62000CC0466_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I.
Introduction
1.
The reference for a preliminary ruling in the present case is somewhat unusual.
The 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.
2.
However, the United Kingdom tribunal is not merely calling for a fresh examination 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 before the Court of Justice fulfil the requirements of the European Convention on Human Rights.
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 hearing, as construed by the European Court of Human Rights.
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 Community: (2)
"1.
A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.
2.
He shall enjoy the same social and tax advantages as national workers.
"
5.
Article 10(1) of Regulation No 1612/68 provides:
"The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:
(a)
his spouse and their descendants who are under the age of 21 years or who are dependants;
(b)
dependent relatives in the ascending line of the worker and his spouse.
"
6.
Article 4(4) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (3) provides as follows:
"A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent."
III.
National legislation
7.
The relevant national law is to be found in the Immigration Act 1971, the Immigration (European Economic Area) Order 1994 (hereinafter
"the EEA Order"
) and the United Kingdom Immigration Rules 1994 (House of Commons Paper 395) in force at the material time (hereinafter
"the Immigration Rules"
), which govern admission to and the right to reside in the United Kingdom.
8.
According to paragraph 255 of the Immigration Rules:
"An EEA National (other than a student) and the family member of such a person, who has been issued with a residence permit or residence document valid for five years, and who has remained in the United 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."
9.
Paragraph 287 of the Immigration Rules is in the following terms:
"The requirements for indefinite leave to remain for the spouse of a person present and settled in the United Kingdom are that:
(i)
the applicant was admitted to the United Kingdom or given an extension of stay for a period of 12 months and has completed a period of 12 months as the spouse of the person present and settled here; and
(ii)
the applicant is still the spouse of the person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and
(iii)
each of the parties intends to live permanently with the other as his or her spouse ...
"
.
10.
Section 33(2A) of the Immigration Act provides that
"references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain"
.
11.
The national courts have held that a migrant worker who is a national of a Member State of the European Union is not, for that reason alone,
"settled"
in the United Kingdom for the purposes of that provision.
12.
Article 4(1) of the EEA Order provides that a
"qualified person"
is entitled to reside in the United Kingdom for as long as he remains a qualified person, and that entitlement is extended to members of his family, including spouses, by Article 4(2).
Article 6 of the Order defines a
"qualified person"
as including an EEA national who undertakes in the United Kingdom the activities of a worker.
IV.
Facts and main proceedings
13.
As is apparent from the various documents in the case-file, the facts giving rise to the present proceedings may be summarised as follows.
14.
Mr Kaba, a Kosovan of Albanian origin possessing Yugoslav nationality, arrived in the United Kingdom on 5 August 1991.
His request for leave to enter the United Kingdom for one month as a visitor was refused but he did not leave the United Kingdom.
In February 1992 an application for asylum was lodged on his behalf.
15.
On 4 May 1994 he married Virginie Michonneau, a French national, whom he had met in 1993 when she was working in the United Kingdom.
The couple have lived together since their marriage.
Having temporarily gone back to France, Ms Michonneau returned to the United Kingdom in January 1994 to seek work, which she found in April 1994.
In November 1994 she obtained a five-year residence permit valid until 2 November 1999.
Mr Kaba was granted leave to remain in the United Kingdom for the same period, as the spouse of a Community national exercising in that country her rights under the EC Treaty.
16.
On 23 January 1996 Mr Kaba applied for indefinite leave to remain in the United Kingdom.
On 9 September 1996 the Secretary of State for the Home Department refused to grant such leave.
He stated in a letter of 3 October 1996 that Mr Kaba did not fulfil the requirements of paragraph 255 of the Immigration Rules since his wife had remained in the United Kingdom, in the terms of the EEA Order, for a total of only one year and 10 months.
17.
On 15 September 1996 Mr Kaba appealed against that decision to the Immigration Adjudicator, claiming that the provisions of the United Kingdom Immigration Rules applicable to persons
"present and settled"
in the United Kingdom were more favourable than the provisions that applied to himself and his wife.
18.
The Immigration Adjudicator considered that the position in the case was comparable to that in Case 59/85
Reed
, (4) in which the Court held that the possibility for a migrant worker of obtaining permission for his unmarried companion to reside with him, where that companion was not a national of a Member State, constituted a
"social advantage"
for the purposes of Article 7(2) of Regulation No 1612/68.
19.
The Immigration Adjudicator observed, however, that although in
Reed (5) the Court had held that a Member State which grants a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 to its nationals may not refuse to grant the same advantage to migrant workers who are nationals of other Member States, it also stated, in paragraph 23 of its judgment in Case C-370/90
Singh
, (6) that Articles 48 and 52 of the EC Treaty (now, after amendment, Articles 39 and 43 EC) did not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.
20.
On 25 September 1998 the Immigration Adjudicator referred the following questions to the Court for a preliminary ruling:
"(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 advantage"
within the meaning of Article 7(2) of Regulation No 1612/68?
(2)
Does the requirement imposed on the spouses of EC nationals to have been resident in the United Kingdom for four years before an application for indefinite leave to remain in the United Kingdom may be made and considered (see paragraph 255 of the United Kingdom Immigration Rules, House of Commons Paper 395), as compared to a requirement of 12 months' residence before such application can be made, as is applied to spouses of UK nationals and spouses of those present and settled in the United Kingdom (paragraph 287 of the United Kingdom Immigration Rules, House of Commons Paper 395) constitute unlawful discrimination contrary to Article 7(2) of Regulation No 1612/68?
"
21.
The hearing took place on 15 June 1999.
22.
On 30 September 1999 Advocate General La Pergola delivered his Opinion, in which he proposed that indefinite leave to 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 prescribed by that provision does not preclude the operation of rules of national law which lay down ─ as a condition for eligibility for that social advantage ─ the requirement of completion of a period of residence in the Member State concerned the duration of which differs according to whether the applicant is the spouse of a Community migrant worker or of a person present and settled in the host State.
23.
The English language version of the Opinion was sent to Mr Kaba on 27 January 2000.
24.
By fax of 3 February 2000, Mr Kaba's representatives informed the Court of their concern regarding the accuracy of certain facts on which the Advocate General's Opinion appeared to have been based, stating that, in their view, the inaccuracies in question constituted exceptional grounds for reopening the oral procedure and that they wished to lodge further observations.
25.
By fax of 16 March 2000, Mr Kaba's lawyers submitted those further observations, which concluded as follows:
"The points made above are demonstrated by the documents already submitted to the Court.
However, if the Court considers that it is necessary to reopen the oral procedure to ensure that it fully understands the critical facts and corrects any erroneous conclusions reached by the Advocate General, Mr Kaba's representatives would offer the Court every assistance."
26.
By letter dated 31 March 2000, the Registrar of the Court of Justice acknowledged receipt of the further written submissions lodged by Mr Kaba's representatives and pointed out that the Rules of Procedure of the Court make no provision for the submission of observations after the oral procedure has been closed.
For that reason, the submissions were not included in the case-file before the Court.
27.
The Court delivered its judgment on 11 April 2000 (rectified by order of 4 May 2001), in which it held that, without there being any need to rule whether leave to remain indefinitely in national territory constitutes a social advantage, legislation of a Member State which requires spouses of migrant workers who are nationals of other Member States to have resided in the territory of that Member State for four years before they become entitled to apply for indefinite leave to remain and to have their applications considered, but which requires residence of only 12 months for the spouses of persons who are present and settled in that territory and are not subject to any restriction on the period for which they may remain there, does not constitute discrimination contrary to Article 7(2) of Regulation No 1612/68.
28.
By letter of 25 April 2000 Mr Kaba's representatives requested the Court to provide a transcript of the hearing on 15 June 1999.
That request was refused on the ground that such transcripts are
"internal documents of the Court of Justice"
.
29.
On 12 September 2000 Mr Kaba brought proceedings against the United Kingdom before the European Court of Human Rights, claiming infringement of Article 6 of the European Convention on Human Rights (hereinafter
"the Convention"
).
30.
Before the Immigration Adjudicator, Mr Kaba claimed, first, that the Court of Justice had erroneously treated indefinite leave to remain as more secure or stable than the status of EC nationals within the United Kingdom, prompting it to accept the argument that the appellant is seeking a more comprehensive right of residence than that enjoyed by his spouse, a Community national.
That reasoning was, according to Mr Kaba, influenced by the Opinion of the Advocate General who had construed, at point 50 of his Opinion, the observations made by the United Kingdom Government as providing justification for the difference in treatment found.
However, those observations 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.
31.
Second, Mr Kaba submitted that the Advocate General had reappraised the primary facts of the main case.
