C-466/00

OPINION OF MR RUIZ-JARABO — CASE C-466/00

O P I N I O N O F ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 11 July 2002 1

I. Introduction 3. The general issue underlying this new reference for a preliminary ruling is whether the procedure before the Court of Justice, and in particular the limited right of the parties to be heard once the Opinion of the Advocate General has been delivered, meets the requirements of a fair 1. The reference for a preliminary ruling in hearing, as construed by the European the present case is somewhat unusual. The Court of Human Rights. Immigration Adjudicator, as the court or tribunal ruling at first instance on matters relating to aliens, is raising an issue which is identical — as regards the parties to the main proceedings, the procedure in which it arises and the subject-matter of the questions — to that previously referred in 1998, on which the Court of Justice provided a precise ruling. II. The relevant Community legislation

4. According to Article 7(1) and (2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Com- 2. However, the United Kingdom tribunal munity: 2 is not merely calling for a fresh examin- ation of the matter in the light of the criteria listed by it; it is also asking the Court of Justice to define in general terms the mechanisms available to the referring court or the parties to the action in order to ensure that the steps taken in the procedure ' 1 . A worker who is a national of a before the Court of Justice fulfil the Member State may not, in the territory of requirements of the European Convention another Member State, be treated differ- on Human Rights. ently from national workers by reason of

7. The relevant national law is to be found in the Immigration Act 1971, the Immi- (a) his spouse and their descendants who gration (European Economic Area) Order are under the age of 21 years or who 1994 (hereinafter 'the EEA Order') and the are dependants; United Kingdom Immigration Rules 1994 (House of Commons Paper 395) in force at the material time (hereinafter 'the Immi- gration Rules'), which govern admission to and the right to reside in the United Kingdom.

(b) dependent relatives in the ascending line of the worker and his spouse.' 3 — OJ, English Special Edition 1968 (II), p. 485.

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8. According to paragraph 255 of the (ii) the applicant is still the spouse of the Immigration Rules: person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and

'An EEA National (other than a student) and the family member of such a person, who has been issued with a residence (iii) each of the parties intends to live permit or residence document valid for five permanently with the other as his or years, and who has remained in the United her spouse...'. Kingdom in accordance with the provisions of the 1994 EEA Order for four years and continues to do so may, on application, have his residence permit or residence document (as the case may be) endorsed to show permission to remain in the United Kingdom indefinitely.' 10. Section 33(2A) of the Immigration Act provides that 'references to a person being settled in the United Kingdom are refer- ences to his being ordinarily resident there without being subject under the immi- gration laws to any restriction on the 9. Paragraph 287 of the Immigration Rules period for which he may remain'. is in the following terms:

17. On 15 September 1996 Mr Kaba 15. On 4 May 1994 he married Virginie appealed against that decision to the Immi- Michonneau, a French national, whom he gration Adjudicator, claiming that the had met in 1993 when she was working in provisions of the United Kingdom Immi- the United Kingdom. The couple have lived gration Rules applicable to persons 'present together since their marriage. Having tem- and settled' in the United Kingdom were porarily gone back to France, Ms Michon- more favourable than the provisions that neau returned to the United Kingdom in applied to himself and his wife.

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18. The Immigration Adjudicator con- 20. On 25 September 1998 the Immi- sidered that the position in the case was gration Adjudicator referred the following comparable to that in Case 59/85 Reed, 4in questions to the Court for a preliminary which the Court held that the possibility ruling: for a migrant worker of obtaining per- mission for his unmarried companion to reside with him, where that companion was not a national of a Member State, con- stituted a 'social advantage' for the pur- poses of Article 7(2) of Regulation No 1612/68. '(1) Does the right to apply for indefinite leave to remain in the United Kingdom and the right to have that application considered constitute a "social advan- tage" within the meaning of Article 7(2) of Regulation No 1612/68?

22. On 30 September 1999 Advocate Gen- 25. By fax of 16 March 2000, Mr Kaba's eral La Pergola delivered his Opinion, in lawyers submitted those further observa- which he proposed that indefinite leave to tions, which concluded as follows: remain, of the kind provided for in the United Kingdom legislation, constitutes a social advantage within the meaning of Article 7(2) of Regulation (EEC) No 1612/68 and that the prohibition of discrimination on grounds of nationality 'The points made above are demonstrated prescribed by that provision does not pre- by the documents already submitted to the clude the operation of rules of national law Court. However, if the Court considers that which lay down — as a condition for it is necessary to reopen the oral procedure eligibility for that social advantage — the to ensure that it fully understands the requirement of completion of a period of critical facts and corrects any erroneous residence in the Member State concerned conclusions reached by the Advocate Gen- the duration of which differs according to eral, Mr Kaba's representatives would offer whether the applicant is the spouse of a the Court every assistance.' Community migrant worker or of a person present and settled in the host State.

26. By letter dated 31 March 2000, the Registrar of the Court of Justice acknowl- edged receipt of the further written sub- missions lodged by Mr Kaba's represen- tatives and pointed out that the Rules of 23. The English language version of the Procedure of the Court make no provision Opinion was sent to Mr Kaba on for the submission of observations after the 27 January 2000. oral procedure has been closed. For that reason, the submissions were not included in the case-file before the Court.

years before they become entitled to apply argument that the appellant is seeking a for indefinite leave to remain and to have more comprehensive right of residence than their applications considered, but which that enjoyed by his spouse, a Community requires residence of only 12 months for national. That reasoning was, according to the spouses of persons who are present and Mr Kaba, influenced by the Opinion of the settled in that territory and are not subject Advocate General who had construed, at to any restriction on the period for which point 50 of his Opinion, the observations they may remain there, does not constitute made by the United Kingdom Government discrimination contrary to Article 7(2) of as providing justification for the difference Regulation No 1612/68. in treatment found. However, those obser- vations were actually based not on the issue of justification but on the comparability of situations. The issue of justification was not at any time raised in the proceedings.

