In Support of the EU Rule of Law and Advocate General Eleanor Sharpston – An Open Letter

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.

This declaration, which comes without sufficient consideration, let alone an interpretation, of the relevant legal provisions and without consulting the CJEU, is short-sighted. The strongest stance the EU could take in times of fake news and a shortage of trust is arguably one where it bases its acts on legal rules, and not on political considerations and needs.

Besides this strategical aspect, it is simply too important that the EU, as a community of values, sets an example and sticks to its own values – notably including the rule of law. The declaration, whose interpretative consequences include also the removal of AG Sharpston from office, lacks an undisputed legal basis. Neither the Treaties nor the Statute of the Court provides for the distinct possibility of Member States to meddle with the composition of Advocates General at the Court during their terms of office. This is no mistake or lacuna in the Treaties, but rather a necessary element of the EU rule of law: Advocates General are appointed for a fixed period of six years by, and in accordance with Art 19 (2) TEU and Art 253 TFEU, “common accord of the governments of the Member States”. Their mandate may only be terminated by their own resignation (Art 5 in combination with Art 8 CJEU Statute), as a consequence of no longer meeting relevant Treaty conditions or severe misconduct, which is to be determined by the Court itself (“if, in the unanimous opinion of the Judges and Advocates General of the Court of Justice, [s]he no longer fulfils the requisite conditions or meets the obligations arising from h[er] office”, Art 6 in combination with Art 8 CJEU Statute), or because of their death (Art 5 in combination with Art 8 CJEU Statute) – none of which is the case in the situation of AG Sharpston. While the nomination of Advocates General is subject to an informal agreement between EU Member States, allowing for some Member States to perennially nominate an Advocate General while other Member States must wait their turn, the mandate of the current eleven Advocates General does not hinge upon their citizenship or the membership status of the informally nominating country within the European Union. Hence, once appointed by common accord of all Member States, any subsequent interference in the mandates of Advocates General could be a potential intervention in the independence of the Court. Such an intervention would clearly go against the fundamental principle of the rule of law, which arguably includes the separation of powers in the EU in general, and the independence of the Court in particular. Without a thorough consideration of these issues and the interpretation of Article 50(3) TEU more generally, by the CJEU instead of the Member States, the legality of the composition of the CJEU and its Members can be called into question and opens up the Court to legal challenges in that regard.

With this open letter, we (Young) European Law Scholars, who convened for the 3rdtime since the inception of this event, at the University of Salzburg on 27 and 28 February 2020 to discuss how to “Shape the Future of Europe”, would like to remind all EU Member States of the separation of powers in the EU and the fundamental importance of the independence of the CJEU. Both are unquestionably a prerequisite for the EU rule of law. In order to uphold the strong credibility of the Court, it is essential not to interfere in the mandates of the Advocates General at the Court. Because of this, we invite the EU Member States to refrain from actually removing AG Sharpston from the Court before her mandate ends on 6 October 2021 without having consulted the CJEU, who is the only competent EU institution to bindingly interpret Art 50(3) TEU. Accordingly, the Member States should only appoint the designated Greek Advocate General in compliance with this interpretation.

Sandra Hummelbrunner, Clerk, District Court of Salzburg

Lando Kirchmair, Lecturer, Universität der Bundeswehr Munich and Co-PI of the ECCN Project, University of Salzburg

Benedikt Pirker, Senior Lecturer, University of Fribourg

Anne-Carlijn Prickartz, University Assistant, University of Salzburg/SCEUS

Isabel Staudinger, Doctoral Candidate, University of Salzburg/SCEUS and Research Assistant for the ECCN Project, University of Salzburg

Odile Ammann, Postdoctoral Research Fellow in Public Law, University of Zurich

Paul Dermine, PhD Candidate in EU institutional law, Maastricht University/Maastricht Center for European Law (MCEL)

Christian Gelleri, Wissenschaftlicher Mitarbeiter, University of Würzburg

András Jakab, Professor of Austrian Constitutional and Administrative Law, University of Salzburg

Daniel-Erasmus Khan, Professor of Public Law, European Union Law and Public International Law, Universität der Bundeswehr Munich

Dimitry Kochenov, Professor of European Constitutional Law and Citizenship, University of Groningen

Markus Kotzur, Professor of Public International and European Union Law, University of Hamburg

Matteo Manfredi, Postdoctoral Research Fellow in EU Law, Catholic University of Milan

Christos Papachristopoulos, Lawyer/PhD Candidate in EU Criminal Law, University of Birmingham

Maria Patrin, PhD Researcher, European University Institute

Janine Prantl, PhD Candidate in EU Law, University of Innsbruck

Viviana Sachetti, PhD Candidate in European Union Law, Università degli Studi Roma Tre

Kirsten Schmalenbach, Professor of Public International Law and European Union Law, University of Salzburg