The Court of Justice of the European Union (CJEU) is the highest judicial authority of the European Union (EU), responsible for ensuring the proper interpretation and application of EU law. Within its structure, a unique figure stands out for its influence on decision-making: Advocate General at the CJEU.
This article explores the unique figure of the Advocate General, their role in the judicial deliberation process, and the importance of their legal opinions. Review our guide on ways to access the CJEU.
The Advocate General at the CJEU
The Advocate General at the CJEU assists the Court by issuing independent and reasoned opinions on referred cases. Although they lack decision-making power, their analysis provides a framework that guides the Court. Additionally, these opinions (“conclusions”) are essential in certain cases, clarifying EU law implications and ensuring its consistent interpretation.
The Advocate General acts as an impartial “intermediary,” aiming to clarify the legal issue and propose a solution. They thoroughly examine the case and applicable rules. Under Article 252 of the TFEU, the Advocates General “shall present publicly, with complete impartiality and independence, reasoned conclusions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require their involvement“.
Process for the appointment of the Advocate General
The appointment of Advocates General follows a clear procedure outlined in Article 253 of the TFEU. Currently, the CJEU has 11 Advocates General. Member States, therefore, nominate candidates based on their exceptional competence and legal experience. Subsequently, an expert committee evaluates the nominations to ensure they meet criteria like “recognized competence” and “qualifications for high judicial office.”
Advocates General serve a renewable term of six years. Moreover, Article 253 of the TFEU highlights that CJEU members must act “with complete impartiality” and “in the general interest of the Union.“
The opinions of the Advocate General: procedure and importance
The procedure begins with the examination of the case file. Afterward, the Advocate General issues an opinion, known as “conclusions.” These conclusions provide a detailed analysis of the facts and applicable law. Furthermore, they propose a resolution based on the interpretation and application of EU law.
Article 20 of Protocol (No. 3) on the Statute of the Court of Justice of the European Union regulates the process. This applies only to cases where the Court requires the Advocate General’s involvement.
Notably, the Advocate General does not issue conclusions in every case. For procedural efficiency, the CJEU may decide to exclude the Advocate General’s involvement. Generally, conclusions are reserved for cases involving new legal issues or those of particular difficulty or significance.
Influence of the Advocate General on CJEU Rulings
The Advocate General has significant influence on CJEU rulings. In fact, statistics show that the CJEU often aligns with their recommendations. This is due to the depth and quality of the analysis in their conclusions.
Moreover, the Advocate General impacts the CJEU not only by guiding the Court but also by shaping EU case law. This includes interpreting both primary law (EU treaties) and secondary law (regulations, directives, decisions). Additionally, their analysis often refers to previous CJEU rulings to maintain uniformity. For instance, cases like CILFIT (C-283/81) highlight the importance of consistent interpretation and guiding principles.
Illustrative examples
One notable example of the Advocate General’s influence is the case Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (C-131/12), known as the “right to be forgotten” case. This case involved a request for Google to remove links to outdated news articles deemed irrelevant.
Advocate General Niilo Jääskinen issued an opinion that, although partially different from the Court’s final ruling, helped shape the debate on citizens’ rights regarding their data on the Internet. The Court ultimately recognized the “right to be forgotten,” requiring Google to remove certain results under specific conditions, establishing a major precedent in data privacy within the EU.
Other illustrative examples include
- Viking Line Case (C-438/05). Advocate General Miguel Poiares Maduro issued an opinion in a case addressing the balance between workers’ rights and the freedom to provide services within the EU. The conclusions formed a basis for the CJEU to rule on the delicate balance between freedom of establishment and the right to strike.
- Opinion 2/13: In this case, the Advocate General provided a comprehensive analysis of the implications of the EU’s proposed accession to the European Convention on Human Rights (ECHR). The opinion underscored the need to protect the autonomy of the EU legal order.
- Achmea Case (C-284/16). Advocate General Melchior Wathelet’s conclusions significantly influenced the interpretation of the competence of arbitration tribunals and their relationship with the principles of the single market.
Significance of the Advocate General in the CJEU
In summary, we can establish that the following characteristics defines the Advocate General at the CJEU, unique within the European judicial system :
- Clarity. Advocates General help clarify complex cases. Their opinions provide an objective and technical analysis that facilitates the CJEU’s decision-making process.
- Consistency in the Interpretation of EU Law. The work of Advocates General contributes to the uniform application of EU law, helping prevent divergent interpretations among Member States.
- Independence and Objectivity. Their independent nature ensures that their recommendations are not influenced by political or national interests, strengthening the credibility of the EU legal system as a whole.
- Development of European Case Law. The conclusions of Advocates General have contributed to the development and evolution of EU law. Cases such as Viking Line (C-438/05) and Achmea (C-284/16) reflect their influence on the interpretation of fundamental principles.
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