The Advocate General and EC Law by Noreen Burrows and Rosa Greaves

Oxford : Oxford University Press , 2007 , xxv+317 pp , hb £60.00 . The Advocate General is one of the most distinctive features of the European Court of Justice. Officially required to ‘assist’ the Court, by making ‘reasoned submissions on cases brought before the Court’ (Article 220 EC), the AG's role in practice may be described inter alia as research assistant, hand-maiden, mouthpiece, interlocutor, mediator and pioneer. This book contributes to an established body of literature on the Court, much of which comes from political science or sociological perspectives, and much of which is written by scholars in the USA. The authors' approach here is one of traditional legal scholarship, in which close analytical reading of legal texts yields insights and conclusions concerning the development of Community law and roles that the Advocates General play in that development. The book has several inter-related aims. First, it aims to ‘explain the potential significance of the submissions of the AG in the Court's reasoning and decision-making’ (1). In this respect, the book follows authors such as Craig, de Búrca and Weiler by disaggregating the Court as an institution, rather than assuming it is a unitary actor, and emphasising the differences of approach, style and substantive legal argument that different members of the Court adopt. Second, the book aims to explore the question of whether the AG does ‘assist’ the Court. What does ‘assisting’ mean in this context? Third, the book aims to ‘assess the contribution of the AG in developing principles of European Community law’ (1). Finally, the book contributes to the legal history of the Court and the Community legal order. Following the introductory chapter, in which the book's aims and the methods of research employed are set out, chapter 2 explains the role of the AG in the various procedures of the Court. Chapter 3 considers whether the lack of a ‘right to reply’ to the AG's Opinion is a breach of the fundamental human rights of parties before the Court under Article 6 ECHR. After reviewing the jurisprudence, the authors reach a rather guarded conclusion. Article 6 is of relevance to the Court, given that the Court does determine the civil rights and obligations of individuals in increasing numbers of cases. I would add that the Court can also now concern itself with the rights of individuals in criminal proceedings (see Case C-105/03 Pupino [2005] ECR I-5285). The authors note that ‘practical reasons [such as the volume of additional work generated] should not stand in the way of application of human rights principles’ (55). The Court's credibility, and the need for justice to be seen to be done, argues in favour of the Court at least re-examining its procedures in the light of the Article 6 jurisprudence. But the answer to whether the current practice is ‘Article 6 robust’ is not a clear ‘yes’ or ‘no’– rather there is ‘at least an arguable case that the parties to a dispute should have the right to respond in some way to the submissions of the AG’ (56). The first of the book's two main substantive sections covers four selected AGs (Lagrange, Van Gerven, Jacobs and Warner), and examines their contributions in four selected areas of Community law. The second section covers three further areas of law, but looks at the contributions of several AGs in respect of each. The substantive areas of law covered by the book are direct actions before the Court, the preliminary rulings procedure, equal treatment of men and women, intellectual property law, competition law, direct effect, state liability, and citizenship. These are all central topics in Community law, covered in undergraduate and postgraduate courses. Similar to Arnull's approach, the book thus uses the device of considering the Court (or rather its AGs) in order to pursue a detailed discussion of substantive Community law in significant areas. In the first of these two sections, the authors seek to answer three questions. (1) What is the influence of the AGs' Opinions on the work of the Court? (2) Can assertions about particular AGs that have been made in the existing literature be substantiated? (3) Do individuals occupying the role of AG perform it differently? In drawing their conclusions, the authors could have devoted more space to explicit discussions of the parameters of the answers they were expecting, or to their working hypotheses. For instance, on question 1, what qualities of influence might we expect? Might individual AGs have particular propensities to certain concepts, principles or ideals; particular ideas of ‘Europe’; particular ideas of Community law; a particular ‘mission’, and so on? On question 2, the authors seem to identify only two assertions about particular AGs (van Gerven made a distinctive contribution to equal treatment law (89); Warner was part of the Court's ‘activist’ phase (166)). Perhaps more could have been made of this point. The difficulty, of course, is that