The Advocate General: A Key Actor of the Court of Justice of the European Union

Abstract

It is argued that the Advocate Generals have helped to create a distinct and identifiable body of EU law. In the context of increasingly complex legislation and legal structures, the Advocate Generals have also contributed to improving the coherence of legislation and case law. It is also argued that the legal texts and practice firmly place the Advocate General at the same time within the CJEU and yet outside the Court. The institutional and functional rules governing the role of the Advocate General do have an impact on the judicial decision-making process. Some suggestions for reforming the role of the Advocate General in order to integrate the Advocate General more fully within the Court and to strengthen the role are also made.

Full text

22
The Advocate General: A Key
Actor of the Court of Justice
of the European Union
LAURE CLÉMENT-WILZ*
Abstract
It is argued that the Advocate Generals have helped to create a distinct and
identifiable body of EU law. In the context of increasingly complex legislation
and legal structures, the Advocate Generals have also contributed to improving
the coherence of legislation and case law. It is also argued that the legal texts and
practice firmly place the Advocate General at the same time within the CJEU
and yet outside the Court. The institutional and functional rules governing the
role of the Advocate General do have an impact on the judicial decision-making
process. Some suggestions for reforming the role of the Advocate General in order
to integrate the Advocate General more fully within the Court and to strengthen
the role are also made.
LITTLE IS KNOWN about the actual place and role of the
Advocate General inside the Court of Justice of the European
Union (CJEU). Given the specificity of this role,1 can the Advocate
* I am very grateful to C Barnard and I Solanke for their helpful comments on an earlier
draft.
1 See, L Clément-Wilz, La fonction de l’avocat général près la Cour de justice (Brussels,
Bruylant, 2011). This chapter is directly inspired by this book. It can be referred to for more
details on some points or cases in this chapter. A substantive literature exists on the general
aspects of the statute and the role of the Advocate General at the European Court of Justice.
See A Barav, ‘Le commissaire du gouvernement près le Conseil d’État français et l’avocat
général près la Cour de justice des Communautés européennes’ (1974) Revue international
du droit comparé 809; M Darmon, ‘La fonction de l’avocat général à la Cour de justice des
Communautés européennes’ in Nouveaux juges, nouveaux pouvoirs?: Mélanges en l’honneur
de Roger Perrot (Paris, Dalloz, 1996) 75; A Dashwood, ‘The Advocate General in the Court
of Justice of the European Communities’ (1982: July) Legal Studies 202; P Gori, ‘L’avocat
général à la CJCE’ (1976) Cahiers du droit européen 376; F Jacobs, ‘Advocate General and
Judges in the European Court of Justice: Some Personal Reflections’ in Judicial Review in

588 LAURE CLÉMENT-WILZ
General be considered as comparable to the other members of the Court?
How does he/she cooperate with the judges who actually decide upon the
case? Is he/she really part of the CJEU or an independent actor somehow
apart from it? These questions raise a broader issue of the usefulness
of the Advocate General in the Court itself and for the development of
European Union case law. As part of, or apart from the court, how does
the Advocate General ‘assist’2 the Court? If we remain unconvinced by
the utility of the Advocate General, can we justify maintaining the role
at all?
To answer this question, we need to understand how the Advocate
General became a key actor in the process of establishing the Court of
Justice’s decision making. Furthermore, to evaluate the core usefulness of
the Advocate Generals, we should look not for their influence on case law,
but at their potential ability to improve the quality of that case law. This
study will also focus on the organisational and functional aspect of the
Advocate General, as set out in primary law and statutes of the European
Court of Justice. I will then consider the substance of Opinions and the link
between Opinions and case law.3
The chapter is divided into four section. In section one, it will be argued
that Advocates General helped to create a distinct and identifiable body of
EU law. Section two shows that, mainly from the beginning of the 1990s
European Law: Liber Amicorum in honor of Lord Slynn of Hadley, vol 1 (The Hague,
Kluwer Law International, 2000) 17; T Tridimas, ‘The Role of the Advocate General in the
Development of Community Law: Some Reflections’ (1997) 34 Common Market Law Review
1349; P Léger, ‘De la nature de l’avocat général à la Cour de justice des Communautés euro-
péennes’ in L’honnête homme et le droit: Mélanges en l’honneur de Jean-Claude Soyer (Paris,
LGDJ, 2000) 261; D Ruiz-Jarabo Colomer and M López Escudero, ‘L’institution de l’avocat
général à la Cour de justice des Communautés européennes’ in Mélanges en l’hommage de
Fernand Schockweiler (Baden-Baden, Nomos Verlagsgesellshaft, 1999) 523; D Ruiz-Jarabo
Colomer, ‘La función del abogado general del tribunal de justicia de las comunidades euro-
peas’ in Problèmes d’interprétation à la mémoire de Constantinos N. Kakouris (Brussels, AN
Sakkoulas-Bruylant, 2004) 321; J Kokott, ‘Die Institution des Generalanwalts im Wandel-
Auswirkungen der Rechtsprechung des EGMR zu ähnlichen Organen der Rechtspflege in den
Mitgliedstaaten’ in Festschrift für Georg Ress (Cologne, Carl Heymanns Verlag, 2005) 577;
E Sharpston, ‘The Changing Role of the Advocate General’ in A Arnull, P Eeckhout and T
Tridimas (eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs
(Oxford, Oxford University Press, 2008); R Greaves, ‘Reforming the Scope of the Role of the
Advocates General’ in A Constitutional Order of States? Essays in EU Law in Honour of Alan
Dashwood (Oxford, Hart Publishing, 2011).
2 Art 252 TFUE.
3 For literature on the AGs and EC Law, see also M Vranken, ‘Role of the Advocate General
in the Law-making process of the European Community’ (1996) Anglo-American Law Review
39; T Tridimas, ‘The Role of the Advocate General in the Development of Community Law:
Some Reflections’ (1997) Common Market Law Review 34, 1349; C Ritter, ‘A New Look at
the Role and Impact of Advocate General: Collectively and Individually’ (2006) Columbia
Journal of European Law 3, 751; N Burrows and R Greaves, The Advocate General and
European Community Law (Oxford, Oxford University Press, 2007).

The Advocate General: A Key Actor 589
onwards, the Advocates General put this case law to the test.4 In the context
of increasingly complex legislation and legal structures, it is said that the
Advocates General also contributed to improving the coherence of legisla-
tion and case law. This section will question whether Advocates General’s
Opinions actually do so. In the third section, it is argued that the legal texts
and practice firmly place the Advocate General at the same time within
the CJEU and yet outside the Court. It will be seen that the institutional
and functional rules governing the role of the Advocate General do have
an impact on the judicial decision making process. In section four, I pres-
ent some suggestions for reforming the role of Advocate General in order
to integrate the Advocate General more fully within the Court and to
strengthen the role.
I. HELPING TO BRING EUROPEAN CASE LAW INTO EXISTENCE
Before studying the actual role of the Advocate General within the judicial
decision-making process, it should be noted that the idea of creating the
Advocate General originated from Maurice Lagrange, a French ‘commis-
saire du gouvernement’ who in 1951 was in charge of drafting the Statute
of the CJEU. Lagrange envisaged the Court as the European equivalent
of the French Conseil d’État, largely due to the fact that the Court of
Justice of the European Coal and Steel Community was originally cre-
ated to control the acts of the High Authority, a similar role to that of an
Administrative Court (Conseil d’État). Due to these similarities, Lagrange
suggested to his European partners that a counterpart to the French ‘com-
missaire du gouvernement’ be created at a European level.5 In France, ‘com-
missaire du gouvernement’, now ‘rapporteur public’ has been in existence
since the Conseil d’État was created by Napoleon Bonaparte in 1799.6
Each case, very briefly redacted, is understood thanks to the Opinion
given by the ‘rapporteur public’ (whether followed or not). All the leading
4 Before the 1990s, some Advocate Generals were already discussing some solutions given
by the Court, but this was quite rare and they were not actually questioning the case law
foundations. Regarding standing to seek judicial review, see, AG Lagrange’s opinion in Case
8/55 Fédéchar v High Authority [1956] ECR 138.
5 M Lagrange, ‘La Cour de justice des Communautés européennes : Du Plan Schuman à
l’Union européenne’ (1978) Revue trimestrielle de droit européen 2, 9; M Lagrange, ‘Entretien
avec Antoine Marès’ (1980) Archives Monnet; M Lagrange, ‘L’organisation, le fonctionnement
et le rôle de la Cour de justice des Communautés européennes’ (1963) 13–14 Bulletin. de
l’association des juristes européens 5, 12.
6 For a more detailed view on the ‘commissaire du gouvernement’, see N Rainaud, Le com-
missaire du gouvernement près le Conseil d’État (Paris, LGDJ, 1996).

