11 September 2020

It’s Urgent III

AG Sharpston Dismissed in a Radical Move: The Court of Justice Proclaims its Own Lack of Independence

10 September 2020 was a watershed moment for the Court of Justice’s independence: the Court, through its Vice-President, has agreed to dismiss its own sitting member without even notifying her of the appeal against the suspensory order protecting her tenure guaranteed in the EU Treaties. It did so by arguing, effectively, that the Member States could dismiss members of the Court at will, and that such decisions were beyond judicial review: AG Sharpston’s fight for the independence of the Court, according to that very Court through its Vice-President, had ‘prima facie’ ‘no prospect of success’ (para. 29 of both orders infra). 

What happened on 10 September 2020? 

Without formal prior notice, or publicity that appeal proceedings were brought against the Order of Judge Collins (Act II of the drama), on the morning of 10 September 2020, the Vice-President of the Court of Justice, Judge Rosario Silva de Lapuerta delivered two Orders (Case C-423/20 P(R) and C-424/20 P(R)), setting aside the Order of Judge Collins of 4 September 2020. AG Sharpston was thus dismissed, à l’hongroise (paras. 62 and 79) et à la polonaise (para. 40), notwithstanding the tenure term set in the EU Treaties, thus in direct breach of Article 253 TFEU.

The day after the Order of Judge Collins was made, on 5 September 2020, both the Council and the Representatives of the Governments of the Member States lodged an appeal against the Order of Judge Collins. The appeal was lodged ex parte. No notice of this appeal was given to AG Sharpston. The first time AG Sharpston heard of the mere existence of the appeal that was brought was when the Vice-President set aside the Order of Judge Collins on the morning of 10 September 2020, whilst her replacement was being sworn into office. AG Sharpston was not presented with an opportunity to present written or oral argument before the Court of Justice on anything at all.

In absence of AG Sharpston, but in the presence of Mr. Rantos, as Luxembourgian Paperjam reports, the Vice-President of the Court of Justice ruled that the appeal brought by the Council and Representatives of the Governments of the Member States was admissible. This Order of the Vice-President was without mentioning that the Order of Judge Collins was not final, or taking account of the reasonable deadline that he set, within his mandate as per Article 157(1) of the Rules of Procedure of the General Court, for the respondents to submit observations set for 11 September 2020 had not even expired. 

The Vice-President ruled that AG Sharpston did not have a ‘prima facie case’ in relation to the main case in which the ‘interim interim’ measures Order by Judge Collins had been issued (para. 22 of both Orders). She found that Judge Collins erred in law (para. 29 of both Orders) since the act in question under Article 253 TFEU was adopted by the Representatives of the Governments of the Member States and not the Council of the European Union (para. 24 of both Orders) on the assumption that no case can, per se, be brought against the decisions of the Member States not meeting in Council or the European Council. This was apparently deemed to be the case, even in the context, like that of the case of AG Sharpston, where such Representatives expressly lack the clear and precise competence to act conferred on them by the EU Treaties. Vice-President Silva de Lapuerta thus ruled as if Article 253 TFEU did not require expressis verbis that the appointments be done for ‘six years’. The six-year mandate of the members of the Court, as Vidigal points out, is not ‘until the [Member States] decide otherwise’. 

Moreover, found the Vice-President, the acts of the Representatives of the Governments of the Member States could not be subjected to judicial review, given they fall outside the scope of Article 263 TFEU (para. 28 of both Orders). To reinforce her claim of prima facie inadmissibility, the Vice-President further relied on Parliament v. Council and Commission (C-181/91 and C-248/91) to claim that ‘representatives of their governments, and thus collectively exercising the powers of the Member States, are not subject to judicial review by the courts of the Union’ (para. 26 of both Orders). The argument however appears faulty on the face of it, since the Representatives of the Governments of the Member States would obviously be limited to appointing 11 Advocates General, as Judge Collins rightly pointed in his Order. In the absence of a vacancy, the Representatives of the Governments of the Member States cannot legitimately refer to Article 253 TFEU to appoint yet another Advocate General if the consequence is undoing the previous appointment, in direct breach of the six-year term of office established by that very provision. 

In other words, the Vice-President failed to make clear that the Representatives of the Governments of the Member States simply did not have the power to appoint any Advocate General legally using Article 253 TFEU without the direct breach of the EU Treaties, as long as a vacancy has not arisen, which was the case at issue. The reasoning offered by the Vice-President thus authorises abuse of power by the Member States in the cases where the scope of action taken by their common accord should be very specific and clearly articulated in the EU Treaties. Under Article 253 TFEU, Member States are acting in a capacity that the EU Treaties give them the competence to do so, and is not just an exercising of ad hoc actions outside of the EU legal framework. Certain of the Court’s powerlessness in the face of an ad hoc decision of the Member States not called for by Article 253 TFEU and, indeed, taken in direct breach of this provision, the Vice-President took the final decision to set aside the ‘interim interim’ measures Order of Judge Collins (paras. 31-36 of both Orders). 

