¹ ‘Advocate General’ or ‘AG’ is used when referring specifically to Advocates General in the Court of Justice of the European Union. The term ‘fourth in the court’ is employed for referring to the function of independent representatives of public interest in courts in generic terms, ie including AGs but also similar functions in the various Member States (commissaire du gouvernement, procureur general, rapporteur public, Advocaat-Generaal etc).

² Eg Barav, Ami, ‘Le commissaire du gouvernement près le Conseil d’État français et l’avocat général près la Cour de justice des Communautés européennes’ (1974) 26 Revue internationale de droit comparé 809 CrossRefGoogle Scholar or Gori, Paolo, ‘L’avocat général à la Cour de justice des Communautés européennes’ (1976) 12 Cahiers de droit européen 375 Google Scholar. Interestingly, both of these articles quote as the first ever article dedicated to AGs at the Luxembourg Court a Spanish contribution: Salcedo, Carrillo, ‘La figura del abogado general en las Communidades Supranationales Europeas: naturaleza juridical y fonción’ (1959) 12 Revista española de derecho international 119 Google Scholar.

³ Eg Dashwood, Alan, ‘The Advocate General in the Court of Justice of the European Communities’ (1982) 2 Legal Studies 203 CrossRefGoogle Scholar; Vranken, Martin, ‘Role of the Advocate General in the Law-Making Process of the European Community’ (1996) Anglo-American Law Review 39 Google Scholar.

⁴ Eg Fennelly, Nial, ‘Reflections of an Irish Advocate General’ (1996) Irish Journal of European Law 5 Google Scholar; Jacobs, Francis, ‘Advocates General and Judges in the European Court of Justice: Some Personal Reflections’ in O’Keeffe, David (ed), Judicial Review in European Union Law: Liber Amicorum in Honour of Lord Slynn of Hadley (The Hague, Kluwer Law International, 2000) 17–28 Google Scholar; Sharpston, Eleanor, ‘The Changing Role of the Advocate General’ in Arnull, Anthony, Eeckhout, Piet and Tridimas, Takis (eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford, Oxford University Press, 2008) 20–33 CrossRefGoogle Scholar (with further references to articles by Julianne Kokott, Walter van Gerven and Carl Otto Lenz).

⁵ Eg Borgsmidt, Kirsten, ‘The Advocate General at the European Court of Justice: A Comparative Study’ (1988) 13 European Law Review 106 Google Scholar; Tridimas, Takis, ‘The Role of the Advocate General in the Development of Community Law: Some Reflections’ (1997) 34 Common Market Law Review 1349 CrossRefGoogle Scholar or Mortelmans, Kamiel, ‘The Court under the Influence of its Advocate General: An Analysis of the Case Law on the Functioning of the Internal Market’ (2005) 24 Yearbook of European Law 127 CrossRefGoogle Scholar.

⁶ See in particular Burrows, Noreen and Greaves, Rosa, The Advocate General and EC Law (Oxford, Oxford University Press, 2007)CrossRefGoogle Scholar and recently Clément-Wilz, Laure, La fonction de l’avocat général près la Cour de justice (Brussels, Bruylant 2011)Google Scholar. Further see Ritter, Cyril, ‘A New Look at the Role and Impact of Advocates General—Collectively and Individually’ (2005-2006) 12 Columbia Journal of European Law 751 Google Scholar or Solanke, Iyiola, ‘“Stop the ECJ”? An Empirical Analysis of Activism at the Court’ (2011) 17 European Law Journal 764 CrossRefGoogle Scholar.

⁷ As suggested already in both of the first writings on the issue: Barav, , ‘Le commissaire du gouvernement’ (n 2) 826 Google Scholar as well as Gori, ‘L’avocat général à la Cour de justice’ (n 2) 379.

⁸ Borgers v Belgium [plenary], judgment of 30 October 1991 (App no 12005/86); Vermeulen v Belgium [GC], judgment of 20 February 1996 (App no 19075/91); Van Orshoven v Belgium, judgment of 25 June 1997 (App no 20122/92).

⁹ Kress v France [GC], judgment of 7 June 2001 (App no 39594/98); Martinie v France [GC], judgment of 12 April 2006 (App no 58675/00).

¹⁰ Reinhardt and Slimane-Kaïd v France [GC], judgment of 31 March 1998 (Apps nos 23043/93 and 22921/93).

