1.1.1 Neutral Experts v. Partisan Experts
1.1.1.1 Basic Framework
When using the expert evidence, there are two basic models[1]. In continental law, expert evidence is adduced by a neutral expert appointed by the court itself. It aims to assist the court to examine the technical questions arising from the complex facts and its mission is defined and entrusted by the court. In general, expert evidence can be seen as an extension of the court[2]. Although the court is not bound by the opinions of the expert, in practice, it rarely departs from the conclusions of the expert[3].
In common law, expert evidence is generally adduced by the parties. The so-called expert witnesses are selected and called by the parties and it is the parties, not the court, to determine the subject matter of the expert’s testimony[4]. The expert witnesses are then examined by the jury and the jury or the court render a final decision on the credibility of the evidence submitted[5].
The EU system is hybrid. The nature of the proceedings before the EU court is neither wholly accusatorial nor entirely inquisitorial[6]. Both types of expert evidence can be relied on the EU Court. Below the main rules of two kinds of expert evidence would be respectively analyzed.
1.1.1.2 Main Procedural Rules Governing the Use of Neutral Expert
Article 25 of the Statute of the Court of Justice of the European Union provides that, the Court of Justice may at any time entrust any individual, body, authority, committee or other organisation it chooses with the task of giving an expert opinion. This regime can be both used in direct action as well as the preliminary proceedings[7].
The EU Court may commission the neutral expert on its motion, but normally, the commission is due to the request of the parties. Without the detailed explanations why it is necessary to commission an expert, the request may be dismissed by the EU Court[8].
The preparation of an expert report is governed by the formal procedure[9]. Before appointing the neutral expert, the parties must be heard[10]. In order to commission a report, the Court must adopt an order setting out the facts to be proved and the deadline of completing the report[11]. When encountering the very complex issues, the Court may appoint a college of exports[12]. The parties may object to an expert on the ground that she is not a competent or proper person to act as expert or for any other reason[13], while such objection shall be raised within two weeks after service of the order appointing the expert[14]. The expert is under the supervision of the Judge-Rapporteur, who would be presented during the expert’s investigation and be kept informed of the expert’s progress in performing her tasks. In order to carry out her work, the expert is entitled to receive all necessary documents[15]. Article 49.3 of the ECJ RoP further provides that, at the request of the expert, the Court may order the examination of witnesses[16].
However, it is still unclear to what extent the parties are entitled to be involved in the preparation of the report, in order to fulfill the requirements of the adversarial principle (principe du contradictoire)[17]. Article 46 of the ECJ RoP merely stipulates that, the parties shall be entitled to attend the measures of inquiry. Also, Article 67.2 of the GC RoP provides that, the parties may be present at the measures of inquiry. The text seems to be used to fit the inspection of the place or thing in question[18]. According to the ruling of the ECtHR in Mantovanell[19]i, no general principle may be inferred from Article 6.1 of the ECHR that, where an expert has been commissioned by the court, the parties are entitled to attend all steps of preparing the report. Nevertheless, a party’s right would be breached if she has not been given the opportunity in the process of preparing the report leading to have a decisive influence on the assessment of the fact by the court[20]. The EU Court in Steffensen [21]ruled that, the more decisive and technical the issues are, the more opportunities the parties must be given to show their concerns during the preparation of the report[22].
With regard to the delivery of the report, the expert is only allowed to give her opinion on points that have expressly referred to him[23]. After receiving the report, the parties may submit the evidence to rebut or amplify her previous evidence[24]. After the expert has made his report, the Court may order she to be examined, the parties would be given notice to attend. Subject to the control of the President, questions may be put to the expert by the representatives of the parties[25]. Moreover, Article 52 of the ECJ RoP provides that, the Court may, on application by a party or of its own motion, issue letters rogatory for the examination of experts, as provided for in the supplementary rules mentioned in Article 125 of these Rules[26].
1.1.1.3 The Unclear Status of Partisan Expert in the Procedures of the EU Court
The procedure for hearing experts brought by parties, the so-called partisan experts, is informal. As Lasok notes, partisan expert, strictly speaking, is not the hearing of expert evidence within the Statute of the ECJ and the Rules of Procedure of the EU Courts. Partisan expert evidence can be presented to the Court either via the submission of an expert’s report annexed to the party’s pleadings or via an oral presentation during the hearing. The evidence tendered by the parties is documentary, while the oral presentation is either testimony or a parole plea as to the facts[27].
While the presentation of the partisan expert evidence is allowed in practice, formally the rules of procedure of the EU Courts only permit the agent, adviser and lawyer to speak during the hearing[28]. Nonetheless, the EU Courts allow the non-lawyers to speak during the hearing in the presence and under the supervision of the lawyer[29]. When the partisan experts intervened in the hearing, they were rarely examined by the opposing party, and such examination could be compared with the cross-examination[30].
[1] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 942.
[2] J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 234. J .Beardsley, ‘Proof of Fact in French Civil Procedure’, (1986) 34 Am. J. Comp. L. 459, at p. 480.
[3] J. Bell, S. Boyron, S. Whittaker, A. Bell, Principles of French Law, Oxford 2008, at p. 108; B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 942.
[5] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 942; the anonymous note, ‘Development in the Law-Confronting the New Challenges of Scientific Evidence’, (1995) 108 Harv. L. Rev. 1481, at p. 1589.
[6] K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at p. 344.
[7] Opinion of A.G. Jocobs in Case C-269.90 Technische Universitat Munchen v Hauptzollamt Munchen-Mitte [1991] ECR I-5480, at para. 13.
[8] Case T-180/01, Euroagri v Commission [2002] ECR II-369, para. 204, B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 944.
[9] Lenaerts, Arts and Maslis, Procedural Law of the European Union, Sweet & Maxwell 2006, at p. 563, K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at pp. 397-401, B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 945-948.
[10] Article 45.1 of the Rule of Procedure of the ECJ (hereafter referred to as the ECJ RoP) provides that, before the Court decides on the measures of inquiry referred to in paragraph 2(d) the commissioning of the expert’s report, the parties shall be heard. Also, see article 66.1 of the Rule of Procedure of the General Court (hereafter referred to as the GC RoP).
2(c), (d) and (e) the parties shall be heard.
[11] Article 49.1 of the ECJ RoP provides that, the order appointing the expert shall define his task and set a time-limit within which he is to make his report. Also, see Article 70.1 of the GC RoP.
[12] Case C-308/87, Grofoni v EAEC [1994] ECR I-341, para. 4. When appointing a group of experts, the report is the report of them all. Although unanimous is not required, the report would be based on the opinion of the majority in practice, see K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at p.
[13] See Article 50.1 of the ECJ RoP and Article 73.1 of the GC RoP. Nevertheless, the parties may object to the order of appointment only, they may not object the other content of the order. Normally, the Court may seek the agreement of appointing the specific expert candidates between parties before commission, see K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at p. 398.
[15] See Article 49.2 of the ECJ RoP and Article 70.2 of the GC RoP. The expert has no power to investigate. If a document she requires is possessed by the parties, she must require the Court to require its production.
[16] Comparatively, in French Law, when the expert examines the witnesses, the parties shall be given the opportunities to ask questions to those witnesses, see J. Bell, S. Boyron, S. Whittaker, A. Bell, Principles of French Law, Oxford 2008, at p. 108
[17] The importance of ensuring this principle has been emphasized in French law, which is the basic model of the rules of procedure of the EU Court, see J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 228, B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 946.
[18] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 946.
[27] K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at p. 398, B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 965.
[30] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 965.
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