The ECJ’s credibility is in tatters

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. The result was, in the words of those two respected academics – Graham Butler, an associate professor of law at Aarhus university in Denmark, and Dimitry Kochenov, who teaches law at the Central European university in Vienna – that the situation was made 'significantly worse', not least in its ruling that:

“'it is…immaterial whether the (government of the EU) acted within the framework of the Treaties or other legal sources, such as international law'.

The law inside the EU now appears to be this: the EU government does not need to follow law – any law. And the ECJ will just nod along. Yet that surely is the opposite of the Rule of Law. 

It is now difficult to disagree with the conclusion that the Court of Human Rights would refuse to recognise the ECJ as a proper court. Given the ECJ's role in having the final say on any questions or disputes that arise out of the Northern Ireland Protocol, this is extremely troubling.

It also presents a big problem for those who want to criticise Poland, or potentially Hungary (nobody seems terribly interested in criticising Germany), over their making – and breaking – of law. 

For the ECJ to function, it must be independent. Lord Frost must face this truth when negotiating over the Protocol in the weeks ahead.