¹¹ K D B v the Netherlands, judgment of 27 March 1998 (App no 21981/93); J J v the Netherlands, judgment of 27 March 1998 (App no 21351/93).

¹² Lobo Machado v Portugal, judgment of 20 February 1996 (App no 15764/89).

¹³ Including, for example, also the rather intriguing office of the Bailiff of Island of Guernsey, acting also as presiding judge in the Royal Court on the island—McGonnel v the UK, judgment of 8 February 2000 (App no 28488/95).

¹⁴ See Kosarř, David, ‘Policing Separation of Powers: A New Role for the European Court of Human Rights?’ (2012) 8 European Constitutional Law Review 33 CrossRefGoogle Scholar.

¹⁵ Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA v the Netherlands, admissibility decision of 20 January 2009 (App no 13645/05). Previous challenge in Emesa Sugar NV v the Netherlands, admissibility decision of 13 January 2005 (App no 62023/00), was declared outside of the scope of the Convention ratione materiae.

¹⁶ Kress (n 9); Martinie (n 9).

¹⁷ Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland [GC], judgment of 30 June 2005 (App no 45036/98), in particular [152]–[156].

¹⁸ Cf Décret no 2009-14 du 7 janvier 2009 relatif au rapporteur public des juridictions administratives et au déroulement de l’audience devant ces jurisdictions (JORF no 6 du 8 janvier 2009, p. 479).

¹⁹ One cannot but agree with the analysis carried out elsewhere ( Burrows, and Greaves, , The Advocate General and EC Law (n 6) 48–54 Google Scholar) that if the ECtHR applied its previous case law to AGs in the Court, it would be forced to conclude that the current procedural set up violates Art 6(1) ECHR requirements.

²⁰ Cf, eg, Jacobs, Francis, ‘Recent and Ongoing Measures to Improve Efficiency of the European Court of Justice’ (2004) 29 European Law Review 823 Google Scholar or Johnston, Angus, ‘Judicial Reform and the Treaty of Nice’ (2001) 38 Common Market Law Review 499 CrossRefGoogle Scholar.

²¹ Art 20 of the Statute of the Court of Justice (OJ C83/210 of 30 March 2010). Further see Burrows, and Greaves, , The Advocate General and EC Law (n 6) 20–22 Google Scholar.

²² Thus being deprived, for better or worse, of the privilege of, for example, inspecting female nightdresses for the purpose of their classification into the appropriate subheading of the Common Customs Tariff, an act that famously prompted AG Jacobs to rather intimate reflections on the purpose of the preliminary rulings procedure as such—Opinion of AG Jacobs of 10 July 1997, Case C-338/95 Wiener SI GmbH v Hauptzollamt Emmerich [1997] ECR I-6495.

²³ According to the Annual Statistics of the Court of Justice (www.curia.europa.eu), about 46% of the judgments delivered in 2011 were delivered without AG’s Opinion (compared with 50% in 2010, 52% in 2009, 41% in 2008, 43% in 2007, 33% in 2006, 35% in 2005, and 30% in 2004). These figures, however, do not include cases that were disposed of by a reasoned order pursuant to Art 104 (3) of the Rules of Procedure or disposed of otherwise. The frequency of the involvement of AGs if calculated against the number of cases filed with the Court of Justice would thus naturally be lower.

²⁴ AGs still fully participate in the initial decision-making as to whether an Opinion shall be delivered or not. This does not, however, contradict the fact that once decided that a case will go forward without an Opinion of an AG, they do not participate further in majority of cases before the Court today.

²⁵ Including the outdated and highly questionable way in which the seats of the current eight AGs are allocated, in particular the existence of five permanent AG seats allocated to the large Member States, for which any convincing structural explanation (with the exception of blunt power politics) in an European Union composed of 27 Member States is lacking. Critically (together with reform proposals) see Greaves, Rosa, ‘Reforming Some Aspects of the Role of Advocates General’ in Arnull, Anthony et al (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 161 Google Scholar, 171–75.

²⁶ Art 252 TFEU in conjunction with ‘Declaration on Article 252 of the Treaty on the Functioning of the European Union regarding the number of Advocates General in the Court of Justice’ (Declaration no 38, published in OJ C83/350 of 30 March 2010). The political haggling in Lisbon Treaty negotiations which resulted in providing for a sixth permanent AG seat for Poland has hardly helped in alleviating any of the concerns mentioned in the previous footnote.

