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

The Jean Monnet Working Paper Series, No. 2, 2020, Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University.

37 Pages Posted: 18 Dec 2020

See all articles by Dimitry Kochenov

Dimitry Kochenov

CEU Democracy Institute, Budapest; CEU Department of Legal Studies, Vienna

Graham Butler

Aarhus University

Date Written: October 22, 2020

Abstract

A short few days in September 2020 saw an extraordinary turn of events. The Member States of the European Union used the withdrawal of a Member State from the European Union (EU) as a pretext to dismiss a sitting Advocate General (AG) of the Court of Justice of the European Union (CJEU) before the expiration of the duration of her mandate provided for in primary law. The Member States replaced her with another nominee in the absence of a vacancy. This occurred in direct violation of EU primary law, including the cardinal principles of security of tenure and judicial independence. The CJEU had the opportunity to prevent this from occurring; yet did absolutely nothing to prevent it. Instead, the CJEU went out of its way to facilitate the appointment of Mr. Athanasios Rantos in place of AG Eleanor Sharpston. The drama in Three Acts, involving numerous elements – hints of lawlessness; signs of complicity between the Member States and the CJEU; confirmation of the lack of structural independence of the CJEU – has ultimately raised doubts whether the CJEU is legally composed. These September 2020 developments resulted in the dismissal of a member of the Court that the Member States did not want, no matter what the law said. In this article, these cumulative events are analyzed systematically through a legal lens, regrettably confirming a startling omission in the EU legal order – that the EU lacks a structurally independent court of law sitting at its apex, and that the EU legal system is not immune to ultra vires Member State interventions. Notwithstanding these developments and a severe pounding to the credibility of the CJEU, there remains a possibility for this deficiency in the EU legal order to be rectified. The CJEU will have to state at some future juncture that decisions within the sphere of Article 253 TFEU are subject to judicial review for procedural irregularities, thus ensuring that the EU is truly a complete system of legal remedies and procedures. In the meantime, questions do linger about the lawful composition of the CJEU with the position of ‘AG’ Rantos in situ, which the CJEU should and must address.

Keywords: CJEU, EU Law, Judicial Independence, Judicial Irremovability, Security of Tenure, Collusion, Rule of Law, Sharpston, Judicial Review

Suggested Citation

Kochenov, Dimitry and Butler, Graham, 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 (October 22, 2020). The Jean Monnet Working Paper Series, No. 2, 2020, Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University. , Available at SSRN: https://ssrn.com/abstract=3716760 or http://dx.doi.org/10.2139/ssrn.3716760

Dimitry Kochenov (Contact Author)

CEU Democracy Institute, Budapest ( email )

Nador utca 9
Budapest, H-1051
Hungary

CEU Department of Legal Studies, Vienna ( email )

Quellenstraße 51
Vienna, 1100
Austria

Graham Butler

Aarhus University ( email )

Nordre Ringgade 1
DK-8000 Aarhus C, 8000
Denmark

HOME PAGE: http://au.dk/en/gb@law

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