590 LAURE CLÉMENT-WILZ
judgments of French administrative law, such as Blanco,7 Terrier,8 or
Thérond,9 are communicated and explained thanks to their Opinions. They
provide a thorough analysis of the academic literature and administrative
case law. The ‘rapporteur public’ position is always held by the judges who
have shown high levels of competence. Two other founder Member States,
Belgium and the Netherlands, had a similar officer in their national court
systems. Given the existence of this prestigious and well-established post in
three of the six founding Member States, the Advocate General was imme-
diately understood to be an important figure within the context of the then
EEC. The two new appointees (the French M Lagrange himself and the
German Roemer) inherited this prestige before they formally commenced
their role.
What did they do with this inheritance? As it was a new role, the ques-
tion arises as to how the Advocates General added substance to their title.
It can be argued that they helped to identify and create a European vision.
In the earliest cases coming before the CJEU, the two Advocates General
identified the specificity of the new legal system. For example, in his first
Opinion in Netherland v High Authority,10 AG Roemer identified the spe-
cific nature of the European Court of Justice: ‘it is a Court without ad hoc
judges, without nationalities, without dissenting opinions, but only judges
of our European [Union]. The cases are immediately enforceable, without
ex equatur proceedings. Hence, the Court can make the [EU] law compul-
sory’. AG Lagrange furthermore declared in Fédération charbonnière de
Belgique11 that the new organisation was closer to a federal structure than
to an international one. He considered the Treaty to be the ‘Charter of
the [Union]’ and that the rules derived from it should be considered as the
internal law of this [Union].12
However, on matters of substance, such as direct effect and primacy,
implicit competences, and free movement of workers,13 the Advocates
General’s Opinions were not as pioneering as the decisions of the Court.
For instance, in Costa v ENEL, AG Lagrange insisted that the European
legal order was distinct from the national one (as the Court had said in the
7 TC, 8 fev. 1873, Blanco, Rec. 1er suppl., concl. David. This case is considered to be the
founding case of French Administrative Law. The opinion of the ‘commissaire du gouverne-
ment’ paved the way for finding a criteria of administrative law.
8 CE, 6 fév. 1903, Terrier, Rec. 94, concl. Romieu. With the ‘commissaire du gouverne-
ment’s opinion, emerged the idea that administrative law applies only when an administration
uses powers other than the norm (‘procédés exhorbitants du droit commun’).
9 CE, 4 mars 1910, Thérond, Rec. 193, concl. Pichat.
10 Case 6/54 Netherland v High Authority [1955] ECR 113.
11 Case 8/55 Fédération charbonnière de Belgique v Haute Autorité [1956] ECR 292.
12 Ibid.
13 Case 75/63 Hoekstra [1964] ECR 347; Case 92/63 HE Moebs [1964] ECR 557; Case
100/63 J Kalsbeek [1964] ECR 1105.

The Advocate General: A Key Actor 591
Van Gend en Loos judgement14), but the Court judged that the EEC legal
order was integrated into the legal system of the Member States.15 Lagrange
explained to national judges the steps that needed to be taken in order to
avoid infringing EU law but the Court took a more radical approach, sim-
ply stating that the national judges were bound by the European legal order.
Later on, in ERTA,16 AG Dutheillet de Lamothe said that:
I shall not conceal from the Court that I was momentarily persuaded to the view
that authority in external matters can be transferred to the [Union] through the
adoption of a [Union] regulation and it is with some regret that upon reflection
I must finally suggest to the Court that this view should not be accepted.
He also considered that ‘the argument of implied and automatic transfer
of authority outside the cases laid down by the Treaty raises very serious
objections quite apart from a general objection relating to the methods of
interpreting the Treaty’. By contrast, the Court established the theory of
implied powers. These examples arguably demonstrate that the first broad
vision given by the Advocate General was not rejected at all by the Court
of Justice, quite the opposite.
The Advocates General also helped to establish and develop a European
acquis. They always took the previous decisions of the Court into consid-
eration and never contested their authority, especially in the field of the
nature and specificity of the European legal order. They always started their
reasoning with previous decisions. In 1956, AG Lagrange presented the
just-decided judgment Groupement industries sidérurgiques luxembour-
geoises 17 as a ‘leading judgment’ in the field of judicial review about inter-
est in instituting proceedings.18 In De Gezamenlijke Steenkolenmijnen in
Limburg,19 he then made a first synthesis on this issue, as did AG Roemer
in the case SIMET Meroni.20 In Costa v ENEL, AG Lagrange based his
reasoning on the Van Gend en Loos judgment.21
Because of this continuity in the AG Opinions, CJEU cases became actual
jurisprudence relied on and examined by future cases, rather than a mere
collection of decisions.
The Advocates General of the ‘second generation’ carried on and strength-
ened this approach throughout the seventies and eighties. Advocates General
14 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v
Netherlands Inland Revenue Administration [1963] ECR 1.
15 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585.
16 Case 22/70 Commission v Council (ERTA) [1971] ECR 263, 291.
17 Joined Cases 7/54 and 9/54 Groupement industries sidérurgiques luxembourgeoises v
High Authority [1956] ECR 175.
18 Opinion of AG Lagrange in Case 8/55 Fédération Charbonnière de Belgique v High
Authority [1956] ECR 201.
19 Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg [1961] ECR 1.
20 Opinion of AG Roemer in Case 36, 37, 40, 41/58 SIMET Meroni v High Authority
[1959] ECR 331.
21 Opinion of AG Lagrange in Case 6/64 Flaminio Costa v ENEL [1964] ECR 585.

592 LAURE CLÉMENT-WILZ
of this period are the Italian Alberto Trabucchi, the British Jean-Pierre
Warner, the French Henri Mayras, the German Gerhard Reishl (all nomi-
nated in 1972 and 1973), and then the Italian Francesco Capotorti and
Federico Mancini (nominated respectively in 1976 and 1982), the Dutch
Pieter VerLoren Van Themaat, the British Gordon Slynn (in 1981), the
French Simone Rozès and Marco Darmon (respectively in 1981 and
1984) the German Carl-Otto Lenz (1984), the Portuguese José Luis Da
Cruz Vilaca (1986) and the Luxembourgian Jean Mischo. The Advocates
General helped to bring European case law into existence, in establishing a
level of coherence between the different cases. They never ventured out of
the mainstream opinion conveyed by the European Court of Justice. They
carried out the invaluable task of analysing elements of the various CJEU
cases. AG Dutheillet de Lamothe explained the meaning of ‘direct effect’22
and AG Reischl produced a synthesis on the nature of (then) Community
law, its applicability to the ‘European Citizen’ and the link between Union
law and national law23. In the Factortame case, AG Tesauro recalls the
Simmenthal judgement: provisions of (then) Community law having direct
effect ‘must be fully and uniformly applied in all the Member States from
the date of their entry into force and for so long as they continue in force’24
and ‘this consequence also concerns any national court whose task it is as
an organ of a Member State to protect, in a case within its jurisdiction, the
rights conferred upon individuals by [then] [Union] law’.25 More impor-
tantly, he ‘[does] not consider it useful, and even less so in this context, to
enter into a sterile dialectical discussion on the theoretical basis of such a
firmly established principle’.26
Although the Court of Justice and the Advocates General were going in
the same direction, this does not mean that they were in absolute agreement
on every issue. In reality, the European Court of Justice and Advocates
General did not always follow the same rhythm. In some areas, such as
judicial review or the organisation of the different methods of judicial
control, Advocates General were quite keen on being creative and mak-
ing revolutionary decisions. For instance, AG Van Gerven in the so-called
‘Tchernobyl’ case promoted the European Parliament’s right to judicial
review of European Acts.27 Another example can be found in AG Darmon’s
22 Opinion of AG Dutheillet de Lamothe’s opinion in Case 4/69 Alfons Lütticke v
Commission [1971] ECR 325.
23 Opinion of AG Reischl in Case 106/77 Amministrazione delle Finanze dello Stato v
Simmenthal SpA [1978] ECR 629, 651.
24 Case 106/77 Simmenthal [1977] ECR 629, para 14.
25 Simmenthal (n 24) para 16.
26 Opinion of AG Tesauro in Case C-213/89 The Queen c/ Secretary of State for Transport,
ex parte: Factortame [1990] ECR I-2433, para 13 (emphasis added).
27 Opinion of AG Van Gerven in Case C-70/80 European Parlement v Council (Tchernobyl)
[1991] ECR I-4529.

