Composition of the ECJ

Professor Dimitry Kochenov (Groningen) and Professor Graham Butler (Aarhus) question the lawfulness of the Member States’ dismissal of Advocate General Eleanor Sharpston QC from the ECJ by the Member States, and the method of her replacement.

Court of Justice of the European Union, Luxembourg. Main Courtroom in session. Photograph courtesy Court of the Justice of the European Union.

On the morning of Thursday, 10 September 2020, a judicial coup d’État took place on the Kirchberg plateau. In the height of secrecy, and without the knowledge of the incumbent, Eleanor Sharpston QC, a sitting Advocate General of the European Court of Justice, was dislodged from her office. Her anointed successor, Athanasios Rantos, was swiftly sworn in to replace her in a ceremony unusually closed to the public.

Thus, a member of the ECJ was forcibly removed from the bench, before the end of her term of office, as established in primary law. The removal, which was driven through by the Member States with apparent approval of the ECJ, poses a tremendous challenge. The lawful composition of the ECJ is now obviously in question, as much as its structural independence. Remarkably, next-to-no media outlets took notice.

Whilst judges’ term of office are linked to the continued membership of ‘their’ Member State to the Union, Advocates General are not. This is accepted by all, given that on 31 January 2020 – the date of the UK’s withdrawal from the Union – Christopher Vajda QC departed from the ECJ, and Ian Forrester QC departed from the General Court. By contrast, and rightly, AG Sharpston remained a full member of the ECJ, and delivered a number of Opinions thereafter, as would be expected. The UK’s withdrawal from the EU did not affect her continued tenure on the Court until the end of her mandate.

The issue is that the Member States ‘terminated’ her mandate, and that was manifestly illegal. Unceremoniously sacking an AG, as the Member States did in September 2020, who is a full member of the Court on par with that of ECJ judges, is a clear violation of the EU Treaties. Members of the ECJ may be deprived of their office under Article 6 of the Statute of the ECJ, “if, in the unanimous opinion of the Judges and Advocates General of the Court of Justice, he no longer fulfils the requisite conditions or meets the obligations arising from his office.” That is not what happened. Instead, the Member States made a decision, pursuant to Article 253 of the Treaty on the Functioning of the European Union (TFEU), to install a new member to replace an existing one before the end of her mandate, which was scheduled to expire in October 2021.

The ECJ failed to take the side of judicial independence, the rule of law, and security of the tenure of a colleague under political attack. Even worse, apparently eager to help the Member States punish one of the EU’s leading lawyers for her British nationality, in light of the UK’s decision to withdraw from the EU, the Court, speaking via its Vice-President, Rosario Silva de Lapuerta, established that the actions of the Member States which directly interfered with the security of tenure and the duration of the mandates of the Court’s own members, were unreviewable and thus beyond the law.

The events leading up to the eventful morning of Thursday, 10 September 2020 are of particular note in this story. Rather than letting this all happen, AG Sharpston took pre-emptive action against her unlawful dismissal, represented by Nicholas Forwood QC (formerly, Judge of the General Court) and James Flynn QC – both of Brick Court Chambers. Following the press release on the Council’s website announcing the decision of the Member States to replace her on Wednesday, 2 September 2020, AG Sharpston sought judicial protection from the Member States. In particular, AG Sharpston sought an ex parte interlocutory injunction (interim measure) against the Member States, suspending the effects of the Member States actions, until a full hearing could proceed on the legality of them.

With AG Sharpston’s successor’s entry into office (de facto removing her from the ECJ) set to occur on Monday, 6 September 2020, her application for judicial protection was swiftly lodged with the General Court – the EU’s administrative court – on the afternoon of Friday, 4 September 2020. Later that evening, the Judge hearing application  for Interim Measures, Collins J, granted the applicant the interim measure on a temporary basis until he had the opportunity to hear from the Member States. In Collins J’s own words, the issues “raise[d] complex issues of law that, at a very minimum, require detailed and comprehensive argument before the judge hearing the application for interim measures before the application for interim measures can be ruled”. He set 11 September 2020 as a deadline to form a fuller picture as to why the Member States thought that they could override the term of office for members of the ECJ established by the Treaties. As a result of Collins J’s order, the swearing in of Mr. Rantos could thus not take place on the day selected by the Member States in their press release.

