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Securing Trust in the Court of Justice of the EU: The Influence of the Advocates General

Published online by Cambridge University Press:  27 October 2017

Albertina Albors-Llorens
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Abstract

This chapter examines the influence of the Advocates General in promoting trust in the work of the Court of Justice of the European Union. While it accepts that it may be difficult to quantify this influence—given the non-binding nature of the Opinions—it argues that the work of the Advocates General has an impact in securing confidence in the Court. This conclusion is supported by an examination of three possible levels of the influence exerted by the Advocates General, which are considered in the chapter in descending order of abstraction. The first and most abstract dimension of this influence is that provided by the institutional characteristics of the office of Advocate General and the role associated to it. The second dimension is the general contribution of the Opinions to the development of the case law. Finally, the chapter looks at the contribution of the Advocates General in the specific context of cases involving conflicting rights and interests and particularly in cases where fundamental human rights collide with essential Treaty objectives and freedoms—like the free movement of goods or persons—an area where trust in the work of the Court is crucial to ensure the legitimacy of the Union.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 14 , 2012 , pp. 509 - 527
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2012

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References

1 Art 19 TFEU.

2 Art 253 TFEU.

3 See Arts 2–8 of the Statute of the Court and Arts 2–6 of the Rules of Procedure.

4 They are also heard in all the key procedural stages in a case until the opening of the deliberation phase (for a comprehensive summary of the involvement of the Advocate General in proceedings before the Court, see Colomer, D Ruiz-Jarabo and Escudero, M Lopez, ‘The Institution of Advocate General at the Court of Justice of the European Communities’ in Mélanges en hommage à Fernand Schockweiler, Iglesias, GC Rodriguez et al (Baden Baden, Nomos, 1999)Google Scholar, available at www.cvce.eu., 5–6).

5 One difference that has remained between the institutional status of judges and Advocates General is the fact that the latter do not participate in the election of the President of the Court. See Art 253(3) TFEU, despite early suggestions from the Court itself that Advocates General should be allowed to take part in the election of the President—see the Report of the Court of Justice on certain aspects of the application of the Treaty on European Union, May 1995, point 18. See also, Léger, P, ‘Law in the European Union: The Role of the Advocate General’ (2004) 10 Journal of Legislative Studies 1 CrossRefGoogle Scholar, 2. On a suggestion that the First Advocate General should be responsible, together with the President for managing the Court, see van Gerven, W, ‘The Role and Structure of the European Judiciary Now and in the Future’ (1996) 21 European Law Review 211 Google Scholar, 223.

6 See Dashwood, A, ‘The Advocate General in the Court of Justice of the European Communities’ (1982) 2 Legal Studies 202 CrossRefGoogle Scholar, 208: Borgsmidt, K, ‘The Advocate General at the European Court of Justice: a Comparative Study’ (1988) 13 European Law Review 106 Google Scholar, 108; Vranken, M, ‘The Role of the Advocate General in the Law-Making Process of the European Community’ (1996) 25 Anglo-American Law Review 39 Google Scholar, 39; Tridimas, T, ‘The Role of the Advocate General in the Development of Community Law: Some Reflections’ (1997) 34 Common Market Law Review 1349 CrossRefGoogle Scholar, 1358. Jacobs, F, ‘Advocates General and Judges in the European Court of Justice: Some Personal Reflections’ in O’Keefe, D and Bavasso, A (eds), Judicial Review in European Union Law (The Hague, Kluwer, 2000) 17 Google Scholar, 17–18. See also M Bobek, ‘A Fourth in the Court: Why Are There Advocates General in the Court of Justice’ ch 20 in this volume.

7 Art 49 of the Statute of the Court extends the same mandate to members of the General Court who are called to perform the task of an Advocate General in certain cases.

8 See Dashwood, ‘The Advocate General’ (n 6) 212.

9 See Fennelly, N, ‘Reflections of an Irish Advocate General’ (1996-1997) 5 Irish Journal of European Law 5 Google Scholar, 15.

10 See Greaves, R, ‘Judge Edwards acting as Advocate General’ in Hoskins, M and Robinson, W (eds), A True European: Essays for Judge David Edward (Oxford, Hart Publishing, 2003) 91 Google Scholar, 91.

