Shaping EU Law the British Way: UK Advocates General at the Court of Justice of the European Union
Edited by Dr. Graham Butler, Associate Professor of Law, Aarhus University, Denmark & Professor Adam Lazowski, Professor of EU Law, University of Westminster, London, United Kingdom.
Hart Publishing/Bloomsbury: Oxford, 2022.
ISBN (Hardback): 978-1-50995-000-3 (9781509950003). ISBN (PDF): 978-1-50995-002-7 (9781509950027). ISBN (epub): 978-1-50995-001-0 (9781509950010).
About:
In this book, leading scholars of EU law, judges, and practitioners unpack the judicial reasoning offered by the UK Advocates General in over forty cases at the Court of Justice, which have influenced the shape of EU law. The authors place the Opinions in the wider context of the EU legal order, and mix praise with critique in order to determine the true contribution of the UK Advocates General, before hearing the concluding reflections by the UK Advocates General themselves.
The role of Advocates General at the Court of Justice of the European Union remains notoriously under-researched. With a few notable exceptions, not much ink has been spilled on analysing their contribution to the judicial discourse that emerges from the Court's Palais in Luxembourg. More generally, their impact on the shaping of EU law is only sporadically explored. This book fills the lacunae by offering an in-depth analysis of the way in which the UK Advocates General contributed to development of EU law during 47 years of the UK's membership of the EU.
During their terms of office, Advocates General Jean-Pierre Warner (1973-1981), Gordon Slynn (1981-1988), Francis Jacobs (1988-2006), and Eleanor Sharpston (2006-2020) delivered over 1400 Opinions. This staggering contribution of the four individuals and their cabinets of legal secretaries was supplemented by an Opinion of a then Judge of the Court of First Instance, David Edward, who was called to act as an Advocate General in two joined cases in what is now the General Court. With the last UK Advocate General departing from the Court of Justice in September 2020, an important era has ended. With this watershed moment, it is apt to take a look back and critically analyse the contribution to development of EU law made by the UK Advocates General, and to elucidate the lasting impact they have had on the nature of EU law.
Let’s Take the Canvass Out: Advocates General at the Court of Justice of the European Union
Graham Butler and Adam Łazowski
Framing Exercises: The Role of the Advocates General
Mitchel de S.-O.-l’E. Lasser
Shaping EU Law: Ireland and the Common Law in Europe
Nial Fennelly
Culture Clash? The UK Tradition of Open Justice and the Court of Justice of the European Union
Aidan O’Neill
The History and Biographies of the UK Advocates General
Vera Fritz
Part II – Jean-Pierre Warner: The Early Days of Community Law (1973-1981)
Accession to the Communities, and Compensation under the Common Agricultural Policy: Opinion of Advocate General Warner in Ireland v Council
Elaine Fahey
Horizontal Application of EU law, Non-discrimination on Grounds of Nationality, and EU Sports Law: Opinion of Advocate General Warner in Walrave and Koch
Stephen Weatherill
Reconciling the Special Provision on State Monopolies with the General Provisions on the Free Movement of Goods: Opinion of Advocate General Warner in Manghera
Graham Butler
Equivalence and Effectiveness in the Enforcement of EU Rights: Opinion of Advocate General Warner in Rewe
Alan Dashwood
Previous Criminal Convictions and Public Policy Exceptions: Opinion of Advocate General Warner in Bouchereau
Christa Tobler
Rights of Undertakings in EU Antidumping Proceedings: Opinion of Advocate General Warner in Bearings I
Rosa Greaves
Free Movement of Goods and the Public Morality Exception: Opinion of Advocate General Warner in Henn and Darby
Adam Cygan
An Expedient of Proceedings: Opinion of Advocate General Warner in Foglia v Novello I
