Facts and Explainers
Part of the reaction, or backlash, to today´s judgment includes the incredible assertion that the fact that the solution in the judgment was diametrically opposed to the Advocate General´s Opinion somehow diminished the quality of the judgment.
Such a position displays an ignorance of procedure before the EU Court. The Opinion given by an AG is normally requested by the Court itself and is an opportunity to obtain a detailed analysis of one or more possible solutions to the issue before the Court. It is by its very nature non-binding.
The Advocate General’s Opinion at the Court of Justice of the European Union is followed in about 75–80% of cases. However, the judges are not bound by it, and they diverge in roughly 20–25% of instances. While the Advocate General provides a detailed and independent legal analysis, the final judgment rests solely with the Court, which may adopt, modify, or completely depart from the Opinion depending on its own deliberations.
There have been several high-profile cases where the Court did not follow the Advocate General’s Opinion. In **Google Spain (C-131/12)**, AG Jääskinen opposed a broad “right to be forgotten,” yet the Court recognized it, requiring Google to delist links on request. In **Schrems I (C-362/14)**, AG Bot found flaws in the Safe Harbor agreement but suggested nuanced remedies; the Court instead invalidated Safe Harbor outright.
In **Wightman (C-621/18)**, AG Campos Sánchez-Bordona concluded that the UK could unilaterally revoke Article 50 TEU, and while the Court agreed, it gave more precise conditions for such a revocation. In **Coman (C-673/16)**, AG Wathelet advocated strong residence rights for same-sex spouses across the EU; the Court upheld the outcome but based its judgment narrowly on free movement law rather than broader marriage recognition.
These examples illustrate that while the Advocate General’s Opinions are highly influential, they serve ultimately as a guide rather than a command. The Court of Justice carefully considers them but reaches its own conclusions based on legal interpretation, judicial consensus, and the wider context of European Union law.
