Constitutional Creativity or Constitutional Deception? – Member State collective action and the jurisdiction of the Court of Justice.
This lecture discusses whether EU Member States can avoid judicial review by acting collectively outside the treaty framework. Examples of such action are becoming more and more common: Member States decided to replace Advocate General Eleanor Sharpston – nominated by the UK –due to Brexit even though her term of office had not expired. A judicial review is still pending and a key argument is that no action for annulment can be brought against this measure as it had not been adopted by any of the institutions of the EU, but instead by the ambassadors of the Member States. In a similar vein, the EU-Turkey Statement of 2016 – issued by leaders of EU Member States and the Turkish president – was considered to be outside the jurisdiction of the EU courts. Hence refugees returned from Greece to Turkey under this agreement had no recourse to judicial review since it was the Member States and not the EU that conducted negotiations with Turkey. This raises important questions of accountability and responsibility, which this lecture will explore.