Of courts and consultations: a call for action

Today the IPKat returns to an issue that has frequently been aired on this weblog: in the past he has ranted about this topic sua sponte, but now he is returning to it because he has just received one email too many from some asking him either (i) whether anything has been done about it yet, or (ii) why nothing has been done about it so far  The topic is that of consultation mechanisms in situations in which a national or regional court within the European Union doesn't know the answer to a legal question and decides to ask the Court of Justice of the European Union (CJEU) for its guidance. 

The context in which this happens is, simply put, like this. Most EU legislation is in the form of Regulations, which are automatically binding on all 27 (soon to be 28) countries of the EU without any further legislative action on their part, and Directives, which tell the Member States what sort of rules they have to enact and then leave it to each Member State to enact it.   The wording of both Regulations and Directives is often puzzling for courts to interpret, for one or more of the following non-exclusive list of reasons:
  • The versions of Regulations and Directives that appear in different official languages of the EU may have different meanings or, even if they do not, may carry differences of nuance -- and there is no single version of the legislation that is more authoritative than another;
  • On account of an inherent ambiguity or lack of specificity in the text, it may not be clear whether a Member State has properly implemented ('transposed') a Directive into its national law;
  • There is no ambiguity or lack of clarity but, on a literal interpretation, the Regulation or Directive does not appear to be consistent with its aims as stated in the recitals contained in its Preamble;
  • Two or more legislative texts may have a bearing on the same set of facts and guidance is needed as to which takes precedence (for example, laws on intellectual property, competition, unfair advertising and e-commerce);
  • Courts in different jurisdictions may be applying the same law in different ways;
  • The impact upon EU legislation of subsequent international treaties to which the EU and its Member States are party may be unknown.
When a court seeks a ruling from the CJEU, the form in which it does so may be determined by the court by itself or following consultation with the parties to the litigation as to the precise form that its questions will take.  In either case, the questions are required to be relevant to the facts of the case before the court on the basis that the CJEU's answers are necessary if the case before the referring court is to be decided.  Although the request for a ruling comes from a court of a single jurisdiction, the CJEU's ruling is automatically binding on all the other Member States too, including those in which the questions on which guidance is sought have never been raised or have already been answered to the satisfaction of the Member State in question.  It is for this reason that Member States may make representations before the CJEU even though neither they nor their nationals have any involvement in the dispute at all.  Thus, for example, if a court in Finland wishes to refer to the CJEU a question relating to provisions governing trade marks and geographical indications for wine, the governments of major wine-producing countries such as France, Italy and Spain will have the opportunity to make their own submissions. The amicus brief, in the manner in which it operates in the United States, is not part of the institutional fabric of CJEU procedure, but representations by the Member States and by organs of the European Union can sometimes fulfill a similar function.

Now, the problem is this.  It usually takes the best part of two years, and sometimes considerably more, between the reference of questions and the delivery by the CJEU of its answers.  This would seem to allow plenty of time for Member States to consider the questions and make their submissions. Since all the EU's Member States are representational democracies, there is nothing inimical in the notion that they might wish to launch a consultation process at national level before deciding whether and, if so, what to submit to the CJEU.  

Another holiday spoiled
by tight consultation deadlines ...
This Kat's ire has been stirred [see eg earlier Katposts here, here and here] by the fact that, in the United Kingdom, the period allocated for consultation of interested parties has been no more than a few token days, often spanning a weekend or a public holiday, in which it is difficult for organisations representing traders, practitioners and consumers to ascertain a consensus and to formulate advice on what are often extraordinarily complex issues.  Worse, when the email circular comes round and says that you've got three or four days in which to offer your pearls of wisdom to the UK government, there is not a smidgeon's worth of information as to what the factual or commercial background to  the CJEU reference is, so that it can be difficult to work out whether it affects you or not.  And as if this wasn't quite bad enough, there's no way of finding out if other people are submitting comments -- or what they have advised if they've done so -- which means that there is both a danger of substantial duplication of effort and of interested parties not bothering to respond to consultation requests on the assumption that others will already have done so.

The UK's Intellectual Property Office (IPO), which is responsible for launching the consultations, says it's all the fault of another government department, that of the Treasury Solicitor. That may indeed the case, and this Kat has offered to sit down with the IPO and the Treasury Solicitor in order to work out a better way of doing things (Richard Ashmead is also willing to do so), but this offer has received no response. There are probably a lot of people who are better qualified to do this than this impatient and occasionally irasciable Kat, who is happy to leave it to them.

The sad thing is that, when the IPKat last asked, it seemed that the UK was one of the best jurisdictions in the EU when it came to pre-CJEU consultations, and that most countries have made no provision at all.  Is this still the case, he wonders? It would be good if readers could point to an EU Member State which has really got its act together and has provided a cogent, efficient system that gives sufficient time for interested parties to make some informed comments. 

Merpel adds, "I've been reading the IPKat's correspondence over his shoulder and could not but help notice that all the people who have emailed him on this topic are members of professional bodies or work for companies that belong to trade associations.  Wouldn't it be grand if one of these bodies -- some of which claim to be so influential  -- could pick up this cause and run with it, using their lobbying power and their resources for something that would truly benefit the entire IP community -- and beyond?"
Of courts and consultations: a call for action Of courts and consultations: a call for action Reviewed by Jeremy on Thursday, January 24, 2013 Rating: 5


  1. Your post is based on a misunderstanding. Under the Treaty and the rules of procedure of the Court, MS, parties and institutions have two months plus more or less 10 days from the date of receipt of the notification of a preliminary reference to file written observations. Extensions of the deadline are not possible. This means that in that period, views have to be sought then coordinated, instructions drafted and then written and sent off in time to meet the deadline. Thereafter, no changes to written pleadings (except corrections are allowed).The Court then arranges for translations of the written pleadings as the Court deliberates in French. However, it is misleading to suggest that because it may be two years before the matter comes to judgment that a more generous period of consultation should be allowed.Some MS do not manage to coordinate in time to get a written pleading ready in time and then turn up only at the hearing. Changes in position from written pleadings are allowed at the hearing, if there is one but that is not a reason in itself for a longer period of consultation after the deadline for the written pleadings.

  2. Thank you, Anonymous, for your observations.

    I had not intended to suggest that the entire period of two years or thereabouts should be available for the purpose of enabling Member States to engage in consultations and file representations with the Court. My intention was to contrast the relatively long period of time between reference and ruling with the impossibly short time apparently available to some Member States for consultation exercises.

    Even allowing that the window of opportunity for Member States to make written observations is two months plus c.10 days, a consultation period of generally fewer than five full work days seems unrealistic and ungenerous. One wonders why the UK, for example, does not begin its consultation exercise at the point at which it first receives notification from the Court.

    In reality, thanks to the social media in particular, most interested parties know of questions being referred for a preliminary ruling even before they are officially notified to the Court. On this basis the best solution may be for them to prepare their responses before their governments launch consultation programmes so they can deploy them as appropriate.

  3. On the question of lobbying power and social media networks in the area of IPR -these work a treat in this area of law. So I am not sure who feels left out from the process. A reference to the Court (or avoiding one) is already part of the litigation strategy for most litigants. There are attempts to visit MS authorities, institutions. Well after the written deadline but before judgment, there continue to be judicious placing of articles in academic journals, written views sent in unrequested, ad hoc panels of luminaries to discuss AGs' opinions whilst the judgment is awaited, EP questions etc. Contrast this with other areas the Court deals with such as social security where the MS is also a party and well resourced and the applicant is not ( and not many MS will put in observations in the applicant's favour either) and there is not much in the way of social media networks, articles etc etc.


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