Carlos Arrebola and Ana Julia Mauricio (PhD students at the
University of Cambridge)
‘The advocate general’s opinion is usually quite
influential in helping the ECJ decide its cases’. ‘The opinion does not mean the court will
automatically dismiss the legal challenge […], but most judgments later endorse
the position of advocate generals’.
A quick search on The
Guardian webpage reveals that it is
commonly acknowledged that the Advocate General influences the Court, or that
the Court follows the opinions of the Advocates General. Even conversations
amongst EU lawyers, practitioners and academics alike are often based on the omnipresent
presumption that the Advocate General influences the Court, which seems to have
become a truth by repetition. However, has data been put forward proving this dogma?
Is it true that the Advocates General opinions have such an important weight in
the judgments of the Court? Answering these questions becomes more relevant
than ever as the number of Advocates General increases, and so does the
workload of the Court. Answers to these questions are precisely what we set out
to discover in our recent study ‘An Econometric Analysis of the Influence of the AdvocateGeneral on the Court of Justice of the European Union’, now available on SSRN, and soon to be published in the
Cambridge Journal of International and Comparative Law (2016) 5(1).
One of the first hurdles that we had to overcome in this
study was defining the terms that were used, such as ‘influence’ or
‘following’. What does it mean for the Court to follow the Advocate General:
would reaching the same outcome suffice? However, the Advocate General and the
Court could come the same conclusion albeit following a different legal
reasoning. What if a particular case had such a clear solution that it would
not be legally acceptable to decide differently? Would the Court be following
the Advocate General then, or would the Court be deciding regardless of the
opinion of the Advocate General? We realised that what underpins these
questions is the very essence between correlation and causation.
In this study, we were particularly interested in trying to
establish causation, i.e., we wanted know how often the Court makes a decision
based solely on the opinion of the Advocate General, as opposed to other possibly
influential factors. This would give us a measure of the actual influence that
the figure of the Advocate General has on the Court of Justice. We tested the
hypothesis of whether Advocates General opinions are very influential to the
Court’s decisions, or whether this claim could be disproven with data, and the
relationship between the Court and the Advocate General is based more on a
dialogic conversation than in a relationship of influence. The existing
literature gave some measures for correlation between the opinions of the
Advocate General and the judgments of the Court using descriptive statistics,
showing that they coincided around 70% of the time.
In order to verify the accuracy of such claims and give and
evidence-based response to our queries, we gathered data spanning 20 years of
actions for annulment before the Court of Justice. In addition to the outcome
suggested by the Advocate General and the actual outcome of a case, we
collected data regarding several variables that could have influenced why the
Court solved a case in a particular way. For example, we selected variables
representing whether the solution of a case was clear. We recorded the
subject-matter of the case, given that certain areas of EU law might be less
controversial than others. Accounting for such variables, we eliminated from
our measure of influence what is actually a coincidence caused by external
elements that are unrelated to the opinion of the Advocate General. We also
included in our database variables relating to who the Advocate General was;
who the claimant was; the composition of the Court; and the type of act that
was being reviewed.
We acknowledge that more variables could have been included
to further refine this econometric study. However, it is not possible to record
all such variables, for example, the mood of the judge at the time of the
decision. Nevertheless, we designed an econometric study and used regression
models that gave a robust measure of influence. In particular, our models
determined a statistically significant result on the variable of interest (the
opinion of the Advocate General). Our findings suggest that the Court of
Justice is around 67% more likely to annul an act if the Advocate General
advises the Court to annul than if the Advocate General recommends the Court to
dismiss the case or declare it inadmissible.
Our results
reinforce claims that the Advocate General is a powerful figure in the makeup
of the Court of Justice, influencing the development of EU law. These findings
raise several questions for further research as regards judicial independence
and the relevance of the figure of the Advocate General. For instance, if the
opinions of the Advocates General have such a determinant influence in the
Court’s decisions, can one say that the Court is truly independent? Is it relevant
that the identity of the Advocate General in each case is publicised, or is the
Advocate General insulated from external pressures? Issues like these are
briefly discussed at the end of our article. Ultimately, we hope to have
contributed to an evidence-based debate on this topic, providing a grounded
basis for future discussions and judicial reform.
Barnard & Peers: chapter 10
Photo credit: inforrm.wordpress.com
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