MACIEJ SZPUNAR
IN PRAISE OF A FELLOW ADVOCATE GENERAL
In praise of a fellow Advocate General
Maciej Szpunar 1
Thank you very much for entrusting me with the honour of saying a few words about Eleanor Sharpston –as an introduction to today’s ceremony.
I treat this opportunity as a great privilege and hope to rise to the occasion.
It is not an easy task to make a presentation of the achievements of such a distinguished jurist.
For this is about a person whose achievements are in every respect –not only as a lawyer– remarkable. It is about a person whose life path, experience, versatility of interests and fascinating personality would be enough to fill the shoes of at least a few outstanding lawyers.
After a closer look at her unofficial CV, I have the impression that no amount of laudatio would suffice. It would take the writing of a screenplay for a film, which would surely become a bestseller. However, that is not my role at today’s ceremony. We can only hope to inspire the film industry to take up such a challenge.
I know that I should focus primarily on her achievements as Advocate General. Before I get to that, however, I would like to start with some personal reflections.
Eleanor probably does not remember this, but I first had the opportunity to meet her back in 1998 –at Cambridge, as it happens. As a British Council scholar and a member of Jesus College, I was trying to explore the ins and outs of EU law. One day I received an invitation to a lecture by a person I had previously known nothing about. All I knew was that the lecture would be given by someone important who deals with EU law in a serious manner –as a practitioner. By someone who was not just as an academic –which was my role at the time.
1. First Advocate General, Court of Justice of the European Union. This is the text of the Laudatio presented in the Conference in Honour of Eleanor Sharpston that took place in the Trinity College, Cambridge University, on 25 and 26 October 2024, Organised by the University of Cambridge, the University of Westminster and EU Law Live. The recording of the conference can be accessed here: Day 1 - Day 2
This lecture was given, of course, by Eleanor, whose appearance at Cambridge was quite the big event. And I must admit: although I don’t remember the exact subject of Eleanor’s lecture, I do remember that it made me realise the shortcomings in my own knowledge of EU law. But fortunately, her lecture also encouraged me to continue to work on EU law.
And when, 15 years later, I was appointed Advocate General and arrived in Luxembourg, I asked around for a friendly person who I should meet with first. The answer was clear: meet Eleanor Sharpston –she is the best Advocate General and she will give you guidance on how to do the job. This is exactly what happened!
I.The legacy left by Eleanor in terms of her Opinions is enormous, in terms of both quality and quantity. Their subject matters span almost all areas of EU law, from classical internal market issues (particularly the free movement of persons), to citizenship, to environmental law, to legal remedies and to the EU’s external competence, just to mention a few.
The liber amicorum which will be handed to her today bears testimony to the breadth and depth with which she has literally ploughed through EU law.2
Eleanor Sharpston served at the Court of Justice as Advocate General from 11 January 2006 to 10 September 2020. She was the fourth –and last– Advocate General appointed on a proposal of a UK government. Few members of the Court can claim to have made an impact as lasting as that of Eleanor Sharpston on both the EU legal order and the modus operandi of the Court of Justice.
It is common knowledge that under Lord Mackenzie Stewart, the first British judge at the Court (who would later become its seventh President), judgments changed in style and started to refer to precedent.
But it was the British Advocates General, from AG Warner, to Lord Slynn, to Francis Jacobs and ultimately to Eleanor Sharpston, who radically altered the style of Opinions from strictly decisive to deliberative. This has, in my view, led to a paradigm shift in the way Opinions are now drafted. Nowadays, almost all the Advocates General hand down their Opinions in a more deliberative, sometimes dialectic style.
The
legacy left by Eleanor in terms of her Opinions is enormous, in terms of both quality and quantity
2. C. Barnard, A. Łazowski and D. Sarmiento, Pursuit of Legal Harmony in a Turbulent Europe. Essays in Honour of Eleanor Sharpston, Hart Publishing 2024.
Eleanor Sharpston is well-known for her occasional use of wit, irony, and even humour in her Opinions –in addition, of course, to her intellectual rigour
What changed, with regard to the style of Opinions, specifically upon the arrival of Eleanor in 2006? Opinions were garnered with an element of wit.
Dry humour entered the odd Opinion here and there. Eleanor Sharpston is well-known for her occasional use of wit, irony, and even humour in her Opinions –in addition, of course, to her intellectual rigour. This lighter touch is common in Britain, but rare in judicial writing on the continent. It is my firm contention that occasional humour helps make her complex legal arguments more accessible and engaging. This ultimately reinforces the authority of an argument.
