D. SARMIENTO, Hearings in Luxembourg. A Survival Guide

The fifth title to appear in 2026 in the publishing series of EULawLive Press is Daniel Sarmiento’s “Hearings in Luxembourg. A Survival Guide”. This is a slim volume of fewer than 100 pages in which the author, drawing on his experience as a professor of EU law, but above all as a référendaire at the Court of Justice and, more recently, as counsel appearing both before the General Court and the Court of Justice, in direct actions as well as in preliminary ruling proceedings, offers a wealth of insights, practical advice, information and useful tips to representatives of parties in judicial proceedings in Luxembourg. Sarmiento deliberately confines his reflections to the oral phase of proceedings, and thus to the hearing before the judges at the Kirchberg. The result is a kind of handbook – or, better still, an enjoyable read – designed to make practitioners more “familiar” with a courtroom environment that even the most experienced and dedicated lawyers are likely to encounter only a few times in the course of their professional lives.

Those who stand to benefit most are, above all, counsel representing private parties, and particularly those involved in preliminary ruling proceedings, perhaps unexpectedly, and who may suddenly find themselves obliged to leave the “comfort zone” of domestic litigation and, sometimes at relatively short notice, engage orally with a court that remains, for them, relatively “exotic”. Agents representing Member States and EU institutions are likely to derive somewhat less benefit from the book, since, albeit to very different degrees, they are more accustomed to appearing before the Court of Justice and the General Court.

As the author observes in the introductory chapter, cases before the Court of Justice are rarely won (exclusively) at the hearing, but they can certainly be lost there if the hearing has not been properly prepared. Sarmiento’s book is intended to guard against precisely this eventuality and, ultimately, to ensure that counsel’s brief stay in Luxembourg proves an experience that, though undoubtedly intense and demanding, is also a positive one. In this respect, the book indirectly contributes to fostering a positive perception of the Court and of the role it performs.

Following a number of historical references, accompanied by evocative images of the Court of Justice’s earliest hearings, Sarmiento places the oral phase within the applicable legal framework, comprising the Protocol on the Statute of the Court of Justice of the European Union (the “Statute”), the Rules of Procedure, and the further instruments adopted by the Court of Justice and the General Court to facilitate and regulate the conduct of hearings.

Without delving into strictly legal or, more broadly, doctrinal questions concerning the much-debated issue of whether the oral phase is mandatory under Article 20 of the Statute, the author draws attention to the different approaches adopted by the Court of Justice and the General Court towards hearings. The difference is apparent not only in the frequency with which hearings are scheduled, in light of the differing wording of their respective Rules of Procedure, but also on the part of judges. At the General Court, judges appear to display a greater degree of “camaraderie” towards counsel than is the case at the Court of Justice, where, for some years now, even the traditional handshake has disappeared from the preliminary meeting with counsel held a few minutes before the hearing begins.

In this regard, the author notes that the practice of the committee established under Article 255 TFEU has resulted in judicial formations at the Court of Justice and the General Court that differ significantly in terms of age. At the same time, he recalls the growing tendency to appoint to the Court of Justice judges or Advocates General who have previously served as judges of the General Court. This may contribute to a greater degree of integration and harmonisation between the practices of the two Courts. It may also, however – as the present reviewer would add – produce an image of the composition of the Union’s highest court that is increasingly “internalised”, and hence less receptive to external contributions, notwithstanding the significant role that such contributions played in shaping its case-law in the past.

The author rightly emphasises the difference between hearings in direct actions and those held in preliminary ruling proceedings. Contrary to what one might expect, as he observes, the latter place considerable importance on the reconstruction of the facts, the national proceedings and the relevant national law. This is necessary to provide an adequate evidentiary basis for the subsequent and delicate assessment to be undertaken by the EU Court.

