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CREATe Online Public Lecture report: ‘Can’t those European Judges Think for Themselves? Why the Court of Justice of the European Union has Advocates General’

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CREATe Online Public Lecture report: ‘Can’t those European Judges Think for Themselves? Why the Court of Justice of the European Union has Advocates General’

By 23 April 2021April 30th, 2021No Comments

This report is by CREATe PhD student Aline Iramina

On 24 February 2021, Eleanor Sharpston QC, former Advocate General at the Court of Justice of the European Union, delivered the second public lecture of this academic year entitled ‘Can’t those European Judges Think for Themselves? Why the Court of Justice of the European Union has Advocates General.’ The event was hosted online due to Covid-19 lockdown restrictions, with Dr Luis Porangaba and Prof Martin Kretschmer acting as chair and discussant, respectively. 

Eleanor Sharpston began by explaining the ‘provocative title’ of her public lecture, inspired by a student query in a previous lecture she had given just after taking up her role at the Court of Justice of the European Union. Having this student asked whether European judges could not think for themselves and why Advocates General existed, Sharpston thought it a fair question, especially from a UK perspective. In the United Kingdom, judges are often senior barristers, solicitors or academics who, equipped with over twenty years of experience, feel themselves prepared to provide robust and individual judgments. So, through this lens, it would make sense to Sharpston for someone to ask ‘why on earth do we have an AG opinion?’ and ‘why don’t we just have the judgment?’ 

In this enlightening and colourful lecture, Sharpston shared her experience as someone with first-hand knowledge of the inner workings of the Court of Justice. In so doing, Sharpston set out to explain why Advocates General exist, stressing their significant role within a unique institution as the Court of Justice.  

Why the Court of Justice of the European Union has Advocates General 

According to Sharpston, from a historical perspective, when the European bloc emerged, three out of the six founding member states  – France, Belgium, and the Netherlands – had a figure akin to an Advocate General in their top administrative courts. Hence, it made sense that the soon-to-be-created European court would adopt a similar structure. However, this was not the sole reason. Unlike national supreme courts, the Court of Justice has to grapple with a multiplicity of legal traditions – across the full range of member states, from common law to several, distinct civilian systems – within an explendid multilingual setting. Indeed, Sharpston would highlight this multilingualism as one of the main challenges faced by those working in or otherwise interacting with the CJEU.  

Sharpston further explained that the Court of Justice deals with three categories of cases: a) direct actions (e.g., cases brought by the commission against member states, or by one member state against another); b) references from national courts; and c) appeals from the General Court. By contrasting the Court of Justice with a national supreme court, Sharpston stressed that, within a national legal system, a case which gets to the supreme court has already been examined by a number of judicial minds who, for better or worse, have offered their own analyses. This is something that does not happen at the CJEU. For direct actions, the CJEU is the one and only court looking at the case. References for preliminary rulings start at the national court, though the reality may not be that simple – had the national court known the answer to the question, it would not have made the reference in the first place. Rather, references are made when a national court has doubts about what the right answer is or should be. For both these categories (a) and (b) of cases, the Court of Justice acts like a supreme court, but a one-stop supreme court. The third category (c) is appellate review of judgments from the General Court. According to Sharpston, it is not as common for such appeal cases to have an AG opinion, unless there is a new point of law, an obvious divergence, or some difficulty or inconsistency in the case law to be addressed. Otherwise, the prevailing thinking is that an Advocate General’s opinion would not be necessary.  

What do you get by throwing an Advocate General into the mix? 

By introducing the role of Advocate General, says Sharpston, there is another member of the Court of Justice – in addition to the Reporter Judge – with the responsibility to ensure that the case is examined in a sensible and efficient way. This provides a significant safety net for case handling. However, not every single case has an Advocate General. A number of cases will be decided without an opinion if, for example, the Court of Justice, finding itself sufficiently informed on the issue, dismisses an AG opinion. 

In order to decide whether such an Advocate General’s opinion is necessary, following Article 20 of the Statute, the CJEU should consider whether there is a new question of law. But given that one can always find a new question of law in a case, as suggested by Sharpston, a slightly reformulated version of the test is applied – is there a real new question of law, an important question of law, or can such a question of law have an impact on case law in the future?  

What is an Advocate General’s opinion? 

The Advocate General is an individual voice, offsetting the consensus judgement of the Court of Justice [NB: in such a system, there is no opinion or speech, whether concurring or dissenting, from individual judges]. Within the same procedural framework, the CJEU may thus avail itself of two different analyses of the case: the Reporter Judge’s and the Advocate General’s.   

By using the Vianden castle in Luxembourg as a metaphor, Sharpston points out the flexibility and many variables that Advocate Generals must account for in writing their opinions. If someone wanted to build a model of Vianden with Lego, by the time they are finished, such a model would look roughly like the Vianden Castle; Reporter Judges do something similar by having resort to their own prefabricated building blocks, the formulaic phrases with which CJEU judgments are constructed. Writing a new judgement is an endeavour comparable to putting all those Lego blocks together. On the other hand, the Advocate General acts more as a photographer, with a really good digital camera, on a mission to take the best photo of the castle – one that fully expresses how the photographer pictures this object. Advocate Generals have room for manoeuvre. They can choose the time of the day or evening for the shot, what kind of angle will be featured, and the many other variables that play a role in creating the perception of the Vianden castle – the idea being that a good opinion expresses what the author wants to say about that particular piece of law. But not every opinion is a work of art, especially given that Advocates General are not specialised in all legal areas. However, regardless any personal preference or expertise they may have, Advocate Generals confront all sort of cases.  

In concluding her exposition, Sharpston offered the allegory of an army, a general, and their friend. An army, which is marching along, crosses into a hostile place with a clearing and three possible paths. The general can ask a friend working in the army’s intelligence for an opinion about what would be the best path to follow. Their friend, after surveying all three paths, explains what may be expected from each path and advises the general to follow one of them. The general, Sharpston says, has the freedom to decide whether their friend’s advice ought to be followed or not. However, if this general truly is wise, he will heed. The same can be said about CJEU judges and the Advocate General’s advice.  

Interesting discussion questions followed. Citing a study on the influence of member state submission in the CJEU’s reasoning in copyright cases, Prof Kretschmer questioned whether Advocates General also take such submissions into account. Subsequently, Dr Porangaba, alluding to Sharpston’s Vianden metaphor, asked about the different methods of interpretation adopted in CJEU judgments and AG opinions, and, given how they may affect outcome, what would make an Advocate General to choose one specific method over another. Members of the audience also enquired about the possibility (and desirability) of amicus briefs in the EU court system and the potential implications of a seemingly greater role of academic literature in some languages (e.g., English, French and German) as source to AG opinions. At the end, Sharpston recalled the limits and difficulties that a multiplicity of legal traditions and the multilingualism impose upon the work of Advocates Generals and the CJEU itself.