The European Court of Justice ("ECJ") has adopted new rules of procedure, replacing previous rules that had remained largely untouched since their adoption in 1953.  The goal of these changes is to speed up ECJ proceedings, but these new rules may also reduce transparency and undercut parties’ right to be heard in antitrust matters.

The ECJ is the highest of the EU courts.  Its jurisdiction includes the power to review the General Court’s decisions on points of law.  The new rules entered into force on 1 November 2012.

The timely adjudication of cases is one of the key objectives of the new rules, in view of the increased workload subsequent to the EU’s enlargements in 2004 and 2007, which resulted in 12 new Member States.  The streamlining and tightening up of procedures encompasses both the written and oral procedures.

Written procedure.  The following changes aim at encouraging brevity, clarity and well-founded written pleadings.

  • Length of submissions:  The ECJ may now set the maximum length of written pleadings or observations lodged before it.
  • Threshold for applications during appeals: Applications to submit a second round of written pleadings must now be "duly reasoned," and the President will adopt its decision on such requests after hearing the Judge-Rapporteur (the Judge in charge of drafting the judgment) and the Advocate General.
  • Separating response and cross-appeal:  Cross-appeals must now be introduced in a document separate from the response.

Oral procedure.  The procedure for oral hearings is significantly scaled back, and notably may now be either eliminated altogether or pared down.

  • Elimination of requirement for oral hearing:  The ECJ is no longer required to hold an oral hearing, if it considers upon reviewing the written pleadings or observations lodged by the parties that it has sufficient information.
  • New possibility for specific focus on issues:  The ECJ may now invite oral hearing participants to concentrate their oral pleadings on one or more specified issues.
  • Elimination of the report for the hearing:  The report for the hearing, which provided detailed summaries of the arguments put forward by the parties in their written submissions, is now eliminated.  The purpose of such reports was to assist the parties and the ECJ in preparing for the oral hearing.  In the ECJ’s view, the drafting of these reports has consumed a significant portion of its resources, but without contributing significantly to understanding of the case.

The general objective of improving the ECJ's efficiency is certainly to be welcomed, and some of the new rules, like limits on the length of pleadings and focusing on specified points in the oral submissions, were already applied in practice.  The new rules nevertheless raise concerns of decreased transparency and a reduction in the parties' rights to be heard.  For example, the elimination of the report for the hearing suppresses a key phase of disclosure that had served as a window for both parties and interested observers to gaining a fuller understanding of the proceedings, particularly in light of the ECJ’s brevity in summarizing the parties’ arguments in its final judgments.  Likewise, the ECJ’s new ability to refuse to grant oral hearings raises the risk of depriving the parties of a last opportunity to argue their case.

Over the past few years, in appeal proceedings for antitrust matters, the ECJ's practice has been to drastically limit the length of the oral pleadings, as well as the number of questions put to the lawyers.  There is therefore a concrete risk that the ECJ will make use of its new powers to even further cut back on these types of proceedings, reducing transparency and affecting the parties’ rights to be heard on particularly complex legal issues like those often arising in antitrust matters.