11 In the case of direct actions that are brought first before the General Court and if there is an appeal, there may be three stages of analysis. See, eg, the litigation leading to the decision in Case C-550/07 P AKZO Nobel v Commission [2010] ECR I-8301.

12 In this context it is regrettable that the combination of the individuality inherent in the office and the public nature of the Opinions occasionally make the work of Advocates General the target of misconceptions by the media which reads them as taking particular lines of political thinking rather than as legal assessments. For a typical example, see www.telegraph.co.uk/news/politics/8754790/Conservative-MPs-demand-veto-over-Britains-EU-judges.html.

13 See, eg, the beginning of the Opinion of Advocate General Sharpston in Case C-28/08P Bavarian Lager [2010] ECR I-6051, where in order to illustrate her view on the relationship between the right of access to information and the right to data protection, she used a quote from Issac Asimov: ‘What would happen if an irresistible force met an immovable object?’, para 3 of the Opinion.

14 As Advocate General Sharpston has pointed out, ‘if one supports a liberal concept of justice, identifying and recognizing where the doubts lie is, however, important’ (see Sharpston, E, ‘The Changing Role of the Advocate General’ in Arnull, A, Eeckhout, P and Tridimas, T (eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford, Oxford University Press, 2008) 20, 23)CrossRefGoogle Scholar.

15 In cases where the admissibility of an action may be a contentious issue but which raise important issues of substance, Advocates General have often tried to find a way to hold the action admissible. See, eg, the Opinion of Advocate General Poiares Maduro in Case C-160/03 Kingdom of Spain v Eurojust [2005] ECR I-2077, paras 11–25.

16 See, eg, the judgment of the Court in Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-5659, para 49 and compare with the fuller examination of all the questions raised by the national court carried out by the Advocate General in that case.

17 See the Opinion of AG Ruiz-Jarabo-Colomer in Case C-466/00 Kaba v Secretary of State for the Home Department [2003] ECR I-2219 where he argued that the Opinions help the development of EU law and promote debate ‘both within the institution and in other interested circles’ (para 115).

18 Case C-128/92 Banks v British Coal Corporation [1994] ECR I-1209.

19 He made it clear that although the case concerned ECSC Treaty provisions, a similar approach could be extended to the competition provisions of the (then) EC Treaty (see para 36 of the Opinion).

20 Joined Cases C-6/90 and 9/90 Francovich [1991] ECR I-5357.

21 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame (III) [1996] ECR I-1029; Case C-392/93 R v HM Treasury, ex parte BT [1996] ECR I-1631 and Case C-5/94 R v MAFF, ex parte Hedley Lomas [1996] ECR I-2553.

22 Banks (n 18) para 40 of the Opinion. This line of reasoning was subsequently adopted by the Court in Brasserie du Pecheur (see n 21) para 22 of the judgment).

23 Banks (n 18) paras 36–54 of the Opinion.

24 Arts 65 and 66(7) ECSC Treaty.

25 Banks (n 18) paras 15–21 of the judgment.

26 Case C-453/99 Courage v Crehan [2001] ECR I-6297.

27 See also Jones, A and Beard, D, ‘Co-contractors, Damages and Article 81: The ECJ finally Speaks’ (2002) European Competition Law Review 246 Google Scholar, 253–55 and also the decision of the Court in Joined Cases C-259–298/04 Manfredi v Lloyd Adriatico Assicurazioni [2006] ECR I-6619, para 60.

28 Case C-53/03 Synetairismos Farmakopoion Aitolias & Akarnanias (Syfait) and Others v GlaxoSmithKline plc and GlaxoSmithKline AEVE. [2005] ECR I-4609.

29 Ibid, paras 53–72 of the Opinion. He was however careful to emphasise that this solution was highly specific to that market and could not be extended to other markets.

30 Cases C-468/06 to C-478/06 Sot. Lélos kai Sia EE and Others v GlaxoSmithKline AEVE Farmakeftikon Proïonton [2008] ECR I-7139.