In essence, this means that no substantive decision has been reached in the cases launched by AG Sharpston in front of the General Court, even though the abuse of Article 253 TFEU procedure by the Member States and the neglect of the clear guarantee of AG mandate established by the same provision, has had an upper hand for now. Eventually it is theoretically possible that the General Court could thus consider whether AG Sharpston’s dismissal was unlawful or not, but very difficult, given the finding of the Vice-President of no prima facie case in the first place. Moreover, the practical consequences for the independence of the Court of Justice cannot at this point be undone and are difficult to pin-point. This is because removing her successor from the bench would hardly be possible: exactly the situation with the Pyrrhic victory of the Commission in Commission v. Hungary (Judicial Retirement), in the absence of effective interim measures to ensure that such situations never arise as demonstrated, for example, in Commission v Poland (Independence of the Supreme Court). Indeed the only way for the newly-installed AG Rantos to be removed would be for members of the Court to do so, in accordance with the strict rules contained in the Statute of the Court (or shockingly, via another unreviewable act by the Member States in breach of a six-year mandate). 

Core problems of the Orders of the Vice-President

Let us walk through a selection of flaws in Vice-President’s reasoning. To single out just a few of the most significant ones, we focus on the following: (1) The decision of the Vice-President is based on a presumption repugnant to primary law, which consists in the lack of independence of the Court of Justice and non-applicability of the principle of irremovability to the members of the Court. This presumption is flawed and does a lot of harm to the institution. (2) The presumption is coupled with the erroneous assumption of Member States’ impunity in undermining independence of the Court of Justice, even in the cases of direct violation of the provisions of primary law on the security of tenure, when their actions not called for by the EU Treaties and undoing primary law guarantees are taken to be unreviewable. (3) The fact that AG Sharpston was not even notified of the appeal, while AG-to-be Rantos was sitting in the room, is just one in a line of violations of the core principles of procedural justice and fairness enshrined in Article 47 of the Charter giving the whole affair an unusual sense of injustice. (4) The Order of the Vice-President was issued with grave procedural violations and the lack of any urgency is obvious. The result is a harmful farce of a situation, as opposed to reaching sound conclusions after a proper hearing on the pending interim measures proceedings before the General Court. Moreover, the Orders seem to be capable to amount to de facto deciding the case on the merits while hearing an appeal against a provisional interim measure.

Point 1) The Starting Assumption: The lack of independence of the Court of Justice

Instead of striving to ensure that the Court of Justice meets the high standard of judicial independence and irremovability of judges established in its case law, the Vice-President has precisely renounced to those principles, which the Court has otherwise been quite successful in elucidating in a line of recent judgments that we discussed in Act I. This unceremonious affair through the Orders of Vice-President Silva de Lapuerta has confirmed that members of the Court of Justice can be removed from office by the Member States, at will, through an action such as the one taken to remove Advocate General Sharpston from office, and install Mr. Rantos in her place. 

The fact that the Vice-President in essence argues that there is no appeal against the decision of the Member States taken on foot of Article 253 TFEU, which the EU Treaties empower them to make by common accord, even when such a decision is uncalled for. The Orders curtail of the promise of Les Verts – one of the Court’s most celebrated judgments – let alone have regard to all the recent case law of the Court of Justice on judicial independence. The Order of the Vice-President can be seen to be in direct contradiction with the terms of the mandate set in the EU Treaties. These developments drastically undermine the judicial independence of the Court of Justice. 

Point 2) The Assumption that Member States can violate the EU Treaties with impunity

A related assumption that the Member States can appoint members of the Court in direct violation of Article 253 TFEU by breaching both the security of six year tenure and ignoring the lack of a vacancy on the Court required to invoke Article 253 TFEU in the first place. This has the potential to undo any idea of judicial independence in the EU: not a situation in line with the rule of law, thus reminiscent of Hungary and Poland, not of the EU as a whole, pointing in the direction of letting the ‘Masters of the Treaties’ to dwell beyond the law. 

The Vice-President of the Court of Justice took a very strict reading of whom comes within the scope of a judicially review act on the basis of the normal action for annulment procedure under Article 263 TFEU. The Representatives of the Governments of the Member States appear, thus far, to be beyond the ability of judicial review of the Court. But this cannot be correct. The actions of the Member States in this instance are, after all, procedural irregularities that can be subject to judicial review. It is not about, and has never been about that of the person to whom has been appointed, which would quite obviously fall within the political question doctrine. Moreover, further damage of the Court’s short-sighted approach could be mitigated by the initiating of proceedings in a national court of Member States against a particular government, as one component of the decision-maker of the Representatives of the Governments of the Member States occur as Professor Platon suggested to us. The room for optimism here is limited, but it is an avenue. When faced with such a question, the national court could make a request for a preliminary reference under Article 267 TFEU to the Court of Justice, asking whether the Court of Justice is validly and lawfully composed, or other associated questions arising from this entire saga. 

Yet, the very idea that the Council on the one hand; and the Representatives of the Governments of the Member States on the other hand; are separate entities in entirely fictitious. For all intents and purposes, and in reality, they are one-in-the-same. This can be analogised to the situation arisen in NF v European Council. There, the ‘EU-Turkey Statement’ was found to be beyond a judicially reviewable act at first instance, and the less-than-promising read in that case which could not attribute an action to the European Council, even though in reality, it was. However, it has been alluded to by the President of the Court in an essay to honour a former colleague (page 10), that there is nothing in principle from the Court of Justice through another procedure, of such a case coming before the Court again, reviewing whether such activity can be judicially reviewable, and better deciphering what is an act within the scope of judicial review by the Court of Justice. 