33. Lastly, Mr Kaba put forward further reasons in support of his argument that the 2. Was the procedure followed in this Court should have decided the case in a case in compliance with the require- different way. ments of Article 6 ECHR and, if not, how does this affect the validity of the first judgment?'

V. The questions referred for a preliminary ruling Question 2:

34. On the basis of the foregoing, the Immigration Adjudicator decided on 17 December 2000 to make a fresh refer- ence for a preliminary ruling pursuant to 'The Immigration Adjudicator having Article 234 EC, in the following terms: found that the Appellant, and the spouse of a person present and settled in the United Kingdom were (or would be) afforded different treatment in that

Question 1:

(a) the Appellant, having entered the ' 1 . What mechanisms are there for the United Kingdom as the spouse of an referring court or the parties to the EU citizen exercising free movement proceedings (before the referring court rights, was required to have been in the and the ECJ) to ensure that the obli- United Kingdom for four years before gations under Article 6 ECHR are he could apply for indefinite leave to complied with and therefore to ensure remain, whereas

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No evidence (or argument) concerning 35. As the referring court acknowledges, justification of the differential treat- the two questions referred by it to the ment between the applicant and such a Court of Justice are very different in nature, spouse of a person present and settled to the extent that — as the Adjudicator having been presented to the referring indicates — the answer to the second court either at the hearing leading up to question must apply quite independently the order for reference of 25 September of the answer to the first. 1998, in the written or oral observa- tions made by the Respondent before the European Court of Justice or the hearing leading up to the present order for reference, despite the request by the Adjudicator for full argument, the The first question, as set out above, is Immigration Adjudicator asks: formulated in highly abstract terms. The first limb of that question asks the Court of Justice to define the mechanisms, taken as a whole, which are available to the referring court or the parties to the proceedings in order to verify whether the course taken by 'the totality of the proceedings' has com- plied with the requirements imposed by the need to respect human rights.

(1) Whatever the answer to the first question set out above, is the Court's judgment of 11 April 2000 in this case (Case C-356/98) to be The second limb of the first question, interpreted as stating that, in these which is again couched in abstract terms, circumstances, there was discrimi- is somewhat vague and hypothetical. It is nation contrary to Article 39 EC possible that, as regards 'the procedure and/or Article 7(2) of Regulation followed in this case', the question is No 1612/68? referring exclusively to the procedure I - 2230

38. In the order of 25 September 1998 A reading of both parts of this question, in which gave rise to the first preliminary- the terms in which it is formulated, ought ruling procedure, the Immigration Adjudi- to result in a declaration by the Court of cator asked, first, whether the right to Justice that it is not competent to examine apply for indefinite leave to remain in the them, since the task assigned to it by United Kingdom constitutes a 'social Article 234 EC is not to deliver advisory a d v a n t a g e ' within the meaning of opinions on general or hypothetical ques- Article 7(2) of Regulation No 1612/68 and, tions but to assist in the administration of second, whether the requirement imposed justice in the Member States. 8 on spouses of EC nationals to have been resident in the United Kingdom for four years, as compared to the 12-month period applicable to United Kingdom nationals and analogous persons, constitutes dis- crimination contrary to that provision. 36. As the Commission rightly points out, however, it is necessary to establish the terms of that first question in the light of what is said in the context of the second. The scheme of the reference for a prelimi- nary ruling appears to be as follows: first, 39. The second question referred for a clarification is sought of the consequences preliminary ruling has, in practice, the of an infringement of one of the rules same subject-matter. 9 governing the right to a fair hearing and, second, it is proposed that the case should 9 — It is clear that the referring court is not enquiring as to the be reviewed, that proposal being partially correct characterisation, under Article 7(2) of Regulation justified by an alleged infringement of those No 1612/68, of a right to seek indefinite leave to remain; however, that point will have to be tackled first if the Court rules. of Justice considers that the alleged discrimination may exist. It is likewise clear that the question is additionally being posed with reference to Article 39 EC, but that factor is of nosignificance, by virtue of both the principle 'iura novit curia' and the absence of any specific claims referring 8 — Case 244/80 Foglia [1981] ECR 3045, paragraph 18. to that provision.

44. In those circumstances, the national court wishes to know whether the judg- ment of the Court of Justice of 11 April 42. It is clear from that analysis, first, that 2000 is to be interpreted as having estab- the referring court regards it as established lished the existence of unlawful discrimi- that, for the purposes of the prohibition of nation (first hypothesis) or whether that discrimination laid down in the regulation, result falls to be arrived at by means of a the situation of a spouse of a Community reappraisal of the facts (second hypothesis). national who has exercised his right to freedom of movement is comparable to that

10 — See, to that effect, the judgments in Case 29/68 Milch-, Felt- und Eierkontor v Hauptzollamt Saarbrücken [1969] ECR 165, paragraph 3, and Case 14/86 Pretore di Salò v X 45. The answer to the first hypothesis [1987] ECR 2545, paragraph 12, and the orders in Case seems clear. In paragraphs 30 to 35 of its 69/85 Wünsche [1986] ECR 947, paragraph 15, and Case C-116/96 REV Reisebüro Binder [1998] ECR I-1889, judgment of 11 April 2000, the Court of paragraph 8. Justice ruled in particularly unequivocal I - 2232

KABA

11 — Which is, moreover, diametrically opposed to the outcome 12 — Cited in point 19 above. of the appraisal carried out by the Court of Justice. 13 — Order in Reisebüro Binder, cited above, paragraph 9.

