Alan S. Reid (Sheffield Hallam University)
Brexit is unprecedented in its complexity. However, the very fact that Brexit would wreak legal uncertainty was entirely predictable. Extricating the United Kingdom from the orbit of the European Union legal space was always going to be fraught with legal minefields, given the UK’s 47-year membership of the European club. However, an under-appreciated facet of Brexit was the impact it would have on the European Union legal system itself.
A totemic example of this impact can be found in the recent furore over the position of Eleanor Sharpston, the United Kingdom’s Advocate General at the European Court of Justice. As a member of the European Union, the United Kingdom was entitled to nominate representatives and members of a multitude of EU institutions, agencies and bodies. The removal of most of the UK nominated representatives and members of the EU bodies has thrown up some interesting anomalies. On the 1st of February 2020 a large swathe of EU officials with UK nationality, ceased to be employed by the European Union. However, a significant amount of EU civil servants with UK nationality have remained in gainful employment. Some have been retained because they have highly specialised skills that make them almost indispensable whilst for others the possession of another EU nationality has saved them.
At the EU institutions, the position of UK representatives was much clearer. On the 1st of February 2020 the UK, for example, lost a Commissioner, an Auditor at the Court of Auditors and the European Parliament waved adieu to the UK’s MEPs. Further, UK politicians lost their seats at the Council of the EU table and the British Prime Minister lost the photo opportunity of the quarterly European Council meetings.
For the Court of Justice of the EU, the position of the judges was relatively simple. Under EU primary law the Court of Justice shall consist of one judge from each member State whilst the General Court shall include at least one judge per Member State. Thus, when the UK ceased be a member State there could not, logically and legally, be any UK judges at the CJEU. So the UK judges at the European Court of Justice (Christopher Vadja) and the General Court (Ian Forrester) both found themselves unemployed at the end of January.
However, the position of the UK’s Advocate General proved to be rather more complicated.
Under the terms of primary and secondary EU law, Advocate Generals are appointed in a similar way to the judges of the ECJ and the General Court in as much as they need to be independent and need to be of sufficient legal standing. They are appointed for 6-year renewable terms of office in the same way as judges at the CJEU. Their function is to assist the Court of Justice.
However, in contrast to the position of judges, there are only a select number of Advocates General that assist the court. Therefore, Advocates General have less linkage with the member State that nominated them. Definitionally, Advocates General are not representatives of the member State that nominated them. This fact is a recurring issue of contention between the member States: How to choose which member States get to nominate an Advocate General?
A simple rotation system proved to be unacceptable to France and Germany in the early days of the EEC. They pushed for and secured a permanent Advocate General each, thus creating a precedent that some member States can permanently appoint an Advocate General whilst others join a system of rotation. At successive enlargements of the EU certain larger member States have gained exemption from the rotational system.
Under primary EU law, the number of Advocate Generals was fixed at 8 with a provision for that number to rise to 11 via a decision of the Council of the EU, acting on a request from the Court of Justice. In 2013 a Council decision raised the number of Advocate Generals to 11. Thus, by the time of the Treaty of Lisbon five member States had a permanent Advocate General: France, Germany, Italy, Spain and the UK. Poland drove a hard bargain during the Inter-Governmental Conference at Lisbon and secured an agreement that when the number of Advocates General rose to 11 Poland would gain a permanent Advocate General.
The legal problem for Eleanor Sharpston and indeed adherents of the Rule of Law generally is that the practical solution to the question of allocating the power to nominate Advocates General was left in the hands of the member States.
The decision to appoint an Advocate General is taken by the common accord of the governments of the Member States after consulting the Judicial Appointing Panel under Article 255 TFEU.
It is a fundamental requirement for the rule of law that judges enjoy security of tenure. Judges that can be hired and fired at will are susceptible to being influenced in their judicial decision making by the whims of their appointers. The principles of the independence of the judiciary and the separation of powers are both imperilled by insecure judges. Judges and Advocate Generals enjoy security of tenure under the terms of Protocol 3 to the TEU on the Statute of the CJEU. Advocates General, like judges, can only be removed from office where it has been evidenced that they no longer satisfy the conditions and terms of their appointment or are guilty of severe misconduct. Judges can resign and their death terminates their appointment. Other than these conditions, judges enjoy security of tenure during the period of their fixed-term 6 year appointment.
