This column was taken from the September issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering three issue for just £5.
As leaders of the 27 European Union states return from their least relaxing holidays ever, they face a threat to the EU’s legal order that is entirely of their own making. Meeting as an intergovernmental conference two days before Brexit, the member states tried to sack Eleanor Sharpston from her post at the EU Court of Justice.
Their thinking was simple, if flawed. Article 50(3) of the Treaty on European Union says the treaties cease to apply to the UK on Brexit day. As a result, everyone appointed “in relation to the UK’s membership of the Union” was out of a job on 31 January.
Sharpston is a UK national (though she also has Luxembourg nationality) and was put forward for her post by the UK. So her latest mandate — six years expiring in October 2021 — must, so it was reasoned, have ended with Brexit. This error was compounded on 31 January when Koen Lenaerts, president of the EU court, declared a vacancy and asked member states to nominate Sharpston’s successor.
Sharpston wanted her claims to be kept confidential — but they were leaked to a Brussels newspaper
But Sharpston is an advocate general, not a judge. The 11 advocates general at the EU court sit with the judges and assist them by delivering non-binding opinions in the most difficult cases. To protect judicial independence, the court’s statute says it is for the court to decide whether the mandate of a serving judge or advocate general has been — or should be — ended prematurely.
Unlike the British judges’ jobs, which disappeared with Brexit, Sharpston’s post is not legally attached to any particular member state. It still exists. She is sitting in accordance with the statute. She has delivered no fewer than seven opinions since the beginning of February. Is she a Schrödinger’s cat advocate general, protected by the statute for some purposes but not for others?
Nobody should be expected to work under such uncertainty. So Sharpston asked for a ruling under the statute on the effect of article 50. Lenaerts, who had little practical litigation experience before becoming a judge, chose not to refer that request to his court.
Next, Sharpston took legal action against the EU’s intergovernmental conference and the Court of Justice itself. In applications lodged at the EU’s General Court, she argued that the announcements made by the conference and by Lenaerts were unlawful because they bypassed statutory safeguards. She made no claim for damages. Sharpston wanted her claims to be kept confidential — but they were leaked to a Brussels newspaper. She hoped the issue could be resolved promptly — but the Council legal service, representing the conference, appears to be digging in for a fight.
So, while the lawyers were doing what lawyers do, Sharpston tried to break the deadlock. At the end of June, she wrote to each of the 27 member states, through their ambassadors in Brussels, offering a deal.
The candidate nominated by Greece to succeed Sharpston is Athanasios Rantos, who is currently president of his country’s supreme administrative court. If the member states were to appoint him from October 2021, Sharpston told the ambassadors, she would withdraw her legal challenges. She would even donate the difference between her transitional severance allowance and her normal salary to charity.
There was no reply. In July, she made them another offer. What about putting everything on hold and resolving the dispute discreetly through mediation? Again, no response. The approach being taken by the Council legal service seems to be that Sharpston can be dismissed at any time by the EU’s political leaders and has no right to take legal action.
If the General Court dismisses both her claims she would be the only person in Europe with no protection against unfair dismissal
Unless the claims are settled, there seem to be two possible outcomes. Either she wins by getting the General Court to rule on the substance, in which case she will have succeeded in restoring control of their members’ mandates to the EU courts. Or the General Court dismisses both her claims as well as the inevitable further action challenging the appointment decision, finding that she has no right to bring proceedings. In that case she would be the only person in Europe with no protection against unfair dismissal.
And that’s where it gets really interesting. Sharpston’s only redress would be to bring proceedings against the 27 member states at the European Court of Human Rights. At present, that court works on the presumption that EU law complies with the human rights convention.
But, ever since the Court of Justice blocked the EU’s accession to the human rights convention in 2014, there has been no love lost between the two European courts. What if the Strasbourg judges find that their counterparts in Luxembourg have violated basic rights by denying access to a court?
Describing herself as “someone who has spent her entire professional life working for the European project”, Sharpston urged the ambassadors “to extinguish a small fire quietly, rather than add fuel to the flames”. And all this litigation? “Certainly not about victimhood, and only indirectly now about Brexit,” she says. “This is a constitutional issue of principle about judicial independence and the rule of law.”
High stakes, indeed. It’s not too late for the EU to rescue its reputation.
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