral hearing is called for or not.11
8 Rules of Procedure of the Court of Justice established on 19 June 1991, as amended most recently on
24 May 2011, [2011] OJ L 161/17.
9 S. Adams, La procédure d’avis devant la Cour de justice de l’Union européenne (Bruylant, 2011), p. 387–
391, mentions that out of 16 requests for an Opinion considered, 10 have given rise to an oral hearing.
10 According to Article 160(5) of the Rules of Procedure, an application to suspend the operation of any
measure by an institution, and an application for the adoption of another interim measure, shall be served on the opposite party which will be accorded a short time-limit within which that party ‘may submit written or oral observations’. See also Article 151(4) of the Rules of Procedure, which provides that aft er an application for a decision on a preliminary objection or issue not going to the substance of a case (normally questions of admissibility) and aft er the written submissions of the opposite party, ‘the remainder of the proceedings on the application shall be oral’, ‘unless the Court decides otherwise’.
11 Th e importance of the request for a preliminary ruling has been highlighted in the new Rules of
Procedure, which, inter alia, contain a provision (Article 94 of the new Rules of Procedure) setting out some minimum requirements for such a request. Manifest disregard for those requirements may
Th e margin of appreciation which the Court enjoys under Article 76(2) of the Rules of Procedure does not seem to apply to the expedited procedure which the Court can decide to apply in both preliminary ruling proceedings and concerning direct actions12
Nor does it apply to the urgent procedure which the Court can exceptionally decide to apply in the context of requests for preliminary rulings relating to the Area of Freedom, Security and Justice, covered by Articles 67 to 89 TFEU (Title V of Part Th ree of the Treaty).13 As the written part of the expedited procedure is simplifi ed, and the urgent
procedure, as far as Member States are concerned, is limited to the Member State from which the reference is made, it has been considered appropriate to complement the written part with an oral part. And as far as the urgent procedure is concerned, Article 23a of the Statute of the Court and Article 111 of the Rules of Procedure even enable the Court, ‘in cases of extreme urgency’, to dispense with the written part of the procedure.14 Th is ‘super-urgent’ procedure has not been applied so far whereas an oral
hearing is always held and in actual practice, it in fact plays a particularly important part of the urgent procedure.15
A more general limitation on the margin of discretion of the Court is contained in Article 76(3) of the Rules of Procedure. According to this provision, the margin of appreciation provided by Article 76(2) of the Rules of Procedure does not apply where a reasoned request for a hearing has been submitted by an interested person who according to Article 23 of the Statute of the Court has a right to submit written observations but who has not made use of this right and wishes to put forward its views at an oral hearing. Th is right to demand a hearing for interested persons who have not participated in the written part of the procedure was inserted into Article 76 of the Rules of Procedure as a compromise between the position of the Court of Justice itself, which had proposed a
prompt the Court to declare the request inadmissible or to fi nd that its own competence cannot be established. See, for instance, Case C-206/13 Siragusa, Judgment of 6 March 2014, not yet reported,
para. 19 and 35 (where the Court held that, because of Article 51 of the EU Charter of Fundamental Rights, it was not competent to rule on a substantive provision of the Charter, citing also Article 94 of the Rules of Procedure and the fact that the national court had not suffi ciently explained the necessary link between the case before it and Union law). See also the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, [2012] OJ C 338/1, para. 20–22; A. Rosas, ‘Th e Content of Requests for Preliminary Rulings to the European Court of Justice and to the EFTA Court: What Are the Minimum Requirements?’, in EFTA Court (ed.), Th e EEA and the EFTA Court: Decentred Integration (Hart Publishing, 2014), forthcoming.
12 See Articles 105(2) and 135 of the Rules of Procedure of the Court.
13 See Article 23a of the Statute of the Court and Articles 107 to 114 of the Rules of Procedure. See also
A. Rosas, ‘Justice in Haste, Justice Denied? Th e European Court of Justice and the Area of Freedom, Security and Justice’, 11 Cambridge Yearbook of European Legal Studies (2008–2009), p. 1–13.
14 Th e decision will be taken by the Chamber which the Court, by virtue of Article 108 of the Rules of
Procedure, has designated to deal with requests by the referring national court or by the President of the Court to apply the urgent procedure.
