The Advocates General at the General Court

Table of Contents: 1. Introduction. – 2. Setting the stage: two courts ut one procedure. – 3. Rules concerning Advocates General before the General Court. – 3.1. Election of Advocates General at the General Court. – 3.2. The dual role of Advocates General of the General Court and its organisational consequences. – 4. The role of Advocates General at the General Court. – 4.1. The procedural role of Advocates General in preliminary references decided by the General Court. – 4.2. Advice-giving role of Advocates General in preliminary references decided by the General Court. – 4.2.1. A new question of law. – 4.2.2. The questions of principle. – 5. Conclusion.

Abstract: This article examines the introduction of Advocates General at the General Court, following the partial transfer of the preliminary reference jurisdiction under Article 267 TFEU to the General Court. It situates Advocates General within the broader context of two courts operating one unified preliminary reference procedure. It outlines the specific rules on the election, mandate, and dual role of Advocates General at the General Court, contrasting them with their counterparts at the Court of Justice. Particular attention is paid to the Advocates General’s procedural and advisory functions, including their involvement in determining the necessity of opinions and their role in identifying cases requiring referral back to the Court of Justice due to questions of principle or constitutional interpretation. The contribution highlights both the similarities and divergences in the functions of Advocates General across the two courts, ultimately raising questions about whether this reform will ensure coherence in EU judicial practice and withstand the test of time. 

Keywords: Advocates General – General Court – Court of Justice – preliminary references – procedural role – advisory role.

1.   Introduction

A recent reform of the Statute of the Court of Justice[1] has extended the jurisdiction in preliminary ruling procedures – provided for in Article 267 TFEU – to the General Court (GC). With this amendment, the EU legislature aims to reduce the workload of the Court of Justice (CoJ) by empowering the General Court to hear references from national courts in a limited number of ‘specific’ areas enumerated in the Statute of the Court of Justice.[2]

Although the number of areas transferred to the GC is relatively small, the significance of this reform should not be underestimated. As already highlighted by different scholars, this reform has the potential to not only change the roles of the two courts but to transform the EU’s judicial architecture.[3] On the one hand, this reform accentuates the constitutional role of the Court of Justice.[4] On the other hand, it ends the monopoly of the CoJ on deciding the final meaning of EU law. The task of ensuring uniformity of EU law, by providing authoritative and erga omnes-binding interpretations of EU law is now shared between the two courts. 

One of the novelties of this reform, which has not been given much attention in the scholarly writing,[5] is the addition of the Advocates General (AGs) to the decision-making process of the GC. In this short paper, I intend to contribute to the discussions of the reform by focusing on that aspect. 

After briefly setting the stage for the new reform (2), I will address two issues; first, I will deal with the procedural and organisational aspects of having AGs at the GC (3), and second, I will elaborate upon the role that AGs will have at that court (4). In relation to both issues, I will compare the role of AGs at the CoJ and the intended function of AGs at the GC. 

At the time of finishing this contribution the reform has been in place for less than eight months, therefore it is too soon to fully assess all of its potential implications. Similarly, there are likely questions that I will not have considered here, but that will only surface once the two courts have amassed sufficient experience in dealing with the reformed preliminary ruling procedure.

2.   Setting the stage: two courts but one procedure

If assessed from the perspective of referring national courts, the reform means that certain interpretive dilemmas of EU law, which arise in cases before them, will no longer be resolved by the Court of Justice but instead by the General Court. Nevertheless, from the very beginning of the process of reform, there was a general consensus that the reform should not have any major impact on the preliminary reference procedure in so far as it concerns national courts. 

As explained in Recital 19 of the Amending Regulation, ‘in order to provide the national courts and the interested persons referred to in Article 23 of the Statute with the same guarantees as those provided by the Court of Justice, the General Court should adopt procedural rules equivalent to those applied by the Court of Justice when dealing with requests for a preliminary ruling.’ 

One important aspect of this procedural guarantee is the participation of AGs in all cases referred to the GC for a preliminary ruling, ensuring that the two courts deal with requests made under Article 267 as similarly as possible.[6]

3.   Rules concerning Advocates General before the General Court

3.1.  Election of Advocates General at the General Court

The Statute of the Court of Justice provides in Article 49a that the General Court shall be assisted by one or more Advocates General when dealing with references for a preliminary ruling. The wording of that provision is similar that of Article 252 TFEU which provides that ‘the Court of Justice shall be assisted by [11] Advocates General.’ However, there are important differences.

