Developments at the two courts should be followed intently by lawyers.
From time to time, I have given updates on developments at the two European courts. If we don’t keep up with their news, they can appear to be operating in outer space.
I don’t have to recite in great detail for brilliant Gazette readers the differences between the two: the Court of Justice of the European Union in Luxembourg exists to ensure that the EU Treaties are properly interpreted and implemented; while the European Court of Human Rights in Strasbourg rules on applications, whether from individuals or a state, alleging violations of the European Convention on Human Rights.
If you are about to appear in one of them, help may be at hand. Recently, the Council of Bars and Law Societies of Europe (CCBE) produced a publication offering ‘Practical Guidance for Advocates before the Court of Justice in Preliminary Reference Cases’. A similar brochure, offering tips this time for those appearing before the General Court, is in the pipeline for the future. And we are hard at work on a guide for lawyers appearing before the European Court of Human Rights, due to be published early next year.
At the European Court of Justice in Luxembourg, there is general satisfaction with the operation of the new e-Curia system, the programme which allows lawyers to lodge, receive and consult procedural documents in electronic format. Curiously, you cannot register online for the service, but have to use old-fashioned snail-mail, presumably because of the requirement to send a copy of your passport and practising certificate for the Court to inspect. Afterwards, registrants have to wait a few days for an answer. The conditions of use include the agreement to change the password every six months, and that an account not in use for three years will be deactivated. Assistants can register, too. Existing users speak highly of the service, saying it streamlines court submissions, saving large amounts of photocopying, and eliminating those previously long nights for secretaries and associates.
The CCBE wrote a letter to the president of the Luxembourg Court in May of this year regarding a concern that the General Court might be granted powers in new procedural rules with the possibility – under certain conditions and with certain specific arrangements – to order that it receives and takes into account confidential information or documents to which some parties to the proceedings will not have access. The CCBE’s line on this, as with all rule changes, is that the form and content be the subject of as wide a consultation as possible.
Moving to the European Court of Human Rights, a recent Gazette interview with the newish UK judge at the court, Paul Mahoney, serves as an excellent introduction to its current concerns, particularly its gigantic backlog of cases and the measures it is taking to tackle them. Protocol 14 to the Convention has been of key importance in tackling the backlog. Since the Protocol’s entry into force in 2010, judges have been sitting in single judge formations to decide cases that are clearly inadmissible or that can be struck out without further examination. With this and other methods, the backlog is beginning to fall. Between September 2011 and just over a month ago, the number of cases pending fell from 160,000 to 111,000.
Of importance to lawyers in this vigorous clean-up is a new Rule 47 regarding the contents of an individual application, which will enter into force on the 1 January 2014. The wording of the rule has been tightened to allow the court to decide admissibility more quickly, to avoid previous delays.
The politicians can continue to argue over whether the European courts interfere too much in our national sovereignty, justifying us in gathering up our dignity and hightailing it to the exit. But in the meanwhile lawyers need to continue processing clients’ cases, and follow what is happening at the courts.
Jonathan Goldsmith is secretary general of 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