03 September 2020

It’s Urgent

The Illegal Appointment of a New Advocate General and What Can be Done to Uphold the Rule of Law in the EU

In a remarkable move, the Member States appointed, on 2 September 2020, an Advocate General put forward by Greece, who will enter into office on 7 September 2020 if Member States get their way. There is a ginormous problem with this move, as the office that this Advocate General will try to fill, as things stand, does not become vacant until October 2021. Eleanor Sharpston, the officeholder presently in situ, remains there until then. Any other reading of EU law is tantamount to the Member States sacking a member of the Court in direct violation of the primary law. This is a wholly unacceptable scenario in a Union grounded and predicated upon the rule of law. Urgent measures are thus necessary to save not only the legitimacy of the Court, but that of the EU.

The EU Treaties are very explicit on how a vacancy arises at the Court. Protocol No. 3 on the Statute of the Court states that a ‘vacancy shall arise on the bench’ where there is a ‘normal replacement’ (end of term of office), ‘death’, or a member of the Court ‘resigns’. None of these events has occurred with respect to Advocate General Sharpston. For the Member States to attempt to appoint an Advocate General, as they have on 2 September 2020, when there was no vacancy, completely infringes the rule of law. Instead, with the 2 September 2020 activity, the Member States have acted and pretended as if there was a vacancy, which there was not. To attempt to rid the Court of one of its most distinguished, intellectually endowed, and renowned members is a profound misreading; or worse, a deliberate obfuscation of the EU Treaties, which is wholly unacceptable by any standard.

The sin of Advocate General Sharpston? – It’s all about Brexit. Her last reappointment to the Court in 2015 was at a time when the United Kingdom was a Member State, and that one of her two citizenships happens to be British. According to the Member States on foot of their 2 September 2020 activity, Brexit must mean Brexit. Yet political catchphrases and slogans cannot commandeer and override the EU Treaties, which is the basic constitutional charter of the Union. There are two types of officeholders that are members of the Court – judges and advocates general – which are, and have always been, treated differently by EU primary law. Whilst Article 19(2) TEU states that the Court ‘shall consist of one judge from each Member State’ (resulting in Judges Vajda and Forrester vacating their offices from the Court and General Court in January 2020), that stipulation does not apply to advocates general. Rather, the EU Treaties make clear, in the same article, that the Court is ‘assisted by Advocates General’, for which no link to Member States is made. Nor are any nationality requirements made as to the initial appointment or continuing membership of any member of the Court. Any Bachelors student in law would be able to understand and appreciate these nuances.

Four fundamental problems

The urge to purge the Court of a British-Luxembourgish citizen whose tenure at the Court, by law, is not connected to a Member State, nor her nationality, and whose long impeccable service on the Court has only won praise and admiration is a dead-end strategy showcasing at least four fundamental problems.

Firstly, the 2 September 2020 activity of the Member States demonstrates that the Court manipulated by them fails to meet the ‘cardinal’ (in its own formulation) principles of independence and irremovability of the judiciary, in breach of Article 19 TEU. In recent years, the Court has built up rich case law on judicial independence from Association of Portuguese Judges through to Commission v Poland (Ordinary Courts), Commission v Poland (Supreme Court), A.K. and others, and Banco de Santander. This solid line of case law, fully vindicated in light of the apparent rule of law challenges that are presently seen across Europe, made clear that the dismissal of a member of national judiciary or quasi-judicial body in the middle of the term is a violation of the law. In the Court’s own terms, breaching the irremovability of members of judicial bodies is an explicit violation, and cannot be compatible with EU law.

Secondly, the erratic and nihilistic behaviour of the Member States on 2 September 2020 demonstrates that the painfully elaborated principles of judicial independence and irremovability are beneath them and sends a carte blanche message to the backsliding Member States of the Union, effectively implying that the EU Treaties do not matter. In Hungary and Poland, such behaviour of hallowing-out courts of own members is already a reality. There is ample evidence of judges being dismissed, threatened, and reprimanded for acting independently and following the law. Illegal appointments consequently flourish. Should the Court follow some national courts down this slippery path, the legitimacy of the whole fight for the rule of law in the EU – let alone the noble promises of Article 2 TEU – could amount to nothing. The law matters, and the essence of the rule of law consists precisely in a crude reality when the almighty powerful – the Monarchs, the Member States, the ‘people’ – encounter a legal obstacle preventing them from acting as they please.

Thirdly, the issue opens up the grim Pandora’s Box of outright bullying of a distinguished member of the Court by the Member States in the midst of her tenure guaranteed by the EU Treaties. All the attempts of Advocate General Sharpston to find a reasonable and legal solution to the situation have been ignored by the Member States, as reported by Joshua Rozenberg. He called his article ‘Gross Injustice at the Court of Justice’, but at issue is much more than that. By openly defying the law and proceeding with an illegal appointment to the Court when no vacancy exists, the Member States have demonstrated how much their collective action can be removed from the most basic principles of law in its functioning. This is not only a violation of the rule of law – this behaviour is problematic even in the light of basic legality.