The Advocate General: A Key Actor 593
Opinion where he promoted the ‘right to an effective judicial remedy’.28 In
some other areas, such as effective application of Union law29 or external
competences,30 Advocates General did not, once again, give any Opinion
leading the Court to take the decisive step. At all times until the beginning
of the 1990s, the Advocates General fully accepted any forward steps taken
by the European Court and did not put it into question. In doing so, they
contributed to the consolidation of (then) very recent case law and of its
very existence.
II. IMPROVING THE COHERENCE OF UNION LAW?
From the beginning of the 1990s, Advocates General, fully independently,
started to offer their own interpretations of Union case law. Thanks to
this new attitude, it was possible to evaluate whether the case law was
well founded and sufficiently well argued. In some cases, CJEU case law
appeared to be stronger after the Advocates General made criticisms. An
example of this can be seen in the renowned UPA case, on the access of
individuals to a judicial remedy.31 Regardless of whether we are in agree-
ment with the Court’s decision in that case, the case demonstrates a greater
effort by the Court to justify its position when confronted with AG Jacobs’
opposition. Moreover, the Court clarified that it was for the Treaty makers
to modify the current prerequisite conditions to obtaining a judicial rem-
edy.32 The Court therefore effectively ‘froze’ its case law, as a consequence
of its response to the Advocates General’s Opinion. The same effect of the
AGs’ Opinions is visible in the case law denying any horizontal direct effect
of Directives, which was heavily criticised by AG Van Gerven, AG Jacobs
28 Opinion of AG Darmon in Case 222/84 Marguerite Johnston v Chief Constable of the
Royal Ulster Constabulary [1986] ECR 1651. See also Opinion of AG Van Themaat in Case
147/83 Münchener Import-Weinkellerei Herold Binderer GmbH v Commission [1985] ECR
257; Opinion of AG Tesauro in Case C-244/88 Usines coopératives de déshydratation du
Vexin v Commission [1989] ECR 3811, para 8; Opinion of AG Jacobs in Case C-358/89
Extramet Industrie v Council [1991] ECR I-2501, para 30.
29 Opinion of AG Slynn in Case 8/81Ursula Becker v Finanzamt Münster-Innenstadt [1982]
ECR 53.
30 Opinion of AG Trabucchi in Joined Cases 3/76, 4/76 and 6/76 Cornelis Kramer and
others [1976] ECR 1279.
31 Case C-50/00P Unión de Pequeños Agricultores v Council [2002] ECR I-6677. Former
Art 230(4) reads that Any natural or legal person may ... institute proceedings against a deci-
sion addressed to that person or against a decision which, although in the form of a regulation
or a decision addressed to another person, is of direct and individual concern to the former.
32 And they did so with the Lisbon Treaty. Art 267(4) now stipulates that Any natural or
legal person may ... institute proceedings against an act addressed to that person or which is of
direct and individual concern to them, and against a regulatory act which is of direct concern
to them and does not entail implementing measures. (emphasis added)

594 LAURE CLÉMENT-WILZ
and AG Lenz respectively in the Marshall II, Vaneetveld and Faccini Dori
cases.33
In other cases, the opposition of the Advocate General reveals more
problematic argumentations in the CJEU reasoning. This can be found in
the case law on admissibility of references for preliminary rulings when
national law refers unilaterally to EU law. On one side, AG Darmon right
at the beginning of his Opinion in Dzodzi,34 considered that ‘it is not com-
petent to this Court to give the ruling requested of it’ and did not answer
the references for preliminary rulings. AG Mancini said much the same
in Thomasdünger: ‘it is impossible for the Court to interpret [European
provision]’35 as ‘it is something which the Court is expressly prohibited
from doing by Article [267]’.36 In the same way, AG Tesauro concluded that
‘Not only does the Court not have jurisdiction but it would make no sense
if it did’.37 On the other side, the Court considered it had competence to
give a ruling in that specific situation. But the Court failed to answer further
legal problems raised by AG Jacobs:38
It might at first sight seem surprising that the Court, whose function under the
Treaty is to ‘ensure that in the interpretation and application of [the] Treaty the
law is observed’ (Article [19 TEU]), should have assumed jurisdiction in cases in
which [Union] law does not apply. Like other legal systems, [Union] law defines
its own field of application, and it might seem reasonable to assume that all
[Union] law, including Article [267], is intended to apply solely within that field.
The purpose of Article [267], within the scheme of the Treaty, is to ensure that
[Union] law is uniformly applied in all the Member States. It is not immediately
clear how it would serve that purpose for the Court to rule in disputes in which
a [Union] rule is borrowed by a Member State and transposed to a non-[Union]
context. In such disputes the rules which national courts are called upon to apply
are rules of national law rather than [Union] law; there can therefore be no imme-
diate threat to the uniform application of [Union] law.
Broadly speaking, the criticisms put forward by the Advocates General
effectively showed that an internal debate did actually exist and ensured
the openness of the decision making process within the Court. They
33 Case C-271/91 Marshall v Southampton and South-West Hampshire Area Health
Authority (‘Marshall II’) [1993] ECR I-8835; Case C-316/93 Nicole Vaneetveld v Le Foyer SA
and Le Foyer SA v Fédération des Mutualités Socialistes et Syndicales de la Province de Liège
[1994] ECR I-763; Case C-91/92 Paola Faccini Dori v Recreb Srl [1994] ECR I-3325.
34 Opinion of AG Darmon in Case C-297/88 Massam Dzodzi v Belgian State [1991] ECR
I-3763, para 8.
35 Opinion of AG Mancini in Case 166/84 Thomasdünger GmbH v Oberfinanzdirektion
Frankfurt am Main [1985] ECR 3001, 3003
36 Ibid.
37 Opinion of AG Tesauro in Case C-346/93 Kleinwort Benson Ltd v City of Glasgow
District Council [1995] ECR I-615, para 20.
38 Opinion of AG Jacobs in Case C-28/95 A.Leur-Bloem [1997] ECR I-4161 and in Case
C-130/95 Bernrd Giloy [1997] ECR I-4291, para 47; see also the Opinion of AG Ruiz-Jarabo
Colomer in Case C-1/99 Kofisa Italia [2000] ECR I-207, para 37.

The Advocate General: A Key Actor 595
brought a breath of fresh air into the intellectual space of the Court of
Justice. By making European case law a reality and ensuring the transpar-
ency of some elements of the internal debate, Advocates General made
a decisive contribution to the existence of CJEU case law and its accept-
ability, and hence to the CJEU itself. The question is: what now? From
the beginning of the twenty-first century, Union case law has become
increasingly complex in part due to the expansion of EU competence and
CJEU jurisdiction in new sensitive areas such as terrorism and national
fields such as direct tax, criminal law, social law, and in part due to the
continued instability of the links between the different legal systems
(United Nations, World Trade Organisation, European Convention of
Human Rights and European Union). It is the responsibility of the Court
to ‘constitutionalise’ European Union Law while maintaining a sensitivity
to the national systems.
In the context of such complexity, Advocates General have had a specific
role to play: trying to find coherence. They have achieved this aim by pro-
moting recurring principal concepts. An example of this is the concept of
EU citizenship (Article 21 TFUE). Before the Maastricht Treaty entered into
force, AG Trabucchi and AG Jacobs already considered the worker as an
individual.39 According to AG Darmon, ‘Integration is not simply a legal
concept; it is also something which must be lived and experienced person-
ally and intimately’.40 At the beginning of the case law after the Maastricht
Treaty, and before the landmark case of Martinez Sala,41 some Advocates
General actively promoted the symbolic dimension of European Union
citizenship. AG Lenz, in his Opinion in the Faccini Dori case stressed the
recognition of the horizontal direct effect of the directives: he considered
that ‘The introduction of citizenship of the Union raises the expectation
that citizens of the Union will enjoy equality, at least before Union law’.42
Likewise, AG Léger said in Boukhalfa that:
[T]he provisions of the Treaty relating to freedom of movement for individu-
als … meet the more general aim of promoting a feeling of belonging to a com-
mon entity enshrined in the frequently used phrase ‘people’s Europe’, and in
the ‘citizenship of the Union’ added to the EC Treaty by the European Union
Treaty.43
39 Opinion of AG Trabucchi in Case 7/75 Mr and Mrs F v Belgian State [1975] ECR 679,
para 5; Opinion of AG Jacobs in Case 344/87 I Bettray v Staatssecretaris van Justitie [1989]
ECR 1621, para 29.
40 Opinion of AG Darmon in Case C-308/89 Carmina di Leo v Land Berlin [1990] ECR
I-4185, para 14.
41 Case C-85/96 María Martínez Sala v Freistaat Bayern [1997] ECR I-2691.
42 Opinion of AG Lenz in Case C-91/92 Paola Faccini Dori v Recreb Srl [1994] ECR
I-3325, para 53.
43 Opinion of AG Léger in Case C-214/94 Ingrid Boukhalfa v Bundesrepublik Deutschland
[1996] ECR I-2253, para 29.

596 LAURE CLÉMENT-WILZ
AG Ruiz-Jarabo insisted on the ‘considerable qualitative step forward’
brought by European citizenship.44 The concept then turned out to have
more direct legal impact in of the opinions of AG La Pergola and AG
Jacobs.45
In the aftermath of those Opinions, AG La Pergola and AG Cosmas
decided to strengthen the legal effect of the concept of European Union citi-
zenship when mentioning it in their main argumentation. In Martinez Sala,
he considered that freedom of residence was ‘not simply a derived right, but
a right inseparable from citizenship of the Union’.46 He added that:
Citizenship of the Union comes through the fiat of the primary norm, being
conferred directly on the individual, who is henceforth formally recognised as a
subject of law who acquires and loses it together with citizenship of the national
state to which he belongs and in no other way. Let us say that it is the fundamen-
tal legal status guaranteed to the citizen of every Member State by the legal order
of the [Union] and now of the Union.47
AG La Pergola was indeed a pioneer in ‘putting flesh on the bones of
European citizenship.’48 He was then followed by the Court.49 AG Cosmas
pleaded in favour of direct effect of Article 21 TFEU,50 paving the way for
Baumbast that did decide that ‘a citizen of the European Union who no
longer enjoys a right of residence as a migrant worker in the host Member
State can, as a citizen of the Union, enjoy there a right of residence by direct
application of Article [21(1) TFEU]’.51
Advocates General have also promoted structuring principles. For exam-
ple, before the Lisbon Treaty, AG Poiares Maduro considered in Eurojust
that the European Union was based on the rule of law,52 and AG Kokott
in Pupino suggested the Court apply the loyal cooperation principle in
44 Opinion of AG Ruiz-Jarabo in Joined Cases C-65/95 and C-111/95 The Queen v
Secretary of State for the Home Department, ex parte Mann Singh Shingara and ex parte
Abbas Radiom [1997] ECR I-3343, para 34.
45 Opinion of AG La Pergola in Joined Cases C-4/95 and C-5/95 Fritz Stöber and José
Manuel Piosa Pereira v Bundesanstalt für Arbeit [1997] ECR I-511, para 50. Opinion of AG
Jacobs in Case C-274/96 Criminal proceedings against Horst Otto Bickel and Ulrich Franz
[1998] ECR I-7632, para 22.
46 Opinion of AG La Pergola in Case C-85/96 Maria Martinez Sala [1998] ECR I-2691,
para 18.
47 Ibid. See also Opinion of AG Tesauro in Case C-171/96 Rui Alberto Pereira Roque
[1997] ECR I-4607, para 48.
48 S O’Leary, ‘Putting on the Bones of European Union Citizenship’ (1999) 24 European
Law Review 68–79.
49 See the analysis of Advocate Generals’ opinions on this issue in Burrows and Greaves,
The Advocate General (n 4) 271.
50 Opinion of AG Cosmas in Case C-378/97 Criminal proceedings against Florus Ariël
Wijsenbeek [1999] ECR I-6207, paras 25 and others.
51 Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002]
ECR I-7091, para 94.
52 Opinion of AG Poiares Maduro in Case C-160/03 Kingdom of Spain v Eurojust [2005]
ECR I-2077.

