It’s Urgent II
The EU General Court temporarily suspends the attempted appointment of a new Advocate General
What happened?
On Friday 4 September 2020, Judge Anthony Collins of the General Court, the judge hearing the application for interim measures as the President and Vice-President were prevented from considering the application, as per Article 157(4) of the Rule of Procedure of the General Court, ordered the suspension of operation and all consequential effects of the Decision of the Representatives of the Governments of the Member States, in so far as it purports to appoint Mr. Athanasios Rantos to the position of Advocate General of the Court of Justice (the ‘2 September 2020 activity’).
The Order of Judge Collins in Case T-550/20 R, Sharpston v. Council and the Representatives of the Governments of the Member States on 4 September 2020 thus suspends, for now, the action by the Member States misguidedly impinging on the independence of the judicial branch of the European Union. The order of the judge hearing applications for interim measures against the imminent questionable appointment of a new Advocate General, attempting to displace an incumbent before the end of her term of office, was exactly the course of action we expected Advocate General Sharpston to take in our 3 September 2020 contribution to this blog.
Significance
The significance of this extremely urgent development for the independence of the judiciary in the EU and the general articulation of the rule of law in Europe is difficult to overestimate. The interim measures procedure has never been used by the EU courts before to suspend, with immediate effect, an undermining effort by the Representatives of the Governments of Member States against the principle of the irremovability of a sitting member of the Court of Justice whose mandate has not expired. Such undermining efforts on the judicial branch show blatant disregard of the principle of judicial independence and the standards of Article 19 TEU and Article 47 of the Charter (CFR), as well as the values of the Union (and the Member States) articulated in Article 2 TEU.
A healthy system of the separation of powers presupposes conflicts about how far the influence of one branch over the others would stretch. In the EU, with its long-established principle of institutional balance safeguarding the independence of the Court of Justice – the possible arbiter in case of any inter-institutional conflict – is of particular importance. The rule of law, a constitutional principle of the Union, has long been understood to imperatively demand that all the decisions of the institutions and organs of the Union (as well as the Member States, of course) should be grounded in the law. As Advocate General Sharpston rightly submitted in this new case, her third (for procedural reasons – Cases T-180/20, T-184/20, and now, T-550/20), Union law allows for the appointment of 11 Advocates General for the duration of 6 years. This lack of a vacancy is of vital importance.
The Order of 4 September 2020
Judge Collins confirmed in his Order of 4 September 2020 that in the case, ‘[a]s of the date of the making of this order each of these eleven posts are occupied’ (paragraph 4 of the Order). The action of the Representatives of the Governments of the Member States purporting to appoint Mr. Rantos as an Advocate General regardless is most surprising in this context, given that the vacancy is simply not there, as has also been explained by Professors Halberstam, Pech, Kochenov, and the two current authors. In this context, reasoned Judge Collins, the appointment, should it go ahead, will ‘terminate [Advocate General Sharpston’s] mandate’ (paragraph 7 of the Order) before the term she was appointed to expires, in line with the EU Treaties.
The consequences of having a member of the Court of Justice whose appointment is questionable, if Mr. Rantos is proceeded to be appointed to the Court of Justice, also played a role in the Order of Judge Collins. In explaining his Order, which lasts until he can determine the interim measures application itself, he laid special emphasis on the criterion of the proper administration of justice. Specifically, he stated that ‘[a]s for the criterion of the proper administration of justice, the negative consequences of replacing a lawfully appointed office holder by someone whom may ultimately be deemed to have been appointed unlawfully, are self-evident. Such a scenario is not in the interests of the applicant nor in those of her possible successor. Nor, since such a result would generate challenges as to the composition of the Court of Justice, thereby impugning the validity of its judgments, is it in the interests of the application of the rule of law in the European Union not to accede to this application’ (paragraph 13 of the Order).
The use of interim measures
As we have already pointed out earlier this week, the timing of this effort by the Member States against the principle of irremovability and independence of the judiciary is particularly poor. The Court of Justice has been the only institution of the Union achieving (at least some) success in fighting against the identical developments in Poland and Hungary, where the executive would either pretend that the law simply does not exist – as happened with the Polish Constitutional Tribunal – or that they can change the terms of mandate of the appointed members of the judiciary with backfiring force – as happened in Poland and Hungary.