The following morning, on Saturday, 5 September 2020, the Member States lodged an ex parte appeal against the suspensory interim measures order that Collins J made. In effect, they sought for the ECJ’s Vice-President, Silva de Lapuerta VP, to overturn Collins J, and let Mr. Rantos enter into office, replacing AG Sharpston no matter what the Treaties and the Statute of the Court had to say about the length of her guaranteed tenure and the conditions of removing a sitting AG from the bench.

This was most unusual in at least three respects. Firstly, the Member States appealed an interim measures order that was not final, and did so several days before a clear deadline was set for proceedings to continue at the General Court. Secondly, Member States sought for Silva de Lapuerta VP to act on an ex parte interlocutory injunction basis, so that AG Sharpston would not be heard, or even notified. This was notwithstanding that the case had, on the face of it, lost any sense of urgency, in that Mr. Rantos could not be announced ‘AG’ on the date chosen by the Member States. Thirdly, the appeal by the Member States implied that the ECJ is not an independent court of law, as it was brought in defence of ruthless political interference of the Member States in the composition of the Court, in line with the ultimate lack of institutional independence of the Court from the Herren der Verträge – the Member States.

At this point, the stakes were very high indeed. On the one hand, Collins J in the General Court had given the Members States one week to submit their written observations to him, so that he could either affirm the suspensory nature of his interim measures order, or alternatively, terminate that order, and let the Member States to proceed with the replacement of AG Sharpston. On the other hand, Silva de Lapuerta VP in the ECJ had before her the Member States not wanting to follow Collins J’s instructions. Instead, they were asking her to set aside his order, and let AG Sharpston be replaced, while also not informing her of the action and giving her no chance at all to present any arguments in front of the ECJ Vice-President.

This request of the Member States was a significant deviation from the most basic procedural guarantees at the heart of European legal culture. This was an action repugnant in substance, in effect, seeking to establish the lack independence of the ECJ, and for a carte blanche of interfering with its composition, in direct violation of primary law and the principles of law that the ECJ had recently been espousing for national courts. It was an attempt by the Member States to set aside the relevant procedural guarantees, and to do so in secret. To make matters worse, the doubly flawed action boasted untenable legal arguments, as we will show below.

On the weighing of competing interests, any reasonable understanding of the basic administration of justice by judicial bodies would weigh in favour of dismissing the Member States’ request, and let the continued proceedings between the parties continue before Collins J in the General Court, and let the interim measures stage of the litigation to proceed. Yet, that is exactly what Silva de Lapuerta VP did not do. Instead, on the morning of Thursday, 10 September 2020, the learned judge overturned Collins J, and set aside his order. This was done at the same time as the morning sitting of the ECJ. Then, and this points to collusion between the Member States and the ECJ, the anointed replacement for AG Sharpston, Mr. Rantos, was on hand to take an unusually unannounced oath of office after the delivery of the decision of the ECJ Vice-President. This effectively concluded the strangest ex parte proceedings. This laid bare the lack of independence of the ECJ. The Member States as a group can sue (even in secret, as in the case at hand), but cannot be sued. The ECJ then announced that Mr. Rantos purportedly become a member of that Court.

It is difficult to see a good reason for why Silva de Lapuerta VP did what she did. Was there a vacancy on the ECJ at all? Did Collins J commit an error of law? Was there a compelling reason for her action to be secret? Was there any urgency in hearing the appeal brought by the Member States one day before they were due to present their arguments to Collins J in the General Court? The answer to all these questions is a definitive ‘no’. It is a ‘no’ so clear that it obviously compromises the ECJ and throws a shadow on two fundamental claims about it. The first is that it is a court of law meeting the basic requirements of Article 19 TEU in terms of judicial independence (Silva de Lapuerta VP seems to have ruled on the assumption that the ECJ is prima facie not an independent institution). The second is that the ECJ is lawfully composed, which is questionable, given that Mr. Rantos was anointed an ‘AG’ without any vacancy on the bench. So let us turn to some of the specific legal questions.

