The Advocate General at the Court of Justice of the European Union (CJEU) is an independent member responsible for publicly delivering a reasoned legal Opinion in certain cases. The Advocate General does not represent any of the parties, does not act as a public prosecutor, does not take part in the judges’ deliberations, and their Opinion is not binding. Their role is to propose an impartial legal solution to the Court on particularly important or complex questions of European Union law.In this guide, we explain what an Advocate General at the Court of Justice of the European Union is, what functions they perform, how they are appointed, in which cases they intervene, and what legal value their Opinions have. For further information, see our guide on the different ways of bringing a matter before the Court of Justice of the European Union.
What is an Advocate General at the CJEU?
An Advocate General is a member of the Court of Justice of the European Union responsible for delivering an independent and reasoned legal Opinion in certain cases before the Court gives its judgment. Their role is not to represent one of the parties, defend the interests of an EU institution, or conduct a public prosecution. Nor do they act as a prosecutor, mediator, or lawyer for the Court. The Advocate General examines the case from an independent position and proposes a legal answer to the questions submitted to the Court.
These Opinions allow for an in-depth examination of the applicable legal framework, previous case law, and the consequences that a particular interpretation may have for the European Union legal order as a whole. The Advocate General does not deliver the judgment, does not take part in the judges’ deliberations, and their Opinion is not binding. The Court of Justice may follow it in full or in part, reach the same result on the basis of different reasoning, or depart from the proposed solution.
Article 252 of the Treaty on the Functioning of the European Union (TFEU)
The role of the Advocate General is primarily governed by Article 252 of the Treaty on the Functioning of the European Union. This provision states that the Court of Justice is to be assisted by Advocates General and that their duty is to make, in open court and with complete impartiality and independence, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require their involvement.
First, Advocates General are responsible for assisting the Court of Justice. Their function forms part of the European judicial process and is intended to contribute to the legal examination of the cases brought before the Court. Second, their Opinions must be reasoned. This means that they do not simply recommend a particular outcome. They explain in detail the legal grounds on which the proposed solution is based. They normally examine the relevant legal provisions, existing case law, the parties’ arguments, and the possible consequences of each interpretation. Third, the Opinions are delivered publicly. They therefore become part of the publicly accessible documents relating to the proceedings and may be consulted by national courts, lawyers, companies, public authorities, researchers, and individuals. Finally, the Treaty expressly requires the Advocate General to act with impartiality and independence. These are two essential safeguards for the legitimacy of their involvement.
Impartiality and independence of the Advocate General at the CJEU
Independence and impartiality are the central principles governing the work of an Advocate General. Independence means that the Advocate General does not receive instructions from the governments of the Member States, the European Commission, the Council, the European Parliament, or any other institution, body, or party involved in the proceedings. Although Advocates General are appointed by common accord of the governments of the Member States, once appointed they do not act as representatives of the State that proposed their candidacy. They perform their duties exclusively in the interests of the correct interpretation and application of European Union law. Impartiality means that the Advocate General must examine the case without favouring any of the parties.
💡 An Advocate General does not defend the applicant, the defendant, a Member State, an EU institution, or the national court that has referred a question for a preliminary ruling.
For this reason, their position cannot be compared with that of a lawyer representing a party. A lawyer represents the specific interests of their client and develops their arguments from that perspective. By contrast, the Advocate General must objectively examine all the relevant legal issues and propose the solution they consider most appropriate for the European Union legal order as a whole. These guarantees of independence and impartiality allow the Advocate General’s Opinion to provide the proceedings with an autonomous legal analysis. This is particularly valuable when the case raises new or complex questions, or when it may have consequences extending beyond the specific dispute.
What does “assisting” the Court of Justice actually mean?
The expression “assisting the Court” does not mean that the Advocate General works as a personal adviser to the judges or participates with them in the final decision. The assistance provided is legal and judicial in nature. It consists of presenting, through a public and reasoned Opinion, an independent analysis of the case and a proposed answer to the questions submitted to the Court.
This assistance may include identifying the applicable rules of European Union law, examining previous case law, interpreting the context and objectives of a particular provision, assessing the practical consequences of the different possible solutions, and proposing an interpretation that is consistent with the EU legal system. The Advocate General may examine issues that have not been fully developed by the parties, provided that they are relevant to the proper resolution of the case and that the applicable procedural safeguards are respected. Advocate General may also invite the Court to confirm, clarify, limit, or reconsider a particular line of case law. The case law of the General Court and the Court of Justice is particularly relevant in proceedings concerning officials and other staff members of the European Union.
What functions does the Advocate General at the CJEU perform?
The Advocate General’s main function is to present an independent legal proposal that assists the Court of Justice in resolving the case consistently with European Union law. To do so, the Advocate General must study the case file, identify the essential issues, interpret the applicable rules, and formulate a reasoned solution.
Analysing the case file and the applicable law
The Advocate General’s first function is to carry out a detailed analysis of the case. This involves examining the written submissions of the parties, the observations submitted by the Member States and EU institutions, the questions referred by the national court, the arguments presented at the hearing, and the relevant rules of primary and secondary EU law. The Advocate General also examines the previous case law of the Court of Justice and the General Court. In preliminary ruling proceedings, for example, the Advocate General must analyse both the questions submitted by the national court and the legal and factual context in which they arise.