²⁷ The word historical is to be stressed here. There is no doubt that the definition of the role of the commissaires du gouvernement has been changing over time, recently mutating into the new shape of the rapporteur public . The discussion in this contribution focuses nonetheless primarily on the past life and justification of commissaires du gouvernement, which could have reasonably influenced the creation of AGs in the Court in 1950s and the definition of their function in early years of the EEC. The on-going considerable discussions in France resulting from the ECtHR’s case law of the last decade (above nn 8–13) and the ensuing quest for new spirit of rapporteur public in the Conseil d’État since 2009 are unfortunately outside the ambition of this contribution, extremely interesting though they are.

²⁸ Further discussion in this chapter focuses on the traditional function of CdGs in the CdE. Other types of representatives of public interest in administrative or other jurisdictions are unfortunately outside of its scope.

²⁹ For an introduction in English, see Brown, Neville and Bell, John, French Administrative Law, 5th edn (Oxford, Clarendon Press, 1998) 49 Google Scholar, 90, and 104–106.

³⁰ Sauvel, Tony, ‘Les origines des Commissaires du Gouvernement auprès du Conseil d’État statuant au contentieux’ (1949) 55 Revue du droit public et de la Science Politique 5 Google Scholar, 16–17.

³¹ Ibid, 6–7.

³² Sauvel, , ‘Les origines des Commissaires du Gouvernement’ (n 30) 10–11 Google Scholar. See also Krynen, Jacques, L’État de justice France, XIII ^e–XX ^e siècle. Tome II: L’emprise contemporaine des juges (Paris, Gallimard, 2012) 234 Google Scholar or Aucoc, Léon, Le Conseil d’État avant et depuis 1789: ses transformations, ses travaux et son personnel (Paris, Imprimerie nationale, 1876) 92–94 Google Scholar.

³³ Sauvel, , ‘Les origines des commissaires du gouvernement’ (n 30) 12–14 Google Scholar; Krynen, , L’État de justice France (n 32) 238 Google Scholar.

³⁴ For a description of the perceived evils of judicial imposition of the Parlements before 1789, to which the French Revolution reacted, see, eg, Dawson, John P, Oracles of the Law (Ann Arbor, University of Michigan Law School, 1968) 362 ffGoogle Scholar or Krynen, Jacques, L’État de justice France, XIII ^e–XX ^e siècle. Tome I: L’idéologie de la magistrature ancienne (Paris, Gallimard, 2009)Google Scholar, chs 3 and 4.

³⁵ Sauvel, n 30, 12–13, quotes a statement by de Cormenin, one of the fathers of the idea of ‘ministère public’ in courts in the period of Restoration.

³⁶ Various authors provide references to different cases in which, already in the first half of the 19th century, the CdGs argued against the interests of the government (the King). The convention of the CdGs being completely independent of the government appears to be in any case firmly established in 1852, when the CdG Reverchon argued, in spite of political pressure and contrary to express instructions given to him by the government, against the State in a case concerning the post-revolutionary expropriation of property of the Orleans Family—Sauvel, n 30, 17; Krynen, n 32, 238; Genevois, Bruno, ‘Le commissaire du gouvernement devant le Conseil d’État statuant au contentieux ou la stratégie de la persuasion’ (2000) 16 RFD adm. 1207 n 9 Google Scholar.

³⁷ Cf with respect to the Cour de cassation, Montazel, Laurence, Entre faits et droit: histoire d’un pouvoir judiciaire: Les techniques de la cassation civile en France et en Allemagne au XIX ^ème siècle (Frankfurt, Klostermann, 1998) 88 Google Scholar, who claimed that by the end of the 19th century, the Cour de cassation had acquired normative powers similar to the ancient Parlements, just named differently. Absent any original codification of administrative law, the CdE became a de facto legislator from its very beginning. On judicial creativity in the CdE, cf, eg, Latournerie, Roger, ‘Essai sur les méthodes juridictionnelles du Conseil d’État’ in Le Conseil d’État: Livre jubilaire (Paris, Recueil Sirey, 1952) 177 ffGoogle Scholar or Gaudemet, Yves, Les méthodes du juge administratif (Paris, LGDJ, 1972)Google Scholar.

³⁸ Or, to be more precise, in the dogmatic of the system itself, members of the public administration, functionally, however, administrative judges. Whatever the precise label, the question remains the same: can guardians ever be able to genuinely guard other guardians, if not institutionally and/or personally separate?