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accept, as a fact or as an interpretation of 53. Mr Kaba puts forward various further national law, that the spouse of a migrant considerations to show the similarity Community worker is in the same situation between the two situations: as the spouse of a person 'present and settled' within the meaning of the United Kingdom legislation. 14 That finding falls exclusively within the province of the national court, whereas it is for the Com- munity judicature alone to assess whether (1) neither indefinite leave to remain in the the different treatment applied to the two United Kingdom nor a right of resi- situations (four years' residence for the dence under Community law can be spouse of a Community worker and a stay subject to an express condition as to of only one year for the spouse of a 'person validity in time; present and settled') is contrary to the prohibition of discrimination laid down in Article 7(2) of Regulation No 1612/68 and, generally, in Article 39 EC.

(2) indefinite leave to remain lapses once the person to whom it is granted leaves the United Kingdom, whereas Commu- nity workers remain free to enter and leave the territory of that Member State;

52. The applicant in the main proceedings expresses himself more clearly in this respect, claiming that the comparability of (3) both categories of person may be the two situations is an issue which dep- deported on grounds of public policy, ends on the facts and on the national public security or public health; legislation, and the determination of which is a matter solely for the domestic court.

(a) paragraph 24 of the judgment: the Adjudicator stated that the appellant was not seeking a more extensive right of residence than that conferred on his 55. The referring court states that, at spouse, the migrant worker herself, but point 60 of his Opinion of 30 September that the two of them were in a com- 1999, Advocate General La Pergola con- parable situation for the purposes of strued the observations of the United the prohibition of discrimination; Kingdom Government as claiming justifi- cation for the difference in treatment at issue, whereas the arguments in question were in reality based on the comparability of situations. Thus, the Advocate General based his remarks on an issue which had not been argued by the parties at any stage (b) paragraphs 29 to 31 of the judgment: of the proceedings, either before the the Adjudicator declared that, contrary national court or before the Court of to what was asserted by the United Justice. Although she does not say so in Kingdom Government before the so many words, the Immigration Adjudi- Court of Justice, there was no objective cator appears to consider that that alleged difference affecting the comparability error of assessment found its way into the of the two situations. judgment. 18

57. In my view, the argument put forward by Mr Kaba, which the referring court 56. Mr Kaba adopts those remarks as his appears to accept, is vitiated by a funda- own, adding that, in view of the findings of mental error of approach. According to the explanation given by the appellant in the main proceedings, based on what is stated 16 — Case C-85/96, [1998] ECR I-2691. in the order for reference, the only prob- 17 — Case C-262/96, [1999] ECR I-2685. lematic aspect raised by the first order for 18 — In paragraph 35 of the order for reference, the national court states that the position of the respondent is under- reference is the difference between the stood to be that it does not accept that the Advocate General or the Court of Justice assessed the facts and the periods of residence required of the two domestic law differently from the Adjudicator. categories of persons concerned.

59. However, the Community judicature, the jurisdiction of which is based on the 62. The Court of Justice has held that objectives of the Treaty, is not obliged 'social advantages' should be interpreted simply to accept per se the legal char- as meaning all advantages which, whether acterisations flowing from domestic law or or not linked to a contract of employment, from the assessment made by the referring are generally granted to national workers court. 20 because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, and 19 —Judgment in Case C-235/95 Dumon and Froment [1998] ECR I-4531, paragraph 25. whose extension to workers who are 20 — Were the approach adopted by the national court to be nationals of other Member States therefore accepted literally, the function of the Court of Justice, as the forum competent to interpret Community law, would seems likely to facilitate the mobility of be called in question. It would not be possible for the Court of Justice to examine either the unequal treatment, such workers within the Community. 21 that being a question of pure fact, or any possible justification for such unequal treatment, to the extent that that was not the subject of argument in the national proceedings; consequently, the Court of Justice would be eft with no alternative but to confirm the existence of 21 —Judgments of 31 May 1979 in Case 207/78 Even [1979] ECR 2019, paragraph 22, and of 27 May 1993 in Case prohibited discrimination. C-310/91 Schmid [1993] ECR I-3011, paragraph 18.

63. It follows from the foregoing that, for worker in his own right, and granted by the purposes of effective reliance on reason of the existence of a particular link Article 7(2) of the regulation, it is essential with the host State. Advocate General that there should be unequal treatment as La Pergola considers that the advantage in between migrant workers and workers who question is conferred on national workers are nationals of the host State, in their principally, but not exclusively, on account capacity as workers, as regards enjoyment of their objective status as workers or by of an advantage conferred on them by virtue of the mere fact that they are virtue of their objective status as workers habitually resident in the territory of the or on account of their residing in the host host State. 22 State. Consequently, Article 7(2) does not apply where the categories of persons compared have been contemplated not as workers but in accordance with some other valid legal consideration. Nor does it apply where, even though the persons compared 65. However, the Advocate General takes are workers, the advantage in question is the view that Article 7(2) of the regulation not conferred on account of their status as cannot be validly relied on, inasmuch as the such or by virtue merely of their residence. two situations are not comparable. As This dialectic complexity is more apparent regards the right of residence, paragraph than real: in practice, an advantage granted 255 of the Immigration Rules, providing in accordance with criteria other than the for a period of four years, lays down the status of worker or mere residence will not regime applicable to a migrant Community be aimed at persons in their capacity as worker enjoying an ordinary right of resi- workers. Basically, what is involved is the dence, whereas paragraph 287 deals with same issue seen from different perspectives. the situation of a person 'present and Nevertheless, this observation is useful for settled' in the United Kingdom who, by the purposes of the analysis set out below. contrast with a migrant Community worker, has forged strong links with the host country, normally by having spent an uninterrupted period of four years on its territory. The two situations not being identical (or, at least, there being no possibility of comparing them), the Advo- cate General concluded that there could not be any discrimination based on national- ity. 23