The apparent lack of judicial reviewability of actions of the Member States that are either sanctioned by, or have effects on the EU legal order, we contend, is not a settled question in EU law, and is still up for debate in order for judicial review to be found in appropriate instances, like the situation of AG Sharpston. There will be one day in which the Court of Justice will have to take the necessary steps towards ensuring that such decisions, when they affect the workings of EU institutions, are brought within the proper scope of judicial control. 

Point 3) Violation of Article 47 CFR. What should have happened in a constitutional system based on the rule of law

The Rules of Procedure of the Court of Justice (CJEU RoP) state in Article 160(5) that ‘[t]he application shall be served on the opposite party, and the [Vice-] President shall prescribe a short time limit within which that party may submit written or oral observations’. This did not happen for AG Sharpston. Whilst Article 160(7) states that the Vice-President ‘may grant the application even before the observations of the opposite party have been submitted’, it would appear that the only reason that this would happen is for reasons of exceptional urgency. This was not the situation in this case. 

In last week’s Order of Judge Collins, the defending parties to the proceedings were given one week, until 11 September 2020, to lodge their written submissions to the General Court. This was so that the presiding judge of the General Court could fully adjudicate on the application for interim measures, pending a case full on the legality of the appointment made by the Member States, as per the ordinary course of events in Case T-550/20. The Rules of Procedure of the General Court permit a case to be expedited on an application to the Court, which the applicant made. 

The sensible solution of Judge Collins ensured that the defending parties, the Council and the Representatives of the Governments of the Member States had the possibility to submit written observations, and guaranteeing the rights of all parties of their rights of Article 47 of the CFR. Instead, however, rather than submit written observations, the Member States went ahead and appealed the Order of Judge Collins to the Court of Justice of the European Union, asking for that Order to be set aside. However, the actual interim measures proceedings had not yet been concluded, as Judge Collins was still seized of the interim measures application. 

When initiating their appeal, the Member States had requested that the Vice-President of the Court of Justice rule on the appeal against the Order of Judge Collins without hearing AG Sharpston (paragraph 10 of both Orders). The Vice-President of the Court of Justice could have acted in a similar way to Judge Collins, given that she was now seized of an appeal of an ‘interim interim’ measure. Vice-President Silva de Lapuerta could have made an Order to the effect that the legal team of AG Sharpston were given a similar seven-days to lodge their written response to the appeal brought against the Order of Judge Collins. Regrettably, and in violation of Article 47 CFR, she did not do so, and the Court of Justice never got to see AG Sharpston’s legal position as regards the Order of Judge Collins.

Prima facie, there was no compelling reason for the Vice-President to act the way in which she did, given that the interim measures proceedings were still pending before Judge Collins. We initially titled Act I of this drama as ‘it’s urgent’, given that the speed at which the Member States attempted to appoint a new Advocate General was quite striking. The urgency that existed for Judge Collins issuing his Order did not apply to Vice-President Silva de Lapuerta issuing her Orders. The issue after Judge Collins issued his Order, therefore, lost urgency, and Vice-President Silva de Lapuerta should have rightly dismissed the appeal, letting the Order of Judge Collin’s stand whilst he was still seized on the interim measures application, for which he had not yet delivered his final interim measures decision. 

It was not necessary for the speed at which Mr. Rantos entered into office as an Advocate General and member of the Court to proceed in such a rushed manner. The Vice-President of the Court of Justice acted, just like the Member States, with unnecessary haste. Article 47 CFR states that ‘[e]eveyone shall have the possibility of being advised, defended and represented’, as analysed extensively by Pech. It is submitted that AG Sharpston’s rights to be defended were not respected, given that the Order of Vice-President Silva de Lapuerta has, in effect, resulted in the entering into office of Mr. Rantos as Advocate General, thus depriving her of her office (and the Court of its independence). 

Point 4) Abuse of the interim measures procedure

The outcome is extremely near-sighted. With the current interim measures application now set aside through the Orders of the Vice-President in Cases C-423/20 P(R) and C-424/20 P(R), the case that AG Sharpston lodged on 4 September 2020 (Case T-550/20) now returns to the General Court to be heard on the merits of the substantive case. The General Court will now have to decide whether to grant the application of AG Sharpston for the case to be accelerated, but this is unlikely. Through the Orders of the Vice-President, and the secret, swiftly arranged swearing-in of the new Advocate General to replace her, her pending cases have now lost the trust of what their outcome was set to achieve – her remaining in office, in line with her mandate guaranteed by the EU Treaties. It is tantamount to deciding the entire substance of a case on an interim measures cases. As reported by Joshua Rozenberg, the Vice-President of the Court of Justice has ‘purported to decide the entire case on an ex parte application against an ex parte freezing order’.