I will give you an example. In the case Trianel Kohlekraftwerk Lünen,3 a case on remedies in the context of environmental law, the question was whether the German principle making locus standi dependent on the existence of substantive individual rights is compatible with the EU principle of effectiveness. While the German government contended that this was the case, Eleanor stated, and I quote, ‘However, like a Ferrari with its doors locked shut, an intensive system of review is of little practical help if the system itself is totally inaccessible for certain categories of action’. End of quote. Eleanor then went on to conduct a rigorous examination of the German system.
This is just one example among many. And it is fair to assert that without Eleanor, most Opinions read nowadays would not display an element of wit or irony or, to put it differently, would simply be drafted in less suave a fashion. Eleanor’s style has thus proved to have had a transformative impact on the writing of almost all other Advocates General. For more details, I refer to Michal Bobek’s piece in the liber amicorum
II.
I would now like to turn to three cases, in which it is no exaggeration to say that Eleanor has quite literally written legal history.
In the case Asma Bougnaoui4 the issue was religious expression in the workplace, particularly the wearing of the Islamic veil, and how this right interacts with employers’ business interests.
The question was whether an employer could dismiss an employee for wearing a religious symbol, like the Islamic veil, simply because a client had objected to it.
3. Opinion of 16 December 2010, C-115/09, EU:C:2010:773.
4. Opinion of 13 July 2016, Asma Bougnaoui and ADDH v. Micropole SA, C-188/15, EU:C:2016:553.
Asma Bougnaoui, a Muslim woman, worked as an engineer for Micropole SA, a French IT consultancy. Throughout her employment, she wore a hijab. Micropole’s clients eventually raised objections to her appearance, and Ms. Bougnaoui was asked to stop wearing the hijab when visiting clients.
In her principled and nuanced approach, Eleanor tackled the complex interplay between religious freedom, client preferences, and workplace policies. Her Opinion in this case is grounded in a clear message: clients’ preferences or prejudices cannot justify religious discrimination in the workplace.
First, she addressed the nature of the discrimination at play. She concluded that the dismissal amounted to direct discrimination on the grounds of religion. Why? Because the company had taken action based on Ms. Bougnaoui’s religious practice—specifically, her choice to wear the hijab. This action was directly linked to her religious identity, and thus her dismissal was based on a characteristic inextricably tied to her religion.
Eleanor recalled that direct discrimination was fundamentally prohibited by EU law and that in this particular instance there was no valid justification.
On this point, she stressed that an employer cannot accommodate a client’s desire for religious neutrality by infringing on the rights of the employee. Drawing on the case-law of the Strasbourg court, she emphasised that freedom of religion is a fundamental right, which should not be compromised based on subjective feelings or opinions from clients. If an employer allows clients to dictate the appearance of its employees, it risks endorsing and perpetuating discriminatory attitudes.
Moreover, Eleanor found there to be no general occupational requirement applicable in Ms. Bougnaoui’s case. She pointed out that there was no evidence to suggest that wearing a hijab in any way impaired Ms. Bougnaoui’s ability to perform her job as an engineer. Her role did not require any particular appearance or dress code beyond professional standards.
Eleanor concluded that the client’s preference for neutrality did not equate to an occupational requirement. It was simply a subjective preference, not an objective necessity for the performance of Ms. Bougnaoui’s duties.
Eleanor’s Opinion in this case is a firm reminder that the principles of equality and anti-discrimination are foundational to the European Union’s legal framework. If employers are allowed to dismiss employees simply because a client objects to their religious expression, this would create a dangerous precedent, undermining these core values.
Her reasoning underscores the idea that in the European Union, individual rights must come first, and the law must remain vigilant in protecting these rights from undue interference
Her reasoning underscores the idea that in the European Union, individual rights must come first, and the law must remain vigilant in protecting these rights from undue interference.
As a last remark, I should like to stress that the importance of this Opinion is demonstrated by the fact that three contributions to the liber amicorum, touch upon the legal issues it raises: those by Jo Shaw, Mark Hill and David Guild.
Next, we turn to Eleanor’s Opinion in Opinion 2/155 (no pun intended!) – and here I can recommend the contributions of Allan Rosas and Isabelle Van Damme in the Festschrift. This Opinion dealt with the scope of the EU’s powers in concluding trade agreements, specifically the EU-Singapore Free Trade Agreement (FTA). The key question here was whether the EU could act alone in signing this agreement or whether the Member States also had to be involved.
