Is the European Court of Justice (ECJ) a properly independent court? The damning verdict of two respected EU law academics on an episode involving the ECJ suggests it is not. This debacle also undermines the EU’s legal criticisms of Hungary and Poland – and raises worrying questions about how the Northern Ireland Protocol will be enforced.
The sorry saga dates back to the aftermath of the Brexit vote, when one of the ECJ’s 11 advocates general, Eleanor Sharpston, was sacked. Sharpston had every legal right to carry on. After all, ‘she’ didn’t Brexit, the UK did; she also has EU citizenship and is an outstanding EU lawyer. Unsurprisingly she took legal action to prevent her summary dismissal and to stop the appointment of a new advocate general.
On 4 September 2020, an independent judge recognised Sharpston’s dismissal was possibly wrong. A timetable was set out with an exchange of evidence set for 11 September to determine whether that was so. But none of it ever happened: instead, without telling Sharpston (which any fair process would surely require), the ECJ held a different hearing, a day before, on 10 September. At that hearing, the ECJ struck out Sharpstone’s case.
To add insult to injury, the ceremony to appoint Sharpston’s successor took place on the same day. All this without telling Sharpston what was happening. In doing so, the ECJ did not merely breach the Rule of Law, it tore it up and set fire to the remains.
And yet, in the months since, the ECJ has chosen to double down rather than come clean. In June 2021, the ECJ gave two further judgments to justify its unjustifiable actions.
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