15 Observation by the present author, who was the President of the Chamber which was the fi rst to be
designated by the Court (in 2008) to deal with references for preliminary rulings under the urgent procedure.
more general fl exibility concerning the organization of oral hearings, and the concerns of many Member States in particular, which wanted the discretion of the Court to be circumscribed.16
Article 76(3) of the Rules of Procedure, on the other hand, applies to preliminary ruling proceedings only. In these proceedings, the Court is oft en called upon to give authoritative interpretations of Union law which may have repercussions for all Member States and their legal systems. It was thus considered appropriate to provide for a right especially for the national governments to put forward their views also in case they for some reason have not participated in the written part of the procedure (it may, for instance, happen that it is only aft er having studied the observations of the European Commission and/or other Member States that they become aware of the possible implications of the case).
Article 76(3) of the Rules of Procedure refers to a request for a hearing, ‘stating reasons’. What is the meaning and importance of this condition? In the Practice Directions to Parties which the Court of Justice adopted in November 2013 it is stated that the reasoning, whilst it should not be confused with written pleadings or observations and should not exceed three pages, ‘must be based on a real assessment of the benefi t of a hearing to the party in question and must indicate the documentary elements or arguments which that party considers necessary to develop or disprove more fully at the hearing’.
Further, it is not suffi cient to merely provide a general statement referring, for example, to the importance of the questions to be answered by the Court.17
It should be added, however, that these requirements may be of particular importance for the likelihood that the Court accepts to hold an oral hearing in the ‘normal’ situations covered by Article 76(2) of the Rules of Procedure (where the Court enjoys the margin of appreciation indicated above). As to the situations envisaged in Article 76(3) of the Rules of Procedure, it may be instructive to consider the practice of the Court based on the old Rules of Procedure, which required the organization of an oral hearing in all cases where a reasoned request to this eff ect had been submitted and the case was decided by way of a judgment rather than an order.18 It was extremely rare that the Court, considering
that the request was not suffi ciently reasoned, decided to dispense with an oral hearing despite a request to that eff ect. Th is fairly generous approach seems to continue aft er the entry into force of the new Rules of Procedure; it will in other words probably be only
16 Observation by the present author, who in his capacity of chairman of the permanent Rules of
Procedure Committee of the Court followed the discussions at Council level closely (whilst according to Article 253(6) TFEU, the Court shall ‘establish’ its Rules of Procedure, this decision requires the preceding ‘approval’ of the Council). See also M.-A. Godissart, 48 Cahiers de droit européen 3 (2012), p. 629–630.
17 Practice Directions to Parties Concerning Cases Brought before the Court, adopted in accordance with
Article 208 of the Rules of Procedure of the Court, [2014] OJ L 31/1, para. 46.
18 Articles 44a, 104(4) and 120 of the Rules of Procedure of the Court of Justice established on 19 June
exceptionally that the Court, in considering requests for a hearing under Article 76(3) of the Rules of Procedure, will fi nd that the request is not suffi ciently reasoned.
It is thus of greater interest to consider the more typical situation envisaged in Article 76(2) of the Rules of Procedure, which provides that, apart from the situations covered by Article 76(3) of the Rules of Procedure, the Court may decide not to hold a hearing if it considers that ‘it has suffi cient information to give a ruling’. It was already noted above that with Article 76(2) of the Rules of Procedure such a conclusion could only be reached aft er having examined the written pleadings or observations, and that, in practice, the request for a preliminary ruling (when applicable) submitted by the national court will also be a relevant document to be taken into account.
Further guidance for an understanding of the considerations, which may come into play when the Court takes a decision, can be found in the 2013 Practice Directions to Parties referred to above. It is stated here that
the decisive criterion for holding a hearing is not so much whether an express request has been made to that eff ect as the assessment made by the Court itself as to the potential contribution of that hearing to the outcome of the dispute or to determining the answers which it could provide [to the questions referred by national courts].
A hearing will be arranged ‘whenever it is likely to contribute to a better understanding of the case and the issues raised by it’, whether or not a request for a hearing has been made.19
A decision to omit the oral hearing will not be taken lightly. Especially in preliminary ruling proceedings, the organization of an oral hearing may oft en be considered not only useful, but also necessary in order to obtain a suffi cient understanding of the issues at stake. As to the legal ramifi cations of the possibility to omit the oral hearing, it should be recalled that Article 76(2) of the Rules of Procedure is preceded by a provision (Article 76(1) of the Rules of Procedure) referring to a right of parties and interested persons to submit reasoned requests for a hearing, thus suggesting that such requests should be taken into account.
