Tomlinson-Online - Shaping EU Law the British Way

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.

Acknowledgements Graham Butler and Adam Lazowski Foreword Anthony M. Collins Introduction Graham Butler and Adam Lazowski PART I: SETTING THE SCENE 1. Let’s Take the Canvass Out: Advocates General at the Court of Justice of the European Union Graham Butler and Adam Lazowski 2. Framing Exercises: The Role of the Advocates General Mitchel de S-O-l’E Lasser 3. Shaping EU Law: Ireland and the Common Law in Europe Nial Fennelly 4. Culture Clash? The UK Tradition of Open Justice and the Court of Justice of the European Union Aidan O’Neill 5. The History and Biographies of the UK Advocates General Vera Fritz PART II: JEAN-PIERRE WARNER: THE EARLY DAYS OF COMMUNITY LAW (1973–1981) 6. Accession to the Communities, and Compensation under the Common Agricultural Policy: Opinion of Advocate General Warner in Ireland v Council Elaine Fahey 7. 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 8. 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 9. Equivalence and Effectiveness in the Enforcement of EU Rights: Opinion of Advocate General Warner in Rewe Alan Dashwood 10. Previous Criminal Convictions and Public Policy Exceptions: Opinion of Advocate General Warner in Bouchereau Christa Tobler 11. Rights of Undertakings in EU Antidumping Proceedings: Opinion of Advocate General Warner in Bearings I Rosa Greaves 12. Free Movement of Goods and the Public Morality Exception: Opinion of Advocate General Warner in Henn and Darby Adam Cygan 13. An Expedient of Proceedings: Opinion of Advocate General Warner in Foglia v Novello I Kieran Bradley 14. 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) 15. Artificial Arrangements and References for a Preliminary Ruling: Opinion of Advocate General Slynn in Foglia v Novello II Daniel Sarmiento 16. The Intrinsic Value of Part-time Work in the Construction of the Internal Market: Opinion of Advocate General Slynn in Levin Jeff Kenner 17. Free Movement of Goods and the Public Security Exception: Opinion of Advocate General Slynn in Campus Oil Graham Butler 18. Ants Working Hard, and the Free Movement of Legal Services as Professional Activities: Opinion of Advocate General Slynn in Klopp Takis Tridimas 19. Blurring the Boundaries of the Free Movement of Goods: Opinion of Advocate General Slynn in Cinéthèque Eleanor Spaventa 20. Formal-Style Reasoning and its Progeny: Opinion of Advocate General Slynn in Marshall I John Cotter 21. Free Movement of Goods and Double Standards in Public Morality: Opinion of Advocate General Slynn in Conegate Laurence W Gormley 22. 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) 23. 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) 24. 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 25. ‘Civis Europeus Sum’, Thirty Years On: Opinion of Advocate General Jacobs in Konstantinidis Dimitry Kochenov 26. Don’t Let Them Steal Our Music Away: Opinion of Advocate General Jacobs in the Legal Duet of Phil Collins and Cliff Richard Adam Lazowski 27. The Relationship between the Action for Annulment and Preliminary Reference Procedures: Opinion of Advocate General Jacobs in TWD Angela Ward and Graham Butler 28. 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 29. Effective Judicial Protection of EU Rights before National Courts: Opinion of Advocate General Jacobs in Van Schijndel Andrea Biondi 30. The Meeting of International Sanctions and European Human Rights: Opinion of Advocate General Jacobs in Bosphorus Piet Eeckhout 31. The Game Over the Boards: Opinion of Advocate General Jacobs in Albany Carl Baudenbacher 32. The Virtue of Moderation: Opinions of Advocate General Jacobs in Oscar Bronner and PreussenElektra Luca Rubini 33. Protecting the Rights of Individuals: Opinion of Advocate General Jacobs in UPA Anthony Arnull 34. Breaking New Ground on EU Fundamental Rights: Opinions of Advocate General Jacobs in Wachauf and Schmidberger Peter Oliver 35. 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 36. Achtung Baby! Objectives of International Agreements Matter: Opinion of Advocate General Jacobs in Pokrzeptowicz-Meyer Anna Labedzka PART VI: ELEANOR SHARPSTON: THE LEGAL ORDER PRE-AND POST-LISBON (2006–2020) 37. When Security Trumped the Rule of Law: Opinion of Advocate General Sharpston in Heinrich Helen Xanthaki and Adam Lazowski 38. The Inconvenience of Names: Opinion of Advocate General Sharpston in Grunkin and Paul Adrienne Yong 39. Legislation, Interpretation, and Equal Treatment: Opinion of Advocate General Sharpston in Sturgeon Paul Craig 40. ‘When Citizens Move, They Do So as Human Beings, Not as Robots’: Opinion of Advocate General Sharpston in Ruiz Zambrano Niamh Nic Shuibhne 41. Access to Administrative and Judicial Review in Public Interest Litigation: Opinion of Advocate General Sharpston in Slovak Bears Theodore Konstadinides 42. The Notion of ‘Court or Tribunal of a Member State’: Opinion of Advocate General Sharpston in Miles Tamara Capeta 43. Mutual Recognition, Mutual Trust, and EU Criminal Law: Opinion of Advocate General Sharpston in Radu Valsamis Mitsilegas 44. Discrimination on Grounds of Religion or Belief and Neutrality Requirements: Opinion of Advocate General Sharpston in Bougnaoui Ronan McCrea 45. EU Competence to Conclude Trade Agreements: Opinion of Advocate General Sharpston in Opinion 2/15 Panos Koutrakos 46. Horizontal Direct Effect of Directives Reconsidered: Opinion of Advocate General Sharpston in Farrell II Eleni Frantziou 47. The Rule of Law, Sincere Cooperation between Member States, and Solidarity: Opinion of Advocate General Sharpston in Temporary Relocation Michael-James Clifton 48. Homophobic Speech and its Prohibition under EU Anti-discrimination Law: Opinion of Advocate General Sharpston in NH Alina Tryfonidou 49. The Right to a Tribunal Established by Law: Opinion of Advocate General Sharpston in Simpson and HG Sébastien Platon PART VII: AFTERWORDS 50. Reflections of an Advocate General: 1988–2006 Francis G Jacobs 51. Reflections of a Judge Acting as Advocate General in the Court of First Instance: 1990–1992 David Edward 52. ‘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 53. Neither Advocates, Nor Generals: The UK Advocates General and the Shaping of EU Law Graham Butler and Adam Lazowski

Shaping EU Law the British WayUK Advocates General at the Court of Justice of the European Union

Shaping EU Law the British Way
UK Advocates General at the Court of Justice of the European Union