Background to the cases
Eleanor Sharpston was first appointed to the role of Advocate General in 2006. She was re-elected by the member States in 2015 and her final mandate was due to expire on 6th October 2021. However Brexit threw her tenure into confusion. The Withdrawal Agreement negotiated between the UK and the EU provides that UK members of the EU institutions are not to be included in references to the EU institutions. Further, on the 29th of January 2020 the member States issued a declaration that the term of office of the UK’s Advocate General would automatically terminate on the date of the UK’s withdrawal. This declaration thus paved the way for the President of the Court of Justice, on the same day as Brexit, to issue a statement inviting Greece, as the next member State in the order of rotation, to nominate their choice for Advocate General.
In April this year Eleanor Sharpston instituted a number of legal actions at the Court of Justice challenging the decision to remove her as an Advocate General and the decision to initiate the process for selecting her replacement.
Notwithstanding these challenges, the member States proceeded to ratify Greece’s nominated lawyer and appointed Mr. Athanasios Rantos to the post of Advocate General to the Court of Justice from the 7 September 2020 to 6 October 2021 next year. The decision to appoint Mr. Rantos was made on the 2nd of September 2020 and Miss Sharpston immediately instituted legal action before the General Court challenging the legality of the decision on the 4th of September. The General Court held that the case was arguable and therefore allowed for interim measures suspending the operation of the Decision. The Council of the EU thereupon lodged an appeal against these interim measures at the Court of Justice. The Vice-President of Court of Justice overruled the General Court, holding that there could be no prospect of success in the case and thus rejected the imposition of interim measures. The Vice-President held that the decision to appoint Advocate General Rantos was not judicially reviewable by the Court of Justice since the decision to appoint is not a decision of an EU institution. Rather, the decision was a collective one of the member States and thus beyond the jurisdictional remit of the Court of Justice under Article 263 TFEU. With no legal impediment left, Mr. Rantos has now assumed his role.
The Sharpston case has highlighted deficiencies in the drafting of EU law.
Ambiguity in legislative drafting often raises unforeseen and unanticipated problems. The classic example in EU law discourse is of course the vague terminology of Article 50 TEU. The Byzantine complexity of Brexit was compounded by the inherent uncertainty engendered by the anodyne terms of Article 50 itself. The process of triggering Article 50 and the revocability of such a notice were simply expressed on the page but fiendishly complex to execute in practice. The two main paragraphs of Article 50 took up inordinate amounts of legal oxygen during the past four years.
In a similar vein, the concise terms of Article 19 and associated EU primary law may end up doing the same.
The rules for appointing Advocate Generals do not make a direct reference to nationality unlike the rules for judges at the two EU courts. This omission has caused latent ambiguity to arise since there is no official requirement that any Advocate General possess the nationality of a member State, or indeed that of the nominating Member State. As noted above, the grounds for removal of an Advocate General are limited to death, their own resignation, when they no longer satisfy the conditions for appointment or the Court decides that they are guilty of serious misconduct. The only reason for Miss Sharpston’s removal was her UK nationality and this is not a ground for removal under EU primary law.
Options for the Advocate General
Eleanor Sharpston has reached the end of the European Union legal road. She has been unceremoniously ejected from her pivotal role at the ECJ and her legal action against her removal was tersely rejected by the ECJ. Nevertheless, the approach adopted by the ECJ may provide further fruitful legal avenues for Miss Sharpston to traverse, albeit a road less travelled. In rejecting her legal claim on the basis that judicial review was unavailable to her under EU law because the decision was a collective decision of the constituent member states and thus not strictly a matter of EU law, the ECJ has paved the way for Miss Sharpston to institute legal proceedings at another venue, namely the European Court of Human Rights in Strasbourg (and in particular Article 6 ECHR), under the auspices of the Council of Europe.