It should be added that according to Article 76(2) of the Rules of Procedure, the decision not to hold a hearing should be based on a proposal from the Judge-Rapporteur. Apart from the urgent procedure, such a decision will be taken by the general meeting of the Court, which normally meets once a week and takes decisions on the procedure to be followed on the basis of a preliminary report submitted by the Judge-Rapporteur. In this report, the Judge-Rapporteur (usually in agreement with the Advocate General) may propose, inter alia, to dispense with a hearing. Th e decision of the Court on these proposals will be taken ‘aft er hearing the Advocate General’ (in practice, the Judge-Rapporteur will already liaise with the Advocate General when preparing the preliminary report).20 It 19 Practice Directions to Parties Concerning Cases Brought before the Court, para. 45.
does occur that the general meeting disagrees with the Judge-Rapporteur (and, as the case may be, also with the Advocate General) and decides to hold an oral hearing aft er all (but it could also occur that the general meeting, unlike the Judge-Rapporteur, considers that a hearing is not necessary).21
It may also happen that the Court (in this case the Chamber to which the case has been assigned), whilst having decided at the general meeting not to hold an oral hearing, later changes its mind, or decides that a second hearing be organized to complement the fi rst one. According to Article 83 of the Rules of Procedure the Court may, ‘at any time, aft er hearing the Advocate General, order the opening or reopening22 of the oral part of
the procedure’. Th ree examples, ‘in particular’, are mentioned of situations which may call for such an opening or reopening:
– if the Court ‘considers that it lacks suffi cient information’;
– where a party has, aft er the closing of the oral part, submitted a new fact ‘which is of such a nature as to be a decisive factor for the decision of the Court’;
– where the case ‘must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute’ (which applies to the preliminary ruling proceedings).
A ground commonly invoked by parties or interested persons when requesting an opening or a reopening of the oral part of the procedure is to refer to alleged errors or new elements contained in an Opinion of an Advocate General. Such requests are in most cases denied, the Court (normally in its fi nal judgment) stating that it considers itself suffi ciently informed on the basis of existing submissions or observations. As will be elaborated below, however, with respect to infringement actions and preliminary rulings and in the context of fair trial considerations, it does occur from time to time that the Court orders the oral part of the procedure opened or reopened. Th is may happen despite an earlier decision to proceed on the basis of the written procedure only, or despite the fact that one oral hearing has already been held in the same case.
Moreover, a reopening of the oral part of the procedure is obligatory if the Court accepts the request of a Chamber, in application of Article 60(3) of the Rules of Procedure, to assign the case to a formation composed of a greater number of judges. Th is is because Article 32(2) of the Rules of Procedure provides that when a hearing has
21 Th ese observations are based on the experience of the present author. If a hearing is not organized
despite a proposal from the Judge-Rapporteur (and, as the case may be, the Advocate General) to organize a hearing would normally be a consequence of a decision of the general meeting to authorize a reasoned order (in the context of which, as noted above, a hearing is never held) instead of a judgment.
22 Th e oral part of the procedure will be ‘opened’ if the Court has previously decided to omit both the oral
hearing and the Opinion of the Advocate General, and ‘reopened’ if either a hearing has been held or the Advocate General has delivered an Opinion (it is this Opinion, if presented, which will close the ‘oral part of the procedure’, see Article 82(2) of the Rules of Procedure).
taken place, only those judges who participated in that hearing shall take part in the deliberations.23
§3. THE RIGHT TO A FAIR AND PUBLIC HEARING
A decision not to hold an oral hearing may, of course, also raise issues of a fundamental rights nature: To what extent would the right of access to courts and to a ‘fair and public hearing’ in particular, recognized in Article 47(2) of the EU Charter of Fundamental Rights, limit the Court’s discretion as to whether a hearing should be held or not? Th e words ‘fair and public hearing’ are also to be found in Article 6(1) of the European Convention on Human Rights. In the Strasbourg case law, the right to a ‘public hearing’ does not amount to an absolute right to request an oral hearing. Much will depend on the nature of the proceedings (criminal, administrative or civil), the circumstances of the case and whether the question arises before a court of fi rst instance or an appellate or supreme court and whether the appellate jurisdiction is limited to points of law or not.24
As to the Court of Justice, it is obvious that the types of actions and proceedings which generally come before this Court diff er in many respects from the nature of proceedings normally considered by the European Court of Human Rights. Cases on appeal from the General Court come perhaps closest, as these cases usually involve at least one private party. In particular, competition law cases can be considered as involving, apart from administrative law aspects (which is the predominant feature), some elements of criminal law as well.25 However, in competition law cases and other similar cases, there is a right
of appeal on points of law only, which, at least in light of Strasbourg case law, puts the onus on the organization of oral hearings before the court of fi rst instance, in other
23 See also Articles 34(2) and 35(2) of the Rules of Procedure, which provide that if it is not possible to
attain the necessary quorum, and if the judge or judges designated by the President of the Court to fi ll in the gap have been designated aft er a hearing has already taken place, the Court ‘shall re-hear oral arguments from the parties’.
