Proceedings before the Court of Justice: from the Two-phase Model to optional Orality
Il processo dinanzi alla Corte di giustizia: dal modello bifasico all’oralità eventuale
La procédure devant la Cour de justice : du modèle biphasique à l’oralité éventuelle
This contribution examines the oral phase in proceedings before the Court of Justice of the European Union, with the aim of verifying whether and to what extent the traditional two-phase model, still provided for at the statutory level, can be considered outdated today. Starting from a theoretical reconstruction of the rules governing the hearing, the Advocate General’s opinions, and the mechanism provided for in Article 83 of the Rules of Procedure of the Court of Justice (RP CJ), the study concretely assesses how the Court has exercised its discretion in deciding whether or not to organize such procedural stages. The doctrinal and case-law analysis is complemented by an empirical investigation conducted through the construction of a database comprising all cases brought before the Court from 1° November 2012 (the date of entry into force of the recast of the RP CJ) to 31 December 2025 and decided by 31 January 2026. The data show that the complete oral phase occurs in a minority of cases (29%), while proceedings concluded without a hearing and without the Advocate General’s opinion prevail (53%), highlighting how proceedings before the Court of Justice are now characterized by a strongly contingent orality. What emerges is a picture in which the demands of procedural efficiency appear to prevail, while leaving open questions regarding full compliance with the principle of the right to be heard and the transparency of the choices made by the Court.
