The entry into force of the Treaty of Lisbon has made numerous modifications to the provisions of the Treaty on European Union and the Treaty establishing European Community concerning the Court of Justice of the European Union (“Court of Justice”). Some of the changes result from the general change of the organisational structure of the European Union (e.g. abolition of the three-pillar structure), whereas others relate directly to the Court of Justice.
One of the amendments of the utmost importance for the functioning of the Court of Justice regards the provisions regulating the office of the Advocate-General. It was introduced in the Declaration no 38 on Article 222 of the Treaty on the Functioning of the European Union (“Declaration”) and relates to the possibility of increasing the number of Advocates-General in the Court of Justice.
It provides that when, in accordance with Article 252 (ex Article 222) first paragraph of the Treaty on the Functioning of the European Union (“Treaty”)[1], 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 event, it is stated that Poland will have a permanent Advocate-General, which has already been the case in Germany, France, Italy, Spain and the United Kingdom. Poland will no longer take part in the rotation system. The rotation system will therefore alter and will involve five Advocates-General, instead of three.
In opinion of the Helsinki Foundation for Human Rights the Advocates-General is of great importance in the functioning of the Court of Justice. Their duty is to make reasoned submissions on cases in open court which, in accordance with the Statute of the Court of Justice of the European Union, require their involvement. Advocates-General perform this function with complete impartiality (Article 252 (ex Article 222) of the Treaty).
It is within the powers of Advocates-General to present submissions in the matters being under consideration in the Court of Justice. Their opinions contain detailed analysis of the legal problem as well as the indication of the solution of the case. However, if the Court of Justice considers that the case raises no new point of law after the hearing of a Advocate-General, it may decide to determine the case without his submission (Article 20, fourth paragraph of the Statute of the Court of Justice, “Statute” [2]).
Advocates-General also present submissions on certain cases brought before the General Court in order to assist the General Court in the performance of its tasks. The detailed criteria for selecting such cases, as well as the procedures for designating Advocates-General are laid down in the Rules of Procedure of the General Court ( Article 59 of the Statute). Advocates-General also possess a number of other powers which relate directly to the functioning of the Court of Justice. For example, they make submissions on the possibility to dispense with the oral procedure when the appeal is brought to the Court of Justice against a decision of the General Court.
Advocates-General are chosen from persons whose independence is beyond any doubt. Moreover, they are selected from candidates who posses qualifications required for the appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence. They are appointed to the Court of Justice by the common accord of the governments of the Member States for a renewable term of six years.
In relation to the above, it should be stated that Advocates-General play an important role in the functioning of the Court of Justice. First, they are all experts in the field of law. Second, since their main role is to make submissions that provide comprehensive analysis of the legal problem, in many cases their opinions are of undeniable importance for a detailed appreciation of the issues at stake. The submissions provide background to a particular case and identify legal problems for the Court of Justice’s consideration. Therefore they provide great inspiration and help to deliver judgements in important cases that raise new legal issues. This, in consequence, creates a situation where the knowledge and experience of Advocates-General exercised in their numerous duties contributes significantly to the proper functioning of the Court of Justice and high quality of the judgements delivered.
Therefore, the increase of the number of Advocates-General would be beneficial for the Court of Justice. This argument was also raised by the Confèdèration Fiscale Europèenne in its “Opinion Statement on Court of Justice Advocate General Opinions in Tax Matters” . The organization expressed its regrets that more and more judgements are delivered without opinions of Advocates-General. It also stated that the submissions do not only allow for additional reflection on a case, but also allow reference to positions developed in the literature. The organization also highlighted that, by contrast, a judgement is usually short and not always very explicative.
The Confèdèration Fiscale Europèenne, in its opinion, also indicated that the recent enlargement of twelve new Member States has resulted in the increase in the number of judges, however, not in the number of Advocates-General. The unchanged number of Advocates-General, which is eight, is thus insufficient to allow for their participation in all significant cases.
The issue under consideration is becoming of particular importance. Following the amendments of the Treaty of Lisbon there may be a visible increase in the number of cases before the Court of Justice, especially in the area of rights and freedoms of individuals. As a consequence of the disappearance of the three-pillar structure and the fact that Article 35 EU Treaty and 68 EC Treaty were repealed, the jurisdiction of the Court of Justice extends to the entire law of the European Union, which also includes the area of Freedom, Security and Justice. Thus, the Court of Justice has been conferred general jurisdiction to give preliminary rulings in this respect. Interestingly, the increase of cases relating to the area of freedom, security and justice has already been noted in the Annual Report of 2009[3]. The crucial issue is that the area of freedom, security, and justice relates directly in its purpose to problems regarding the protection of fundamental rights. Furthermore, Charter of Fundamental Rights of the European Union has become a binding legislative instrument with the same legal status as the Treaties. The entry into force of the document is of high importance, as it indicates that the European Union is no longer only an economic union, but also a union focusing on the individual and their rights. The binding nature of the Charter means that all EU legislation must be passed not only within the scope of EU competence but within the confines of fundamental rights. As such, the Court of Justice has competence to rule on legislative compliance with the Charter and to strike down offending legislation. National courts hold a crucial function as a guarantor of these rights and freedoms through preliminary references, as they have competence to issue remedies in domestic law and implement the results of preliminary reference interpretations to individual litigants.
