British members of the EU’s Court of Justice in Luxembourg have been left in limbo because nobody has decided what precisely should happen to them after Brexit. It had been widely assumed that they would lose their jobs as and when the UK leaves the EU. But this seems to be in nobody’s interests — and may even be unlawful.
EU treaties and the statute that set up the court guarantee independence from political interference by giving its judiciary fixed appointments for six years. It is hard to imagine a more political act than sacking members of a court because of the decision by a member state to leave the EU.
Among the four members of the EU judiciary who hold UK passports, Eleanor Sharpston QC has the strongest grounds for complaint. She is one of 11 advocates general whose role is to sit with the court and deliver advance opinions that help the judges decide the most difficult cases. The questions of law she considers can come from any one of the 28 current member states. It is not her job to argue cases on behalf of the UK or to give rulings.
Sharpston has been an advocate general since 2006 and was given a new six-year mandate in October 2015, less than a year before the Brexit referendum. Until shortly before 29 March this year, she did not know whether she would be able to deliver opinions after the intended Brexit day in cases on which she had already sat as advocate general.
There seems no reason why the court should be deprived of Sharpston’s considerable experience – or the expertise of her legal support team. But if she goes, so do they. After 13 years in Luxembourg, Sharpston has no wish to leave.
The UK’s judge on the EU Court of Justice is Christopher Vajda QC. His first six-year term expired last October but he was given a new mandate earlier this year, to run until 2024 or Brexit day. Ian Forrester’s appointment as a member of the EU’s General Court, which deals mainly with competition law, state aid, trade, agriculture and trade marks, is due to expire at the end of August. And Phil Wynn Owen’s current term as a member of the European Court of Auditors – which functions as the supreme controller of all things financial – expires at the end of this year. The UK should have nominated a second judge by now to join the General Court in September but has not done so.
Delivering a lecture last week to the Bar European Group in Gdansk, Sharpston said the continuing uncertainty was making it difficult for her and her judicial colleagues to serve their respective courts. ‘Cases take time to hear and determine, exacerbated by the need for translation. Should we be included or excluded from participating in any particular case?’
The situation was frustrating, she added, not just for them but also for judges and advocates general from the other 27 member states. ‘Because the EU courts have a heavy workload and a public responsibility to use resources efficiently, it is also detrimental to the good administration of justice.’
Whatever view you take of Brexit, the EU can ill afford to lose judges who know the UK and its legal systems. Behind the scenes, they can help colleagues understand why things are done differently in a common law jurisdiction. And given the scope for argument about how much the UK will have to pay the EU as a condition of leaving, it seems crazy for the UK to sacrifice a member of the Court of Auditors who spent much of his career in the Treasury and other senior civil service posts.
As Sharpston said in her Gdansk lecture, the UK will continue to be involved with the EU during the intended transition period and indirectly after that. ‘Decisions that the EU courts take on subjects as disparate as citizens’ rights, customs classification, food standards, environmental protection, data protection, and crime prevention and police cooperation will continue to affect individuals and companies based in the UK,’ she said. ‘It is difficult to see how it is in the interests of either the UK or the EU for the EU courts to be deprived of the legal contribution that UK members can and do make towards reaching well-informed and balanced judgments on such topics.’
And yet, by all accounts, Theresa May’s government did not push for their appointments to continue. Keeping British judges in Luxembourg is not seen as a big deal by the EU but it won’t happen unless the next prime minister asks for it. In the meantime, the government’s indifference to the uncertainties it is causing at the court means the UK is losing judicial goodwill at a time when it has never needed it more.