The Immigration Adjudicator endorsed that argument in so far as the only critical feature in the initial order for reference was the difference between the periods of residence required of the two categories of persons in question, whereas it was common ground that Mr Kaba fulfilled the other conditions required by the Immigration Rules.
32.
Third, the applicant complained that it was incorrect of the Advocate General to state, at point 3 of his Opinion, that the EEA Order 1994 is not of concern to United Kingdom citizens and their families; in practice, and in accordance with the judgment in
Singh
, (7) the EEA order applies to all those United Kingdom citizens and their families who return to the United Kingdom having exercised their rights under the Treaty in another Member State.
That complaint is echoed in the justification given for the fresh reference.
33.
Lastly, Mr Kaba put forward further reasons in support of his argument that the Court should have decided the case in a different way.
V.
The questions referred for a preliminary ruling
34.
On the basis of the foregoing, the Immigration Adjudicator decided on 17 December 2000 to make a fresh reference for a preliminary ruling pursuant to Article 234 EC, in the following terms:
Question 1:
"1.
What mechanisms are there for the referring court or the parties to the proceedings (before the referring court and the ECJ) to ensure that the obligations under Article 6 ECHR are complied with and therefore to ensure that no infringement of Article 6 ECHR arises either under the domestic human rights legislation or before the Court of Human Rights?
2.
Was the procedure followed in this case in compliance with the requirements of Article 6 ECHR and, if not, how does this affect the validity of the first judgment?
"
Question 2:
"The Immigration Adjudicator having 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
(a)
the Appellant, having entered the United Kingdom as the spouse of an EU citizen exercising free movement rights, was required to have been in the United Kingdom for four years before he could apply for indefinite leave to remain, whereas
(b)
the spouse of a person who was present and settled in the United Kingdom (whether a British national or as a person who had been granted indefinite leave to remain) would qualify after one year for indefinite leave to remain.
No evidence (or argument) concerning justification of the differential treatment between the applicant and such a spouse of a person present and settled having been presented to the referring court either at the hearing leading up to the order for reference of 25 September 1998, in the written or oral observations 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 Immigration Adjudicator asks:
(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 interpreted as stating that, in these circumstances, there was discrimination contrary to Article 39 EC and/or Article 7(2) of Regulation No 1612/68?
(2)
After re-assessment of the facts, is there discrimination contrary to Article 39 EC and/or Article 7(2) of Regulation No 1612/68?
"
VI.
Analysis of the questions referred for a preliminary ruling
35.
As the referring court acknowledges, the two questions referred by it to the Court of Justice are very different in nature, to the extent that ─ as the Adjudicator indicates ─ the answer to the second question must apply quite independently of the answer to the first.
The first question, as set out above, is 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 complied with the requirements imposed by the need to respect human rights.
The second limb of the first question, which is again couched in abstract terms, is somewhat vague and hypothetical.
It is possible that, as regards
"the procedure followed in this case"
, the question is referring exclusively to the procedure before the Court of Justice in connection with the reference for a preliminary ruling, although, in the light of the wording of the first limb of the question, it might be construed as referring to the whole of the procedure.
Moreover, it is not permissible to ask, without greater precision, for a declaration of the conformity of an entire procedure, or even of that part of it consisting of the reference for a preliminary ruling, with the requirements of a fair hearing laid down in Article 6 of the Convention.
A reading of both parts of this question, in the terms in which it is formulated, ought to result in a declaration by the Court of Justice that it is not competent to examine them, since the task assigned to it by Article 234 EC is not to deliver advisory opinions on general or hypothetical questions but to assist in the administration of justice in the Member States. (8)
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 preliminary ruling appears to be as follows: first, clarification is sought of the consequences of an infringement of one of the rules governing the right to a fair hearing and, second, it is proposed that the case should be reviewed, that proposal being partially justified by an alleged infringement of those rules.
37.
I therefore regard it as reasonable and, moreover, in conformity with the proper administration of justice to analyse, first of all, the second question with a view to establishing the effect of that analysis on the first question.
1.
The second question referred for a preliminary ruling
38.
In the order of 25 September 1998 which gave rise to the first preliminary-ruling procedure, the Immigration Adjudicator asked, first, whether the right to apply for indefinite leave to remain in the United Kingdom constitutes a
"social advantage"
within the meaning of Article 7(2) of Regulation No 1612/68 and, second, whether the requirement imposed 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 discrimination contrary to that provision.
39.
The second question referred for a preliminary ruling has, in practice, the same subject-matter.
(9)
40.
There can be no doubt as to the admissibility of this new reference.
Within the limits established by Article 234 EC, it is for the national courts alone to decide on the principle and purpose of any reference to the Court of Justice and it is also for those courts alone to consider whether they have obtained sufficient guidance from the preliminary ruling delivered in response to their reference or whether it appears to them necessary to refer the matter once more to the Court, without diminishing the binding nature of preliminary rulings.
(10)
41.
In order to understand the reasons which have prompted the Immigration Adjudicator to raise the same question a second time, it is necessary to carry out a careful analysis of the order for reference and to place it in its proper context in the light of the written and oral observations submitted on behalf of Mr Kaba.
42.
It is clear from that analysis, first, that the referring court regards it as established that, for the purposes of the prohibition of discrimination laid down in the regulation, the situation of a spouse of a Community national who has exercised his right to freedom of movement is comparable to that of a person present and settled in the United Kingdom, whether the person concerned is a United Kingdom citizen or whether he has obtained indefinite leave to remain.
The Immigration Adjudicator points out that no evidence or argument concerning justification of the differential treatment between the two situations was presented during the proceedings leading up to the first reference for a preliminary ruling, or the proceedings subsequently brought before the Court of Justice, or indeed the hearing leading up to the present reference.
43.
Second, the referring court considers that the Opinion of Advocate General La Pergola of 30 September 1999 contains an error concerning the personal scope of the EEA Order 1994.
44.
In those circumstances, the national court wishes to know whether the judgment of the Court of Justice of 11 April 2000 is to be interpreted as having established the existence of unlawful discrimination (first hypothesis) or whether that result falls to be arrived at by means of a reappraisal of the facts (second hypothesis).
45.
The answer to the first hypothesis seems clear.
In paragraphs 30 to 35 of its judgment of 11 April 2000, the Court of Justice ruled in particularly unequivocal terms, without leaving sufficient room for acceptance of the argument put forward. (11)
Consequently, there can be no doubt that the Court of Justice found that there was no discrimination prohibited by Community law.
46.
It is therefore appropriate to consider the second hypothesis, that is to say, the question whether, in the light of the findings of fact made by the referring court, the case should be re-examined so as, possibly, to produce a different result.
47.
Those findings, which I will discuss in turn, are twofold.
48.
First, it is said that the Court of Justice diverged from the factual assessment carried out by the referring court, according to which the only difference in treatment as between the appellant and a fictitious United Kingdom national already present and settled in that country concerned the length of the period of residence required in order to apply for leave to remain.
It is further stated that, at point 60 of his Opinion, the Advocate General construed the observations of the United Kingdom Government as claiming justification for the difference in treatment found, despite the fact that the arguments in question were based on the comparability of situations.
49.
Second, it is said that, at point 3 of his Opinion, the Advocate General erred in stating that the Immigration (European Economic Area) Order 1994 is not of concern to United Kingdom citizens and their families, inasmuch as that order in fact applies to all those United Kingdom citizens and their families who return to the United Kingdom having exercised their Treaty rights in another Member State and who benefit from the right clarified by the Court of Justice in its judgment in
Singh
.
(12)
50.
In the following analysis, I have consciously refrained from dealing with a number of assertions made by Mr Kaba, not least because they were adequately answered in the context of the first reference for a preliminary ruling and are not directly linked to any of the findings arrived at by the referring court.
It will be recalled that only the national court may submit new considerations to the Court of Justice which might lead it to give a different answer to a question submitted earlier.
(13)
A.
The alleged misapplication of the method used to assess the existence of discrimination
51.
The order for reference appears to suggest that the Court of Justice should accept, as a fact or as an interpretation of national law, that the spouse of a migrant Community worker is in the same situation 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 Community judicature alone to assess whether the different treatment applied to the two situations (four years' residence for the spouse of a Community worker and a stay of only one year for the spouse of a
"person 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.
52.
The applicant in the main proceedings expresses himself more clearly in this respect, claiming that the comparability of the two situations is an issue which depends on the facts and on the national legislation, and the determination of which is a matter solely for the domestic court.
53.
Mr Kaba puts forward various further considerations to show the similarity between the two situations:
(1)
neither indefinite leave to remain in the United Kingdom nor a right of residence under Community law can be subject to an express condition as to validity in time;
(2)
indefinite leave to remain lapses once the person to whom it is granted leaves the United Kingdom, whereas Community workers remain free to enter and leave the territory of that Member State;
(3)
both categories of person may be deported on grounds of public policy, public security or public health;
(4)
the Nationality Directorate (as the competent body in respect of nationality matters) at all material times treated Community residents as
"present and settled"
for the purpose of acquisition of British nationality. (15)
54.