In terms of immediate effects, her cases (Case T-180/20, Case T-184/20, and Case T-550/20) are now a fait accompli. Yet the General Court can still decide itself on the legality of the various actions that AG Sharpston has challenged – the declaration of the Representatives of the Governments of the Member States, dated 29 January 2020 (Case T-180/20); the decision of the President of the Court of Justice of 31 January 2020 to declare a vacancy on the Court and to initiate the procedure for the appointment of a successor; and the decision of the Representatives of the Governments of the Member States to appoint a new Advocate General (Case T-550/20). Individually or collectively, these three cases now offer the General Court, in a well-thought out, and clearly reasoned way, how it believes such cumulative procedural flaws in the EU legal order can, and must be corrected. When the case is appealed to the Court of Justice, which the losing party will, they too ought to ensure that such basic flaws are corrected, to prevent any irregularities like the ones seen in these three Acts from every happening again. 

Long-term implications

Normally, a new member of the Court entering into office is a wonderful occasion for the person concerned. It is done is an open, public manner, with celebrations to mark the occasion. They are on occasion even streamed online on the Court’s website. This affair, however, marks a stark contrast to the norm, in which the swearing into office of a new member of the Court happened under cloak-and-dagger, with extensive administrative cooperation in the background so that the new Advocate General could enter into office immediately after the Orders of the Vice-President were delivered on the morning of 10 September 2020. 

What the Orders of the Vice-President of the Court of Justice have done is effectively licence and sanction any of the members of the Court, including judges, to be removed from office at the will of the Member States through actions on the basis of Article 253 TFEU. Make no mistake – what has occurred here in this affair is the Member States successfully sacking a member of the Court. AG Sharpston’s tenure as a member of the Court has been terminated in a way that is not as explicitly set down in the EU Treaties and Statute of the Court. The question therefore has to be: why did the Court, through the Orders of the Vice-President on 10 September 2020, let this happen? To this, we have no straightforward answer. Yet how can the ‘principle of irremovability’ that the Court has been using in its judgments of late continue to be used as a ground for reasoning when the Court’s own members do not possess the same protection for irremovability? 

Even if Strasbourg could be an option to further try to defend the basic tenets of independence of the Court of Justice, the track record of the European Court of Human Rights (ECtHR) in substance on such cases is quite weak as Kosař and Šipulová explain, many a victory of the illegally dismissed prominent court member notwithstanding. Crucially, the ECtHR does not demand the restoration of the status quo ante, which means that the illegally dismissed court members cannot regain office in the context where the security of tenure, precisely, it the crux of the matter. However, the ECtHR also has case law that justice must not only be done, but it also must seem to be done. In this sense, it is difficult to claim that justice was seen to be done to AG Sharpston. 

As parties that instigated these events, the Member States must hang their head in shame. Separately, the Court of Justice has failed to protect one of its own members. A tragic drama that, as custom, culminates in a tragedy. Kumm is absolutely right: ‘Courts are not simply engaged in applying rules or interpreting principles. They assess justifications’ (at 144). This is something that the Vice-President has not done. Worse still, the Vice-President foreclosed any serious conversation in the absence of the navy and the army. The only weapon that the Court of Justice has is the clarity of the argument and the ability to be crystal clear and absolutely convincing. There is simply nothing else in stock. The Orders of the Vice-President are truly a low point on this count. 


SUGGESTED CITATION  Kochenov, Dimitry Vladimirovich; Butler, Graham: It’s Urgent III: AG Sharpston Dismissed in a Radical Move: The Court of Justice Proclaims its Own Lack of Independence, VerfBlog, 2020/9/11, https://verfassungsblog.de/its-urgent-iii/, DOI: 10.17176/20200912-211453-0.

24 Comments

  1. Alan Baillie Fr 11 Sep 2020 at 23:00 - Reply

    Has anyone given any thought to the wording of Article 19 TEU vis-à-vis judges?
    In all the language versions I can understand, bar one, the number of judges in each court is a function of the number of Member States. In the Court of Justice, it is one per Member State, in the General Court, “at least one” per Member State.
    My bar one is the English version, which states that, for the Court of Justice, there is to be one judge “from” each Member State, which implies a link between judge and Member State absent in the other versions or, in relation to the General Court, even in the English version. To be honest, I think this is a drafting or translation error. I think also that, because it is an outlier, the intention of the majority of language versions was to link the number of judges to the number of Member States, rather than to, for example, nationality of a Member State and that, if necessary, it would be interpreted thus by the Court of Justice. Indeed, I can recall one case in which it was rumoured that one Member State was considering nominating as judge a national of another Member State.
    Of course, we know the convention that each member State has “its own” judge, but that is a political convention, not laid down in the Treaties. It is thus much on the same level as the convention governing nominations of Advocates General, although the latter is expressed in writing whereas the former is not, to my knowledge.
    I formulate these considerations with regard to the situations of Christopher Vajda and Ian Forrester.
    When the UK left the EU at midnight, it is clear that the number of judges in the Court of Justice had to be reduced by one, and the obvious choice, even ignoring the apparently explicit wording of Article 19 TEU in English, was the UK judge, Christopher Vajda.
    But what of Ian Forrester, the sole UK judge in the General Court? The number of Member States had gone down from 28 to 27, but he could have remained in office, on an interpretation analogous to that put forward by Eleanor Sharpston, until the end of his mandate. Not only does “at least one” fail to limit the number of judges to the number of Member States but, also, the number of judges in the General Court has still, even today, not reached the target number of two judges per Member State. So there was no need to reduce the number of judges following the withdrawal of a Member State.
    Ian Forrester might have had at least as good an argument for seeking to retain his post until the end of his mandate, or the Court could equally have maintained him in post, as it did with Eleanor Sharpston, until a successor could be appointed, following nomination by another member State.
    But Ian Forrester did not choose to go down that route, I think to his credit; and the Court considered that Eleanor should remain in office at the Member States’ pleasure, but no longer.
    That pleasure has turned to displeasure and, whatever one may think of the legal position, the whole procedure has been unedifying, particularly the “Palais coup” of 10 September 2020.