Kieran Bradley
Legal Professional Privilege in EU Competition Law: Opinions of Advocates General Warner and Slynn in AM&S Europe
James Flynn
Part III – Gordon Slynn: Embedding the Revolutionary Doctrines (1981-1988)
Artificial Arrangements and References for a Preliminary Ruling: Opinion of Advocate General Slynn in Foglia v Novello II
Daniel Sarmiento
The Intrinsic Value of Part-time Work in the Construction of the Internal Market: Opinion of Advocate General Slynn in Levin
Jeff Kenner
Free Movement of Goods and the Public Security Exception: Opinion of Advocate General Slynn in Campus Oil
Graham Butler
Ants Working Hard, and the Free Movement of Legal Services as Professional Activities: Opinion of Advocate General Slynn in Klopp
Takis Tridimas
Blurring the Boundaries of the Free Movement of Goods: Opinion of Advocate General Slynn in Cinéthèque
Eleanor Spaventa
Formal-Style Reasoning and its Progeny: Opinion of Advocate General Slynn in Marshall I
John Cotter
Free Movement of Goods and Double Standards in Public Morality: Opinion of Advocate General Slynn in Conegate
Laurence W. Gormley
To Beer, Or Not to Beer? That is the Public Health Question: Opinion of Advocate General Slynn in Commission v Germany (Beer Purity)
Steve Terrett
Part IV – David Edward: Judge acting as Advocate General in the Court of First Instance (1992)
Powers, Duties, and Responsibilities of the Commission When Dealing with Complaints about Infringements of EU Competition Law: Opinion of Judge Edward acting as Advocate General in Automec and Asia Motor France
Richard Whish
Part V – Francis Jacobs: From European Communities to European Union (1988-2006)
The Rehabilitation of Trade Marks, the Demise of the Doctrine of Common Origin, and the Overruling of Prior Case Law: Opinion of Advocate General Jacobs in HAG II
David T. Keeling
‘Civis Europeus Sum’, Thirty Years On: Opinion of Advocate General Jacobs in Konstantinidis
Dimitry Kochenov
Don’t Let them Steal our Music Away: Opinion of Advocate General Jacobs in the Legal Duet of Phil Collins and Cliff Richard
Adam Łazowski
The Relationship between the Action for Annulment and Preliminary Reference Procedures: Opinion of Advocate General Jacobs in TWD
Angela Ward and Graham Butler
Ulysses Unbound? Political Questions, Judicial Answers, and the Rule of Law in EU Foreign Policy: Opinion of Advocate General Jacobs in Commission v Greece (FYROM)
Geert De Baere
Effective Judicial Protection of EU Rights before National Courts: Opinion of Advocate General Jacobs in Van Schijndel
Andrea Biondi
The Meeting of International Sanctions and European Human Rights: Opinion of Advocate General Jacobs in Bosphorus
Piet Eeckhout
The Game over the Boards: Opinion of Advocate General Jacobs in Albany
Carl Baudenbacher
The Virtue of Moderation: Opinions of Advocate General Jacobs in Oscar Bronner and PreussenElektra
Luca Rubini
Protecting the Rights of Individuals: Opinion of Advocate General Jacobs in UPA
Anthony Arnull
Breaking New Ground on EU Fundamental Rights: Opinions of Advocate General Jacobs in Wachauf and Schmidberger
Peter Oliver
Restrictions on Advertising and the Free Movement of Goods and Services: Opinions of Advocate General Jacobs in Leclerc-Siplec, De Agostini, and Gourmet
Stefan Enchelmaier
Achtung Baby! Objectives of Europe Agreements Matter: Opinion of Advocate General Jacobs in Pokrzeptowicz-Meyer
Anna Łabędzka
Part VI – Eleanor Sharpston: The Legal Order pre- and post-Lisbon (2006-2020)
When Security Trumped the Rule of Law: Opinion of Advocate General Sharpston in Heinrich
Helen Xanthaki and Adam Łazowski
The Inconvenience of Names: Opinion of Advocate General Sharpston in Grunkin and Paul
Adrienne Yong
Legislation, Interpretation, and Equal Treatment: Opinion of Advocate General Sharpston in Sturgeon
Paul Craig
‘When Citizens Move, They Do So as Human Beings, Not as Robots’: Opinion of Advocate General Sharpston in Ruiz Zambrano
