An advocate general is a magistrate who assists the Court of Justice of the European Union (CJEU) in the performance of its functions. An advocate general is responsible for presenting an ‘opinion’ on the cases assigned to them with complete impartiality and independence.
Initially, the CJEU had two advocates general, one French and one German. This number increased over time and, eventually, a number of advocates general posts were permanently assigned to the larger Member States, with the remaining posts rotated among the smaller countries. According to Article 252 of the Treaty on the Functioning of the European Union (TFEU), ‘the Court of Justice shall be assisted by eight Advocates-General’ but, by request of the court, ‘the Council acting unanimously, may increase the number of Advocates-General’. Currently, there are 11 advocates general before the CJEU.
The role of advocate general is defined by Article 253 of the TFEU, which states:
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.
(Article 253, TFEU)
Like judges, advocates general must be entirely independent and have the same qualifications as those in the highest judicial offices in their Member State. They are appointed by common accord of the governments of the Member States for a term of six years, following consultation by a panel made up of former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence (one of whom is nominated by the European Parliament). A partial replacement of advocates general occurs every three years. Advocates general have the same privileges as judges, such as immunity, and they cannot be removed from office before the end of their six-year term. They may be re-elected.
In general, a case is argued at a public and oral hearing held before the bench and an advocate general. The judges and the advocate general may put to the parties any questions they consider appropriate. The advocate general then analyses the legal aspects of the case. Some weeks later they put forward, completely independently of the CJEU, the response they think should be given (their opinion) before the CJEU in open court.
In a large majority of cases, the judges give a judgment with an opinion. However, if it is decided that the case raises no new question of law, the court may decide, after hearing the advocate general, to give their judgment without an opinion. Judgments are pronounced in open court several months after the advocate general gives their opinion. Both judgments and opinions of the advocates general are available on the CJEU’s website (CURIA) the day they are delivered.
Unlike the judges of the CJEU, whose opinions are written in formal language often using standard phrases and wording from earlier judgments, the advocates general can choose their own style. They have the freedom to propose innovative solutions, express their personal opinion, and take into account international instruments or the laws of non-EU countries. Advocates general consider the interpretive alternatives and various options before putting forward their solution.
As the TFEU does not allow for dissenting opinions to be filed by the CJEU judges, the opinions of the advocates general play an important role and are often referred to in later cases.
Although the CJEU is not bound by the opinions of the advocates general, it seems that in the majority of cases judges tend to follow the solution put forward in the opinions.
Access to judicial process ; complaints to the European Court of Justice ; direct effect ; Euro-litigation ; European Court of Justice ; judicial enforcement of EU law ; preliminary reference procedure ; supremacy of EU law ; Treaty on the Functioning of the European Union ; Viking case
Eurofound (2020), Advocate general of the CJEU, European Industrial Relations Dictionary, Dublin
https://www.eurofound.europa.eu/en/european-industrial-relations-dictionary/advocate-general-cjeu