clusion, after noting that the Member terms, comparable situations must be States are entitled to rely on any objective treated differently or different situations difference there may be between their own alike. 25 However, there can be no dis- nationals and those of other Member States crimination if the unequal treatment is when they lay down the conditions under objectively justified. 26 which leave to remain indefinitely in their territory is to be granted to the spouses of such persons. 24 The Court of Justice did not consider that there was any need to rule whether leave to remain indefinitely con- stitutes a social advantage within the meaning of Article 7(2) of the regulation. That approach enabled it to circumvent the difficulties which inevitably arise if the advantage is regarded as having been con- In the specific sphere of social policy, the ferred by reason of the objective status as Court of Justice prefers to state that the workers of those to whom it is granted or general principle of non-discrimination the mere fact of their residence, whilst presupposes that the workers to whom it declaring at the same time that the grantees applies are in comparable situations. 2 7 may be distinguished from migrant Com- munity workers on account of special links with the host State which have nothing to do with their objective status as workers or mere residence.

71. The position is somewhat similar in the present case. It is quite clear that the United Kingdom Government argued before the 70. Article 13A(1) of Directive 77/388/EEC 28 Court of Justice that, unlike a migrant on the harmonisation of value added tax Community worker enjoying an ordinary exempts from VAT, inter alia, activities right of residence, a foreigner 'settled' in relating to supplies of human organs (sub- the United Kingdom has forged strong links paragraph (d)) and tuition given privately in the host country, by having spent an by teachers (subparagraph (j)). It cannot be uninterrupted period of at least four years concluded from that equality of treatment there. The fact that such 'particularly that the donation of organs and the giving enduring links' are taken into account for of private tuition are comparable situ- the purposes of applying a specific system ations. At most, the two situations will be of indefinite leave to remain may serve to similar from the specific standpoint of characterise the legal relationship per se, as liability to VAT. The tax exemption may in the analysis of the Advocate General at be founded on reasons which likewise have point 50 of his Opinion and of the Court of an element in common, such as the desire Justice in paragraph 33 of its judgment, and to promote access to certain specific goods to distinguish it from others not having the or services on public-interest grounds, but same features, so as to preclude, ultimately, this does not mean that the limited and the existence of discrimination. It may also functional comparison of the situations serve — applying the hypothetical scheme goes beyond the scope of that indirect referred to above — as objective justifi- tax — since it is clear that, despite that cation for the difference in treatment similarity, there would be nothing discrimi- afforded to apparently similar situations, natory about a set of rules which subjected thus precluding a finding of unlawful dis- the supply of organs to strict administrative crimination. What is involved, therefore, is control whilst leaving teachers wholly free not an issue of substance but, in any event, to give private tuition. However, it cannot a matter of merely technical assessment or be denied that my example involves approach, without any practical material unequal treatment — between two activ- consequences. ities which should be regulated in a favour- able way for public-interest reasons —, albeit objectively justified — for other rea- sons of the same kind. The fact is that, even

73. It follows by implication from the foregoing reasoning that the Court of Justice could legitimately take into account B. The alleged error concerning the per- the argument of the United Kingdom sonal scope of the EEA Order 1994 Government regarding the existence of 'enduring links' as objective justification for the alleged discrimination, without in any way prejudicing the rights of the defence (inasmuch as the argument was put forward in the context of an inter partes procedure), all the more so since it in fact did so in order correctly to characterise the legal relationships involved and in order 76. According to the Adjudicator: 'In para- to be able to distinguish between them — graph 3 of his Opinion, the Advocate that is to say, to compare them. General states that the Immigration (Euro- pean Economic Area) Order 1994... "is not of concern to United Kingdom citizens and their families...". However, one notes that the EEA Order in fact applies to all those United Kingdom citizens and their families 74. This emerges unequivocally from who return to the United Kingdom having point 50 of the Opinion of Mr La Pergola, exercised their Treaty rights in another which acknowledges that 'the case of a Member State and who benefit from the migrant worker was to be appraised and right clarified by the Court of Justice in regulated, as it in fact was, differently from Case C-370/90 Singh..., as was reiterated that of a person present and settled in the by the Court of Appeal in its judgment in United Kingdom', and also from the judg- Boukssid v SSHD... . It does appear that ment of the Court of Justice, paragraph 31 the Advocate General was under a mis- of which explains that it proposes to reason apprehension in this regard and it is a in terms of an 'objective difference' further example of where the United King- between the two situations. dom does not impose a strict distinction in the application of the Immigration Rules, between spouses of its own nationals and 29 — See F. Tuytschaever, Differentiation in European Union those of nationals of other Member States' Law, Oxford, 1999, especially p. 31. (paragraph 19 of the order for reference). I - 2240

79. Neither the appellant in the main proceedings nor the Commission has sub- mitted any observations whatever concern- ing this alleged misapprehension of the domestic rules. 81. Moreover, according to the United Kingdom Government, even in relation to the EEA Regulations, the assimilation of United Kingdom nationals and their family 80. For my part, I consider that, regardless members to the situation of migrant Com- of the fact that the principles deriving from

32 — Paragraph 23 of the judgment in Singh, cited in point 19 30 — Emphasis added. above. 31 — Cited in point 19 above. 33 — Ibid. Emphasis added.

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2. The first question referred for a pre- 86. The order for reference indicates that liminary ruling the Adjudicator has adopted the arguments put forward by Mr Kaba, according to which the Opinion of the Advocate General is based on a misapprehension of the

84. In view of the solution arrived at in the context of the second question referred for 34 — The Commission also proposes that the first part of this question should be reformulated somewhat, and refers to a preliminary ruling, it appears unnecessary the mechanisms guaranteeing a fair hearing in a procedural situation such as described in the second order for to reply to the first, to the extent that it may reference.