Niamh Nic Shuibhne
Access to Administrative and Judicial Review in Public Interest Litigation: Opinion of Advocate General Sharpston in Slovak Bears
Theodore Konstadinides
The Notion of ‘Court or Tribunal of a Member State’: Opinion of Advocate General Sharpston in Miles
Tamara Ćapeta
Mutual Recognition, Mutual Trust, and EU Criminal Law: Opinion of Advocate General Sharpston in Radu
Valsamis Mitsilegas
Discrimination on Grounds of Religion or Belief and Neutrality Requirements: Opinion of Advocate General Sharpston in Bougnaoui
Ronan McCrea
EU Competence to Conclude Trade Agreements: Opinion of Advocate General Sharpston in Opinion 2/15
Panos Koutrakos
Horizontal Direct Effect of Directives Reconsidered: The Opinion of Advocate General Sharpston in Farrell II
Eleni Frantziou
The Rule of Law, Sincere Cooperation of Member States, and Solidarity: Opinion of Advocate General Sharpston in Temporary Relocation
Michael-James Clifton
Homophobic Speech and its Prohibition under EU Anti-discrimination Law: Opinion of Advocate General Sharpston in NH
Alina Tryfonidou
The Right to a Tribunal established by Law: Opinion of Advocate General Sharpston in Simpson and HG
Sébastien Platon
Part VII – Afterwords
Reflections of an Advocate General: 1988-2006
Francis G. Jacobs
Reflections of a Judge acting as Advocate General in the Court of First Instance: 1990-1992
David Edward
‘Can’t those European judges think for themselves?’ An Afterword on why the Court (still) needs its Advocates General
Eleanor Sharpston
Part VIII – EU Law without UK Advocates General
Neither Advocates, Nor Generals: The UK Advocates General and the Shaping of EU Law
Graham Butler and Adam Łazowski
Editors:
Graham Butler, Associate Professor of Law, Aarhus University, Denmark.
Adam Łazowski, Professor of EU Law, University of Westminster, London, United Kingdom; Visiting Professor, College of Europe (Natolin).
Contributing Authors:
Anthony Arnull,Barber Professor of Jurisprudence, University of Birmingham, United Kingdom; formerly Legal Secretary (référendaire) to Advocate General Jacobs, Court of Justice of the European Union, Luxembourg.
Carl Baudenbacher, Partner, Nobel Baudenbacher Law, Zurich/Brussels; Door Tenant Monckton Chambers, London, United Kingdom; Visiting Professor, London School of Economics, United Kingdom; President of the EFTA Court (2003-2017) Luxembourg; Full Professor Emeritus, University of St. Gallen, Switzerland.
Andrea Biondi, Professor of European Union Law and Director, Centre of European Law, King’s College London, United Kingdom; Visiting Professor, Bocconi University, Milan, Italy; Visiting Professor, and Luiss University, Rome, Italy; Academic Associate, 39 Essex Chambers, London, United Kingdom.
Kieran Bradley, Judge, Administrative Tribunal of the Inter-American Development Bank, Washington, D.C., United States of America; former Judge, EU Civil Service Tribunal, Court of Justice of the European Union; former Special Adviser on Brexit, Court of Justice of the European Union, Luxembourg; Adjunct Professor, Trinity College Dublin, Ireland.
Graham Butler, Associate Professor of Law, Aarhus University, Denmark.
Tamara Ćapeta,Advocate General, Court of Justice of the European Union, Luxembourg; Professor of Law, University of Zagreb, Croatia.
Michael-James Clifton, Chef de Cabinet, Chambers of Judge Bernd Hammermann, EFTA Court, Luxembourg.
Anthony M. Collins, Senior Counsel; Advocate General, Court of Justice of the European Union, Luxembourg; formerly Judge, General Court, Court of Justice of the European Union, Luxembourg.
John Cotter, Lecturer in Law, Keele University, United Kingdom.
Paul Craig, Professor Emeritus of English Law, St. John’s College, University of Oxford, United Kingdom.
Adam Cygan, Professor of European Union Law, Leicester Law School, University Leicester, United Kingdom.