The Advocate General: A Key Actor 597
the field of criminal cooperation53. In the Kadi case, AG Poiares Maduro
considered that an EU act adopted in conformity with a United Nations
Resolution should respect the fundamental rights.54 Broadly speaking,
Advocates General strongly promoted fundamental rights protection within
EU law55 and the Charter of Fundamental Rights application before the
Lisbon Treaty came into force.56
However, the task of promoting coherence is not easy, as is clearly shown
by case law on the definition of what a ‘restriction’ is for the purposes of
establishing a breach of the free movement provisions.57 In the early 1990s,
AG Van Gerven (in the Sunday Trading cases)58 and AG Tesauro (in the
Hünermund case)59 criticised the broad definition of ‘restriction’ given by
the Court. AG Van Gerven considered that ‘the Dassonville rule ... is so
broad as to cover any legislation which contains a cross-frontier element
as regards its purpose or effect’.60 AG Van Gerven offered to apply a new
criteria, ‘the compartmentalization of the market’, already used in the field
of competition law.61 AG Tesauro raised the following issue: ‘Is Article [34]
of the Treaty a provision intended to liberalize intra-[Union] trade or is it
intended more generally to encourage the unhindered pursuit of commerce
in individual Member States?’62 He also put the Court’s responsibilities in
sharp focus, arguing that:
The inconsistency and contradictions pointed out increase the need to achieve
clarity by means of criteria that are as precise and unambiguous as possible and,
even more importantly, of a conscious and explicit basic choice regarding the
53 Opinion of AG Kokott in Case C-105/03 Maria Pupino [2005] ECR I-5285.
54 Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi et autre v Council and
Commission [2008] ECR I-6351.
55 Opinion of AG Kokott in Case C-105/03 Maria Pupino (n 53) paras 59 and 69; Opinion
of AG Mengozzi in Case C-355/04P Segi and others v Council [2007] ECR I-1657, para 79;
Opinion of AG Ruiz-Jarabo Colomer in Case C-303/05 Advocaten voor de Wereld [2007]
ECR I-3633, para 6.
56 Eg AG Tizzano in Case C-173/99 The Queen v Secretary of State for Trade and Industry,
ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) [2001]
ECR I-4881, para 27; Opinion of AG Léger in Case C-353/99 P Council v Heidi Hautal [2001]
ECR I-9565, para 82; Opinion of AG Léger in Case C-317/04 Parliament v Council [2006]
ECR I-4721; Opinion of AG Poiares Maduro in Case C-181/03 Albert Nardone [2005] ECR
I-199, para 51; Opinion of AG Poiares Maduro in Case C-303/05 Ordre des Barreaux fran-
cophones et germanophones [2006] ECR I-5305, para 48; Opinion of AG Kokott in Cases
C-387/02, C-391/02 and C-402/02 Criminal proceedings v Silvio Berlusconi and others [2005]
ECR I-3565; below n 83.
57 See also the case law on justification of direct discrimination, see below section IV.
58 Case C-145/88 Torfaen Borough Council v B&Q [1989] ECR 3851; Case C-312/89
Union départementale des syndicats CGT de l’Aisne v SIDEF Conforama [1991] ECR I-997;
Case C-332/89 André Marchandise and others [1991] ECR I-1027.
59 Case C-292/92 Ruth Hünermund [1993] ECR I-6787.
60 Opinion of AG Van Gerven in Case C-332/89 André Marchandise and others, para 6.
61 Opinion of AG Van Gerven in Case C-145/88 Tor fa en B or ou gh C ou nc il v B& Q, para 23.
62 Opinion of AG Tesauro in Case C-292/92 Ruth Hünermund, para 1.

598 LAURE CLÉMENT-WILZ
need for (or expediency of?) review of the type of measures in point here for their
conformity with Article [34].
Even if the CJEU did not follow the new definition of ‘restriction’ given
by AG Van Gerven and Tesauro, it did modify its approach in Keck and
Mithouard,63 where the distinction was made between a restriction on
‘selling arrangements’and on ‘product requirements’. By creating a new cat-
egory, the Court probably created more confusion. That would explain why
AG Jacobs in Leclerc Siplec argued that ‘it would be wrong to say that such
legislation [selling arrangements] has no effect on trade between Member
States. The effect may indeed be very significant’.64 He explicitly preferred
to take a different approach. To AG Jacobs,
There is one guiding principle which seems to provide an appropriate test: that
principle is that all undertakings which engage in a legitimate economic activity
in a Member State should have unfettered access to the whole of the [Union]
market, unless there is a valid reason for denying them full access to a part of
that market.65
Therefore, ‘if the principle is that all undertakings should have unfettered
access to the whole of the [Union] market, then the appropriate test ... is
whether there is a substantial restriction on that access’.66 At that time,
this ‘de minimis’ test was not accepted by the Court and in any case, this
heavy critique on a just-decided judgment was arguably inappropriate, as
it was adding some legal uncertainty. More recently, after AGs Geelhoed67
and Poiares Maduro68 pleaded for a readjustment of the Keck solution,
AG Kokott ‘favoured extending the Keck principle to restrictions on use’.69
With this Opinion, AG Kokott opened up a debate about the definition of
an obstacle. In Commission v Italy (trailers), AG Bot ‘urged the Court to
apply a market access test’.70 The Court of Justice eventually decided that
‘any other measure which hinders access of products originating in other
63 Joined Cases C-267/91 and C-268/91 Bernard Keck and Daniel Mithouard [1993] ECR
I-6097.
64 Opinion of AG Jacobs in Case C-412/93 Société d’Importation Edouard Leclerc-Siplec
[1995] ECR I-179, para 26.
65 Opinion of AG Jacobs in Case C-412/93 Société d’Importation Edouard Leclerc-Siplec
[1995] ECR I-179, para 41.
66 Ibid.
67 Opinion of AG Geelhoed in Case C-239/02 Douwe Egverts [2004] ECR I-7007, para 73.
See P Oliver and S Enchelmaeir, ‘Free Movment of Goods: Recent Developments of the Case
Law’ (2007) Common Market Law Review 649.
68 Opinion of AG Poiares Maduro in Joined Cases C-158/04 and 159/04 Alfa Vista
Vassilopoulos and Carrefour Marinopoulos [2006] ECR I-8135.
69 C Barnard, The Substantive Law of the EU: The Four Freedoms, 3rd edn (Oxford,
Oxford University Press, 2010) 139; see Opinion of AG Kokott in Case C-142/05 Åklagaren v
Percy Mickelsson and Joakim Roos [2009] ECR I-4273, para 45.
70 Barnard, The Substantive Law of the EU (n 69) 130; see Opinion of AG Bot in Case
C-110/05 Commission v Italy (trailers) [2009] ECR I-519, para 91.

The Advocate General: A Key Actor 599
Member States to the market of a Member State is also covered by [the
concept of restriction]’.71 To conclude with this point, the CJEU did modify
the case law following the Advocates General and did use a criteria previ-
ously promoted by some Advocates General. However, the Court did not
use the ‘market access’ as global test but rather as a new category of restric-
tion. In that sense, the coherence of the EU case law is still to be found and
the AGs did not fully reach their target.
Although the Opinions of the Advocates General largely contributed to
the very creation and existence of CJEU case law, the complexity of today’s
EU system has made it increasingly difficult for the Advocates General to
establish the best way in which they can perform their role. Understanding
their precise place within the Court would lead to propositions for reform in
order to improve this role and more generally the legitimacy of the CJEU.
III. THE ADVOCATE GENERAL: PART OF,
AND APART FROM, THE CJEU
The legal status shows that an Advocate General is at the same time part of,
and independent of, the CJEU. The main link between Advocates General
and judges is the Opinion, by which the former can try to convince the
latter.
A. Advocate General: Part of the CJEU
It is clear from the Treaty that the Advocate General is integrated into the
Court. Article 252 TFEU provides that:
It shall be the duty of the Advocate-General, acting with complete impartiality
and independence, to make, in open court, reasoned submissions on cases which,
in accordance with the Statute of the Court of Justice of the European Union,
require his involvement. (emphasis added)
The Advocate General must give an Opinion on cases that require his
involvement. It means the role of the Advocate General is legally linked
with the case law of the Court. The Advocate General is neither a con-
sultant expert nor an academic. S/he has to give ‘reasoned submissions’,
meaning a serious and detailed reasoning, in order to offer a suitable solu-
tion for the judges to solve the pending case. Prior to the Nice Treaty, the
‘assisting’ aspect of the Advocate General’s role was even clearer: the text
provided that the Advocate General should give an Opinion in order to
71 Case C-110/05 Commission v Italy (trailers) [2009] ECR I-519, para 37.

