Audience solennelle de la Cour de justice du 6 février 2019

Renouvellement partiel de la Cour de justice à l’occasion de la cessation des fonctions et du départ de :

M. N. Wahl, avocat général

 

ainsi que de la prestation de serment de :

M. P. Pikamäe, en qualité d’avocat général

 

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Message de M. Wahl 

Having had the privilege of speaking and writing what I want for the last six years, one might expect that I have nothing more to say. That is not so.

Before being nominated, and for that matter also during my time as an Advocate General, but certainly now when my mandate is coming to an end, I have been reflecting upon what makes a mere opinion into an Advocate General’s Opinion and, more generally speaking, the usefulness of Advocates General.

To be clear, everyone has an opinion, but to write an Opinion you need something more. Initially, at the beginning of my mandate, my référendaires told me it was easy – all you need is excellent collaborators, easy cases and some luck. The same référendaires later told me that I have had plenty of all three. It is true – I have had excellent collaborators and plenty of luck, but what is an easy case or, for that matter, a hard case? Could it be that if you have plenty of luck and excellent collaborators hard cases transform into easy cases?

To me there is no such thing as an easy case – questions that truly are easy will not even reach the Court. That is not to say that all cases are difficult, but some of them definitely are more so than others. It is in the nature of things that the more complicated a case is the more need there would seem to be for an Advocate General. However, with this line of reasoning there would be need for an Advocate General in all courts, yet there is not. So, just to turn the argument around; is there (still) really a need for Advocates General and their Opinions in the Court of Justice?

To me the answer depends on the added value an Opinion may bring to the solution of a case. This in turn depends on two things:  the circumstances in which Advocates General are used and how useful their work is perceived to be (which, incidentally, is not the same thing). As for the first aspect, Opinions are nowadays only rendered in less than half of the cases before the Court and already by that fact, one would assume that the work of the Advocates General would be used where it matters the most. Seen from this perspective, I believe that the Court should be careful in implicating Advocates General in cases which from all aspects but statistical are the least worthy. Not because Advocates General are too important, but simply because of the resulting misallocation of resources. If Advocates General are considered to be of more use for the Court doing preliminary work in the least important cases than when writing Opinions in the more important cases, I believe the Advocates General, as a collective, need to reflect upon the usefulness of their work for the Court. If not, someone else might just do it for them…

As for the usefulness of an Opinion, some people - even informed ones - believe that the usefulness of an Opinion directly relates to whether the Court actually followed the approach proposed in the Opinion. Personally, I have never been bothered too much with the question to what extent the Court actually followed my line of reasoning, or maybe not at all. This does not come from a disregard for the work of adjudicating the case or the actual solution of a case, but rather from recognition of the fact that the role of the Advocate General is to propose a possible solution, not to decide. Others believe the usefulness of an Opinion is related to its reception in academic circles, or the number of times the Court actually makes reference to it in its judgment. While the first would seem to be nothing more but an expression of misplaced vanity, the second is plainly wrong. What should matter is whether the Opinion has informed the Court of the advantages or disadvantages of the proposed solution. For me, simply recalling previous case-law and advising the Court to ‘keep calm and carry on’ normally does not suffice. Nor would it be sufficient or adequate to offer a multitude of different solutions, or even an unreasoned solution - the latter in fact being only an opinion amongst others. Only to the extent that the solution proposed is put in the proper context do I believe that it can be considered useful. ‘Context’ in this sense would mean having been able to connect the factual circumstances in previous case-law to the legal principles and facts at play in the case at issue. Although admitting on occasion having done so, I also do not believe one should present a solution as the only possible solution, but rather as the best one and clearly stating the reasons why that is so. The clarity and the strength of the argumentation for the proposed solution is what elevate it from a mere opinion to an Advocate General’s Opinion. In other words, everyone can have an opinion, but to write an Opinion you need conviction. If the Court ultimately ends up with another solution it is (hopefully) not because it did not understand the proposal, but rather that it did understand but disagreed, and in that sense the Opinion has been useful to it.

It is not easy to have a conviction for all areas of what is now EU-law. I for one, clearly see that my Opinions in some fields of law are more useful than in other areas. I believe it would be wise to take advantage of that difference in aptitude when allocating cases. However, this should not be understood as that I consider myself better equipped than others to handle certain cases. Rather, it is an acknowledgment of my own limitations in areas of law in which I lack the proper background to be able to present the best possible solution with the clarity and conviction needed. Thus, to really bring added value to the work of the Court, the Advocates General should recognise that even if we are all equal, some of our Opinions are more useful than others. A certain form of specialisation, without however monopolising certain fields of law, is therefore a necessity.

The usefulness of an Advocate General might initially have been taken for granted. After all, the Court being modelled after the Conseil d’Etat with its commissaires du gouvernement and for a good number of years acting both as first and last instance in all cases, it would have been easy to see the usefulness of Minenhunde. If all goes well, the Advocate General will have shown the Court a safe passage through a legal minefield, and if not – it was after all just a dog.[1]

However, in a situation of an ever-increasing work load, having a fully stocked General Court as first instance in many cases and budgetary constraints not only in national administrations but also for the Court of Justice, I believe it is necessary to be able to show a real added value of the work of the Advocates General. It is not sufficient to simply be useful, but Advocates General needs to be more useful for the Court than the alternative, be it additional judges or the retaining of auxiliary services of a personal nature.

Even if the Treaty provisions on the role and duties of the Advocate General protect the function as such, I believe it is the duty of each and every one who has been given the privilege to act as an Advocate General, not only to act with complete impartiality and independence, but also to bring added value to the Court. Only then will the Advocates General still be useful for the Court.

It is not for me to evaluate to what extent I have in this sense been useful to the Court, but it is for me to thank those that have been useful, or in fact essential, for my efforts in that respect. Following me from the General Court were Leïla Rezki and William Lindsay-Poulsen as référendaires and Françoise Schweicher as my first assistant. Upon arriving at the Court I had the good fortune of being able to add to the team Luca Prete and Elina Paunio as référendaires and Maria Krausenböck as assistant (later also as référendaire). Later during my term of office we were joined by Giuseppe Castro as driver, Malin Persson as assistant and later référendaire, Charlotte Lehtinen and Frederik De Ridder as assistants and Marie-Claire Gresse as first assistant. These are the people that collectively refer to themselves as the “excellent collaborators” and I owe them, and my wife Marianne and my two daughters Louise and Ebba, everything.


[1] This was the job description given to me by a former colleague in the General Court, upon learning of my nomination as Advocate General.