Advocates General at the CoJ, on foot of a nomination from their own Member State, are appointed specifically for that role by the common accord of all Member States, following a positive assessment of the 255 committee. Contrasting this with the GC, only persons who already hold the position of judge at the GC may be selected by their peers to perform the function of an AG for that court. It follows that there are at least three essential differences between AGs at the CoJ and AGs at the GC.

First, AGs at the GC are originally nominated for and appointed to that court to carry out the functions of a judge, not those of an AG. Therefore, the qualities and qualifications that are relevant for their original nomination may have been different from those that are relevant for the nomination of AGs at the CoJ. 

Second, the selection pool from which AGs at the General Court are chosen is considerably smaller than that from which AGs at the CoJ are chosen, given that AGs at the GC may be selected from a group of only 54 sitting judges (this number being even smaller in practice, as I will elucidate later).

Finally, the position of an AG at the GC is not in any way linked to the nationality of that person. The eleven positions of AG at the CoJ are filled based on the nomination of Member States; five of those positions are filled by the larger Member States who have permanent AG representation, with the remaining six AG positions being filled on a rotating basis by the rest of the Member States. Conversely, there is no nationality requirement for the election of an AG at the General Court, as they may be of any of the 27 nationalities represented at the GC. At the same time, the larger Member States are not guaranteed to be represented by an AG at the GC. 

Judges of the General Court may now be elected to serve as Advocates General for a period of three years, which is renewable once. This represents a departure from the previous rule, according to which a judge of the General Court could be invited to perform the role of an Advocate General ad hoc, for a particular case only.[7] The mandate of AGs responsible for dealing with references for preliminary rulings at the GC is thus more permanent under the reform. However, there is no possibility of having long-term AGs at the GC, whereas this possibility exists at the CoJ, where AGs of the larger Member States can be re-nominated after the expiry of their 6-year mandate.

The rules on the election of Advocates General are regulated in more detail in the Rules of Procedure of the General Court. 

All judges at the GC may be elected to perform the role of AG, except the President, the Vice-President and the President of each of the eight Chambers of the General Court.[8] That is why, in principle, the election of AGs should take place immediately after the election for those other positions.[9] Given that new elections at the GC are not scheduled until September 2025, and the transfer of competencies for preliminary references became operational in October 2024, it was decided that the first AGs would be elected for an intermediary period ending on 31 August 2025.

The first two AGs and one alternate AG[10] were thus elected, by secret ballot of their peers,[11] at the meeting of the General Court held on 9 October 2024. The decision regarding their nomination was published in the Official Journal.[12]

Although the AGs will have to be re-elected in September 2025, as their renewal will not be automatic, it is expected that the AGs elected in October will continue in their role for another three years. However, the GC has also decided that the intermediary term served by these AGs will count as an entire mandate. That means that the first AGs elected will only be able to serve for a maximum of four years, rather than the maximum of six years which is otherwise available to AGs who have their original three-year mandate renewed.

3.2.  The dual role of Advocates General of the General Court and its organisational consequences

As explained, the elected AGs at the GC remain judges despite taking their new role. Thus, their job is not exclusively to serve as Advocates General. Rather, they can, throughout their mandates as AGs, continue to adjudicate in cases that arrive to the General Court as direct actions. 

Unlike at the GC, Advocates General at the Court of Justice do not form part of the judge’s chambers. They are a separate body of members of the Court and cannot serve as judges while also serving as Advocates General. This makes for an important distinction between the AGs of the two Courts. 

As those elected to serve as AGs at the GC continue in their function as judges, they must be assigned to a chamber. They are therefore members of one of the two chambers established to deal with preliminary rulings, which can, however, also decide other types of cases.[13] Thus, those chambers, even if they are the only chambers competent to deal with preliminary references, are not exclusively ‘preliminary rulings chambers’. At the same time, the number of direct actions those chambers will be able to deal with will depend on the number of preliminary references that will be heard by the General Court. That will also influence the number of cases in which new AGs will continue functioning as judges during their AG mandates. 

Each preliminary ruling chamber will comprise six judges, one of whom will serve as Advocate General at the same time. It is envisaged that the Advocate General attached to the first preliminary ruling chamber will be allotted cases to be decided by the second preliminary ruling chamber, and vice versa. As explained, those same persons can sit as judges in their own chambers when those chambers decide in direct actions.