24 See, for instance, P. van Dijk et al. (eds.), Th eory and Practice of the European Convention on Human
Rights (4th edition, Intersentia, 2006), p. 589–591. See also C. Grabenwarter, European Convention on
Human Rights: Commentary (Verlag C.H. Beck, 2014), p. 149–152; S. Peers et al. (eds.), Th e EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014), p. 1265–1266 (commentary by Debbie Sayers).
25 According to Article 23(5) of Council Regulation (EC) No 1/2003 on the implementation of the rules on
competition laid down in Articles 81 and 82 of the Treaty, [2003] OJ L 1/1, the decisions on fi nes ‘shall not be of a criminal law nature’. Accordingly, the Court of Justice has avoided the vocabulary used by the European Court of Human Rights, which – probably because of the emphasis in Article 6 of the European Convention on criminal proceedings – has used the concept of criminal sanctions in a large sense, making a distinction between infringements forming part of a ‘hard core of criminal law’ and criminal law in the broader sense, see notably Case C-501/11 P Schindler v. Commission, Judgment of 18 July 2013, not yet reported.
words the General Court.26 In this regard, the Court of Justice has from time to time
been called upon to examine the legality of decisions of the General Court to dispense with an oral hearing if the General Court, in accordance with Articles 111 to 114 of its Rules of Procedure, has ruled by reasoned order instead of judgment; this possibility to omit the oral part of the procedure has been generally accepted by the Court of Justice, provided, of course, that the right of defence has been respected through other means (such as by inviting a written observation).27
Also, infringement cases between the Commission and Member States (or between two Member States)28 are adversarial in nature, although they in some respects diff er
procedurally from cases involving private parties. Th e protection of the right of defence may sometimes call for the organization of an oral hearing to complement the written part of the proceedings.29 Th ere are indeed some infringement cases where the Court
of Justice has decided to reopen the oral part of the procedure, albeit for the most part aft er already having held one oral hearing. While some of the cases have involved the assignment of the case to a formation composed of a greater number of judges,30 there
are also examples of infringement cases where the reopening has been ordered in view of the Opinion of the Advocate General or other relevant developments.31
As to preliminary rulings, the procedure before the Court of Justice is not adversarial in the strict sense of the word and is in any case complementary to the main proceedings before the national court. Also with regard to these proceedings, however, the right to be heard and the right of defence cannot be discarded altogether. Th ese considerations may speak in favour of holding an oral hearing, for instance, if the written procedure raises issues of the validity of a Union legal act.32 It should be recalled in this context that the 26 As was mentioned above, the Rules of Procedure of the General Court require the organization of a
hearing in all cases where this Court acts at fi rst instance and where at least one of the parties has made a reasoned request to that eff ect. As to Strasbourg case law, see ECtHR, Menarini v. Italy, Judgment of 27 September 2011, Application no. 43509/08.
27 See, for instance, Case C-183/12 P Ayadi v. Commission, Judgment of 6 June 2013, not yet reported, para.
40, with references to earlier case law. For an example of a decision of the General Court accepting a decision of the Civil Service Tribunal to rule by reasoned order and thus to omit the organization of an oral hearing see Case T-278/07 P Marcuccio v. Commission, Judgment of 20 October 2008, para. 41–43.
28 See Articles 258–260 TFEU.
29 See, generally, T. Materne, La procédure en manquement d’État. Guide à la lumière de la jurisprudence
de la Cour de justice de l’Union européenne (Larcier, 2012), p. 173–175.
30 Case C-2/90 Commission v. Belgium, EU:C:1992:310 (in this order, the oral hearing to be organized
following the assignment of the case to the Plenary was already the third oral hearing to be held in this case!); Case C-110/05 Commission v. Italy, EU:C:2009:66, order of 7 March 2007.
