Navigating first appearances in CJEU courts

Appearing before any of the courts which make up the Court of Justice of the European Union – the Court of Justice, the General Court and the Civil Service Tribunal – can be daunting for a lawyer accustomed to appearing only before a national court. There are various, obvious reasons: the judges come from 28 member states and as many different judicial traditions; the official language of the court is French; the documents and hearings will be translated; and the court’s own procedure will almost certainly differ from what the lawyer is accustomed to at home (for a common law lawyer, there is much less emphasis on oral advocacy, for instance).

 The Council of Bars and Law Societies of Europe (CCBE) has now come to the rescue of lawyers who are about to appear before two of the courts for the first time, or who appear infrequently. The CCBE has just published three guides. Two of them are for those appearing before the two most common courts, the Court of Justice (dealing with ‘preliminary references’) and the General Court (dealing with ‘direct actions’). The third assists lawyers in using the electronic filing system of the EU courts. All three guides appear on the CCBE’s website under ‘Publications’.

To respect the chronology of the proceedings, I will start with the guide to the court’s electronic filing system. The system is called e-Curia, and the booklet begins with a list of advantages and disadvantages of using it. The advantages may seem obvious, particularly when dealing with a court in another country, Luxembourg, which requires original and certified copies and a signature (if the e-Curia system is not used). At the very least, you gain time by being able to file electronically at the last minute. The disadvantages are that the e-Curia system is occasionally off-line for technical reasons, and that the ‘https’ system used by the court may be deemed by some lawyers to have inadequate security for sensitive documents.

There are good tips included elsewhere in the guide. For instance, to register for e-Curia, you will need a recent letter or certificate from your professional body confirming that you are authorised to practise before a court of an EU member state or an EEA country (a CCBE identity card is also sufficient), and so you need to factor in the time to obtain this. If you need to file tomorrow and hope to register today, you will almost certainly not be able to do so, and the guide recommends that you allow at least three weeks overall. Since the court will also use e-Curia for service of documents, with accompanying time limits, there is good advice on which email address to use, including if your secretary or other assistants have access to the inbox designated. And if you are intending to use e-Curia as a convenient archive, remember to download all the documents at the end of the case, since documents remain within e-Curia for only three months after the end of the proceedings.

The two guides to the courts themselves contain much advice which is applicable to both courts, since each is dealing with a multinational, multilingual entity. In fact, the advice is useful for appearances before any international court where the judiciary is made up of candidates from different countries. For instance, keep the style simple so that it translates easily – punchy, uncomplicated sentences are best. A concise statement of the national legal framework can be important and should be prepared in a style that is easily comprehensible to lawyers from other legal traditions. In oral hearings, literary flourishes, jokes and idiomatic speech risk being misunderstood. Avoid reading out a written speech, since you may speak too quickly, and the translation of your statements will then probably be poor. And in both the EU courts, the annexes are not translated, and so will not be read by all members of the chamber hearing the case.

There is other good basic advice, too. For instance, the address and travel route to the court are given – which is not so foolish, since there are true stories of people turning up to the Luxembourg courts when they are due to appear at the European Court of Human Rights in Strasbourg (and doubtless vice versa). Do not be held up in the queue for visitors to the court – go straight to the official at the head of the security desk marked ‘Avocats’. There is an advocates’ robing room called ‘Salon des Avocats’, with lockers and three computers. And so on.

The number of international courts is growing. The use of the European courts is increasing inexorably as well. Guides like these fill a need, enabling national lawyers to make best use of their court submissions.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs