As announced in the first post in this series, I will continue my empirical analysis of the ECJ’s case law in the field of EUPIL. I refer back to that blog post as concerns the definition of “EUPIL” and the general methodological framework upon which this research is based.
The focus of this second post is on the participation of States, parties and, more generally, institutions in (EUPIL) preliminary reference procedures. I will first summarize the legal framework governing the observations filed with the ECJ (A) and give some additional information on the collection of data on this topic, which is essential to the correct interpretation of the Charts presented hereunder (B). After some brief considerations on the practical importance of observations in EUPIL cases (C), I will present the collected data from a double perspective: a general one, which looks at the overall level of engagement of States with preliminary references procedures on EUPIL instruments (D); and a subject-specific one, that accounts for the peculiar sectorial interests of some States (E).
A. General Legal Framework for Filing Observations with the ECJ
The participation of States, parties and institutions in the preliminary reference procedure can take the form of either written observations, lodged with the Registrar, or oral submissions at the hearing before the Court.
The legal framework applicable to the filing of written observations is set out by Articles 23 and 23a of the ECJ’s Statute and complemented by its Rules of Procedure (Rop), notably by Article 96. In short, upon reception of a request for a preliminary ruling, the ECJ’s Registrar notifies the order issued by the referring court to the Member States and to the Commission, as well as to the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute. All of these, in addition to the parties to the main proceedings pending before the referring court, are entitled to file written observations (Article 96 RoP). Moreover, said notification is sent to the States, other than the Member States, which are parties to the EEA Agreement, to the EFTA Surveillance Authority and to non-Member States which are parties to an agreement relating to a specific subject-matter, where a question concerning one of the fields of application of those Agreements is referred for a preliminary ruling (for Switzerland see, for example, Protocol 2 to the Lugano Convention). These (non-Member) States are also entitled to submit written observations.
In any case, non-participation in the written part of the procedure does not preclude participation in the hearing during the oral part of the procedure.
Not all preliminary reference proceedings encompass an oral procedure: according to Article 76 RoP, the ECJ may decide 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 sufficient information to give a ruling. Nonetheless, a hearing shall be held if it is requested by a party or an interested person referred to in Article 23 of the Statute, who did not participate in the written part of the procedure.
Special rules, relating to both written and oral participation, apply to the expedited (PPA) and urgent (PPU) preliminary reference procedures.
The former provides for derogatory rules in relation both to the time limits for filing observations and the scope of the subject-matter addressed thereby, that could be limited to “the essential points of law” raised by the request for a preliminary ruling (Article 105 RoP).
The latter follows a special regime that limits participation into the written part of the procedure: the order of the referring court is notified solely to the Member State from which the reference is made (and not to all Member States), to the European Commission and to the institution which adopted the act the validity or interpretation of which is in dispute (Article 109 (2) RoP). In cases of “extreme urgency”, the written part of the procedure can even be completely omitted (Article 111 RoP). The other interested persons referred to in Article 23 of the Statute will just receive a communication of the request for a preliminary ruling and of the date of the hearing, with a view to enable their eventual participation into the oral procedure.
B. Methodological Issues Relating to the Collection of Data on Observations Filed in EUPIL Cases
This blog post builds on data collected based on the information systematically included in all ECJ’s judgments. In this respect, it is important to note that the drafting style adopted by the ECJ provides a consistent framework for all decisions issued by the Court. Against this backdrop, the first part of judgments and orders currently lists the submissions made with the Court, without nonetheless distinguishing between oral and written observations. If it is true that certain AGs are systematically introducing this distinction in their Opinions, the fact remains that, nowadays, a) not all the AGs consistently follow this practice and b) not all cases are decided with the support of an Opinion (while a hearing could be held even in cases with no Opinion: see, as an example C-436/13). As a result, the distinction between oral and written submissions could not be correctly apprehended based on the available public data. The limitations to the participation in the written part of the procedure, which are inherent to PPU cases, have therefore no impact on the statistical results presented in this blog post.
The Charts presented below will refer to States’ participation to the preliminary ruling proceedings in general, without distinguishing between oral and written part of the procedure.
C. The Practical Usefulness of Observations in EUPIL Cases
Concerning the objectives pursued through the filing of observations, EUPIL cases are no different from other preliminary references procedures. Nonetheless, this section will be the opportunity to present some preliminary statistical data which are specific to EUPIL cases.
According to point 11 of the ECJ’s Practice directions to parties concerning cases brought before the Court, written observations are a way for the interested persons referred to in Article 23 of the Statute to “set out their point of view on the request made by the referring court or tribunal” and to “help clarify for … the scope of that request, and above all the answers to be provided to the questions referred” by the domestic court. Therefore, States’ observations are, first and foremost, a tool for enlarging the circle of participants in the legal debate before the ECJ. Far from being a face-to-face conversation between the Luxembourg and the referring court, the preliminary reference procedure seeks to involve a larger number of institutional subjects. This approach is consistent with the wide-ranging effects of the judgment rendered by the ECJ at the end of such procedure, stemming from the precedential value of preliminary rulings.
In addition to this more general function, the observations filed by the subjects identified by Article 23 of the Statute and Article 96 RoP have a remarkable practical importance for the correct assessment and understanding of the preliminary questions referred in the specific case. Again, according to the aforementioned Practice directions, observations play “an essential role” in the ECJ’s understanding of the legal problem at stake, as it can thus acquire a detailed and accurate idea of the issues raised by the referred case. In my view, it is useful to distinguish, in this respect, between:
- the observations filed by the parties to the domestic proceedings;
- the observations filed by the government of the State to which belongs the referring court;
- the observations of the Commission;
- the observations filed by States other than the forum State.
The observations of the parties to the main proceedings could be extremely helpful in clarifying the factual context in which the dispute arose. While, in EUPIL cases, the ECJ does not adjudicate on facts, these remain extremely important for the correct understanding of the legal questions submitted to the Court. Facts may also help the ECJ in fulfilling its institutional mission, that is making sure that the answer provided to the referring court is as useful as possible for the solution of the problems raised by the dispute pending before it, without nonetheless venturing in factual determinations and legal assessments that rest solely with domestic courts. From this standpoint, the parties to the main proceedings could either complement, specify or even contest the description of the facts made by the referring court. It is interesting to note that in 79 % of the inventoried EUPIL cases, at least one of the parties to the main proceedings has presented written and/or oral observations before the ECJ. This percentage drops to 67 % in family law cases and 42 % in succession cases.
The observations of the government of the State to which belong the referring court can be equally useful to clarify the factual background of the disputes, especially where one of its public bodies is involved. The point of view of the forum state is also particularly important for clarifying the content and interpretation of the domestic legal framework (procedural or substantive) applicable the specific case. Overall, the forum State has filed observations in 64% of the inventoried EUPIL cases. More detailed data on this aspect will be presented in section D.
The observations of the Commission may provide for an “institutional” point of view on the interpretation of a provision of EU Law. They may also offer interesting insights on the legislative history of the provision or instrument subject to interpretation. Albeit arguably institutional, this point of view is never binding for the Court. The Commission has systematically filed written and oral observations in all EUPIL preliminary references for which there has been a written procedure (this excludes, in practice, most of the cases decided with a reasoned order ex Article 99 RoP and some of the cases that have been deemed inadmissible ex Article 53 (2)). The observations filed by the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute pursue a similar purpose. Admittedly, these are not very common in the field of EUPIL. I could only find 4 of such cases: C-501/20 and C-522/20, with observations by the Council of the EU, as well as joined Cases C-453/18 and C-494/18 with observations of both the EU Parliament and the Council of the EU.
As concerns the observations of States other than the forum State, they mostly serve to introduce multiple points of view into the debate before the ECJ. It is very difficult, if not impossible, to gauge all the possible reasons that may prompt one of these States to participate in the preliminary reference procedure. Intuitively, the objective or subjective connections with one of the “foreign elements” of the dispute at stake might play a role. For example, Cyprus only ever participated twice in a EUPIL preliminary reference procedure: once as the forum State (C-519/13) and once in the Apostolides case, referred by a British court with respect to facts which largely occurred in Cyprus and upon which the courts of this country had adjudicated. C-157/12 is the only EUPIL case where Romania has intervened in a preliminary reference procedure not triggered by its own domestic courts. The case originated from Germany and concerned a dispute between two companies, one of which established in Romania, the courts of this country having also rendered the judgment whose recognition was a stake. The nationality of the parties, or other relatable interests, may also play a role (for example, Greece also submitted observations in Apostolides, the applicant being a member of the Greek Cypriot community). Any further discussion on the reasons behind States’ interventions would be entirely speculative in nature: any of the States identified by Article 23 of the Statute is free to participate in the procedure before the ECJ to submit its own point of view on the interpretative solution to be given to the preliminary questions, without having to substantiate a specific interest to these purposes.
D. Data from Existing Case Law
Coming to the concrete results of my analysis, the review of 46 years of ECJ case law on EUPIL instruments evidences a remarkable engagement of States with such preliminary reference procedures. Only 8 % of the total cases have elicited no observations from the side of at least one State.
In Chart 1 below, States on the y axis are ordered based on the total number of observations filed in EUPIL cases (orange column).
The blue column on the left indicates the total number of EUPIL preliminary references raised by the domestic courts of the concerned country. This datum should be read in conjunction with that portrayed by the gray column, showing the number of observations submitted by the government of each State in cases referred by its own domestic courts. The yellow column on the right show the number of observations filed by each government in EUPIL cases referred by courts of other Member States.
With the sole exceptions of the Netherlands, Belgium, Cyprus and Bulgaria, the orange column (which corresponds to the sum of the gray and yellow columns) is systematically taller than the blue one, showing that national governments tend to be more engaged in the dialogue with the ECJ than their domestic courts are. Particularly remarkable are the results pertaining to the Czech Republic, Spain and Portugal: despite the low number of EUPIL referrals raised by their respective national courts, the governments of these countries have consistently intervened in cases filed by other Member States’ courts in a variety of legal fields (cf. Charts 5, 6, 7 and 8 below).
Chart 2 is a specification of the relationship between the blue and the gray columns of Chart 1. It expresses, in percentage value, the rate of participation of each national government in the cases referred by its own domestic courts.
Incidentally, the States with the highest intervention rate (100%) are those whose domestic courts have been only moderately active in referring EUPIL cases to the ECJ, as evidenced by the blue columns of Chart 1 above. This may suggest that States with a higher number of domestic referrals might have to optimize the use of their resources, by choosing a participation strategy that contemplates no systematic engagement with “domestic” cases, this being forsaken where the legal question raised therein is not deemed sufficiently important or significant. This could explain, for example, the relatively low engagement of the Austrian and German governments with domestic cases.
Concerning the continuity of States’ engagement over time, the analysis of a sample of States (the three States having filed the highest number of observations) evidence that it tends to be relatively constant, with a slight drop towards the end of the last decade. The line in orange, which is constant in the three countries, indicates the temporal progression of the totality of EUPIL preliminary rulings requested from the ECJ.
As mentioned in my previous post, the UK began to participate in preliminary reference procedures relating to the 1968 Convention even before it formally became a Party to that international treaty. This was justified in the light of the obligation to ratify that Convention upon accession to the EU, set out by its Article 63, and the prospective precedential value that the ECJ’s judgments would have acquired in the domestic legal system. To the contrary, the Swiss government submitted its first observations in case C-133/11, lodged on 18 March 2011. The Lugano II Convention entered into force for Switzerland on 1 January 2011. From that moment onward, the Swiss government has been quite active before the ECJ (all of its observations concern the Brussels-Lugano regime, except for one case on the Service Regulation), its overall engagement with EUPIL cases having nonetheless dropped in recent years.
E. States’ Sectorial Interests
It is noteworthy that the States’ engagement with EUPIL cases tends to be sector-specific. Charts 5, 6 and 7 8 are breakdowns of Chart 1, accounting for the number of observations filed by each national government in four macro-areas: the Brussels-Lugano regime (Chart 5), which comprises the 1968 Brussels Convention, the Lugano II Convention and Regulations 44/2001 and 1215/2012; family law (Chart 6), composed by Regulations 1347/2000, 2201/2003, 4/2009 and 1259/2010 ; successions (Chart 7), ie Regulation 650/2012 and the “smaller”/procedural regulations (EAPO, EPO, EEO, ESC Regulations; Chart 8).
See here for additional charts and data relating to the observations filed in cases on the Rome regime (the 1980 Rome Convention and Regulations 593/2008, 864/2007) and the Service and Evidence Regulations.
Again, the Member States on the y axis are ordered based on the overall number of the observations filed in each domain, and the logic behind the columns’ colours is the same as that described in relation to Chart 1. It is very apparent that the balances of forces among States vary considerably from one domain to the other, following a logic that is not always perceivable by the external observer. Quite remarkable, in this respect, are the attitudes of Spain and Hungary under the Succession Regulation. These Member States have systematically filed observations in this domain, despite the absolute lack of domestic referrals. In fact, Oberle is the only (admissible) succession case where the Spanish government did not file observations. Lacking any other self-evident explanation, it must assumed that this sectorial engagement is tied with domestic policies in the concerned area of law.