The Order of Judge Collins fits within the growing practice of the necessity at the EU courts to use the interim measures tools at their disposal to safeguard the rule of law. The Court of Justice has effectively deployed and constantly perfected the interim measures with respect to Poland, from halting the change in the retirement age of the Polish Supreme Court judges, which resulted in the curtailment in their mandates established by law with a backfiring force (Order of the Court of 17 December 2018 in Case C-619/18 R, Commission v Poland (Independence of the Supreme Court)) referring to the ‘serious damage’ to the EU’s judiciary, which is ‘also likely to be irreparable’ (paragraph 70), should the legally established mandates of the Judges of the Supreme Court be reduced. The Court also made a direct connection between the cardinal principle of irremovability of judges as an essential part of guaranteeing the independence of the judicial branch and the values of Article 2 on which the Union is built. Similarly, by the Order of the Court of 8 April 2020 in Case C-791/19 R, Commission v. Poland (New Disciplinary Regime for Judges) the Court granted interim relief against the ‘Disciplinary Chamber’ of the Polish Supreme Court, which has already been clearly ruled as failing to meet the independence criteria of Articles 19 TEU and Article 47 CFR by the Supreme Court applying Court of Justice’s guidance received in the case of Case C-585/18, A.K. and Others.
The link between the EU judiciary and national judiciaries
Some commentators question the connection being made between this attempt at the Member States sacking a member of the EU judiciary on the one hand; and rule of law challenges in EU Member States on the other hand. However, regrettably, they are highly interlinked in their substance. There is no room for double standards as far as the requirements of the Articles 2 and 19 TEU as well as Article 47 CFR go. The EU itself is unquestionably bound by such requirements as much as any national bodies in Member States.
In this context, cutting the mandate of a member of the EU judiciary without any legal basis in the EU Treaties is a violation as significant as the one the Court prevented in the Commission v. Poland (Independence of the Supreme Court). The only manner in which the EU Treaties allow for a member of the Court to be deprived of their office is if all judges and advocates general, unanimously (except for the member concerned), decide so (Article 6, Protocol No. 3 on the Statute of the Court). The EU Treaties protect Advocate General Sharpston’s mandate against illegal actions by the Representatives of the Governments of the Member States in the same way as it does for members of national courts. Unlike some commentators seem to believe, who claim the intentions are different; the reasons do not matter here: only the illegality does. An illegal action is a threat to independence, whatever the motivation. A ‘cardinal’ principle cannot have two meanings, protecting judicial independence and irremovability at the national level, while protecting none at the EU level.
What happens now?
It must be remembered that the order of 4 September 2020 merely ensures nothing changes on Monday 7 September 2020, when Mr. Rantos was to enter into office according to the 2 September 2020 activity. As succinctly put by Judge Collins, the issues at stake in the case require ‘detailed and comprehensive argument before the judge hearing the application for interim measures before the application for interim measures can be ruled’ (paragraph 12 of the Order). It must be borne in mind that the Order of Judge Collins of 4 September 2020 is not a final interim measure order. Rather, it is predicated on a suspensory measure that maintains the status quo (paragraph 8 of the Order) until the interim measures application is fully dealt with.
In particular, it has to be recalled that appointments to the Court are made by ‘common accord of the governments of the Member States’ (Article 19(2) TEU, third paragraph). The Order of Judge Collins has not fully injuncted the common accord, as it will have to be assessed later whether such a common accord is a judicially reviewable act. For now however, the Order of Judge Collins merely suspends the effects of the common accord on a temporary basis, until it later sees fit. Thus, the interim measures proceedings can be considered to be continuing proceedings.
The defendants in Advocate General Sharpston’s case – the Council and the Representatives of the Governments of the Member States – have been given until 11 September 2020 to submit their written observations on the interim measures application so involve further pleadings before Judge Collins. The appointment of Mr. Rantos to the position of Advocate General, whose appointment is not grounded in the law, will now not happen on the date announced in the press release on the Council’s website on 2 September 2020, which was meant to be Monday 7 September 2020.
An abandoned alternative approach
The question must be raised as to why Member States are forcefully acting in such a manner like their 2 September 2020 activity. In the Order of Judge Collins of (paragraph 11 of the Order), it was alluded to the fact that Article 50(3) TEU is of disputed interpretation. Notwithstanding the lodging of this new case (Case T-550/20) with a request for interim measures, the prior actions of the Council and the Conference of the Representatives of the Governments of the Member States are subject to ongoing proceedings before the General Court (Case T-180/20). The interpretation of Article 50(3) TEU is of concern in both cases.