However, it is not the role of the Court of Justice to resolve the national dispute directly. Its task is to interpret European Union law or rule on the validity of an EU act, so that the national court can subsequently apply that answer to the specific case before it. The Advocate General may take into account the purpose of the relevant provision, its legislative context, the overall structure of the EU legal order, the general principles of European Union law, and the fundamental rights recognised by the Charter of Fundamental Rights of the European Union. The Advocate General may also compare the different language versions of an EU provision. Where differences exist between those versions, the interpretation cannot be based exclusively on one of them. It must also take account of the purpose of the provision and the overall coherence of the European legal framework.
Identifying the legal issues
Cases brought before the Court of Justice may involve numerous facts, arguments, and procedural questions. One of the Advocate General’s most important functions is to identify the legal issues that are decisive for resolving the case. This requires distinguishing the main questions from secondary issues, questions of admissibility from the substance of the case, and legally relevant facts from circumstances that do not affect the interpretation or application of European Union law.
The Advocate General must also distinguish arguments that relate only to the specific dispute from broader issues that may affect the uniform application of EU law. This process of defining the relevant legal questions helps to identify the wider consequences that the future judgment may have for the consistent interpretation and application of European Union law across all Member States.
Proposing a reasoned legal solution
After examining the case file and identifying the essential issues, the Advocate General proposes a legal solution to the Court. This proposal normally appears at the end of the Opinion, in the form of a specific answer that, in the Advocate General’s view, should be given to the questions referred or a recommendation as to how the proceedings should be resolved.
However, the value of the Opinion also lies in the reasoning that leads to the proposed solution. In some cases, the Advocate General may propose an innovative approach. The Advocate General may also invite the Court to clarify the limits of an earlier line of case law or warn of the risks that an excessively broad interpretation could create for legal certainty, the protection of fundamental rights, or the institutional balance of the European Union. Proposal does not bind the Court. The judges remain entirely free to follow it, modify it, or depart from it.
Contributing to the coherence of European Union law
The Advocate General’s function is not limited to proposing a solution in an individual dispute. Their Opinions may also contribute to the overall coherence of European Union law. EU law applies in every Member State and in very different legal contexts. For this reason, an interpretation adopted by the Court of Justice may affect thousands of national administrative and judicial proceedings.
The Advocate General may help identify the consequences of a particular interpretation and avoid contradictions between different areas of European law. Their Opinions may examine the relationship between the fundamental freedoms of the internal market, the rights recognised by the Charter, the respective powers of the European Union and the Member States, the principles of primacy, effectiveness and cooperation, national procedural autonomy, legal certainty, and the protection of legitimate expectations. The Opinions may also help to harmonise the case law and explain how earlier judgments, which may appear to concern different situations, should be reconciled. Even when the Court does not adopt the proposed solution, an Opinion may retain significant academic and doctrinal value. It may subsequently be cited by lawyers, national courts, and other Advocates General to explain the origins of a particular legal dispute or to examine possible future developments in European Union law.
What does an Advocate General not do?
To understand the role properly, it is important to distinguish the Advocate General from other legal figures. The Advocate General does not represent any party, does not act as a public prosecutor, does not deliver the judgment, and does not take part in the judges’ deliberations. Their role is limited to providing an independent legal analysis and proposing a non-binding solution.
Advocate General does not represent the parties or the EU institutions
The Advocate General does not defend the interests of the applicant, the defendant, a Member State, or an EU institution. The institutions appear before the Court through their own agents or legal services. Although the Advocate General’s position may sometimes coincide with that of one of the parties, their Opinion must be based exclusively on an independent and impartial assessment of European Union law.
Advocate General does not act as a public prosecutor
The Advocate General does not investigate criminal offences, bring charges, or request convictions. They should therefore not be confused with a public prosecutor or with the European Public Prosecutor’s Office, which investigates and prosecutes certain criminal offences affecting the financial interests of the European Union. The Advocate General’s role is purely legal: to analyse the case and propose an interpretation of European Union law.
Advocate General does not deliver the judgment
Advocate General’s Opinion does not resolve the dispute and does not have the legal effects of a judgment. The decision is taken exclusively by the judges of the Court of Justice. The Court may follow the Advocate General’s proposal, accept only part of the reasoning, or adopt a different solution.
Advocate General does not take part in the judges’ deliberations
After delivering the Opinion, the Advocate General does not participate in the confidential deliberations of the judges, does not vote, and does not take part in drafting the final judgment. This separation ensures that the judges can freely consider the Advocate General’s proposal before adopting the final decision.
The Advocate General does not advise the Court privately
The expression “assisting the Court” does not mean that the Advocate General acts as a personal adviser to the judges. Their contribution takes the form of a public and reasoned Opinion that is accessible to the parties and the public. The Advocate General does not make confidential recommendations or participate informally in the decision-making process.
The Advocate General does not represent the State that proposed their candidacy
Although Advocates General are appointed by the governments of the Member States, they do not represent the State of which they are nationals or the government that proposed their candidacy. They must act with complete independence and from the perspective of the European Union legal order as a whole.
