While negotiations continue (with difficulty) to settle the final terms of the divorce between the UK and the EU, the ECJ seemed to have turned the page with the departure of the British judges from the EU court and tribunal on 31 January, when Brexit came into force.

That was counting without the tenacity of one of its most experienced and respected members: Eleanor Sharpston, who arrived in Kirchberg in 2006 and has dual Anglo-Luxembourger nationality. She is one of the 11 advocates general responsible for delivering to the judges conclusions setting out the state of the law and an interpretation of EU law in cases before the Court of Justice.

If the first projections concerning Brexit hinted at the disappearance of the British judges of the two courts, the British advocate general seemed to escape the rule since she does not have the same status as the judges. This was confirmed by the president of the EU Court of First Instance, Marc Jaeger, in Paperjam in the fall of 2019.

In the meantime, politics has taken over. Two days before the Brexit, member states decided to revoke Sharpston’s mandate, and the president of the court, Koen Lenaerts, fulfilled this decision by declaring her post vacant on 31 January and asking member states to appoint her successor.

The episode is causing a stir across the Channel, where The Critic described it as a “gross injustice”. “Member states are dismissing a member of the court in direct violation of primary law,” Prof. Dimitry Kochenov, chair of European constitutional law at the University of Groningen, writes in a blog post: “This is a totally unacceptable scenario in a union based on the rule of law.”

The British advocate general will not go quietly. She filed an appeal in April against Lenaerts’ declaration of vacancy and the decision of the member states to end her term of office, she has repeatedly tried to find a compromise so that she can at least complete her term of office, which expires in October 2021.

None of her proposals received a response from member states. Until the announcement on 2 September of the appointment of Greek Athanasios Rantos to the post, a decision that Ms. Sharpston is challenging in summary proceedings before the EU court.

In their order on summary proceedings, “judges Emmanuel Coulon and Anthony Michael Collins found her application for suspension admissible” on Saturday, 5 September, two days before Rantos took up his duties, according to the Belgian daily La Libre.

Sharpston denounces “an unjustified and unjustifiable interference with the autonomy and independence of the Court of Justice as provided for in the treaties establishing the EU” as well as a “misinterpretation of Article 50 of the Treaty establishing the EU”, states the ruling, which Paperjam has seen. “This is a question of constitutional principle on the independence of the judiciary and the rule of law,” Sharpston told The Critic.

These elements “raise complex legal issues that require, at a minimum, detailed and exhaustive argument before the judge,” the two judges concluded. They agreed to suspend the effects of the decision to appoint the Greek advocate general to avoid the cacophony of an entry into office finally deemed illegal, believing that “questioning the composition of the Court of Justice” would have the effect of affecting “the validity of its judgments”.

The council has until 11 September to submit its observations, say Sharpston’s supporters, Sir Nicholas Forwood and James Flynn.

This article was originally published in French on Paperjam.lu