600 LAURE CLÉMENT-WILZ
assist the Court in the performance of its task,72 which is to ‘ensure that
in the interpretation and application of the Treaties the law is observed’.73
Despite the removal of this sentence, Article 252 TFEU still provides that
‘the Court shall be assisted by eight Advocates General’ (emphasis added).
Thus, legally, the purpose of the role is before all to assist, to help judges.
The Treaty sets out the common features of both Advocates General and
judges in the Court of Justice: both are chosen from persons whose inde-
pendence is beyond doubt and who possess the qualifications required for
appointment to the highest judicial offices in their respective countries or
who are jurisconsults of recognised competence.74 They are chosen under
the same rules.75 The Statute of the CJEU presents the status of both the
judges and the Advocates General under the same chapter. They receive
the same immunity and salary. As a consequence, the backgrounds of
Advocates General and judges are potentially the same. For example, an
increasing tendency to nominate academics can be seen for both roles. Italy
was the first State to appoint academics as Advocates General (Trabucchi,
Capotorti). Then since the middle of the 1980s, academics have been regu-
larly appointed as Advocates General: VerLoren van Themaat, Da Cruz
Vilaça, and four more arrived at the beginning of the 1990s: G Tesauro,
F Jacobs, W Van Gerven and A La Pergola. In the early 2000s, E Sharpston,
coming both from the university sphere and the Bar, A Tizzano, M Poiares
Maduro, J Kokott, P Mengozzi, V Trstenjak and Cruz Villalón were
appointed. 10 current judges are also partly or fully from an academic
background: V Skouris, A Tizzano, A Rosas, K Lenaerts, T Ileši , T von
Danwitz, C Toader, M Safjan, S Prechal and E Jaraðiûnas.
Beyond this the Advocate General has an integral, active and impor-
tant role in the decision-making process. He/she is assigned to the case
by the First Advocate General. The First Advocate General position was
created in 1974. Article 10(1) Rules of Procedure simply states that ‘the
Court shall appoint for a period of one year the First Advocate General’.
Since the late 1990s, the First Advocate General (chosen by the other
Advocates General) is the first of the order of precedence who has never
been First Advocate General before. Currently AG Mazak is holding the
72 Ex Art 222 TEC (ex Art 166 TEEC, ex Art 11 of the Protocol on the Statute of the Court
of Justice attached to the Treaty ECSC:
It shall be the duty of the Advocate-General, acting with complete impartiality and inde-
pendence, to make, in open court, reasoned submissions on cases brought before the
Court of Justice, in order to assist the Court in the performance of the task assigned to it
in Article 220.
73 Art 19, para 1 TEU.
74 See Art 19 TEU and 253 TFEU. The features of the General Court’s judges are slightly
different. Art 254(2) reads that ‘The members of the General Court shall be chosen from per-
sons whose independence is beyond doubt and who possess the ability required for appoint-
ment to high judicial office’.
75 Art 255 TFEU.

The Advocate General: A Key Actor 601
position. The First Advocate General does not take precedence over the
other Advocates General. His/her main task is to ‘assign each case to an
Advocate General as soon as the Judge-Rapporteur has been designated
by the President. He shall take the necessary steps if an Advocate General
is absent or prevented from acting’.76 In the Court of Justice, he takes his/
her ranking after the President of the Court and the four Presidents of the
five-judge Chambers.
The Advocate General plays an important role in case flow manage-
ment by contributing to the fulfilment of the judicial function77 and plays
a continuous and important role in the proceedings.78 He/she receives the
case file at the same time as the Reporting Judge (‘juge rapporteur’), who is
assigned the case by the President of the Court. The designated Reporting
Judge who must prepare and present a solution to the issues raised before
the other judges of the chamber, will only have written a Preliminary
Report on the case before the Opinion is given. This report, an internal
document of the Court, is described in the Rules of Procedure as a report
on preliminary questions about the preparatory inquiries and other pre-
paratory measures.79 Since 2000, Article 44 paragraph 2 of the Rules of
Procedure indicates more precisely which elements should be contained in
the Preliminary Report:
The preliminary report shall contain recommendations as to whether a prepara-
tory inquiry or any other preparatory step should be undertaken and as to the
formation to which the case should be assigned. It shall also contain the Judge-
Rapporteur’s recommendation, if any, as to whether to dispense with a hearing …
and as to whether to dispense with an Opinion of the Advocate General pursuant
to the fifth subparagraph of Article 20 of the Statute.
During the written procedure, the designated Advocate General is heard on
the formal conditions of the application80 and on the decision to introduce
new plea in law.81 Once the written procedure is finished, the Reporting
Judge writes a Preliminary Report in which he briefly presents the case to the
other members of the Court Chamber before the General Meeting (‘réunion
générale’). The Reporting Judge indicates if more instruction or prepara-
tory measures are needed, if a hearing is needed82 and if an Opinion is
76 Art 10(5) RP.
77 P Gori, ‘L’avocat général à la CJCE’ (1976) Cahier du droit européen 375, 377.
78 D Ruiz-Jarabo Colomer and M Lüpez Escudero, ‘L’institution de l’avocat général à
la Cour de justice des Communautés européennes’ in Mélanges en l’hommage de Fernand
Schockweiler (Baden-Baden, Nomos Verlagsgesellshaft, 1999) 523. See also K Mortelmans,
‘The Court under the Influence of its Advocate General: An Analysis of the Case Law on the
Functioning of the Internal Market’ (2005) Yearbook of European Law 127.
79 Art 34-1 of the 1953 Rules of Procedure.
80 Art 38, para 7 Rules of Procedure (RP).
81 Art 42, para 2 RP.
82 Art 44 bis RP.

602 LAURE CLÉMENT-WILZ
necessary.83 The Judge-Rapporteur can also explain which issues are central
to the case.84 At the ‘réunion générale’, the Court (including Advocates
General) decides upon these proposals. Any preparatory inquiries are sub-
sequently decided after hearing the Advocate General.85 He/she can also
take part directly in the preparatory measures, such as asking questions of
the parties relating to the facts (direct actions).86 During the course of the
hearing, the Advocate General, as well as the President and the other judges,
may put questions to the agents, advisers or lawyers of the parties.87
From the judges’ point of view, the Opinion is useful as it is the first
document that contains a complete argument on the case.88
B. The Opinion of the AGs, the Main Tool used to Influence the Judges
The influence of the Advocate General lies mainly in his/her Opinion
(‘reasoned submission’). The Opinion is written in the first instance for the
benefit of the judges and is the main tool used by the AG to influence the
judges on the issue(s) raised in the case. Advocates General’s Opinions are
full of methods or techniques used in order to convince the judges. Some
trends can be noticed. For instance, AG Lagrange revealed his difficulties
in settling the argument.89 AG Dutheillet de Lamothe also expressed his
regret in choosing one solution rather than another.90 By doing so, they
actually tried to persuade the judges that the solution they promoted was
the only possible one. If this technique seems to have worked in the first
case, the Court did not follow the Advocate General in the second. On
the other hand, some Advocates General, such as AG Tesauro, would use
expressions such as ‘it is unquestionable that’ or ‘it is only too clear that’91
to persuade the judges. Another technique consists of considering all the
possible counter-arguments against the main proposition of the Advocate
83 Art 44, para 2 RP.
84 D Edward (interview with), Judge Edward Oral History, Session IV, Years on the Courts:
Part I—1989–2004, How the Courts Operated (2005) 7. Available on www.law.du.edu.
85 See Art 45, para 3 RP; Art 45, para 2 RP; Art 47, para 1 RP; Art 47, para 4 RP; Art 76, para 3
RP; Art 82 bis, para 1 RP, Art 85, para 3 RP; Art 91, para 4 RP.
86 Art 54 RP. See also Art 104, para 5 RP.
87 Art 57 RP.
88 See below, section IV.
89 Opinion of AG Lagrange in Case 8/55 Fédération charbonnière de Belgique v
Haute Autorité (n 18) 248; Opinion of AG Lagrange in Case 30/59 De Gezamenlijke
Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 66.
90 Opinion of AG Dutheillet de Lamothe in Case 22/70 Commission v Council (ERTA)
(n 16).
91 Opinion of AG Tesauro in Case C-118/96 Jessica Safir v Skattemyndigheten i Dalarnas
Län, formerly Skattemyndigheten i Kopparbergs Län [1998] ECR I-1897, paras 30 and 32.