Advocate General does not replace the parties’ lawyers
It is for the parties to present their arguments and defend their procedural interests. Advocate General does not correct an inadequate legal defence and does not assume the representation of any of the parties. The Advocate General may examine legal questions that are necessary to resolve the case, but must always respect the scope of the proceedings and the parties’ right to be heard.
Advocate General does not determine the facts of the national dispute
In preliminary ruling proceedings, the Advocate General does not determine the facts or resolve the national dispute. Those tasks belong to the national court that referred the questions to the Court of Justice. The Advocate General’s analysis is limited to the interpretation or validity of European Union law, which the national court must then apply to the case before it.
The opinion cannot be challenged separately
Advocate General’s Opinion is not a judicial decision and therefore cannot be the subject of a separate appeal. Decisions that produces legal effects and may be challenged, where the applicable rules allow it, is the judgment or order delivered by the Court of Justice.
How many Advocates General are there at the Court of Justice?
The Court of Justice is currently assisted by eleven Advocates General. Unlike the judges, whose number corresponds to the number of EU Member States, there is not one Advocate General for each country of the European Union. Article 252 of the Treaty on the Functioning of the European Union originally provides that the Court of Justice is to be assisted by eight Advocates General. However, the same provision allows the Council, acting unanimously at the request of the Court of Justice, to increase that number. In 2013, the Court requested the creation of three additional posts so that Opinions could continue to be delivered in all cases requiring them without unnecessarily extending the duration of proceedings.
By Decision 2013/336/EU, the Council first increased the number of Advocates General from eight to nine, with effect from 1 July 2013, and subsequently increased it to eleven, with effect from 7 October 2015. Eleven remains the current number. The Advocates General are appointed by common accord of the governments of the Member States, after consultation with the panel established under Article 255 TFEU, which assesses whether candidates are suitable to perform the role.
Candidates must offer every guarantee of independence and must either possess the qualifications required for appointment to the highest judicial offices in their respective countries or be lawyers of recognised competence. A partial replacement takes place every three years. This system ensures both continuity in the work of the Court and the regular appointment of new members. The composition of the group of Advocates General may therefore change as a result of partial replacements, individual substitutions, or the expiry of mandates.
How is an Advocate General at the CJEU appointed?
The appointment of an Advocate General at the Court of Justice takes place in several stages. The candidate must satisfy the requirements laid down in the Treaties, undergo an assessment by the panel established under Article 255 TFEU, and ultimately obtain the agreement of the governments of all the Member States. This system is intended to ensure that those appointed possess a high level of legal expertise and provide every guarantee of independence.
Professional requirements and guarantees of independence
Under Article 253 TFEU, Advocates General must be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries, or who are lawyers of recognised competence. There is therefore no single compulsory professional background. A candidate may come from the judiciary, academia, the senior civil service, private legal practice, or another legal field, provided that their experience and expertise are sufficient to perform a position of the highest responsibility within the judicial system of the European Union. Independence is an essential requirement. The candidate must be able to perform their duties without receiving instructions from governments, EU institutions, private organisations, or interested parties.
Nomination of the candidate by a Member State
The procedure normally begins with the selection of a candidate by a Member State. The Treaties do not establish a uniform national selection procedure, so each country may organise the process in accordance with its own rules and institutional practices. Some Member States use public calls for applications, national expert committees, interviews, or professional assessment procedures. Others give the government direct responsibility for making the nomination, although it may first seek reports or recommendations. The Member State puts forward a candidate, but the nomination must still pass the European-level assessment and subsequently be accepted by common accord of the governments of the other Member States.
Assessment by the panel established under Article 255 TFEU
Before the appointment is made, the candidate must be assessed by the panel established under Article 255 TFEU. This body gives an opinion on whether candidates are suitable to perform the duties of Judge or Advocate General at the Court of Justice or Judge at the General Court. The panel is composed of seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts, and lawyers of recognised competence. One of its members is proposed by the European Parliament.
Once the General Secretariat of the Council receives the nomination, it forwards it to the chair of the panel. The chair examines the file and may request additional information from both the government that submitted the nomination and the candidate. As a general rule, the candidate is invited to a hearing before the members of the panel. During that hearing, the panel assesses matters such as the candidate’s professional experience, legal knowledge, ability to analyse complex questions of European Union law, independence, and overall suitability for the position.
Where the procedure concerns the renewal of the mandate of a member who is already serving, the panel may assess the nomination without holding a new hearing. After completing its assessment, the panel issues a reasoned opinion on the candidate’s suitability and sends it to the representatives of the governments of the Member States. The panel does not formally make the appointment. However, its involvement provides an important guarantee of quality, independence, and professional competence before the Member States take the final decision.
Appointment by common accord of the governments of the Member States
Once the candidate has passed the assessment by the Article 255 panel, they must be appointed by common accord of the governments of the Member States. This means that no individual Member State can appoint an Advocate General unilaterally. The decision requires the joint agreement of the representatives of all EU governments.
This mechanism reinforces the supranational nature of the role. Although the nomination originates in a Member State, the person appointed performs a European function and does not act as a national representative. The appointment is formally made by a decision of the representatives of the governments of the Member States. Before taking up office, the new Advocate General takes an oath before the Court of Justice and undertakes to perform the role impartially, independently, and in accordance with the obligations arising from the position.