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KABA

As is apparent from reading the order for 89. Although respect for fundamental reference as a whole, the specific question rights, as recognised in the relevant provi- which arises concerns the extent to which sions of the Convention, constitutes a the procedure before the Community judi- prerequisite for the legality of Community cature, which does not confer on the parties any absolute right to challenge the Opinion 35 — The judgment of 20 November 1969 in Case 29/69 Stauder of the Advocate General, complies [1969] ECR 419 is the first in which the Court, following adequately with the requirements of the the Opinion of Advocate General Roemer, ventured to assess the validity of a Community act in the light of 'the Convention as interpreted by the European fundamental human rights enshrined in the general principles of Community law and protected by the Court'. Court of Human Rights. Although Mr Roemer's Opinion referred to 'general qualitative concepts of national constitutional law, in particular fundamental rights recognised by national law,... which form an unwritten constituent part of Community law', it was some while before the Court of Justice expressed a view on the sources of inspiration drawn upon to establish the general principles of law. The judgment of 17 December 1970 in Case 11/70 Inter- nationale Handelsgesellschaft [1970] ECR 1125 alludes to 'the constitutional traditions common to the Member 87. The Court of Justice has replied to States', following the Opinion of Advocate General Dutheillet de Lamothe, who recognised that the funda- those questions in a number of past mental traditions of national legal systems 'contribute to forming that philosophical, political and legal substratum decisions. common to the Member States from which through the case-law an unwritten Community law emerges, one of the essential aims of which is precisely to ensure the respect for the fundamental rights of the individual'. The judgment of 14 May 1974 in Case 4/73 Nold [1974] ECR 491 mentions 'international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories'. The judgment of 28 October 1975 in Case 36/75 Rutili [1975] ECR 1219 is the first decision in which express use is made of specific provisions of the 88. There is a body of settled case-law Convention as an interpretative element to articulate the protection of fundamental rights in the Community concerning the question as to the role context. accorded within the Community frame- 36 — See, amongst many others, the judgment in Case C-260/89 work to the Convention and to the inter- ERT [19911 ECR I-2925, paragraph 41, and, in relation to Article 6 ECHR, that in Case C-299/95 Kremzow [19971 pretation of its tenor by the European ECR I-2629, paragraph 14, as well as the Opinion of Court of Human Rights, according to Advocate General Léger of 3 February 1998 in Case C-185/95 P Baustahlgewebe v Commission [1998] which fundamental rights form an integral ECR I-8417 et seq., especially I-8422, point 24.

91. Moreover, the Court of Justice recog- nises as inherent in the notion of a fair Nevertheless, the Court of Justice pays the hearing the general principle that a judicial greatest heed to the case-law of the Euro- decision may not be based on facts or pean Court of Human Rights. 41 documents of which the parties, or one of them, have not been able to take cognis- ance and in relation to which they have not 3 7 — See, to that effect, the Opinion of Advocate therefore been able to state their views. 43 General Cosmas of 6 July 1999 in Joined cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1 et seq., especially I-3, point 31. 38 — See, inter alia, the judgment in Case 26/62 Van Gend en Loos [1963] ECR 1 and Opinion 1/91 of 14 December 1991 [19911 ECR I-6079, paragraph 21. 39 — Opinion 2/94 of 28 March 1996 [1996] ECR I-17J9, paragraph 35. 40 — I am referring, of course, to the conferences leading to the adoption of the Treaties of Amsterdam (1997) and Nice 92. Nevertheless, the submission of the 41 — See, by way of illustration, Case C-13/94 P v S [1996] parties' arguments and their evidence to ECR I-2143, paragraph 16; Joined Cases C-74/95 and C-129/95 X [1996] ECR I-6609, paragraph 25; paragraph an adversarial process does not involve 29 of the judgment in Baustahlgewebe, cited in footnote 35 above; Case C-270/99 P Z v Parliament [2001] requirements of a mandatory nature. It may ECR I-9197, paragraph 24; also, the Opinions of Advocate be no more than a means of facilitating the General Lenz in Case 236/87 Bergemann [1988] ECR 5125, at 5132, point 29, and in Case C-23/93 administration of justice and dealing with TV 10 [1994] ECR I-4795, at I-4797, point 76 et seq.; the the questions, both of fact and law, that the Opinion of Advocate General van Gerven in Case C-326/88 Hansen [1990] ECR I-2911, at I-2919, court has to resolve. That is typical of the point 14; the Opinion of Advocate General Darmon in Case C-49/88 Al-Jubail Fertilizer v Council [1991] way common-law legal systems operate, in ECR I-3187, at I-3205, points 111 and 112; the Opinion which adversarial proceedings demonstrate of Advocate General Ruiz-jarabo in Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, great resistance to anything deemed 'in- at I-3345, point 71; the Opinion of Advocate General Tesauro in Case C-368/95 Familiapress [1997] ECR I-3689, at I-3692, point 28; the Opinion of Advocate General Jacobs in Joined Cases C-115/97, C-116/97 and C-117/97 Albany [1999] ECR I-5751, at I-5754, point 144 42 — Judgment in Baustahlgewebe, cited in footnote 55 above, et seq.; the Opinion of Advocate General La Pergola in paragraph 21. Case C-273/97 Sirdar [1999] ECR I-7403, at I-7405, point 24; and the Opinion of Advocate General Mischo of 43 — Joined Cases 42/59 and 49/59 SNUPAT v High Authority 20 September 2001 in Case C-94/00 Roquette Frères [1961] ECR 53 et seq., especially p. 84, and Case [2002] ECR I-9011, point 33. C-480/99 P Plant and Others v Commission [2002] ECR I-265, paragraph 24.

