Could there be a Rule of Law Problem at the EU Court of Justice?
The Puzzling Plan to let U.K. Advocate General Sharpston Go After Brexit
The Member States’ current plan of replacing the sitting U.K. Advocate General at the Court of Justice before the end of her six-year term raises a serious question whether doing so may violate the European Treaties. If yes, this would be a troubling intrusion on the independence of the Court and the constitutional structure of the Union – just when the EU should be setting an example for the Member States (both current and former).
It began on January 29, 2020, two days before Brexit. Having decided earlier that the U.K. would lose its CJEU judge upon leaving the Union, the Member States turned to the fate of the U.K. Advocate General. After observing that under Article 50(3) TEU “the Treaties cease to apply to the withdrawing Member State from the date of entry into force of the withdrawal agreement [WA],” i.e., February 1, 2020, the Member States declared:
“The ongoing mandates of members of institutions, bodies, offices and agencies of the Union nominated, appointed or elected in relation to the United Kingdom’s membership of the Union will therefore automatically end as soon as the Treaties cease to apply to the United Kingdom, that is, on the date of the withdrawal.”
With Brexit, the U.K. Advocate General’s spot would therefore – so the January Declaration – go into the hopper for the usual rotation, allowing Greece, up next, to nominate a replacement for the “newly vacant post,” i.e. to serve out the AG’s current mandate until 6 October 2021.
This raises a constitutional puzzle. Under EU constitutional law (i.e., the Treaties and the Statute of the CJEU), it seems the U.K. Advocate General’s post is not “newly vacant.” Indeed, unless the AG dies or resigns (Stat. CJEU Art. 5) or “in the unanimous opinion of the Judges and Advocates General of the Court of Justice, no longer fulfils the requisite conditions or meets the obligations arising from h[er] office,” (id., Art. 6), her post doesn’t appear vacant at all – at least not until her current term runs out.
To be sure, the AG’s colleague, the U.K.’s CJEU Judge Christopher Vajda, has already been let go on Brexit Day. But that move was lawful. After all, Article 19(2) TEU provides: “The Court of Justice shall consist of one judge from each Member State.” No Member State, no judge.
But aren’t Advocates General different? Even after the Nice Treaty – in an unfortunate reaffirmation of national identification of high court judges – turned what was previously an informal understanding into the legal requirement that each Member State have their judge on the Court, AGs were not to be so identified. There have always been fewer AGs than Member States. Plus, the treaties glaringly omit any requirement whatsoever connecting the former to the latter.
The system of appointment we all know, with “permanent” AGs from the big Member States and rotating AGs from the smaller ones, is the stuff of non-binding understandings. The principal textual indication comes from declarations, which, unlike protocols, are non-binding statements, even when appended to treaties. Declaration 38 (Treaty of Lisbon), for instance, indicated the Council will agree to increase the number of AGs to eleven if the CJEU so requests, and further:
“In that case, the Conference agrees that Poland will, as is already the case for Germany, France, Italy, Spain and the United Kingdom, have a permanent Advocate-General and no longer take part in the rotation system, while the existing rotation system will involve the rotation of five Advocates-General instead of three.”
The informality of such declarations seems evidenced by the colloquial use of the word “have,” as though AGs were people or things to be had. More important, the use of “will” instead of “shall” underscores that Declaration 38 is not legally binding, but only a good will statement that the U.K. “will … have” an AG.
Doesn’t Declaration 38 thus merely establish a non-binding statement that the other Member States will look kindly upon the U.K.’s nominee when considering appointments to the Court? Declaration 38 does not purport to – nor, one would think, could it – alter the constitutional rule that AGs “shall be appointed by common accord of the governments of the Member States for six years.” (Art. 19(2) TEU). And once appointed, the six-year mandate would seem to run unless the AG is removed pursuant to Article 6 of the Statute of the CJEU.
The Member States might argue that the eighth introductory recital to the Brexit Withdrawal Agreement “consider[s] the end, on the date of entry into force of this Agreement, of the mandates of all members of institutions.” Moreover, the WA defines “member of the institutions” to include Advocates General. (Art. 101 WA) But this definition was “for purposes of this title [on the continuing privileges and immunities of the members of institutions],” i.e., not necessarily for purposes of the recitals.
Even if we read recital eight broadly, recitals (like declarations) generally have no legal force. And while they may be used as interpretive aides, this seems unnecessary where the Treaty is otherwise clear. Also, ought we not to shy away from imposing national identifications on EU high court members unless inexorably required by primary law? To be sure, invoking pragmatism in the face of Brexit, Member States might argue the incongruity of a non-EU citizen serving on the EU’s highest court. There is, indeed, an outdated (and again, non-binding) Joint Declaration on AGs from 1995 invoking nationality. But isn’t that issue moot given the well-known fact that AG Sharpston is (also) a citizen of Luxembourg?
The final puzzle is this: By allowing the AG to stick around until her successor arrives, don’t the Member States admit to her continuing authority serve? And isn’t the only legal basis the AG’s appointment by common accord for “a term of six years” (Art. 253 TFEU; cf. Art. 19(2)), and her duty to sit beyond that time until a successor is picked (Art. 5, Statute CJEU)? If so, by what constitutional authority may the Member States, by mere declaration or recital, terminate the Advocate General early?