³⁹ CfCahen-Salvador, George, ‘Un grand commissaire du gouvernement: Jean Romieu’ in Le Conseil d’État: Livre jubilaire (Paris, Recueil Sirey, 1952) 323 Google Scholar; Guillien, Raymond, ‘Les commissaires du gouvernement près les juridictions administratives et, spécialement, près le Conseil d’État français’ (1955) 71 Revue du droit public de de la science politique en France et à l’étranger 281 Google Scholar, 283–85; Dupeyroux, Olivier, ‘Le ministère public auprès des juridictions administratives’ in L’Évolution du droit public: Études offertes à Achille Mestre (Paris, Sirey, 1956) 180-82Google Scholar; More recent discussion is provided by Genevois, Bruno, ‘Le commissaire du gouvernement devant le Conseil d’État statuant au contentieux ou la stratégie de la persuasion’ (2000) 16 RFD adm. 1207 Google Scholar; or De Silva, Isabelle, ‘Les conclusions, fragments d’un discours contentieux’ in Le dialogue des juges: Mélanges en l’honneur du président Bruno Genevois (Paris, Dalloz, 2009) 359-75Google Scholar.

⁴⁰ For the accounts of individual contributions, see Le Conseil d’État: Livre jubilaire (Paris, Receuil Sirey, 1952), in particular contributions on Jean Romieu (pp 323–26) and on Léon Blum (pp 337–40).

⁴¹ Genevois, , ‘Le commissaire du gouvernement’ (n 39) 1208 Google Scholar.

⁴² Sauvel, , Les origines des commissaires du gouvernement’ (n 30) 17 Google Scholar.

⁴³ Guillien, , ‘Les commissaires du gouvernement près les juridictions administratives’ (n 39) 297 Google Scholar.

⁴⁴ Dupeyroux, , ‘Le ministère public auprès des juridictions administratives’ (n 39) 183 Google Scholar.

⁴⁵ Conseil d’État, 10 July 1957, Gervaise, Rec p 466.

⁴⁶ Conseil d’État, 29 July 1998, Eslatine, Rec p 320.

⁴⁷ Expression used in personal email correspondence with the author of 24 April 2012.

⁴⁸ For a description of the process in English, see, eg, Brown, and Bell, , French Administrative Law (n 29) 104–106 Google Scholar, or (in a quite different, but very vivid tone) Latour, Bruno, The Making of Law: An Ethnography of the Conseil d’État (Cambridge, Polity, 2010) 209-22Google Scholar.

⁴⁹ Argument developed with respect to the work of Cour de cassation in Lasser, Mitchel, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004)Google Scholar and re-stated with respect to the CdE in Lasser, Mitchel, ‘The European Pasteurization of French Law’ (2004-05) 90 Cornell Law Review 995 Google Scholar.

⁵⁰ Ami Barav quoting from the ‘Rapport de la délégation française sur le Traité de la Convention signé à Paris le 18 avril 1951’, states (Barav, ‘Le commissaire du gouvernement’ (n 2) 811):

For what the then perception of these ‘beneficial effects’ might have been, see a monumental collection appearing at the same time: Le Conseil d’État (n 40), in particular contributions on CdGs by Antoine Bernard (299–302); François Gazier (303–10); Georges Cahen-Salvador’s contribution on Jean Romieu (323–26); and Pierre Juvigny’s contribution on Léon Blum (337–40).

⁵¹ The individual being Maurice Lagrange, at the time himself a member of the CdE and previously a CdG, who is credited with having introduced the idea of AGs in the course of ECSC Treaty negotiations in lieu of dissenting opinions. He later became himself one of the first two AGs. See Boerger-De Smedt, Anne, ‘La Cour de Justice dans les négociations du traité de Paris instituant la CECA’ (2008) 14 Journal of European Integration History 7 CrossRefGoogle Scholar, 21. Morten Rasmussen suggested that had Monnet retained his previous legal advisor and not asked for Lagrange from the Conseil d’État, the Court of Justice would most likely have no AGs today. In: Morten Rasmussen, ‘The First Advocates General and the Making of European Law, 1950–1958’, forthcoming as European University Institute Law Working Paper in 2012 (on file with the author).

⁵² Brown, and Bell, , French Administrative Law (n 29) 106 Google Scholar n 23.

⁵³ Ritter, , ‘A New Look at the Role and Impact of Advocates General’ (n 6) 772 Google Scholar (VI. Annex, Table A).

