It has gone rather unnoticed, but the Court of Justice, after 7 October 2015, will be the home of eleven Advocates General. The Declaration of the Treaty of Lisbon, according to which the number of Advocates General would rise from eight to eleven, is about to be fully implemented, once the Bulgarian Advocate General joins in. In 2013 a ninth Advocate General came on board, providing Poland with its permanent Advocate General (in line with France, Germany, Italy, UK and Spain). Now is the time for other two Advocates General to join the Court, in representation of smaller Member States that will rotate in the appointment of the remaining five positions.
It is quite a mystery if this reform will change the Court or the role of the Advocates General in any way. Going from eight to eleven does not sound too revolutionary, certainly not in contrast with the doubling of the General Court that will soon come into force. Also, the increase of Advocates General would even seem to be a logical outcome of enlargement: if the Court went from having 15 to 28 judges, it is reasonable that a proportionate number of Advocates General assists the Court.
However, I have the feeling that the increase of Advocates General might be more transformative than expected.
First and foremost, the increase has been accompanied by the creation of an elected First Advocate General, whose role will be, within a mandate of three years, to represent the collège of Advocates General and attribute cases to its colleagues. This is a very important development, inasmuch it creates a certain degree of competition among Advocates General, as well as some degree of political choice and respresentation. Although the appointment of the First Advocate General belongs to the General Meeting of the Court of Justice, the proposal is made after a vote of the Advocates General, so it is up to them to choose who will represent them collegially inside the Institution.
Second, the arrival of two more Advocates General takes place at the same time that a new President of the Court takes office. A new presidential mandate for a new President, who will start working with a new First Advocate General, in the context of a reinforced and enlarged collège of Advocates General that will now count with eleven members. It is obvious that a new time and dynamic has arrived for the traditional meetings of Advocates General and in their relationship with their peer judges. The sentiment of a brotherhood of Advocates General (le collège des avocats généraux) is something that exists within the Institution, but now it can be more clearly expressed and materialized, mostly in the person of the First Advocate General.
Third, with eleven Advocates General there is a guarantee that the diversity of legal traditions will be reflected in the Opinions of the Advocates General at all times. This will enhance the legitimacy of the Court overall, but also of the role of the Advocates General, who could sometimes appear to be a bit distant from the reality and practice of new Member States, like the Nordic or Eastern European States.
But above all, the arrival of two more Advocates General might put an end, or at least soften up, a feature that has been irritating EU lawyers for several years: the adoption of Judgments with no Opinion of the Advocate General. The Nice Treaty introduced this possibility that has unfortunately become the rule nowadays, to a point that, at present, Opinions have become the exception, thus contributing to a relentless erosion of the role of the Advocate General. If Opinions can be avoided in most cases, why not get rid of them completely? This idea might have been in someone’s head after the entry into force of the Nice Treaty, a thought that has probably become more and more prominent as the number of Judgments increased and the number of Opinions diminished (at least proportionality vis-à-vis Judgments).
Hopefully, having eleven Advocates General will allow the Court to rule with an Opinion of the Advocate General in all cases, or at least in most cases. It is true that infringement procedures might be dealt without an Opinion when the defendant Member States does not contest the Commission’s claims. However, it is crucial that the Advocates General have a say in all preliminary references solved by a Judgment. If the reference is clearly answerable in light of the case-law, then article 99 of the Rules of Procedure must apply. However, the current practice of solving most references with Judgments and not Orders, and doing so at times with no Opinion of the Advocate General, is something that is difficult to understand.
The Court of Justice is still a unique jurisdiction on many counts, but one of them is the uniqueness of its decision-making process. By having a jurisdiction that allows no dissents from its judges, that reasons in short and concise phrases, that renders judgments for twenty-eight national legal orders, and that needs a reinforced legitimacy in order to face claims of authority from other jurisdictions, the Advocate General is an essential tool in keeping the machinery of the Court (and its authority) running smoothly. The Court benefits like no other jurisdiction from the “double-look” that the Treaties ensure by giving a say to both a chamber and an Advocate General. To argue that Opinions delay the procedures, that they compromise the Court’s external image when differences of views emerge, or that they confuse journalists, markets, politicians and even lawyers, by creating the impression that the Opinion is the Judgment of the Court, is to simply misunderstand the entire history and functioning of European Law.
Of course Advocates General are not under attack. I very much doubt that any preconceived plan exists in order to put them on the same list as the judges of the Civil Service Tribunal. However, it is true that Opinions have been victims of subtle and maybe irrelevant decisions, but nevertheless surprising.
For example, when introducing a case number in the Court’s search engine, if the Opinion has already been made public it will not appear in the results. It can be accessed only by clicking on the file’s link, but it will not appear straight away. Eventually it will, but only when the Judgment is delivered.
Also, it is still very worrying to see that Views of the Advocates General in urgent preliminary procedures are not always published. An external reader, or a party to the main proceedings, can interpret this in many ways. It might have been the case that the Advocate General decided not to submit a View in writing. Maybe the Advocate General believed that the case did not deserve publication of his or her View. But it could also happen that the chamber decided not to publish the View, even if the Advocate General showed its willingness to have the View published. We really do not know, nor do the parties, but the experience of the French commissaire du gouvernement before the European Court of Human Rights should have showed the Court better.
Having eleven Advocates General could therefore be a turning point for the Court. Questionable practices could come to an end, whilst a reinforced collège des avocats généraux may enhance the ability of Advocates General to keep and even expand their scope of action within the Institution. Also, in a Court with five chambers of five judges and a rotating Grand Chamber, where the risk of incoherence poses serious threats to the authority of EU Law, a strong team of Advocates General may provide a crucial contribution to the preservation of the case-law’s integrity. Now more than ever, Advocates General are desperately needed at the Court of Justice. And never has it been easier for them, as it is today, to prove how crucial their role can be.