Lastly, Mr Kaba relies on the judgments of 12 May 1998 in
Martínez Sala (16) and of 4 May 1999 in
Sürül
, (17) in which the Court of Justice held that it was incompatible with Community law to treat a Community citizen or his/her spouse less favourably by requiring from him/her a document which is not required from nationals of the host Member State.
55.
The referring court states that, at point 60 of his Opinion of 30 September 1999, Advocate General La Pergola construed the observations of the United Kingdom Government as claiming justification 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 of the proceedings, either before the national court or before the Court of Justice.
Although she does not say so in so many words, the Immigration Adjudicator appears to consider that that alleged error of assessment found its way into the judgment. (18)
56.
Mr Kaba adopts those remarks as his own, adding that, in view of the findings of the Immigration Adjudicator, as contained in the first order for reference and confirmed in the second, the following passages from the judgment of 11 April 2000 clearly do not reflect the situation as described by the national 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 spouse, the migrant worker herself, but that the two of them were in a comparable situation for the purposes of the prohibition of discrimination;
(b)
paragraphs 29 to 31 of the judgment: the Adjudicator declared that, contrary to what was asserted by the United Kingdom Government before the Court of Justice, there was no objective difference affecting the comparability of the two situations.
57.
In my view, the argument put forward by Mr Kaba, which the referring court appears to accept, is vitiated by a fundamental error of approach.
According to the explanation given by the appellant in the main proceedings, based on what is stated in the order for reference, the only problematic aspect raised by the first order for reference is the difference between the periods of residence required of the two categories of persons concerned.
However, the passage on which that assertion is based does not concern, as such, two situations which are comparable for the purposes of Community law but rather two situations which are in practice treated in a very similar way (and which, according to Mr Kaba, should be treated in the same way).
58.
It is settled case-law that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court, and the Court of Justice is thus empowered to rule on the interpretation or validity of Community provisions only on the basis of the facts which the national court puts before it. (19)
59.
However, the Community judicature, the jurisdiction of which is based on the objectives of the Treaty, is not obliged simply to accept
per se
the legal characterisations flowing from domestic law or from the assessment made by the referring court. (20)
60.
On the contrary, for the purposes of assessing the possible existence of prohibited discrimination, the similarity between situations must be examined in the light of Community law.
61.
Article 7 of Regulation No 1612/68 introduces the principle of equality of treatment between migrant workers who are nationals of a Member State and workers who are nationals of the host State in respect of conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.
Article 7(2) extends that entitlement to cover the social and tax advantages enjoyed by national workers.
62.
The Court of Justice has held that
"social advantages"
should be interpreted as meaning all advantages which, whether or not linked to a contract of employment, are generally granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community.
(21)
63.
It follows from the foregoing that, for the purposes of effective reliance on Article 7(2) of the regulation, it is essential that there should be unequal treatment as between migrant workers and workers who are nationals of the host State,
in their capacity as workers
, as regards enjoyment of an advantage conferred on them by virtue of their objective status as workers or on account of their residing in the host 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 are workers, the advantage in question is not conferred on account of their status as such or by virtue merely of their residence.
This dialectic complexity is more apparent than real: in practice, an advantage granted in accordance with criteria other than the status of worker or mere residence will not be aimed at persons in their capacity as workers.
Basically, what is involved is the same issue seen from different perspectives.
Nevertheless, this observation is useful for the purposes of the analysis set out below.
64.
In his Opinion of 30 September 1999, Advocate General La Pergola considers that an indefinite right to remain granted to the spouse of a migrant worker constitutes a social advantage within the meaning of Article 7(2) of the Regulation.
In his view, it does not matter that this is a right not expressly provided for by Community law, differing from those already enjoyed by the worker in his own right, and granted by reason of the existence of a particular link with the host State.
Advocate General La Pergola considers that the advantage in question is conferred on national workers
principally
, but not exclusively, on account of their objective status as workers or by virtue of the mere fact that they are habitually resident in the territory of the host State. (22)
65.
However, the Advocate General takes the view that Article 7(2) of the regulation cannot be validly relied on, inasmuch as the two situations are not comparable.
As regards the right of residence, paragraph 255 of the Immigration Rules, providing for a period of four years, lays down the regime applicable to a migrant Community worker enjoying an ordinary right of residence, whereas paragraph 287 deals with the situation of a person
"present and settled"
in the United Kingdom who, by 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 Advocate General concluded that there could not be any discrimination based on nationality. (23)
66.
In its judgment of 11 April 2000, the Court of Justice arrived at the same conclusion, after noting that the Member States are entitled to rely on any objective difference there may be between their own nationals and those of other Member States when they lay down the conditions under 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 constitutes 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 conferred by reason of the objective status as workers of those to whom it is granted or the mere fact of their residence, whilst declaring at the same time that the grantees may be distinguished from migrant Community workers on account of special links with the host State which have nothing to do with their objective status as workers or mere residence.
67.
It follows quite clearly from all the foregoing that neither the Opinion nor the judgment delivered in
Kaba
involve the slightest change to the premisses on which the dispute is based, as submitted to the Court of Justice.
68.
According to the definition generally accepted by the Community judicature, in order for there to be discrimination in legal terms, comparable situations must be treated differently or different situations alike. (25)
However, there can be no discrimination if the unequal treatment is objectively justified. (26)
In the specific sphere of social policy, the Court of Justice prefers to state that the general principle of non-discrimination presupposes that the workers to whom it applies are in comparable situations. (27)
69.
Although it depends essentially on questions of fact to be determined by the referring court, the comparison of two sets of rules is not exempt from a certain characterisation of a legal nature.
Here I think we may see the basic conceptual error to which I have referred above, which may be formulated as follows: the fact that treating comparable situations differently constitutes discrimination does not necessarily mean that two situations which are treated in the same (or a similar) way are comparable.
Although that statement may seem obvious, I should like to illustrate it by means of a very clear example.
70.
Article 13A(1) of Directive 77/388/EEC
(28) on the harmonisation of value added tax exempts from VAT,
inter alia
, activities relating to supplies of human organs (subparagraph (d)) and tuition given privately by teachers (subparagraph (j)).
It cannot be concluded from that equality of treatment that the donation of organs and the giving of private tuition are comparable situations.
At most, the two situations will be similar from the specific standpoint of liability to VAT.
The tax exemption may be founded on reasons which likewise have an element in common, such as the desire to promote access to certain specific goods or services on public-interest grounds, but this does not mean that the limited and functional comparison of the situations goes beyond the scope of that indirect tax ─ since it is clear that, despite that similarity, there would be nothing discriminatory about a set of rules which subjected the supply of organs to strict administrative control whilst leaving teachers wholly free to give private tuition.
However, it cannot be denied that my example involves unequal treatment ─ between two activities which should be regulated in a favourable way for public-interest reasons ─, albeit objectively justified ─ for other reasons of the same kind.
The fact is that, even assuming that highly artificial second method of analysis to be correct, the end result is the same: there will not have been any discrimination.
71.
The position is somewhat similar in the present case.
It is quite clear that the United Kingdom Government argued before the Court of Justice that, unlike a migrant Community worker enjoying an ordinary right of residence, a foreigner
"settled"
in the United Kingdom has forged strong links in the host country, by having spent an uninterrupted period of at least four years there.
The fact that such
"particularly enduring links"
are taken into account for the purposes of applying a specific system of indefinite leave to remain may serve to characterise the legal relationship
per se
, as in the analysis of the Advocate General at point 50 of his Opinion and of the Court of Justice in paragraph 33 of its judgment, and to distinguish it from others not having the same features, so as to preclude, ultimately, the existence of discrimination.
It may also serve ─ applying the hypothetical scheme referred to above ─ as objective justification for the difference in treatment afforded to apparently similar situations, thus precluding a finding of unlawful discrimination.
What is involved, therefore, is not an issue of substance but, in any event, a matter of merely technical assessment or approach, without any practical material consequences.
72.
In addition, it should be borne in mind that the Court of Justice frequently takes that approach.
When it considers that, as regards a given set of facts, there exists discrimination, it is usually examining two comparable situations the unequal treatment of which is not objectively justified.
However, where it finds that there is no prohibited discrimination, it tends to reason in terms of an absence of comparability, by virtue of a difference which is likewise objective. (29)
73.
It follows by implication from the foregoing reasoning that the Court of Justice could legitimately take into account the argument of the United Kingdom 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 to be able to distinguish between them ─ that is to say, to compare them.