4.   The Role of Advocates General at the General Court

As I have already expounded, the objective behind the transfer of jurisdiction in some areas to the General Court was not to establish a new preliminary ruling procedure. Rather, the reform aimed at including the General Court in the same procedure that has operated before the Court of Justice since the creation of the European Union (then regulated by Article 177 of the EEC Treaty).

Advocates General at the Court of Justice play an important role in the preliminary ruling procedure in at least two ways. 

First, each case initiated by a national court is assigned to an Advocate General, who participates throughout the procedure until that case is decided upon by the designated chamber. That remains so regardless of whether an opinion is warranted in a case. In this task, the AG, together with the reporting judge and the President of the Court, participates in deciding different issues related to the organisation of procedure for that case. I will refer to this task as the ‘procedural role’ of an Advocate General. 

The second function of Advocates General, which will be much more known to the public, consists of providing advice to the deciding chamber in the form of a written Opinion, which advises the chamber on how to decide a particular case based on its merits. That opinion is published and thus available to the public. I will mention this role thereunder as the ‘advice-giving role’ of an Advocate General. 

At the CoJ, an Advocate General will carry out their procedural role in each case, whereas only in the most important cases – those raising new issues of law – will an AG carry out their advice-giving role.

4.1.  The procedural role of Advocates General in preliminary references decided by the General Court

There is no doubt that in their procedural role, AGs of the General Court in the preliminary reference procedure perform the same, or at least very similar, tasks as the AGs of the Court of Justice.

Like at the CoJ, every case transferred to the GC is assigned to an AG. A slight difference exists in the fact that at the Court of Justice the cases are assigned by the First Advocate General, whereas at the GC cases are assigned by the President of that court.[14]However, as the General Court has an automatic system for distributing cases, the choice between the two Advocates General is, in fact, automatic, rather than a discretional decision of the President. When a reference is registered at the General Court, after being transferred to that Court through a Guichet unique procedure at the Court of Justice,[15] it is automatically distributed to one of the two chambers. Consequently, that case will be allotted to the Advocate General sitting in the alternative preliminary ruling chamber.[16]

Throughout the procedure, the assigned AG participates in deciding different issues related to a particular case. Many decisions, that are adopted either by the President or by the General Court, can be adopted only after hearing the Advocate General. This procedure at the GC is not regulated by parallel provisions in the Rules of Procedure of the Court of Justice, but it is instead found in the Rules of Procedure of the General Court. One potential reason for this might lie in the fact that AGs at the Court of Justice perform their procedural role in direct actions, appeals and in preliminary reference proceedings, whereas AGs at the General Court participate only in preliminary references. Thus, the Rules of Procedure could not simply refer to the Procedural Rules of the CoJ.

AGs at the GC, together with the reporting judge, and on the basis of preliminary report prepared by the latter, advise the preliminary ruling chamber on how each new case should be treated procedurally. That advice entails choosing the appropriate court formation, determining the necessity for a hearing, and deciding whether the case requires an Opinion. In that respect, as the Court of Justice stated in its proposal for the Regulation amending the Statute, ‘the examination of the case file by the Advocate General designated might usefully supplement, qualify or enrich the analysis carried out by the Judge-Rapporteur in his or her preliminary report’.[17]

Regardless of whether a case requires an opinion, an AG at the General Court must be heard before the adoption of decisions on: 

-      whether the participants in the procedure should be allowed to use another language;[18]

-      whether the case should be joined with another case before the GC;[19]

-      the stay of proceedings;[20]

-      measures of organisation of procedure,[21] measures of inquiry,[22] or requests for clarification sent to the referring court;[23]

-      whether there should be a hearing in the case;[24]

-      opening and reopening the oral part of procedure;[25]

-      whether a hearing should be broadcast, or whether a recording of a hearing should be removed from the web;[26]

-      whether the case can be decided by way of a reasoned order;[27]

-      whether the reference can be dismissed by way of a reasoned order for lack of jurisdiction or manifest inadmissibility;[28]

-      whether the case merits expedited procedures;[29]

-      whether legal aid should be granted;[30] and

-      whether the judgment and order need rectification.[31]

AGs are also consulted before the General Court decides to refer the case back to the Court of Justice, an issue I will come back to.[32]

Thus, procedural role of an AG at the General Court is comparable to the same role of the AGs at the Court of Justice. The benefit of having an Advocate General involved in these procedural aspects of a case was not questioned by any of the participants in the legislative procedure leading to the reform,[33] nor has it been contested in the academia.