    • Nicolas Pruneau So 13 Sep 2020 at 10:43 - Reply

      This reply refers only to the question asked in the first two lines of Alan Baillie’s comment.
      In legal literature the issue of judge and nationality is indeed actively discussed. First, not surprisingly, two theories are advanced: there are those who infer from 19(1) TEU that judges must imperatively hold the nationality of a MS so as to ensure that all legal traditions are equally represented on the bench – which ultimately facilitates notably the relationship with national courts in the 267 procedure. Moreover, the point of legitimacy is being made: ECJ judgments will more readily be accepted throughout the EU (by national courts and populations alike) if each state ‚has‘ ‚its‘ judge. Others do not see such a requirement and state that MS are free to propose whomever they want (a comparison is often drawn with the Strasbourg court where frequently micro states (the likes of Liechtenstein, San Marino or Andorra) do not have ‚their‘ judges – arguably this comparison works less well with the EU where there are no such micro states).
      Second, all the commentators I have come across do not attach importance to the difference in wording between ECJ and GC (which is surprising given that since the GC has currently no competence for 267 actions, the (convincing) argument above with respect to the ECJ falls flat as regards the GC).
      Third, no difference is made between judges and AGs. On the contrary, it’s normally stated that the same principles apply with respect to AGs.
      I leave it to others to draw consequences from this reasoning as regards the Sharpston saga…

    • Jonathan Parsley So 13 Sep 2020 at 19:23 - Reply

      „But Ian Forrester did not choose to go down that route, I think to his credit“.

      As per Article 254 TFEU, the members of the GENERAL COURT shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to HIGH judicial office while it follows from Article 253 TFEU that the Judges and Advocates-General of the COURT OF JUSTICE shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the HIGHEST judicial offices in their respective countries.

      Notice the difference in wording. Perhaps the lack of the superlative of the term ‚high‘ indicates that the people in question are more grounded in political reality and bestowed with a greater sense of humility. Just a thought.

  2. Jacob Russell Sa 12 Sep 2020 at 00:20 - Reply

    While reading the authors‘ previous contribution published on this website, I was at times not sure whether they are aware of the fact that the United Kingdom has withdrawn from the European Union. It is all the more remarkable that, in this most recent posting, the authors finally manage to make no mention whatsoever of this crucial development. When, in order to make her case, Ms Sharpston relies on a purely formalistic legal standpoint that completely disregards the Brexit-context, the authors’ praise her “fight for the independence of the Court” (correctly: fight for some additional months in office). When, on the other hand, the Court’s Vice-President, in deciding on the appeals lodged, takes “a very strict reading” of the law, it is, in the authors’ view, “truly a low point”. Coherence is sorely missed. The fact that the representatives of the governments of the Member States are, as matters stand, beyond the ability of judicial review of the Court, is clear from the wording of Article 263 TFEU and corresponds to the current state of case law, which the authors themselves refer to. The authors’ claim that “this cannot be correct” is of no relevance. In that perspective, any different course of action taken by the Vice-President would have amounted to flagrantly granting special treatment to her former colleague on the bench. It is much to the credit of the Vice-President that she resisted this temptation, decided strictly in accordance with the law as it stands and irrespective of the person concerned, and thus preserved the integrity of the Court. Furthermore, as to the authors’ claim that “it would appear that the only reason [for applying Article 160(7) of the Court’s Rules of Procedure] is for reasons of exceptional urgency”, it suffices to note that, patently, this finds no support in the wording of that provision. At this point as well, the authors’ criticism directed at the Vice-President, culminating in seriously reproaching her with a “violation of Article 47 CFR”, can only be sharply rejected.

    [A part of this comment contained positions which can be seen as defamatory. We have deleted these phrases and apologize. Verfassungsblog]

    It is all the more to be welcomed that the Vice-President staunchly put an end to Ms Sharpston’s charade of staged victimhood.

