The role of the Advocate General and the development of direct effect

by Stina Haglund (short version)*

The Court of Justice of the EU (ECJ) is assisted by eight Advocates General according to Article 252 of the TFEU, although the Council can by a unanimous decision rise the number of Advocates General. The institution is unique, although similar institutions exist in some member states. The duty of the Advocate General is to deliver Opinions on the cases brought to the ECJ and it must be done in an open and impartial manner.

The procedure of the selection of Advocates General follows the same scheme as that used for the appointment of judges of the ECJ. The conditions for appointment are that the candidates’ independence is beyond all doubt, and they must be qualified for the highest judicial offices in their home country or they must be jurisconsults of recognised competence. The member state governments agree on who they want to appoint as Advocate General and he or she is appointed for a period of six years which might be renewed according to Article 253 of the TFEU. An Advocate General may, just like a judge, be removed from his position if the other Advocates General and the judges decide unanimously that he or she does not longer fulfills the obligations. Five of the eight Advocates General are nominated from the five largest member states of the Union, i.e. Germany, France, the United Kingdom, Italy and Spain. The other three positions rotate between the other member states.

The most important work performed by the Advocates General is to deliver a written Opinion, named “reasoned submission”. The role of the Advocate General is to propose an independent legal solution. It is important to note that the Court is not obligated to follow the Opinion delivered by the Advocate General. Even though the Opinion does not bind the Court it has an impact on the decision in many cases, and in fact, in most cases the ECJ follows it. In the Chen case (C-200/02) the ECJ used the reasoning of Advocate General Tizzano, citing it almost literally, and came to the same conclusion.

The Advocate General’s Opinion usually considers all the different views and arguments that potentially might apply to the case, while the judgment of the ECJ is not exhaustive and is more tailored to the specific legal issue at hand. In cases where the ECJ comes to the same conclusion as the Advocate General sometimes it can be difficult to know if the reasoning is the same, since the Opinion provides a more detailed analysis of all facts in the case. However, not all cases require an Opinion by an Advocate General. The last section of Art. 20 of the Statute of the Court provides that if the ECJ “considers that the case raises no point of law, the Court may decide, after hearing the Advocate-General, that the case shall be determined without a submission from the Advocate-General”.

If a member state is a party to the proceedings, the Advocate General from that member state will not be appointed to give an opinion in the case in order to avoid any kind of political pressure that could jeopardise his or her independence and impartiality. An Advocate General is not responsible for any special area of law, although in practice they might be appointed to deal with cases in which the question of law is related to a certain field. For instance, if an Advocate General has recently given an Opinion in a case he or she might as well be appointed for all the upcoming cases which deal with a similar question of law. However this is not always the case.

Analysis

To be able to understand the influence by the Advocate General as an institution it is important to look at the “big picture” and not only at whether the ECJ followed the Opinion of the Advocate General in particular cases or not. The influence of the Advocate General has to be described over a period of time and its value cannot be determined only by examining the individual cases. For instance the principle of direct effect, which was first established in 1962 in the famous case Van Gend en Loos (26/62),has developed over time. The issue before the ECJ was simply whether to introduce this constitutional principle into Community law or not. Even though the ECJ reached a judgment which was in contrast to the Opinion of Advocate General Roemer, both ECJ and Roemer stated that certain provisions in the Treaty were capable of having direct effect. The establishment of the principle of direct effect made it possible for individuals to invoke Community law rights before national courts and it was a step towards further integration within the European Community. Another concrete example where an Advocate General contributed to an argument that has been useful for the ECJ in later cases is Reischl´s argument on personal bar (estoppel) in his Opinion in the Ratti case (148/78).

The introduction of direct effect had a major constitutional impact and it also concerned the hierarchy of laws. However it is important to remember that this principle was under development for many years, and it still may not have reached its final step as regards horizontal direct effect of certain acts, i.e. directives. During the recent years several Advocates General have argued for an expansion of the applicability of the principle of direct effect of directives, i.e. to include horizontal direct effect as well. The Advocate General has the possibility to criticise the case-law of the ECJ. Advocates General Lenz and Jacobs for example argued that the ruling in Marshall I (152/84) that directives can only have vertical direct effect should be overruled, however their argumentation did not succeed before the ECJ. The further development of horizontal direct effect of directives must be considered in broad terms since the ECJ has used other grounds to justify its ruling in cases between individuals when it comes to directives. For instance in Mangold (C-144/04) the ECJ found that a provision of a directive was a general principle which was capable of having horizontal direct effect. Only the future will tell whether directives can be used and applied between individuals directly without the use of other sorts of justifications, such as indirect direct effect, general principles and so on. A further question will be under what conditions this would be possible. One might also question if the development of direct effect of directives might have already reached its final step.

Conclusion

The Advocate General acts as an independent institution providing the ECJ with arguments in order to reach a judgment, although, as explained earlier, his or her arguments may well be rejected. The institution is of crucial importance for the development of EU law for several reasons. First, the task of the Advocate General is to provide a wider argumentation than the judges can do in the final judgment. Second, his opinion is important not just for the ECJ itself but also for national courts, as well as for the parties to the dispute in question who can use those arguments.

Scholarly sources

N. Burrows-R. Greaves, The Advocate General and EC Law, Oxford, Oxford University Press, 2007.

T. Tridimas, The role of the Advocate General in the development of community law: some reflections, in 34 Common Market Law Review, 1997, pp. 1349-1387.

* The full paper is 13 pages.

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About eulaworebro

Örebro Universitet (Sweden)
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