Fourthly, the illegal appointment should, and ought to be considered null and void, landing the Court with a new and unexpected problem: an illegal appointee in its midst. From 7 September 2020, on the Court’s bench stands the potential to be joined by a questionably legal member, whose right to act as belonging to the institution as a lawfully appointed member of the Court is not beyond doubt. In the years past, the EFTA Court has previously experienced embarrassing incidents of EFTA states meddling in the reappointment of a judge who was the sitting President, and years later, curtailment of the term of office of another judge. These actions rightly backfired on the states concerned. Moreover, the EFTA Court once even had to formally declare that it was legally constituted to continue deliberating on a case whilst political developments attempted to hamper its functioning. In a similar vein today, the Court itself is now dealing with comparable issues of attempted meddling by Member States in the constitutional framework of the Court’s membership, trying to fire and hire members as they please pretending not to be bound by law.

Time is of the essence

These are not easy times for the person that is set to be illegally appointed Advocate General. The entire appointment by the Member States has been done in a manner that is in a direct violation of the EU Treaties, and is no fault of his own. There is nothing to be said against the distinguished Greek lawyer. The issue, rather, is that he is simply not a lawfully appointed Advocate General since Member States cannot replace an existing member of the Court unless a vacancy has duly arisen, which none has. Therefore, the question is: should he be allowed to become a member of the Court on 7 September 2020? Moreover, what can be done about the present state of affairs? And what if the General Court agrees with Advocate General Sharpston’s arguments, made in two (!) pending cases concerning the illegality of her dismissal after the new appointee takes her place?

The issue of Advocate General Sharpston’s tenure at the Court has been discussed on Verfassungsblog in detail, including by Professors Halberstam and Pech, as well as one of the current aurhors, whose position is as obvious as it is clear: in a Union based on the rule of law, the Member States are not free to kick out a member of the Court by an ad hoc political agreement and in direct violation of the law in force, which establishes clear rules and guarantees of independence of tenure. We agree with both Pech and Halberstam, but now that a replacement has been set forth by the Member States as a result of their 2 September 2020 action, such academic pondering must now be operationalised into concrete action. Something must be done about the 2 September 2020 action of the Member States; as otherwise, from 7 September 2020, the Court regrettably joins a dubious collection of bodies around Europe, glittering with illegally appointed ‘judges’, whose valid composition stands to be challenged, contested, and delegitimised.

In trying to resolve the present EU constitutional conundrum, how should a gross violation of the rule of law be prevented in such a short space of time? One could turn to the extensive case law on interim measures that has been developed by both the Court and the General Court over many decades, which received a particular boost in relation to similar problems of abuse of power in Poland, where appointments and dismissals were made in direct violation of the Constitution and with no regard to Article 19 TEU standards. Advocate General Sharpston knows a thing or two about interim measures. On a procedural level, for an interim measures request to be made before the EU General Court, there must be a substantive case pending so that an interim measures application can even be considered. Thankfully, the diligent incumbent, supported and represented by a former member of the General Court, filed two cases earlier in 2020 to prevent such a rule of law violation from occurring, as reported initially by La Libre Belgique.

Given the tight timeframe, in the pending case Advocate General Sharpston has lodged against the Council and the Conference of the Representatives of the Governments of the Member States on the legality of their political ad hoc declaration of a vacancy on the Court, here stands an opening for Advocate General Sharpston to defend the rule of law, and ensure the continuing valid composition of the Court. Under the Rules of Procedure of the General Court, she and her legal representative may submit an accompanying interim measures application at any time under her existing case to the General Court, arguing that the illegal appointment of Athanasios Rantos to the office of Advocate General on 2 September 2020 must be injuncted without delay. This would stay the planned entering into office of a new Advocate General on 7 September 2020 until the full case is heard and concluded at the General Court’s earliest convenience.

The highest bar to reach in order for an interim measures application to be successfully granted by the General Court is that of ‘urgency’. Now that the Member States acted on 2 September 2020 in an illegal manner, and given that the appointment is to take effect the following week on 7 September 2020, time is of the essence. Not only would Advocate General Sharpston lodging an interim measures application be for the saving of her own office, but she would also be ensuring that Member States must follow the rules, which they have been less than diligent at following. Preventing the blunt violation of the rule of law by the Member States will save the Court from its own mortification, and safeguard the legitimacy both of the institution itself and the Union’s on-going fight for the rule of law.


