Eleanor Sharpston Sacked from CJEU Advocate General job

Carawaystick · 10-09-2020 9:09pm #1

A Luxemburg national, appointed by the brits as an Advocate General to the CJEU, was sacked today even though she had over a year of her term to go.

Joshua Rozenberg has several Blog posts about the matter.

It would seem that theres a reasonable case that the staff of the court don't represent a member state so if a member state leaves, there is no reason to remove them.

A legal paper from ms Sharpston outlines some of her case.

She has also worked on 7 cases for the cjeu since the brits exited, so if the rationale is that she couldnt work as the uk left, then this would throw into doubt some fo the cjeu work.

Thoughts?

hullaballoo · 11-09-2020 8:18am

It's difficult to understand the full picture there from a couple of blog posts, which are clearly an unreliable source and the very brief judgment on the interim injunctions from Tony Collins J.

It is interesting though but I would like to know more before commenting.

GM228 · 11-09-2020 9:18am

A big issue here is the CoEU made Declaration 21018/20 in January 2020 that she would remain in office until 2021, the cases are still ongoing though (only 1 out of 4 is considered close by the ECJ), so we will have to adopt a wait and see approach.

Carawaystick · 12-09-2020 5:50pm

Another article from different people about the matter on verfassungsblog.de

nuac · 13-09-2020 2:05pm

Anybody interested in summarising the various the various articles etc?
Weather very sunny here just now so TLTR

rock22 · 14-09-2020 9:10am

I have no legal training but my summary ...

British lawyer nominated for (2015) and holds cushy job in European court of Justice. UK leaves EU. Lawyer wants to stay, EU 27 want her to go and appoint a successor.
British lawyer, seeking injunction against EU27 Governments, making all sorts of arguments why she should stay , including EU27 have no right to remove her, her appointment did not die with Brexit, threat to independence of court etc. Get injunction until hearing of full case. . Injunction overturn. New lawyer appointed. EU court of Justice will continue without service of UK lawyer. May win compensation down the line.

Take all above with a grain of salt

Peregrinus · 14-09-2020 9:36am

It's not that it's a "cushy job", though it is a high status one. But she is well positioned to earn more money in private practice than she did while an Advocate General, I would think.

I think the issue for her, or at least part of it, was that she needed to defend the independence of the job. Advocate-General is a judicial and non-political post, and she felt she should not accept the implication that she was in any sense a representative of the UK or its government, or that her authority to discharge her functions as advocate general was in any way dependent on her connection with the UK (or with any member state).

hullaballoo · 14-09-2020 9:38am

rock22 wrote: »

I have no legal training but my summary ...

British lawyer nominated for (2015) and holds cushy job in European court of Justice. UK leaves EU. Lawyer wants to stay, EU 27 want her to go and appoint a successor.
British lawyer, seeking injunction against EU27 Governments, making all sorts of arguments why she should stay , including EU27 have no right to remove her, her appointment did not die with Brexit, threat to independence of court etc. Get injunction until hearing of full case. . Injunction overturn. New lawyer appointed. EU court of Justice will continue without service of UK lawyer. May win compensation down the line.

Take all above with a grain of salt

Hmm, something tells me that is not a very balanced or faithful summary.

rock22 · 14-09-2020 11:44am

hullaballoo wrote: »

Hmm, something tells me that is not a very balanced or faithful summary.

I only posted because no on else answered the question posed by nuac. He wanted a summary.

I await for a more knowledgeable reply

seagull · 14-09-2020 4:05pm

Is there anything in the rules for the post that it can only be held by an EU citizen?

Peregrinus · 15-09-2020 1:41am

seagull wrote: »

Is there anything in the rules for the post that it can only be held by an EU citizen?

No, there isn't.

(And, if there were, it wouldn't matter here. Sharpston is a Luxembourg citizen (as well as a British citizen).