Length of the mandate
Advocates General are appointed for a term of six years. Their mandate may be renewed, which means that the same person may be appointed again when their initial term expires. The possibility of renewal helps preserve the experience acquired within the Court. However, renewal is not automatic. The relevant Member State must submit the candidacy again, and the candidate must once more undergo the prescribed procedure, including assessment by the panel established under Article 255 TFEU. Where an Advocate General leaves office before the end of the mandate, their successor is appointed for the remainder of the term in order to preserve the Court’s general timetable for renewals.
Partial renewal every three years
Although each individual mandate lasts six years, the Advocates General are not all replaced at the same time. The Statute of the Court of Justice provides for a partial renewal every three years. As there are currently eleven Advocates General, the renewal alternately concerns the number immediately above and the number immediately below half of that total. One renewal may therefore concern six Advocates General, while the next concerns five.
This system combines continuity with renewal. Some members remain in office and preserve the institutional experience acquired within the Court, while others may be reappointed or replaced. Advocates General whose mandates expire may be appointed again. A partial renewal therefore does not necessarily mean that all the members concerned leave the Court. It means that their mandates come to an end and must either be renewed or filled through a new appointment.
In which cases does the Advocate General at the CJEU intervene?
The Advocate General may intervene in the main types of proceedings heard by the Court of Justice. However, an Advocate General does not present an Opinion in every case. Once the written stage of the proceedings has been completed, the Court of Justice decides whether it is necessary for the Advocate General to deliver an Opinion. In practice, Opinions are mainly reserved for cases that raise new, complex, or particularly important legal questions concerning the interpretation of European Union law.
Preliminary ruling proceedings
Preliminary ruling proceedings are one of the most common areas in which the Advocate General intervenes. Through this procedure, a national court asks the Court of Justice to interpret a provision of European Union law or to rule on the validity of an act adopted by an EU institution. The Advocate General’s Opinion is particularly useful when the preliminary question requires a new interpretation, affects several Member States, or may have consequences in areas falling within the competence of the European Union. Since 1 October 2024, certain requests for preliminary rulings may be transferred to the General Court. In those proceedings, certain Judges of the General Court are designated to perform the functions of Advocate General.
Appeals against decisions of the General Court
The Advocate General may also intervene in appeals against judgments or orders of the General Court. As a general rule, an appeal is limited to questions of law. The appellant must identify a legal error, such as an incorrect interpretation of European Union law, inadequate reasoning, a procedural irregularity, or a breach of procedural rights. In such cases, the Advocate General examines whether the General Court applied the relevant legal rules correctly and complied with the applicable procedural requirements. The Advocate General may propose that the appeal be dismissed, that the contested decision be set aside in full or in part, or, where the state of the proceedings permits, that the Court of Justice itself give a final ruling on the case.
Infringement proceedings
In infringement proceedings, the Court of Justice must determine whether a Member State has failed to fulfil an obligation arising from the Treaties or from European Union law. These proceedings are normally brought by the European Commission, although another Member State may also initiate them. The Advocate General may examine whether the legislation, administrative practice, or conduct of the Member State concerned is incompatible with EU law. Opinion may address issues such as the incorrect transposition of a directive, the continued application of national legislation that is contrary to European Union law, failure to comply with an earlier judgment, or the insufficient implementation of EU obligations. The Advocate General may also examine whether a lump sum or penalty payment should be imposed. The final decision is, in all cases, taken by the Judges of the Court of Justice.
Actions for annulment
The Advocate General may intervene in certain actions for annulment seeking judicial review of the legality of acts adopted by EU institutions, bodies, offices, and agencies. In these proceedings, the Advocate General may examine whether the act was adopted by the competent authority, whether the relevant procedural rules were respected, whether the decision was adequately reasoned, and whether it complies with the Treaties, secondary EU law, and fundamental rights. Where a judgment of the General Court is appealed, the Advocate General may intervene before the Court of Justice to examine the possible errors of law contained in that judgment.
Legally novel or complex cases
The intervention of the Advocate General depends mainly on the legal nature of the case. Opinions are particularly useful where an EU provision must be interpreted for the first time, where there are uncertainties or differences in the case law, where different rights must be balanced, or where the future judgment may have significant consequences in several Member States. Decisive factor is the novelty, difficulty, or importance of the legal question raised.
The possibility of deciding a case without an Opinion
The appointment of an Advocate General to a case does not necessarily mean that an Opinion will be delivered. Under Article 20 of the Statute of the Court of Justice, the Court may decide, after hearing the Advocate General, to determine a case without an Opinion where it considers that the case raises no new point of law. This may occur, for example, where the answer follows clearly from established case law or where the Court has already ruled on similar questions. Even where no Opinion is delivered, the Judges examine the case file and adopt the final decision.