31 Case 45/64 Commission v. Italy, EU:C:1965:116, order of 2 April 1969; Case C-341/97 Commission
v. Netherlands, EU:C.2000:434, order of 16 December 1999; Case C-304/02 Commission v. France, EU:C:2005:444, order of 16 June 2004. Compare Joined Cases 2/62 and 3/62 Commission v. Belgium, EU:C:1962:45, order of 3 December 1962, in which the Court refused to a reopening, considering that the relevant elements which had been invoked with a view to the reopening of the oral procedure had been known already before the oral hearing which had been held.
32 See M. Broberg and N. Fenger, Preliminary References to the European Court of Justice (2nd edition,
written part of the procedure will involve one round of written observations only and so the oral hearing may be the fi rst opportunity to present observations on the written observations of other interested parties. It should also be recalled, on the other hand, that a party to the main proceedings which has not participated in the written procedure before the Court of Justice may in principle always obtain an oral hearing by submitting a reasoned request to that eff ect.
§4. RECENT
PRACTICE
What has been the practice of the Court of Justice with respect to the organization of oral hearings since the introduction of the more fl exible rule contained in Article 76(2) of the new Rules of Procedure? It should be recalled at the outset that cases leading to the adoption of an order, including a reasoned order, will, with some smaller exceptions, never involve the organization of an oral hearing. In recent years, the percentage of such cases has oscillated between 15 and 30 percent of all cases.33
As far as cases terminated by a judgment are concerned, a look at practice as it has developed during the period between 1 January 2013 and 30 June 2014 (in other words, 18 months of application of the new Rules of Procedure) brings out the following observations: During this period, approximately 700 cases which were predestined to be completed by a judgment were attributed to chambers by the general meeting of the Court. If two or more joined cases are counted as one, we arrive at approximately 600 likely judgments and thus as many potential oral hearings (if cases are joined, there will be only one oral hearing). In practice, these cases have involved around 350 oral hearings, which would mean that an oral hearing has been held in around 60 percent of all potential cases for such a hearing.34
However, when looking at this percentage, it should be born in mind that in many cases which have not involved an oral hearing, there has been no request for such a hearing. It can be estimated that these cases constitute around 25 percent of all cases. Th is would imply that the proportion of cases in which the Court has decided not to hold a hearing despite the fact that a request for a hearing had been submitted would amount to roughly 15 percent. To this estimation should be added that there is a certain number of cases (it would seem around 5 percent of all cases) in which an oral hearing has been
validity of Union acts there may be a need for a more adversarial nature of the procedure. On the latter question, see also C. Naomé, Le renvoi préjudiciel en droit européen: Guide pratique (2nd edition, Larcier
2010), p. 269–273.
33 In 2013, out of 620 cases, 491 cases were completed by a judgment and 129 by a reasoned order, Court
of Justice of the European Union, Annual Report 2013, p. 91. Th ese fi gures do not include cases which were terminated by a procedural order, for instance, removing a case from the register.
34 Th ese estimations are based on the experience of the present author and estimations made by trainees
held even if no request to that eff ect has been submitted by the parties or interested persons.
Th ese fi gures tend to suggest that on the one hand, the fl exibility introduced by the new Rules of Procedure has certainly been utilized by the Court. However, on the other, this has not led to any signifi cant decrease in the number of oral hearings, and in the great majority of cases where an oral hearing has been requested such a hearing in fact will be held. Moreover, a hearing may sometimes be organized even if there has been no request to that eff ect. It goes without saying that these fi gures should be approached with a certain caution, given the relatively short time span considered (18 months).
§5. CONDUCTING THE ORAL HEARING
Th e modifi cations introduced by the new Rules of Procedure and the fl exibility provided for in Article 76(2) of the Rules of Procedure in particular have been accompanied by an eff ort of the Court of Justice to improve the usefulness of oral hearings actually held. It has been considered that, on the one hand, an oral hearing will not always bring added value to what has already been stated in the written part of the procedure but that, on the other hand, once it has been decided that an oral hearing will indeed be held, it should be duly prepared and steps should be taken with a view to its actual conduct.