Eleanor’s Opinion provided important clarity on the division of competences between the EU and its Member States.
First, she addressed the issue of exclusive competence versus shared competence. Much of the agreement, she argued, could be concluded by the EU alone. Provisions relating to trade in goods, services, intellectual property, and competition policy fell within the scope of the Common Commercial Policy under Article 207 of the Treaty on the Functioning of the European Union (TFEU).
As such, the EU had exclusive competence to sign off on these matters. This is the core of the EU’s trade policy, and she concluded that the EU could act alone on these aspects.
However, the real complexity came with two key areas: investment protection and portfolio investments.
Eleanor made it clear that investment protection provisions, including the Investor-State Dispute Settlement (ISDS) mechanism, went beyond the EU’s exclusive powers. Why? Because these mechanisms directly affect the jurisdiction of national courts. She argued that Member States must be involved in signing off on such provisions, making them an area of shared competence.
Similarly, she found that portfolio investments, which involve buying shares or bonds without controlling the company, were not clearly linked to trade policy. For these reasons, they too required the participation of Member States.
5. Opinion of 21 December 2016, EU:C:2016:922.
Another important point was the agreement’s provisions on environmental and labour standards, embedded in the FTA’s sustainable development chapter. Eleanor viewed these provisions as being closely connected to trade, meaning they fell within the EU’s exclusive competence.
So, in conclusion, while much of the agreement could be concluded by the EU alone, AG Sharpston was clear that certain key aspects—namely investment protection and portfolio investments—required Member States’ involvement. As a result, the FTA could not be adopted solely by the EU; it needed to be a mixed agreement, involving both the EU and its Member States.
This Opinion had significant implications for the future of EU trade agreements, especially those dealing with investment protection, helping to clarify the boundaries of EU competence in this evolving area of international trade.
Finally, the Opinion with probably the most lasting impact on both the EU legal order and the EU polity is the Opinion which also made Eleanor famous outside strictly legal circles in Europe: I’m talking about the Ruiz Zambrano case,6 which was groundbreaking and constituted a pivotal moment in the development of EU citizenship law. Again, three contributions in the liber amicorum analyse issues raised, directly or indirectly, by this case: those of Charlotte O’Brien, Daniel Sarmiento and Takis Tridimas.
At the heart of this case was a fundamental question: What does it mean to be a citizen of the European Union? More specifically, can a citizen be denied the effective enjoyment of their rights simply because of their family circumstances?
Eleanor began her opinion by reminding us that EU citizenship, as established under Article 20 of the Treaty on the Functioning of the European Union, is not just a legal formality –it is a fundamental status. It applies to every citizen of the Union, regardless of their age, nationality, or residence. And with this status come real, tangible rights. Among these rights, the most important is the right to remain and live within the EU.
Now, in this case, we are talking about two young children born in Belgium, therefore Belgian nationals and EU citizens by birth. The problem was that their father, Mr. Ruiz Zambrano, was not an EU citizen; he was a thirdcountry national from Colombia. Belgium had refused to grant him residence and work rights, meaning that if he were forced to leave, his young children would have no choice but to leave with him. This would strip them of their EU citizenship rights.
6. Opinion of 30 September 2010, C-34/09, EU:2010:560.
Eleanor asked a crucial question: Does EU law step in to protect these children, even though they had never actually left Belgium? Could we vindicate their rights without what we call, in a rather technocratic manner, a cross-border element? Traditionally, EU law in this domain only applied where there was such a cross-border element. But in her view, the essence of EU citizenship was at stake here. She argued that EU law must prevent situations where the very substance of citizenship rights is undermined –even in purely internal matters. Denying the father the right to stay would deprive his children of their citizenship rights by forcing them to leave the EU. But Eleanor went further, highlighting the importance of family life. She pointed out that depriving Mr Zambrano of his rights would destroy the family unit. How can a child enjoy EU citizenship if they are separated from their parent or forced out of the EU entirely? Protecting the family was not only a matter of justice but also of basic human rights, rights enshrined in the EU’s Charter of Fundamental Rights.
She was clear in her conclusion: EU citizenship is not just a theoretical concept –it carries real meaning. Denying Mr. Zambrano residence and work rights would amount to depriving his children of their EU citizenship rights. She urged the Court of Justice to take a bold, principled stance and rule in favour of Mr. Zambrano to protect his children’s fundamental rights as EU citizens.