many of these assertions are only ‘grey’ information – known to aficionados of the Court privy to off-the-record statements, but not formalised in academic or other writing in the public domain. The answer to the third question seems self-evident – of course individuals do things differently. What is perhaps more interesting (and what the authors may have been getting at?) are the parameters within which such difference is permitted within an organisation or set of relationships (here the Court). Presumably there is a closed range of permitted styles or approaches that AGs may adopt. Attempting to understand the contours of that range may be an interesting research agenda that may yield insights into the scope of the AG's influence (question 1). So, we discover that Lagrange's approach was essentially ‘inward looking’, eager to warn the Court of the implications of various legal choices (62–3). By contrast, Van Gerven adopts both an inward and an outward looking approach, including a role in explaining the Court's jurisprudence to legal practitioners (92). Warner's common law approach explains various positions in his Opinions, such as the practice that a later contradictory judgment overrules an earlier one and the view that courts have wide powers and should apply principles of natural justice (172–3). All of these approaches are presumably within the permitted parameters, as all of these AGs are acknowledged to have influenced the Court, at least in so far as the methodology adopted by this book is able to discern. Fundamental problems exist, noted carefully throughout the book, in determining causality in the relationship between an AG Opinion and a judgment of the Court, and, consequently the relationship between AGs' Opinions and the development of Community law (the central themes of the book). Why did the Court follow a particular Opinion, either in conclusion adopting similar reasoning, or in conclusion but with different reasoning? Was the law so obvious that there could be no question of the Court ‘following’ its AG? Or did the AG somehow persuade the Court to adopt a particular approach? To some extent, the method of traditional legal scholarship – the close reading of legal texts and the drawing of inferences from their textual relationships – can illuminate these questions. Where it can be shown that genuinely different approaches in legal reasoning were equally acceptable, and the Court followed the AG in selecting among competing conclusions and reasons for those conclusions, we may say that it is likely that the AG influenced the Court, and thus the development of Community law. In doctrinal scholarship, causal links are assumed to arise from the relationships between legal texts – for instance, the judgment of a lower court applying a point of law decided in a higher court is assumed to be ‘caused’ by the statement of the law in the higher court (we usually say ‘followed’). In adversarial traditions, we may even infer that a particularly effective advocate ‘influenced’ a court in adopting a particular approach to a case. In the context of this book, of course, the AGs and the Court are in a relationship which bears some similarities to the relationship between higher and lower courts, and to the relationship between advocates and judges, but also differs in key respects. The Court does not appeal the Opinion of the AG, is not obliged to follow it, or to explain its decision not to follow it. The AG does not act for either of the parties in advocating a particular approach. Moreover, the relationship between the AG and the Court is obfuscated by the role of the Reporting Judge, who is responsible for drafting the judgment. As the authors point out in the chapter on Jacobs, if the law develops in a particular way, consistently with the Opinions of the AG, this may be coincidental to the fact that the same Reporting Judge is involved in all or most of the relevant cases. The combination of methodology and the special relationship of the AG to the Court makes it impossible to reach firm conclusions about the effectiveness of individual AGs in implanting their ideas or approaches in the Court's jurisprudence. In the absence of ability to show causality, all the authors can show is likelihood. Thus, it is likely that Van Gerven's reasoning on equal treatment of men and women influenced the development of Community sex equality law. Warner is likely to have persuaded the Court to accept and embed the right to a fair hearing in the Court's competition law. However, the evidence is inconclusive as to whether Jacob's reasoning on intellectual property law influenced the development of the Court's approach. The authors also offer some possible explanations of why an individual AG may have adopted a particular approach. Although the authors have talked with many AGs and Judges in the Court, as well as to their Legal Secretaries, these interviews were not used in a scientific or systematic way in this book. Rather, these explanations emanate from the