GM228 · 15-09-2020 6:53pm

nuac wrote: »

Anybody interested in summarising the various the various articles etc?
Weather very sunny here just now so TLTR

Haven't studied the points raised in depth, but it appears that a lot of commenters are raising the point that there is nothing specific in the various EU Treaties which allows for her removal, whilst on it's he face it seems a correct point, it also appears on it's face tha equally there is nothing saying they can't, the problem is the argument is based on the assumption that the lack of a positive equals an absolute negative, and we all know tha just becauae law does not specify you can do something it does not equate to meaning you can't.

It is ultimately something which needs a decision of the ECJ, not it's vice president.

rock22 · 16-09-2020 9:13am

Is her problem that the decision was made by the representatives of the member states and not the Council of the EU?

Another opinion piece

Peregrinus · 16-09-2020 9:50am

Statute of the ECJ relevantly provides as follows:

Article 6: A Judge may be deprived of his office . . . only 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. The Judge concerned shall not take part in any such deliberations.

Article 8: The provisions of Articles 2 to 7 shall apply to the Advocates General.

So, presumably her argument is (or includes) (a) I can only be removed by the Judges and the other Advocates-General, acting unanimously, and (b) even then, only if they conclude that I don't fulfil the "requisite conditions", and (c) having been nominated by a member state which still remains in membership of the Union is not a requisite condition of being an Advocate-General, either under the Statute or under the Treaties.

rock22 · 16-09-2020 12:06pm

But, in the context of Brexit , and the Withdrawal agreement the 27 members stated
“The ongoing mandates of members of institutions, bodies, offices and agencies of the Union nominated, appointed or elected in relation to the United Kingdom’s membership of the Union will therefore automatically end as soon as the Treaties cease to apply to the United Kingdom, that is, on the date of the withdrawal.”

Uniquely, Sharpston argues it does not apply to her although it does apply to the UK nominated judge on the court.

Additionally, would litigants be happy having a UK nominated advocate general be involved in their case, perhaps on a matter which impinges on Brexit itself?

Peregrinus · 16-09-2020 12:36pm

On the latter question, it's not a problem unique to Brexit. A huge range of cases might come before the ECJ in which the interests of a particular member state are affected in a particular way, and either a judge or an advocate general nominated by that state, or nominated by a state with an opposing interest, might be involved. The culture of the court is very strongly that judges and AGs do not represent the states by which they were nominated and if the court generally functions on that basis there is no need to make an exception for Brexit.

On the first question, I guess the issues is whether the member states (or, for that matter, the European Council) has the competence to impose new "requisite conditions" which are not specified in the Treaties or the Statute (or, if they have that power, whether they can impose them on judges and AGs already in post). There must be at least an argument for saying that, if the MS want to specify new conditions for serving, they need to do that by amending provisions of the Treaties or the Statute dealing with who can be a judge or an AG and when and how their term of office can be terminated. Other concerns aside, it's generally considered desirable for constitutional legitimacy and for the protection of the rule of law that judges and judicial officers can't be removed by a simple act of the executive - they enjoy security in office and can only be remove for reasons specified in law and by following a procedure specified in law.

I stress, I know practically nothing about the arguments raised in this case or about any relevant case-law of the ECJ. I just have a feeling that on basic principles that are common to most or all democratic legal systems, Sharpston looks to have an argument that has some legs. I have no idea at all how the decision will go.

Possibly the British judge could have run a simlar argument to Sharpston. For whatever reason, he didn't. He resigned, and so the question of whether he could validly or properly have been removed never came up.

GM228 · 16-09-2020 1:04pm

Peregrinus wrote: »

Possibly the British judge could have run a simlar argument to Sharpston. For whatever reason, he didn't. He resigned, and so the question of whether he could validly or properly have been removed never came up.

The judge is in a different scenario because the TEU specifically requires a judge representing each member state, for him to stay would not be in accordance with the TEU, the AG on the other hand does not have any such stipulation.

The judges position is crystal clear under the treaties, the AGs position is as clear as mud.

Carawaystick · 18-09-2020 12:28am

rock22 wrote: »

But, in the context of Brexit , and the Withdrawal agreement the 27 members stated
“The ongoing mandates of members of institutions, bodies, offices and agencies of the Union nominated, appointed or elected in relation to the United Kingdom’s membership of the Union will therefore automatically end as soon as the Treaties cease to apply to the United Kingdom, that is, on the date of the withdrawal.”

