Eleanor Sharpston has issued this statement in response to the events I described in earlier posts today:
Today’s two orders by the Vice President of the Court of Justice were handed down ex parte, without giving me any opportunity to make submissions. Assuming that there was any jurisdiction to make an order on appeal against an ex parte interim order of the General Court that was not a “final order”, the orders also seem to me to go significantly beyond the proper scope of such an appeal. The order being appealed from the court below seemed to deserve the thoughtful consideration which would have naturally occurred had argument been heard from both sides.
But in any event I am reassured by the order of President of Chamber Collins in the General Court that I raised legitimate doubts as to the underlying question of whether or not, following Brexit, Article 50(3) TEU operated so as automatically to terminate my mandate as an advocate general. That is a legal question which deserves to be decided judicially, not politically. That was and is my core concern.
My legal team and I are now considering precisely what steps we can and should take, given these most recent developments. The rule of law in the EU is a principle that has been very dear to my heart during my time as advocate general. I do not think today’s events have enhanced it; and I shall explore what more I can do to seek to uphold it.
In the meantime, I understand that my successor Advocate General Rantos was sworn in this morning a few minutes after those two orders were handed down. I wish him every success in his new functions and I hope that he derives as much enjoyment and intellectual satisfaction as I have had in the 14½ years that I have served the Court.
This is a slightly revised version of the statement originally published here.
Update 11 September (added 14 September):
At the end of a detailed analysis, Prof Dimitry Kochenov, University of Groningen and Graham Butler, Associate Professor of Law at Aarhus University, conclude:
As [the] 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.