publicly available information about the previous professional occupations of the AGs studied. A table of relevant information is included (299–307), although the information is not explicitly drawn upon in every substantive chapter. So, for instance, Lagrange's influence in developing the Court's jurisprudence on judicial review, such that the Court becomes an administrative/constitutional court in a Community whose administrative bodies are subject to the rule of law, is explained by Lagrange's background as a specialist French administrative lawyer (87). His ‘vision’ of the Community as a ‘strong legal order’ explains his influence in widening the Court's powers under the preliminary rulings procedure (88). Van Gerven's background in business and finance explains his keenness on certainty and lack of ambiguity in the cases on equal pay and pensions (123). Intriguing though these explanations are, I cannot help feeling that additional information and explanation might have been supplied. To give just one example, is Van Gerven's passion for equality and justice (91), leading to his championing of equal treatment, and deep understanding of the practical realities facing women in the workplace in contemporary Europe explained by a relationship with a significant woman in his life, such as a working daughter? For this kind of analysis, of course, a wider methodology would be necessary than that adopted in this book. To criticise the book for failing to take this opportunity would therefore be inappropriate. However, it is important to flag the opportunity for future research projects, adopting a more socio-legal or interdisciplinary approach, using for instance various sociological frameworks for analysis. Ongoing work on the AGs, such as Solanke's, is likely to yield such further insights (see I Solanke, “Studying the AG”, paper presented to Workshop on the Role and Function of the AG in a developed Community legal order in the 21st century, Glasgow, April 2008; I Solanke, “The AG in Context: Cause Lawyer, Networker or Mediator” paper presented to conference The Transformation of Europe, Oñati, June 2006). The second main substantive section contains chapters on the AGs and, respectively, the principle of direct effect; the principle of state liability; and the concept of EU citizenship. Chapter 8 covers direct effect. It considers the five decades since Case 26/62 Van Gend en Loos [1963] ECR 1, and focuses on one key question or concern in each decade. The chapter aims to consider the AG's approach in the key cases; to discern what kind of thinking influenced him; and to find out whether the AG understood the constitutional significance of the questions before the Court (189). On the third question, one would have thought that the answer is an obvious yes, and in general it is (213), but the authors find no evidence of this in Mayras' Opinion in Case 41/74 Van Duyn [1974] ECR 1337 (197). No overall conclusions appear to be reached on the first two questions. Approaches range from Roemer's Opinion in Van Gend, which uses comparative constitutional law and is therefore highly deferential to national constitutional traditions, and thus the governments of the Member States as authors of the Treaty; to the ‘succinct’, ‘lengthy’ and ‘comprehensive’ attempts of Van Gerven (Case C-271/91 Marshall No 2 [1993] ECR I-4367); Jacobs (Case C-316/93 Vaneetveld [1994] ECR I-763) and Lenz (Case C-91/92 Faccini Dori [1994] ECR I-3325) respectively on horizontal direct effect of directives (201), relying heavily on the Community as a constitutionalised legal order, none of which persuaded the Court. Chapter 9 aims to identify the contribution that AGs' Opinions have made to the development of the principle of state liability in Community law (218). The chapter draws out a distinction in the Opinions between, on the one hand, a focus on remedies and enforcement of individual rights; and, on the other hand, liability for wrongful conduct on the part of the state. Some evidence, though admittedly speculative, is found for the proposition that the original establishment of the principle of state liability owes its place in Community law to the AGs (231). Once the principle had been accepted, the AGs' Opinions made a major contribution to its development (235), through the detailed and coherent analysis each provided, especially that of Tesauro in Cases C-46/93 and 48/93 Brasserie du Pêcheur/Factortame III [1996] ECR I-1029. This Opinion assisted in the process of embedding the principle in Community law, and ensuring its relatively smooth reception in the national legal orders (262). The final substantive chapter analyses the case law on citizenship, using a three-stage historical framework adopted from Kostakopoulou's work. The chapter asks: ‘Did the AGs urge the Court to view the provisions of the Treaty as a means to engineer change and did they provide the Court with plausible legal justifications for interpreting the citizenship provisions in an expansive ... way?’ (266). The answer is a qualified yes. At least in the foundational phase of the Court's jurisprudence on citizenship (Case C-85/96 Martinez Sala [1998] ECR I-2691), the AG's Opinion did so. In later phases, the AGs fed the Court with ideas that may not have emerged in a specific case, but were part of the overall context within which the Court developed its thinking. What is more difficult methodologically is to show whether the AGs were instrumental in effecting that change in approach to the Court's view on the Treaty's citizenship provisions (263). The authors conclude that La Pergola in Martinez Sala‘undoubtedly ... influenced the future direction of Community law’ (287, see also 269, 272). For the reasons already articulated, it is rather difficult to sustain this kind of position with such certainty, relying on doctrinal legal analysis alone. In the concluding chapter, the authors return to the second of their main aims, to determine whether the AG ‘assists’ the Court, as required by the EC Treaty. The authors found four ways in which AGs do assist the Court: by arguing for innovation based on a teleological approach; by arguing for consolidation based on existing case-law or legislation; by arguing against past case law; and by arguing for a strict interpretation. The second of these seems particularly important: especially where Community law develops through judgments delivered by Chambers, the case law of the Court may become or seem inconsistent. Then it is useful for the Court (and for the wider legal community) to hear an individual, reasoned exegesis of the law. It may prompt further thinking on the appropriate way to take the law forward, or apply it in new circumstances (295). The authors also conclude that there are circumstances, brought to light by the book, in which the AG does not assist the Court. These are where the AG's Opinion is too lengthy or too complex to be easily digested by the judges: ‘Extended essays are not helpful’ (297). One of the key themes to emerge from the book is the idea of the AG Opinions as dialogue (293). Dialogue takes place most obviously between the AG and the Court in a particular case on which the AG gives her or his opinion. There may also be dialogue over time between the Court and AG Opinions in previous cases. The AGs, although technically not in a collegial relationship, are also in dialogue with each other: various examples are given, such as the case law on direct effect. The principal benefits of this dialogue are two-fold. First, the dialogue is reasoned. AG Opinions are all in a judicial style. They give legal reasoning for a particular solution, or different solutions, and often offer an evaluation of which solution – legally speaking – is preferable. Second, the dialogue is open. Unlike the Court's rulings, the AG Opinions are fully attributed and transparent to all. In a European Union of now 27 and soon to be more Member States, it is simply not feasible to sustain the role of the AG on its current basis. As Sharpston has recently pointed out, the figures simply do not add up. There are now 26 Reporting Judges, and only 8 AGs. The Court is expected to adjudicate over an apparently ever-increasing range of areas. A key insight of this book is therefore that, in developing the role of the AG, we must not lose the valuable open public dialogue of legal reasoning that occurs between the AG and the Court. Because of this, I do not agree with the authors' admittedly provocative proposal to simply abolish the AG (297–8). Unless such a proposal were accompanied by allowing the Court to articulate much more clearly reasoned judgments, and, necessarily, allowing its judges to publish dissenting opinions, simply abolishing the AG would render the Court's work significantly less transparent and subject to scrutiny. It would probably also make the law less clear, at least in areas where it is under development or where competing legal reasons account for particular substantive results. Most of the substance of the book contains a high-quality, detailed, careful exposition of the interactions between the Opinions of the AGs and the rulings of the Court in key areas of the Court's jurisprudence, stretching back to the beginnings of the Community. For instance, the chapter on Lagrange illustrates how early in the Court's case law key constitutional issues arose, many of which were not explicitly considered as such until much later (85). The authors elucidate the different options in legal approach and reasoning that were open to the Court at different moments in the evolution of Community law. If we look carefully at the history of the Court's jurisprudence, it will improve our understanding of its current position. As Pierson noted, the EU is better examined as a moving picture than as a snapshot. In carefully unpacking the earlier phases of the Court's jurisprudence, through the lens of the AG Opinions, Burrows and Greaves tell us where we have been, and also where we are

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