Uniquely, Sharpston argues it does not apply to her although it does apply to the UK nominated judge on the court.

Additionally, would litigants be happy having a UK nominated advocate general be involved in their case, perhaps on a matter which impinges on Brexit itself?

But Ms Sharpston has worked on many cases since brexit happened.
I'm sure there are subtlties the case may turn on, but by not doing this on brexit day, the ecj/member states have agreed that Ms Sharpston was perfectly qualified to continue in her job.

I think sacking with out due process will the stick Strasbourg will beat the ecj with. Either there's natural justice, or theres not...

GM228 · 18-09-2020 8:59am

Carawaystick wrote: »

I think sacking with out due process will the stick Strasbourg will beat the ecj with. Either there's natural justice, or theres not...

Rights or wrongs aside, she can't take a legitimate case against the EU to the ECtHR as it would be beyond their remit.

They can only hear a case against a state which is a member of the CoE, the EU and it's institutions are not member states/bodies, the ECtHR will hold any such application to be inadmissible.

If the EU ever acceded to the ECHR (as per the requirements of the Lisbon Treaty) then yes, but it is unlikely to happen any time soon considering the ECJ held the ECHR to be incompatible with EU law and treaties in 2014.

Peregrinus · 18-09-2020 9:13am

GM228 wrote: »

Rights or wrongs aside, she can't take a legitimate case against the EU to the ECtHR as it would be beyond their remit.

They can only hear a case against a state which is a member of the CoE, the EU and it's institutions are not member states/bodies, the ECtHR will hold any such application to be inadmissible.

If the EU ever acceded to the ECHR (as per the requirements of the Lisbon Treaty) then yes, but it is unlikely to happen any time soon considering the ECJ held the ECHR to be incompatible with EU law and treaties in 2014.

SFAIK she has brought her proceedings in the EU's General Court, not the ECtHR.

GM228 · 18-09-2020 9:14am

Peregrinus wrote: »

SFAIK she has brought her proceedings in the EU's General Court, not the ECtHR.

Correct, it was in relation to this comment:-

Carawaystick wrote: »

I think sacking with out due process will the stick Strasbourg will beat the ecj with. Either there's natural justice, or theres not...

Several blogs/comments on the issue have suggested a case brought to the ECtHR, that simply can't happen.

rock22 · 18-09-2020 9:33am

Carawaystick wrote: »

But Ms Sharpston has worked on many cases since brexit happened.
I'm sure there are subtlties the case may turn on, but by not doing this on brexit day, the ecj/member states have agreed that Ms Sharpston was perfectly qualified to continue in her job.

I think sacking with out due process will the stick Strasbourg will beat the ecj with. Either there's natural justice, or theres not...

But did they not do it by the quoted declaration. ("The ongoing mandates of members of institutions, bodies, offices and agencies of the Union nominated, appointed or elected in relation to the United Kingdom’s membership of the Union will therefore automatically end as soon as the Treaties cease to apply to the United Kingdom, that is, on the date of the withdrawal.”) ?

Did the representatives of the member states make an separate agreement that she could continue? If not then I would consider she has lost her mandate, in the same way that the UK nominated commissioner , Julian King.
Has she still an active case in the ECofJ ?

rock22 · 18-09-2020 9:46am

GM228 wrote: »

Correct, it was in relation to this comment:-

Several blogs/comments on the issue have suggested a case brought to the ECtHR, that simply can't happen.

Just wondering, could she take a case against the 27 member states as a group, to the ECtHR. ? The European court of justice has rules that the decision was a decision of the representatives of the member states(27) rather than the council of the EU?

In any event, they(EU27) no longer want a UK nominated advocate general in the court so I imagine even if she wins the court will not order her re-instatement.

Peregrinus · 18-09-2020 9:53am

The Court told her that she would continue in post until her successor was identified and appointed. The court statute provides that AGs (and judges) whose term has expired can continue to serve until they are replaced and, while this arguably wasn't a case of her term expiring, they have operated the same approach here.