74.
This emerges unequivocally from point 50 of the Opinion of Mr La Pergola, which acknowledges that
"the case of a migrant worker was to be appraised and regulated, as it in fact was, differently from that of a person present and settled in the United Kingdom"
, and also from the judgment of the Court of Justice, paragraph 31 of which explains that it proposes to reason in terms of an
"objective difference"
between the two situations.
75.
To sum up, I do not consider that there is any validity whatever in the allegation of a
mutatio libelli
─ which seems to be repeated by the new reference ─ according to which the Court of Justice ruled on the justification for the unequal treatment and not on the comparability of the situations.
B.
The alleged error concerning the personal scope of the EEA Order 1994
76.
According to the Adjudicator:
"In paragraph 3 of his Opinion, the Advocate General states that the Immigration (European 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 who return to the United Kingdom having exercised their Treaty rights in another Member State and who benefit from the right clarified by the Court of Justice in Case C-370/90
Singh
..., as was reiterated by the Court of Appeal in its judgment in
Boukssid
v
SSHD
... .
It does appear that the Advocate General was under a misapprehension in this regard and it is a further example of where the United Kingdom does not impose a strict distinction in the application of the Immigration Rules, between spouses of its own nationals and those of nationals of other Member States
"
(paragraph 19 of the order for reference).
77.
There can be no doubt that, at point 3 of the Opinion of 30 September 1999, when describing the national legal framework, the Advocate General stated that the EEA Order 1994
"is not of concern to United Kingdom citizens and their families"
.
That statement may be inferred from the actual wording of the EEA Order, according to which
" "EEA national "
means a national of a State which is a Contracting Party to the European Economic Area Agreement
other
than the United Kingdom
"
. (30)
78.
Nevertheless, according to the United Kingdom Government, the Advocate General correctly described the legal situation in force both at the material time and at the time when he delivered his Opinion, since the requirements flowing from the judgment of 7 July 1992 in
Singh (31) were not transposed into positive law until the enactment of the Immigration (European Economic Area) Regulations 2000, which replaced the EEA Order with effect from 2 October 2000.
79.
Neither the appellant in the main proceedings nor the Commission has submitted any observations whatever concerning this alleged misapprehension of the domestic rules.
80.
For my part, I consider that, regardless of the fact that the principles deriving from the judgment in
Singh
may also render the EEA Order applicable, in practice, to the spouses of United Kingdom citizens who return to the United Kingdom having exercised their right to freedom of movement, that judgment does not seek to impinge upon the citizenship rights accorded to its nationals by a Member State but to indicate the extent to which such nationals may enjoy the Community rights of movement and establishment when they have exercised them. (32)
As the Court of Justice rightly states:
"These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse.
Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State.
Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law
." (33)
81.
Moreover, according to the United Kingdom Government, even in relation to the EEA Regulations, the assimilation of United Kingdom nationals and their family members to the situation of migrant Community workers operates only in the specific situations to which the
Singh
case-law is applicable, none of which is of any relevance in the present case.
82.
Thus, I have found nothing in the error said to have been committed by the Advocate General when defining the personal scope of the EEA Order which might have affected the reasoning followed by the Court of Justice in its judgment of 11 April 2000.
83.
Consequently, it cannot be concluded from a consideration of the criteria in respect of which the referring court suggests a re-examination of the judgment of the Court of Justice of 11 April 2000 that the facts of the case reveal any discrimination contrary to Article 39 EC or Article 7(2) of Regulation No 1612/68.
2.
The first question referred for a preliminary ruling
84.
In view of the solution arrived at in the context of the second question referred for a preliminary ruling, it appears unnecessary to reply to the first, to the extent that it may be regarded as admissible.
It will be recalled that, by its first question, the referring court seeks enlightenment on, first, the mechanisms which exist for the referring court and the parties to the main proceedings to ensure that no infringement of Article 6 ECHR arises in the course of the proceedings as a whole, that being, however, an issue of a hypothetical nature which is inadmissible in the absence of any concrete infringement of the Convention; second, it wishes to know whether the procedure followed before the Court of Justice in this case was in compliance with the requirements of Article 6 ECHR and, if not, how that might affect the validity of the first judgment ─ a question to which my analysis of the second question provides a negative answer.
85.
However, I will attempt to provide the referring court with a number of useful indications concerning the way in which the Court of Justice ensures compliance not with the procedural requirements arising in global and abstract terms from Article 6 ECHR but with those which appear to be the subject-matter of its concern. (34)
86.
The order for reference indicates that 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 applicable national law and on an assessment of the facts of the dispute in the main proceedings which differs from that carried out by the national court.
On the basis of that finding, the Adjudicator expresses uncertainty regarding the basis on which the Court of Justice proceeded to reach its judgment, and, in particular, as to whether or not it proceeded upon misunderstandings and whether or not the procedure before the Court of Justice complied with the requirement for a fair hearing as enshrined in Article 6 ECHR.
As is apparent from reading the order for reference as a whole, the specific question which arises concerns the extent to which the procedure before the Community judicature, which does not confer on the parties any absolute right to challenge the Opinion of the Advocate General, complies adequately with the requirements of the Convention as interpreted by the European Court of Human Rights.
87.
The Court of Justice has replied to those questions in a number of past decisions.
88.
There is a body of settled case-law concerning the question as to the role accorded within the Community framework to the Convention and to the interpretation of its tenor by the European Court of Human Rights, according to which 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. (35)
The
Convention has special significance in this context. (36)
89.
Although respect for fundamental rights, as recognised in the relevant provisions of the Convention, constitutes a prerequisite for the legality of Community acts, it is not subject to the review mechanism established by that instrument. (37)
Although it possesses an autonomous legal order, (38) the Community has not sought to accede to the Convention.
It is quite clear, as stated by the Court of Justice, (39) that, given its constitutional significance, accession would require an amendment of the Treaty.
The fact remains, however, that the Member States have not manifested their wish to effect that amendment, despite having had opportunities to do so. (40)
Nevertheless, the Court of Justice pays the greatest heed to the case-law of the European Court of Human Rights. (41)
90.
Article 6(1) ECHR provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
The general Community principle that everyone has the right to a fair hearing is inspired by that provision. (42)
91.
Moreover, the Court of Justice recognises as inherent in the notion of a fair hearing the general principle that a judicial decision may not be based on facts or documents of which the parties, or one of them, have not been able to take cognisance and in relation to which they have not therefore been able to state their views. (43)
92.
Nevertheless, the submission of the parties' arguments and their evidence to an adversarial process does not involve requirements of a mandatory nature.
It may be no more than a means of facilitating the administration of justice and dealing with the questions, both of fact and law, that the court has to resolve.
That is typical of the way common-law legal systems operate, in which adversarial proceedings demonstrate great resistance to anything deemed
"inquisitorial"
which might affect the outcome of the proceedings and which is not instigated by the parties.
In continental legal systems the scope of adversarial proceedings is more limited.
First, the maxim
iura novit curia
prevails, which enables questions relating purely to the application of the law to be excluded from the adversarial process; second, the presumed impartiality of judicial bodies extends to measures such as a request for an internal report or the adducing of specific evidence, thus reducing the need for the parties to be heard. (44)
93.
As a general principle of Community law inspired by disparate legal traditions, the requirements of an adversarial process only call for particular judicial attention when a failure to observe them results in the breach of a fundamental right, that is to say, when it infringes the right to a fair hearing.
The requirements of an adversarial process typically come into play in relation to evidence submitted by one party for scrutiny by a judicial body.
Such evidence, which is by definition external to the court, cannot be presumed to be impartial and independent.
If such evidence is taken into account, without the parties first being heard in connection therewith, it may be assumed that the right to a fair hearing has not been observed. (45)
94.
Conversely, there is no need to submit to an adversarial process statements made by a judge, whose impartiality and independence is beyond doubt,
in the exercise of his judicial function
.
95.
That is the view taken by the French Conseil d'État, within which the Commissaire du Gouvernment performs a role similar to that of an Advocate General of the Court of Justice. (46)
According to the supreme authority on the French administrative order:
"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 applicable to the entire investigative procedure carried out under the direction of the court.
However, the Commissaire du Gouvernement, whose task it is to set out the issues to be determined in each set of proceedings and to deliver a completely independent opinion containing his impartial assessment of the facts of the case in question and the rules of law applicable to it, together with his conscientious view concerning the manner in which the dispute brought before the court of which he forms part should be decided, delivers his opinion following the closure of the investigative phase of the proceedings conducted on an
inter partes
basis.
He participates in the fulfilment of the task of adjudication incumbent upon the court of which he is a member.
The exercise of that function is not subject to the adversarial principle applicable to the investigative procedure.
