‘Stop the ECJ’?: An Empirical Analysis of Activism at the Court

• Date: 01 November 2011
• Author: Iyiola Solanke
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00561.x
• Published date: 01 November 2011

eulj_561764..784

‘Stop the ECJ’?: An Empirical Analysis of

Activism at the Court

Iyiola Solanke

Abstract: This article uses a disaggregated approach to study the role of the Advocate

General in the European Court of Justice (CJ). It presents original empirical material

based upon interviews with Advocates General (AsG) and referendaires at the CJ to

assess the question of activism at the Court. Using answers to specific questions, I

conclude that while the AsG are entrepreneurs, neither they nor the Court can be described

as ‘activist’ per se.

I Introduction

The European Court of Justice is manifestly no longer ‘tucked away in the fairyland Duchy of Luxem-

bourg’. The new Palais, inaugurated on December 4, 2008, is a complex collection of buildings that,

quite literally, consume the original Palais within a ring-like structure, alongside the original Court of

First Instance and, most prominently, two high-rise towers (making unfortunate allusions to Tolkien

difficult to suppress). The overall visual impact is one of enormous scale; but also, seeing the mismatched

structures that differ from one another in almost every way—size, materials, scale—dysfunction. Within

the Court of Justice, another striking image comes from the cavernous room in which the full court holds

its réunion générale. In particular, to accommodate 27 judges, eight Advocates General and the Regis-

trar, the long table in that room is, quite simply, vast. What that picture suggests is that the possibility

for organic, unstructured discussion is impossible to reconcile with the present size of this judicial

college.1

Originally comprising just one court with seven judges and two Advocates General, the

Court of Justice of the European Union (CJEU) now comprises three courts—the

Court of Justice (CJ), the General Court (former Court of First Instance) and the Civil

Service Tribunal (CST)—with 61 judges in total and eight Advocates General. All

courts are on the same site in Luxembourg. Given its initial size, it is not surprising that

the CJ was studied as a monolithic institution. The salience of this approach has been

challenged, however, as the European Union judicial infrastructure has grown: in 1997

Weiler argued that it would be erroneous to imagine the CJ as a ‘homogenous actor free

of internal factions, disagreements and internal conflicted views on many issues’2; Craig

and de Burca subsequently emphasised that ‘the Court is not a single unitary actor,

but a collection of individual judges, Advocates General and other influential legal

1N. Nic-Shuibne, ‘Editorial’, (2009) European Law Review 1.

2J. Weiler, ‘The Reform of European Constitutionalism’, (1997) 35 Journal of Common Market Studies

95–131, 106.

European Law Journal, Vol. 17, No. 6, November 2011, pp. 764–784.

© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

personnel’3; Grainger has likewise asserted ‘that the Court is not a unitary actor with

monolithic preferences, but a complex social entity, where individual and collective

preferences regarding the future of Europe are subject to transformation as a result of

internal and external interactions’.4These perspectives on the CJ have created new

avenues for research, such as disaggregated studies.

This paper takes a disaggregated approach to the CJ, focusing in particular on the

Advocate General (AG). According to Borgsmidt, there is no equivalent to the AG in

any legal system of the member states.5This may explain why, despite being a full and

influential member of the CJ, the AG is chronically understudied.6In exploring their

world, the paper also draws attention to the influence of another understudied group in

the CJ: the referendaires, or legal clerks. In the following pages, using original data

gathered during interviews with these groups, I consider whether it is possible to

understand the AG as a ‘cause lawyer’. In brief, cause lawyers can be described as

lawyers who lobby, either on behalf of the strengthening of democratic and legal

principles, or in pursuit of political and redistributive goals.7They are activists, like

Yvonne Hossack, a British solicitor whose campaign to highlight the mistreatment of

elderly care home residents resulted in charges of serious professional misconduct.

Three local council authorities—Northamptonshire, Hull and Staffordshire lodged

complaints with the Law Society that her encouragement of the elderly to challenge the

closure of their care homes wasted council time and money.8Upon review of the facts,

the authorities lost and Hossack was voted ‘Times Lawyer of the Week’.9

By linking the Advocate General to cause lawyering, I seek to explore the contro-

versial question of activism at the CJ. Judicial activism is not a new idea, but is

increasingly applied as a criticism of judicial behaviour.10 There is broad agreement that

the expansion of judicial review (‘juridification’11) via protection of human rights has

spurred the development of a ‘juristocracy’—the transfer of power from representative

bodies to judiciaries.12 Yet judges are increasingly perceived as using their independence

3P. Craig and G. de Burca, European Union Law (Oxford University Press, 2003), at 87.

4M.P. Grainger, ‘The Future of Europe: Judicial Interference and Preferences’, (2005) 3 Comparative

European Politics 155, 175.

5K. Borgsmidt, ‘The Advocate General at the European Court of Justice: A Comparative Study’, (1988)

European Law Review 106.

6Only one book and a few articles focus on the Advocate General: N. Burrows and R. Greaves, The

Advocate General and EC Law (Oxford University Press, 2007); T. Tridimas, ‘The Role of the Advocate

General in the Development of Community Law: Some Reflections’, (1997) Common Market Law Review

1349; C. Ritter, ‘The Role and Impact of the Advocate General’, (2006) 12 Columbia Journal of European

Law 3, 751; I. Solanke, ‘Diversity and Independence in the ECJ’, (2009) 15 Columbia Journal of European

Law 1, 89. They are briefly mentioned in V. Perju, ‘Reason and Authority in the European Court of

Justice’, (2009) 49 Virginia Journal of International Law 307.

7A. Sarat and S. Scheingold (eds), Cause Lawyering—political commitments and professional responsi-

bilities (Oxford University Press, 1998).

8F. Gibb, ‘Yvonne Hossack cleared of professional misconduct’ Times Online, 18 September 2009. Avail-

able at http://business.timesonline.co.uk/tol/business/law/article6840205.ece (accessed 9 January 2010).

9L. Tsang ‘Lawyer of the Week: Yvonne Hossack’ Times Online, 8 October 2009, available at http://

business.timesonline.co.uk/tol/business/law/article6863798.ece (accessed 9 January 2010).

10 C. Green, ‘An Intellectual History of Judicial Activism’, (2009) 59 Emory Law Journal 5, 1195.

11 L.C. Blichner and A. Molander, ‘What is juridification?’ (March 2005) ARENA Working Paper No. 14.

Available at http://www.arena.uio.no/publications/working-papers2005/papers/wp05_14.pdf (accessed

18 March 2010).

12 R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard

University Press, 2004).

November 2011 Activism at the Court

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