Within the field of European Union law, the Court of Justice of the European Union (CJEU) plays a crucial role in interpreting and applying EU law.
Within this European judicial system, the Advocate General, although often underestimated, plays an important part in the judicial process and can sometimes influence the content of the Court’s decisions. In this article, we look at the role of the Advocate General, their functions, and their influence.
The Advocate General
The Advocate General is a member of the Court of Justice of the European Union whose task is to deliver non-binding legal opinions on the cases assigned to them.
The Court of Justice, made up of 27 judges (one from each Member State), has one Advocate General per judge. The Advocate General does not take part in the Court’s deliberations, but they do provide a legal analysis of the cases referred to them.
Article 252 of the Treaty on the Functioning of the European Union (TFEU) provides that Advocates General are appointed by the Member States, on condition that they possess the qualifications required for appointment to the highest judicial offices in their respective countries.
The European judicial procedure
Proceedings before the CJEU follow several stages, and the Advocate General’s intervention is key before the deliberation phase. Once the written submissions of the parties have been received, the Court may request an opinion from the Advocate General, who must present their conclusions before the judges deliver their final judgment.
The Advocate General examines the legal issues and case-law, develops an interpretation of the relevant EU rules and, ultimately, delivers an opinion which may point in the same direction as the Court’s judgment or, in some instances, diverge from it. This opinion is not binding, meaning that the Court is not obliged to follow the Advocate General’s recommendations.
The Advocate General’s opinion
The conclusions of the Advocate General are characterised by their independent and thorough approach. In many cases, Advocates General adopt a broader and more detailed perspective than the judges, since their task is to provide a comprehensive legal analysis of the issues raised. Over the years, they have dealt with particularly complex matters.
Although the Advocate General’s opinion does not bind the judges, it is often highly influential. The depth and quality of the legal reasoning put forward by Advocates General frequently serves as a basis for the Court’s final decision, which often follows a similar line of argument. However, the CJEU remains entirely free to depart from those conclusions where it considers that the arguments are not persuasive.
Influence on CJEU judgments
The Advocate General’s influence on the CJEU’s judgments varies from case to case, but there are notable examples where the Court has closely followed the Advocate General’s recommendations. This is particularly true in complex cases involving the interpretation of EU legislation, competition law or fundamental rights.
For instance, in Case C-62/14, Schrems (2015), the Court broadly followed the line of argument put forward by the Advocate General, who had questioned the validity of the Safe Harbour agreement between the EU and the United States for the transfer of personal data. The Court’s final judgment was largely in line with the approach taken in the Advocate General’s opinion, underlining the significant influence that this analysis can have on the Court’s decisions.
The independence of the Advocate General
One of the defining features of the Advocate General is their independence from the Court. Unlike the judges of the CJEU, who must deliberate and decide collectively, the Advocate General issues their opinion individually and without being subject to the influence of the other members of the Court.
Each Advocate General is free to set out their own view of the case, which enriches the judicial process and helps ensure that all plausible interpretations are taken into consideration.
The evolution of the Advocate General’s role in the EU
Over the decades, Advocates General have had a significant impact on the development of European Union law. The ongoing interaction between the CJEU and the Advocates General has led to the creation of extensive and sophisticated case-law.
Advocates General are often at the forefront of new interpretations and legal approaches. By putting forward conclusions that may sometimes be more innovative than the positions eventually adopted by the Court, they play a crucial role in shaping EU legislation and in determining how the principles of EU law are applied at national and international level.
The law firm Navas & Cusí, as specialist lawyers in EU and Community Law, will support you throughout the entire judicial process before the CJEU.
