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

• Published date: 01 January 2021
• Author: Dimitry V. Kochenov,Graham Butler
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12434

UN CERTAIN REGARD

Independence of the Court of Justice of the

European Union: Unchecked Member States

power after the Sharpston Affair

Dimitry V. Kochenov | Graham Butler

*

Abstract

The Court of Justice of the European Union (CJEU) is the apex of the EU legal order, and is the

supreme arbiter of EU law. For decades, it has delivered judgments, collectively shaping European

integration and ‘integration through law’. It has undoubtedly been an authoritative leader in

entrenching a European judicial culture, and has benefited from the cardinal principle of judicial

independence enshrined in the EU Treaties, which in turn, it has insisted on being upheld as regards

national courts. Questions have rarely arisen, however, about judicial independence of the CJEU.

The Sharpston Affair of 2020–2021 opened the door to questioning such judicial independence. Is

the CJEU at the mercy of the Member States? If so, what are the consequences for the EU legal

order? This article reflects on the judicial independence of the CJEU, and offers reflections on how

it can be preserved in the future.

1|INTRODUCTION

With Brexit looming on 31 January 2020, the Conference of the representatives of the governments of the Member

States issued, on 29 January 2020, a Declaration ‘On the consequences of the withdrawal of the United Kingdom

* Dimitry V. Kochenov leads the Rule of Law working group at CEU Democracy Institute in Budapest, Hungary and is a Professor of Legal Studies at the

CEU Department of Legal Studies in Vienna, Austria. Corresponding author: KochenovD@ceu.edu. Graham Butler is Associate Professor of Law at

Aarhus University, Denmark. Email: gb@law.au.dk.

This research was carried out as part of the RECONNECT project, which has received funding from the European Union's Horizon 2020 research and

innovation programme under grant agreement No. 770142.

The authors thank countless EU law scholars for their support and are grateful for the feedback they received over the whole duration of the Sharpston

Affair, as it happened in real time in 2020–2021. In particular, the authors wish to thank Max Steinbeis and all the team of the Verfassungsblog, who

published the initial analyses of the core issues discussed in this article; and Gráinne de Búrca and Joseph H.H. Weiler, who published the first

assessment of the breaches of the rule of law at the Court of Justice as Jean Monnet Working Paper No. 2–2020 (NYU Law School). Lastly, the authors

are immensely grateful to Karine Caunes of the ELJ, as well as the anonymous reviewers for the spectacularly thorough and useful engagement with this

piece. All views contained therein remain those of the authors alone.

Received: 4 March 2021 Revised: 11 May 2022 Accepted: 13 May 2022

DOI: 10.1111/eulj.12434

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2022 The Authors. European Law Journal published by John Wiley & Sons Ltd.

262 Eur Law J. 2021;27:262–296.

wileyonlinelibrary.com/journal/eulj

from the European Union for the Advocates-General of the Court of Justice of the European Union’.

1

The

Conference, putting forth a view on the implications of Brexit, tried to clarify that, as any other ‘members of

institutions, bodies, offices and agencies of the Union nominated, appointed or elected in relation to the

United Kingdom's membership of the Union’, the mandate of the “UK Advocate General”would ‘automatically end

as soon as the Treaties cease to apply to the United Kingdom, that is, on the date of the withdrawal’. It went on to

state that ‘[i]n accordance with the Protocol order’, the vacant post of Advocate General would then be assigned to

the Hellenic Republic (Greece) to nominate an individual. Having due regard to Council Decision 2013/336/EU

limiting the number of Advocates General to 11, the mandate of the new Advocate General nominated by Greece

would end on what would have been the expiration date of the tenure of the Advocate General nominated by the

UK—on 6 October 2021. The mandate of the nominee of Greece could then be renewed for the usual six-year term

of office. On 30 January 2020, one day before Brexit was due to occur, the President of the Courtof Justice of the

European Union (CJEU) took note of the vacancy, as a result of the Conference's Declaration. Eventually, on

2 September 2020, an Advocate General was attempted to be appointed ‘from 7 September 2020 to 6 October

2021 following the withdrawal of the United Kingdom from the EU’.

