Independence of the Court of Justice of the European Union: Unchecked Member States Power after the Sharpston Affair

Abstract

The Court of Justice of the European Union (CJEU) is the apex of the EU legal order, and within it, the Court of Justice is the supreme arbiter of EU law. For decades, the CJEU has delivered judgments that have collectively shaped the very essence of European integration, allowing the European project to emerge as ‘integration through law’. The EU, together with its apex court, has undoubtedly been an authoritative leader in commandeering and remobilising an entrenched judicial culture across Europe. To achieve this feat, the CJEU has benefited from the cardinal principle of judicial independence, an imperative demanded and enshrined in the EU Treaties, which in turn, the CJEU has insisted on being upheld as regards national courts and tribunals in the Member States. Being independent is an integral part of the definition of a ‘court or tribunal’ in EU law. Questions have rarely been raised, however, about the degree to which the CJEU itself enjoys judicial independence. While long taken for granted, the Sharpston Affair of 2020–2021 – combining the premature dismissal of a sitting Advocate General with the Member States openly violating the EU Treaties, and the Court of Justice itself declining judicial review of such illegalities – has opened the door to questioning the extent of such judicial independence. Is the apex court at the mercy of the Masters of the Treaties, themselves placed above the law? If so, what are the consequences for the understanding the EU legal order, which CJEU is entrusted to shape and safeguard? This article reflects on the judicial independence of the CJEU in light of recent events, and offers reflections on how it can be preserved in the future.

Keywords: Fake judges, EU Law, Sharpston, CJEU, judicial independence, judicial non-removability, dual standards, rule of law