'The adversarial principle, which serves to guarantee the equality of the parties before the court, requires that each of the parties be provided with all the documents in the case-file, together, as the case may be, with full details of any points raised by the court of its own motion. Those rules are appli- 93. As a general principle of Community cable to the entire investigative procedure law inspired by disparate legal traditions, carried out under the direction of the court. the requirements of an adversarial process However, the Commissaire du Gouverne- only call for particular judicial attention ment, whose task it is to set out the issues when a failure to observe them results in to be determined in each set of proceedings the breach of a fundamental right, that is to and to deliver a completely independent say, when it infringes the right to a fair opinion containing his impartial assessment hearing. The requirements of an adversarial or the facts of the case in question and the process typically come into play in relation rules of law applicable to it, together with to evidence submitted by one party for his conscientious view concerning the scrutiny by a judicial body. Such evidence, which is by definition external to the court, 45 — Ibid., points 35 and 37. cannot be presumed to be impartial and 46 — In addition, the Commissaire du Gouvernement served as a independent. If such evidence is taken into model for the Advocate General in the Community context. Nevertheless, it should be noted that there are account, without the parties first being various far from negligible differences between the t w o , heard in connection therewith, it may be such as the involvement of the Advocate General in all cases brought before the Court of Justice — and not just those of a contentious nature —, the publication of his Opinion together with the judgment and the non-par- ticipation of the Advocate General in the deliberations of 44 — See my Opinion in Plant, cited above, point 34. the Court.

96. The same approach was adopted by the 99. The principle laid down in the order in Court of Justice in its order of 4 February Emesa Sugar recognises that the Court of 2000 in the case of Emesa Sugar; 48 in Justice is composed of Judges and Advo- response to an application for leave to cates General (Articles 221 EC and 222 submit observations on the Opinion EC), all of whom are subject to the same delivered by myself, the Court of Justice requirements and procedure regarding their appointment (Article 223 EC) and have the same status (Title I of the EC Statute of the 47 — Judgment of the Conseil d'État of 29 July 1998 in the case of Esclatine, Rec. p. 320, Opinion of Commissaire du Court of Justice), especially as regards Gouvernement Chauvaux; emphasis added. ['Le principe immunity and the grounds on which they du contradictoire, qui tend à assurer l'égalité des parties devant le juge, implique la communication à chacune des may be deprived of their office, which parties de l'ensemble des pièces du dossier, ainsi que, le cas guarantees their full impartiality and total échéant, des moyens relevés d'office. Ces règles sont applicables à l'ensemble de la procédure d'instruction à independence. laquelle il est procédé sous la direction de la juridiction. Mais le commissaire du Gouvernement, qui a pour mission d'exposer les questions que présente à juger chaque recours contentieux et de faire connaître, en formulant en toute indépendance ses conclusions, son appréciation, qui doit être impartiale, sur les circonstances de fait de l'espèce et les règles de droit applicables ainsi que son opinion sur les 100. Consequently, the Advocates General solutions qu'appelle, suivant sa conscience, le litige soumis are not comparable to public prosecutors à la juridiction à laquelle il appartient, prononce ses conclusions après la clôture de l'instruction a laquelle il a or similar persons. None of them is sub- été procédé contradictoirement. Il participe à la fonction de juger dévolue à la juridiction dont il est membre. ordinate to any other; 49 they do not L'exercice de cette fonction n'est pas soumis au principe du constitute a distinct body and are not contradictoire applicable à l'instruction. Il suit de là que, pas plus que la note du rapporteur ou le projet de décision, les conclusions du commissaire du gouvernement — qui peuvent d'ailleurs ne pas être écrites — n'ont à faire l'objet d'une communication préalable aux parties, les- 49 — The First Advocate General allocates new cases between quelles n'ont pas davantage à être invitées à y répondre.'] his colleagues and performs a functional role, but may not intervene in any way in the judicial work carried out by the 48 — Case C-17/98 [2000] ECR I-675. Advocates General.

102. The fact that the Opinion is tech 104. It is true that, in its judgment of 7 June nically delivered in the course of the oral 2001 in Kress v France, 53 the European procedure is not significant and has no Court of Human Rights, in assessing, inter practical consequences. 5 1 The real signifi alia, whether the inability of the parties to cance lies in the fact that, as may be respond to the submissions of the Commis inferred from Article 18 of the EC Statute saire du Gouvernement was compatible of the Court of Justice and Article 59 of the with Article 6(1) ECHR, stated: 'No one Rules of Procedure, delivery of the Opinion has ever cast doubt on the independence or marks the end of the submission by the impartiality of the [Commissaire du Gou vernement], and the Court considers that his existence and institutional status are not 50 — The Court of Justice states that 'the Opinion of the in question under the Convention.