2

All would have been fine, had the Conference's Declaration of 29 January 2020 not been an egregious ultra vires

intervention on the part of the Member States and, as a consequence, had not constituted a blatant violation of the

judicial independence of the CJEU according to Article 19 Treaty on European Union (TEU), imperiling the

fundamental value of the rule of law as stated in Article 2 TEU. These actions, unlawfully removing a sitting member

of the Court of Justice, in what became to be known as the “Sharpston Affair”, unfolded as a series of unfortunate

events, highlighting a puzzling impunity and lack of efficient safeguards against rule of law violations by the Herren

der Verträge at the EU level. It is a cautionary tale which could have long-lasting effects if measures are not to be

taken to ensure that no such situation happens again in the future, resulting in the Court of Justice failing to stop the

Member States disrespecting the law and undermining judicial independence of that very court, when judicial review

of such actions is sought. It is on such a reflective journey that this article will embark.

A court of law of any standing, including the two courts within the CJEU, should not normally have to determine

whether it is enjoying full independence.

3

However, this is exactly what occurred in 2020–2021 when, for the first

time, the judicial independence of the CJEU was called into question. Some could question the importance of such

an ephemeral episode. After all, ‘Brexit means Brexit’, and Advocate General (AG) Sharpston's mandate ultimately,

and as a matter of law, would have had to come to an end on 6 October 2021 in any event. However, the fact that

such premature removal of a member of the Court of Justice was neither necessary nor urgent, and that the rule of

law was sacrificed at the altar of what the Member States viewed as Brexit expediency, points to the gravity of

the matter.

If judicial independence can be curbed on a whim, what does it say about the state and strength of the rule of

law at the European level? Furthermore, if the question of the independence of national judiciaries vis-à-vis national

executives has raised significant concerns, it is rather puzzling that the same cannot be said once the Court of Justice

1

Declaration by the Conference of the Representatives of the Governments of the Member States on the consequences of the withdrawal of the

United Kingdom from the European Union for the Advocates-General of the Court of Justice of the European Union (XT 21018/20). Council of the

European Union. 29 January 2020.

2

‘L 292/1. Decision (EU) 2020/1251 of the Representatives of the Governments of the Member States of 2 September 2020 Appointing Three Judges and

an Advocate-General to the Court of Justice. Official Journal of the European Union. 7 September 2020’.

3

Exceptions are as frequent as they are important, however, ranging from the Polish Constitutional Court and the Supreme Court in some compositions, to

the EFTA Court of the day. L. Pech and D. Kochenov, Respect for the Rule of Law in the Case-Law of the Court of Justice: A Casebook Overview of the Key

Judgments since the Portuguese Judges Case (SIEPS, 2021), 183–204; L. Pech, ‘Dealing with “Fake Judges”under EU Law: Poland as a Case Study in Light

of the Court of Justice's Ruling of 26 March 2020 in Simpson and HG’, (2020) RECONNECT Working Paper No. 8, 1. The ECtHR has been quite intolerant of

illegally appointed individuals on the bench, as seen in Guðmundur Andri

´

Astr

aðsson v Iceland, ECLI:CE:ECHR:2020:1201JUD002637418, and Xero Flor w

Polsce sp. z o.o. v Poland, ECLI:CE:ECHR:2021:0507JUD000490718; Grzęda v. Poland App. No. 43572/18. The EFTA Court faced such issues in Nobile as a

follow-up of Norway's attempts to tamper with its independence and lawful composition: Case E-21/16 Pascal Nobile v DAS Rechtsschutz-Versicherungs AG

(Decision of the Court, 14 February 2017). Cf. Allan F. Tatham, ‘Reappointment to International Courts and the Case of the EFTA Court’, (2021) 20 The

Law & Practice of International Courts and Tribunals, 119; C. Baudenbacher, ‘Lawful Composition—the EFTA Court's Approach’(Verfassungsblog,

20 September 2020). C. Baudenbacher, Judicial Independence: Memoirs of a European Judge (Springer, 2019), 318–321.

KOCHENOV AND BUTLER 263

is involved, as if the EU and national legal orders were parallel universes, not submitted to the same fundamental

rules, or the Court of Justice deemed itself magically immune to such pressure and the fundamental values, on which

the Union and the Member States are together founded. As a looming illustration of the threat of double standards

of the rule of law and values at the national and supranational level, the Sharpston Affair sets a very dangerous

precedent.

If simply ignored, it could question in the future, were similar events to repeat, the legitimacy of the Union as a

legal system based on the rule of law, as well as that of the CJEU and its decisions.

4

At a time when contestations

from national courts also abound, and illiberalism and populism are on the rise, it is contended that the Court of Jus-

tice should, more than ever, not only talk the talk, but walk the walk as well, if it wants to be faithful to its role of

ensuring 'that in the interpretation and application of the Treaties the law is observed', and more particularly the

values of Article 2 TEU. But if a silver lining has to be found out of this sad episode, it is that it sheds light on the

weaknesses of the current system of safeguards protecting judicial independence at the EU levelagainst rule of law

violations that ought to be remedied.

