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
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