Fortunately, the fix to any such problem, if problem there is, would be easy. Just treat the January Declaration as the non-binding statement it is, have Greece continue with its selection, but make clear the AG’s replacement would – despite any previous declaration – begin on October 7, 2021. That would safeguard the independence of the Court, the rule of law, and the constitutional structure of the Union.
Well, many other people could wonder exactly the opposite: is the Court lawfully composed when one of its members is allowed to seat despite the member state which appointed her is no longer member state of the union? There are very good arguments to think that she should have left the court with her UK colleagues. The Court has been more than ‘kind’ with her…
Notably, she was quoted in The Guardian last week as:
Asked whether she might take the EU to the court of justice over her removal, Sharpston said she was considering her case.
“I have not made up my mind,” she told the Law Gazette. “It may be that the very last service I can render to my court is to see whether there is something I can do to push back against the member states intruding into the court’s autonomy and independence.”
Apologies, the original Law Gazette article – by Joshua Rozenberg – is here:
I appreciate the noble aim of this and similar posts on this issue, and am a fan of your other work. However, I am less sure of the soundness of aspects of this post’s legal analysis. Here, I seek to narrow the legal issues and argue that the institutions’ analysis is, at a minimum, strongly arguable.
1. This post accepts that the termination of the British judges‘ mandates was lawful. This is despite the judges‘ mandates only being capable of termination under the same conditions as those of an AG (CJEU Statute art.7). Similarly, appointment ‚by common accord‘ is a feature common to both judges and AGs. It follows that neither of these points can be used to differentiate judges and AGs. The key to the legal puzzle must be found elsewhere.
2. It seems to me that art.7(1)(a) Withdrawal Agreement (‘WA’) is the starting point. This excludes (inter alia) members of the institutions from the meaning of ‚Union law‘ under the WA. This is why the British judges‘ mandate ended with Brexit despite the transition period: art.126, art.128(1) WA. This language in turn echoes, as you note, recital 8 of the WA. It is moreover clear from the 29 January Declaration that recital 8 purports to interpret art.50(3) TEU. The legal authority for this termination are thus art.50(3) TEU and art.7(1)(a) WA, not non-binding recitals. It is the interpretation of those provisions that is the crux of the matter.
3. Whilst this post appears to attack that recital’s interpretation of art.50(3) TEU, I do not understand it to argue that any other member nominated, appointed or elected in relation to the UK’s membership should remain in post. And whilst the post rightly doubts the relevance of art.101 WA, there is no doubt that AGs are members of the CJEU. The argument therefore apparently hinges on the proposition that the office of AG is different from all other roles, such that once appointed the AG no longer has any relationship whatsoever with their proposing MS; and that this requires an exception to that interpretation of art.50(3) TEU.
4. Here, I agree that the law is not clear-cut. As you say, the AG provisions do not include any reference to a link to a particular MS. That stands in contrast to those concerning other institutions (e.g. art. 14(2) TEU re the EP, arts.17(4-5) TEU and esp. 246(2) TFEU re the Commission, arts.285-6 re the Court of Auditors, and Art. 283 re the ECB). The closest the Treaties contain in respect of the AG is the reference to qualifications in their ‘respective countries‘.
5. Having said that, even in the case of other members there is a great deal of variation between (and potential gaps within) the provisions, with some referring to nationality of any MS, some to nationals of individual MSs, and the EP provisions referring only implicitly to a link. Only art.19(2), re CJEU judges, refers to nationals ‚coming‘ from a MS or judges ‚per‘ MS. Taken literally, one might argue that if the British Commissioner (if there were one) or Court of Auditors’ judge also had French nationality, the French could have decided to drop the French Commissioner or judge instead of the British one upon Brexit.
6. This brings us to the final point: constitutional provisions need to be read with a constitutional, not simply a narrowly legalistic, lens. With that lens applied, the ambiguities and gaps in the provisions noted above are easily resolved: the intention and assumption of a link between Member States and members is clear. And applying that same lens, it defies reality to argue that the AG is uniquely exempt from this connection. The practice that they be appointed by determined MSs goes back decades. That practice has been formalised, with strict rules as to the rota, through Declarations made by all Member States. So far from being cleansed of this link upon appointment, the practice is that AGs do not sit in cases referred from their own MS. These matters are plainly relevant to a realistic construction of art.50(3) TEU and art.7(1)(a) WA (in the case of Declarations, see C-135/08 Rottmann para 40) and speak powerfully against the exemption of the AG from this rule.
7. Two final points for completeness: nothing in para 3 of art.5 of the CJEU Statute limits that provision to situations where the judge or AG has already served their full term. That can therefore stand as the authority for AG Sharpston continuing to serve pending the new one taking up their duties. And whilst it is true that CJEU members should promote the European spirit, not their MS’s interests, it does not follow that we must deny the reality of a link to their proposing MS. That requirement to promote European rather than national interests is not unique to Court members: see, for instance, art.17(4) TEU.