It’s Urgent

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.

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Frankenstein’s Court

Due to Brexit, the remaining 27 EU Member States would like to remove Eleanor Sharpston, an Advocate General nominated by the United Kingdom, from the CJEU. Many have criticized this idea, claiming that a removal would undermine the judicial independence of the Court. This post argues that the position taken by the EU 27 to remove Eleanor Sharpston from the Court is actually well-reasoned and lawful while leaving her in office would lead to strange consequences e.g. that the Judges of the Court are less protected than its Advocate Generals.

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Could there be a Rule of Law Problem at the EU Court of Justice?

The Member States’ current plan of replacing the sitting U.K. Advocate General at the Court of Justice Eleanor Sharpston before the end of her six-year term raises a serious question whether doing so may violate the European Treaties. If yes, this would be a troubling intrusion on the independence of the Court and the constitutional structure of the Union – just when the EU should be setting an example for the Member States (both current and former).

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