Head of Chambers in the ECJ
Marshalls Clay in the ECJ
On the 15th September the ECJ heard oral argument in the Caulfield v Marshalls Clay, Clarke v Frank Staddon Limited and Robinson-Steele v RD Retail cases. All three cases were listed for hearing together as they raised similar points concerning whether or not "rolled-up" holiday pay was permissible.
Andrew Hogarth QC appeared for the employees in the Clark and Caulfield cases acting on behalf of UCATT and the GMB . Jennifer Eady appeared for the employers in the Marshalls Clay and Robinson-Steel cases. The other parties were not represented.
However the United Kingdom, Irish and Netherlands governments as well as the European Commission also presented oral arguments. Of these, only the United Kingdom government supported the argument that "rolled-up" holiday pay was permissible, the remaining parties argued that it amounted to an unlawful implementation of the underlying directive. The position of the British government was considerable more hostile than that of the employers.
At the conclusion of the argument the Advocate General announced that her opinion would be presented on the 25th October.
A personal view of the European Court of Justice.
As this was my first visit to the ECJ I was not sure what to expect. Do you wear English robes*? What do you call the judges**? Where do you stand/sit***?
The big surprise was how grand it all was. There seems to be only one court room in the building, which is something of a surprise as it is larger than the Royal Courts of Justice. I can only assume that the rest of the building houses the translation department as there didn’t seem to be much else happening there. This must be the only place in the entire world where you can expect and have instantaneous translation from Latvian into Greek. However the court room was big, with seating for several hundred, not that there were more than 30 present on this occasion. The bench on which the judges sat could seat 19 and ran the whole width of the room. In the glass boxes at the side were the translators, some of whom sat po-faced and motionless throughput the whole proceedings, but others behind their glass barriers were jumping up and down waving their arms like some monkeys in a cage.
The judges say nothing during your 30 minutes of submissions and the last thing they want to hear is anything about the facts of the individual cases. Most of them smile occasionally, but one sat expressionless for 2 .5 hours. However, one had the distinct impression that anything the United Kingdom government had to say on any subject was unlikely to be very favourably received.
The early start is a bit of a shock, 8.30 a.m. UK time, but then it is all designed to allow you to finish early enough to go for lunch before catching your flight home, and Luxembourg is famous for its restaurants.
*Yes indeed, you wear national robes, but if you forget yours you can borrow a set of Dutch robes. Why Dutch? Who knows.
**You guessed it- My Lord, My Lady, although they seemed a bit taken aback by the sudden elevation to the ranks of the aristocracy.
***This was surprisingly tricky. There seemed to be some sort of undeclared war between the commission and the Dutch government as to who sat the furthest to the left, which was deemed the place of honour. The Dutch won by arriving early, sitting down and not moving. The parties sit a row behind the lecterns and walk up when their turn comes to speak. Make sure that you turn the earphone on to English or you will have some frightful gibberish pouring into your ear.
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