We live in uncertain times, in times when the rule of law cannot be taken for granted anymore. Rather, to the contrary, numerous events in Europe and beyond challenge a fundamental principle of our legal culture, a milestone of the civilized world. It is therefore of the utmost importance to look after one of the most successful achievements of our modern society: the rule of law.
The EU in particular has experienced that the rule of law is under serious threat in several of its Member States. For years, the European Union (EU) has been struggling with this situation, aiming for the compliance of EU Member States with existing legal rules as a minimum requirement. Changing essential rules on the appointment of judges and undermining their independence by formal and informal practices happens far too often and is very difficult to deal with. The EU has seen first-hand how difficult it can be to achieve an improvement of the situation in Member States such as Hungary and Poland. The Court of Justice of the European Union (CJEU) has contributed, and has pushed ahead quite far, in order to protect the rule of law in EU Member States.
In order to be fully credible, a necessary condition is that the rule of law is respected on the EU level, above all by the CJEU. This credibility is at stake in cases where the Member States have to find Brexit-related solutions for the composition of the CJEU, which could interfere with the independence of the institution in general and given from the nature of the specific situation also in the mandate of Advocate General Eleanor Sharpston in particular. As Daniel Halberstam has pointed out clearly, the recent declaration of EU Member States on Brexit, which foresees the removal of AG Sharpston from office (“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.”) lacks an undisputed legal basis.Continue reading