Summary table on the advocate general’s intervention
| Type of proceedings | Main purpose | Role of the Advocate General | Is an Opinion always delivered? |
|---|---|---|---|
| Preliminary ruling proceedings | To interpret European Union law or examine the validity of an EU act at the request of a national court | Examines the questions referred and proposes an answer that will assist the national court in resolving the dispute | No. Mainly where the case raises new, complex, or particularly important questions |
| Appeal against a decision of the General Court | To review possible errors of law in a judgment or order of the General Court | Examines whether the General Court correctly interpreted and applied European Union law | No. Intervention is more likely where the case affects the unity, consistency, or development of EU law |
| Infringement proceedings | To determine whether a Member State has failed to fulfil an obligation arising from European Union law | Examines whether an infringement exists and whether the pre-litigation procedure was properly followed | No. The Court may decide the case without an Opinion where no new point of law is raised |
| Action for annulment | To review the legality of an act adopted by an EU institution, body, office, or agency | Examines competence, procedure, reasoning, and compliance with European Union law | No. It depends on the novelty and legal complexity of the case |
| Legally novel or complex case | To resolve a question that has not previously been examined or that is particularly important for the EU legal order | Provides an independent analysis of the possible interpretations and proposes a reasoned solution | This is the type of case in which an Opinion is most likely to be delivered |
| Case raising no new point of law | To apply a sufficiently clear and established rule or line of case law | The Advocate General is heard on whether the case may be decided without an Opinion | The Court may decide the case without an Opinion under Article 20 of the Statute |
How are the advocate general’s opinions prepared and delivered?
The Advocate General’s Opinion is the result of an analysis carried out throughout the different stages of the proceedings before the Court of Justice. Its preparation begins as soon as the case is assigned and includes the examination of the written pleadings, relevant case law, the parties’ submissions and, where a hearing is held, the oral arguments.
Assignment of the case to the Judge-Rapporteur and the Advocate General
Once the document initiating the proceedings has been lodged, the President of the Court of Justice appoints a Judge-Rapporteur as soon as possible. The First Advocate General, in turn, decides which Advocate General will be assigned to the case. These are two separate but complementary roles within the proceedings. Judge-Rapporteur studies the case file from the perspective of the judicial formation that will decide the case, while the Advocate General prepares an independent legal analysis. The Advocate General’s work therefore does not begin after the hearing, but during the earliest stages of the proceedings.
Written stage of the proceedings
During the written stage, the parties submit their arguments, responses and other procedural documents. In preliminary ruling proceedings, the Member States and EU institutions entitled to intervene may also submit observations. The Advocate General examines the case file as a whole. Proceedings before the Court of Justice generally consist of a written stage and an oral stage. The written stage makes it possible to identify the relevant facts, the positions of the participants and the legal questions on which the Court will be required to rule. After hearing the Advocate General, the Court decides how the proceedings should continue.
The holding of an oral hearing
An oral hearing is not held in every case. The Court may decide that a hearing is unnecessary where it considers that it has sufficient information to give judgment on the basis of the written submissions. Where a hearing is held, the representatives of the parties and the other interested participants may present their arguments and answer questions from the Judges and the Advocate General. The purpose of the hearing is to clarify the aspects of the case that the Court considers particularly relevant. It also gives the Advocate General an opportunity to compare the different arguments, request further clarification and assess the participants’ answers before finalising the Opinion.
Public delivery of the Opinion
Where the Court considers that the case requires an Opinion, the Advocate General delivers it publicly on the announced date. If an oral hearing has taken place, the Opinion is delivered after the hearing has concluded. Where no hearing is held, it is delivered on the date fixed by the Advocate General. The delivery of the Opinion brings the oral stage of the proceedings to an end and is delivered in public. The sessions at which the Advocates General of the Court of Justice present their Opinions are also streamed online through the institution’s official website. Purpose of the Opinion is to provide an independent legal proposal that may assist the Court in resolving the questions submitted to it.
Deliberations of the Judges
Once the oral stage has ended, the Judges deliberate on the solution to be adopted. The Advocate General does not take part in those deliberations, does not vote and does not participate in the adoption of the judgment. The Judges may follow the solution proposed by the Advocate General, accept only part of the reasoning or depart from it. This separation ensures that the Opinion retains its independent character and that the final decision remains exclusively with the Court.
Delivery of the judgment
Once the deliberations have been completed and the decision approved, the judgment is delivered and published. Although the judgment may expressly refer to the Advocate General’s reasoning, the Court is not required to explain why it follows or rejects the Opinion. The judgment delivered by the Court is the decision that produces legal effects and definitively resolves the questions submitted to it. The procedure may therefore be summarised as a sequence of stages leading from the assignment of the case to the public delivery of the judgment.
Are the Advocate General’s at the CJEU opinions binding?
The Advocate General’s Opinions are not judgments, do not have binding force, and do not bind the Court of Justice. They are independent legal proposals that the Judges may follow in full or in part, adopt on the basis of different reasoning, or reject.
The opinions are not judgments
The Opinions do not resolve the dispute and do not, by themselves, produce legal effects for the parties. They do not annul an act adopted by an EU institution, declare that a Member State has failed to fulfil its obligations, or determine the answer that a national court must apply. The legally binding decision is the judgment or, where appropriate, the order adopted by the Court of Justice. Therefore, although an Opinion may indicate a possible outcome, it should not be presented as the final decision in the case.
The court may follow them in full or in part
In some cases, the judgment agrees with the solution proposed by the Advocate General and also adopts a substantial part of the reasoning. In other cases, the Court reaches the same result but relies on different arguments or gives a more limited answer to the questions submitted. The Judges may also accept only part of the Opinion.
💡 For example, the Court may agree with the Advocate General’s interpretation of a particular provision but disagree with the legal consequences that the Advocate General proposes to draw from it.