  3. Ted the Red Sa 12 Sep 2020 at 08:10 - Reply

    @Jacob Russel

    Woa, attacking a judge (Collins) and leaving innuendos as to his integrity in Verfassungsblog; that does take some gall. And yes, the comparison is trite by now, but that’s exactly that politicians in Poland, Hungary and Bulgaria do. It matters little if (former) AG Sharpston or Profs Kochenov and Butler are right on the merits, as it were. The Court has acted hastily thus itself giving the impression it has something to hide. Surely they could have waited a couple more days. Incidentally, as of yesterday, Collins’s Order was not available on Curia whereas Lapuerta’s one is. Go figure…

  4. post doc Sa 12 Sep 2020 at 09:50 - Reply

    I would like to ask Jacob Russell, who has posted the comment above, to show me a provision in the Tretaies saying that an AG is somehow linked to a Member State. Let me help though… there’s no such provision. The Treaties say that we have one judge of the ECJ „from each Member State“ but we have nothing like that about AGs. Legally, there is no problem with having 5 AGs proposed by France. AGs, just like judges, are appointed ‚by a common accord of Member States‘, so Ms Sharpston has not been appointed by the UK. Now, she’s also a Luxembourgish citizen.

    There is nothing formalistic about it… if you take the recent case law of the ECJ about judicial independence in Poland seriously, you must admit that in order to interrupt a judicial term of office you need a specific legal basis for this, and the right to judicial review. There was nothing like that in the case of Ms Sharpston, because she was removed from office by a declaration (sic!) of Member States, having no legal basis.

    Now, Ms Lapuerta says this declaration/or appointments to the ECJ are not subject to the ECJ jurisdiction under Article 263 TFEU… because „commmon accord“ of MSs is not the same as the „Council“. Maybe. There are counterarguments.

    Now, let me tell you a story about Poland. Some time ago, an evil parliament decided to make a declaration (sic!) saying that 3 judges of the Constitutional Tribunal had been appointed with a procedural irregularity so their appointment was invalid. This declaratinon was challenged before the Constitutional Tribunal. The Tribunal said that this declaration is an „individual decision“ rather than „normative act“, so the Tribunal has no jurisdiction. Maybe. There were counterarguments. Today, this Tribunal doesn’t exist anymore.

    Let’s move 10 years to the future. The EU Member States are represented by: Marine Le Pen, Alternative fur Deutschland, PiS, Fidesz, PSD, Salvini, Zeman/Babis, Vox, etc., etc. They decide to make a „declaration“ (sic!) that President Lenaerts and some of his colleagues have been appointed, 3 years back, with a procedural irregularity so their appointment is invalid. That’s it. No judicial review, according to Ms Lapuerta.

    The time to work on legal safeguards is now.

    Not possible? Silly? Well… read Wojciech Sadurski’s book for instance. Your constitutional imagination will drastically expand.

    • Howard Sa 12 Sep 2020 at 10:11 - Reply

      Mr post-doc, you should perhaps read the Declaration on Article 262 TFEU, which is annexed to the Treaty. Don’t worry, you don’t have to search much: It is part of the text of the Treaty in eur-lex. Give it a go.

      Ms Sharpston was appointed THREE times in her capacity as UK citizen. Exactly because of the extremely clear wording of the Declaration, which sets out that the UK has a ‘permanent Advocate-General’. If she had applied in her capacity as a Luxemburgish citizen, she wouldn’t have gotten the post, as the turn of Luxembourg in the rotation system has not come up yet (again, in the text of the Declaration).

      So, for you and for Ms Sharpston the Declaration was good law for as long as she could be appointed again and again and again as a UK citizen and be a ‘permanent Advocate General for the UK’ but not good law after Brexit? This is illogical, preposterous, and insulting to all Britons who have suffered and gave up their posts because of Brexit (including the UK judges at the Court and the General Court).

      • Sebastien Platon Mo 14 Sep 2020 at 10:44 - Reply

        Declarations do not have legal effect, and thus cannot be considered as „good law“.

    • Curious Reader Sa 12 Sep 2020 at 10:58 - Reply

      I don’t understand how one can argue that a) AG Sharpstons term has not ended and b) that she can make an admissable appeal against the MS common accord declaration that her term has ended?

      Lets assume a) is correct for the given reason („no such proviosion“). How can you not take into consideration that same argument and come to the conclusion that AG Sharpston has no admissable legal recourse? Counter-arguments? There are alot of counter-arguments against a) that apparantly don’t matter, when there is „no such provision“. Why should they matter at point b)?

      You say that there is a need for „legal safeguards“ that the EUCJ should implement now. If you do that you have to admit that you in essence want the EUCJ to correct a mistake the Member States apparantly made while drafting primary law (forgetting to implement legal recourse against MS common accord). But by that logic, you would have to accept that maybe the primary law might also be flawed on the whole „(only) AGs can stay on after the nominating MS leaves EU“ aspect. Maybe (realistically: probably) the MS did not realize that the wording regarding to AGs can be interpreted as to them being the only EU-personell getting to stay on if their nominating MS leaves the EU. Why should the EUJC not correct this by taking the wording of 263 TFEU as seriously as AG Sharpston and here defenders here take the wording of the paragraphs relating to the end of an AGs mandate?

      To the whole scenario at the end of your post: If that happens, the EU will probably be dissolved, so the whole point of „rule of law“ within the EU would be moot. That would be sad but that would also be a consequence of MS being democracies.

  5. Howard Sa 12 Sep 2020 at 10:39 - Reply

    Corrigendum of a small typo, with apologies: obviously meant Declaration on Article 252 (not 262).