The Advocate General: A Key Actor 603
General and then contradicting all of them92 or giving a partial Opinion. By
asserting the lack of options, Advocates General who are not convinced on
the admissibility of a reference for preliminary ruling, for example, would
not consider the substantive aspects of the question93 but would use the
Opinion to prove how convinced they are about the admissibility issue.94
Until 1992, the Opinion was pronounced orally in court by its author.
Thus, in the past, the Advocate General could arguably try to influence
the judges by using a specific tone of voice or even gestures.95 This tactic
has now been lost. However, AGs enjoy one advantage over the judges
in that they deliver their Opinions in their mother tongue whereas judges
must work in French. Thanks to this advantage, the AG’s reasoning can be
more personalised and subtle. However, two recent trends could alter this
personalisation: the increasing number of référendaires96 and the fact that
since 2004 some Advocates General of ‘rotating positions’97 have been giv-
ing their Opinions in English, German or French.98
The stronger the personal authority of the Advocate General, the more
influential his Opinion will be. Some elements, such as nationality per se,
do not have any influence on this authority.99
The Advocate General writes the Opinion alone (with the help of référen-
daires, or legal clerks) without any need to compromise with the other
members of a Chamber. The Opinion can therefore faithfully reflect the per-
sonality of the individual Advocate General, unlike the judgment, which is
the product of a consensus. Due to the personal nature of the Opinion, the
AG can use his personality to try to convince the judges of his argument.100
Like any judge who has to give an opinion on a case, the Advocate General
92 Opinion of AG Mancini in Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987]
ECR 4199.
93 Opinion of AG Darmon in Case 222/84 Marguerite Johnston v Chief Constable of
the Royal Ulster Constabulary (n 28); Opinion of AG Mayras in Case 140/79 Chemial
Farmaceutici SpA v DAF SpA [1980] ECR 1.
94 Even if one can ask if by doing so, Advocates General do give ‘reasoned submissions’ as
mentioned in Art 252-2 TFEU.
95 On the evolution of the oral presentation of the Opinions, see O Due, ‘Looking
Backwards and Forwards’ in Amicale des référendaires et anciens référendaires de la CJCE et
du TPI, La Cour de justice des Communautés européennes 1952–2002: bilan et perspectives.
Actes de la conférence organisée dans le cadre du cinquantième anniversaire de la Cour de
justice (Brussels, Bruylant, 2004) 25.
96 From one ‘attaché’ (as mentioned in the Rules of Procedure of 1953), to a second
‘référendaires’ in 1979, a third one in 1987 and a forth one in 2008. Since 1957, the référen-
daire is not mentioned in the Rules of Procedure.
97 See below, part IV.
98 See L Clément-Wilz (n 2) 530.
99 Nationality can have an indirect influence. It certainly matters whether you have been an
AG for a longer period, which is only possible if you come from certain Member States.
100 As R Odent said about the Commissaire du gouvernement, it is ‘a function that gives
to those who are called to exercise it the best opportunities to put their personality forward’
(R Odent, Contentieux administratif (Paris, Dalloz, 1980 reprint in 2007) 974.

604 LAURE CLÉMENT-WILZ
calls upon his/her ‘background knowledge’,101 taken from personal life and
‘normative knowledge’102 acquired throughout his/her professional career.
Only the Advocate General actually reveals the product of his/her personal
work. Moreover, it is the very role of the Advocate General to develop a
personal and critical view on the case law as opposed to the judge,103 whose
primary role is to decide the case.
C. Advocate General, Apart from the CJEU
An original way of thinking can be produced by the Advocate General
because he/she is arguably situated at the periphery of the Court of Justice.
As President Lecourt noted, the Advocate General is useful only if he is
far enough away from the case104 and hence apart from the Court. From
an institutional point of view, this explains why the Advocate General can
then be presented as an independent and important voice above the current
litigation.
Despite the argument above, both the legal status and the role of the
Advocate within the decision-making process show the ambiguity of his/
her position. First of all, like judges, the Advocate General is independent
from the Member States and the European Union institutions. Unlike
them, however, the Advocate General’s independence is also a fundamen-
tal part of the role itself within the CJEU.105 This means that he/she must
remain independent from the judges themselves. Furthermore, it means the
Advocate General has the duty to think independently from the case law
of the CJEU, and from Union Law in general. The Advocate General must
remain independent from common or mainstream thoughts or perceptions,
or any element that could alter his consideration and analysis. In that sense,
the Advocate General has the duty to think about and criticise the case law
of the European Court of Justice because he is not part of it.
Transparency is also fundamental to the Advocate General’s role. The
Opinion is pronounced in open court and is published in all of the official
languages of the European Union. Right from the Treaty of Paris, the pub-
licity given to Opinions makes the Advocate General a separate actor in the
CJEU. Indeed, the judges’ individual opinions are shrouded in the secrecy
101 G Fauconnier, Mappings in Thought and Language (New-York, Cambridge University
Press, 1997) 7.
102 Ibid.
103 On non-traditional skills and attributes of the Advocates General, see I Solanke,
‘Diversity and Independence and the European Court of Justice’ (2008/2009) Columbia
Journal of European Law 109.
104 R Lecourt, Allocution prononcée à l’occasion du départ de K Roemer (Luxembourg,
Publication de la Cour de justice des Communautés européennes, 1973) 5.
105 Art 252-2 TFEU.

The Advocate General: A Key Actor 605
of the deliberations.106 The only personal views emanating from the Court
are those of the Advocate General. Beyond this, TFEU provides that ‘the
Court of Justice shall consist of one judge from each Member State’ and
that ‘the Court shall be assisted by Advocates-General’. Did the authors
of the Treaty thus not consider the Advocate General to be part of that
Court? Furthermore, the Treaty provides that only judges take part in the
President’s election every three years.107 Despite these two articles, however,
Advocates General are in practice considered as members of the Court, as
the Court itself officially stated in Emesa Sugar.108
In addition, similarly to the French ‘rapporteur public’ (previously ‘com-
missaire du Gouvernement’), the Advocate General’s mission involves
explaining and analysing the case to assist both the judges—but also the
public.109 The Advocate General addresses judges, in order to help them
reason in the case, and the wider public, to help them to understand
the context and the reasoning of the Court.110 The Opinion allows the
Advocate General to create specific links with the outside legal world
(academics, legal advisers, European Institutions, national courts).111 Since
the definitive removal of the Hearing Report which presents the case (fact,
main issues, summary of parties’ submissions) to the parties from the judg-
ment in 1994, Advocates General did make some effort to explain with
greater details the facts and the legal issues of the case.112 In so far as the
judges had access to this Hearing Report, we can assume that the Advocates
General did this mainly in order to inform readers external to the Court
on the case law. It has even been the case that they directly addressed
national actors of the construction of Europe. For example, Advocate
General Jacobs, in the Weiner case, said that national judges should ask
for preliminary rulings only on issues of general importance or issues that
were relevant to the uniform application of law throughout the European
Union.113 In the same way, Advocate General Capotorti requested national
judges to improve the way in which they phrased their questions to the
Court, in order to enhance the collaboration between national judges and
106 Art 3, para 1 and 27 RP.
107 Art 253 TFEU.
108 Case C-17/98 (ord) Emesa Sugar (Free Zone) NV v Aruba [2000] ECR I-665, para 14.
109 F Lambert, ‘Faut-il maintenir le commissaire du gouvernement?’ (2007) Actualité
Juridique Droit Administratif 15, 778.
110 F Jacobs, ‘The Judicial Process in the European Court and the Role of the Advocate
General’ The Dominik Lasok lecture in the European law (University of Exeter Faculty of
Law, 1990).
111 See A Vauchez and A Cohen, ‘Law, Lawyers and Transnational Politics in the Production
of Europe’ (2006) 3 Law and Social Inquiry 1, 3.
112 Léger, ‘De la nature de l’avocat général à la Cour de justice des Communautés europée-
nnes’ (n 1) 270.
113 Opinion of AG Jacobs in Case C-338/95 Wiener SI GmbH v Hauptzollamt Emmerich
[1997] ECR 6495.

