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The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution

Publikation: Working paper/Preprint Working paperForskningpeer review

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The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution. / Kochenov, Dimitry; Butler, Graham.

New York : Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University, 2020.

Publikation: Working paper/Preprint Working paperForskningpeer review

Harvard

APA

CBE

Kochenov D, Butler G. 2020. The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution. New York: Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University.

MLA

Kochenov, Dimitry og Graham Butler The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution. New York: Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University. (The Jean Monnet Working Paper Series; Journal nr. 2, Bind 2020). 2020., 35 s.

Vancouver

Kochenov D, Butler G. The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution. New York: Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University. 2020 okt.

Author

Kochenov, Dimitry ; Butler, Graham. / The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution. New York : Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University, 2020. (The Jean Monnet Working Paper Series; Nr. 2, Bind 2020).

Bibtex

@techreport{11fa76a086db4e5f95c0fd2cd2518625,
title = "The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution",
abstract = "A short few days in September 2020 saw an extraordinary turn of events. The Member States of the European Union used the withdrawal of a Member State from the European Union (EU) as a pretext to dismiss a sitting Advocate General (AG) of the Court of Justice of the European Union (CJEU) before the expiration of the duration of her mandate provided for in primary law. The Member States replaced her with another nominee in the absence of a vacancy. This occurred in direct violation of EU primary law, including the cardinal principles of security of tenure and judicial independence. The CJEU had the opportunity to prevent this from occurring; yet did absolutely nothing to prevent it. Instead, the CJEU went out of its way to facilitate the appointment of Mr. Athanasios Rantos in place of AG Eleanor Sharpston. The drama in Three Acts, involving numerous elements – hints of lawlessness; signs of complicity between the Member States and the CJEU; confirmation of the lack of structural independence of the CJEU – has ultimately raised doubts whether the CJEU is legally composed. These September 2020 developments resulted in the dismissal of a member of the Court that the Member States did not want, no matter what the law said. In this article, these cumulative events are analyzed systematically through a legal lens, regrettably confirming a startling omission in the EU legal order – that the EU lacks a structurally independent court of law sitting at its apex, and that the EU legal system is not immune to ultra vires Member State interventions. Notwithstanding these developments and a severe pounding to the credibility of the CJEU, there remains a possibility for this deficiency in the EU legal order to be rectified. The CJEU will have to state at some future juncture that decisions within the sphere of Article 253 TFEU are subject to judicial review for procedural irregularities, thus ensuring that the EU is truly a complete system of legal remedies and procedures. In the meantime, questions do linger about the lawful composition of the CJEU with the position of {\textquoteleft}AG{\textquoteright} Rantos in situ, which the CJEU should and must address.",
author = "Dimitry Kochenov and Graham Butler",
year = "2020",
month = oct,
language = "English",
volume = "2020",
series = "The Jean Monnet Working Paper Series",
publisher = "Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University",
number = "2",
type = "WorkingPaper",
institution = "Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University",

}

RIS

TY - UNPB

T1 - The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution

AU - Kochenov, Dimitry

AU - Butler, Graham

PY - 2020/10

Y1 - 2020/10

N2 - A short few days in September 2020 saw an extraordinary turn of events. The Member States of the European Union used the withdrawal of a Member State from the European Union (EU) as a pretext to dismiss a sitting Advocate General (AG) of the Court of Justice of the European Union (CJEU) before the expiration of the duration of her mandate provided for in primary law. The Member States replaced her with another nominee in the absence of a vacancy. This occurred in direct violation of EU primary law, including the cardinal principles of security of tenure and judicial independence. The CJEU had the opportunity to prevent this from occurring; yet did absolutely nothing to prevent it. Instead, the CJEU went out of its way to facilitate the appointment of Mr. Athanasios Rantos in place of AG Eleanor Sharpston. The drama in Three Acts, involving numerous elements – hints of lawlessness; signs of complicity between the Member States and the CJEU; confirmation of the lack of structural independence of the CJEU – has ultimately raised doubts whether the CJEU is legally composed. These September 2020 developments resulted in the dismissal of a member of the Court that the Member States did not want, no matter what the law said. In this article, these cumulative events are analyzed systematically through a legal lens, regrettably confirming a startling omission in the EU legal order – that the EU lacks a structurally independent court of law sitting at its apex, and that the EU legal system is not immune to ultra vires Member State interventions. Notwithstanding these developments and a severe pounding to the credibility of the CJEU, there remains a possibility for this deficiency in the EU legal order to be rectified. The CJEU will have to state at some future juncture that decisions within the sphere of Article 253 TFEU are subject to judicial review for procedural irregularities, thus ensuring that the EU is truly a complete system of legal remedies and procedures. In the meantime, questions do linger about the lawful composition of the CJEU with the position of ‘AG’ Rantos in situ, which the CJEU should and must address.

AB - A short few days in September 2020 saw an extraordinary turn of events. The Member States of the European Union used the withdrawal of a Member State from the European Union (EU) as a pretext to dismiss a sitting Advocate General (AG) of the Court of Justice of the European Union (CJEU) before the expiration of the duration of her mandate provided for in primary law. The Member States replaced her with another nominee in the absence of a vacancy. This occurred in direct violation of EU primary law, including the cardinal principles of security of tenure and judicial independence. The CJEU had the opportunity to prevent this from occurring; yet did absolutely nothing to prevent it. Instead, the CJEU went out of its way to facilitate the appointment of Mr. Athanasios Rantos in place of AG Eleanor Sharpston. The drama in Three Acts, involving numerous elements – hints of lawlessness; signs of complicity between the Member States and the CJEU; confirmation of the lack of structural independence of the CJEU – has ultimately raised doubts whether the CJEU is legally composed. These September 2020 developments resulted in the dismissal of a member of the Court that the Member States did not want, no matter what the law said. In this article, these cumulative events are analyzed systematically through a legal lens, regrettably confirming a startling omission in the EU legal order – that the EU lacks a structurally independent court of law sitting at its apex, and that the EU legal system is not immune to ultra vires Member State interventions. Notwithstanding these developments and a severe pounding to the credibility of the CJEU, there remains a possibility for this deficiency in the EU legal order to be rectified. The CJEU will have to state at some future juncture that decisions within the sphere of Article 253 TFEU are subject to judicial review for procedural irregularities, thus ensuring that the EU is truly a complete system of legal remedies and procedures. In the meantime, questions do linger about the lawful composition of the CJEU with the position of ‘AG’ Rantos in situ, which the CJEU should and must address.

M3 - Working paper

VL - 2020

T3 - The Jean Monnet Working Paper Series

BT - The Independence and Lawful Composition of the Court of Justice of the European Union: Replacement of Advocate General Sharpston and the Battle for the Integrity of the Institution

PB - Jean Monnet Center for International and Regional Economic Law & Justice, School of Law, New York University

CY - New York

ER -