It is true that in the context of the recast of the Rules of Procedure in 2012, it was decided to abandon the presentation, by the Judge-Rapporteur, of a report for the hearing.35 Th is measure was taken with a view to simplify the procedures, notably by
decreasing the burden of not only the Judge-Rapporteur and his or her collaborators but also the translation services of the Court. Th is also takes into account that the report for the hearing had not, in the practice of the Court of Justice, constituted a document destined to set out the issues to be developed at an oral hearing but was simply a short summary of the applicable law and the main points raised by the parties or interested persons (information which was contained in the written submissions of the parties or observations of the interested persons in greater detail).
In the context of the 2012 reform, the Court considered it more appropriate and useful to focus on a veritable planning of the hearing. Th is included the possibility to prescribe measures concerning the organization of procedure by indicating to the parties and interested persons prior to the hearing what the main points are which the Court considers should be developed at the hearing. Th e main idea, as now explained in the Practice Directions to Parties of 2013, is to give the hearing a real ‘added value’. It is thus stated in these Directions that
35 Article 20(4) of the Statute of the Court, in its version preceding the modifi cations introduced in 2012,
provided that the oral procedure should consist, inter alia, ‘of the reading of the report presented by the Judge acting as Rapporteur’. Th is phrase has been deleted from the current wording of Article 20 of the Statute, as modifi ed by Regulation No. 741/2012 of the Parliament and of the Council, [2012] OJ L 228/1.
the decisive criterion for holding a hearing is not so much whether an express request has been made to that eff ect as the assessment made by the Court itself as to the potential contribution of that hearing to the outcome of the dispute or to determining the answers which it could provide [in preliminary ruling proceedings].
A hearing is arranged ‘whenever it is likely to contribute to a better understanding of the case and the issues raised by it’.36
It almost goes without saying that this objective requires a proactive stand on the part of the Court. Article 61 of the Rules of Procedure relating to ‘measures of organization of procedure’ refers to four options. First of all, it is recalled that the Court may prescribe measures in accordance with Article 24 of the Statute of the Court, according to which the Court may always require the parties to produce all documents and to supply all information which it considers desirable and the Member States and institutions, bodies, offi ces and agencies to supply all information which the Court considers necessary for the proceedings. Second, the Court, according to Article 61(1) of the Rules of Procedure, may invite the parties or the interested persons to answer certain questions in writing, and third, invite them to answer such questions at the hearing itself. Finally, the Court, according to Article 61(2) of the Rules of Procedure, shall, where a hearing is organized, ‘in so far as possible, invite the participants in that hearing to concentrate in their oral pleadings on one or more specifi ed issues’. When the recast of the Rules of Procedure was considered at Council level, some governments proposed to make the invitation to concentrate on certain issues obligatory. As the Court considered that such a requirement would go too far (in some cases the Court might fi nd it necessary to tackle all and not just some of the aspects of the case), the qualifi cation ‘in so far as possible’ was inserted.37
In addition, Article 62 of the Rules of Procedure authorizes the Judge-Rapporteur and the Advocate General to request the parties or interested persons to submit ‘all such information relating to the facts, and all such documents or particulars, as they may consider relevant’ as well as to send to the parties or interested persons questions to be answered at the hearing. In practice, resort to Article 61 of the Rules of Procedure is more common but it does occur that the Judge-Rapporteur or the Advocate General (who normally liaise on such preparatory measures) detect at a later stage, aft er the case has been assigned to a chamber by the general meeting of the Court but before the hearing takes place, that some issues need further clarifi cation.38
Whether the measures of organization are based on Article 61 or Article 62 of the Rules of Procedure, the idea in cases leading to a hearing is to assist the participants in that hearing to prepare for their pleadings and other oral submissions as well as to focus the attention of the Court itself on issues considered of particular importance. In this