The issues prior to the 2 September 2020 activity, that has led to Case T-550/20, could have been resolved through ordinary judicial processes, had Member States acted diligently. Instead, the Member States have taken the heavy-handed approach by proceeding to attempt to appoint a new Advocate General, presenting the applicant with a fait accompli, thus rendering the proceedings in Case T-180/20 (and Case T-184/20) irrelevant. It is no wonder that the only means of redress for Advocate General Sharpston was to seek judicial protection from the EU General Court.
It has been accepted that Advocate General Sharpston could remain a member of the Court after Brexit had formally occurred (31 January 2020). Indeed, she has issued seven Opinions since then. This continuation in office, as we have previously analysed, is not the case for judges. It is therefore completely mystifying why the Member States have tried to curtail the appointment of a member of the Court in such a brazen manner. The new Advocate General could have been appointed already to take up office from October 2021, without any legal difficulty.
Conclusion
It is deeply disappointing that the Court of Justice, which has done so much for the articulation of the principle of judicial independence in the recent years, would come under threat from the Member States, collectively disregarding this principle. Blocking illegal moves on time in the courts of law acting impartially and in full compliance with the cardinal principles as well as the letter of the law is precisely what the rule of law boils down to. Judge Collins has demonstrated – in the face of an undermining of the EU judiciary by the Member States – that the EU is indeed a Union based on the rule of law.
Viewed in this light, the Order of Judge Collins is of crucial significance for the protection of European judiciaries at both EU- and Member State-level, ensuring compliance with the principles of Article 19 TEU in the face of an arbitrary undermining effort against the mandates of the members of the judiciary. An illegal termination of a legally guaranteed mandate of a member of the EU judiciary is not in line with Article 19 TEU. It has to be undone. The Order of Judge Collins is a step on this path, and we await further developments.
Preliminary remark: of course the interim measures have been granted: the new AG was meant to start tomorrow. Therefore, not granting the interim measures would have meant that the pending cases become largely theoretical. Indeed, there would have been no way back. However, if you read the order from Mr Collins, there is very very little in it. The bare minimum to justify the granting of the measures. Sure, Mr Collins had only a few hours to write. Yet, he really (and rightly) stays away from saying anything concrete on the fumus boni iuris. So, it is far too soon to call it a victory for sharpston.
Main point I want to make: the title of this post should have been ‘It is selfish, Part II’.
In a recent Opinion Ag Sharpston wrote: ‘Through their participation in that project and their citizenship of European Union, Member States and their nationals have obligations as well as benefits, duties as well as rights. Sharing in the European ‘demos’ is not a matter of looking through the Treaties and the secondary legislation to see what one can claim. It also requires one to shoulder collective responsibilities and (yes) burdens to further the common good. Respecting the ‘rules of the club’ and playing one’s proper part in solidarity with fellow Europeans cannot be based on a penny-pinching cost-benefit analysis along the lines (familiar, alas, from Brexiteer rhetoric) of ‘what precisely does the EU cost me per week and what exactly do I personally get out of it?’ Such self-centredness is a betrayal of the founding fathers’ vision for a peaceful and prosperous continent. It is the antithesis of being a loyal Member State and being worthy, as an individual, of shared European citizenship. If the European project is to prosper and go forward, we must all do better than that.’
Don’t these words sound hollow now? It is easy for her to write this when the target is someone else. But when the person doing the cost-benefit analysis of ‘what do I get from this?’ is herself, suddenly these beautiful ideas (and ideals) are not valid any longer. You do not believe her conduct is selfish? Give it a thought.
First, it is undisputed that the situation of a Member State leaving the Union was not really considered realistic and thus there are no clear and specific rules to govern the situation of what happens after an exit. Piris and other insiders wrote that expressly. The fact that the interpretation of Art. 50 created so much trouble also shows this. So, yes, there are no clear-cut provisions that govern the situation of the AG appointed by the Member State leaving the Union. Nevertheless, as many commentators pointed out, the arguments put forward by Ms Sharpston are over formalistic and over legalistic. It is obvious to most of us that the situation of a Brit and Brit-appointed Member of the Court deciding on the proper application and interpretation of EU law is not acceptable for the 27 remaining Member States, their Governments and (arguably, most of) their citizens. Yet, AG Sharpston does not seem to care about that. Notwithstanding the fact that the UK-appointed judges have, very elegantly and very professionally, left… Despite the fact that the Brit Commissioner and the British members of the EP and of the other EU bodies have also left. Only her has ‘chained herself to her chair’, almost as she had a sacred and divine right to continue her mandate.
