British Advocate General

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Eleanor Sharpston, the British Advocate General at the Court of Justice of the European Union (“CJEU”) for the last 14 years, initiated legal proceedings against the termination of her mandate, which took effect (toEleanor Sharpston, the British Advocate General at the Court of Justice of the European Union (“CJEU”) for the last 14 years, initiated legal proceedings against the termination of her mandate, which took effect (together with the removal from office of the judges appointed by the UK) in the context of the withdrawal of the United Kingdom from the EU on January 31, 2020.

Background

On January 29, 2020, the Conference of the Representatives of the Governments of 27 Member States issued a declaration to terminate the mandate of Eleanor Sharpston (“the Declaration”, access here) and two days later, on the date of entry into force of the withdrawal agreement, the president of the CJEU, Koen Lenaerts, wrote a letter inviting Member States to nominate a new Advocate General to replace her (“the Letter”, not published).

In response to her termination, Ms Sharpston filed two actions for annulment before the General Court (“GC”), one action addressed to the Court of Justice against the Letter and a second action addressed to the Council of the European Union against the Declaration. In both the main argument was that the Statute of the Court of Justice foresees that the mandate of a serving member can only be terminated by the court itself for specific disciplinary reasons (and not political) and that such termination must be decided by an unanimous decision.

Appointment of the new Advocate General

While the actions for annulment were pending, Athanasios Rantos was appointed to replace Ms Sharpston as Advocate General by Decision number 2020/1251 of the Representatives of the Governments of the Member States of September 2, 2020 (“the Decision 2020/1215”, access here).

In order to stop the appointment, on September 4, Sharpston lodged a separate action for annulment against the Decision 2020/1251 and filed an application for interim measures, requesting the suspension of the swearing-in of Athanasios Rantos to the position of Advocate General, which was scheduled 3 days later.

The GC on the same day issued an order granting the interim measures and temporarily suspended the appointment of the new Advocate General. In its reasoning the President of the General Court considered that the decision by the Representatives of the Governments might have resulted in an unjustifiable interference with the autonomy and independence of the Court of Justice and that replacing a lawfully appointed office holder until the Court gives a firm ruling in the main proceeding risks jeopardising the proper administration of justice (access the order here). Both the Council of the European Union and the Representatives of the Governments lodged appeals before the CJEU.

On September 10, however, the CJEU issued two orders setting aside the interim measures granted by the GC on the basis that the main action was manifestly inadmissible (see the orders here and here). In particular, the CJEU stated that the action was directed wrongfully against the Council of the European Union and not against the Representatives of the Governments, who adopted the decision. On the other hand, and more importantly, the CJEU found that the main action for annulment against Decision 2020/1215 seeks annulment of a decision taken not by an institution, body, office or agency of the Union but rather by the Representatives of the Governments of the Member States exercising collectively the powers of those States, which is not an EU decision-making body but rather a “rare intergovernmental dimension” which deals with a set of specific issues, such as the appointment of judges and the determination of the seats of the institutions of the EU under the Articles 253, 254 and 341 TFEU. Consequently, it was concluded that Decision 2020/1215 could not be subject to the judicial review of the CJEU on the basis of Article 263 TFEU.

On the same day of the order, Athanasios Rantos was sworn in as an Advocate General to the CJEU. 

Orders of the General Court dismissing all three actions in the main proceedings

After losing the legal battle against the interim measures, Ms Sharpston had three actions for annulment still pending resolution in the main proceedings – against the Decision 2020/1215, the Declaration and the Letter. However, on October 6, as a further set-back, the GC issued three orders declaring inadmissibility of all actions for annulment considering that neither of the acts under review were subject to challenge under Article 263 TFEU (access the orders here, here, and here, respectively).

In particular, with regard to the proceedings against the Declaration and the Decision 2020/2015, the GC ruled, similarly to the CJEU in the interim measures order, that the actions were addressed against the wrong body and the acts adopted by the Representatives of Member states were not subject to judicial review under Article 263 TFEU. Regarding the Letter of the CJEU, the GC ruled that merely inviting the Member States to appoint an Advocate General to replace Ms Sharpston was not equivalent to creating the vacancy for that position. As such, the GC concluded that the letter did not produce legally binding effects and could not be the subject of an action for annulment under Article 263 TFEU.

Conclusions

The rulings in this case underline the importance of complying with the procedural requirements when initiating legal proceedings before the EU courts because even if the actions may be substantially well-founded, the requirements for the admissibility of the actions are imperative for the case to be heard. In particular regarding the actions for annulment, the orders once again confirm that only those acts and decisions of the Union which are intended to produce legally binding effects and are capable of affecting the legal position of an applicant can be reviewed under Article 263 TFEU.

Furthermore, and since, the competence for appointing the members of the European courts was retained by the Member States on the basis of the principle of conferral of powers and, specifically, Articles 19 TEU and 253 and 254 TFEU, the decisions adopted by the Representatives of the Governments, which acted in representation of Member States and not the Institution were not subject to the review of the European Courts under Article 263 TFEU.

On the other hand, the underlying legal dispute raises interesting questions from a substantive point of view and in particular, regarding the independence of the members of the European courts in the context of political changes. This principally is apparent in the case of an Advocate General as contrary to the position of the judges, the number of which is set per Member State (one per Member State for the CJEU and, at the moment, two per Member State in the case of the GC), the number of Advocate General is fixed at eleven and the rules for appointing them do not make any reference to their nationality, calling into question the preservation of the separation of powers principle.

Ms Sharpston can still appeal the inadmissibility orders on points of law before the CJEU or initiate a separate proceeding before the European Court of Human Rights.

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