This chapter will look deeper into the question of horizontal direct effect in the Viking and Laval cases by focusing on the effects of the Laval judgment. It will be submitted that the Laval case was an example of the horizontal enforcement of the vertical right to be protected by the State against interference with one’s free movement rights under EU law. The trade union acted within a legislative framework which had been established by the State and which provided protection to the trade union. The CJEU’s judgment established that this protection had been illusory, and the Swedish State assumed responsibility by amending two pieces of legislation. However, the reasoning of the CJEU did not sufficiently recognise the vertical nature of the proceedings. As a result, the Swedish Labour Court granted Francovich damages against the trade union, but these damages did not adequately compensate Laval for its losses. Therefore, the extension of horizontal direct effect to trade unions has resulted in inadequate judicial protection in this case. In future cases which present themselves as cases between two private parties the CJEU should more carefully investigate the responsibility of the State. A more careful investigation would open up the possibility of a Francovich claim against the State, if the State bore responsibility for breaches of EU law committed by private parties.

From 1 January 2012, all flights departing from or arriving at the European Union are covered by the EU Emissions Trading Scheme (EU ETS). Amendments were made to Directive 2003/87/EC by Directive 2008/101/EC with the objective of reducing climate change impacts attributable to aviation, but also in order to avoid distortions of competition. The scheme now includes all airlines, including those from third countries, and accounts for emissions that occur partly outside the airspace of EU Member States. A large number of third countries claim that the extension of the Emissions Trading Scheme to legs of flights outside EU territory violates the principle of state sovereignty and deny the jurisdiction of the EU to regulate emissions that occur beyond its borders. So far, the validity of the EU regulation has been challenged by a claim brought by US and Canadian air carriers. They contended that, in adopting the Directive, the EU infringed principles of customary international law—in particular the principle of state sovereignty and the prohibition of extraterritorial application—as well as various international agreements. On 21 December 2011, the Court of Justice of the European Union ruled that the inclusion of emissions from aviation in the EU ETS is valid. In response, Chinese and Indian carriers threatened not to pay the charge, while US airlines pledged to consider other options. This chapter analyses the judgment of the Court and the opinion of Advocate General Kokott in this case. Particular attention is given to the question of extraterritorial jurisdiction and the understanding of state sovereignty in the context of global climate change mitigation. The chapter argues that the Court missed an opportunity to contribute to the clarification of the law on jurisdiction and to the development of climate law.

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.

Why are there Advocates General in the Court of Justice of the European Union? A standard answer to this question is likely to be either a simple textual reference (because the Treaty provides for them); or an appeal to authority (because the original framers of the Treaties put them there, inspired by the French legal system); or a rather pragmatic appeal to their on-going utility (because they assist the Court and they do a great job); or any combination of these three. All of these explanations are valid. This contribution, however, attempts to go a little deeper in discerning what may be the ideological justification for Advocates General in the Court of Justice. It does so by carrying out a historical and comparative study concerning their origins and systemic justification from the vantage point of a national lawyer coming from a Member State that does not know any type of a ‘fourth in the court’.

The first part of the contribution explains which factors have considerably eroded the position of Advocates General in the course of the last decade and why questions concerning their role and its justification became topical. Second, the commonly invoked reference to the French inspiration for introducing Advocates General is critically examined. It is suggested that justifications once provided with respect to the office of commissaire du gouvernement in the Conseil d’État can hardly be used on the European level with respect to Advocates General. Third, possibilities of internal justification of the role of Advocates General are examined: are Advocates General providing any unique assistance to the Court of Justice, which could not be provided for in different ways? With a negative answer to the latter question, the last part of the argument offers a simple yet solid overreaching justification as to why there should be Advocates General in the Court of Justice.

The question at the centre of focus in this chapter is whether the Advocate Generals’ (AGs’) Opinions contribute to the clarity of the Court’s decisions and thus increase its legitimacy. Methodologically, it analyses the cases of Mangold and Kücükdeveci and the pertaining AGs’ Opinions. It also looks at the Opinions of other AGs in other cases that commented upon either of these two judgments. It concludes that due to the lack of response by the Court to the arguments offered by its AGs, their Opinions have a very weak capacity to clarify unreasoned parts of the judgment to the general public beyond the Court. Thus the only real beneficiary of the Opinions is the academic community.