The appointment of members of the ECJ is done by ‘common accord’ – a decision – of the representatives of the governments of the Member States based on Article 253 TFEU. This only allows appointments to the ECJ, and not removals. Given that the term of tenure is clearly set out in EU primary law and that security of tenure is a ‘cardinal principle’ of law in the words of the ECJ itself, removals are strictly regulated by the Statute of the ECJ, in which all members of the ECJ, acting unanimously (except for the member concerned), may remove a member. Furthermore, acts by ‘common accord’ that are explicitly set out in the EU Treaties are subject to judicial review, given that the EU is a complete system of legal remedies and procedures, and all actions provided for by the EU Treaties are subject to judicial review.

However, with Silva de Lapuerta VP overturning Collins J – her orders did two things. Firstly, the learned judge effectively made clear that decisions made pursuant to Article 253 TFEU can indeed remove sitting members from the ECJ prior to the end of their term of office of six years, thus rendering the guarantee of security of tenure set in primary law dependent on the political will of the Member States, as opposed to limiting it. This confirmed that the ECJ lacks independence from the Member States, even at the most structural level. Secondly, the learned judge stated that Article 253 TFEU decisions are beyond judicial review, and cannot be challenged before the ECJ. Therefore, not only does the ECJ lack independence, but violations of the EU Treaties, substantively or procedurally, are a tolerable feature of the EU legal order (as long as these are done by the common accord of the Member States).

Just as the Luxembourg Compromise switched off law-making procedures in EU primary law many decades ago, showing who the real sovereign was in the EU legal order before the relance européen, Silva de Lapuerta VP, speaking on behalf of the ECJ, failed to rule on the exception when expressly asked to do so, to take a Schmittean illustration. The ECJ has prostrated itself at the feet of the Herren der Verträge, in total oblivion of its stated task to ensure that the law is observed, as it is mandated to under Article 19 TEU. The Court is the King’s and the law is the King’s too in the European Union – a situation which is nothing but a direct and imperative denial of the ideal of the rule of law on which the Union, together with the Member States, is purportedly based.

With the greatest of respect, Silva de Lapuerta VP got the law badly wrong. But whilst judicial errors can be righted in time, there is a much more to the issues at hand. The actions of the ECJ’s Vice-President, and the ECJ’s President swearing in a new member, Mr. Rantos, show a much more profound problem. The fact is that as from Thursday, 10 September 2020, there are now lingering questions about the lawful composition of the ECJ with ‘AG’ Rantos in situ, opening the ECJ’s judgments to possible contestation on grounds quite unusual for the EU’s apex court – its lack of lawful composition.

Rightly, AG Sharpston sought interim relief from the General Court. Rightly, Collins J consented to a suspensory interim measures order being granted pending further deliberations, and hearing from the Member States. Wrongly, the Member States sought to remove a sitting member of the ECJ and to reaffirm their upper hand above the law. Wrongly, Silva de Lapuerta VP failed to protect the ECJ’s independence from the Member States, staining the reputation of an institution of vital importance in a Union of integration through law.

What is particularly striking about the dismissal of AG Sharpston is that it was all Member States who collectively violated the EU Treaties. And in response to those actions, there is nowhere one can turn to for judicial protection, except for the ECJ, which let the applicant and the rule of law down. This collective attack on the independence of the EU judiciary was not even challenged by the ECJ itself. The law has not been observed and the implications of that are deeply worrying.

Dimitry Vladimirovich Kochenov is Professor of EU Constitutional Law at the University of Groningen, The Netherlands.

Graham Butler is Associate Professor of Law at Aarhus University, Denmark.

For extended analysis of the legal issues, see ‘The independence and lawful composition of the Court of Justice of the European Union: replacement of Advocate General Sharpston and the battle for the integrity of the institution’, has been published by the authors in the Jean Monnet Working Paper series, NYU (New York University) School of Law, October 2020.

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