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European Court Procedure – A Practical Guide

European Court Procedure – A Practical Guide

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The book European Court Procedure – A Practical Guide (Bloomsbury-Hart, Oxford, 730 p.) has been written by professionals having a combined experience of 70 years as referendaires at the EU Courts or members of the European Commission Legal Service. It gives a detailed and practice-oriented overview of the whole spectrum of litigation procedure before the EU judiciary. It also presents the entire system of judicial avenues that enable litigants to enforce their rights under EU law against European institutions, Member States or private parties.

As to novelties, the book covers, among others, the case law on the application of the EU General Court’s Rules of Procedure of 2015, the new Practice Rules of the General Court of 2018, as well as the recent changes brought by the Practice Directions of the EU Court of Justice of 2020.

Synopsis

Part 1 – Enforcement of EU Law and Judicial Organisation of the EU. EU law enforcement is governed by some key principles, such as effective judicial protection, the complete system of judicial remedies, direct effect and the possibility to rely on EU law provisions in some situations even if there is no direct effect. Where the legality or the interpretation of EU measures is in question, cases normally reach the EU judiciary – the General Court and the Court of Justice – whose respective powers are duly delineated.

Part 2 – Enforcement of EU Law against Member States and Private Parties. There are essentially two judicial avenues available to litigants where they believe that EU law is breached by a national authority or a private party. First, the European Commission has the power to initiate infringement proceedings against a Member State that fails to fulfil its obligations under Union law, and private parties may certainly file complaints with the Commission that may trigger this mechanism (Chapter 2.1 Infringement Actions). Secondly, litigants may also assert their rights derived from EU law before national courts both against Member States and private parties. National judges have the duty to apply EU law. Chapter 2.2 Preliminary Rulings on Interpretation deals with the practical issues of raising EU law matters before national courts and the circumstances in which these courts may or must make preliminary references to the Court of Justice.

Part 3 – Protection against Acts of the EU. The EU legal system also offers appropriate protection against illegalities committed by EU institutions (such as the Commission and the Council) and bodies (such as the EUIPO and the ECHA). Most proceedings of this category must be initiated before the EU Courts directly against the EU institution or body as the defendant (Chapters 3.1 Action for Annulment; 3.2 Action for Failure to Act; 3.3 Action for Damages; 3.4 Staff Cases; 3.5 Intellectual Property Cases). Litigants must be aware of the admissibility criteria relating to each of these actions, such as, for instance, standing requirements, interest to act, and the concept of reviewable acts in the context of actions for annulment. When formulating claims and pleas in law in this regard, litigants must bear in mind the scope of the review of legality exercised by the General Court and the possible consequences of annulment. Judgments of the General Court may be further challenged before the Court of Justice through appeals, which should normally be limited to points of law; however, in some circumstances, pleas based on fact-related issues are also admissible (Chapter 3.6). Moreover, where the illegality of an EU act cannot be challenged directly before the EU Courts, the available judicial avenue is to bring a case before a national court against the national measures implementing the EU act, whereupon the national court may make a preliminary reference to the Court of Justice on the validity of the EU act (Chapter 3.8 Preliminary References on Validity). Litigants must have precise knowledge of the case law on the limits on standing to bring an action for annulment before the General Court, since, as a rule, they are only able to successfully raise the illegality of EU acts before national courts if they had no standing to bring a direct action for annulment before the General Court.

Part 4 – Procedure before the EU Courts. Once the case reaches the EU Courts, whether as an action or appeal directly lodged with the EU Courts or as a preliminary reference made by a national court, the Rules of Procedure of the Court of Justice or those of the General Court apply, along with other procedural rules such as the Statute, the Practice Directions and the Practice Rules. All these are further specified and interpreted by the detailed case law relating to procedural matters. In practice, the most difficult task is to draft the application, which sets a rigid framework for the litigation, in so far as it must include all the claims, pleas in law and (offers of) evidence. The book explains in detail, among others, the contents of actions for annulment brought before the General Court and gives practical suggestions as to drafting techniques, presentation of legal and factual arguments, and the rules on evidence. The application is normally followed by the defence, the reply and the rejoinder. The parties may request a hearing as well (hearings are no longer held automatically). Their representatives may receive various hints from the preceding written procedure on what to expect at the hearing. Procedural rules are considerably different depending on the type of proceedings, namely direct actions, such as actions for annulment and actions for damages (Chapter 4.2), intellectual property cases, ie actions brought against the EUIPO in trade mark matters (Chapter 4.3), appeals against judgments of the General Court (Chapter 4.4) and preliminary references made by national courts (Chapter 4.5).

Part 5 – Incidental and Ancillary Procedural Issues. One of the most important practical issues for legal representatives is to obtain access to documents held by the EU institutions, in case no access has been given in the administrative procedure. There are possibilities of obtaining documents through the EU or national courts even if the EU institution holding the information is not a party to the proceedings or is unwilling to give access (Chapter 5.1). Another frequent aspect of proceedings is the conditions under which litigants, whose matter is urgent, may request interim measures such as suspension of the application of the contested act (Chapter 5.2) or expedited procedure (Chapter 5.3). Other incidental aspects of the proceedings include interventions, including the confidential treatment of documents (Chapter 5.4), and the summary procedure applied in case of inadmissibility or where there is no need to adjudicate (Chapter 5.7). Finally, it is certainly useful to have a clear picture of the rules regulating the allocation and recovery of costs, including the case law that specifies what expenses qualify as recoverable and to what extent (Chapter 5.10).

More information about the book and its authors available here.


The book’s editor is DANUBIA LEGAL partner Viktor Luszcz, who also authored 55% of the book’s text. The co-authors are Martin Farley, Viktor Bottka (members of the European Commission’s Legal Service), Alexandre Geulette, Vivien Terrien and Milan Kristof (referendaires at the Court of Justice of the EU).

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