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This chapter discusses the changing role of the Advocate General. Essentially, the Advocates' General contribution is, and remains, quasi-judicial. The Court does not deal with EU law in the abstract; it decides cases. The Advocates General helps it perform that job as effectively as possible. In so doing, they also help to place the Court's decision-making in a wider context. They can make use of the individual freedom that they enjoy to explore, to advise and to warn. Provided the role of the Advocate General is enabled to evolve sensibly, Advocates General are as relevant now as when the Court was founded.

This chapter lays the groundwork for making sense of the charged debates currently swirling in French legal circles. It begins with the heated discussions over prospective overruling. This controversy spills over into several others, including the traditional theoretical questions over the proper ‘sources of the law’, recent policy discussions concerning the promotion of ‘legal certainty’, and methodological arguments over the pros and cons of judges engaging in a more ‘realist’ and economically informed mode of legal analysis. The chapter then explains how this cluster of issues has also been linked to the nagging question of the proper role of the Advocates General at the Cour de cassation. Finally, the chapter explains that these procedural, methodological, and conceptual controversies can only be decoded and understood in the context of the ongoing (and interrelated) French and European rights revolutions.

This chapter focuses on the judicial dialogue between the European Court of Justice (ECJ), its Advocates General and the European Free Trade Association (EFTA) Court. The results produced by the cooperation between the ECJ and the EFTA Court are considered a true paradigm for international cooperation between judicial institutions. The European Economic Area (EEA) type of dialogue is affirmative in nature, as far as the ECJ is concerned; and the framework conditions for judicial cooperation in the EEA are particularly favourable.

This chapter describes the European Court of Justice (ECJ), the highest court in the judicial system of the European Union. On the one hand, the ECJ generates official judicial decisions that consist of relatively short, deductive and magisterial judgments that are highly reminiscent of their French counterparts. On the other hand, the ECJ's judicial magistrates — and in particular its Advocates General — also routinely deploy a purposive or ‘teleological’ form of interpretation that stresses the more socially oriented goals of judicial interpretation. In short, the ECJ demonstrates a bifurcated form of judicial discourse that reproduces in large measure the French judicial system's own discursive bifurcation. What characterises and distinguishes ECJ argumentation is the public bifurcation of the Court's discourse. The ECJ publishes multiple judicial and quasi-judicial documents, including the official decision, the Opinion of the Advocate General, and (at least until recently) the Report of the Reporting Judge. This publication practice profoundly affects the discourses deployed by the ECJ and its interlocutors, leading to a particular and distinctive form of embattled judicial reasoning and argumentation.

Sir Francis Jacobs has been one of the most influential Advocates General in the history of the Court of Justice. He became a member of the Court in October 1988 and served until October 2005, thus being the second longest-serving Advocate General and one of the longest-serving members of the Court. This chapter examines his contribution on locus standi of individuals under Article 230(4). The contribution of Jacobs AG in this area of law can be traced primarily by reference to his opinions in Extramet, UPA, and, more recently, ARE. The chapter focuses on his opinion in UPA and the resulting trialogue among Jacobs AG, the CFI and the ECJ as it unravelled in UPA and subsequent case law.

Like the Cour de cassation of France, the European Court of Justice (ECJ) maintains two different judicial discourses, that of its judicial decisions, and that of its Advocates General (AGs). However, the ECJ puts an important twist on its French predecessor: it publishes both discourses in every decided case. The ECJ's simultaneous publication practice obviously produces a serious effect on the types of judicial arguments and reasoning that are deployed in each sphere. Both discourses are public discourses; the disjunction between the two is therefore available for all to see. Perhaps as a result, the ECJ approach softens the bifurcation to a significant extent: neither discourse takes as pure a form as does its French counterpart. Although still highly magisterial and deductive, the collegial ECJ decision does not rival the oracular syllogisms of the Cour de cassation's judicial decision. Although the ECJ's Reporting Judges and AGs adopt explicitly purposive and teleological interpretive approaches, they do not tend to deploy the kind of free-wheeling judicial argumentation oriented towards equiy and substantive justice that characterises so much of the hidden French judicial discursive sphere.

Chapter 2 explores the three distinct roles played by the Court of Justice in European contract law. First, there is the Court’s interpretative role by virtue of its interpretation of various measures falling within the EU contract law acquis. Secondly, while not as widely recognized, there is the Court’s lawmaking role by virtue of its formulation of Union judge-made rules of law falling within the rubric of what is called European ‘federal common law’. Thirdly, there is the recourse made to European comparative contract law materials in the Opinions of the Advocates General, which although not yet undertaken by the Court still has potential implications for its role in European contract law.