Court may depart from the proposed solution
The Judges may reject both the Advocate General’s final conclusion and the arguments used to support it. They are not required to explain expressly why they depart from the Advocate General’s position or to respond individually to every line of reasoning developed in the Opinion. The independence of these two functions forms part of the EU judicial system. This separation provides the proceedings with an additional legal perspective without restricting the Judges’ freedom to make the final decision.
Can the parties respond to the opinion?
As a general rule, the Statute and the Rules of Procedure do not provide for the parties to submit written observations simply to respond to or express disagreement with the Advocate General’s Opinion. A party’s disagreement with the interpretation or proposed solution does not, by itself, justify reopening the oral stage of the proceedings. The Court may exceptionally order the oral stage to be reopened, for example where it considers that it does not have sufficient information, where a new fact capable of having a decisive influence emerges, or where the case must be decided on the basis of an argument that has not been debated by the parties. However, mere opposition to the Opinion is not sufficient.
Can the opinion be appealed?
The Advocate General’s Opinion cannot be challenged through a separate appeal because it is not a judicial decision and does not produce independent legal effects. Where a right of appeal exists, it must be directed against the judgment or order delivered by the competent court, not against the legal position previously expressed by the Advocate General. For the same reason, a party cannot request the annulment of the Opinion or require the Court to adopt the solution proposed in it.
What legal value do the opinions have?
Although they are not binding, the Opinions may have significant legal, academic, and interpretative value. They often provide an extensive analysis of the applicable legal framework, previous case law, the different possible solutions, and the consequences that may result from each interpretation. Opinions may help readers understand the legal dispute, identify possible developments in the case law, and analyse the reasons supporting a particular interpretation of European Union law. They are also frequently used by lawyers, national courts, EU institutions, and academic specialists as a source of legal argument. However, they should not be confused with binding case law. In legal submissions, an Opinion may be cited because of the quality or usefulness of its reasoning, but its legal authority is not equivalent to that of a judgment of the Court of Justice.
Examples of significant opinions of the Advocate General (CJEU)
Comparing an Advocate General’s Opinion with the judgment subsequently delivered by the Court helps explain the value of this role. In some cases, the Court of Justice adopts a solution close to the one proposed. In others, it agrees with only part of the reasoning or departs from the Advocate General’s position. The following cases are particularly illustrative because they show different possible outcomes: divergence, broad agreement in the structure of the reasoning, or a clear difference between the solution proposed by the Advocate General and the one ultimately adopted by the Court.
| Case | Subject matter | Relationship between the Opinion and the judgment | Why the case is useful for explaining the role |
|---|---|---|---|
| Kadi and Al Barakaat, C-402/05 P and C-415/05 P | International sanctions, fundamental rights, and the autonomy of European Union law | Advocate General Poiares Maduro argued that EU measures implementing United Nations sanctions had to remain subject to judicial review under the EU legal order. The Court broadly followed this approach and annulled the regulation in so far as it concerned the applicants because their fundamental procedural guarantees had been infringed. | It is one of the clearest examples of an Opinion anticipating a judgment of structural importance for the European legal order. |
| Viking Line, C-438/05 | Freedom of establishment and collective trade union action | Advocate General Poiares Maduro considered that collective action could restrict freedom of establishment and should be examined under the principle of proportionality. The Court adopted a similar approach, recognising collective action as a fundamental right while subjecting its exercise to a review of justification and proportionality. | It shows how an Opinion can provide a systematic framework for balancing fundamental rights and economic freedoms. |
| Google Spain, C-131/12 | Data protection and the right to de-referencing | Advocate General Jääskinen considered that the applicable legislation did not recognise a general right to require the removal of lawful information merely because the person concerned wished it to be forgotten. The Court adopted a broader interpretation and recognised, under certain conditions, a right to request the removal of links associated with an individual’s name. | It demonstrates that the Court may depart from an essential element of the Advocate General’s Opinion. |
| Digital Rights Ireland, C-293/12 and C-594/12 | Data retention and fundamental rights | Advocate General Cruz Villalón considered the Data Retention Directive incompatible with the Charter and proposed that the effects of its invalidity should be temporarily maintained. The Court declared the Directive invalid but did not preserve its effects temporarily. | It shows agreement on the principal outcome, accompanied by an important difference concerning the effects of the judgment. |
| Schrems I, C-362/14 | International data transfers and the Safe Harbour system | Advocate General Bot proposed declaring the Commission decision on the Safe Harbour system invalid and recognised the powers of national data protection authorities. The Court reached substantially the same conclusion and invalidated the decision. | It illustrates a case of broad agreement between the Opinion and the judgment. |
| Achmea, C-284/16 | Investment arbitration and the autonomy of European Union law | Advocate General Wathelet considered that an arbitration clause in a bilateral investment treaty between Member States was not incompatible with Articles 267 and 344 TFEU. The Court adopted the opposite position and held that the mechanism undermined the autonomy of the EU legal order. | It is one of the clearest examples of divergence between the Advocate General’s Opinion and the final judgment. |
| Coman, C-673/16 | Free movement and residence rights of a same-sex spouse | Advocate General Wathelet argued that the term “spouse” in Directive 2004/38 was gender-neutral and included a same-sex spouse. The Court substantially followed that interpretation for the purpose of recognising a derived right of residence. | It is a clear and accessible example of how an Opinion may contribute to the development of rights connected with EU citizenship. |
| Wightman, C-621/18 | Article 50 TEU and withdrawal from the European Union | Advocate General Campos Sánchez-Bordona considered that a Member State could unilaterally revoke its notification of withdrawal before it took effect, provided that certain conditions were satisfied. The Court substantially adopted that solution. | It shows the influence of an Opinion in an unprecedented and politically sensitive constitutional matter. |
| Schrems II, C-311/18 | Standard contractual clauses and the Privacy Shield | The Advocate General considered the decision on standard contractual clauses valid and proposed that the Court should not rule directly on the validity of the Privacy Shield. The Court upheld the validity of the clauses but examined and invalidated the Privacy Shield. | It illustrates partial agreement: agreement on one issue, but divergence concerning the scope of the review that the Court should carry out. |
Google Spain, C-131/12 | Recognition of the right to de-referencing
The Google Spain case concerned whether a search engine could be required to remove certain links associated with an individual’s name. Advocate General Jääskinen considered that the legislation then in force did not recognise a general right to require the removal of lawful information merely because the person concerned wished it to be forgotten. The Court of Justice adopted a broader interpretation. It held that the operator of the search engine was responsible for the processing of personal data and that, under certain conditions, an individual could request the removal of links where the information was inadequate, irrelevant, no longer relevant, or excessive.
