Withdrawing British judges from the EU’s highest court will deprive it of high-calibre experience and limit the UK’s influence, one of the longest serving members of the court’s judiciary has warned.
Eleanor Sharpston QC, who is an advocate-general at the Luxembourg court as well as a karate black-belt and square-rigger sailor, has expressed disappointment that legal cooperation might end as a result of a Brexit vote.
In an interview at the European court of justice (ECJ), Sharpston also delivered a caution over the powers of national constitutional courts and denied that European judges delivered the final verdict in cases.
The ECJ’s expanding role has become increasingly contentious during the referendum campaign. Founded in 1952 as what was then the court of justice of the European coal and steel communities, the court is less well known than the European court of human rights in Strasbourg.
Luxembourg’s decisions, however, are binding on all courts throughout the EU, unlike those from the ECHR, which, technically, only have to be “taken into account”. The ECJ’s enlarged jurisdiction, caseload and ultimate authority have therefore ensured it receives regular blasts of Eurosceptic invective.
Claims that the court threatens the UK’s sovereignty eventually capsized attempts to haul Boris Johnson aboard the remain campaign. His wife, Marina Wheeler QC, had written an influential article in February criticising the “jurisdictional muscle-flexing of the court in Luxembourg” since the EU’s charter of fundamental rights came into force in 2009. The court, she added, acts “capriciously not judiciously”.
Standing on a plateau above the city of Luxembourg in the Quartier Européen, the ECJ is a concentric series of modernist buildings that have grown outwards as the court’s work increased.
More than 2,000 people – half of them translators – work in a complex that is redolent of an art gallery, with spacious corridors, decorated walls and processional stairways. The court’s reception is staffed by smart G4S attendants, in black suits, white lanyards and ties. A third high-rise bronze and glass tower is under construction. From the top, four countries are visible – Luxembourg, France, Germany and Belgium.
The grand salle, the ECJ’s largest courtroom, can seat 300 people; 15 judges in their claret red robes and an advocate-general sit on a semi-circular bench beneath a pendulous mesh curtain that diffuses light. Some lawyers disparage it as a touch of “Dubai”; others look up and imagine a billowing mushroom. The court’s walls are painted gold; the floor is richly coloured Californian redwood.
Sharpston, 60, who is a fellow of King’s College, Cambridge, and a former joint head of chambers in London, has an office overlooking Luxembourg City. She has been at the ECJ since 2006 – the longest serving UK member of the court’s judiciary.
“The UK has made a very strong contribution to this court and the evolution of EU law since it joined in terms of injecting a degree of pragmatism,” she told the Guardian. “The procedures of this court and the way it deals with cases have been improved by the addition of the [British] common law tradition into the mix.
“Some very good [UK] people have served in the court – Lord Gordon Slynn, Sir Konrad Schiemann [both appeal court judges] and Sir Francis Jacobs – and they have made a difference.
“It would be a pity to lose this contribution … The quality of what is done within EU law is enriched by having a strong contribution by good common law [practitioners] coming from the UK and Ireland.”
Only after the UK joined the common market in 1973 did judges begin to ask questions during hearings; the dominant French tradition had been simply to sit back and listen.
Sharpston agrees that the ECJ has become more prominent, citing increases in the number of EU states and type of issues handled. Last year, the ECJ dealt with more than 700 cases for the first time.
“Various things are happening simultaneously,” she explained. “Over the years other competences have come within the field of EU law … by common agreement of EU states. It’s not that the EU grabbed new powers…
“[Now] we get cases which are about immigration, asylum and European arrest warrants … All of this is much closer to the core business of [the ECHR in] Strasbourg. EU law is engaged in a wider range of topics now because that’s what member states wanted. There are more cases where there may be fundamental rights aspects.”
It is this expansion that frightens Eurosceptics. Johnson has promoted a sovereignty bill that envisages the UK’s supreme court taking on an enhanced status similar to Germany’s constitutional court, thereby, it has been claimed, allowing British judges to resist Luxembourg’s rulings.
She also points out that the ECJ deals with requests from national courts for clarification of legal principles. “We don’t decide national cases,” she said. “The national judges handle it. We answer the questions. We don’t decide the case.”
There is regular, behind-the-scenes dialogue between ECJ and national judges. Last Monday (11 April), the day before the ECJ heard a case about the legality of the UK’s surveillance legislation, the lord chief justice, Lord Thomas of Cwmgiedd, the president of the supreme court, Lord Neuberger, and other senior British judges were in Luxembourg for legal discussions.
Plans to make the ECJ more accessible to the estimated 500 million people who fall within its jurisdiction, by providing live online broadcasts of proceedings, are under discussion. Difficulties in providing simultaneous translations, however, may delay this plan.
ECJ judges are paid €240,000 (£191,000) a year, which is slightly less than a UK appeal court judge. Sharpston has a more specialised role as an advocate-general, providing an initial, guiding opinion ahead of the final judgment. Such opinions are, in the vast majority of cases, followed by the court as a whole. She characterises her job as being like a scout ahead of an army.
She bats criticism of the ECJ’s main courtroom as ostentatious away by drawing a comparison to the Gothic architectural extravagances of the royal courts of justice in London.
Sharpston is used to strong headwinds: proudly framed on one of her office shelves are the shredded remains of a topsail blowout in a mid-Atlantic storm.
Her name has been mentioned as a possible future member of the UK’s supreme court. “I’m watching with interest what happens in the next few months,” she said.