Sir Alan Dashwood,Queen’s Counsel; Henderson Chambers, London, United Kingdom; formerly Legal Secretary (référendaire) to Advocate General Warner, Court of Justice of the European Union, Luxembourg; Emeritus Professor of European Law, University of Cambridge, United Kingdom.
Geert De Baere,Judge, General Court, Court of Justice of the European Union, Luxembourg; Associate Professor of Law, KU Leuven, Belgium.
Sir David Edward,Queen’s Counsel; Former Judge, Court of Justice, Court of Justice of the European Union, and Court of First Instance, Luxembourg.
Piet Eeckhout, Professor of Law and Executive Dean, Faculty of Laws, University College London, United Kingdom; formerly Legal Secretary (référendaire) to Advocate General Jacobs, Court of Justice of the European Union, Luxembourg.
Stefan Enchelmaier, Professor of European and Comparative Law, Lincoln College, University of Oxford, United Kingdom.
Elaine Fahey, Professor of Law and Jean Monnet Chair in Law and Transatlantic Relations, City Law School, City, University of London, United Kingdom.
Nial Fennelly, Senior Counsel; Former Advocate General, Court of Justice of the European Union, Luxembourg; Former Justice, Supreme Court of Ireland, Dublin, Ireland.
James Flynn, Queen’s Counsel; Brick Court Chambers, London, United Kingdom; formerly Legal Secretary (référendaire) to Advocate General Slynn, Court of Justice of the European Union, Luxembourg.
Eleni Frantziou, Associate Professor in Public Law and Human Rights, Durham Law School, Durham University, United Kingdom.
Vera Fritz, Marie Curie Fellow, University of Copenhagen, Denmark.
Laurence W. Gormley, Professor at the College of Europe, Bruges, Belgium; Professor Emeritus of European Law, University of Groningen, The Netherlands; Bencher of Middle Temple, London, United Kingdom.
Rosa Greaves,Professor Emeritus, University of Glasgow, United Kingdom.
Sir Francis G. Jacobs, Queen’s Counsel; Former Advocate General, Court of Justice of the European Union, Luxembourg.
David T. Keeling, Former Member of the Board of Appeal of the EU Intellectual Property Office (EUIPO), Alicante, Spain; Former Member of the Board of Appeal of the European Patent Office (EPO), Munich, Germany; formerly Legal Secretary (référendaire) to Advocate General Jacobs, Court of Justice of the European Union, Luxembourg.
Jeff Kenner, Professor of Law and Chair of European Law, University of Nottingham, United Kingdom.
Dimitry Kochenov,Head, Rule of Law Working Group, CEU Democracy Institute, Budapest, Hungary; Professor of Legal Studies, CEU Department of Legal Studies, Vienna, Austria.
Theodore Konstadinides, Professor of Law, University of Essex, United Kingdom.
Panos Koutrakos,Professor of EU Law, City Law School, University of London, United Kingdom.
Mitchel de S.-O.-l’E. Lasser, Jack G. Clarke Professor of Law, Cornell Law School, New York, United States of America.
Anna Łabędzka, Senior Lecturer in Law, Kingston University, London, United Kingdom.
Adam Łazowski, Professor of EU Law, University of Westminster, London, United Kingdom; Visiting Professor, College of Europe (Natolin).
Ronan McCrea,Professor of Constitutional and European Law, University College London, United Kingdom; formerly Legal Secretary (référendaire) to Advocate General Poiares Maduro, Court of Justice of the European Union, Luxembourg.
Valsamis Mitsilegas, Professor of European Criminal Law, Queen Mary, University of London, United Kingdom.
Niamh Nic Shuibhne,Professor of European Union Law, University of Edinburgh, United Kingdom.
Peter Oliver,Visiting Professor, Université Libre de Bruxelles, Belgium; Former Legal Advisor, European Commission, Brussels, Belgium.
Aidan O’Neill,Queen’s Counsel; Advocate and Queen’s Counsel, Scottish Bar (Ampersand Stable); Barrister and Queen’s Counsel, Bar of England and Wales (Matrix Chambers); Barrister of Laws (Ireland).
Sébastien Platon,Professor of Public Law, University of Bordeaux, France.