She issued her legal proceeding while still serving on that basis. Her successor was sworn in on 10 September, so her service terminated - or, at any rate, the court takes the view that her service terminated - on that date.

GM228 · 18-09-2020 1:01pm

rock22 wrote: »

Just wondering, could she take a case against the 27 member states as a group, to the ECtHR. ? The European court of justice has rules that the decision was a decision of the representatives of the member states(27) rather than the council of the EU?

In any event, they(EU27) no longer want a UK nominated advocate general in the court so I imagine even if she wins the court will not order her re-instatement.

Whilst the 27 member states make up the CoEU, it is nonetheless an EU body and the decision was made by collective (majority) decision of the CoEU, not by decision of the 27 member states.

It would be akin to taking a case against Micheál Martin, Leo Varadkar, Eamon Ryan etc challenging a Government decision.

rock22 · 19-09-2020 8:13am

GM228 wrote: »

Whilst the 27 member states make up the CoEU, it is nonetheless an EU body and the decision was made by collective (majority) decision of the CoEU, not by decision of the 27 member states.

It would be akin to taking a case against Micheál Martin, Leo Varadkar, Eamon Ryan etc challenging a Government decision.

But that is exactly what the president of the court found was not the case is setting aside the injunction. Para 24 and 26 of the judgement. i cannot link to it directly

GM228 · 24-09-2020 8:21am

rock22 wrote: »

But that is exactly what the president of the court found was not the case is setting aside the injunction. Para 24 and 26 of the judgement. i cannot link to it directly

Actually this is a valid point and a correct one which I missed, and in light of such it would mean the order of the Vice President is actually correct, that judicial review by the ECJ of the decision is beyond the scope of the ECJs jurisdiction. That's not to say that the decision itself to replace her was correct, just it can't be reviewed by the ECJ. As the ECJ has previously held - member states acting not in their capacity as members of the Council, but as representatives of their governments, and thus collectively exercising the powers of the member states are not subject to judicial review by the ECJ.

So in that case on what grounds could she take a case to the ECtHR, I still don't see any, her argument is there was a breach of EU law, not a breach of rights afforded by the ECHR and the ECtHR will only hear an alleged breqch of the ECHR.

GM228 · 14-10-2020 9:34am

Further to the above, the ECJ (General Court) has heard her cases and basically made the same points as the vice president, she has lost all her three remaining cases (against the CoE, the ECJ and the representatives):-

http://curia.europa.eu/juris/document/document.jsf;jsessionid=851B7F546AD4AFA1956A4BC66125116A?text=&docid=232089&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=8386237

http://curia.europa.eu/juris/document/document.jsf;jsessionid=851B7F546AD4AFA1956A4BC66125116A?text=&docid=232088&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=8386237

http://curia.europa.eu/juris/document/document.jsf;jsessionid=851B7F546AD4AFA1956A4BC66125116A?text=&docid=232095&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=8386237

Again I'll repeat the point I made in the previous post, the ECJ like it's vice president has correctly held that judicial review by the ECJ of the decision is beyond the scope of the ECJs jurisdiction and that's not to say that the decision itself to replace her made by the representatives of the Governments of the member states was correct or in accordance with EU law.

Robbo · 14-10-2020 11:17am

GM228 wrote: »

Again I'll repeat the point I made in the previous post, the ECJ like it's vice president has correctly held that judicial review by the ECJ of the decision is beyond the scope of the ECJs jurisdiction and that's not to say that the decision itself to replace her made by the representatives of the Governments of the member states was correct or in accordance with EU law.

Nice to see another case from regarding EU judicial review that will be used to torture students for the next decade, joining Plaumann and UPA.

GM228 · 14-10-2020 11:45am

Robbo wrote: »

Nice to see another case from regarding EU judicial review that will be used to torture students for the next decade, joining Plaumann and UPA.

Nothing new in this case, just reiterating the long held view of the ECJ arising from the EP vs CoE and Commission case from 1993.

Eleanor Sharpston Sacked from CJEU Advocate General job

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