The Court took such a bold stance. Sadly, the reasoning was rather cryptic and a far cry from Eleanor’s thoroughly reasoned Opinion.
This Opinion was a call to rethink the scope of EU citizenship. It asked the Court to recognise that the rights of EU citizens –even in purely internal situations – must be protected whenever they are under threat. And while the Court ultimately followed much of her reasoning, her Opinion remains a milestone in and of itself, reminding us of the depth and significance of European citizenship.
I would personally urge anyone having the slightest doubt about the concept and usefulness of EU citizenship to read this Opinion. Any such doubts will be blown away afterwards. III.
Having bombarded you with rather dense legal questions in the case-law of the Court of Justice, let us now turn to lighter, and in my view, much more important issues: a few anecdotes from Eleanor’s life in Luxembourg.
As I mentioned already, when I began my role as Advocate General, Eleanor provided me with invaluable advice on how to carry out this function. She stressed that thoroughness should always come first. Referring to the constraints of deadlines, she told me: ‘Maciek, crafting an Opinion is not like baking bread in a bakery. It’s not done in the whiff of a second’. But this advice has stayed with me and guided me in the past years. The internal deadlines of the Court are important, but they must not lead to a reduction in the quality of our Opinions.
The term which best describes Eleanor’s personality is probably that of a ‘Renaissance woman’
It is my contention that Eleanor’s advice is so thorough because it is grounded, quite simply, in who she is as a person. The term which best describes Eleanor’s personality is probably that of a ‘Renaissance woman’. It is impossible for me to list, in this laudation, all her interests and areas of expertise. Otherwise we would all still be sitting here tomorrow. That is why I like to limit myself to three specific aspects of Eleanor’s personality: dogs, music and a big hidden talent stemming from Eastern Europe.
First, Eleanor’s love of dogs is known – and this is probably the biggest thing she has in common with the late queen. I was regularly informed about their well-being and how they were doing. While it is well known that Boris-the-samoyed and Rudy-the-hovawart are her loyal and steady companions, what most people do not know is that the dogs have also triggered innovation in the European automobileindustry. On longer journeys, such as to her hillside second home in the Maremma, Tuscany, she uses her camper –which has been tailor-made in such a way that when she has to change gear, the dogs are placed in a position where she can give them a brief stroll. Should the Cambridge Advanced Learner’s Dictionary still be looking for illustrative examples on the term ‘multi-tasking’, I suggest they contact Eleanor.
Secondly, I would like to turn to an anecdote which I hope is not too personal: one day when I entered the office, one of my secretaries told me that her mother in law met a very pleasant Luxembourger with a British background among a group of people participating in an event of the ‘amis de l’Orchestre Philharmonique de Luxembourg (OPL)’. When not keenly studying her scores for playing the viola, this cheerful lady was engaging in conversation with the other participants. When one person asked, in passing, what she did in Luxembourg, she said: ‘oh, I work for the Court of Justice, up on Kirchberg’. None of the other people had any clue who she was.
And Eleanor did nothing to change this.
I have taken the liberty to mention this episode, because it demonstrates the quality which I most associate with Eleanor: her tremendous humility.
Thirdly and lastly, I would like to conclude my speech by referring to a part of Eleanor’s personality which we will not read about in any scholarly publication. I think I can say this because I consider it an honour that we also share a friendship and not just a working relationship from our time together at the CJEU.
I have witnessed both happy and sad moments in Eleanor’s life, and she has witnessed the same in mine.
Eleanor is an extremely sensitive and –in a positive sense–emotional person (mainly because of this, she can understand emotions of other people). I think this is the part of her personality and identity that stems from her roots in Eastern Europe (which is also the part of Europe I am from). In my opinion, this is her greatest quality and greatest asset. She reconciles Anglo-Saxon rationality and Eastern European emotionality –and, of course, a Luxembourgish sense of order and decency. In this sense – Eleanor is a true European.
But what I wanted to say is this: it is largely Eleanor’s emotions that make her a great lawyer. Rationality and a sense of order can be created by artificial intelligence, but emotions –never. That makes Eleanor a unique and irreplaceable jurist.
I would like to end my speech on this note.
All the best for the future, dear Eleanor.
She reconciles Anglo-Saxon rationality and Eastern European emotionality –and, of course, a Luxembourgish sense of order and decency. In this sense – Eleanor is a true European
1. Cover painting by Wiesław Ochman.
2. Photo credits: Adam Łazowski & Graham Butler