  6. post doc Sa 12 Sep 2020 at 11:03 - Reply

    My Howard, I assume you refer to the Declaration on Article 252 (not 262). This declaration is precisely this: a „declaration“. It is not and it was never a good „law“, before or after Brexit, because it is no law at all. It is not a legal act, but, just like the whole rotation system, a political deal of the Member States. It certainly does not have a legal value of the Treaties.

  7. post doc Sa 12 Sep 2020 at 11:39 - Reply

    Corrigendum of a typo: I intended to write „Mr Howard“. My apologies

    • Howard Sa 12 Sep 2020 at 20:09 - Reply

      Mr post doc,

      Since you like so much hypothetical stories and counterfactuals, and since you claim that the Declaration is not anything more than a political deal, I would really like to invite you to think on this scenario:

      How would passionate and vocal defenders of the ‘rule of law’ -like yourself and the authors of this series of blog posts- have reacted if in, say, 2015 the Govs of the Member States decided abruptly not to accept Ms Sharpston’s renomination and stated instead that they don’t want to have a UK Advocate General anymore and decided to appoint an AG from a Member State that wasn’t in line in the rotation system, say Slovakia. Or Malta. Or Hungary.
      Or even a non-EU Member State: Kazakhstan. Or maybe Russia! I am sure you wouldn’t have any issue at all, since the Treaty article only refers to Advocate Generals without specification of their nationality.

      Oh indeed – I am sure you would have accepted this just fine. It is, after all, as you claimed, the letter of the law.
      And this all you care about, the Letter and the ‘Rule of Law’.

      • Sebastien Platon Mo 14 Sep 2020 at 10:51 - Reply

        There is indeed no condition of nationality in any legally binding EU text, so it is merely the result of a political convention, just like the Commission and other institutions and unlike, notably, the European Parliament.

  8. Barty Begley Sa 12 Sep 2020 at 13:41 - Reply

    I am sympathetic to much of this, but:
    Under TFEU 263, acts by the representatives of governments are not subject to the court’s review. They have appointed AG Rantos.
    Therefore “Was there a vacancy?” seems to be the main question.
    The declaration by the conference of the representatives of the governments of the member states of 29 january 2020, says:
    “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. [i.e. 31/1/2020]”
    Was AG Sharpston “nominated, appointed or elected in relation to the United Kingdom’s membership of the Union”? It seems she was (for example, as the UK-nominated AG she got to remain on, where a nominee of Ireland or Portugal would have had to leave after one rotation).
    So there was a vacancy.

    I take the point of judicial independence, but TFEU 253 only allows appointment, not removal, and the Declaration of 29 Jan 2020 is in the context only of Brexit.

    If I’m wrong in all this, please do let me know.

    PS I am all in favour of AG Sharpston, and would love to see her be able to stay on.
    And that AG Sharpston was not notified of the appeal but Mr. Rantos was there at the court, to be sworn in immediately after, looks very bad, and seems a bad mistake to have made.

  9. T. Simonoce Sa 12 Sep 2020 at 14:52 - Reply

    Re Jacob Russell – Hands down for this calm and measured post which exhaustively nails the issue. It counters the newspeak, doublethink and whataboutery contained in the (3) Blogpost(s) and brings the issue back on its technical, almost boring, feet. This is not about the rule of law in the EU, no matter what the authors are trying to tell us. It is a technical consequence of the application of Article 50 TEU. And the MS‘ act executing this technicality is rightly not subject to judicial review. Pretending that this constitutes the Orbanisation of the EU is disingenuous and applying 1984 in practice.

  10. post doc So 13 Sep 2020 at 12:53 - Reply

    Mr Howard,

    My concern is precisely for us to have some legal means to avoid/verify the situation like the one described in your hypothetical scenario.

    In your hypothetical scenario, I would expect that one of the priviledged applicants, e.g. the Commission or a member state, the UK for instance (we’re in 2015 still), would challenge the appointment decision before the Court of Justice to verify its legality in an independent and impartial manner. In this case, the Court would be able to clarify, among other things, the linguistic differences between different Treaty versions, such as those signalled above by Alan Baillie, and tell us if, as a matter of law, the Member States are constrained in their choices to the nationals of Member States indicated by the rotation system. In other words, the Court would have verified the legal basis of the dismissal.

    You know my view already: I think the MSs are not constrained – legally – although a problem may be the EU nationality. It seems to me the common tradition of MSs that the highest officials must hold the nationality of a State they work for. So, no, I’m afraid we might not appoint a candidate not holding an EU citizenship (although I would have to think about this, I haven’t so far because this problem does not concern Sharpston who’s still an EU citizen).

    If the Court of Justice had taken another view, invoking, for instance, the Article 252 TFEU declaration (as a sort of ‚constitutional convention‘ or something like this), I would have criticised the merits of this ruling because, imho, this declaration cannot serve as a valid legal basis. But I would have been much less concerned, perhaps not at all, about the rule of law, depending of course on specific legal arguments presented by the Court. In any case, I would have known that an independent court of law had spoken and reviewed the legality of the ‚dismissal‘ of a member of this court.