4.2.  Advice-giving role of Advocates General in preliminary references decided by the General Court

4.2.1.   A new question of law

As with AGs at the Court of Justice, AGs at the General Court are not expected to give an Opinion in every case. Article 20(5) of the Statute of the Court of Justice states that an Opinion is not necessary if the case raises no new questions of law. This provision is also applicable to the transferred preliminary ruling procedure.

At both the CoJ and the GC, where an Opinion has been warranted, the Advocate General announces the date when it is to be publicly read. The date of reading is announced either at the hearing or, if no hearing was scheduled, directly to the interested parties and the referring court through the services of the Registrar.[34]

Where a hearing has been scheduled in a case, the AG participates and may pose questions to the participants.[35]

With respect to those aspects, the role of AGs at the two courts is identical. However, some doubts as to the comparability of their roles do arise when one considers the limited jurisdiction transferred to the General Court by the reform. 

To recall, one criterion for choosing the areas of law which would be transferred to the jurisdiction of the General Court, for the purposes of the preliminary ruling procedure, was the existence of a substantial body of case-law from the Court of Justice in those areas, which would be capable of guiding the General Court.[36]

In that respect, Bobek raised the question as to the value of such a transfer.[37] Indeed, legislation in such areas of law can be understood as acte éclairé, given that the areas are transferred if there is sufficient case-law to guide the interpretation, including in a factually different scenario. In such a situation, the cases do not require the interpretation of a new question of law, but only the application of already interpreted law to novel circumstances. Thus, according to Bobek, the national courts should be able to provide for such interpretation, without the need for the Court of Justice to engage in such ‘factual jurisprudence’;[38] the courts of last instance would, in such situations, arguably be relieved of their obligation to refer. 

Although Bobek’s criticism calls into question the need for the reform as a whole, it also casts doubt as to the necessity of Advocates General's participation in cases transferred to the GC. If the AGs are to give Opinions only in cases that raise new questions of law, why then should AGs be necessary if the majority of the cases being transferred are those that do not raise new issues of law? 

That question could be addressed by engaging Bobek in a discussion on the difference between interpretation and application, and the respective roles of the EU and national courts. However, I will not do that in this contribution. Rather, I will examine the value of having AG Opinions at the GC by considering the number of cases, which were decided with an Opinion before the reform, but would today be transferred to the General Court. If there is a sufficient number of such cases, that would lead me to the conclusion that the new AGs at the General Court would have a purpose beyond the purely procedural one.

In the two-year period covering judgments pronounced in 2023 and 2024 in the area of VAT law and excise duties, there were in total 40 cases in which an Opinion was provided.[39] I estimate that 33 of those cases would satisfy the condition to be transferred to the General Court after the reform. Taking into account the possibility of an error in my assessment,[40] there still seems to be a sufficient number of cases in the VAT/excise duties area which, once transferred, will require the attention of an Advocate General. 

The total number of cases decided in the same period with an Opinion in the area of customs code and classification under the common customs tariff is much lower. Only six cases warranted an opinion, out of which four could today be candidates for transfer.

I do not have relevant data for the area of passengers’ rights. However, I would like to point out that all the cases that Bobek offered as an example of ‘factual jurisprudence’,[41] were decided with an Opinion of an Advocate General.[42] Following Bobek’s logic, those cases, either should be decided by national courts, or, when brought before the EU Courts, should not have warranted an Opinion as they did not raise a new question of interpretation of law. Nevertheless, the Court of Justice treated those references as raising new questions of law, which necessitated an AG Opinion. 

Therefore, I can only conclude that, despite the fact that the areas transferred to the jurisdiction of the General Court were chosen on the basis of the existence of a sufficient body of case-law which can guide the General Court, one can expect that some of those cases will raise new questions of interpretation.[43] They would therefore necessitate an Opinion of an Advocate General.