Luca Rubini, Senior Research Fellow in International Law, School of Law, University of Turin, Italy; formerly Legal Secretary (référendaire) to Advocate General Jacobs, Court of Justice of the European Union, Luxembourg.
Daniel Sarmiento,Professor of European Union Law, Universidad Complutense of Madrid, Spain.
Eleanor Sharpston,Queen’s Counsel; Former Advocate General, Court of Justice of the European Union, Luxembourg.
Eleanor Spaventa,Professor of Law, Chair in EU Law, School of Law, Bocconi University, Milan, Italy.
Steve Terrett,Director of Studies, British Law Centre, University of Warsaw, Poland.
Christa Tobler,Professor of European Law, Europa Institute, University of Basel, Switzerland; Europa Institute, Leiden University, The Netherlands.
Takis Tridimas,Professor of European Law and Director, Centre for European Law, King’s College London, United Kingdom.
Alina Tryfonidou,Professor of European Law, Neapolis University Paphos, Cyprus; and Visiting Professor of Law, University of Reading, United Kingdom.
Angela Ward,Legal Secretary (Référendaire), Chambers of Advocate General Tanchev, Court of Justice of the European Union, Luxembourg.
Stephen Weatherill,Emeritus Jacques Delors Professor of European Law, Somerville College, University of Oxford, United Kingdom.
Richard Whish, Emeritus Professor of Law, King’s College London, United Kingdom.
Helen Xanthaki,Professor of Law, Dean of Postgraduate Laws Programmes, Faculty of Laws, University College London, United Kingdom; Senior Associate Research Fellow, Institute of Advanced Legal Studies, London, United Kingdom, President, International Association for Legislation.
Adrienne Yong,Senior Lecturer in Law, City, University of London, United Kingdom.
To be published in Autumn 2022.
Pre-order at at: Hart/Bloomsbury here (20% discount code: CV7).
Citation:
Butler, G & Lazowski, A (eds) 2022, Shaping EU Law the British Way: UK Advocates General at the Court of Justice of the European Union, Hart Publishing/Bloomsbury: Oxford.
Reviews:
‘For almost half a century British Advocates General brought rigour and creativity to the EU’s highest court, while explaining its case law to a common law audience. This book analyses their contribution, and reminds us all of what we have lost.’
David Anderson QC, Lord Anderson of Ipswich, Brick Court Chambers, and House of Lords.
‘Advocates General are often the unsung heroes of EU law. They think hard and creatively. They write the first draft of the judgment which the courts can then work with – or against. The British Advocates General have contributed a lot to the development of EU law. This book shines an important light on the extraordinary influence.’
Catherine Barnard, Professor of European Union Law, University of Cambridge.
‘The jury might still be out deliberating whether there is any distinctly British Way of exercising the role of Advocate General at the Court of Justice. What will nonetheless be obvious to any reader of this book is that selecting brilliant lawyers who did have the privilege of assisting the Court for extended periods of time born fruit, both in terms of enhancing the quality of judicial deliberations of the Court as well as in enabling a Member State to project own ideas, approaches, and legal culture onto the European level. This book is a fitting celebration of that achievement and of a group of remarkable jurists.’
Michal Bobek, former Advocate General, Court of Justice of the European Union.
‘The voice of the EU's apex court is a collective one and on occasion its reasoning suffers as a result. The Advocate General’s voice is very much her or his own, and that single clear voice has often enhanced our understanding of the Court’s judgments, or even convinced us that the Court has taken a false step. I have always thought that the British were amongst the leading exponents of the Advocate General’s art. This book proves me right.’
Derrick Wyatt QC, formerly of Brick Court Chambers, Emeritus Professor of Law, University of Oxford.
“Shaping EU Law the British Way brings together a stellar group of contributors, consisting of former and present Advocates General and référendaires, leading scholars of EU law, historians, and practitioners who offer extensive insights into the legal reasoning of UK AGs. The epistemic richness resulting from the inquiry is one of the main qualities of the book. For this reason alone, the volume will garnerwell-deserved attention from scholars, practitioners, and students who may wish to read up on specific Opinions to refresh their memory.”