    And this is the crux of the problem with Lapuerta’s ruling. The status of Sharpston has become somewhat secondary at this point. The crucial problem for me is: can the dismissals of Court members by means of ‚declarations‘ adopted by the governments of Member States be subject to judicial review under Article 263 TFEU or not? By the same token, can judicial appointments be reviewed? Lapuerta says no, although the Court of Justice couple of months earlier said that Poland had violated Article 19 TEU precisely because it had authorised the executive to dismiss highest judges without strict legislative criteria and without the right to judicial review! How are the two rulings compatible?

    If Lapuerta’s rulings stands, then in your hypothetical scenario – there’s nothing we can do. An appointment of an AG/judge regardless of the rotation system of without EU citizenship, or – which for me would be more troubling – one that has received a negative opinion regarding his/her qualifications by the independent panel under Article 255 TFEU is final because acts of the governments of Member States are not reviewable.

  11. Novanglus So 13 Sep 2020 at 19:04 - Reply

    Three brief points:
    (1) Once the heat cools down, someone really should undertake a dispassionate analysis of the interesting legal issues this case has raised. It is unfortunate how far partisanship has clouded all of our judgements on these questions.
    (2) In particular, I would find a serious analysis of the VP’s Order’s reasoning very interesting. Are decisions of the governments of the MSs genuinely beyond the CJEU’s jurisdiction? The case she cites does support this, and it is notable that the Future of Europe Convention took a conscious decision *not* to transfer this competence to the Council (http://european-convention.europa.eu/pdf/reg/en/03/cv00/cv00636.en03.pdf, §5). But this case, unlike C-181/91, involves a power that is created and regulated by the Treaties. Can that power really be simply immune from any review? What if someone who manifestly did not meet the art.253 requirements (independence and so on) were appointed? What if the art.255 Committee were not consulted?
    (3) Finally, whilst I disagree with the arguments of Sharpston’s partisans on the substantive case (see my previous comments), I do think that there were reasonable arguments for both sides. Those arguments deserved full airing. The way that this saga has come to an end is deeply unsatisfactory, and it is indeed difficult to see how this summary, ex parte ruling could have provided a fair hearing. I would again be interested to read a fair-minded analysis on this point.

  12. Novanglus So 13 Sep 2020 at 19:17 - Reply

    PS – one further point. There is some confusion in the debate above as to the status of Declaration 38. No one is arguing that Dec.38 is the legal basis for AG Sharpston’s removal. The legal bases were art.50(3) TEU and art.7(1)(a) Withdrawal Agreement, the same bases that permitted removal of the Judges and all other Members appointed in connection with the UK. Dec.38 rather serves as one of several pieces of evidence that, as Howard says, AG Sharpston was manifestly appointed in connection with the UK. See more fully my comment here: https://verfassungsblog.de/could-there-be-a-rule-of-law-problem-at-the-eu-court-of-justice/.

  13. post doc Di 15 Sep 2020 at 09:16 - Reply

    @Novanglus. There’s no confusion as to the declaration. Article 50(3)/7(1) cannot serve as a legal basis for Sharpston’s dismissal if one agrees that she’s not linked to the UK by any constitutional norm. Then the de facto ‚legal‘ basis became the declaration.

  14. Sebastien Platon Di 15 Sep 2020 at 13:42 - Reply

    It is very hard to fathom that there would be no judicial review of any kind against the decision of the national govts as per art. 253 TFEU. This would mean that the member States could, freely, expand the number of judges and AGs beyond the number provided by the treaties, replace any judge or AG before the end of their term for no reason at all, dispense from consulting the Art 255 panel etc. This would make the appointment of judges de facto akin to a revision of the treaties. And obviously this would go against art. 2 and 19 TEU and art. 47 of the Charter. If we agree on that, what can the remedies be? I see very few possibilities, and if someone sees others, I would be glad to hear them.

    • Sebastien Platon Di 15 Sep 2020 at 13:42 - Reply

      1) Unlike what the VP suggested, even if the decision is not attributable to the “Council”, Governments, when exercising the powers conferred by Art. 253 TFEU, are to be considered ad hoc “bodies, offices or agencies of the Union”. It is indeed hard to conceive how any entity exercising a power vested by EU treaties is not a “body” of the EU. There are counterarguments however, like the fact that a MS can indeed decide to withdraw from the EU, and thus make a decision based on EU treaties having effect on EU Law without being a “body” of the EU. But the two situations seem very different, since in the second case the MS does not really “implement” EU treaties – it is quite clear that in this context, the MS acts as a sovereign state exercising its secession right, whereas under art. 253 TFEU, the MS act as an agency of the EU.

  15. Novanglus Fr 18 Sep 2020 at 16:47 - Reply

    @post doc – with respect, I think your comment underlines the fact that the real debate is about the scope of art.50(3) TEU and art. 7(1) WA and the constitutional nature of AGs. The EU’s partisans *precisely* argue that the constitutional link you refer to exists, relying inter alia on Declaration 38 (see §6 of the comment I referred to above for my reasoning here).

    The claim that the *legal basis* of dismissal is the Declaration (or indeed recital 8 of the WA) is, and always has been, a red herring.

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