It follows that, no more than is the case with the report of the judge-rapporteur or the draft decision, the opinion of the Commissaire du Gouvernement ─ which need not, incidentally, be in written form ─ does not have to be communicated in advance to the parties, who should not be invited to comment on it." (47)
96.
The same approach was adopted by the Court of Justice in its order of 4 February 2000 in the case of
Emesa Sugar
;
(48) in response to an application for leave to submit observations on the Opinion delivered by myself, the Court of Justice decided to explain the basis of its previous decisions on the point.
97.
To that end, it commenced by recalling the status and role of the Advocate General within the system of judicial organisation established by the EC Treaty and by the EC Statute of the Court of Justice, as set out in detail in its Rules of Procedure.
98.
As in the French Conseil d'État, there exists a close link, both organic and functional, between the Advocate General and the Court of Justice of which he is a member; consequently, the requirements of adversarial procedure are not applicable to him.
99.
The principle laid down in the order in
Emesa Sugar
recognises that the Court of Justice is composed of Judges and Advocates General (Articles 221 EC and 222 EC), all of whom are subject to the same requirements and procedure regarding their appointment (Article 223 EC) and have the same status (Title I of the EC Statute of the Court of Justice), especially as regards immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence.
100.
Consequently, the Advocates General are not comparable to public prosecutors or similar persons.
None of them is subordinate to any other;
(49) they do not constitute a distinct body and are not subject to any authority or entrusted with the defence of any particular interest. (50)
101.
The order in
Emesa Sugar
also states that it is the duty of the Advocates General, acting with complete impartiality and independence, to make reasoned submissions on cases brought before the Court of Justice (Article 222 EC), in order to assist the Court in the performance of its task of ensuring that, in the interpretation and application of the Treaty, the law is observed.
102.
The fact that the Opinion is technically delivered in the course of the oral procedure is not significant and has no practical consequences. (51)
The real significance lies in the fact that, as may be inferred from Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure, delivery of the Opinion marks the end of the submission by the parties of their arguments and the opening of the deliberation phase. (52)
103.
The order in
Emesa Sugar
concludes that the Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it.
Furthermore, the Opinion is published together with the Court's judgment.
Given the judicial nature of the involvement of the Advocate General, it is not appropriate that his submissions should be subjected to an adversarial process.
104.
It is true that, in its judgment of 7 June 2001 in
Kress
v
France
, (53) the European Court of Human Rights, in assessing,
inter alia
, whether the inability of the parties to respond to the submissions of the Commissaire du Gouvernement was compatible with Article 6(1) ECHR, stated:
"No one has ever cast doubt on the independence or impartiality of the [Commissaire du Gouvernement], and the Court considers that his existence and institutional status are not in question under the Convention.
However, the Court is of the view that the [Commissaire's] independence and the fact that he is not responsible to any hierarchical superior, which is not disputed, are not in themselves sufficient to justify the assertion that the non-disclosure of his submissions to the parties and the fact that it is impossible for the parties to reply to them are not capable of offending against the principle of a fair trial." (54)
This enabled the Strasbourg Court to reiterate its case-law, according to which
"the concept of a fair trial also means in principle the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court's decision"
. (55)
105.
It seems that what was being sought was not so much the protection of a fundamental right as the imposition of a uniform conception of the organisation of the procedure, without explaining the need for it in terms going beyond the
"doctrine of appearances"
. (56)
It is legitimate to wonder ─ as did the seven judges who each cast their own independent votes on the matter ─ whether, for the purposes of the Convention, the limits of
"European control"
may not be exceeded in the light of the specific nature of national rules, which remain legitimate in so far as they fulfil the obligations to achieve a certain result which flow from the requirements of the Convention.
Alternatively, as stated by Judge Martens in his dissenting opinion given in respect of the judgment of 30 October 1991 in
Borgers
v
Belgium
, (57) "the Convention does not aim at uniform law but lays down directives and standards, which, as such, imply a certain freedom for Member States.
On the other hand, the Preamble to the Convention seems to invite the Court to develop common standards.
These contradictory features create a certain internal tension which requires ... the Court to act with prudence and to take care not to interfere without a convincing justification"
.
106.
I personally take the view that, whilst some importance attaches to the perception of fairness in proceedings, the
"subjective perception of legal reality by a layman" (58) rarely assumes such a degree of relevance as to constitute an essential element of a fundamental right.
It is difficult, to begin with, to know the precise nature of the specific perception which is to be ensured.
Moreover, because of its eminently subjective nature, there does not appear to be any reliable test for determining the circumstances in which a given procedure may give the appearance of being inequitable. (59)
In this connection, the existence of different national legal traditions and the level of knowledge of those traditions which the person concerned may be presumed to possess must, by their very nature, be weighed up.
It will be difficult to avoid an examination limited to the specific case in hand, since the perception of reality may vary considerably from one person to the next. (60)
Moreover, in order to assess compatibility with a fundamental norm, it is generally necessary to weigh up the different interests at stake ─ that is to say, to consider, on the one hand, the possible need to ensure the desired perception whilst taking account, on the other, of the repercussions which the necessary measures may have on the administration of justice. (61)
107.
In
Kress
, however, the Strasbourg Court did not find that there had been an infringement of the Convention arising from the inability to respond to the submissions of the Commissaire du Gouvernement, since it took the view that the procedure before the Conseil d'État afforded sufficient guarantees of respect for the adversarial principle as that concept was understood by it.
First, counsel may, if they so wish, request the Commissaire du Gouvernement to indicate the general tenor of his submissions before the hearing; second, the parties may lodge a written reply to those submissions; and if the Commissaire du Gouvernement were to put forward at the hearing a point not raised by the parties, the president of the court would stay the proceedings in order to give the parties an opportunity to comment on it.
108.
Before the Court of Justice also, litigants enjoy the benefit of not inconsiderable guarantees for the protection of similar rights of defence.
In the interests of the very objective of the adversarial process, namely to prevent the Court of Justice from being influenced by arguments on which the parties have not had an opportunity to comment, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties. (62)
The ruling on the question whether the oral procedure should be reopened is given by the bench seised of the case, in the form of an order, containing a brief statement of reasons, either dealing specifically with that point or reserving a decision on it until final judgment. (63)
Lastly, it should be added that, in practice, any written submissions lodged by the parties after delivery of the Opinion are considered by the Advocate General, the Judge-Rapporteur and the President of the bench, with a view to examining whether they may be regarded as an application for the re-opening of the oral procedure.
Obviously, for the purposes of deciding whether the oral procedure should be re-opened, the Court of Justice is bound to carry out an
assessment of a judicial nature
, examining whether the Advocate General has raised arguments which the parties have not been able to debate (including any possible errors of fact or of law on which those arguments may be based) and whether the arguments in question are likely to influence the Court's decision, inasmuch as they deal with points which are not merely minor, marginal or related.
If the Court considers that those criteria are fulfilled, the parties are
undoubtedly entitled to have the oral procedure re-opened
.
As matters stand, that is the interpretation which must be applied to Article 61 of the Rules of Procedure.
109.
Systematically to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties, be they principal parties or interveners, to reply to those observations (so as not to infringe the genuine requirements of the adversarial process), (64) would cause serious difficulties and considerably extend the length of the procedure.
Factors contributing to those difficulties include the special constraints inherent in Community judicial procedure, resulting from its complex language regime and considerations of geographical distance, which make it difficult to envisage the organisation of a fresh hearing in open court, held solely for the purposes of obtaining the parties' reactions to the Opinion of the Advocate General. (65)
110.
Were the parties to be allowed the last word in the procedure, the Advocate General would be prevented from performing the function assigned to him, since, in order for him to be able effectively to carry out the analysis required of him in the performance of his task of assisting the Court of Justice to guarantee observance of the law, he must have at his disposal all the information, arguments and details available to those who are to give final judgment 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 be deprived of the analysis carried out by one of its members, which has hitherto been a source of inspiration and an adjunct to the judgments delivered.
Moreover, the Advocate General, knowing that his Opinion would be the subject of a response from the parties, would inevitably take their reactions into account when drafting it, and would not therefore deliver it
"with complete impartiality and independence"
as required by Article 222 EC.
111.
Whilst it is true that
"constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure"
, (66) the fact remains that those constraints also pursue legitimate objectives designed to ensure the efficacious administration of justice in the Community context and that, consequently, it is at least legitimate to weigh up all the interests at stake or, in other words, to consider the concrete repercussions flowing from the introduction of a given procedural requirement.
112.
If one consciously accepts the principle that every document or observation submitted to the
bench called upon to adjudicate in the matter
should be open to debate between the parties, on the nebulous basis of appearances, (67) one calls in question the
raison d'être
of the participation of the Advocate General in the various stages of the procedure. (68)
The Advocate General is heard, both in the written and oral stages, (69) and in relation to many other procedural steps and issues, (70) without the parties being provided with any information concerning the tenor of his proposal or the reasons on which it is based.
