It is not every day that the Court of Justice beats up the Court of First Instance (as it was known) for violating the human rights of the parties. But that is just what it did in its judgment in Case C-89/08 P Commission v. Ireland and others.
What happened was this. The Commission adopted a decision partly approving state aid schemes introduced by France, Italy and Ireland and partly declaring them incompatible with the common market and ordering their recovery.
Ireland, France and Italy then challenged that decision before the Court of First Instance. That Court annulled the decision in its judgment in Joined Cases T- 50/06, T-56/06, T-62/06 and T-69/06 Ireland and others v. Commission (ECR  II-172). The Court of First Instance held that the Commission had failed to give proper reasons for its decision and annulled it on that sole ground.
The problem with that, though, was that none of the applicants had pleaded lack of reasoning as a ground of annulment and the Court of First Instance did not question the parties on that aspect of the case at all during the written or oral phase of the proceedings: It just pulled that ground of annulment out of its hat when handing down the judgment.
And so the Commission appealed.
The Court of Justice upheld the Commission's appeal on that point.
It held that the Court of First Instance could raise the ground of annulment for lack of reasoning of its own motion. It recalled that it has consistently been held that an absence of or inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a plea involving a matter of public policy which may, and even must, be raised by the Community judicature of its own motion (Case C‑166/95 PCommission v Daffix  ECR I‑983, paragraph 24; Case C‑367/95 P Commission v Sytraval and Brink’s France  ECR I‑1719, paragraph 67; Case C‑265/97 P VBA v Florimex and Others  ECR I‑2061, paragraph 114; and Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala  ECR I‑4951, paragraph 174).
So far so good. But then Court of Justice dealt with whether it was proper for the Court of First Instance to raise the plea of its own motion without hearing the parties on that point at all.
The Court of Justice drew the line at that and held that the Court of First Instance should have heard the parties before deciding the case on that point. It held that the principle that the parties should be heard means, as a rule, that the parties have a right to a process of inspecting and commenting on the evidence and observations submitted to the court (Case C‑450/06 Varec  ECR I‑581, paragraph 47) and, moreover, that that basic principle of law is infringed where a judicial decision is founded on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment (Joined Cases 42/59 and 49/59 SNUPAT v High Authority  ECR 53, 84; Case C‑480/99 P Plant and Others v Commission and South Wales Small Mines  ECR I‑265, paragraph 24; and Case C‑199/99 P Corus UK v Commission  ECR I‑11177, paragraph 19). It insisted that a court must itself observe the rule that the parties should be heard, in particular, when it decides a dispute on a ground it has identified of its own motion (see, by analogy, in the sphere of human rights, the judgments of the European Court of Human Rights in Skondrianos v. Greece, nos. 63000/00, 74291/01 and 74292/01, §29 and 30, 18 December 2003; Clinique des Acacias and Others v. France, nos. 65399/01, 65405/01 and 65407/01, §38, 13 October 2005; and Prikyan and Angelova v. Bulgaria, no. 44624/98, §42, 16 February 2006).
In a final rebuke to the Court of First Instance, the Court of Justice recalled that, in the analogous context of Article 6 of the ECHR, it has held that it is precisely in deference to that article and to the very purpose of every individual’s right to adversarial proceedings and to a fair hearing within the meaning of that provision that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (Order of 4 February 2000 in Case C‑17/98 Emesa Sugar  ECR I‑665, paragraphs 8, 9 and 18, and Joined Cases C‑270/97 and C‑271/97 Deutsche Post  ECR I‑929, paragraph 30).