The European Union is not a signatory to the European Convention of Human Rights and as such cannot be a defendant in a legal action at the Strasbourg court. The CJEU jealously guards the independence of its sui generis (unique) legal system and has consistently refused to accept a supervisory role for the European Court of Human Rights. Notwithstanding this lacuna in legal protection, activities undertaken within the parameters of EU law can be challenged at Strasbourg if the offending activity is attributable to member States of the EU. The Strasbourg court, when faced with a question of an EU member State’s compliance with human rights relating to EU law, adopts a presumption (the Bosphorous presumption) that the EU offers an equivalent level of human rights protection to the ECHR system. Of course, as a presumption, it can be rebutted and the member state can then be found wanting.
The case has highlighted possible failings in the EU’s systems of human rights. The lack of an adequate remedy for Eleanor Sharpston at the EU Courts questions both the ECJ’s mantra that the EU legal architecture offers a complete system of legal remedies and the repeated assertions of the EU court that the EU’s refusal to submit to the jurisdiction of the Council of Europe is nothing to be concerned with.
The deficient treatment of Eleanor Sharpston by the CJEU will make it more difficult for that court, when it is called upon in the future to adjudicate upon rule of law challenges emanating from the national courts of the EU, like Hungary and Poland, to take the moral high ground. The authority of the CJEU in the courts of the member States will be negatively impacted by this ruling.
More pressingly, the judgment will be seized on by British negotiators, journalists, lawyers and politicians eager to criticise the EU. The ECJ’s authority and standing will be diminished by the judgment and will strengthen calls within the UK to further dilute ECJ involvement in the adjudication of legal disputes between the EU and the UK regarding compliance with the Withdrawal Agreement.
The case may also have implications for the current Brexit negotiations. The EU is keen to highlight the UK’s apparent flippancy towards the rule of law. It is true that the passage of the UK’s Internal Market Bill through the UK Parliament’s legislative procedure has illustrated certain British Minister’s flexible views on the rule of law, especially as regards the binding nature of the provisions of international law. The EU prides itself on its Rule of Law credentials and the European Court of Justice often extols the fact that the Union is a Union based on the Rule of Law. However, in shining a light on the UK’s shortcomings, the EU may invite a closer forensic examination of its own adherence to the rule of law. Summary judgments, rejection of the possibility of judicial review and swift autocratic decisions to plug gaps are the hallmarks of problematic states. Although some of these legal criticisms can legitimately be levelled at the United Kingdom currently, these same concerns are being raised by academics, politicians and lawyers as regards the European Union.
The effects of Brexit continue to have reverberations for both the United Kingdom and the European Union.
 The EU has 7 institutions as per the terms of Article 13 of the Treaty on European Union.
 Article 19(2) of the TEU.
 See for example, the cases of R (Miller) v S.of S for Exiting the EU, Shindler v Council of the EU, Wightman v S.of S for Exiting the EU and Cherry v Advocate General for Scotland/Miller 2 and my analysis of some of these cases, eg Brexit Begins, The Justices of the UK Supreme Court: The Enemies of Anti-Democratic Demagogues and Scotching Brexit?.
 See the original ECJ decision against EU accession to the ECHR system (Opinion 2/94) and Opinion 2/13 which rejected the subsequent draft accession text arising from Protocol 14 of the ECHR allowing EU accession.
 See for example, the case of Matthews v United Kingdom, (and the commentary on the case by myself and Mike Doherty (Voting rights for the European Parliament: whose responsibility? E.H.R.L.R. 1999, 4, 420-426)) and cases Bosphorus v Ireland, Avotins v Latvia and MSS v Belgium and Greece.
 An upcoming case on this matter is Cases C-487/19 W. Ż. & C-508/19 Prokurator Generalny. This case concerns the process for appointing judges at the Polish Supreme court. The Court of Justice is due to hear the case the 22nd of September.
Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at email@example.com