Chapter 4 raises a question that is, in truth, seldom asked by counsel suddenly catapulted into proceedings in Luxembourg: is it really useful to request a hearing? There may, indeed, be sound strategic reasons for seeking to avoid a hearing or, at the very least, for refraining from prompting the Court to hold one. In practice, parties to the national proceedings, once drawn into preliminary ruling proceedings, tend to request a hearing almost as a matter of course, while endeavouring to comply with the requirement to give reasons for such a request laid down in Article 76 of the Court’s Rules of Procedure. Sarmiento’s observation is nevertheless a particularly valuable one. A hearing always entails risks, and a party confident in the strength of its legal position as it has emerged from the written phase might therefore be well advised not to request one – or at least to use wording in its response to the Court sufficient “to demonstrate to the Court that the party does not wish to have a hearing, while also avoiding the impression that it is actively trying to avoid it”. This may prevent the Court from fixing a hearing merely to accommodate the parties’ wishes. If it does so, one may assume that it is because the Court considers that it might obtain some further element that was not placed before it during the written phase, or because the written exchanges between the parties have themselves revealed a need for further clarification.

What the author, somewhat discreetly, does not ask is whether the Court actually schedules hearings because it considers that they are likely to yield useful material, or whether this is not invariably the case. After all, the Court tends – with very rare exceptions – to hold a hearing when sitting as the Grand Chamber (grande chambre), at least where a Member State or an EU institution has requested that the case be heard by the Grand Chamber pursuant to Article 16 of the Statute, in which case that formation must necessarily be convened. It may therefore happen that a hearing is not, in fact, particularly useful. In such circumstances, even the questions customarily prepared in advance of the hearing may appear somewhat generic or may simply revisit matters already raised in the written observations.

The engaging chapter entitled “Dramatis Personae” skilfully and aptly sets out the different roles played by the various actors who appear in the performance that is the hearing: the Agents of the Member States, those representing the EU institutions, counsel for private parties, judges, référendaires, interpreters, the Registrar, and ushers – in short, the entire and diverse “human” apparatus that plays its part during the hearing. The author also spares a brief thought for visitors, and thus for the public, whose composed and silent presence animates the theatre which, for several days each week, provides the setting for the Court of Justice and the General Court.

The chapter devoted to the preparation of the hearing is remarkably detailed, taking the reader from booking the flight through to sending the text of the plaidoirie to the interpreters’ email address. At times, such attention to detail may appear almost didactic. Yet, for representatives appearing before the Court for the first time – or for one of their first few appearances – the advice to prepare specifically for the hearing, and to abandon the reassuring assumption that one can simply repeat, or rather summarise, the written submissions, is particularly valuable.

Equally useful are the recommendations for when things go wrong, set out in the aptly entitled chapter “Shit Happens”. The author of this review still vividly recalls the rather dramatic experience of having a flight to Luxembourg cancelled on the evening before a hearing, followed by an overnight drive from Bergamo to Luxembourg and a late arrival at the hearing. Daniel Sarmiento’s practical and down-to-earth advice on how to deal with such eventualities is therefore especially welcome.

In Chapter 13, the author recalls the practice concerning the so-called hearing transcript, which can be accessed only by listening to it on the Court’s premises and under the supervision of a Registry official – a rule with a distinctly inquisitorial flavour which, in the digital age, has itself become the subject of reconsideration within the Court itself. Equally precise is his account of the circumstances in which the oral procedure may be reopened, pursuant to a restrictive practice that has long frustrated the expectations of the parties.

Overall, in fourteen readily accessible chapters, the book succeeds in guiding the practitioner through the unfamiliar, but by no means cumbersome or complex, paths of a hearing before the Court of Justice. The procedure is, in fact, remarkably streamlined and straightforward, almost schematic, and has remained substantially unchanged since 28 October 1954, when the first hearing of the Court of Justice of the European Coal and Steel Community was held. Yet, the (relative) exceptional nature of a hearing in a lawyer’s professional career, the commitment it requires – even simply in terms of its duration – and the importance of the issues addressed make Sarmiento’s book all the more valuable. It is a volume that can readily be recommended to anyone willing to undertake the challenge.

The “Survival Guide” will ultimately prove useful not only to counsel, but also to judges – and therefore to the Court itself – which ordinarily expects a great deal from the hearing and may, all too often, be left with a certain sense of dissatisfaction after the fateful “l’audience est levée” pronounced by the President of the formation, marking the end of the demanding morning.