British QC begins legal action against EU

If the EU can sack court members — judicial independence will become meaningless

Artillery Row

A UK member of the EU court has begun legal action against the EU and her own judicial colleagues after attempts were made to sack her. Eleanor Sharpston QC has launched the unprecedented claim in another of the EU’s courts.

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

Unlike the UK’s judges in Luxembourg, Sharpston kept her job when the UK left the EU at the end of January. She continues to sit and has delivered six opinions since the beginning of February, the most recent of them today.

By law, the post of advocate general is not attached to any particular member state. However, the EU’s 27 member states issued a declaration on 29 January asserting that Sharpston’s mandate would terminate two days later. On 31 January the court’s president, Koen Lenaerts, wrote a letter to the Council of the EU declaring a vacancy from 1 February and asking member states to nominate a new advocate general to Sharpston’s post. Greece is next in line for the job.

Sharpston’s appointment was for a fixed period ending in October next year. In February, I asked her whether she would take legal action if she was forced out early.

“I have not made up my mind,” she told me at the time. She made it clear that she would not be losing any money if she had to retire early: her post is pensionable and she would be taking on other work. But Sharpston regarded the action 0f the EU 27 as unlawful political interference with an independent judicial body.

“It may be that the very last service I can render to my court is to see whether there is something I can do to push back against the member states intruding into the court’s autonomy and independence,” she said.

Earlier this month, Sharpston lodged two claims at the EU’s General Court, whose responsibilities include staffing matters. She asked for the proceedings to be kept confidential.

Yesterday, however, a Brussels newspaper carried a highly detailed account of the two cases, which I have now independently verified.

Sharpston’s first claim is against the Conference of the Representatives of the Governments of the Member States — the EU 27. The second is brought against the EU Court of Justice itself.

She argues that the assertions made by the EU 27 and in the president’s letter are unlawful because they bypass safeguards contained in the court’s statute, which is primary EU law. That says the mandate of a serving member can be terminated only by the court itself for specific, mainly disciplinary, reasons.

I understand Sharpston had hoped that the court itself would use its statutory powers to consider whether article 50 of the Treaty on European Union, under which the UK left the EU, ended her appointment on 31 January. If the court agreed to consider this question of law, she would accept its decision and withdraw her legal challenges. But it has so far refused to do so.

The EU 27 were ill-advised to declare that the mandates of all members of EU institutions appointed in relation to the UK would “automatically end” on 31 January. 

But it would be a mistake for people in Britain to imagine that the EU and its institutions no longer matter.  The European Commission can continue to bring infringement proceedings against the UK until 2025 over any alleged breaches of EU law this year.

More broadly, the whole affair shows a lack of respect for the rule of law from the very body that is meant to uphold it. If governments can get away with taking binding decisions on disputed questions of EU law — or if they can sack members of a court to which they are answerable — judicial independence will become meaningless and we shall all be the poorer.

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