The UK’s last judicial member of the European court of justice is suing the council of the European Union and the EU court over her removal from office because of Brexit.
Eleanor Sharpston QC, advocate general to the court in Luxembourg, has lodged two claims challenging her replacement by a Greek lawyer before her term in office was scheduled to end next year.
Her departure will not necessarily end direct British involvement with the ECJ. A claim has been submitted by a team of London-based lawyers arguing that even though the UK as a nation is leaving the EU, its citizens cannot be deprived of EU citizenship without their consent.
Sharpston, whose mandate was due to end in October 2021, has submitted two claims – against the council of the European Union, which represents the remaining 27 EU states, and against the ECJ itself.
At the start of the year, Brussels issued a statement saying the mandates of all UK-related members of EU institutions would automatically end on 31 January. Sharpston was the exception to the rule and was told that she would stay on until a successor could take over.
A Greek replacement for her has now been found. The number of advocates general, who advise the court’s judges, is fixed at 11.
A fellow of King’s College, Cambridge and a former joint head of chambers in London, Sharpston has been at the ECJ since 2006. Earlier this year, contemplating the possibility of legal action, she told the Law Gazette: “It may be that the very last service I can render to my court is to see whether there is something I can do to push back against the member states intruding into the court’s autonomy and independence.”
She is understood to be arguing that she should be be allowed to stay in office until her current six-year term expires and that her removal undermines the judicial independence of the court. Court rules, it is said, ensure that judges and advocate generals can only be removed when they reach the end of their mandate or reach the obligatory retirement age.
The ECJ told the Guardian it could not confirm the identity of claimants in the two cases submitted. The court’s last British judge, Christopher Vajda, lost his seat in February despite the UK remaining within the single market and customs union until the end of 2020. There are 27 judges sitting on the ECJ – one for every member state.
A separate action legal action has been lodged at the ECJ this month by lawyers acting for Prof Joshua Silver, a physicist at Oxford University. The claim is being led by Prof Takis Tridimas of Matrix Chambers and lawyers from the London firm DAC Beachcroft.
They argue that while the withdrawal agreement between the UK government and the EU has resulted in the UK as a nation leaving the EU, the fundamental status and rights of the British citizens of the European Union cannot be removed without their consent.
Stephen Hocking, a partner at DAC Beachcroft, said: “In the withdrawal agreement, the EU council purported to remove fundamental individual rights from a group of citizens of the European Union, namely UK nationals, without any due process and without any reference to them. In doing so it acted unlawfully.
“EU citizenship is a citizenship like any other, and it confers individual rights on citizens that cannot be taken away by an agreement between governments.”
If he is successful, UK citizens would retain their rights as EU citizens, for example the right to live and work in EU member states.
This week Guy Verhofstadt, the former Brexit coordinator for the European parliament, tweeted in support of the legal action: “People received European citizenship with the treaty of Maastricht. Will be interesting to see, if a government decides to leave, its citizens automatically lose their European citizenship. They shouldn’t do!”
The case, for which more than £67,000 has already been raised, is being supported by crowdfunding through the website Crowdfunder.