That attempted explanation provides an accurate paragraph 9. idea of the notion of the adversarial process as it is 53 — No. 39594/98 ECHR 2001-VI. See the analysis of this understood in common-law jurisdictions, which do not point by F. Benoît-Rohmer in the article entitled 'Le recognise, or alternatively attach only relative significance commissaire du gouvernement auprès du Conseil d'État, to, the concept of iura novit curia: the forum concerned — l'avocat général auprès de la Cour de justice des Commun- in this case, the Court of Justice — is said to have autés européennes et le droit à un procès équitable' in misinterpreted a question of law, in that it allegedly failed Revue trimestrielle de droit européen, 2001, No 4, p. 727 to take account of matters of law which were not raised by et seq., and that of R. Alonso García in the article entitled the parties. Έl enjuiciamento por el Tribunal Europeo de Derechos 51 — It should, rather, be regarded as harking back to the past, Humanos del funciamiento contencioso del Conseil d'État being possibly linked to the former practice of the y del Tribunal de Justicia de las Comunidades Europeas Commissaire du Gouvernement to 'conclure oralement' (en concreto, del papel desempeñado, respectivamente, por before the French Conseil d'État. Nowadays, opinions are el Comisario del Gobierno y por el Abogado General)' in invariably delivered in writing. Revista Española de Derecho Europeo, No 1, p. 1 et seq.

tion that the non-disclosure of his sub- remain legitimate in so far as they fulfil the missions to the parties and the fact that it is obligations to achieve a certain result impossible for the parties to reply to them which flow from the requirements of the are not capable of offending against the Convention. Alternatively, as stated by principle of a fair trial.' 54 This enabled the Judge Martens in his dissenting opinion Strasbourg Court to reiterate its case-law, given in respect of the judgment of according to which 'the concept of a fair 30 October 1991 in Borgers v Belgium, 57 trial also means in principle the oppor- 'the Convention does not aim at uniform tunity for the parties to a trial to have law but lays down directives and standards, knowledge of and comment on all evidence which, as such, imply a certain freedom for adduced or observations filed, even by an Member States.

any reliable test for determining the cir- organique ne sont pas en cause. Toutefois la Cour cumstances in which a given procedure considère que l'indépendance du commissaire du Gouver- nement et le fait qu'il n'est soumis à aucune hiérarchie, ce may give the appearance of being inequi- qui n'est pas contesté, ne sont pas en soi suffisants pour affirmer que la non-communication de ses conclusions aux table. 59 In this connection, the existence of

Ces tendances contradictoires créent une certaine 56 — A theory developed by the Strasbourg Court from the tension qui commande à la Cour d'agir avec prudence et de maxim 'justice must not only be done; it must also be seen veiller à éviter les ingérences dénuées de justification to be done' (judgment of 17 January 1970 in Delcourt v convaincante.'] Belgium, Series A, N o 11, paragraph 31) whereby decisive 58 — In the elastic form of words used by Judge Martens, loc. judicial importance is attached to satisfying a lay person cit. that proceedings have been fairly conducted. This has 59 — It is noteworthy that the Strasbourg Court has not even rightly been the subject of fierce criticism, not least by attempted to sketch out the criteria for assessing such distinguished members of the institution itself. appearances.

108. Before the Court of Justice also, litigants enjoy the benefit of not incon- siderable guarantees for the protection of similar rights of defence. In the interests of 107. In Kress, however, the Strasbourg the very objective of the adversarial pro- Court did not find that there had been an cess, namely to prevent the Court of Justice infringement of the Convention arising from being influenced by arguments on from the inability to respond to the sub- which the parties have not had an oppor- missions of the Commissaire du Gouverne- tunity to comment, the Court may of its ment, since it took the view that the own motion, on a proposal from the procedure before the Conseil d'État Advocate General or at the request of the afforded sufficient guarantees of respect parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks 60 — This raises the question whether the solution adopted in sufficient information or that the case must the Kress judgment, for example, would have been the be dealt with on the basis of an argument same if, instead of being a town councillor of a small municipality, the applicant had been a specialist in the which has not been debated between the procedure followed in French administrative disputes. 61 — As Judge Martens states: 'In order to judge whether fears parties. 6 2The ruling on the question as to impartiality are objectively justified, one needs to whether the oral procedure should be make a very careful assessment of the objective reality which lies behind appearances. Such assessment will reopened is given by the bench seised of frequently include a weighing of interests since what is at the case, in the form of an order, containing stake is often not only the confidence which the courts must inspire, but also the public interest in having a a brief statement of reasons, either dealing rational and smoothly operating judicial system' (dissent- ing opinion annexed to the judgment in Borgers, cited specifically with that point or reserving a above, point 3.4). ['Pour déterminer si des craintes de partialité sont objectivement justifiées, il faut se livrer à une étude scrupuleuse de la réalité objective par-delà les apparences. Semblable appréciation inclura fréquemment une mise en balance d'intérêts, car l'enjeu réside souvent 62 — Order in Emesa Sugar, cited above, paragraph 18. It non seulement dans la confiance que les tribunaux doivent should be noted that this obligation to protect the parties inspirer, mais aussi dans l'intérêt pour le public de disposer from being taken by surprise ('Oberraschungsschutz') is d'une organisation judiciaire rationnelle et fonctionnant also binding on the Court of Justice itself as regards its sans heurts.'] judgment.

decision on it until final judgment. 63 Obviously, for the purposes of deciding Lastly, it should be added that, in practice, whether the oral procedure should be re- any written submissions lodged by the opened, the Court of Justice is bound to parties after delivery of the Opinion are carry out an assessment of a judicial nature, considered by the Advocate General, the examining whether the Advocate General Judge-Rapporteur and the President of the has raised arguments which the parties bench, with a view to examining whether have not been able to debate (including they may be regarded as an application for any possible errors of fact or of law on the re-opening of the oral procedure. which those arguments may be based) and whether the arguments in question are

entitled to have the oral procedure re- in Case C-2/91 Meng, not published in the European Court opened. As matters stand, that is the inter- Reports, and the judgment delivered in the same case on 17 November 1993 ([19931 ECR I-5751); the order of pretation which must be applied to 13 December 1994 in Case C-312/93 Pelerbroeck, not Article 61 of the Rules of Procedure. published in the European Court Reports, and the judg-

