In the European Union, the advocates general (French: avocats généraux, singular: avocat général) are high-ranking functionaries serving in the European Court of Justice (ECJ). Modelled after the French commissaire du gouvernement [fr], the position of advocate general was created together with the European Court of Justice in 1951, when the Treaty of Paris was signed.
The advocate general participates in the court cases and may question the parties, after which they craft their opinions, though in the case when no new point of law is raised, it is not needed. It is only after their opinion that the Court of Justice starts to make its judgment. While the advocate general's opinion is not binding for the ECJ nor for the courts in the member states, their conclusions are often taken into consideration and are often indicative of the ruling by the Court of Justice in the case.[1][2][3]
Since 2020, there are eleven advocates general appointed for six-year terms, five of whom are designated from the largest member states in the EU (Germany, France, Italy, Spain, and Poland) and the other six members are appointed between the other member states. The first advocate general, who is tasked with assigning the cases to her or himself or their fellow advocates general and has some powers related to judicial review of the General Court cases, is elected for a three-year term among these eleven people. Ad hoc advocates general may also be appointed for cases before the General Court among the judges working in the court, but this possibility is not used now.
Legal basis
The signing of the Treaty of Paris established the European Coal and Steel Community, i.a. featuring a judicial body called the "Court of Justice". During negotiations that led to its signing, the French delegation resented the possibility of dissenting or concurring opinions on the cases.[3] Therefore, Maurice Lagrange, part of the delegation who would later become the first advocate general appointed to the court,[4] proposed that such views be presented by an advocate general, who would perform a similar function to that of the French commissaire du gouvernement [fr] (equivalent to the rapporteur public [fr] since 2009).[5][6][7] The commissaire is tasked with offering legal advice to the Conseil d'État, the highest administrative court. This vision was implemented in the Protocol on the Statute of the Court of Justice as signed in 1951 and has stayed virtually the same ever since.
When the Court of Justice was formed, it was decided to appoint two advocates general, one from Germany and the other from France. The United Kingdom and Italy joined in 1973, Spain followed in 1995[11] and Poland did so in 2013.[12] Because the UK left the European Union in 2020, there are now five member states (the most populated ones) entitled to appoint their own advocates general.[9] Other member states appoint advocates general on a rotational basis (one in 1981–1986, two in 1986–1995, four in 1995–2000, three in 2000–2015, five in 2015–2020 and six since 2020).[3][11][12] Each advocate general serves a six-year term, may be reappointed and, barring disciplinary removal or resignation, is not removable during the term;[7] however, given the rotational nature of the appointments from countries without a permanent member, these extensions are effectively limited to the five countries that may send their own advocates general. If the position is vacated before the end of the term, a replacement is appointed for the remainder of the term, usually from the same country. An advocate general may be removed prematurely if the Member State which appointed him or her withdraws from the EU.[13]
Since 1974, the first advocate general has been elected from those serving in such capacity.[14] Since 1979, they are in charge of distributing the cases among fellow advocates general.[3] For three decades after its creation, the position was rotated between each of the advocates general,[6] but Melchior Wathelet was the first person to have been elected more than two times and the first to have served consecutive terms. In November 2019, the rules of procedure were changed so that the terms were increased to three years.[15] The first election under the new rules happened in October 2021, when Maciej Szpunar, who had already been serving in that position for three years, was elected to serve for another three years.[16] The first advocate general, however, is not above the other advocates general and is in most regards in the same position as their ten other colleagues.[7]
Criteria of appointment
Advocates general share the criteria of appointment with the judges (mentioned in articles 2–4 of the Statute of the ECJ and in Article 253 of TFEU). They are appointed by mutual accord of the national governments after consultations with a special panel (a so-called "Article 255 panel") that screens the candidates and issues non-binding opinions on their suitability for office;[17][a] The advocates general should be eligible for service in the highest national courts or be lawyers "of recognised competence", and should exhibit independence. Just like the judges, the advocates general take an oath of office and are in general immune from legal persecution. They are barred from holding political or administrative offices and may only hold occupations other than that at the Court of Justice if the European Council decides to grant an exemption.