606 LAURE CLÉMENT-WILZ
the European Court.114 When Advocates General stress the novelty or the
importance of the decision that the Court is about to take,115 or indicate
how complex the issue is,116 they attract the attention not only of the judges
but also of a broader public.
Advocates General also participate in academic debate. They often use
non-legal phrases, such as ‘source State’,117 ‘exit restriction’ or ‘social
tourism’,118 whereas such phrases do not exist in the case law of the CJEU.
The use of the expression ‘reverse discrimination’ provides a good example
of this. This expression refers to a critique of a particular weakness in EU
law: the situation where mobile products or citizens from other Member
States are treated more favourably than national products or citizens.
Regularly invoked by litigants,119 the Court never used the expression in
its reasoning prior to the Kurt Order (2007).120 However, for more than
20 years, this expression could be found in many Advocates General’s
Opinions.121 By using this non-legal expression, Advocates General built a
114 Opinion of AG Capotorti in Case 115 and 116/81 Rezguia Adoui v Belgian State and
City of Liège; Dominique Cornuaille v Belgian State [1982] ECR 1665, para 29; See also the
Opinion of AG Slynn in 227/81 Francis Aubin v Union nationale interprofessionnelle pour
l’emploi dans l’industrie et le commerce (UNEDIC) [1982] ECR 1991, where the Advocate
General considered that the national court did not sufficiently explain the facts of the case;
See also the Opinion of AG Jacobs in Case C-316/93 Nicole Vaneetveld v Le Foyer SA and Le
Foyer SA v Fédération des Mutualités Socialistes et Syndicales de la Province de Liège [1994]
ECR I-763, para 7, where the Advocate General considered, on the contrary, that the refer-
ence was too long; see also the Opinion of Ruiz-Jarabo Colomer in Joined Cases C-397/01
to 403/01 Bernhard Pfeiffer and others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV
[2004] ECR I-8835, para 47.
115 Eg, Opinion of AG Roemer in Case 7/54 and 9/54 Groupement des industries sidéru-
rgiques luxembourgeoises v High Authority [1956] ECR 53, 115.
116 Eg, Opinion of AG Poiares Maduro in Case C-438/05 International Transport Workers’
Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007]
ECR I-10779, para 1; Opinion of AG Mengozzi in Case C-341/05 Laval un Partneri Ltd v
Svenska Byggnadsarbetareförbundet and others [2007] ECR I-11767, para 2.
117 Opinion of AG Geelhoed in Case C-170/05 Denkavit Internationaal BV and Denkavit
France SARL v Ministre de l’Économie, des Finances et de l’Industrie [2006] ECR I-11949.
118 Opinion of AG Léger in Case C-196/04 Cadbury Schweppes plc and Cadbury
Schweppes Overseas Ltd v Commissioners of Inland Revenue [2006] ECR I-7995, para 62;
Opinion of AG Ruiz-Jarabo Colomer in Case C-138/02 Brian Francis Collins v Secretary of
State for Work and Pensions [2004] ECR I-2703, para 75.
119 See, eg, Joined Cases C-321/94, C-322/94, C-323/94 and C-324/94 Criminal Proceedings
against Jacques Pistre and a [1997] ECR I-2343, para 4; Case C-168/98 Grand Duchy of
Luxemburg v European Parliament and Council of the European Union [2000] ECR I-9131,
para 22; Case C-355/00 Freskot AE v Elliniko Dimosio [2003] ECR I-5263, para 36.
120 Case C-104/08 (ord.) Marc André Kurt v Bürgermeister der Stadt Wels [2008] para
22). See also, in the gender discrimination area, Joined Cases C-231/06 to C-233/06 Office
national des pensions v Emilienne Jonkman and others v Office national des pensions [2007]
ECR I-5149, para 25.
121 See eg Opinion of AG Mischo in Joined Cases 80/85 and 159/85 Nederlandse Bakkerij
Stichting and others v Edah BV. [1986] ECR 3359; Opinion of AG Darmon in Case C-297/88
Massam Dzodzi v Belgian State [1990] ECR I-3763, para 2; Opinion of AG Fennelly in Joined
Cases C-64/96 and C-65/96 Land Nordrhein-Westfalen v Kari Uecker and Vera Jacquet v

The Advocate General: A Key Actor 607
bridge between doctrinal analysis and the case law. Advocates General can
easily participate in academic debates because their Opinions are translated
and widely communicated into all of the official languages of the European
Union. Furthermore, as a member of the CJEU delivers these Opinions, they
naturally have a stronger authority than opinions of academics, who have
to first prove their authority in the field.
Lastly, the decision-making process also leaves the Advocate General
on the sidelines of the CJEU. Indeed, once his/her Opinion is given,
the Advocate General does not take part in the deliberation process.
Furthermore, the proceeding does not sufficiently involve the Advocates
General, which is more problematic. Indeed, the Preliminary Report con-
tains no in-depth analysis of the case.122 The designated Advocate General
is thus the first one to fully analyse the case. The Opinion arguably helps
judges, or at least the Reporting Judge (and her legal assistant), the other
‘key-figure of the case’,123 in building the case: finding the relevant sources
of law, regulations, case law, presenting the national context of reference
for preliminary ruling if relevant, etc. In that sense, the Advocate General
‘unbuilds’ and ‘rebuilds’ the case for all the judges, and most of all for the
Reporting Judge. Thus, it can be problematic if the Advocate General is
merely considered as ‘extra manpower’. As Ritter puts it,124
If the institution of Advocate-General really is meant not merely as extra man-
power, but rather as a safeguard or double-check mechanism in order to ensure
that the [CJEU]’s judgments of first and last instance are correct, both in the
short term and in the long run, then the Advocates-General actually have a duty
to produce original thinking.
IV. REFORMING THE ADVOCATE GENERAL: SOME REFLECTIONS
Advocates General should arguably play a more integral part within the
Court system in order for him/her to gain a better insight into EU case
law.125 Another anomaly stems from the so-called ‘rotating system’ of 22
Advocates General out of 27.
Land Nordrhein-Westfalen [1997] ECR I-3171, para 1; Opinion of AG Stix-Hackl in Case
C-60/00 Mary Carpenter v Secretary of State for the Home Department [2002] ERC I-6279,
paras 57 and 58 or Opinion of AG Sharpston in Case C-212/06 Government of Communauté
française and Gouvernement wallon v Gouvernement flamand [2008] ECR I-1683 para 148.
122 See above, B.
123 A Arnull, The European Union and its Court of Justice, 2nd edn (Oxford, Oxford EC
Law Library, 2006).
124 Ritter, ‘A New Look at the Role’ (n 3 ) 771.
125 For an opposite view, see Sharpston, ‘The Changing Role of the Advocate General’ (n 1).

608 LAURE CLÉMENT-WILZ
A. Pleading for a More Integrated Advocate General within the CJEU
The Advocate General’s very originality relies on the dual aspect of this
role. Because the Advocate General lies between the judicial and academic
realms, s/he is able to remain relatively distant from the pending case and
thus to bring something more than simply being an extra pair of hands.
It is now time to evaluate whether the organisation and functioning of
the Court has achieved this balance, mainly because high quality, useful
Opinions are especially needed in the current context where the fact that
an increasing number of cases are heard by chambers and not by the full
Court or even the Grand Chamber, means that there is a higher risk of case
law incoherence.
The legal status of the Advocate General should be organised in such a
way as to maintain a good balance between these dual aspects of the role.
To find the right balance, the following question should be asked: How far
from the judges should the Advocate General be? On the one hand, the
Advocate General cannot be too close to the judges, because s/he should
be able to analyse and criticise the case law in order to deliver the most
precise and relevant analysis possible—the role of the Advocate General
is not to give a ready-made solution to the judges. Yet on the other hand,
s/he must be able to know the different strands of thought within the Court,
in other words to ‘feel the mood’ of the members, in order to understand
when it is the right moment to criticise or to confirm a solution or to offer
a synthesis.
In this specific context, the Advocate General role of helping the judges to
maintain the coherence of European case law, and hence EU Law remains
important. However, the balance has not yet been reached on a number
of different aspects. Some examples can be found in (too) early critiques
made by some Advocates General on freshly given judgments, such as AG
Jacobs in Leclerc-Siplec,126 or AG Léger in Altmark.127 Of course, this
does not mean these two Advocates General were not useful at all. Indeed
they brought new considerations on the case law that were echoed later
on.128 Another example relies on the case law related to the justification
of discriminating measures. In that field, the Court of Justice failed to give
a clear answer, confirming that mandatory requirements applied only to
indistinctly applicable measures129 but at the same time breaking down
126 See above, section II.
127 Opinion of AG Léger in Case C-280/00 Altmark Trans ECR I-7747.
128 See above, section II.
129 Case 113/80 Commission v Ireland (Irish Souvenirs) [1981] ECR 1625, para 11;
Case 177/83 Ringelhan [1984] ECR 3651, para 19; Case C-42/02 Peter Svensson and Lena
Gustavsson [1995] ECR I-13519, para 15; Joined Cases C-321/94 and C-324/94 Pistre [1997]
ECR I-2343, para 52.

The Advocate General: A Key Actor 609
this rigid distinction.130 The Advocates General arguably maintained (if not
concurred with) this contradicting case law. For instance, AG Tesauro in
the Safir case, reminded all of the orthodox view of the Court: ‘a particular
piece of legislation can be capable of justification either under the deroga-
tions expressly provided for in the Treaty or on grounds relating to the pub-
lic interest, depending on whether it is discriminatory or applicable without
distinction’.131 However, he did not ‘believe that the conclusion would be
any different if the Court were to decide, adopting the second approach,
to classify the measure at issue as applicable without distinction’.132 The
Advocate General left some uncertainty that we could find also in the
Decker case.133 Once again, this case law reveals that the task of bringing
coherence into case law is far from easy.134
In order to improve the Advocates General role, I would therefore propose
the following reforms. First, Advocates General should be considered as full
members of the Court, but the Treaty does not set out this reality. Hence,
Article 19 TEU should be modified to provide that: ‘The Court of Justice
shall consist of judges and Advocates General’. Furthermore, Advocates
General should take part in the election of the President. By changing these
two inconsistencies, Advocates General would be more integrated and
would feel more integral to the Court system. It would also pave the way for
any future change in this role in the judicial decision-making process.
In addition, when they write their Opinion, Advocates General do not
know anything about the Reporting Judge or the other judges’ opinions on
the pending case. After the delivery of the Opinion, they have no idea as to
how the judges responded to their Opinion until the judgment of the case
is given. They literally assist the Court because they construct the case. By
leaving this task to the Reporting Judge, Advocates General should there-
fore be given more time to analyse and explain the coherence of EU case
law than constructing the case for the judges.
130 Barnard, The Substantive Law of the EU (n 69) 166. See Case C-2/90 Commision v
Belgium (Walloon wastes) [1992] ECR I-4431; Case C-524/07 Commission v Austria (road-
worthiness of cars) [2008] ECR I-187, para 54.
131 Opinion of AG Tesauro in Case C-118/96 Jessica Safir ECR I-1897, para 34.
132 Ibid, para 36.
133 Opinion of AG Tesauro in Joined Cases C-120/95 and C-158/96 Nicolas Decker and
Raymond Kohll ECR I-1831, para 50. The Advocate General urges the Court ‘to dispel the afore-
mentioned ambiguities in the case-law’ but then does not help judges in doing so (para 50):
[T]he Court should either follow Svensson and rule that discriminatory measures include
those which indirectly give rise to unequal treatment as between providers of services estab-
lished in a given Member State and those not so established or, alternatively, confirm the
approach which appears to have been adopted in Bachmann, namely that measures which
do not formally lay down different rules for providers of services not established in the
Member State are still deemed to be indistinctly applicable. I would merely add that the
latter approach would appear at present to be more in keeping with the case-law in this
area considered as a whole. This does not of course alter the fact that a reappraisal would
be timely.
134 See above, section II.

