¹ The Court has tended recently to make more use of its power not to permit the initial round of pleadings in direct actions to be amplified: see Art 41 of the Rules of Procedure (‘RP’). In infringement proceedings under Art 258 TFEU (ex Art 226 EC), the Commission’s application will have annexed to it the various steps in the pre-contentious procedure: as a minimum, the letter of formal notice and the Member State’s reply, followed by the reasoned opinion and the Member State’s further response.

² [1999] OJ C73/1.

³ The ‘Joint Practical Guide: Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of legislation within the Community institutions’ is available at <http://eur-lex.europa.eu/en/techleg/>, accessed 31 August 2010.

⁴ For what it is worth—and I do emphasise that this is a very personal view, based on writing opinions (normally) in English and ‘prises de position’ in the urgent preliminary ruling procedure (the ‘procédure préjudicielle d’urgence’, or ‘PPU’) in French—I think it is slightly less easy to be inadvertently ambiguous in French than in English, because the grammatical structure is tighter. It is correspondingly easier to make actual grammatical mistakes!

⁵ See, eg, the reference from the German Oberlandesgericht Frankfurt am Main in Case C-173/07 Emirates Airlines Direktion für Deutschland v Diether Schenkel [2008] ECR I-5237. At points 6 to 9 of my Opinion of 6 March 2008, I examined different linguistic versions of Regulation 261/2004/EC (the air passengers regulation, the interpretation of which was at issue in that case) and suggested that the problem with which the German court was grappling really seemed to stem from the wording of the German text of the regulation.

⁶ In this analysis, I deliberately lay emphasis on the reference procedure. If a particular text is ambiguous as the result of political compromise, experience suggests that it may be correspondingly less likely that the Commission will rock the boat by bringing infringement proceedings against a Member State that implements the EU measure according to its understanding of what it has secured. References from national courts are, however, the joker in the pack.

⁷ See <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:297:0001:0006: EN:PDF>, accessed 31 August 2010; also at [2009] OJ C297/1. The notes were most recently updated to take into account the entry into force of the Treaty of Lisbon on 1 December 2009. The Court’s Rules of Procedure Committee is currently engaged in a complete review of the rules of procedure (an event not unlike the cleansing of the Augean stables, requiring equally Herculean stamina from all participants in the process). I imagine that, once that process is completed and the Council’s Court of Justice Committee has decided to what extent it is prepared to accept any revisions that are proposed (or, indeed, make changes of its own), a further update will be needed.

⁸ Presently, both the accelerated procedure and the PPU have specifically to be requested by the referring court (under Art 104a and Art 104b, respectively, of the Rules of Procedure). The evidence thus far suggests that a referring court will tend to request one or the other, but not the two procedures in the alternative. Whilst the Court can apply the PPU of its own motion it has not so far done so; and it does not have the equivalent power in respect of the accelerated procedure.

⁹ In the PPU, written submissions are lodged under extremely tight time constraints (normally, 10 working days) and are limited to those using the language of procedure (the parties, the Member State from which the reference comes and the Commission). Any other Member States that wish to intervene can only do so orally at the hearing. The Advocate General aims to present his ‘prise de position ‘ very shortly thereafter (within 48 hours appears to be the average).

¹⁰ The only significant exception to this rule is the procedure under Art 218 TFEU (ex Art 300 EC) whereby the Court of Justice can be asked to give its opinion on the compatibility with the Treaties of a proposed agreement that would bind the European Union. The Court hears all the Advocates General before proceeding to rule in such cases. The procedure therefore requires the Advocates General to deliberate together (a novel experience). Their advice is given to the Court ‘en chambre de conseil’ in an internal document that, if necessary, reflects the divergent views of the Advocates General, but that is not (as yet) published by the Court.

¹¹ For an Advocate General from a mainstream linguistic tradition (English, French, German, Italian, Spanish) the choice of language is straightforward enough: one’s mother tongue. There are occasional divergences from that simple choice. Thus, for example, the Advocates General have collectively agreed to write their ‘prise de position’ in a case subject to the PPU in French, so as to enable the Court to move straight on to the délibéré (rather than having to wait for the Advocate General’s text to be translated from the original language into French and be formally delivered before deliberating). For the three Advocate General on rotating posts—currently Advocates General Mazák (Slovakia), Trstenjak (Slovenia) and Jääskinen (Finland)—life is more complicated. All three write in mainstream/pivot languages—essentially English, French and German—rather than their mother tongues. This is very helpful to the Court’s translation services, at the cost of greater work for the Advocates General concerned.

¹² Judicial Statistics (43% in 2007, 41% in 2008, 52% in 2009), Annual Report 2008, 11 and 2009, 11. Each Advocate General is allocated one-eighth of the Court’s total case load; and before he agrees that an Opinion is not needed in a particular case, the file has been gone through carefully, by both the Advocate General and his référendaire, at least once.

¹³ Art 20 of the Statute of the Court.

¹⁴ Declaration no 38 annexed to the Treaty of Lisbon.

¹⁵ See, eg, the Opinion Statement of the CFE [Confédération fiscale européenne] on ECJ Advocate General Opinions in Tax Matters, available at <http://www.cfe-eutax.org/sites/default/files/CFE%20Opinion%20Statment_AdvGen%20revPB.pdf>, accessed 31 August 2010.

¹⁶ Assuming that there is a hearing. If there is not, time is normally reckoned from the moment that the case passes through the Court’s réunion générale, at which the decision will be taken as to whether or not an Opinion is required.

¹⁷ This is another example of the unquantifiable proposition. How much time elapses between the hearing and the formal presentation of the Opinion is readily measurable (although it should be remembered that often the Advocate General makes the provisional text of his Opinion available to the chamber at the moment it is sent over to translation, which may make it possible for work to re-start on the case well before the Opinion is delivered in public). Conversely, it is impossible to measure how much time is saved by a well-written Opinion, whether directly (as the case progresses ‘en délibéré’) or indirectly (once the judgment and its accompanying Opinion are added to the corpus of EU law).

¹⁸ Suppose five sets of written observations are lodged in the case and that (on average) each set of observations spends four pages on the warm-up before starting the analysis (possibly, a conservative estimate). Those 20 pages are a dead weight in the system. If that, or something like it, happens in even half the cases lodged, the global saving from the exercise of greater restraint by those pleading can readily be imagined. Note that I am not suggesting a gag that would prevent an advocate from putting relevant material before the Court. I am merely begging advocates not to reiterate material at length for the sake of being sure that they have said it again in their own words.

¹⁹ Whether that is the judge completing the rapport préalable presenting the case to the réunion générale or circulating a draft judgment, or the Advocate General presenting his Opinion.