Nevertheless, 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 transparent intervention.
113.
All those interventions would have to be notified to the parties, so as to enable them, if they so wish, to submit the corresponding observations.
Ultimately, the Advocate General would be transformed into something which he has never been, namely a party to the proceedings, which would irremediably distort his role in the proceedings and thus the usefulness of his office and of his existence. (72)
114.
It is necessary to consider whether such consequences are justified by the need to protect against a subjective, hypothetical fear of partiality.
Legal systems must be allowed to adapt procedural guarantees to their particular characteristics.
Within the specific conception of the exercise of judicial functions in a community based on law of the particular type represented by the European Union, the Advocate General, in delivering his Opinions, mitigates the effects of the fact that the Court of Justice adopts many of its decisions at first and last instance, following deliberations held
in camera
and without any possibility of dissenting judgments being delivered by individual members of the bench.
The contribution made by the Advocate General also serves as an aid to a legal order which is by its nature fragmentary, for example by promoting the safeguarding of fundamental rights in the European Union by means of general principles of Community law (73) and taking care each day to draw the attention of the Court of Justice to points arising in that connection. (74)
115.
Furthermore, important though those reasons may appear to be, my opposition to the establishment of a system possessing those characteristics is of a different nature: I am not wholly convinced that the requirements of a fair trial render such a system indispensable.
On the contrary, I consider that, in terms of his established role, the Advocate General, as to whose impartiality and independence ─ I stress this point ─ 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 establishment and development of Community case-law, (76) promoting debate both within the institution and in other interested circles.
In the latter regard, it may be said that, rather than placing constraints upon the objective principle of an adversarial process, the Opinion of the Advocate General tends to strengthen that principle. (77)
The real guarantee afforded to a litigant is not that the court is free from any preconceptions but that his case has been examined with all the rigour which it deserves. (78)
116.
In short, I take the view that neither the requirements of a fair hearing nor, still less, the objective of the proper administration of justice plead in favour of the parties to proceedings brought before the Community judicature having, as a general rule, the right to submit observations in response to the Opinion of the Advocate General.
117.
Finally, I would point out that, in the present case, Mr Kaba lodged observations on the Opinion delivered by Advocate General La Pergola on 30 September 1999.
As I have shown in the course of my analysis of the second question, the Advocate General did not raise any point which could not have been debated by the parties; nor did he commit any significant error regarding the matters of fact or of law on which he based his arguments.
In those circumstances, the fact that the oral procedure was not re-opened before the Court of Justice does not, in my view, constitute an infringement of the right to a fair hearing.
VII.
Conclusion
118.
In the light of the foregoing, I propose that the Court of Justice reply as follows to the questions referred for a preliminary ruling:
(1)
Consideration of the criteria on the basis of which the Immigration Adjudicator proposes a re-examination of the judgment of the Court of Justice of 11 April 2000 discloses no grounds for concluding that the circumstances of the case reveal discrimination contrary to Article 39 EC or Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community.
(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.
(1) .
(2)
OJ, English Special Edition 1968 (II), p. 475.
(3)
OJ, English Special Edition 1968 (II), p. 485.
(4)
[1986] ECR 1283.
(5)
Cited in point 18 above.
(6)
[1992] ECR I-4265.
(7)
Cited in point 19 above.
(8)
Case 244/80
Foglia
[1981] ECR 3045, paragraph 18.
(9)
It is clear that the referring court is not enquiring as to the correct characterisation, under Article 7(2) of Regulation No 1612/68, of a right to seek indefinite leave to remain; however, that point will have to be tackled first if the Court 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 no significance, by virtue of both the principle
"iura novit curia "
and the absence of any specific claims referring to that provision.
(10)
See, to that effect, the judgments in Case 29/68
Milch-, Fett- und Eierkontor
v
Hauptzollamt Saarbrücken
[1969] ECR 165, paragraph 3, and Case 14/86
Pretore di Salò
v
X
[1987] ECR 2545, paragraph 12, and the orders in Case 69/85
Wünsche
[1986] ECR 947, paragraph 15, and Case C-116/96 REV
Reisebüro Binder
[1998] ECR I-1889, paragraph 8.
(11)
Which is, moreover, diametrically opposed to the outcome of the appraisal carried out by the Court of Justice.
(12)
Cited in point 19 above.
(13)
Order in
Reisebüro Binder
, cited above, paragraph 9.
(14)
I thus interpret both the wording used in the question referred for a preliminary ruling (see point 34 above) and the terms of paragraph 17 of the order for reference ( "It is to be noted that although indefinite leave to remain in the United Kingdom cannot be subject to an express condition as to validity in time, neither can the right of residence of an EC national worker. Further, once a person with indefinite leave to remain leaves the United Kingdom, his or her leave lapses under section 3(4) of the Immigration Act 1971 and she or he is required to obtain new leave to enter, subject to fulfilling the conditions laid down in paragraph 18 of the Immigration Rules (House of Commons Paper 395), whereas an EC national worker remains free to enter, leave and return without the need for prior leave or permission. It is also to be noted that both those with indefinite leave to remain in the United Kingdom and EC national workers can be deported from the United Kingdom where this is based upon public policy, public security or public health."
)
(15)
This practice is said to have been slightly modified subsequently, but, according to Mr Kaba, that modification does not affect the present examination.
(16)
Case C-85/96, [1998] ECR I-2691.
(17)
Case C-262/96, [1999] ECR I-2685.
(18)
In paragraph 35 of the order for reference, the national court states that the position of the respondent is understood to be that it does not accept that the Advocate General or the Court of Justice assessed the facts and the domestic law differently from the Adjudicator.
(19)
Judgment in Case C-235/95
Dumon and Froment
[1998] ECR I-4531, paragraph 25.
(20)
Were the approach adopted by the national court to be accepted literally, the function of the Court of Justice, as the forum competent to interpret Community law, would be called in question. It would not be possible for the Court of Justice to examine either the unequal treatment, 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 left with no alternative but to confirm the existence of prohibited discrimination.
(21)
Judgments of 31 May 1979 in Case 207/78
Even
[1979] ECR 2019, paragraph 22, and of 27 May 1993 in Case C-310/91
Schmid
[1993] ECR I-3011, paragraph 18.
(22)
Points 40 and 41 of the Opinion.
(23)
Points 50 and 64 of the Opinion.
(24)
Paragraphs 31 and 35 of the judgment in Case C-356/98
Kaba
[2000] ECR I-2623.
(25)
Case 8/82
Wagner
v
Balm
[1983] ECR 371, paragraph 18.
(26)
Case C-292/97
Karlsson
[2000] ECR I-2737, paragraph 39, and Case 203/86
Spain
v
Council
[1988] ECR 4563, paragraph 25.
(27)
Case C-218/98
Abdoulaye and Others
[1999] ECR I-5723, paragraph 16, and Case C-366/99
Griesmar
[2001] ECR I-9383, paragraph 39.
(28)
Council Directive of 17 May 1977: Sixth Directive on the harmonisation of the laws of the Member States relating to turnover taxes ─ Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).
(29)
See F. Tuytschaever,
Differentiation in European Union Law
, Oxford, 1999, especially p. 31.
(30)
Emphasis added.
(31)
Cited in point 19 above.
(32)
Paragraph 23 of the judgment in
Singh
, cited in point 19 above.
(33)
Ibid. Emphasis added.
(34)
The Commission also proposes that the first part of this question should be reformulated somewhat, and refers to the mechanisms guaranteeing a fair hearing
in a procedural situation such as described in the second order for reference
.
(35)
The judgment of 20 November 1969 in Case 29/69
Stauder
[1969] ECR 419 is the first in which the Court, following the Opinion of Advocate General Roemer, ventured to assess the validity of a Community act in the light of
"the fundamental human rights enshrined in the general principles of Community law and protected by the Court"
. 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
Internationale Handelsgesellschaft
[1970] ECR 1125 alludes to
"the constitutional traditions common to the Member States"
, following the Opinion of Advocate General Dutheillet de Lamothe, who recognised that the fundamental traditions of national legal systems
"contribute to forming that philosophical, political and legal substratum 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 Convention as an interpretative element to articulate the protection of fundamental rights in the Community context.
(36)
See, amongst many others, the judgment in Case C-260/89
ERT
[1991] ECR I-2925, paragraph 41, and, in relation to Article 6 ECHR, that in Case C-299/95
Kremzow
[1997] ECR I-2629, paragraph 14, as well as the Opinion of Advocate General Léger of 3 February 1998 in Case C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417 et seq., especially I-8422, point 24.