⁵⁴ Rousseau, Jean Jacques, Du contrat social ou principes du droit politique (1792 edition; Reprint Amsterdam, MetaLibri, 2008)Google Scholar in particular book II, chs 1 and 3.

⁵⁵ Ibid, 18–19.

⁵⁶ Generally see Berman, HJ, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass, Harvard University Press, 1983) 28 and fGoogle Scholar. It may be nonetheless questionable whether in the dominance of the public over the private, the French Revolution and its legal regime were indeed revolutionary, or whether they were in fact just building on previous models, in particular canon law.

⁵⁷ And were relevant for the demarcation of the division between private and public and the structure of legal institutions—cf the comparative discussion in MR Freedland and Auby, J-B (eds), The Public Law/Private Law Divide: une entente assez cordiale? = La distinction du droit public et du droit privé: regards français et britanniques (Oxford, Hart Publishing, 2006)Google Scholar.

⁵⁸ With the exception of the already mentioned Belgian and Dutch examples, based on the French model.

⁵⁹ Canon 1435, 1983 CIC. With tongue-in-cheek, it is interesting to note that the requirements of Art 253 TFEU for the appointment to the office of an AG include ‘only’ either the qualification for the ‘highest judicial offices’ in the respective Member States or being ‘jurisconsult of recognised competence’. Neither ‘prudence and zeal’ (prudentia et iustitiae zelo probati) for EU law or European integration nor even knowledge of EU law appear, at least formally, to be included. Further on independent advocates in ecclesiastical courts, see Hogan, James J, Judicial Advocates and Procurators: A Historical Synopsis and Commentary (Washington, Catholic University of America, 1941) 4 fGoogle Scholar. I am much obliged to John Bell for drawing my attention to these provisions of the CIC.

⁶⁰ With the exception of Malta and Cyprus, all the other 10 new Member States from the 2004 and 2007 enlargements previously belonged to the Communist ‘Eastern Bloc’.

⁶¹ For descriptions of the system in English, see, eg, Smith, GB, The Soviet Procuracy and the Supervision of Administration (Alphen aan den Rijn, Sijthoff & Noordhoff, 1978)Google Scholar or Morgan, GG, Soviet Administrative Legality: The Role of Attorney General’s Office (Stanford, Stanford University Press, 1962)Google Scholar. A comparative East/West assessment is offered in Jolowicz, J A (ed), Public Interest Parties and the Active Role of the Judge in Civil Litigation (Milano, Giuffrè, 1974)Google Scholar.

⁶² For a detailed description of the problems connected to such transformation, see, eg, Lata, Jan, ‘Prokuratura’ in Bobek, Michal, Molek, Pavel and Vojtěch Šimíček, (eds), Komunistické právo v Československu: Kapitoly z d ějin bezpráví [Communist Law in Czechoslovakia: Chapters from the History of Lawlessness] (Brno, Masarykova univerzita, 2009) 848-91Google Scholar.

⁶³ Cf cases discussed above, notes and text to notes nos 8–16.

⁶⁴ According to the Council of Europe Treaty Office (www.conventions.coe.int), the European Convention was ratified in 1992 by Bulgaria, Hungary, Czech Republic and Slovakia (in 1992 still Czechoslovakia, but from 1993 two independent states with two judges); in 1993 by Poland; in 1994 by Romania and Slovenia; in 1995 by Lithuania; in 1996 by Estonia and by 1997 by Latvia. Furthermore, a number of post-Soviet and Balkan countries ratified the European Convention also in the second half of 1990s, namely Albania (1996); Croatia (1997); Georgia (1999); Moldova (1997); Russia (1998); The Former Yugoslav Republic of Macedonia (1997); and Ukraine (1997). Thus, in the course 1990s, the composition of and necessarily also the internal balance within the ECtHR changed considerably.

⁶⁵ This is obviously nothing more than author’s personal speculation. It can be supported, however, by the empirical fact that when similar issue came to the ECtHR first time around in case Delcourt v Belgium, judgment of 17 January 1970 (App no 2689/65), the ECtHR unanimously found no violation of Art 6(1) of the European Convention. More than twenty years later, when assessing the same provisions with respect to the same function of procureur général in the Belgian Cour de cassation, the ECtHR concluded that it violates Art 6(1) of the European Convention.

⁶⁶ Quoted above, nn 8–13.

