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Eleanor Sharpston: For a lawyer specialising in EU law, being an advocate general at the CJEU is, quite simply, the best job on the planet

22 mai 2024 | Alina MATEI
Alina Matei

Alina Matei

Eleanor Sharpston

Eleanor Sharpston

Alina Matei: Thank you, esteemed Professor Eleanor Sharpston, former Advocate General at the Court of Justice of the European Union, for the time you have dedicated to JURIDICE readers. From the outset, it must be mentioned that this interview was inspired by the article written by Professor Valeriu Stoica. Therefore, I invite you to discuss primarily about your professional experience during your tenure as Advocate General at the CJEU. How would you characterize the entire period you served as Advocate General at the Court of Justice of the European Union from a legal professional’s perspective?

Eleanor Sharpston: It was unquestionably the most fascinating and challenging part of my professional career. For a lawyer specialising in EU law, being an advocate general at the CJEU is, quite simply, the best job on the planet. You hold a position in which you are at complete liberty to think creatively about how to solve some of the biggest, most intractable problems that are before the Court. You have the opportunity to contribute, in a very practical way, towards the development of a European Union under the rule of law. That is a very real privilege and an honour.

Alina Matei: From your extensive experience, how should the institution of the Advocate General be understood by someone who holds the position of Advocate General?

Eleanor Sharpston: When I took up my post, I was given some very good advice by my friend and mentor Judge David Edward, who had served as the British judge at the CJEU from 1992-2004. He said, ‘The job of the advocate general is to get in there and help the Court’. You are not giving theoretical advice. You are writing from a judicial perspective, to help your colleagues – the judges who are deciding the case – to solve a difficult problem. The solution that you suggest must satisfy two simultaneous, very different, tests. Intellectually, it must make sense within the developing framework of EU law. At the same time, it must be capable of practical application on a day-to-day basis throughout the European Union.

Alina Matei: Could the number of Advocates General at the CJEU be increased? Currently, there are 11, I believe, following an increase from 8.

Eleanor Sharpston: When I joined the Court in 2006, there were eight advocates general. After much discussion, the Court decided to take advantage of Article 252 TFEU, which states ‘Should the Court of Justice so request, the Council, acting unanimously, may increase the number of Advocates-General’ and request three more advocates general. At the time, there was also in place a political declaration (Declaration No 38 annexed to the Treaty of Lisbon) which recorded the political agreement as to how those three additional posts would be allocated. In theory, it would be possible for the court to request a further increase in the number of advocates general. But there would also need to be agreement between the Member States as to both the number of additional posts and their allocation.

Alina Matei: The standards for selecting judges at the CJEU are the same as those for selecting Advocates General. The standards are the same, but the mandates – for a judge and for an Advocate General – are different. Are these standards sufficient to be an accomplished Advocate General?

Eleanor Sharpston: The mandate in terms of length of service (six years) is identical. However the job is a very different job. The advocate general is there to ‘assist’ the Court, by giving independent advice. The judge is working in a collegiate fashion with his colleagues to arrive at a single consensual judgement that will decide the case. The requirements for appointment, in terms of legal eminence and competence, are exactly the same. However, I would suggest that an advocate general perhaps requires an important additional quality: the willingness to go on record publicly with their own individual point of view and without regard to whether the Court is going to follow them.

Alina Matei: What was your working procedure in the process of drafting written opinions? How much time was allocated to studying doctrine and jurisprudence?

Eleanor Sharpston: As a working member of a court, you don’t allocate time to studying doctrine and jurisprudence in the abstract. You begin by analyzing the issues raised by the particular case on which you are working. You dig down into the file to be sure that you have really understood what those issues are. Then you start the research. How far does the existing jurisprudence of the Court address each issue? Does it do so adequately and correctly? Has there been serious, well reasoned, academic criticism of that existing jurisprudence? What are the choices that the court is going to have to make in deciding this case?

Within my team, the actual drafting process was re-iterative. One of my judicial assistants (”référendaires”) would work with me on the file. We would discuss the case together. The référendaire would begin to prepare the initial draft. We wouldl then discuss further, revise further. Perhaps I would draft a particular passage and invite my référendaire to critique what I had written. Once we had a reasonable working text, we would circulate the draft within my chambers so that all the other lawyers in the team (référendaires, interns, visitors) could also assess and critique the working text. We would take their comments into account and adjust the draft accordingly. The secretariat would then spend loving time and attention on checking and polishing the text before it was sent over, still as a draft, to translation. Once we got the draft French translation back, three people (a French-speaking assistant from the secretariat, the référendaire, and myself) would check the draft translation. If necessary, we would adjust and refine the wording of the English original. Only then would we have the final text of the Opinion, which I would sign and present to the Court.