(37)
See, to that effect, the Opinion of Advocate 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 [1991] ECR I-6079, paragraph 21.
(39)
Opinion 2/94 of 28 March 1996 [1996] ECR I-1759, paragraph 35.
(40)
I am referring, of course, to the conferences leading to the adoption of the Treaties of Amsterdam (1997) and Nice (2000).
(41)
See, by way of illustration, Case C-13/94
P
v
S
[1996] ECR I-2143, paragraph 16; Joined Cases C-74/95 and C-129/95
X
[1996] ECR I-6609, paragraph 25; paragraph 29 of the judgment in
Baustahlgewebe
, cited in footnote 35 above; Case C-270/99 P
Z
v
Parliament
[2001] ECR I-9197, paragraph 24; also, the Opinions of Advocate General Lenz in Case 236/87
Bergemann
[1988] ECR 5125, at 5132, point 29, and in Case C-23/93
TV 10
[1994] ECR I-4795, at I-4797, point 76 et seq.; the Opinion of Advocate General van Gerven in Case C-326/88
Hansen
[1990] ECR I-2911, at I-2919, point 14; the Opinion of Advocate General Darmon in Case C-49/88
Al-Jubail Fertilizer
v
Council
[1991] ECR I-3187, at I-3205, points 111 and 112; the Opinion of Advocate General Ruiz-Jarabo in Joined Cases C-65/95 and C-111/95
Shingara and Radiom
[1997] ECR I-3343, 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 et seq.; the Opinion of Advocate General La Pergola in Case C-273/97
Sirdar
[1999] ECR I-7403, at I-7405, point 24; and the Opinion of Advocate General Mischo of 20 September 2001 in Case C-94/00
Roquette Frères
[2002] ECR I-9011, point 33.
(42)
Judgment in
Baustahlgewebe
, cited in footnote 35 above, paragraph 21.
(43)
Joined Cases 42/59 and 49/59
SNUPAT
v
High Authority
[1961] ECR 53 et seq., especially p. 84, and Case C-480/99 P
Plant and Others
v
Commission
[2002] ECR I-265, paragraph 24.
(44)
See my Opinion in
Plant
, cited above, point 34.
(45)
Ibid., points 35 and 37.
(46)
In addition, the Commissaire du Gouvernement served as a model for the Advocate General in the Community context. Nevertheless, it should be noted that there are various far from negligible differences between the two, 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-participation of the Advocate General in the deliberations of the Court.
(47)
Judgment of the Conseil d'État of 29 July 1998 in the case of
Esclatine
, Rec. p. 320, Opinion of Commissaire du Gouvernement Chauvaux; emphasis added. [ "Le principe du contradictoire, qui tend à assurer l'égalité des parties devant le juge, implique la communication à chacune des parties de l'ensemble des pièces du dossier, ainsi que, le cas échéant, des moyens relevés d'office. Ces règles sont applicables à l'ensemble de la procédure d'instruction à 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 solutions qu'appelle, suivant sa conscience, le litige soumis à la juridiction à laquelle il appartient, prononce ses conclusions après la clôture de l'instruction à laquelle il a été procédé contradictoirement. Il participe à la fonction de juger dévolue à la juridiction dont il est membre. L'exercice de cette fonction n'est pas soumis au principe du 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, lesquelles n'ont pas davantage à être invitées à y répondre."
]
(48)
Case C-17/98 [2000] ECR I-675.
(49)
The First Advocate General allocates new cases between his colleagues and performs a functional role, but may not intervene in any way in the judicial work carried out by the Advocates General.
(50)
The Court of Justice states that
"the Opinion of the Advocate General ... is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which derives its authority from that of [a] Procureur Général's department [in the French version,
"ministère public"
]. Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself.
"
According to the order for reference, the appellant submits before the Adjudicator that, in
Emesa Sugar
, the Court of Justice should have found that Article 6 ECHR had been infringed and
"erred in its interpretation of the Court of Human Rights jurisprudence,
possibly due to the limited authorities
relied upon by the applicant in that case"
(emphasis added). That attempted explanation provides an accurate idea of the notion of the adversarial process as it is understood in common-law jurisdictions, which do not recognise, or alternatively attach only relative significance to, the concept of
iura novit curia
: the forum concerned ─ in this case, the Court of Justice ─ is said to have misinterpreted a question of law, in that it allegedly failed to take account of matters of law which were not raised by the parties.
(51)
It should, rather, be regarded as harking back to the past, being possibly linked to the former practice of the Commissaire du Gouvernement to
"conclure oralement"
before the French Conseil d'État. Nowadays, opinions are invariably delivered in writing.
(52)
Case 206/81
Alvarez
v
Parliament
[1982] ECR 3369, paragraph 9.
(53)
No. 39594/98 ECHR 2001-VI.
See the analysis of this point by F. Benoît-Rohmer in the article entitled
"Le commissaire du gouvernement auprès du Conseil d'État, l'avocat général auprès de la Cour de justice des Communautés européennes et le droit à un procés équitable"
in
Revue trimestrielle de droit européen
, 2001, No 4, p. 727 et seq., and that of R. Alonso García in the article entitled
"El enjuiciamento por el Tribunal Europeo de Derechos Humanos del funciamiento contencioso del Conseil d'État y del Tribunal de Justicia de las Comunidades Europeas (en concreto, del papel desempeñado, respectivamente, por el Comisario del Gobierno y por el Abogado General)"
in
Revista Española de Derecho Europeo
, No 1, p. 1 et seq.
(54)
Judgment in
Kress
v
France
, paragraph 71. [ "Nul n'a jamais mis en doute l'indépendance ni l'impartialité du commissaire du Gouvernement, et la Cour estime qu'au regard de la Convention, son existence et son statut organique ne sont pas en cause. Toutefois la Cour considère que l'indépendance du commissaire du Gouvernement et le fait qu'il n'est soumis à aucune hiérarchie, ce qui n'est pas contesté, ne sont pas en soi suffisants pour affirmer que la non-communication de ses conclusions aux parties et l'impossibilité pour celles-ci d'y répliquer ne seraient pas susceptibles de porter atteinte aux exigences d'un procès équitable."
]
(55)
Ibid., paragraph 74. [ "Toutefois, la notion de procès équitable implique aussi en principe le droit pour les parties à un procès de prendre connaissance de toute pièce ou observation soumise au juge, fût-ce par un magistrat indépendant, en vue d'influencer sa décision, et de la discuter."
]
(56)
A theory developed by the Strasbourg Court from the maxim
"justice must not only be done; it must also be seen to be done"
(judgment of 17 January 1970 in
Delcourt
v
Belgium
, Series A, No 11, paragraph 31), whereby decisive judicial importance is attached to satisfying a lay person that proceedings have been fairly conducted. This has rightly been the subject of fierce criticism, not least by distinguished members of the institution itself.
(57)
Series A, No 214-B, p. 25, point 4.2.
[ "La Convention ne vise pas à uniformiser le droit mais énonce des directives et des normes qui, comme telles, supposent une certaine liberté des Etats membres.
D'autre part, son préambule semble inviter la Cour à développer des normes communes.
Ces tendances contradictoires créent une certaine tension qui commande à la Cour d'agir avec prudence et de veiller à éviter les ingérences dénuées de justification convaincante."
]
(58)
In the elastic form of words used by Judge Martens, loc. cit.
(59)
It is noteworthy that the Strasbourg Court has not even attempted to sketch out the criteria for assessing such appearances.
(60)
This raises the question whether the solution adopted in the
Kress
judgment, for example, would have been the same if, instead of being a town councillor of a small municipality, the applicant had been a specialist in the procedure followed in French administrative disputes.
(61)
As Judge Martens states:
"In order to judge whether fears as to impartiality are objectively justified, one needs to make a very careful assessment of the objective reality which lies behind appearances. Such assessment will frequently include a weighing of interests since what is at stake is often not only the confidence which the courts must inspire, but also the public interest in having a rational and smoothly operating judicial system"
(dissenting opinion annexed to the judgment in
Borgers
, cited 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 non seulement dans la confiance que les tribunaux doivent inspirer, mais aussi dans l'intérêt pour le public de disposer d'une organisation judiciaire rationnelle et fonctionnant sans heurts."
]
(62)
Order in
Emesa Sugar
, cited above, paragraph 18. It should be noted that this obligation to protect the parties from being taken by surprise ( "Überraschungsschutz"
) is also binding on the Court of Justice itself as regards its judgment.
