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The Advocate General in the Court of Justice of the European Communities*

Published online by Cambridge University Press:  02 January 2018

A. A. Dashwood
A. A. Dashwood*
Affiliation:
University of Leicester
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Extract

As an academic discipline in the United Kingdom, European Community law is a relative newcomer. I belong to the last generation that learnt its Community law on the hoof, through teaching it to others or practising it. I was, though, very fortunate in serving two apprenticeships, one, in the theory of the subject, under the late Professor J. D. B. Mitchell as a Lecturer in the Centre of European Governmental Studies at the University of Edinburgh and the other, in its practical application, as Legal Secretary to Sir Jean-Pierre Warner (as he became after his appointment to the Chancery bench of the High Court) when he was Advocate General at the Court of Justice of the European Communites. John Mitchell was an enthusiastic admirer of the Court of Justice and deeply learned in its ways; and one topic among many that interested him was the role of the Advocate General, a role it fell to J. P. Warner to show that a lawyer from this side of the Channel could fill with distinction. It was with my debt to those two masters very much in mind that the subject of this lecture was chosen.

Type
Research Article
Information
Legal Studies , Volume 2 , Issue 2 , July 1982 , pp. 202 - 216
Copyright
Copyright © Society of Legal Scholars 1982

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Footnotes

*

An Inaugural Lecture delivered at the University of Leicester. I am grateful to Sir Jean-Pierre Warner and to colleagues at the University of Leicester, in particular Mr D. W. Pollard, for their comments on earlier versions of this paper, which have greatly improved it. For any deficiencies that remain, the responsibility is mine. I should also like to record my thanks to the Information Department of the Court of Justice of the European Communities for their helpfulness in providing documentation.

References

1. See, as to the Judges, Art. 165 EEC and, as to the Advocates General, Art. 166 EEC. The corresponding provisions of the other Community Treaties are Arts. 32 and 32(a) ECSC and Arts. 137 and 138 Euratom.

2. Ibid.

3. Thus the first paragraph of Arts. 165 EEC, 32 ECSC and 137 Euratom provides that ‘The Court of Justice shall consist of nine Judges’ and the first paragraph of Arts. 166 EEC, 32(a) ECSC and 138 Euratom that ‘The Court of Justice shall be assisted by five Advocates General’ (emphasis added).

4. Art. 167 EEC, Art. 32(b) ECSC, Art. 139 Euratom.

5. Rules of Procedure of the Court of Justice of the European Communities (hereinafter ‘Rules’), Art. 6. The equality of status of Judges and Advocates General is underlined by the recently established practice of placing members of the Court on the bench in their order of precedence at ceremonial sittings, e.g. on the occasion of retirements and new appointments. Formerly on such occasions the group of Advocates General sat together to the right of the Judges.

6. Art. 167 EEC, Art. 32(b) ECSC, Art. 139 Euratom.

7. See Art. 10 of the Rules as further amended in 1979.

8. The official term for a Division, found in the Treaties, the Statutes of the Court of Justice and the Rules, is ‘Chamber’, a literal rendering of the French “chambre”, which has quite the wrong connotation for an English lawyer.

9. Rules, Art. 10(2).

10. Rules, Art. 9(2).

11. Protocol on the Statute of the Court of Justice of the ECSC, Arts. 10 to 13.

12. The provisions relevant to the Court are found in Arts. 3 and 4 of the Convention.

13. See Barav “Le Commissaire du gouvrnement près le Conseil d'Etat fraçais et l'avocat général prés la Cour de Justice des Communautés européennes (1974) Revue internationale de droit comparé”, 809 at 811 and 819.

14. See ibid for a full and well informed discussion of the parallels between the offices of commissaire du gouvernement in the French Conseil d'Etat and Advocate General in the Court of Justice. Analogies with national institutions are discussed by Gori in “L'avocat général á la Cour de Justice des Communautés européennes” (1976) Cahiers de droit européen 375 at 377 et seq, who, however, emphasises the unique character of the office of Advocate General. See also. Condorelli-Braun in La France el les Communautés européennes, Rideau, Gerbet, Torrelli, Chevallier, Eds., pp. 457 to 458.

15. On the procedure of the administrative courts in France and the role of the commissaire du gouvernement in that procedure, see Brown and Garner French Administrative Law (2nd edn) Ch. 5.

16. This view was taken by Advocate General Warner (as he then was) in an unpublished lecture on ‘The role of the Advocate General at the European Court of Justice’ which was delivered in Luxembourg on 19 November 1976. The same conclusion is reached by Gori op. cit. note 14, supra, p. 393. See also Vandersanden and Barav Contentieux Communautaire p. 16.

17. Brown and Jacobs in The Court of Justice of the European Communities remark that ‘one has the impression, in reading the opinions of a French advocate-general, that he sees his function in Luxembourg as the same as that of his counterpart in Paris’; however they conclude that ‘the diverse backgrounds of the advocates-general seem to have influenced the style rather than the substance of their opinions’ and that ‘taken as a whole the opinions are as much the product of a Community view, and of the esprit de corps which characterizes the Court as a whole, as are the judgments themselves’ (pp. 64 to 65).