SUGGESTED CITATION  Kochenov, Dimitry Vladimirovich; Butler, Graham: It’s Urgent: The Illegal Appointment of a New Advocate General and What Can be Done to Uphold the Rule of Law in the EU, VerfBlog, 2020/9/03, https://verfassungsblog.de/its-urgent/, DOI: 10.17176/20200903-183838-0.

11 Comments

  1. Alan Baillie Do 3 Sep 2020 at 22:55 - Reply

    „To attempt to rid the Court of one of its most distinguished, intellectually endowed, and renowned members is a profound misreading“. I have not the slightest wish to contest such a flattering appreciation of Eleanor Sharpston, with whom I worked for ten years, but are her distinction, intellect and renown not entirely irrelevant in the light of the legal principle in issue? All that matters is that she has not been deprived of her office pursuant to Article 6 of the Statute of the Court or any other legal provision. Even if (quod non) she had been the least distinguished, intellectually endowed or renowned member of the Court, it is the procedure which purports to have led to her replacement which is in issue, not her own qualities.

  2. Interested Reader Fr 4 Sep 2020 at 12:12 - Reply

    In a textual-legalistic context this article (and the ones cited in it) is/are correct.

    However, in my opinion this article fails to recognize the fact that the distinction between Advocates General and all other EU-personell (including and especially Judges) appointed by or at the suggestion of a Member State about to leave the EU is completly arbitrary. There is no reason, why Advocates Generals tenures should be „more protected“ from ending because of the exit of the nominating Member State than the tenures of Judges.

    The simple explanation to me would be editorial oversight. It seems quite clear that the underlying will of all the Member States, had they thought the scenario of a Member State leaving the EU through, would have been to have all personell „affiliated“ with the leaving Member State to have to leave there respective offices.

    Therefore, stating that there is a vacant Advocate General spot since Brexit could in my opinion be based on an extensive interpretation of the first sentence of Article 5 of the Statue of the Court of Justice of the EU. Such interptetation would add an unwritten criteria (German: „ungeschriebens Tatbestandsmerkmal“) for tenures to end:

    Apart from normal replacement, or death, the duties of a Judge shall end when he resigns or the Member State his tenure is affiliated with leaves the EU.

  3. Ob W. Ius Fr 4 Sep 2020 at 12:45 - Reply

    I could not agree less with this blogpost. At the outset, let me say that, in my view, the legal arguments are particularly weak. But, most of all, there is one HUGE point that I find unbearable. Painting this case as a ‚rule of law‘ case is simply dishonest, patently erroneous, and obviously backfiring. This case is fundamentally technical: it is about the rules governing the appointment and dismissal of members of the institutions and the internal working of the institutions, in the light of a withdrawal of a Member State. The latter aspect is key. Ms Sharpston is not being dismissed because of her political views, judicial work, or the like. She has just been appointed by a Member State that is no longer there. As simple as that. Is her dismissal correct or wrong? To be honest, for me the answer is straightforward: it is correct. I do accept, however, that there are people who see that differently. BUT that is not the point here. The key point is: it is not a rule of law issue. Rule of law is something serious. I understand that some academics who have written a lot on the subject, and like to think themselves as ‚experts‘, have an interest in enlarging that concept beyond any conceivable and reasonable limit. But, in truth, those academics are doing a great disservice to those that really fight for the rule of law. By devaluating and watering down the concept, it loses importance, gravity and seriousness. Mutatis mutandis, it is like when a simple or banal legal breach is treated as a violation of a fundamental right … if everything is seen as fundamental, is anything really fundamental?

  4. Nicolas Pruneau Fr 4 Sep 2020 at 13:15 - Reply

    With all due respect, the reasoning employed in this article will fail to convince bachelor students, nor indeed anybody else, for they will not be intimidated by the bravado displayed to cover misconceptions on substance. It does not address the crucial point of Brexit and the elephant in the room: on the assumption that 27 Member States leave the European Union, would the Court of Justice continue to ‘function’ with no judges, but with 11 Advocates General?

    • Jonathan Parsley Fr 4 Sep 2020 at 20:08 - Reply

      So – Brexit means Brexit a) for Great Britain (I deliberately refrain from the term UK here…), including all the deprived areas in the north of England who will suffer most from the departure from the EU, b) for all generations to come, including eager youngsters who had been looking forward to spending an Erasmus year elsewhere, c) for anyone wanting to benefit from free movement and, more broadly, the rights deriving out of EU-citizenship, d) for science and research which is being cut off, including financially, from the continent, e) for police cooperation and intelligence-sharing, f) for the role of a medium-sized power with a former empire, in a globalised world, g-y) fill out for yourselves … z) but not for an Advocate General at the ECJ, was chosen, in 2005, inter alia, on the basis of her nationality? This is so far beyond belief that one couldn’t make it up. And to add injury to insult, this is styled as a rule-of-law-issue? It’s time to turn down the volume.

