QC challenges attempt to throw her off EU court

Eleanor Sharpston wins temporary injunction blocking appointment of her successor

An EU court has granted a temporary order suspending the imminent appointment of a Greek judge to a judicial post at the EU Court of Justice that is currently held by a senior UK lawyer.

Eleanor Sharpston QC had applied for an urgent injunction amid reports that her replacement would be sworn in on 7 September.

Granting her request, a judge of the EU’s General Court said that refusing to grant the order Sharpston had sought would not be “in the interests of the application of the rule of law in the European Union”.

On 2 September, representatives of the 27 EU member states had tried to appoint her chosen successor — even though Sharpston’s mandate as an advocate general still has more than a year to run.

A press release issued by the Council of the EU said:

Mr Athanasios Rantos (Greece) was appointed advocate-general from 7 September 2020 to 6 October 2021 following the withdrawal of the United Kingdom from the EU.

The announcement did not say that Rantos would be replacing Sharpston, who has continued to serve the EU Court of Justice as an advocate general since the UK left the EU on 31 January. But 6 October 2021 is the date on which her six-year mandate expires.

As one of the court’s 11 advocates general, Sharpston’s role is to hear cases alongside the judges and deliver advance opinions that help them decide the most difficult cases. She has delivered seven opinions since the beginning of February.

I understand the court had been planning to swear Rantos in as early as 7 September. But Sharpston lodged a legal challenge to the member states’ decision on 4 September and asked for Rantos’s purported appointment to be suspended until an EU court could consider the issue.

As I commented on 4 September, it would have been extraordinary if Rantos was made a member of the Court of Justice of the European Union while the EU’s General Court — a subsidiary judicial body that used to be called the Court of First Instance — was considering whether there was a vacancy to be filled.

Sharpston (pictured here post-Brexit in her room at the EU court) is a UK national and also holds Luxembourg nationality. She argues that her appointment is unaffected by the UK’s departure because — unlike the UK’s former judges at the EU court — her post is not tied to the UK’s membership of the EU and so article 50(3) of the Treaty on European Union did not bring it to a premature end.

In a column for The Critic published online on 2 September, I reported that Sharpston was expected to bring a legal challenge if a successor were to be appointed before her term ends.

That claim was duly lodged at the General Court at 1430 local time on 4 September. It challenged the lawfulness of the decision purporting to appoint Rantos as an advocate general. Sharpston requested an urgent injunction.

Her request was granted later on 4 September by Judge Anthony M Collins, president of the third chamber of the General Court. The court’s order was published by Sharpston’s lawyers.

Collins, an Irish judge, said Sharpston had raised complex issues of law that required detailed and comprehensive argument.

She had claimed that Rantos’s appointment amounted to “an unwarranted and unjustifiable interference with the autonomy and independence of the Court of Justice”. She had also said it subverted the independence and autonomy of the judicial branch of government of the European Union and usurped powers that the treaties establishing the European Union attributed exclusively to the Court of Justice.

Sharpston added that the appointment decision was based on an erroneous interpretation of article 50(3) of the Treaty on European Union, a provision that the Court of Justice had not previously been asked to consider.

Explaining his decision to suspend Rantos’s appointment, the judge said:

As 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.

EU member states have been given until 11 September to file their written observations.

Sharpston argues that member states have no power to sack members of the judiciary. The court’s statute — primary EU law — says it is for the court itself to decide whether the mandate of a serving judge or advocate general has been, or should be, ended prematurely.

 “This is a constitutional issue of principle about judicial independence and the rule of law, Sharpston says.

She has already issued claims against the EU’s intergovernmental conference and the Court of Justice itself. These pending claims remain unresolved.

In his ruling on 4 September, Collins referred to “a copy of a press release purportedly issued by the Council of the European Union on 2 September”. Normally, a party challenging a decision would be expected to produce evidence of its publication in the EU’s Official Journal. When Sharpston’s lawyers made an urgent high-level request on 3 September for a copy of the decision, they received a reply some 24 hours later telling them that they would receive a “reply to your within 15 working days”.

I explained some of the background to this case in a post here on 2 September.

As two leading academics argued on 3 September,

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.

Lord Anderson of Ipswich KBE QC has been following the case closely. He is a member of Brick Court chambers, as are Sharpston’s lawyers Sir Nicholas Forwood QC (a former EU judge) and James Flynn QC. Anderson tweeted on 5 September:

In his ruling on 4 September, Collins referred to “a copy of a press release purportedly issued by the Council of the European Union on 2 September”. Normally, a party challenging a Council decision would be expected to produce evidence of its publication in the EU’s Official Journal. Some 24 hours after Sharpston’s lawyers had made an urgent high-level request for an official copy of the decision, they received an email telling them they would receive a reply “within 15 working days”.

That response came from the EU’s “Transparency” team.

This post, first published on 2 September, was last updated at 1420 UK time on 6 September.