18. It was surely no coincidence that the Council's agreement to the appointment in 1981 of an eleventh Judge (the office to be held in turn by nationals of the different Member States) followed hard on the enlargement of the Court to an even number of Judges on the accession of Greece to the Communities.

19. Art. 166 EEC, Art. 32(a) ECSC, Art. 138 Euratom.

20. Warner op. cit. note 16, supra.

21. Case 30/78, The Distillers Company Ltd v Commission [1980] ECR 2229.

22. Jurisdiction in such cases is conferred on the Court by Art. 228 EEC. The relevant procedure is laid down by Rules, Art. 108. The same procedure applies when the Court's opinion is sought under the fourth paragraph of Art. 95 ECSC: Rules. Art. 109.

23. Rules, Art. 43.

24. Rules, Art. 76.

25. Rules, Art. 93.

26. Rules, Art. 45. ‘Preparatory inquiries’ are the Court's method of fact-finding. The ‘measures’ the Court may order comprise:

(a) the personal appearance of the parties;

(b) a request for information and production of documents;

(c) oral testimony;

(d) experts’ reports;

(e) an inspection of the place or thing in question.

27. Rules, Art. 85.

28. Rules, Art. 57.

29. The reading of the opinion constitutes the final stage of the oral procedure in a case: Rules. Art. 59.

30. E.g. Advocate General Warner included in his very lengthy opinion in the Ballibearings case a summary of the provisions of Art. VI of the GATT and of the Agreement of 30 June 1967 on the implementation of that Article (the ‘Anti-Dumping Code’) but did not read out that part of the opinion to the Court. See Case 113/77, NTN Toyo Bearing Company Ltd v Council [1979] ECR 1185; Case 118/77, Import Standard Office v Council [1979] ECR 1277; Case 197/77, Nippon Seiko K.K. v Council and Commission [1979] ECR 1303; Case 120/77, Koyo Seiko Co Ltd D Council and Commission [1979] ECR 1337; Case 121/77, Nachi Fujikoshi Corporation v Council [1979] ECR 1363. The opinion of Advocate General Warner is found at [1979] ECR 1212 to 1275.

31. The speech was delivered at the ceremonial sitting of the Court held on 9 October 1973. It is worth quoting the relevant paragraph in full: “Pour avoir une idée vraie du rǒle des conclusions, c'est au délibére qu'il faut avoir acces. Ony decouvrirait I, intérêt de cet ultime répit entre le débat de l'audience et la médiation du juge et l'utile décantation du conflit judiciare qui en résulte. On y apprécierait qu'une voix autorisée et libre, s'élevant au-dessus des parties, ait pu analyzer avec le recul nécessaire l'argumentation de chacune et pris le risqué de porter sur le litige un premier jugement. On reléverait, enfirn, l'importance de cette tension de l'ésprit que provoque, en chaque juge, des orientations qui alimenteront les éventuelles confrontations du délibéré, en l'esprit que provoque, en chaque juge, des orientations qui alimenteront les éventuelles confrontations du délibéré, en l'absence de votre personne, mais non dans le silence de votre voix.”

32. The discussion which follows owes much to the speech of president Lecourt referred to in note 32, supra, to the speeches of president Donner and of Advocate General Lagrange at the ceremonial sitting of the Court held on 8 October 1964 on the occasion of Mr. Lagrange's retirement, and to the unpublished lecture of Advocate General Warner referred to in note 16, supra.

33. Rules, Art. 61.

34. Case 175/78, R v Saunders [1979] ECR 1129. The Court said that the EEC Treaty provisions on the free movement of workers cannot be applied to ‘situations which are wholly internal to a Member State, in other words, where there is not factor connecting them to any of the situations envisaged by Community law’. See also the examples cited by Gori op. cit. note 14, supra, p. 383.

35. Cases 113 and 118 to 121/77, note 30, supra.

36. See [1979] ECR at 1261 and 1265.

37. The basic EEC Regulation which translated the GATT Anti-Dumping Code into Community law was Council Reg. 459/68, OJ 1968 L 93/1. That Regulation was amended by Reg. 1681/79 of 1 August 1979, OJ 1979 L 196/1: see, in particular the amendment of Art. 10(4) of Reg. 459/68 by Art. 3 of Reg. 1681/79. Council Reg. 3017/79, OJ 1979 L339/1, repealed and replaced Reg. 459/68 with effect from 1 January 1980.

38. On this, see Brown and Jacobs of. cit. note 17, supra, pp. 61 to 62.

39. See, e.g. Case 3/54, ASSIDER v High Authority [1954 to 1956] ECR 63 (Lagrange); Joined cases 7 and 9/54, Groupement des Industries Siderurgiques Luxembourgeoises v High Authority [1954 to 1956] ECR 175 (Roemer); Joined cases 32 and 33/58, SNUPAT v High Authority [1959] ECR 127 (Lagrange): Joined cases 16 and 17/62, Confédération nationale des producteurs de fruits et légumes v Council [1962] ECR471 (Lagrange); Case 25/62, Plaumann & Co v Commission [1963] ECR 95 (Roemer). See also Chevallier in La France et les Communautés européennes, Rideau, Gerbet, Torrelli, Chevallier Eds., pp. 459 et seq.

40. Case 6/64, [1964] ECR 585.