¹ The European Coal and Steel Treaty (ECSC Treaty), the European Atomic Treaty (Eurotom) and the European Economic Community Treaty (EEC Treaty), which has been renamed the European Community Treaty (EC Treaty). Throughout this study reference will be made to the European Community Treaty (EC Treaty) and to the current numbering of its Articles, even though, in the relevant period, the correct title was the EEC Treaty and the numbering of its provisions was different.

² The relevant Opinions were delivered from the end of 1961 to the summer of 1964 when he retired. It excludes Opinions delivered in staff cases.

³ The Opinions concerned primarily the scope of the Article 234 preliminary ruling procedure (Case 13/61 De Geus v Bosch [1962] ECR 45, 56) and, in particular, the extent of the obligation on national courts to refer questions of interpretation and validity to the ECJ (Cases 28–30/62 Da Costa en Schaake [1963] ECR 31, 40).

⁴ The Opinions dealt with issues such as the locus standi of non-privileged applicants to challenge regulations under Article 230 (Cases 16 & 17/62 Confédération des producteurs de fruits et légumes et seq v Council [1962] ECR 471, 481 and Cases 19–22/62, Fédération nationale de la boucherie et seq v Council [1962] ECR 491, 481).

⁵ In contrast, reference is made to the submissions of the parties, the Commission and Governments who intervened. The main reason for the lack of reference or comment of the Opinion in the judgment is that the Advocate General is considered to be a member of the Court. His Opinion is advice to the judges not argumentation. Although, unlike the Commisssaire du Gouvernement in the French Conseil d’Etat, the Advocate General does not participate in the deliberations of the Court, he remains a member of the Court. Former President Lecourt delivering a speech in Luxembourg in 1973 on the occasion of the retirement of Advocate General Roemer, stated that the deliberations took place ‘en l’absence de votre personne, mais non dans le silence de votre voix.’ More recently, the Court confirmed in Case C–17/98 Emesa Sugar (Free Zone) NV v Aruba [2000] ECR I-665 that the Advocate General’s Opinion ‘constitutes the individual reasoned opinion expressed in open court, of a Member of the Court of Justice itself.’ (para 14, p 672). The Court added that ‘The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court’s judgment.’ (para 15 at p 672). By contrast, since the late 1980s, the Court has on several occasions referred to the Opinions.

⁶ Dashwood, AA ‘The Advocate General in the Court of Justice of the European Communities’ (1982) Legal Studies 202, 213.

⁷ When the text of the European Coal and Steel Treaty was finalised, reference to the Advocate General was only made in the Protocol on the Statute of the Court of Justice. It was not until the 1965 Merger Treaty, when the institutions of the three Communities were merged, that reference to the Advocate General was inserted in the ECSC Treaty itself in the form of Article 32a.

⁸ Funeral oration for Maurice Lagrange delivered by Lord Mackenzie Stuart on 3 October 1986.

⁹ For relevant literature on the role of the Advocate General see the following: Barav, A ‘Le commissaire du gouvernement près le Conseil d’Etat français et l’avocat général près la Cour de Justice des Communautes Européennes’ Revue international du droit européan 1974, 809; Dashwood, AA, above n 6; Borgsmidt, K ‘The Advocate General at the European Court of Justice: A Comparative Study’ (1988) ELRev 106; Tridimas, T ‘The Role of the Advocate General in the Development of Community Law’ (1997) CML Rev 1349.

¹⁰ Being the first case on Article 234 and raising issues of EC competition law which were of importance to all Member States, there were a number of interveners, namely the Commission and the Governments of Germany, France, Belgium and the Netherlands.

¹¹ Case 13/61 [1962] ECR 45, at 56, 60 and 61.

¹² Ibid at 59.

¹³ Ibid at 61.

¹⁴ Ibid at 49–50.

¹⁵ Ibid at 50.

¹⁶ It should also be noted that this reference to ‘two separate and distinct legal orders’ was made by the ECJ in De Geus v Bosch, a full 10 months before the ruling in Van Gend en Loos which is always cited as the authority for this statement.

¹⁷ Case 75/63 [1964] ECR 177.

¹⁸ See above n 11 at 63.

¹⁹ Ibid at 50.

²⁰ See above n 17 at 189.

²¹ Ibid.

²² Ibid.

²³ Case 101/63 [1964] ECR 195.

²⁴ Ibid at 204.

²⁵ Ibid at 206. Both the Advocate General and the Court reached the same conclusion as to the scope of Article 234 but on the question of substance, namely whether the European Assembly was ‘in session’ during an adjournment, they reached different conclusions!

²⁶ Case 6/64 [1964] ECR 585.

²⁷ Ibid at 601.

²⁸ Ibid at 593.

²⁹ Ibid at 602.

³⁰ Ibid at 602.

³¹ Ibid at 603.

³² Case 26/62 [1963] ECR 1, 12.