The Sharpston Affair gave rise to EU constitutional issues of fundamental importance, which are the focus of

this article. It seems quite evident that a project of “integration through law”

5

could not advance, absent the absolute

certainty of the CJEU's independence from the other EU institutions on the one hand, and the Member States on

the other.

6

This is especially true in a context in which numerous national courts have already experienced significant

threats to their own independence.

7

When being undermined nationally, they would look to the CJEU and the European Court of Human Rights

(ECtHR) for protection.

8

A critical element of the independence that courts would seek to vindicate centres on their

composition. As rightly underlined by the European Free Trade Association (EFTA) Court in Nobile,‘maintaining

judicial independence requires that the relevant rules for judicial appointments […] must be strictly observed’.

9

Equally, the Court of Justice and the ECtHR have, in their own spheres, developed robust lines of case-law defending

against the usurpation of judicial appointments, enabling the calling into question of the decisions taken by a “body”

whose credentials as an “independent court”are more than dubious.

10

It is therefore all the more puzzling to observe the possibility that in the Sharpston Affair, there was an

appointment to the CJEU, and more specifically to the Court of Justice, in the absence of a vacancy, clearly regulated

by EU primary law. The Court of Justice, thus, for a time, so composed, did not meet the basic requirements of

Article 6 of the European Convention on Human Rights (ECHR) of being a lawfully composed tribunal, potentially

leaving the legal force of the judgments rendered during this period with the participation of an unlawful appointee

acting as an AG in limbo.

4

D. Kochenov, ‘De Facto Power Grab in Context: Upgrading Rule of Law in Europe in Populist Times’, (2021) 40 Polish Yearbook of International Law, 197.

5

See P. Pescatore, The Law of Integration: Emergence of a New Phenomenon in International Relations, Based on the Experience of the European Communities

(A.W. Sijthoff, 1974), and the volumes of M. Cappelletti, M. Seccombe and J.H.H. Weiler (eds.), Integration through Law: Europe and the American Federal

Experience (De Gruyter), published throughout the 1980s.

6

ECtHR, Grzęda v. Poland App. No. 43572/18.

7

W. Sadurski, Poland's Constitutional Breakdown (Oxford University Press, 2019); T.T. Koncewicz, ‘The Capture of the Polish Constitutional Tribunal and

Beyond: Of Institution(s), Fidelities and the Rule of Law in Flux’, (2018) 43 Review of Central and East European Law, 116; A.

´

Sledzi

nska-Simon, ‘The Rise

and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition’, (2018) 19 German Law Journal, 1839; K. Kovács and

K.L. Scheppele, ‘The Fragility of an Independent Judiciary: Lessons from Hungary and Poland—and the European Union’, (2018) 51 Communist and Post-

Communist Studies, 189; L. S

olyom, ‘The Rise and Decline of Constitutional Culture in Hungary’, in A. von Bogdandy and P. Sonnevend (eds.), Constitutional

Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart Publishing, 2015).

8

D. Kosařand K. Šipulová, ‘The Strasbourg Court Meets Abusive Constitutionalism: Baka v Hungary and the Rule of Law’, (2018) 10 Hague Journal of the

Rule of Law, 83; G. Halmái, ‘The Early Retirement Age of Hungarian Judges’, in F. Nicola and B. Davies (eds.), EU Law Stories (Cambridge University Press,

2017), 471; K.L. Scheppele, D. Kochenov and B. Grabowska-Moroz, ‘EU Values Are Law, after All’, (2020) 39 Yearbook of European Law,3.

9

Case E-21/16 Pascal Nobile v DAS Rechtsschutz-Versicherungs AG (Decision of the Court, 14 February 2017), para. 16.

10

The ECtHR has admittedly taken a more principled position in this field, as its Xero Flor and Grzęda case-law on unlawfully appointed judges is quite clear

and straightforward, while the CJEU does not demonstrate the same level of certainly and clarity, even accepting preliminary references from the judges,

who would not qualify as lawfully appointed under the ECtHR standards, leading to a less stringent reading of the basic requirements of Art. 6 ECHR: Case

C-132/20 Getin Noble Bank, ECLI:EU:C:2022:235. On this CJEU–ECtHR discrepancy, see L. Pech and D. Kochenov, Respect for the Rule of Law in the Case-

Law of the Court of Justice: A Casebook Overview of the Key Judgments since the PortugueseJudges Case (SIEPS, 2021), 183–204.

264 KOCHENOV AND BUTLER