Does (or did) Advocate General Sharpston’s mandate continue to run following Brexit? (Part 2)

21/12/20

This question, if not the mandate, will run and run.  This item provides an update to our news item of 5 September 2020 - here.

Rather than take the offered opportunity to submit observations to the General Court to enable Judge Collins to rule on Ms Sharpston’s interim relief application, the Council Legal Service made an ex parte appeal to the Court of Justice against his provisional order, specifically requesting that the court should rule without hearing Ms Sharpston.  Working at a speed not normally associated with the Court of Justice, to issue her order first thing on Thursday 10th September, the Court’s Vice President did precisely that, holding that Ms Sharpston’s appeal was ‘prima facie clearly inadmissible,’ overturning Judge Collins’s order and dismissing the interim relief application, all without hearing Ms Sharpston (order here). Ms Sharpston’s successor was immediately sworn in without prior announcement of the ceremony and she was effectively ejected from office.  Taking its cue from the Vice President’s Order, the General Court then dismissed all her pending cases as manifestly inadmissible, again without inviting submissions from Ms Sharpston (orders here).

Ms Sharpston has now lodged appeals at the Court of Justice challenging those orders of inadmissibility.  The argument in short is that, if the Member States were to nominate a new member of the Court of Justice in circumstances where there was no vacancy for that nominee, there must be an avenue of recourse to the CJEU itself to review the legality of that purported appointment.  Whether Brexit created such a vacancy is the substantive question underlying these proceedings but so far there has been no judicial scrutiny of this issue.