(63)
See the order of 22 January 1992 in Case C-163/90
Legros and Others
, not published in the European Court Reports, and the judgment delivered in the same case on 16 July 1992 ([1992] ECR I-4625); the order of 9 December 1992 in Case C-2/91
Meng
, not published in the European Court Reports, and the judgment delivered in the same case on 17 November 1993 ([1993] ECR I-5751); the order of 13 December 1994 in Case C-312/93
Peterbroeck
, not published in the European Court Reports, and the judgment delivered in the same case on 14 December 1995 ([1995] ECR I-4599); the order of 14 October 1997 in Case C-191/95
Commission
v
Germany
, not published in the European Court Reports, and the judgment delivered in the same case on 29 September 1998 ([1998] ECR I-5499); the judgment in Case C-284/96
Tabouillot
[1997] ECR I-7471, paragraphs 20 and 21; the order of 17 September 1998 in Case C-35/98
Verkooijen
, not published in the European Court Reports, and the judgment 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 order of 23 September 1998 in Case C-262/96
Sürül
, not published in the European Court Reports, and the judgment delivered in the same case on 4 May 1999 ([1999] ECR I-2685); the order of 24 September 1998 in Case C-12/98
Amengual Far
, not published in the European Court Reports, and the judgment delivered in the same case on 3 February 2000 ([2000] ECR I-527); the judgments in Case C-50/96
Deutsche Telekom
[2000] ECR I-743, paragraphs 19 to 24, Joined Cases C-234/96 and C-235/96
Deutsche Telekom
[2000] ECR I-799, paragraphs 25 to 30, Joined Cases C-270/97 and C-271/97
Deutsche Post
[2000] ECR I-929, paragraphs 23 to 32; the order of 30 September 1999 in Case C-156/97
Commission
v
Van Balkom
, not published in the European Court Reports, and the judgment delivered in the same case on 17 February 2000 ([2000] ECR I-1095); the order of 25 October 1999 in Case C-82/98 P
Kögler
v
Court of Justice
, not published in the European Court Reports, and the judgment delivered in the same case on 25 May 2000 ([2000] ECR I-3855); the order of 5 October 1999 in Case C-289/97
Eridania
, not published in the European Court Reports, and the judgment delivered in the same case on 6 July 2000 ([2000] ECR I-5409); the order of 16 December 1999 in Case C-341/97
Commission
v
Netherlands
, not published in the European Court Reports, and the judgment delivered in the same case on 13 September 2000 ([2000] ECR I-6611); the order in
Emesa Sugar
, cited above, paragraphs 19 and 20; the 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 delivered in the same case on 2 October 2001 ([2001] ECR I-6699).
(64)
See, as regards the procedure before the French Conseil d'État, O. Gohin,
La contradiction dans la procédure administrative contentieuse
, Librairie générale de droit et de jurisprudence, Paris, 1988, pp. 338-339.
(65)
Order in
Emesa Sugar
, cited above, paragraph 17.
(66)
Order in
Emesa Sugar
, cited above, paragraph 18.
(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 apparence de théorie, Humeurs autour de l'arrêt Kress
, Actualité juridique Droit administratif, January 2002, p. 9 et seq., especially p. 10.
(68)
By the same token, other documents which have not been hitherto subject to the adversarial process, inasmuch as they fall within the ambit of the impartiality and independence of the Court of Justice, such as the various reports produced by the Research and Documentation Division (generally relating to comparisons between the legal orders of the Member States, but also to any point on which the Court requests it to carry out research) or the transcript of the hearing, prepared for purely internal purposes (see point 28 above), would need, in so far as they are by their nature capable of affecting the adjudication of the case, to be translated and communicated to the parties so that the latter may comment on them, thereby protracting the administration of justice within the Community and making it more expensive and thus diminishing, if not eliminating, its quality.
(69)
Prior to the adoption of interlocutory decisions concerning matters such as the inadmissibility of the application on account of a formal defect (Article 38(7) of the Rules of Procedure), the joinder of cases (Article 43), the use of a language other than the language of the case (Article 29(2)), the existence of pending proceedings before the Court of First Instance (third paragraph of Article 47 of the EC Statute) or the manifestly inadmissible or manifestly unfounded character of appeals to the Court of Justice (Article 119 of the Rules of Procedure).
The Advocates General may express their views, in person and in writing, as part of the meeting held to decide on,
inter alia
, the need for a hearing, the allocation of a case, where appropriate, to a particular bench or Chamber or the need for preparatory inquiries.
As regards measures of inquiry, the Advocate General is heard before the Court prescribes such measures by order, and takes part in them (Article 45(1) and (3) of the Rules of Procedure).
The Advocate General is consulted when the Court orders the examination of witnesses, who may be summoned at his instance and to whom he may put questions (Article 47(1) and (4)).
Before any measure of inquiry is amplified or repeated, the Advocate General must be consulted.
(70)
Exclusion of advisers and lawyers from the procedure; rectification of errors and inaccuracies in judgments; disputes concerning costs; applications for legal aid; decisions to stay proceedings; adoption of interim measures; preliminary issues; exceptional review procedures; applications for interpretation of judgments; decisions on references for preliminary rulings concerning questions which are identical to questions on which the Court has already ruled by reasoned order in which reference is made to the previous judgment.
(71)
See, for example, the judgment of the European Court of Human Rights of 20 February 1996 (Recueil des arrêts et décisions
- I), paragraph 31 (which refers to the judgment in
Borgers
, cited in point 105 above).
(72)
See point 104 above.
(73)
See footnote 35 above.
(74)
As regards the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1), which contains a more extensive and up-to-date list of rights and freedoms than the Convention, some Advocates General, within the Court of Justice and without ignoring the fact that the Charter does not have any
autonomous
binding effect, have nevertheless emphasised its clear purpose of serving as a substantive point of reference for all those involved in the Community context (Opinion of Advocate General Tizzano of 8 February 2001 in Case C-173/99
BECTU
[2001] ECR I-4881, especially I-4883, point 28), point out that it has placed the rights which it recognises at the highest level of the hierarchy of values common to the Member States and necessarily constitutes a privileged instrument for identifying fundamental rights (Opinion of Advocate General Léger of 10 July 2001 in Case C-353/99 P
Council
v
Hautala
[2001] ECR I-9565, points 82 and 83), or argue that it constitutes an invaluable source for the purposes of ascertaining the common denominator of the essential legal values prevailing in the Member States, from which the general principles of Community law in turn emanate (my Opinion of 4 December 2001 in Case C-208/00
Überseering
[2002] ECR I-9919, point 59).
(75)
As a result of the fact that individual judgments are not delivered by judges of the Court of Justice, and on account of the inevitable constraints inherent in an international judicial body functioning as a supreme court, it often happens that judgments are not as clear as one would wish or that the reasoning contained in them is extremely terse.
Thus, the Opinion, which is published together with the judgment, serves to clarify the contents and scope of the judgment.
The Opinion takes the form of a reasoned proposal as to the way in which the dispute brought before the Court of Justice should be determined.
It contains an analysis and an exhaustive account of the facts of the case and of the arguments of the parties, and also of the relevant case-law.
Moreover, it contains references to the academic writings on the matters concerned.
It normally addresses all the legal issues raised in the litigation, even where this is not strictly necessary for the purposes of deciding the case.
Lastly, it constitutes the work of a single author, thus permitting a more homogeneous discussion of the case than is found in judgments, which must be agreed upon by various different judges.
(76)
Opinions are frequently cited by academic legal authors and relied on by the parties' lawyers as the basis of their arguments in litigation conducted before the Court of Justice and the national courts concerning the application of Community law.
Moreover, the Opinions of the Advocates General have indubitably contributed to the establishment and development of the case-law of the Court of Justice.
When the judges of the Court reject a proposal in the Advocate General's Opinion that the existing case-law should be modified, that case-law, as maintained in the judgment, is thereby strengthened, unless the view expressed by the Advocate General finds favour with some of the judges on the bench and those judges form, in subsequent cases, a majority of those sitting.
At all events, the freedom of the Advocates General individually to propose the way in which a given case should be determined has proved, in the practice of the Community judicature, to be an adequate counterbalance to the collegiate approach which the judges are required to adopt when drawing up judgments.
(77)
As regards the submissions of the Commissaire du Gouvernement, see B. Genevois:
"Le commissaire du gouvernement et les exigences du procès équitable (l'arrêt Kress). Réconfortant et déconcertant"
, in
Revue française de droit administratif
, 2001, No 5, p. 995.
(78)
According to J.-C. Bonichot and R. Abraham ( "Le commissaire du gouvernement dans la juridiction administrative et la Convention EDH"
,
La Semaine Juridique
, Édition générale, 1998, Nos 45-46, p. 1945 et seq., especially p. 1951), the rigour applied to the examination of the case is a consequence of its having been continuously looked at and worked on by different persons in diverse configurations, before undergoing the sifting process involved in the final discussion of the case undertaken in the Commissaire's submissions.