That is the issue dividing the Advocate General on one side and the EU Council, Conference of Representatives of the Member States and seemingly the President of the Court of Justice on the other. Ms Sharpston contends that her mandate is unaffected by Brexit and had already brought proceedings in the EU’s General Court against the Member States and the Court of Justice itself (pending cases T-180 and T-184 of 2020 respectively) to establish the correct position in law. No substantive defences have yet been lodged in those proceedings.
On Wednesday 2 September, the Council and Conference escalated the issue by purporting to appoint a new Advocate General with effect from Monday 7 September (their decision has not been published, but a link to the press release is here). Ms Sharpston accordingly lodged proceedings on 4 September seeking the annulment of that decision as a legal nullity, and its interim suspension pending resolution of the legal issues. By Order of the same day, the President of the Third Chamber of the General Court suspended the operation of the decision pending his final ruling on the interim measures application. His order is here. The Council and Conference have been given until 11 September to submit their observations.
The controversy over the remaining 27 EU Member States’ desire to replace a sitting member of the Court of Justice whose mandate ostensibly runs until October 2021 has aroused some interest in legal blogs –see here and here.
Sir Nicholas Forwood QC and James Flynn QC are representing Ms Sharpston.