4.2.2.   The questions of principle

The existence of a substantial body of case-law was not the sole criterion relied upon for the purpose of choosing which areas would be transferred to the preliminary ruling jurisdiction of the General Court. There is also the requirement that a reference, which raises the question of interpretation of law relating to one of the specified areas, does not raise a question of interpretation of any other area of EU law.^[44] Furthermore, the second sentence of Article 256(3) TFEU provides that cases which need ‘a decision of principle likely to affect the unity or consistency of Union law’ may be transferred back to (or kept by) the Court of Justice. Finally, the EU legislature insisted that it be clarified that cases which raise an independent question relating to the interpretation of primary law, public international law, general principles of Union law or the Charter must remain in the jurisdiction of the Court of Justice.^[45]

One important difference between the role of Advocates General at the Court of Justice and those at the General Court lies in those limitations. Whereas the former are always involved precisely in the cases that raise the issues of principle and of interpretation of constitutional EU law, the latter cannot advise the Court on the solution to such issues, as such cases must be referred back to the Court of Justice if they were erroneously transferred in the first place. 

What is understood as ‘a decision of principle’ or ‘independent’ question relating to EU constitutional or international law is far from being clear and will have to be clarified through the practice of transfers. 

Both the Court of Justice and the General Court will contribute to the development of the understanding of those terms. The Court of Justice will develop its position by deciding whether or not to hear the borderline cases that enter through the Guichet unique at the joint meetings of all its members.[46]

Within seven months of the reform's implementation, from October 2024 to the end of April 2025, out of 52 cases registered at the Court of Justice as potentially transferable, eight were not transferred to the General Court.[47] In those cases, either the questions also concerned other EU acts belonging to areas not transferred to the General Court, or raised independent issues of interpretation of Treaties or the Charter.

The General Court will contribute to the clarification of those limitations of its own jurisdiction through its obligation to refer back those cases which it discovers do not belong to its docket.[48] The decision to refer back is decided by the plenary formation of the preliminary ruling chamber, always after hearing an Advocate General.[49]

That means that Advocates General at the General Court might have an important role in the development of the notions of ‘decisions of principle’ and ‘independent’ questions of interpretation of constitutional EU law or international law. Nevertheless, once an Advocate General discovers that a case, which has been transferred to the jurisdiction of the General Court, requires such a decision of principle, he or she must advise the General Court to refer it back to the Court of Justice.

5.   Conclusion

The new Advocates General at the Court of Justice were included in the preliminary ruling procedure at the General Court with the purpose of ensuring that even if split among two courts, that procedure will remain the same for the referring national courts and participants in that procedure. 

This short overview and comparison between the roles of Advocates General at the Court of Justice and those at the General Court reveals that their roles may differ in certain aspects. 

It is without doubt that, in their procedural role, proposing, together with the reporting judge, the procedural treatment of the case, including about whether there is a necessity for an Opinion, new Advocates General will increase the quality of the transferred jurisdiction. 

When a reference relating exclusively to a transferred area of EU law will require the General Court to choose between several interpretive options in a novel situation, which are all within the boundaries permitted by the limits imposed by EU constitutional rules, the Advocates General will advise the General Court in the same way as their counterparts at the Court of Justice. 

Finally, the AGs at the General Court will be expected to make a detailed examination of each case to discover whether it raises any questions of principle or of constitutional EU law, which may not be obvious at the first analysis of the case. In that respect, their role is also similar to the one of their counterparts at the Court of Justice. Nevertheless, if they discover such an issue of principle, unlike the Advocates General at the Court of Justice they cannot propose a solution. Rather, they will have to propose that such case is referred back to the Court of Justice where it will be decided with the help of its Advocates General. This may incentivise them not to find, and therefore also not to look for the principled questions.

In that sense, there is a crucial difference between the role of Advocates General at the General Court and the role of Advocates General at the Court of Justice. Whereas the latter are most wanted for aiding the judges with principled questions of constitutional nature, the former are excluded from such issues and required only for the situation of ‘ordinary’ legislative interpretation.

Furthermore, given the highly specialised nature of the transferred areas, which are at the same time new for the judges of the General Court,[50] it is expected that new Advocates General will specialise in those areas.[51] That will add an additional difference between them and the Advocates General at the Court of Justice, who are not specialised, but give advice to the Court of Justice on all questions of EU law that can possibly arise. 

It is too early to conclude whether and how these differences will influence the initial intention of keeping the preliminary ruling procedure the same notwithstanding the court that is providing the answer to the referring national court. It is also too early to answer whether the new function of an AG at the GC will withstand the scrutiny of time.