31 Ibid, paras 49–77 of the judgment. Interestingly, in Syfait II, the Opinion was given by Advocate General Ruiz-Jarabo Colomer who took the view that objective justification was possible, in principle, in order to protect the legitimate interests of a dominant company but unlike Advocate General Jacobs in Syfait I, he argued that this justification had not been made out on the facts of the case.

32 See Sharpston, , ‘The Changing Role of the Advocate General’ (n 14) 28 Google Scholar.

33 See Art 49 of the Statute of the Court.

34 See Vranken, , ‘The Role of the Advocate General’ (n 6) 63 Google Scholar. But see also Bobek, ‘A Fourth in the Court’ (n 6) who observes that this option has not been used in recent years and that the General Court seems to have relied on a more detailed report by the reporting judge.

35 See Arts 256(2) and (3) TFEU; Art 62 of the Statute of the Court and Arts 123a–123e of the Rules of Procedure.

36 See Dashwood, , ‘The Advocate General in the Court of Justice’ (n 6) 211 Google Scholar; Tridimas, , ‘The Role of the Advocate General’ (n 6) 1362-65Google Scholar and Fennelly, ‘Reflections’ (n 9) 14–16. For some identified areas of consensus (State liability) and other of disagreement (horizontal effect of directives, post-Keck case law, general principles of law) between the Court and its Advocates General, see Tridimas (n 6) 1371–80).

37 See Fenelly, ‘Reflections’ (n 9) 19.

38 See Dashwood, , ‘The Advocate General in the Court of Justice’ (n 6) 211 Google Scholar.

39 See Mortelmans, K, ‘The Court Under the Influence of its Advocates General: An Analysis of the Case Law on the Functioning of the Internal Market’ (2005) 24 Yearbook of European Law 127 CrossRefGoogle Scholar and also Tridimas, ‘The Role of the Advocate General’ (n 6).

40 Case C-10/89 CNL-Sucal v Hag [1990] ECR I-3711.

41 Case 192/73 Van Zuylen v Hag [1974] ECR 731.

42 Case C-188/95 Fantask v Industriministeriet [1997] ECR I-6783.

43 Case C-208/90 Theresa Emmott v Minister for Social Welfare and Attorney General [1991] ECR I-4269.

44 Case C-50/00P Union de Pequeños Agricultores v Council [2002] ECR I-6677.

45 Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365.

46 See the wording of Art III-365(4) of the ill-fated Constitutional Treaty and now the letter of Art 263(4) TFEU.

47 Joined Cases C-402/05P and C-415/05P Kadi and Al Barakaat International Foundation [2008] ECR I-6351.

48 Ibid, para 47 of the Opinion.

49 Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL, Judgment of the Court of 30 September 2010.

50 Association Belge des Consommateurs Test-Achats ASBL (n 49) paras 21–70.

51 Case C-34/09 Ruiz-Zambrano, Judgment of the Court of 8 March 2011, nyr.

52 See de Witte, B, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’ in Alston, P and Weiler, JHH (eds), The EU and Human Rights (Oxford, Oxford University Press, 1999) ch 28Google Scholar.

53 Case 29/69 Erich Stauder v City of Ulm [1969] ECR 419.

54 Case 1170 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.

55 Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR 3727.

56 Case C-260/89 Elliniki Radiophonia Tiléorassi [1991] ECR I-2925.

57 See further de Búrca, G, ‘The Evolution of EU Human Rights Law’ in Craig, P and de Búrca, G (eds), The Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011) 465 Google Scholar, 480–96.

58 Case C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, Judgment of 9 November 2010, nyr.

59 De Búrca, ‘The Evolution of EU Human Rights Law’ (n 57) 495.

60 Hauer (n 55).

61 See the Opinion, paras 8–9. These conditions were that the measure must not amount to an expropriation and that any restriction is justified in the public interest and is laid down by law.

62 Hauer (n 55) para 23 of the judgment.

63 See, eg, Case C-280/93 Germany v Council (bananas) [1994] ECR I-4973.

64 Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-4685.