Second, she will most probably lose the procedure and then of course she (and the likes of Prof Kochenov) will tour the EU universities, criticizing the Court and crying about a ‘rule of law’ breach. This will inevitably undermine the credibility of the institution which she served for almost 2 decades. By implication, this will have negative consequences on the European project as a whole (if you delegitimise the Court….). In this period of crisis, clearly we could do without this. In fact, she’s playing in the hands of Orban & Kaczinsky Yet, Ms Sharpston does not care that she will hurt the very institution she served, and the EU project. She also do not care that she will help the worst EU politicians. As long as she gets and extra year of mandate…
Third, the situation leads to an inevitable waste of resources. She will remain in a limbo for the duration of the proceedings. Obviously, in this period she will not be given new cases. So, the EU taxpayers will continue to pay the salary of Ms Sharpston and her cabinet despite they can do very little work. Plus, the Court will also be, de facto, without a member. Yet, she does not care. She seems to be happy to have prevented a new member and his team to start working.
…. So much about coherence! Lots of respect for the AG and the referendaires who wrote her Opinions. Regarding the person, it is for everyone to judge her conduct
One of the few instances at the Verfassungsblog where the comments are more concise, thought-through and on point than the actual blog post.
A pity that the VerfBlog is choosing to be the home of sensational posts rather than academic writings. Indeed, we are being fed with a series of half-cooked, hasty (in view of the ‘urgency’..) posts on a non-issue – the effects of which may only be to make us question our long-standing admiration of AG Sharpston.
Perhaps this is an emperor-clothes question, but certainly one which a bachelor student (mentioned in the first Blogpost) would ask – how can an act of (the) EU’s member states be subject to judicial review before the ECJ? It is certainly not a decision of an institution. Where is there any room for Art 267 TFEU here? (and, yes, I am aware of the AETR case law…).
This is an interesting thought. Sharpston chose the way of bringing action i.a. against the Council. This may fail unless nomination will be attributed to the Council which may well happen (see https://www.consilium.europa.eu/en/press/press-releases/2020/09/02/eu-court-of-justice-three-judges-and-an-advocate-general-appointed/). Action (exclusively) against the “Representatives of the Governments of the Member States” could well be inadmissible since it is unlikely they can be interpreted as within the meaning of “bodies, offices or agencies of the Union”.
Please also note this is a case of Art. 263 TFEU.
In a tweet, Prof Kochenov just wrote, in practice, that Mr Collins has avoided the Belarussization of the EU.
Is there anything to add to such a comment?
Last time I checked, there were no free elections in Belarus, internet was shut down before election day, opposition leaders were arrested and protesters were (and still are) being tortured. Surely there are ways to improve democracy and protection of fundamental rights in the EU too, but comparing the Union to Belarussia is really a low point in Prof. Kochenov’s writings. By the way, the Governments that are (arguably) doing worse in that regard are precisely those that, as far as I understand, have asked to intervene in support of Ms Sharpston. Curious, isn’it?!
Oh, by the way, other EU Governments too have had their issues. For ex. free press seems to be an issue in Malta, where the Govt has also sold its (and, by implication, the EU) citizenship to Russian oligarchs. Yet, Prof Kochenov has never written about a Belarussisation of Malta. Actually, the opposite is true: https://verfassungsblog.de/passport-trade-a-vicious-cycle-of-nonsense-in-the-netherlands/
So, maybe instead of elevating oneself as the the ultimate defender of the ‘rule of law’ and censor of the evil EU institutions, trumpeting eye-catching but ludicrous slogans around, a distinguished observer could approach serious matters … seriously (and perhaps with a good dose of humbleness).
A footnote: In EU scholarly literature “Belarusisation” came to be a reference to ignoring the basics of the Rule of Law ever since Uladzislau Belavusau’s wonderful case-note on the Commission v. Hungary case in the CMLRev: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2303963 (at p.7). Disregarding the principles of irremovability of judges and judicial independence is a classical example of Belarusisation on this count. Humbleness is what is preached in Belarus.
Dear Dimitry, you are right there but particularly when using Twitter, you should be aware that your audience may not fully be composed of EU scholars and hence may not be aware of the meaning of the term, particularly given the current circumstances when Belarus (for the first time in quite some time) features so extremely prominently in the media and gets the attention of everybody i.e. also loads of people who are not EU scholars. This widely opens the door to misunderstanding.