36 Practice Directions to Parties, para. 45.
37 See J.-M. Godissart, 48 Cahiers de droit européen 3 (2012), p. 630–631.
38 Th ese observations are based on the experience of the present author as judge at the Court (since
vein, the Practice Directions to Parties of 2013 provide that the aim of oral submissions is, inter alia, to respond to any requests to concentrate on specifi ed issues and to answer the questions that the Court might have put under Article 61 or 62 of the Rules of Procedure.39
Th e pleadings should avoid recalling the content of written submissions or the factual and legal background to the case. Invitations of the Court to concentrate the submissions on a question or a particular aspect of the case should generally be respected.40 And in
order to underline the need to give the pleadings an added value and at the same time to underline the importance of the ensuing debate based on questions put by members of the Court, the normal speaking time (which may be modifi ed by the President of the formation) of the initial oral submissions has been reduced to 15 minutes.41
Th ere can be no doubt that the manner of planning and conducting oral hearings has changed during the last ten or so years, and aft er the adoption of the new Rules of Procedure in particular.42 Whilst the oral hearing was sometimes viewed as a formality,
consisting of the reading of oral submissions which largely repeated or summarized what had already been said in the written observations, it is now generally considered that if there are no specifi c questions or aspects that the members of the Court would like to be raised at the hearing, it should be asked seriously why a hearing should be held in the fi rst place. Nowadays, it is the rule rather than the exception that some measures of organization of procedure are addressed to the parties or interested persons in advance. And it is much more common today that a considerable part of the hearing is devoted to questions that the members of the Court wish to put to the participants aft er their initial oral submissions and eventually also to a discussion between the parties or interested persons with respect to the questions raised. It appears that these developments have been favourably received by the stakeholders concerned43 and that most oral hearings today
provide at least some, and in some instances, a considerable added value as compared to the written part of the procedure.
Th at said, the oral hearing before the Court of Justice could become an even more vivid and discursive event, with less focus on solemnity and ritual.44 In this context, it
should be recalled that the oral hearing constitutes a point of contact between not only the Court and the parties and interested persons but also the public at large.45
39 Practice Directions to Parties, para. 50. 40 Ibid., para. 51.
41 Ibid., para. 52.
42 Th ese observations are based on the experience of the present author as judge at the Court (since
January 2002).
43 Th ese observations are based on conversations the author had with agents of Governments and
practising lawyers.
44 For instance, the oral hearing before the Court of Justice is still opened and closed, and is to some
extent also conducted on the basis of a traditional and rather ceremonial formula which may convey the impression of a ritual rather than an intense examination of the main substantive issues of the case.
45 Th e oral hearings oft en draw a number of spectators (academics, students, journalists, NGO
§6. CONCLUDING
OBSERVATIONS
Th e oral hearing continues to constitute an important part of the procedures before the Court of Justice. Whilst the new Rules of Procedure adopted in 2012 have introduced some more fl exibility to the rules governing the decision to hold or to omit the oral hearing, there are several considerations which oft en militate in favour of the organization of a hearing. First of all, there are categories of cases where the organization of an oral hearing seems obligatory (expedited and urgent procedures). Secondly, in a case involving a request for a preliminary ruling, a hearing has to be organized if an interested person who has not taken part in the written procedure submits a reasoned request to that eff ect. Th irdly, in all preliminary ruling cases, the existence of only one round of written observations may speak in favour of an oral hearing with a view to supplement or clarify the written material. Fourthly, Article 47 of the Charter of Fundamental Rights and more generally the general principles of Union law, notably the right to a fair and public hearing, may require the organization of such a hearing. It should also be recalled that the decision not to hold an oral hearing is normally taken by the general meeting of the Court, on the proposal of the Judge-Rapporteur and aft er hearing the Advocate General, thus ensuring that the issue is given proper attention.
Th e increased margin of appreciation accorded to the Court by Article 76(2) of the new Rules of Procedure has not led to any dramatic decrease in the number of oral hearings as compared to the overall number of cases dealt with. In the majority of cases, a hearing is organized and for the 40 percent or so of the cases which did not include a hearing during the fi rst 18 months of application of the new Rules of Procedure, the majority consisted of cases in which no request for a hearing had been submitted. Whilst there was a certain number of cases (during the period considered, roughly 15 percent of all cases) in which a request did not lead to the actual organization of a hearing, this was partly ‘compensated’ by the cases in which a hearing was held despite the fact that there had been no request to that eff ect.
At the same time, the Court of Justice has focused on the planning and the conduct of oral hearings in order to increase their usefulness for the overall handling of cases. Measures of organization of procedure have become much more frequent and in actual practice, most hearings are today geared towards outstanding issues and a real debate rather than merely repeating the written procedure orally. Th e oral hearing is not only here to stay but it appears to have begun to play an increasingly important part of Court of Justice proceedings from a qualitative point of view. Th ere is every reason to continue on this path and also to take steps to avoid not only unnecessary hearings but repetition, ritual and excessive solemnity in those hearings which are actually organized.
composed of 15 judges (not to speak of the Full Court composed of, in principle, all the judges of the Court) may draw large crowds.
