by Amelie Edgren (short version)*
According to article 252 TFEU, it shall be the obligation of the Advocate General to act with total objectivity and independence, to make, in open court, logical submissions on cases brought before the European Court of Justice, in order to assist the Court in the performance of the tasks allocated to it. To justify his answer, he provides the Court with legal grounds relating to the existing case-law. The importance of the independence of the Advocate General is emphasised by the Treaty. It has been stated that the Advocate General is not a legal representative of one of the parties, but operates as a legal representative of the public interest.
The Advocate General’s role does not stop at the support that he offers to the Court for the resolution of a specific dispute. He plays a wider role, which can be to present a critical review of the case-law, identifying trends, pointing out inconsistencies and defining possible future developments. Another part of the Advocate General’s wider functioning is to express his own views criticising, where he thinks, principles established in previous cases, even in situations where it is exceptionally unlikely that the Court will follow his opinion, e.g. where he disagrees with a judgment which has just departed from a precedent.
The Opinion delivered by the Advocate General generally contains a full analysis of the case-law aiming at helping the Court in reaching a solution to the case. The legal tradition signifying the Advocate General has a tendency to be reflected in the style and in the legal reasoning of his or her Opinion. These Opinions are adopted in advance to allow the Court sufficient time to reflect over them before they reach a judgment. They often provide a more detailed analysis, of the context and the argument, than what is found in the judgement of the Court. They will typically set out all relevant facts, legislation and case-law with a conclusion on how the Court should decide the case. However, the Opinion of the Advocate General is not binding on the Court, even if the ECJ in its judgments often refers to them.
One particular area where there seems to be agreement between the positions of the Advocate General and the Court is in the case law concerning member state liability in damages for breach of EU law. The case Russo v AIMA (60/75) was the first one directly related to the issue of state liability. However, in some cases before this the Advocate General or the Court had already raised the issue. It was first mentioned in the FERAM (23/59) and Meroni (14/60) cases. In the important Francovich (C-6/90 and C-9/90) case, the Court was inspired by Advocate General Mischo’s Opinion and established the principle that a Member State may be liable in damages to the injured parties for the loss and damage that they suffered as a result of the state’s failure to implement a directive. The ECJ ruled explicitly that compensation for harm caused to an individual by breaches of EU law caused by the State is a principle of Community law.
The Francovich case concerned the failure of the Italian Government to implement Directive 80/987/EEC, which provides for the protection of employees in the event of the liquidation of their employers. The ECJ and Advocate General Mischo concluded that the Directive did not meet up with the conditions for direct effect and, consequently, the plaintiffs could not rely directly on its provisions before national courts. Furthermore, the ECJ had found Italy to be in breach of EU law. It was also clear that the plaintiffs had been caused harm by that failure of the Italian Government. The national court therefore asked particularly whether, in these circumstances, individuals could claim compensation for the loss suffered as a result of a Member State’s breach of Community law. Advocate General Mischo stated that Community law imposes state liability in these situations.
Advocate General Mischo’s approach was to review the case-law of the Court in search of a suitable answer. Mischo examined whether the liability of the State for failure to comply with its Union obligations was a matter for national law alone or a matter of EU law. Mischo concluded that the ECJ had already “implicitly held that the question of principle whether a Member State can be liable is a matter for EU law”.
In Francovich it was a non-directly applicable EU measure, a directive, which was at issue. This was a situation that the ECJ had not faced before. Advocate General Mischo’s approach was to examine whether there were any reasons, which might require that national courts should be given jurisdiction to deal with state liability in relation to EU measures whose provisions do not have direct effect. He concluded that in this context there was no difference between directly and non-directly applicable Union law since the underlying principle behind the remedy is that the non-implementation deprives EU law of its essential effect.
The importance of the role of the Advocates General is tangible when it comes to their actual performance. It is apparent that the Advocates General’s work is a great contribution to the Court. The fact that they have a much wider role than one might expect is also pointing towards the important responsibility that comes with being an Advocate General. Also, the vital fact that they have the opportunity to express their opinion in a way that the Court may not accept or follow makes their work even more interesting. To just raise issues and questions for discussion can never be wrong, on the contrary it will only make people more aware and contribute to even broader thinking. Consequently, whether or not the Opinion is followed, the Court will probably somehow find it helpful. More precisely, the Court must find it great to have a detailed and well-formulated basis on which the judges then can work.
The Advocate General offers a second independent view which is beneficial not only to the Court but also to third parties, e.g. lawyers or academics or simply members of the general public. The Opinions of the Advocate General often have a clarity and directness, which judgments of the Court may lack. It seems like it is rather uncommon and unproductive for the Court to depart from the Opinion of the Advocate General. The Opinion bears an invisible influence on case-law and on the development of EU law, and it can depend on the interaction between Opinions and judgments. The Opinion is designed to give a more coherent and cogent case-law. It needs to be said that the influence that the form of the judgment has is vague but on the other hand should not be underestimated. It seems clear that the Opinion provides a fuller and more coherent reasoning than the judgment. In some cases it might be difficult to understand the reasoning or implications of the judgment without the option to read the Opinion. It can sometimes be a good idea to look at the Opinion for a more far-reaching analysis of a case. The best contribution to the development of case-law is not only the Advocates General on one hand and the ECJ at the other, but also the relationship between the Opinions and judgments.
One thing that must be kept in mind is that the Advocates General’s function is to work with objectivity. If objectiveness is compromised by personal gain or by lobbying, they no longer have a purpose to exist as an office. As said before, a lot of conventions are set up to keep them independent and impartial and this is what keeping the Advocates General valuable as an office.
A. Arnull, The European Union and its Court of Justice, 1999, Oxford University Press.
N. Burrows, R. Greaves, The Advocate General and EC Law, 2007, Oxford University Press.
J. Laffranque, Dissenting Opinion in the European Court of Justice – Estonia’s Possible Contribution to the Democratisation of the European Union Judicial System, in Juridica International IX/2004, available here.
* The full paper is 8 pages.