Verfassungsblog used to be a place where one could come and read some really interesting articles, well researched and well argued. I’m afraid that this is not one of those articles. As a regular reader, I have had the misfortune of reading the ”passport-gate” articles that served no purpose other than to depict Dimitry Kochenov as a victim while simultaneously omitting the facts of that case. The same ”depth” of analysis is present in these ”It’s urgent” articles that omit some of the very important legal issues (for example, the fact that we are not dealing with a decision taken by any of the EU institutions, as correctly observed by T. Simonoce above) and present this problem as a one-sided issue with a clear legal solution, obvious to everyone. It is very very far from that as we can see even from the authors who, in essence, take the same view as the authors here, but are intellectually honest and do not exclude that it could be decided otherwise. What these ”urgent” articles aim to do is to draw a parallel between the EU and the countries like Hungary and Poland that casually clash with the rule of law principle. It is not just ridiculous to go there, it is unsubstantiated and- to be completely honest- amateurish. This reads more like an unprofessional anti-EU agitation than anything else. To conclude, I guess that the number of almost unanimously negative comments under these articles says it all.
As I long-standing reader and fan of Verfassungsblog, I can only fully agree with and endorse this comment. What often happens in blogs and social media is that there is an excellent piece of work, well crafted and argued – and that the ‘comments section’ is all over the place, short, no substance, at times nasty and full of trolls. With all due respect, in no way to be taken personally, and only on terms of substance: the ‘It’s Urgent I and II’ contributions are, sadly, an example of the opposite: there is more substance in the comment section combined that in the articles… The fact that the articles do not engage with and reflect the comments appears as a case in point.
I cannot but largely agree with the criticism expressed in the above comments but I’d like to speak in favour of Verfassungsblog’s editors (believe me, not paying a lip service).
We can all (rectius, most of us can) agree that: (i) the 2 posts by Kochenov and Butler are superficial (the legal arguments put forward are, at first sight, not very solid) and incomplete (the many arguments against are not mentioned, let alone engaged with), (ii) the tone of those posts is a bit pretentious and arrogant (in their view, not only everything is obvious and clear-cut, but also astonishingly and outrageously illegal), and (iii) the thrust of the posts (it is a problem of rule of law, similar to those experienced in Poland or Hungary) is (I apologise for being blunt) legally, politically and scientifically ‘nuts’. Yet, is it for VerfBlog to go check that? Let me rephrase it, considering the fact that the posts are on a very topical and interesting issue, that they are written by real academics, that they reflect some arguments being currently litigated before the Court, and that they are written in plain and understandable English, what other checks can we expect VerfBlog to carry out? Actually, it is good that they are there since most observers can now form a better view of those issues, by comparing what argued in those posts with what the many commentators having posted a reply have brought to light. If Kochenov and Butler are happy about what they wrote, and do not find troubling the info and arguments that many commentators have posted in their replies, why should it be for the editors of VerfBlog to intervene? On VerfBlog, just like in any virtual and non-virtual situation, homo faber est suae quisque fortunae.
n Brussels it is widely circulating a tweet by AG Sharpston in which she thanks her legal team for the victory last friday, and also thanks the ‘impartial judge’ she has found. Some people are reading this as if AG Sharpston is suggesting that, had it not been for Mr Collins, she might have ended up with a not-so-impartial judge hearing her case. I am unable to say whether or not this reading reflects the thinking of AG Sharpston. However, it is fair to say that the ambiguity of the tweet is unfortunate. As is the whole situation of a sitting Member of the Court that sues the EU Member States (the Masters of the Treaties), the Council (the main branch of the EU legislature) … and the Court of Justice itself! If it were not tragic (for the potential consequences on EU’s credibility) it would be farcical: a Member of the Court suing the Court before the Court. While sitting there and in order to remain there, notwithstanding the fact that she mistrusts some of her colleagues. Frankly, Monty Python could have not come up with anything better than this.
How do we save the credibility of the Union, the standing of the Court, permit the Court to be fully operational again (AG Sharpston can no longer be active), save taxpayers’ money, while protecting the interest of Ms Sharpston and permitting the situation to be clarified? More simply, is there a practical and easy way out of this mess?
Yes, there is. And this (not what suggested by Kochenov and Butler – I too agree with previous observers who have explained why their arguments lack any foundation) is truly urgent.