Charter of Fundamental Rights of the European Union will enable the direct protection of fundamental rights within the European Union. The Charter’s inclusion in the Treaty of Lisbon and its entry into force gives significant power to individuals, as it provides all European Union citizens with enforceable rights against implementation by Member States of European Union legislation that violates Charter rights and principles. Because this is a cause of action increasing protections afforded to citizens, broadening the responsibilities of national courts, and expanding the competence of the Court of Justice, many of new developments are sure to arise bringing diverse and complex legal issues and controversial questions before the court. As the Court of Justice debates the meanings of European Union fundamental rights affecting all EU citizens, the need for an Advocates-General’s reflections is greater, but less available, than ever.
Recent legislative changes may result in the increasing number of preliminary questions. There is a growing number of applications of the European law and provisions having impact on fundamental rights. Since European law can be of complicated nature, national courts may be unable to pass a judgement on their own. This would result in the growing number of preliminary rulings, which provide an adequate interpretation of the European law.
At the same time, there is a growing jurisprudence of the Court of Justice in such areas as anti-discrimination law or rights of European Union citizens, including, for example, positive measures to remedy gender discrimination[4], the substantive provisions of Directive 2004/113/EC[5], discrimination in education[6]. Important questions have also been raised on the nature of indirect discrimination[7], age discrimination[8]. It is likely that this trend will continue, increasing the need for the in-depth reasoning that Advocates-Generals provide to clarify the judgments of the Court and the responsibilities of states.
Due to the amendments that have been introduced by the Treaty of Lisbon, the Helsinki Foundation for Human Rights believes that there will be a considerable increase of new cases pending before the Court of Justice. Due to the nature of the provisions which recently entered into force, it is justified to presume that there will numerous proceedings where new points of law regarding fundamental rights and freedoms of individuals will be raised. Therefore, many cases will demand the participation of the Advocate-General and their opinion.
In relation to the above, as well as taking into consideration the contribution of Advocates-General to the work of the Court of Justice, it is unquestionable that the increase of their number brings benefits. It provides a guarantee not only of the swiftness of the proceedings, but also of the high quality of the Court’s judgements in precedential cases. Therefore, the Helsinki Foundation for Human Rights would like to kindly encourage the President of the Court of Justice of the European Union to undertake all necessary steps in order to introduce the increase in the number of Advocates-General within the Court of Justice. The decision of the extension of the number of Advocates-General would be in compliance with the binding European Union law introducing such a possibility. It should be noted that the provisions of Declaration no 38 constitute a common consensus achieved by Member States during the negotiations on the shape of the Treaty of Lisbon. According to the Helsinki Foundation for Human Rights, the implementation of the existing law is a proper and expected reaction. It would lead to the enforcement of binding legal regulations aiming at improving the effectiveness of the functioning of the Court of Justice of the European Union.
[1] Consolidated Version of the Treaty on the functioning of the European Union, Official Journal of the European Union, 9 May 2008, C 115/47
[2] Protocol (No 3) on the Statute of the Court of Justice of the European Union, Official Journal of the European Union, 9 May 2008, C 115/210
[3] Confèdèration Fiscale Europèenne in its “Opinion Statement on ECJ Advocate General Opinions in Tax Matters”, October 2009, available at: http://www.cfe-eutax.org/sites/default/files/CFE%20Opinion%20Statement%20on%20ECJ%20case%20Auto%20Lease%20Holland%20BV.pdf
[4] Commission v. Greece, 26 March 2009, case no. C-559/07
[5] Association Belge des Consommateurs Test-Achats and Others, 1 March 2011, case no. C-236/09
[6] Bressol and Others at Chaverot and Others, 13 April 2010, case no. C73/08
[7] Preliminary Reference, Amedee v. Garde des sceaux, lodged 8 December 2010, case no. C-572/10
[8] Preliminary Reference, Land Berlin v. Alexander Mai, lodged 16 June 2010, case no. C-298/10
*Irmina Pacho – lawyer at the Helsinki Foundation for Human Rights
