Act:  Mrs. Ross;  Brodies LLP

Alt:  Miss Poole, QC; Patrick Campbell & Co

27 June 2014

[1]        As is recorded in the application under Rule of Court 58.8A which was lodged by Miss Poole’s clients last month, the applicants were granted leave on 26 September 2012 to intervene in this process by way of a public interest intervention in terms of that rule. The intervention thus allowed was by way of written submission of the normal length envisaged in rule 58.8A(8)(a).  On 4 October 2012 the applicants lodged their written submission and in that document they advanced, among others, various submissions respecting the application of article 36 of the Treaty on the Functioning of the European Union. That submission remains before the court.

[2]        The application now presented does not suggest a wish to make any materially different submission on the application of that article. But importantly, it is presented at a point in time at which this court has heard substantive argument on the European Union law issues in the reclaiming motion and that over a period of a number of days. The court made avizandum and has advised its decision to refer certain questions to the Court of Justice of the European Union. Even assuming it were open to the applicant to make any further application and to lodge any further written submission in terms of rule 58.8A(8)(a), we consider that the application comes far too late.  It is, in our view, contrary to the efficient administration of justice that intervention be permitted after the court has effectively reached its decision. That in itself is a powerful reason for not granting leave to the applicants to make a further submission to this court.

[3]        It is important also, we think, to appreciate that what rule 58.8A enables is a limited public intervention before this court, that limitation, absent exceptional circumstances, being confined to the lodging of a written submission within the stipulated word count envisaged in the rule. In our view, intervention does not constitute the intervening person as a party to the petition proceedings (cf Rule of Court 58.8).  The present application appears to proceed on the erroneous view that granting the application would constitute the applicants as parties to the action.  In our view, it would simply enable the lodging of a further written submission to this court – and of course that would be at a point after which the court had reached its decision.

[4]        In the application – and indeed also this morning- Miss Poole was entirely frank in explaining that the objective was principally to secure some locus standi to make submissions by way of written observations and oral argument before the Court of Justice of the European Union. As we understood it, it was said that the status of an intervener under Rule 58.A would achieve that locus standi. If so, having already been granted leave to intervene, and having exercised that leave, the applicants already have such standing as is conferred on an intervener in the petition process.

[5]        But in so far as that is the objective of this application it is, in our view, misconceived.  Article 23 of the Statute of the Court of Justice of the European Union determines those entitled to participate in the proceedings before the Court of Justice in any reference under article 267 TFEU.  Apart from the Member States and a number of the institutions of the European Union, the right so to participate is confined to “the parties to the main proceedings”. Importantly, in that respect, article 92(1) of the current Rules of Procedure of the Court of Justice states:

“1.       The parties to the main proceedings are those who are determined as such by the referring court or tribunal in accordance with national rules of procedure.”

For what it may be worth, the rule that national law determines who is a party to the main proceedings is, in our view, entirely consonant with the nature of the reference procedure;  proceedings before the Court of Justice in a reference under article 267 TFEU do not constitute a discrete, independent litigation but are simply a stage in the national proceedings. Since, as we have already observed, rule 58.8A does not constitute the intervener as a party to the main proceedings but limits the intervener’s participation to a written submission before this court, granting the present application would not achieve its professed objective.

[6]        For all of these reasons we consider that the application should be refused.