65 Grogan (n 64) paras 22–31 of the Opinion.

66 Grogan (n 64) paras 32–38 of the Opinion.

67 See further O’Leary, S, ‘The Court of Justice as a Constitutional Adjudicator: an Examination of the Abortion Information Case’ (1992) 17 European Law Review 138, 155Google Scholar.

68 Grogan (n 64) para 24 of the judgment.

69 Schmidberger (n 16).

70 Schmidberger (n 16) para 94 of the Opinion. The Advocate General neatly separated two issues, namely whether reliance on a fundamental right could justify a restriction on a fundamental Treaty freedom and whether the restriction was proportionate (see para 95 f of the Opinion).

71 Schmidberger (n 16) paras 104–12 of the Opinion.

72 Schmidberger (n 16) para 78 of the judgment.

73 Schmidberger (n 16) paras 79–80 of the judgment.

74 Case C-271/08 Commission v Germany, Opinion of 14 April 2010, para 195 of the Opinion.

75 Schmidberger (n 16) paras 82–93 of the judgment.

76 Case C-36/02 Omega Spielhallen [2004] ECR I-9609.

77 Case C-244/06 Dynamic Medien Vertriebs v Avides Media [2008] ECR I-505.

78 Case C-438/05 International Transport Workers’ Federation v Viking Line [2007] ECR I-10779. See also Case C-341/05 Laval und Partneri v Svenska Byggnadsarbetareforbundet [2007] ECR I-11767.

79 Viking, n 78 above, para 44 of the judgment.

80 See Syrpis, P and Novitz, T, ‘Economic and Social Rights in Conflict: Political and Judicial Approaches to their Reconciliation’ (2008) 33 European Law Review 411 Google Scholar; Barnard, C, ‘Social Dumping or Dumping Socialism?’ (2008) 67 Cambridge Law Journal 262 CrossRefGoogle Scholar and ‘Viking and Laval: An Introduction’ (2007–2008) 10 CYELS 463 and Spaventa, E, ‘Federalisation versus Centralisation: Tensions in Fundamental Rights Discourse in the EU’ in Dougan, M and Currie, S (eds), 50 Years of the European Treaties: Looking Back and Thinking Forward (Oxford, Hart Publishing, 2009) 343 Google Scholar.

81 Viking (n 78) paras 57–61 of the Opinion.

82 Case C-271/08 Commission v Germany [2010] ECR I-7091.

83 Viking (n 78) para 81 of the judgment.

84 Viking (n 78) para 84 of the judgment.

85 Viking (n 78) para 87 of the judgment.

86 See Barnard, C, ‘A Proportionate Response to proportionality in the field of collective action’ (2012) 37 European Law Review 117 Google Scholar. See also S Turenne, ‘Contrasting the use of AG’s Opinions with Separate Opinions in the Court of Justice’ in this volume.

87 Case C-28/08P Bavarian Lager [2010] I-6055, paras 2–3 and paras 95f of the Opinion.

88 Ibid, para 95 of the Opinion.

89 Commission v Germany (n 82).

90 Commission v Germany (n 82) paras 179–99 of the Opinion. See also Barnard, A Proportionate Response’ (n 86) 125.

91 Case C-360/09 Pfleiderer v Bunderskartellamt, Judgment of 14 June 2011, nyr.

92 Pfleiderer (n 91) para 38 of the Opinion.

93 See Courage v Crehan (n 26); and Joined Cases C-295/04 Manfredi [2006] ECR I-6619.

94 Pfleiderer (n 91), paras 36–37 of the Opinion.

95 Pfleiderer (n 91) para 40 of the Opinion.

96 Pfleiderer (n 91) para 41 of the Opinion.

97 Pfleiderer (n 91) paras 44–47 of the Opinion.

98 Courage v Crehan (n 26) para 27 and also the Opinion of AG Mazak Pfleiderer (n 91) para 36 and the judgment of the Court in this case, para 29.

99 See further Rizzuto, F, ‘Leniency and Follow-on private Actions for Damages: Comment on the Opinion of the Advocate General in the Pfleiderer Case’ (2011) 4 Global Competition Litigation Review 99 Google Scholar, 106.

100 See Pfleiderer (n 91) paras 25–32 of the judgment.