⁶⁷ Critically Bobek, Michal, ‘Quantity or Quality? Reassessing the Role of Supreme Jurisdictions in Central Europe’ (2009) 57 American Journal of Comparative Law 33 CrossRefGoogle Scholar.

⁶⁸ Kress v France [GC], judgment of 7 June 2001 (App no 39594/98, § 81).

⁶⁹ Lasser, Mitchel, ‘The European Pasteurization of French Law’ (2005) 90 Cornell Law Review 995 Google Scholar, 1067–81.

⁷⁰ Ibid, 1068. The argument is developed more broadly in Lasser, Mitchel, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004)Google Scholar.

⁷¹ As suggested by Lasser, ‘The European Pasteurization of French Law’ (n 69), who is quoting extensively from appalled French doctrinal writings commenting upon the ECtHR’s decisions. For a more nuanced (and arguably more reasonable) stance, see Lemmens, Koen, ‘But Pasteur Was French: Comments on Mitchel Lasser’s the European Pasteurization of French Law’ in Huls, Nick, Adams, Maurice, and Bomhoff, Jacco (eds), The Legitimacy of Highest Court’s Rulings: Judicial Deliberations and Beyond (The Hague, TMC Asser Press, 2009) 145-74CrossRefGoogle Scholar.

⁷² ‘Wertende Rechtsvergleichung ‘, as suggested by Zweigert, Konrad, ‘Der Einfluss des Europäischen Gemeinschaftsrechts auf die Rechtsordnungen der Mitgliedstaaten’ (1964) 28 Rabels Zeitschrift 601 Google Scholar, 611. Generally see also Lenaerts, Koen, ‘Interlocking Legal Orders in the European Union and Comparative Law’ (2003) 52 International and Comparative Law Quarterly 873 CrossRefGoogle Scholar.

⁷³ The traditional positive example given in this respect is the principle of proportionality, which, at the time of its adoption by the Court of Justice, existed only in minority of Member States. The perhaps less positive and more recent example is the principle of prohibition of discrimination on the basis of age, which appeared to have textual foundation only in Finnish law—cf Opinion of AG Mazák of 15 February 2007 in Case C-411/05, Félix Palacios de la Villa [2007] ECR I-8531, [88]–[97] or Opinion of AG Sharpston of 22 May 2008 in Case C-427/06 Birgit Bartsch [2008] ECR I-7245, [43]–[48].

⁷⁴ Although it is per se not excluded, the Commission is virtually never a party to the original proceedings in national courts from which references on preliminary rulings are made.

⁷⁵ See notably Rasmussen, Hjalte, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policy-Making (Dordrecht, Martinus Nijhoff Publishers, 1986)Google Scholar. Similar arguments keeps coming back: cf, eg, recently: Roman Herzog and Lüder Gerken in their joint article entitled ‘Stoppt den Europäischen Gerichtshof ‘, published in the Frankfurter Allgemeine Zeitung of 8 September 2008, accessible also online at www.cep.eu. See also the Editorial Comments ‘The Court of Justice in the Limelight—Again’ in (2008) 45 Common Market Law Review 1571–79.

⁷⁶ OJ C83/210 of 30 March 2010.

⁷⁷ Cases in which General Court made use of Art 49 of the Statute and appointed an AG amount to just slightly more than a dozen cases, all of them from the period 1989–92 (eg Cases Nos T-13/89; T-14/89; T-51/89; T-120/89; T-24/90 and others). The possibility of appointing an AG in the General Court appears to become obsolete in the course of the last decade. In more complex or novel cases, the General Court relies in today’s practice on a (more detailed) preliminary report presented by the reporting judge.

⁷⁸ Whether it functions well is a rather different question. However, the greatest problem the General Court is facing today, the ever rising length of proceedings, would surely not be tackled by introducing AGs into the proceedings in the General Court.

⁷⁹ Or, more precisely, the ‘Masters of the Treaties’ take it away following a suggestion to this effect by the Court. It may be nonetheless suggested that in such a matter, the decisive word would be that of the Court itself.

⁸⁰ In some instances very considerably, including key issues and arguments not pres ent beforehand—cf, eg, the Opinion of AG Geelhoed of 29 April 2004 in Case C-304/02, Commission v France [2004] ECR I-6263. The instances in which the Court would later go in a completely different direction than the AG’s opinion are quite rare, although they do happen—cf, eg, Opinion of AG Poiares Maduro of 22 April 2009 in Case C-115/08 ČEZ a s [2009] ECR I-10265 in contrast to the judgment of the Grand Chamber in the same case.