³³ Although Costa v ENEL is considered to be the first case establishing the fundamental principle of supremacy of Community law, this principle had already been considered in earlier cases in the context of the relationship of Community law with international agreements signed by the Member States. In Case 10/61 Commission v Italy [1962] ECR 1, which was decided before Van Gend en Loos (1963), the ECJ ruled that ‘[I]n fact, in matters governed by the EEC Treaty, that Treaty takes precedence over agreements concluded between Member States before its entry into force, including agreements made within the framework of GATT.’ (at 10).

³⁴ See above n 26 at 603.

³⁵ Proceedings may be brought before the ECJ either directly by an Article 230 application for annulment or indirectly by relying on the plea of illegality as provided in Article 241.

³⁶ See above n 26 at 603–4.

³⁷ Ibid at 605. Contrast with the Opinion of Advocate General Roemer in Van Gend en Loos where he identified the problem but failed to provide a solution (see above n 32 at 23–4).

³⁸ Case 4/73 [1974] ECR 491 concerning the alleged violation of a property right and the right to pursue a business activity which is protected by the German Basic Law (Grundgesetz).

³⁹ Case 11/70 [1970] ECR 1125, 1134 where the Court reaffirmed the supremacy of Community law even in the face of ‘fundamental rights as formulated by the constitution’ of a Member State.

⁴⁰ [1974] 2 CMLR 540; However in Solange II [1987] 3 CMLR 225 the German Federal Constitutional Court reversed its earlier position.

⁴¹ Case 104/79, [1980] ECR 745.

⁴² See Barnard, C and Sharpston, E ‘The changing face of Article 177 references’ (1997) CML Rev 1113 for an in-depth analysis of the ECJ’s response in later years to the problem foreseen by Lagrange.

⁴³ Joined Cases 28, 29 and 30/62 [1963] ECR 31.

⁴⁴ See above n 32.

⁴⁵ See above n 43 at 40.

⁴⁶ See above n 32 at 11.

⁴⁷ See above n 43 at 42.

⁴⁸ Ibid.

⁴⁹ Ibid at 42–3.

⁵⁰ Ibid at 43.

⁵¹ Ibid at 38, emphasis added.

⁵² Ibid at 45. For an opposite view see Advocate General Caportorti’s Opinion in Case 283/81 CILFIT [1982] ECR 3415 at 3437.

⁵³ Ibid.

⁵⁴ See above n 52.

⁵⁵ Case 7/61 Commission v Italy [1961] ECR 317 and Case 10/61 Commission v Italy [1962] ECR 1. These standstill provisions required Member States to refrain from introducing between themselves any quantitative restrictions (Case 7/61) or new customs duties (Case 10/61) before such measures were abolished completely.

⁵⁶ Ibid, Case 7/61.

⁵⁷ See above n 55 at 333.

⁵⁸ Ibid.

⁵⁹ Ibid at 335.

⁶⁰ Ibid at 326.

⁶¹ Ibid at 336.

⁶² Cases 16 & 17/62 [1962] ECR 471.

⁶³ Cases 19 to 22/62 [1962] 491.

⁶⁴ See above n 62 at 482.

⁶⁵ Under Article 33 ECSC Treaty only undertakings and their associations (rather than ‘any natural or legal person’ under Article 230 EC Treaty) may have direct access to the ECJ. However, these non-privileged applicants may challenge individual decisions addressed to others provided that they ‘concern them’ and challenge general measures ‘which they consider to involve a misuse of powers affecting them.’ Under Article 230 EC Treaty natural or legal persons may only challenge a decision addressed to others or a general measure if they can demonstrate that the measure concerned is ‘of direct and individual concern’ to them.

⁶⁶ See among others Ward, A ‘Judicial Architecture at the Cross-roads: Private Parties and Challenge to EC Measures post-Jégo Quéré ’ (2001) 4 Cambridge Yearbook of European Legal Studies 412 CrossRefGoogle Scholar; Albors-Llorens, A ‘Standing of Private Parties to Challenge Community Measures: Has the European Court Missed the Boat?’ (2003) 62 CLJ 72 CrossRefGoogle Scholar.

⁶⁷ See above n 62 at 485.

⁶⁸ Ibid at 486.

⁶⁹ Ibid.

⁷⁰ Ibid at 486.

⁷¹ Ibid at 487. These quotes from Lagrange’s Opinion vividly illustrates that from an early stage in the development of the Community legal order the limitations on the locus standi of non-privileged applicants under Article 230 EC Treaty were found to be unsatisfactory.

Nevertheless, Lagrange succinctly examined the reasons for such limitations and concluded that the expressed will of the authors of the Treaty should prevail. This is very much the same conclusion that the ECJ reached in Case C–50/00 Unión de Pequeños Agricultores v Council (UPA) [2002] ECR I–6677, 40 years later. The Opinion of Advocate General Jacobs in UPA, and the support it received from jurists (see, for example, above n 66), is a clear indication that this matter is not yet settled.

⁷² See above n 26 at 600.

⁷³ Case 7/61, see above n 55.

⁷⁴ Ibid at 333.

⁷⁵ See above n 26 at 606.

⁷⁶ See above n 11 and n 26.