The European Court of Justice wants to change its Rules of Procedure. The amendments are at an advanced stage, and are currently being discussed with the Council of the European Union. The CCBE has welcomed most of the changes, but has pointed out some serious reservations relating to access to justice.

Among the steps welcomed are the prominence given to the rules applicable to preliminary references, which form an increasing proportion of the Court’s workload, and also to the rules governing direct actions and appeals. The insertion of a clear procedure for applications for legal aid, and clarification of its application to preliminary reference cases, will provide recognition of both the urgent and sensitive nature of such applications.

However, without wishing to undermine the fact that most of the changes are welcomed, I will focus here on the reservations. First, the CCBE is against the extension of the power to dispense with an oral hearing, for a number of reasons. The oral hearing is a major feature of access to justice.

In references for preliminary ruling, it is critical, since it is the only opportunity to reply to the observations filed by other parties. In other cases, which raise technical and complex issues, the oral hearing represents the occasion when all involved in the case - the judges, lawyers and parties - focus on the case at the same time. In a recent year, the Court decided 600 cases, 180 of which had an oral hearing.

This is less than a third of all cases decided, which does not suggest a need for even greater flexibility not to hold an oral hearing.

Another potential problem is the proposed selective translation of written pleadings. The new Article 58 will empower the Court, by decision, to determine criteria for the translation of written pleadings to be limited to the translation of their "essential passages". While the Court, for understandable reasons, has chosen to use a single language for internal purposes (historically, French), parties are entitled to address the Court in the language of the case, and are entitled to have their pleadings heard by the Court.

This is not merely a statement of the law, but a necessary pre-condition for the maintenance of public confidence in the EU’s judicial system. Any rule that only part of the pleadings of a party should be translated into the internal language of the Court implies that the Court will not hear the totality of that party's pleadings. This cannot be reconciled with the requirements of due process and access to justice under the European Convention on Human Rights and the Charter of Fundamental Rights of the EU.

The proposal appears to envisage that the Court, in a way that is not transparent to the parties, will decide which passages of a party's pleadings are "essential" and thus worthy of translation. Is it suggested that it will really be the Court which decides which parts go to translators, or will it be translators seeking to interpret guidelines from the Court?

In addition, the proposal would directly advantage parties from particular member states, namely francophone ones, over those from other states, since parties submitting their written pleadings in French will have those pleadings heard in full by the Court, while others who rely on their right to submit pleadings in the language of the case may be heard only in relation to that part of the pleadings that the Court chooses to receive.

The EU Institutions will be part of the privileged few, given the convention that they supply French translations of their pleadings. This would directly discriminate between parties from different member states in relation to the fundamental right of access to justice.

Finally, the CCBE is concerned that the Report for the Hearing will be abolished. It is a useful document in so far as it demonstrates the Court’s understanding – or on occasion misunderstanding - of the parties’ arguments. It has been of particular importance in complex cases before the General Court. The report for the hearing has always had the useful function of presenting an objective overview of the case, to the benefit of both judges and parties, prior to - and with great benefit for - the oral hearing.

By containing a full account of the undisputed facts of the case and a summary of the respective arguments of the parties, it is the basis of the judgment to come.

The CCBE has other suggestions, such as the possible introduction of provision for Amicus Curiae submissions and, maybe most pertinently here, the possible participation by stakeholders in a Rules Committee. The CCBE proposes a Rules Committee to meet once per year, which would recognise that the administration of justice within the EU is a cooperative endeavour involving all those concerned. Hear, hear!