⁸¹ Although not entirely, as both CdGs as well as AGs do participate to some extent in the previous stages of procedure in which they can make their opinion heard (in particular CdGs in the séance d’instruction).

⁸² For a detailed discussion in this respect, see Bobek, Michal, ‘Learning to Talk: Preliminary Rulings, the Courts of the New Member States and the Court of Justice’ (2008) 45 Common Market Law Review 1611 Google Scholar, 1637–39.

⁸³ From more recent decision, contrast, eg, opinions with judgments in, on the one hand, Case C-233/08, Milan Kyrián [2010] ECR I-177, in which AG Mazák went arguably too far and the Court pulled back considerably; and, on the other hand, Case C-345/06, Gottfried Heinrich [2009] ECR I-1659, where the scenario was reversed: AG Sharpston was very critical of the Commission in her Opinion and the Court pulled back considerably. The latter case can be seen as an instance of an AG acting as a ‘substitute judge’, clearly demonstrating that the AG is also an independent actor, to which the parties listen and may change their approach or policy accordingly.

⁸⁴ The recent case law of the ECtHR, where there is such a possibility of ‘internal appeals’ from a chamber to the Grand Chamber, provides a number of negative examples in this respect: cf, eg, from recent decisions: Lautsi v Italy [GC], judgment of 18 March 2011 (App no 30814/06); D H and others v the Czech Republic [GC], judgment of 13 November 2007 (App no 57325/00); or Anheuser-Busch v Portugal [GC], judgment of 11 January 2007 (App no 73049/01). In all these (and other) cases, the Grand Chamber reversed previous decisions of a chamber, typically following a discontent outside reaction to the previous chamber decision. A critical observer may only wonder what does greater damage to the reputation of a supreme jurisdiction in the end: adhering to precedents which may be contentious and unpopular, but being consistent, or being so ‘dynamic’ and ‘evolutive’ as to be able to reach considerable different decisions within short periods of time with surprisingly sweeping majorities for completely opposite decisions? One may only wonder whether attraction of the case and only one decision rendered by the Grand Chamber itself would not provide for more sensible approach.

⁸⁵ Above, point 3, in fine.

⁸⁶ As remarked by Bruno de Witte in discussions at the conference referred to in the first (starred) note to this chapter: students of EU law should be always expressly warned not to read AG’s opinion as the explanation for what the Court has decided in the particular case.

⁸⁷ An example from recent case law might be the discussion amongst the AGs to what the Court could have meant and why in Case C-144/04, Werner Mangold [2005] ECR I-9981. The same instance also demonstrates, however, that the line in between ‘explaining the context’ and efforts ‘ex post to justify the outcome’ is rather thin.

⁸⁸ See especially Weiler, JHH, ‘Epilogue: The Judicial Après Nice’ in de Búrca, Gráinne and Weiler, JHH (eds), The European Court of Justice (Oxford, Oxford University Press, 2001) 225 Google Scholar, criticising the ‘cryptic, Cartesian style’ of the Court’s decisions.

⁸⁹ Namely in common law systems, which typically filter access to supreme jurisdictions, and where decisions of such jurisdiction are counted in tens annually, as opposed to civilian supreme jurisdictions, which would render thousands to ten thousands decisions every year. For critique from even within the common law jurisdictions, see, eg, Samuels, Alec, ‘Those Multiple Long Judgments’ (2005) 24 Civil Justice Quarterly 279 Google Scholar. More generally, one may only wonder at which stage the blessing of the individual judicial opinion becomes a burden. See, by the way of illustration, the judgment of the United States Supreme Court in the case Williams v Taylor, 529 US 362 (2000), the heading of which reads: ‘Stevens, J, announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ, joined, and an opinion with respect to Parts II and V, in which Souter, Ginsburg, and Breyer, JJ, joined. O’Connor, J, delivered the opinion of the Court with respect to Part II (except as to the footnote) in which Rehnquist, C J, and Kennedy and Thomas, JJ, joined, and in which Scalia, J joined, except as to the footnote [sic!], and an opinion concurring in part and concurring in the judgment, in which Kennedy, J, joined. Rehnquist, C J, filed an opinion concurring in part and dissenting in part, in which Scalia and Thomas, JJ, joined.’

⁹⁰ See above: text cued to n 41.