The case demonstrates that the Court may depart from an important element of the Advocate General’s Opinion. The judgment became the starting point for modern European case law on the right to de-referencing and the exercise of the right to be forgotten on Google and the right to be forgotten for entrepreneurs and professionals.
Viking Line, C-438/05 | Balancing collective action and freedom of establishment
The Viking Line, C-438/05 case concerned the conflict between the right of trade unions to take collective action and the freedom of establishment of a company seeking to change the flag of one of its vessels. Advocate General Poiares Maduro considered that trade union action could fall within the scope of the internal market freedoms and should be assessed in accordance with the principle of proportionality.
The Court adopted a similar approach. It recognised collective action as a fundamental right but held that its exercise could restrict freedom of establishment and therefore had to pursue a legitimate objective and be proportionate. The case shows how an Advocate General’s Opinion may provide a framework for balancing fundamental rights and economic freedoms, even though the final application of those criteria remains a matter for the national court. The case law of the Court of Justice is also decisive in proceedings concerning competition law and the internal market.
Achmea, C-284/16 | Investment arbitration and the autonomy of European Union law
The Achmea, C-284/16 case concerned the compatibility with European Union law of an arbitration clause contained in a bilateral investment treaty concluded between two Member States. Advocate General Wathelet considered that the arbitration mechanism was not incompatible with Articles 267 and 344 TFEU and did not undermine the autonomy of the EU legal order. The Court reached the opposite conclusion. It held that the clause was incompatible with EU law because it allowed questions concerning the interpretation or application of European Union law to be decided by an arbitral tribunal operating outside the EU judicial system. This is one of the clearest examples of divergence between an Advocate General’s Opinion and the final judgment of the Court.
Kadi and Al Barakaat, C-402/05 P and C-415/05 P | International sanctions and fundamental rights
The cases Kadi and Al Barakaat concerned the implementation within the European Union of sanctions and asset-freezing measures adopted in execution of United Nations Security Council resolutions. Advocate General argued that EU measures had to remain fully subject to judicial review under the fundamental rights protected by the European Union, even where those measures implemented international obligations. The Court broadly followed this approach. This case is particularly important because it confirms the autonomy of the EU legal order and demonstrates the influence that an Advocate General’s Opinion may have in cases of a constitutional nature.
Digital Rights Ireland, C-293/12 and C-594/12 | Invalidity of the Data Retention Directive
In Digital Rights Ireland, the Court was required to rule on the validity of the Directive requiring the retention of certain data relating to electronic communications. Advocate General Cruz Villalón considered that the Directive constituted a serious interference with the rights to privacy and the protection of personal data and that it did not contain sufficient safeguards. He proposed declaring the Directive incompatible with the Charter, while suggesting that its effects should be maintained temporarily so that the EU legislature could correct the identified deficiencies. The Court declared the Directive invalid because it disproportionately interfered with the rights recognised in Articles 7 and 8 of the Charter, but it did not suspend the effects of the invalidity. This case law has direct consequences for the European regulatory compliance of companies that process or transfer personal data.
Wightman, C-621/18 | Revocation of a notification of withdrawal from the European Union
The Wightman, C-621/18 case arose during the Brexit process and raised an unprecedented legal question: whether a Member State could unilaterally revoke its notification of an intention to withdraw from the European Union under Article 50 TEU. Advocate General Campos Sánchez-Bordona concluded that unilateral revocation was possible provided that the withdrawal agreement had not yet entered into force, the applicable period had not expired, and the decision to revoke was unequivocal, unconditional, and adopted in accordance with the constitutional requirements of the Member State concerned.
The Court of Justice substantially adopted that solution. It confirmed that a Member State could unilaterally revoke its notification before withdrawal became effective, provided that the revocation was unequivocal and unconditional. The case demonstrates the usefulness of an Advocate General’s Opinion where the Court must decide, for the first time, a question of particular constitutional and political significance.