It is argued that the Advocate Generals have helped to create a distinct and identifiable body of EU law. In the context of increasingly complex legislation and legal structures, the Advocate Generals have also contributed to improving the coherence of legislation and case law. It is also argued that the legal texts and practice firmly place the Advocate General at the same time within the CJEU and yet outside the Court. The institutional and functional rules governing the role of the Advocate General do have an impact on the judicial decision-making process. Some suggestions for reforming the role of the Advocate General in order to integrate the Advocate General more fully within the Court and to strengthen the role are also made.

The Court of Justice of the European Union (CJEU, Court of Justice or Court, for short) operates in circumstances that are similar to those of a national constitutional court; at the same time, some significant features set it apart and make it more difficult for the Court of Justice to command the institutional loyalty or public support that national constitutional courts seem to enjoy in Europe. This chapter will, first, offer a brief overview of how and why the Court acquired a markedly political, and problematic, role within the judicial and legal system of the Union (Section II). Section III will then examine the different concepts of legitimacy that may be applied to courts and their decisions, focusing more specifically on the social dimension of legitimacy. This chapter will argue that the fact that the Court of Justice has to operate in a transnational context leads to a shortfall in its social legitimacy, at least when compared to national constitutional courts in Europe. Finally, Section IV will focus on the figure of the Advocate General as a mechanism that may lend some extra social legitimacy to the Court and its decisions—obviously without solving the problem completely—and that, more generally, may foster dialogue, debate and deliberative democracy in the Union.

The aim of this chapter is to analyse the role of Advocates General in Grand Chamber cases. The latter are supposed to be the crème de la crème of the case law. Alas, this is not always the case as some of the judgments are poorly argued and with quite limited legal reasoning. This chapter demonstrates that formally the role of Advocates General in Grand Chamber cases is the same as in other cases where the Court of Justice sits in different compositions. Several examples are given proving that assistance of the Advocates General is sometimes followed and sometimes rejected by the Grand Chamber. However, a selection of judgments discussed in the last section of the chapter demonstrates another phenomenon. When the Grand Chamber limits the judicial discourse to the minimum it enhances the role of the Advocates General as their Opinions become the only source of reasoning. If that happens we are arguably dealing with assistance with the touch of substitution.

Building on the theory of democratic constitutionalism, I assess the political implications of the constitutional space formed by the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and national constitutional courts in Europe. Democratic constitutionalism helps situate the role of constitutional courts in stimulating a degree of consensus, necessary for governance of heterogeneous communities such as the United States and the European Union. Questions of legitimacy and confidence in the judiciary come to the fore. I examine a mechanism used by the US Supreme Court, the CJEU and the ECtHR alike to foster democratic constitutionalism: in order to confront challenges to judicial legitimacy and remain responsive to the extra-judicial environment, these courts rely on majoritarian trends, or consensus, inspired by, but not limited to, the constitutional law of federal states and member countries.

The Advocate General (AG) has been a permanent feature of the European Union judicial order since 1957. From two Advocates General (AGs) in a Community of six Member States and Court of seven judges, their number has risen to eight in a Union of 27 Member States, three courts and 61 judges. Their task under the Treaty has remained the same, as has their mode of recruitment. The Lisbon Treaty has, however, assigned a new task to the collective judiciary of the Union—under Article 13 TEU, it is to ‘serve’ the citizens of the EU. What does this mean, and in particular what does it mean for the AG—has the task of these non-decision making officers also changed? This chapter suggests that the objective of this new duty is to manufacture trust in the Court of Justice and argues that this requires more transparency at the CJEU and thus a new role for the Advocate General.

In this article, we challenge that assumption that the Court of Justice of the European Union does not need to accommodate dissenting opinions because the necessary arguments and policy perspectives can be outlined in the AG’s Opinion. We examine the greater legitimacy that may be gained from permitting dissenting and concurring opinions in cases which involve the determination of fundamental rights before the Court. We ultimately argue that our discussion on the quality of judgments is closely related to a discussion on the selection process and criteria for membership of the Court. In the current context, however, the AG’s Opinions continue to provide a more robust field for articulating national and European norms and a larger space for interpretive innovation than the Court’s ordinary forum.