published in the European Court Reports, and the judg- ment delivered in the same case on 6 June 2000 ([2000] ECR I-4071); the order of 26 March 1999 in Case C-203/98 Commission v Belgium, not published in the European Court Reports, and the judgment delivered in the same case on 8 July 1999 ([1999] ECR I-4899); the 109. Systematically to confer on the parties

case on 3 February 2000 ([2000] ECR I-527); the judg- parties, be they principal parties or inter- ments in Case C-50/96 Deutsche Telekom [2000] ECR I-743, paragraphs 19 to 24, Joined Cases C-234/96 veners, to reply to those observations (so as and C-235/96 Deutsche Telekom [2000] ECR I-799, paragraphs 25 to 30, Joined Cases C-270/97 and C-271/97

judgment in Case C-309/99 Wouters and Others [2002] ECR I-1577, paragraphs 40 to 43; and the order of 29 March 2001 in Case C-102/97 OP SIVU, not published in the European Court Reports, and the judgment 64 — See, as regards the procedure before the French Conseil delivered in the same case on 2 October 2001 ([2001] d'Etat, O. Gohin, La contradiction dans la procédure ECR I-6699). administrative contentieuse.

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in the case. In addition, this would diminish the particular weight attaching to Opinions as an element of the judicial process, since it would mean that the Court would not have a complete procedural framework on which to base its decision and would thus 112. If one consciously accepts the prin- be deprived of the analysis carried out by ciple that every document or observation one of its members, which has hitherto submitted to the bench called upon to been a source of inspiration and an adjunct adjudicate in the matter should be open to to the judgments delivered. Moreover, the debate between the parties, on the nebulous Advocate General, knowing that his basis of appearances, 67 one calls in ques- Opinion would be the subject of a response tion the raison d'être of the participation of from the parties, would inevitably take the Advocate General in the various stages their reactions into account when drafting of the procedure. 68 The Advocate General it, and would not therefore deliver it 'with complete impartiality and independence' as required by Article 222 EC. 67 — 'One of the features of appearances is that it is impossible to know how far they extend: the notion of appearances is amazingly flexible, so that its use in proceedings is not without certain dangers' — so states, with a degree of irony, D. Chabanol, in Théorie de l'apparence ou appar- ence de théorie. Humeurs autour de l'arrêt Kress, Actualité juridique Droit administratif, January 2002, p. 9 et seq., especially p. 10.

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is heard, both in the written and oral the Advocate General would be trans­ stages, 69 and in relation to many other formed into something which he has never procedural steps and issues, 70 without the been, namely a party to the proceedings, parties being provided with any infor­ which would irremediably distort his role mation concerning the tenor of his proposal in the proceedings and thus the usefulness or the reasons on which it is based. Never­ of his office and of his existence. 72 theless, in those procedural steps too, the Advocate General 'plays a real role in the procedure'. 71 It would be ironic if the notion of appearances were to focus solely and precisely on his most public and trans­ parent intervention.

114. It is necessary to consider whether such consequences are justified by the need to protect against a subjective, hypothetical fear of partiality.

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Court of Justice to points arising in that establishment and development of Com- connection. 74 munity case-law, 76 promoting debate both within the institution and in other inter- 115. Furthermore, important though those ested circles. In the latter regard, it may be reasons may appear to be, my opposition to said that, rather than placing constraints the establishment of a system possessing upon the objective principle of an adversa- those characteristics is of a different nature: rial process, the Opinion of the Advocate I am not wholly convinced that the require- General tends to strengthen that prin- ments of a fair trial render such a system ciple. 77 The real guarantee afforded to a indispensable. On the contrary, I consider litigant is not that the court is free from any that, in terms of his established role, the preconceptions but that his case has been Advocate General, as to whose impartiality examined with all the rigour which it and independence — I stress this point — deserves. 78 it is impossible to express the slightest reservation, helps to publicise, and to promote the transparency of, the judicial function assigned to the Court of Justice; his Opinions make it easier to understand the judgments delivered 75 and influence the

sitting. At all events, the freedom of the Advocates General 75 — As a result of the fact that individual judgments are not individually to propose the way in which a given case delivered by judges of the Court of Justice, and on account should be determined has proved, in the practice of the of the inevitable constraints inherent in an international Community judicature, to be an adequate counterbalance judicial body functioning as a supreme court, it often to the collegiate approach which the judges are required to happens that judgments are not as clear as one would wish adopt when drawing up judgments. or that the reasoning contained in them is extremely terse. Thus, the Opinion, which is published together with the 77 — As regards the submissions of the Commissaire du judgment, serves to clarify the contents and scope of the Gouvernement, see B. Genevois: 'Le commissaire du

relevant case-law. Moreover, it contains references to the trative et la Convention EDH', La Semaine Juridique, academic writings on the matters concerned. It normally Édition générale, 1998, Nos 45-46, p. 1945 et seq., addresses all the legal issues raised in the litigation, even especially p. 1951), the rigour applied to the examination where this is not strictly necessary for the purposes of of the case is a consequence of its having been continu- deciding the case. Lastly, it constitutes the work or a single ously looked at and worked on by different persons in author, thus permitting a more homogeneous discussion of diverse configurations, before undergoing the sifting pro- the case than is found in judgments, which must be agreed cess involved in the final discussion of the case undertaken upon by various different judges. in the Commissaire's submissions.

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(2) Fundamental rights form an integral part of the general principles of law respect for which is guaranteed by the Court of Justice, inspired by the constitutional traditions common to the Member States and by the guidance given by the international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The European Convention on Human Rights has special significance in that context.

(3) The fact that the oral procedure was not re-opened following delivery of the Opinion of Advocate General La Pergola on 30 September 1999 does not mean that the appellant in the main proceedings was denied a fair hearing, since that Opinion contained no argument which could not have been debated by the parties and no significant error regarding the relevant matters of fact or of law.

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