First, Mr Sharpston should immediately resign (or just ask the General Court to withdraw the interim measures, so that her Greek successor can take office). At the same time, she can publicly declare that she does that only out of respect for the institution she is serving and that she still thinks the appointment of her successor is an unlawful act.
Second, she withdraws the actions for annulment lodged before the General Court.
Third, she starts an action for non-contractual liability against the Union (represented by the Council, Court and, as the case may be, the Member sStates of the Union) under Article 268 TFEU and Article 340, second and third paragraphs, TFEU.
The legal arguments put forward will be the same of those already used in her current proceedings. The EU Courts will thus have to assess whether Ms Sharpston’s mandate was validly terminated and a new AG could be validly appointed to replace her.
Any compensation that she might obtain could be given to charities (why not those fighting for the rule of law?). In any event, she does not even need to ask for compensation as the EU Courts have consistently accepted that the applicant could act for a symbolic compensation (1 EUR, or the mere recording in the judgment of the unlawful event / see e.g. Cases 18/78, 44/85, 77/85, 294/85 and 295/85).
If AG Sharpston is truly acting in the interest of the (rule of) law all this mess is unnecessary and undesirable. What she is doing can only hurt the very causes for which she has worked her entire life (rule of law, EU integration, authority of the Court). There is another way to raise the issues that she is raising. The current situation is a just a lose-lose situation.
What would be the effect of a ruling in favour of an action for symbolic damages? Such damages could be awarded only if the appointment of the new AG were ruled unlawful. Where would that leave the Opinions of that AG delivered before the ruling?
The commentators of „It is urgent “ addressing the contested dismissal of the advocate general Eleanor Sharpston after Brexit and „It is urgent II“ praising interim measures by the General Court is convincing when the strongly oppose their authors.
Equating the situation with a serious breach of the rule of law is a short circuit. The authors ignore specifics of the European Union, the Court of Justice in its judicial system, and auxiliary role of AGs in delivering of legal expertise for further adjudication. Mentioning Belarus in this regard is frankly bizarre. Commentators explain it well. Therefore, we will hint at some less discussed aspects.
The supporters of AG Sharpston mention, if not highlight, her double British – Luxembourgish nationality. Calling in the question of the notion of nationality as such is a recent tendency of progressivist scholars. Nevertheless, we encounter here the very problematic phenomenon which many countries try to suppress, being frequently a privilege of wealthy mobile elites. Acquired for whatever reason by AG
Sharpston, it is an accidental aspect. Let us consider the same situation without this second nationality.
The nomination of the EU judges and AG as quasi-judges by the member states reflects undoubtedly the reality of the supranational polity. However, it has profound reasons. Individual ties with the member states and their legal milieu serve an exchange of legal ideas from top to bottom and vice versa across linguistic and legal-cultural barriers. This exchange is instrumental in stabilizing the fragile supranational structure. From this point of view, the withdrawal of a member state is an ultimate calamity.
The authors and other partisans frequently highlight qualities of AG Sharpston as the most talented, endowed, and renowned jurist. Indeed, she is charismatic. AGs specific position – delivering as individuals lengthy opinions – undoubtedly fuels this attitude. Nevertheless, this elevation to judicial celebrity is cumbersome. It reveals that there are options in interpretation in substance and style. It invites for critical scrutiny. Many experts and scholars deeply involved and engaged in European legal integration show sympathy and applaud it as a modern, courageous, progressive, pro-European interpretation. Others, however, increasingly doubt about this approach as judicial activism and ardent Europeanism in general during cumulating and escalating Euro-crises. Unfortunately, the first camp mutates now from a fan club to defenders of the besieged town. This club is eager to reward the legal official perceived the most loyal to European idea from a country which committed high treason to that idea.
One commentator writes that AG Sharpston will lose her case badly. I am afraid that she will win. There is understandable collegiality. Could there be an impartial adjudication in such situations before the European Court of Justice? The pressure of the fan club outlined above will contribute to it. Its applause will follow.
Nevertheless, such an approach will alienate the entirety of the member states and distaste of a broader public suspicious increasingly towards any elites, including judicial ones. Convincing even those laymen sensitive for the independence of the judiciary that AG Sharpston must deliver its opinions in the next thirteen months is mission impossible.