Procedure and assignment
The procedure in cases before the ECJ is to assign the responsible judge-rapporteur and advocate general, which is done by the President of the ECJ and the first advocate general, respectively.[3][8] In general, the first advocate general has full discretion over the way the cases are assigned, but several informal rules guide the process.[7] For instance, arrangements in which certain advocates general specialise in one particular broad topic are often avoided so that the cases can be approached from different perspectives and thus give more material from which the Court of Justice may draw its conclusions. This rule is, however, not strictly followed, particularly if the advocate general has been treating that specific topic extensively.[6][7] It is also customary for the first advocate general not to assign an advocate general to the case to which the member state, which the advocate general is from, is party. Deviations from that guideline may attract controversy.[18]
Historically, every case had to receive an advocate general's opinion; however, since the Treaty of Nice came to life in 2003, a rule was introduced saying that if the case makes no new point of law (which in 2015, when the latest figures are available, happened in 43% of the cases, with earlier years' estimates ranging from 30% to 53%),[19][20] the advocate general's opinion is not needed; in this case, the court consults the advocate general and, if they agree, only the court's judgment is issued.[21] When the case comes to the Grand Chamber, however, it is always accompanied with such an opinion.[20] The advocate general is obliged to submit his opinion so many times as oral hearings are requested, such that in one of the cases, Commission v. Belgium (Belgian Waste), three opinions were issued;[6] situations when more than one hearing is made, however, happen rarely.[3]
According to the Article 20 of the Statute of the ECJ, the designated advocate general is present during the interactions with the parties. All advocates general may additionally receive advance copies of the judgment and participate in the closed sessions when the ECJ delivers an opinion, but, unlike the judges, they do not participate in the deliberative process of the court.[7]
Opinions of the advocates general
An advocate general, according to Takis Trimidas,[6] serves several purposes. The advocate general helps prepare the case for the Court of Justice. Moreover, their opinions provide the proposed solution and logical reasoning to reach the conclusion presented, all while providing research on the existing case law as well as on the legal points presented.[1]
Contrary to the judgments of the ECJ, which tend to be terse and abstract, a legacy of the French judicial discourse,[5] the opinion of the advocate general does not need to conform to these criteria, and may in fact take any form the advocate general wishes.[22] Historically, particularly until the 1980s, the opinions of the advocates general closely followed the judicial interpretations of the ECJ, but since then, the rulings have become somewhat less reverential towards them.[4]
The opinions may be written in the native language of the Advocate General (any of the 24 official languages of the European Union),[3] though in order to reduce the workload of the translation service, they are now increasingly drafted in one of the five so-called "pivot languages", that is: French, English, German, Spanish and Italian, and the advocates general are particularly encouraged to write in the first two of them.[23] Advocate General's submissions, if needed, are then translated into French, the working language of the ECJ.[24] The judgment of the ECJ is only drafted after receiving advocate general's opinion, though some preparations are possible if the judge rapporteur and his référendaires (clerks) understand the language of the procedure.[24]
The Court of Justice is not bound by the opinions of the Advocates General and need not even address them. In fact, in 2004–2005, only 39% of judgments cited the opinion of the advocate general[18] (the percentage was around 46% in 2017).[25] However, the advocate general's opinions are considered influential.[1] Quantitative studies seem to support the notion. The one from 2017 found that, among the 109 judgments surveyed, 64% agreed in principle with the ruling, 9% disagreed and the rest only agreed in some points; moreover, in 69% of the cases, there were at most slight differences between the interpretations of the legal sources.[25] Another study, which only analysed annulments, found that the ECJ was 67% more likely to strike down parts of an act or the whole act if the advocate general indicated their support for the action, compared to the situations where the opposite was true, though the paper cautioned against making causal inferences.[26]
In the General Court, unlike the European Court of Justice, there are no specifically designated advocates general, and those serving in the ECJ may not be used for General Court's purposes.[27] However, according to Article 3 of the Rules of Procedure of the General Court, those judges who are not the president, the vice-president or the presidents of chambers of the General Court may be asked to serve as advocates general for a particular case, with the procedure, functions and duties similar to those as in ECJ. These judges, just like in the higher chamber of the Court of Justice of the European Union, may not take part in the judgment of the case (Article 49 of the Statute of the Court of Justice) but may participate in the inquiry of the case and in the questioning of parties. In practice, though, the General Court does not use that power anymore.[27]
Despite the fact that none of the advocates general of the ECJ issue opinions in the cases in front of the General Court, the first advocate general may trigger a special review procedure under Article 62 of the Statute of the ECJ (Réexamen in French)[28] by filing an appropriate request within a month's time since the General Court's ruling in case they believe that the ruling of the General Court has a high risk of "the unity of consistency of Union law being affected". As of October 2021, the procedure has been used 16 times, and 8 cases proceeded to the review stage.[3]
Notes
^Though formally non-binding, the opinions have so far been heeded and, as Dumbrovsky et al. say, are de facto binding.
