Sharpston appeals to EU court

Former advocate general seeks to protect judicial independence from political interference

Eleanor Sharpston QC, who was a member of the EU Court of Justice in Luxembourg for nearly 15 years until she was sacked in September, has appealed to the court against her dismissal. Her mandate was not due to expire until October next year.

The former advocate general is challenging two decisions taken by representatives of the 27 EU member states. In January, they declared Sharpston’s position on the court vacant from the day after the UK left the EU — although she continued working and delivering opinions. In September, the member states appointed her successor, Athanasios Rantos, and required her to leave immediately.

Declaring that Sharpston’s earlier challenges to these decisions were “manifestly inadmissible”, the EU General Court — a subsidiary judicial body — ruled in October that decisions taken collectively by the member states were not subject to judicial review. That’s the ruling she is now asking the Court of Justice to overturn.

Her lawyers say the current appeals raise two issues:

  1. If a controversy exists over whether the mandate of a serving judge or advocate general at the EU Court of Justice has been terminated prematurely by some external event, must the Court of Justice resolve it?

  2. If the member states are entitled to end the mandate of a judge or advocate general, is such a decision immune from review by the court?

As her lawyers have told the court, Sharpston

profoundly believes that the answer to the first question is “yes” and to the second must be “no”.

Sharpston — who delivered this year’s Hamlyn lectures — is represented by a team of four barristers. Three of them are QCs and all are acting without charge. They are led by Sir Nicholas Forwood, who in 1999 was appointed a judge at the General Court (then called the Court of First Instance) and served there for 16 years.

In written submissions, Sharpston’s lawyers attack the General Court’s reasoning on the principal question raised by the case: whether the Court of Justice of the European Union has jurisdiction under article 263 TFEU to review decisions taken by governments of the member states dismissing or appointing an advocate general.

She says the court’s reasoning is brief (fewer than 10 paragraphs) and superficial. It rests on a “flawed analysis” of past cases. “No doubt this can be attributed to its being made without the benefit of full reasoned argument,” Sharpston adds, leaving unsaid her complaint that the court had chosen not to complete its normal written procedures or hold a hearing.

And she says its ruling raises profound concerns:

If the reasoning of the contested order is upheld on appeal, the member states would be free, without judicial control, to replace any serving judge or advocate general merely by deciding, or purporting to decide, that some event had caused the automatic premature termination of that member’s still current mandate, thus creating a vacancy. Any judicial office-holder effectively deposed before the end of their mandate by the unlawful appointment of a successor would be unable to challenge that unlawful action in any court. That result is not just wrong, it is obviously wrong.

Sharpston points out that there is already a significant body of academic commentary and “informed press coverage” on these issues. She says the appeal raises questions that should previously have been decided by the General Court — and should now be decided by the Court of Justice — with the benefit of full reasoned argument.

Grounds of appeal

Sharpston’s appeal is based on five grounds:

1. The General Court erred in concluding that her previous challenge was inadmissible. It thought the claim was not directed against one of the EU’s “institutions, bodies, offices or agencies”. But these terms should not be construed restrictively. Where the member states, acting “by common accord”, exercise a power that is created by the treaties, they are necessarily acting as one of the institutions, bodies, offices or agencies of the EU.

2. The court also erred by failing to distinguish between the power of the member states to appoint a candidate to a vacant post and the question of whether a vacancy exists. It is for the Court of Justice, not the member states, to decide whether there is a vacancy to which the member states can appoint a suitably qualified candidate under article 253 TFEU.

3. The court’s reliance on a ruling delivered in 1993 was erroneous. In the 1993 case, the member states held parallel powers that existed independently of powers given to them by European law. In the Sharpston case, they have no other powers.

4. The court erred in law — and acted unfairly — in treating as binding an ex parte order made on 10 September by Rosario Silva de Lapuerta, vice-president of the EU Court of Justice. That order overturned a temporary ruling by Judge Collins of the General Court suspending the imminent appointment of Sharpston’s successor. EU primary law says decisions given in these circumstances “shall be provisional and shall in no way prejudice the decision of the court on the substance of the case”. In addition, the vice-president’s reasoning was vitiated by flawed analysis of the case referred to in ground 3. Thirdly, the vice-president’s ruling was reached in breach of the principle that, before giving judgment, a court should normally hear the other side.

5. The court erred by failing to address Sharpston’s alternative submission that decisions of the member states in this area may be treated as decisions of the EU Council and reviewable as such. “The EU legal order does not admit of a ‘black hole’ where no entity can be held to account for improper exercise of powers created by the treaties… and where no effective judicial means are available for remedying that unlawful exercise.”

Brexit

Nobody doubts that Sharpston was sacked because the UK left the EU on 31 January 2020. She is British-born although her home is in Luxembourg, she speaks the local language fluently and she also holds Luxembourg nationality.

As one of 11 advocates general at the European Court of Justice, Sharpston’s role was to hear cases alongside the judges and deliver advance opinions that helped them decide the most difficult cases. She was first appointed in 2006.

She argues that her mandate was not automatically terminated by Brexit. She was not in the same position as the UK’s judges, who lost their jobs at the end of January. An advocate general’s post is not legally linked to the nominating state and does not depend on that state remaining a member of the EU. On this reasoning, Sharpston was unlawfully deprived of her office when her successor was sworn in on 10 September.

That argument — the substantive question raised by the case — has not yet been addressed by a court. Instead, the General Court has dealt only with the reviewability question: whether decisions to sack an advocate general and appoint a successor are open to review.

So, argues Sharpston, the Court of Justice must decide the reviewability question on the basis that she may be correct on the substantive question.

If her appeal on the reviewability question is allowed, the Court of Justice would have to send the case down to the General Court unless it was satisfied that the state of the proceedings allowed it to give judgment itself. That is what she would prefer.

Sharpston’s main aim throughout has been to obtain a ruling on whether her mandate was ended, automatically, by Brexit. Such a ruling — whichever way it went — would be a victory for the rule of law, she argues, because it would show that judges rather than the politicians had the last word in interpreting article 50 TEU, the treaty provisions under which the UK left the EU.

Sharpston stresses that she has no wish to disrupt the workings of the court. She does not want any ruling in her favour to affect the validity of opinions that have been delivered by her successor.

Finally, her lawyers say this:

while [Sharpston] scorns to bring a claim for financial compensation, she has been, and continues to be, deeply affected by the manner in which her mandate was unlawfully brought to a premature end, the effects of which were further exacerbated by the abrupt and precipitate nature of her actual departure from the court. She thus has a deep and continuing moral interest in the outcome of the case.

Comment

This appeal gives the EU’s highest court an opportunity to reaffirm the fundamental principle that all legal acts carried out within the EU legal order which adversely affect a third party must be susceptible to effective judicial review.

That principle is intrinsic to the rule of law. Great damage has already been done to the reputation of the EU Court of Justice by the precipitate and ill-advised decisions of its second most senior judge, Rosario Silva de Lapuerta.

Now that there is time for mature reflection, the court must reassert its role, admit its errors and deliver justice to a fine lawyer who has dedicated her career to the pursuit of justice within the European project. Anything less would be an indelible stain, not only on the reputation of the judges involved but also of the court they purport to serve.