Let us imagine the opposite situation. A slightly different legal arrangement would allow for the retention of a Briton in a high office of the European Union after Brexit. The competent authorities of the European Union think that a particular Briton is so excellent that they offer continuation. Nevertheless, (s)he declines this offer politely, recognizing thus his/her responsibility for sinister development resulting in falling off his/her country, despite limited individual power to hinder it.
When reading about the black belt in karate, an idea comes to mind. Samurais committed seppuku in these situations to save their dignity.
In the light of some of the comments above, what does anyone think of the idea that the Member States might be found to have breached EU law, but only in a “very specific and limited way”, as the UK Government reportedly proposes to do vis-à-vis the Northern Ireland protocol?
Not much.
Counter-“idea”:(All of the) Member States (together) cannot break “EU law”, they can only make it. TEU, TFEU, Rule of Procedure of the General Court etc., are, as far as the Member States are concerned, not a binding constitution or laws but a contract, that they can change as they please. Therefore, if all of the Member States together do something that appears to be a breach of “EU law”, what really happened is that they agreed upon an implied and unwritten change to the underlying contract.
[As rightly mentioned by a previous commentator, the question of non-contractual liabilty might be a seperate matter.]
Aha – and what about Article 48 TEU? Surely MS are bound by that provision? That said – since there is no breach here (see Ob W Ius’ comment), contrary to the deplorable Northern Ireland issue, this is a theoretical question.
My reply was meant as seriously as the “idea”-post before.
And the reasoning in that line of thought would be that (all of the) Member States (together) can in theory informally unbind themselves of the procedural requirements of Article 48 if they change their mind.
I think that my “idea” may have been taken by some a little more seriously than it was intended. It was by no means frivolous, but it was admittedly mischievous, in that I sought to suggest a comparison between the UK Government’s position, namely, that it is necessary to define some aspects of domestic law to prevent an international agreement having deleterious effects, with the view that it is necessary to interpret Article 50 TEU, having regard both to its purpose and to the well-known political agreement between the Member States as regards appointments of Advocates General, in such a way as to override a narrow reading of Article 19 TEU and Article 6 of the Statute of the Court.
While I can see that both points of view (broad, purposive interpretation of Article 50 and narrow interpretation of Article 19 TEU and Article 6 of the Statute) can be argued, it seems to me that they are mutually exclusive. Thus, on a broad and purposive interpretation of Article 50 TEU, Eleanor Sharpston’s term of office should have come to an end at midnight on 31 January 2020. The fact that it does not appear to have done so can only be due to a narrow interpretation of the last sentence of Article 5 of the Statute (“Save where Article 6 applies, a Judge shall continue to hold office until his successor takes up his duties.”).
There appears to me to be some tension between the latter interpretation, presumably accepted by the Member States, and the purposive interpretation of Article 50 TEU. There is thus a degree of confusion in the approach of the Member States.
However, Judge Silva de Lapuerta’s order (which, by the way, contains the same factual error as Judge Collins’s order, in that Eleanor Sharpston was appointed from 1 January 2006 not for six years but until 6 October 2009) is not based on any such reasoning, but on the legal impossibility of review by the Court of Justice of a decision taken jointly by the Governments of the Member States.
That, it seems to me, has always been the biggest stumbling block that Eleanor Sharpston had to overcome.
It is true that Judge Silva de Lapuerta’s order speaks only of “prima facie” manifest inadmissibility in that regard, but how easy will it be for the main proceedings before the General Court to go forward in such circumstances?
Allan, from what I read here (and hear in the EU bubble) most people (and by that, I refer more specifically to lawyers) do not think that there is any breach at all. So, not only the claim that it is a rule of law issue (made in these two blog posts) is out of this world, but it is in fact a NON issue. Under what possible, conceivable, interpretation of the law Brexit implies the departure of (i) the UK judges at the Court and General Court, (ii) the UK Commissioner, (iii) the members of the Parliament elected in the UK, (iv) the UK member of the Court of Auditors, (v) the UK member of the European Investment Bank’s Board of Governors (et etc etc) BUT does not and cannot affect the UK Advocate General? As someone else rightly pointed out, Brexit means Brexit fort the WHOLE world, apart from Ms Sharpston?!
According to today’s press release of the CEJU, “Mr Mr Athanasios Rantos took his formal oath this morning during a public hearing for the delivery of judgments and opinions of the Court of Justice”.
This followed a conclusion reached by the court that Sharpston’s case was inadmissible because it challenged a decision that was taken not by an institution of the EU, but by national representatives.