Alina Matei: In court sessions, the Advocate General’s right to question the parties, like the judges, how did it contribute to a better understanding of the legal issue?

Eleanor Sharpston: By ‘court sessions’ I take you to mean ‘oral hearings’. Some cases are decided purely on the basis of the written procedure. A hearing is granted only where the Court considers that it will add value to the Court’s understanding of the case. I come from a legal tradition – the common law tradition – in which the oral procedure is both important and very valuable. I can truly say that I have always derived benefit from having the opportunity to check particular points with the parties and to put questions to them at a hearing. The corollary of that fact is that I never had a fully written opinion ready on file before the hearing. Of course we would have done some preliminary drafting; but my team and I regarded it as vital to approach the hearing with an open mind that could be changed by what we heard.

Alina Matei: What are the joys of an Advocate General? Finding an advocate’s arguments – whether they are a lawyer or an Advocate General – in the reasoning of the decision, be it a decision of a national court or a decision of the EU court, is clear evidence of a job well done?

Eleanor Sharpston: I have to tell you that I did not pore over each judgment that came out in a case where I had delivered an Opinion like an anxious schoolboy waiting to see whether the teacher had approved of his work! The Court does not routinely cite the Opinion of the advocate general directly on its way to reaching its conclusion. Sometimes it was possible, reading the judgment, to see that one’s thinking had indeed influenced the Court. That wasn’t always the case, however. Sometimes a colleague, in the corridor on the way to a meeting, would say ‘thank you’ for a thoughtful Opinion which had led to lively debate in the judges’ ‘delibéré’. Or you would meet academics at a conference who would say that they had found your work interesting, perhaps even radical.

Alina Matei: How should the relationship between the constitutions of the member states and EU law be understood?

Eleanor Sharpston: That is a topic for a day-long conference, not for one question in a brief interview! Individual States decide to share their sovereignty to some extent when they sign up as EU Member States (sovereignty is always shared between willing sovereign States, it is never ‘lost’). National constitutional courts oversee the application of national constitutions and safeguard the values they enshrine. The European Union has its own constitutional structure and its own constitutional court: the CJEU. Provided that there is a respectful dialogue between national constitutional courts and the CJEU, and that each respects and understands the other’s competences and concerns, the result will be enhanced protection of important individual rights and the safeguarding of the rule of law on this continent that we share together.

Alina Matei: Your reasoning in many written opinions does not differ from the reasoning of CJEU judgments, as I noticed that in your own opinions, you quote from the reasoning of other Advocate Generals (for example, F.G. Jacob). For the present European Union, what do CJEU judgments represent?

Eleanor Sharpston: I’m not sure that I would agree with you that my reasoning and the Court’s reasoning often did not differ from each other! For example, in Case C- 34/09 Ruiz Zambrano, I wrote a very long Opinion and the Court delivered a very short judgment. We more or less got to the same place, by entirely different paths. And the Court has been trying to explain ever since what exactly it meant about citizenship of the Union. Yes, advocates general do quote each other where their thinking and reasoning are running on parallel tracks. I often quoted my predecessor, Advocate General Francis Jacobs, because he was one of the leading intellects of the Court. If someone else has already had the good idea that you are about to advance, it is only respectful to give them credit for their prescience.

Judgments of the CJUE represent the considered and binding decisions of the Supreme Court of the European Union. Because their drafting style is collegiate, they are sometimes not as easy to understand as, ideally, they would be. Reading the Opinion (if there is one) of the advocate general before reading the judgment helps a lawyer to get a much better idea of what was at stake in the case and what were the issues that the judges had to take into consideration when deciding it.

Alina Matei: For most people, when they hear the word ‘judgment,’ their thoughts go to decisions of national courts rather than those of the CJEU. Given that the EU’s numbers decrease or increase, does your mind still go to CJEU judgments?

Eleanor Sharpston: I am, through and through, an EU lawyer. I have been involved with the European project all of my professional life. I do not try to keep up to date with what is happening in the domestic law of the United Kingdom, or indeed of Luxembourg, where I live. I do not follow the case law of the English courts. I’m interested in what is happening to EU law. So, I do try – it’s difficult, because there is such a rich output! – I do try to keep up with the most important decisions of the CJEU, and with the Opinions of particular advocates general, on particular topics that I really care about.

Alina Matei: A message, please, for the readers of J.

Eleanor Sharpston: I have been lucky enough to spend my entire professional career doing work that I found deeply interesting and that I cared passionately about. That is because all my work – whether as an academic, a barrister, or an advocate general – has been linked in one way or another to the advancement of the European project. Whatever your field of legal practice, you will do it well provided that it engages both your head and your heart.

Alina Matei: Thank you for talking with me!

Eleanor Sharpston: My pleasure – thank you for asking me.

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