Why are the Advocate General’s opinions important for companies and individuals?
Although the Advocate General’s Opinions are not binding, they may have considerable practical importance for companies, individuals, EU officials, and professionals whose cases depend on the interpretation of European Union law. The Opinions provide an independent legal proposal, help identify the issues that may be decisive, and make it easier to understand the possible consequences of the different interpretations considered by the Court of Justice. See also our article on European regulatory compliance for companies and individuals.
They help identify the issues that may be addressed in the judgment
The Opinions usually provide a detailed analysis of the legal issues raised, the arguments submitted by the parties, and the possible solutions available to the Court. For a company or individual directly or indirectly affected by the proceedings, this analysis helps identify the rules, principles, and lines of case law that may be relevant to the future judgment. It may also help determine whether the judgment is likely to be limited to the particular circumstances of the case or whether it could have broader consequences for other businesses, proceedings, or economic sectors.
They help explain the development of European case law
The Opinions often explain in greater detail the origins of a legal rule, the relevant case law, and the different possible interpretations. This is particularly useful where a case raises a new legal question or where several lines of case law must be reconciled. The Advocate General may examine whether an earlier legal doctrine should be maintained, clarified, limited, or changed. For companies and individuals, understanding these developments makes it easier to assess the scope of their rights and obligations. It may also help anticipate changes in areas such as data protection, competition law, freedom of movement, employment law, taxation, consumer protection, and the regulation of economic activities.
They may be used as a source of legal argument
The Opinions may be cited in legal submissions, reports, appeals, and observations as a doctrinal or argumentative source. They may be particularly useful where they contain legal analysis that does not appear in the judgment or where they examine an issue that the Court left partially unresolved. However, it must always be made clear that the source being cited is the position of an Advocate General and not binding case law of the Court of Justice. The weight of an Opinion will depend on the strength of its reasoning, its consistency with the law currently in force, and the position subsequently adopted by the Court in its judgment.
They are relevant to proceedings before national courts
A significant part of European Union law is initially applied by national administrative authorities and courts. For that reason, the Advocate General’s Opinions may also be relevant in domestic proceedings. A lawyer may use an Opinion to explain the context of a European judgment, support a particular interpretation, or argue that a question has not yet been resolved by the existing case law. Opinions may also help determine whether it is appropriate to ask a national court to refer a question to the Court of Justice for a preliminary ruling. This procedure allows the Court of Justice to interpret European Union law or examine the validity of an EU act before the national court gives its decision in the dispute. The future judgment may affect the interpretation of regulatory obligations under European regulatory law and the liability of companies for failing to comply with European Union rules.
They may guide appeals before the General Court and the Court of Justice
The Advocate General’s Opinions may be particularly relevant in appeals against decisions of the General Court. In such proceedings, the Advocate General may examine possible errors of law, procedural irregularities, or issues affecting the coherence and development of European Union law. In disputes involving EU officials and other members of staff, the legal strategy must normally begin before proceedings are brought before the General Court, through the proper administrative challenge of the act adversely affecting the person concerned. Our guide on the prior complaint under Article 90(2) of the Staff Regulations explains the importance of this stage in defining the scope of any subsequent judicial proceedings.
Does your case raise a question of European Union law?
Where a national dispute, a decision adopted by an EU institution, or an administrative measure raises questions concerning the interpretation or application of European Union law, it is essential to identify the correct procedural route. This may involve taking action before a national court, requesting a preliminary ruling, bringing proceedings before the General Court, or lodging an appeal before the Court of Justice.
Arthur & Marin advises individuals, companies, EU officials, and other members of staff in disputes and proceedings involving European Union law. We analyse the jurisdiction of the competent court, the applicable time limits, the admissibility requirements, and the legal strategy best suited to each case.
Contact Arthur & Marin, a law firm with lawyers experienced in European Union law and international law, for further information and assistance with your case at info@arthurmarin.com or +32 465 345 345.
Written and reviewed by Diego Espinosa, a lawyer admitted to the Bars of Brussels and Spain, specialising in European Union law and international litigation.
Official legal sources
The rules governing the role and functioning of the Advocate General can be found in the following official legal sources:
- Article 252 of the Treaty on the Functioning of the European Union: Article 252 TFEU provides that the Court of Justice is to be assisted by Advocates General.
- Article 253 TFEU: Article 253 TFEU governs the professional requirements for Judges and Advocates General, their appointment by common accord of the governments of the Member States, and their six-year term of office.
- Article 255 TFEU: Article 255 TFEU establishes the panel responsible for giving an opinion on the suitability of candidates before they are appointed as Judges or Advocates General.
- Statute of the Court of Justice of the European Union: Article 20 of the Statute governs the main stages of proceedings before the Court. It also allows the Court, after hearing the Advocate General, to decide a case without an Opinion where the case raises no new point of law.
- Rules of Procedure of the Court of Justice: Articles 82 and 83 of the Rules of Procedure govern the delivery of the Advocate General’s Opinion and the possible opening or reopening of the oral stage of the proceedings.
- Official CURIA website: The official CURIA website contains institutional information about the Court of Justice, the conduct of proceedings, the composition of the Courts, and the public monitoring of cases.
- InfoCuria: InfoCuria is the official case-law database of the Court of Justice of the European Union.