610 LAURE CLÉMENT-WILZ
B. An Anomaly: the Rotating Positions of Advocates General
Only coincidence, political influence and successive enlargements explain
the current dual system of permanent and rotating Advocate General
posts, which involves giving some permanent posts to certain Member
States (currently France, Germany, United Kingdom, Italy and Spain) and
non-permanent posts to all the others. Treaties have never mentioned
Advocates General’s nationality. When the Court was created, finding a
balance between all the Member States seemed to have guided the found-
ing members. One of the Advocate General posts has logically been given
to France, because its representative offered to create the position itself.
Moreover, it seems that J Monnet himself pressed for giving this position
to the French M Lagrange.135 The seventh judge’s post was given to the
Netherlands, the Presidency of the Court to Italy and the Registrar to
Belgium. Another Advocate General post was given to Germany. Only
Luxembourg, the smallest country did not ‘obtain’ more than one judi-
cial post. In the new 1958 Court, Italy took the seventh judge’s post, the
Netherlands the Presidency. Germany and France kept the Advocates
General post, which shows how important his role was considered by
these two Member States.
In 1973, when Norway was still supposed to join the European
Communities together with the United-Kingdom, Ireland and Denmark,
Member States agreed on creating a third Advocate General post.136 JP
Warner, from the UK, was appointed on 1 January 1973. However, after
the withdrawal of Norway, a fourth post was created.137 This raises the
question why this post, given to to A Trabucchi, from Italy, was created
at all. The answer may lie in the fact that at that time, A Trabucchi was
already a Member of the Court, as the seventh judge. He could have been
maintained as an additional judge with the upcoming accession because
the number of Member States (and hence of judges) would still have
been even (from six to ten Member States). But with the withdrawal of
Norway, there was no longer any need for an additional judge. The cre-
ation of a fourth post of Advocate General allowed A Trabucchi to remain
in Court.138
135 N Candorelli Brawn, Commissaires et juges dans les Communautés européennes (Paris,
LGDJ, 1972) 96.
136 Act concerning the conditions of accession and the adjustments to the Treaties [1972]
OJ L73, 14, art 18.
137 Council Decision increasing the number of Advocates-General [1973] OJ L2/29.
138 It is only a hypothetical explanation, as Trabuchi’s nomination decision cannot be
found. It is however the explanation given by one author (K Borgsmidt, ‘The Advocate
General at the European Court of Justice: A Comparative Study’ (1988) 3 European Law
Review 106, 206).

The Advocate General: A Key Actor 611
Furthermore, the same year, both Germany and France kept their
Advocate General posts. Then, the practice of maintaining two permanent
posts for the two ‘big’ Member States was established. This permanency has
been also used, in practice, by Italy and the UK.
After Greece’s accession in 1981, a fifth post was created and a Dutch
Advocate General, P VerLoren van Themaat was appointed. Here again,
political reasons explain this decision. Indeed, this fifth post was created on
the same day as the creation of an eleventh judge, attributed to France. It
was considered as being a concession made to small Member States.139 In
1986, the Act regarding conditions for the accession of Spain and Portugal
provided for the increase in number of the Advocates General to six.140
The Portuguese JL da Cruz da Vilaça was appointed in accordance with the
Accession Act. It also means that P VerLoren van Themaat’s mandate was
not renewed in the Netherlands’ favour, as opposed to the British, French,
German and Italian posts. As a consequence, this became the starting point
for this dual regime of permanent and rotating posts. In 1994, with the new
EU enlargement, Member States decided to increase the number of AGs to
eight.141 For the first time in a primary legal source, the dual system was
mentioned.142 The Joint Declaration annexed to the Lisbon Treaty also
confirmed this system, giving a permanent post to Poland if the number
of Advocates General was to be increased to eleven.143 To conclude, this
practice of a dual regime is now provided in a Joint Declaration whose
139 L Neville Brown and T Kennedy, The Court of Justice of the European Communities,
5th edn (London, Sweet and Maxwell, 2000) 71. See also J Charpentier, ‘A propos d’une
récente augmentation du nombre de magistrats de la Cour de justice des Communautés euro-
péennes’ in Études de droit des Communautés européennes: Mélanges offerts à Pierre-Henri
Teitgen (Paris, Pedone, 1984) 67, 77.
140 Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese
Republic and the adjustments to the Treaties [1972] OJ L302, 23.
141 Treaty between the Member States of the European Union and Norway, Austria, Finland
and Sweden [1994] OJ C 241, 9, art 157.
142 ‘Joint Declaration on Article 157 (4) of the Act of Accession’ in Treaty between the
Member States of the European Union and Norway, Austria, Finland and Sweden [1994] OJ
C 241, 9, 381. This Joint Declaration provides that:
The new Member States will take part in a system involving the rotation of three Advocates-
General in the alphabetical order applied at present, it being understood that Germany,
France, Italy, Spain and the United Kingdom will not take part in that system, as they will
have a permanent Advocate-General each.
143 Declaration on Article 252 of the Treaty on the Functioning of the European Union
regarding the number of Advocates-General in the Court of Justice:
The Conference declares that if, in accordance with Article 252, first paragraph, of the
Treaty on the Functioning of the European Union, the Court of Justice requests that the
number of Advocates- General be increased by three (eleven instead of eight), the Council
will, acting unanimously, agree on such an increase. In that case, the Conference agrees
that Poland will, as is already the case for Germany, France, Italy, Spain and the United
Kingdom, have a permanent Advocate-General and no longer take part in the rotation sys-
tem, while the existing rotation system will involve the rotation of five Advocates-General
instead of three.

612 LAURE CLÉMENT-WILZ
legal value is still under discussion. The legitimacy of such a dual regime,
which is solely based on nationality and elitism, is still arguable even if the
Member States are not ready to depart from it.
V. CONCLUSION
The two first Advocates General inherited the prestige of the ‘rapporteur
public’ before they formally commenced their role. They helped the judges
to identify and create a European vision. However, on matters of substance,
such as direct effect and primacy, implicit competences, and free movement
of workers, the Advocates General’s Opinions were less pioneering than the
decisions of the Court.
Especially from the 1970s, the Advocates General also helped to estab-
lish and develop a European acquis, and carried out the task of analysing
elements of the various CJEU cases. Even if the Court of Justice and the
Advocates General were going in the same direction, they were not in abso-
lute agreement on every issue. From the beginning of the 1990s, Advocates
General, fully independent, started to bring some critiques to the settled
case law. These criticisms effectively showed that an internal debate did
actually exist and ensured the openness of the decision-making process
within the Court and brought a breath of fresh air into the intellectual space
of the Court of Justice.
One of their valuable tasks is to promote coherence in the case law. But it
is not an easy one, as shown by case law on the definition of what a ‘restric-
tion’ is for the purposes of establishing a breach of the free movement pro-
visions and by the case law on justification of direct discrimination.
One way to improve the role of the Advocate General is arguably to
promote institutional reforms within the Court. It is clear from the Treaty
that the Advocate General is integrated into the Court but s/he is arguably
situated at the periphery of the Court of Justice. Indeed, the Advocate
General does not take part in the election of the President and the pro-
ceedings do not sufficiently involve the Advocates General. The current
rotating system should also be questioned.
Because of the case law of the European Court of Human Rights that does
not allow the Advocate General to be part of deliberation,144 and because
the Advocate General is not a judge and does not decide on the case, there
is no reason to make the Advocate General part of deliberations. But the
Advocate General could be more integrated in the judicial decision process.
Article 44 of the Rules of Procedure of the CJEU could even be modified to
state that: ‘The Preliminary Report shall contain ... the first propositions on
144 Vermeulen v Belgium [1996] EHRR 224.

The Advocate General: A Key Actor 613
the main issues of the case’. The Court could agree to make the Preliminary
Report more substantial, or indeed make any other changes, so long as the
dual role of the Advocate General was well understood as a thinker of the
law at the heart of the European trial (penseur du droit au coeur du procès
européen).