  5. Sampiero Fr 4 Sep 2020 at 15:39 - Reply

    No, it is not urgent. It is not urgent at all to deal with some legal sci-fi cases brought by a member of the Court (aged 65 and having already served no less than 14 years at the Court) that refuses to go (and ‚lose‘ one, yes only one, year of mandate) despite the Member State which appointed her being no longer member of the Union. She was chosen (through a political process) by the UK authorities and formally appointed by the Member States. Following departure of the UK, that same ‚body‘ that appointed her (the Member States) has – surprise surprise – decided that only members appointed by CURRENT Member States can continue to serve. Let’s be honest: that is obvious, reasonable, almost due. The EU Courts have, currently, some 2,000 cases to deal with. Some of those cases concern, inter alia, persons subject to an european arrest warrant, abducted children, persons suspected of being close to terrorist groups, refugees or persons asking for international protection detained in gulag-likes camps, REAL judges being evicted because of not aligned with their own Government and so on. Those cases are urgent. Not Sharpston’s cases. The ‚let Sanson die with all the Philistines‘ actions brought by a Member of the Court who pretends to stay despite everything and everyone is the LEAST urgent case I can think of. These actions by Ms Sharpston are a disgrace. She’s gonna lose bad, and will not be remembered as the AG of Zambrano, Singapore Opinion or relocation cases but as the AG who sued (and lost) her own institution.

  6. Ioannis Koutsoukos Fr 4 Sep 2020 at 18:18 - Reply

    Well the a contrario argument used is rather hasty. The disposition providing for each member state to have a judge on the Court means a contrario that the member states do not have that a General Attorney. The a contrario argument, logically, is as simple as that. For something more you need theory, other dispositions etc
    It may well be that the normative claim of the author -that Attorneys do not have to be nationals of member states- can be theoretically substantiated. But not of course by such a weak argument whic amounts to a comlete lack of motivation. It needs theory, all the more since the author claims that there has been a breach of the rule of law

  7. Ysa Sa 5 Sep 2020 at 15:09 - Reply

    Meanwhile, the General Court has just decided to suspend the appointment of Mr Rantos, on the basis of the principles of proper administration of justice and the rule of law. An interesting development, don’t you think?

  8. Occasional poster Sa 5 Sep 2020 at 22:27 - Reply

    The Article 19(2) TEU argument seems flimsy and spurious. The obvious reason why advocates general are not described in the way judges are is that there are far fewer AGs than member states. If one adopts the literal approach to interpretation advocated in the blogpost, the logical inference, since Article 19(2) states that the judges are „from“ member states, is that AGs don’t have to be „from“ a member state, so that for example the US could nominate one. However all AGs are and have always been „from“ member states, nominated by them in the same way as judges are. There are always AGs from the six largest member states whilst the others nominate AGs in rotation. The fact that AGs can be of any nationality is irrelevant since, as the blogpost itself notes, so can judges. So how are the AGs, all nominated by member states,“not connected“ to their nominating member states in the way that judges are connected? It isn’t a question of independence, since both judges and AGs have to act with complete independence. No plausible content of the supposed distinction between judges and AGs arising from the wording of Article 19(2) can lead to the conclusion that if a member state leaves the EU, the judge it nominated leaves the ECJ but the AG it nominated does not.

  9. Ors So 6 Sep 2020 at 09:25 - Reply

    For those interested, here’s the link to the General Court’s order suspending the appointment of AG Rantos:

    https://www.brickcourt.co.uk/images/uploads/documents/Interim_Measures_Order_4_Sep_2020.pdf

  10. Novanglus So 6 Sep 2020 at 12:18 - Reply

    The above comments deal with most of the problems in this post’s reasoning. Just to recall that these have previously been pointed out (my comments on https://verfassungsblog.de/the-schroedingers-advocate-general/ and https://verfassungsblog.de/could-there-be-a-rule-of-law-problem-at-the-eu-court-of-justice/).

    There is clearly room for reasonable disagreement about whether art.50(3) requires the removal of a MS-proposed AG, and the CJEU case will provide the answer. But it is extraordinary how far the partisans of the narrow interpretation of art.50(3) (1) repeatedly fail even to engage with the arguments against their view, (2) adopt a highly emotional and partisan view of the issue (notably Rozenberg’s entirely uncritical article) and (3) persist in claiming that their interpretation is so clearly correct that any other would violate the rule of law.

    As I a commentator above points out (and as I have before), this last point is not only highly dubious. It is also potentially highly damaging to efforts to address genuine rule of law issues within backsliding MSs.

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