May 11
Anjum Shabbir
Anjum Shabbir
22nd April 2021
Institutional law

Op-Ed: “The Court of Justice rules on European standards for national judicial appointments” by Niels Kirst

The independence of the judiciary in the Member States has been a primordial occupation for the Court of Justice of the European Union since 2018. Adding to this line of case law, the Court of Justice most recently gave its verdict regarding a preliminary reference from Malta concerning the appointment procedures for judges in the Maltese judiciary. This Op-Ed will analyse the judgment, highlighting the Court’s reasoning, and outline the broader significance for the independence of the judiciary in Europe.


Preliminary Ruling on the Maltese system of appointing judges

In brief, the Court found that the legislative changes of 2016 in the Maltese system for the appointment of judges do not infringe the requirement of effective judicial protection that flows from Article 19(1) TEU. All this occurs against the backdrop of an ongoing rule of law backsliding in Poland & Hungary. Therefore, the case was significant for parallel proceedings regarding the executive encroachment on the judiciary in Poland (Commission v Poland, C-791/19 and Commission v Poland, C-XX/21). Undoubtedly, the judgment is being watched and analysed in Brussels, Warsaw, and Budapest.

The preliminary reference was made by the first chamber of the Maltese Civil Court, which acted as the constitutional chamber. The action was brought as an actio popularis that allows civil society organisations in Malta to bring cases for judicial review if their interests are not directly affected. The national action was initiated by an association called Repubblika, which alleged that recently introduced changes to the Maltese legislation for the appointment of judges infringed upon the independence of the Maltese judiciary. Repubblika is a Maltese association promoting the protection of justice and the rule of law in Malta. In its claim, Repubblika was specifically concerned about the power of the Maltese President to directly appoint judges and bypass a judicial committee.


Background to the dispute: Malta’s history with the rule of law

In 2016, Malta’s Government enacted a reform of its judicial appointment system. This reform spurred the lawsuit by Repubblika, which was part of a broader movement to promote political change in Malta after the murder of the investigative journalist Daphne Caruana Galizia in 2017. Her murder caused a widespread outcry in Brussels and among the wider European public. After three years of investigation, her killing was linked to top government officials and ultimately led to the resignation of Prime Minister Joseph Muscat in January 2020.

The 2016 judicial reform established an independent Judicial Appointments Committee (JAC), which would select judges for an appointment but allow the prime minister in exceptional cases to bypass the committee, if the candidate meets certain professional requirements set out in the Maltese Constitution. Repubblika alleged that Muscat’s Government had appointed too many judges who had links to his Labour Party and that this gave rise to the suspicion of political interference in the judiciary. A Venice Commission Opinion in 2018 provided further substantiation for Repubblika’s claims.


The Venice Commission’s Opinion 940/2018

In 2018, the Venice Commission published an Opinion on the Maltese justice system. It stated that ’the constitutional amendments 2016, which [were] introduced [by] the JAC, were a step in the right direction, but fall short of ensuring judicial independence. […] The Prime Minister should not have the power to influence the appointment of Justices and Judges Magistrates’. Remarkably, the Maltese Prime Minister had even more powers regarding judicial appointments before 2016.

To conclude its point, the Venice Commission found that ‘the wide powers of appointments that the Prime Minister enjoys make this institution too powerful and create a serious risk for the rule of law. Taking into account the Prime Minister’s powers, notably his or her influence on judicial appointments, crucial checks and balances are missing’. The Opinion was thus a wake-up call for the Maltese Government and confirmation for civil society organisations in Malta of their rule of law concerns. It was, therefore, crucial to see if the Court would follow the assessment of the Venice Commission or deem the judicial appointment process as compliant with EU law.


Analysis of the Court’s ruling

Interventions in the proceedings before the Court were made by Belgium, Malta, the Netherlands, Poland, and Sweden. The intervention of Poland might be seen as most significant, as the Polish Government tried to derail the legal proceedings by raising points about admissibility. The Court dismissed the arguments firmly (paragraphs 25-34).

In its analysis, the Court, first, considered the applicability of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (the Charter, or CFR) to the case (paragraphs 35-46). Following the reasoning in ASJP (C-64/16), the Court confirmed that national courts that apply European law are covered under the concept of ‘court or tribunal’, and therefore, have to guarantee European standards of effective judicial protection. The case thus fell under the broad scope of Article 19(1) TEU. Regarding Article 47 of the Charter, the Court found that Repubblika did not rely on a subjective right and, therefore, that Article did not apply to the case. The Court, thus, affirmed the applicability of Article 19(1) TEU but denied the direct applicability of Article 47 of the Charter to the case.

In his Opinion to the case, Advocate General (AG) Hogan had argued in the same vein, advising that Article 19(1) TEU is applicable to the case, but rejected the direct applicability of Article 47 of the Charter. Interestingly, he referred to a concept introduced by AG Tanchev in Commission v Poland (C-192/18) regarding the reform of the Polish judiciary (see paragraph 46 of the AG’s Opinion). AG Tanchev argued that a constitutional passerelle exists between Article 19(1) TEU and Article 47 of the Charter, and therefore that the same concepts have to apply under both Articles (for an analysis of AG Tanchev’s doctrine see here).


A constitutional passerelle between Article 19(1) TEU and Article 47 of the Charter? 

The Court did not mention the concept of a constitutional passerelle between Article 19(1) TEU and Article 47 of the Charter in its judgement. However, the Court confirmed that the former Article must be read considering the latter (paragraphs 40-46), thus, creating a bond or a bridge between the Treaty Article and the Charter Article. Therefore, it might seem increasingly likely that the concepts under Article 19 TEU and Article 47 of the Charter fully overlap.

Subsequently, the Court specified the requirements of Article 19 TEU (paragraphs 47-59). In the following analysis, the Court applied a three-step test to assess the Maltese procedure for the appointment of members of the judiciary. First, the Court relied on the discretionary concept of ‘doubts in the minds of individuals as to the imperviousness of members of the judiciary. This is a concept which is borrowed from the European Court of Human Rights (ECtHR) (for a full analysis of the ECtHR doctrine see here).

According to the Court, this concept is built on two secondary requirements: (i) the freedom of any direct or indirect influence from the legislature or the executive, and (ii) the neutrality of the member of the judiciary to the interests before them. Further, the Court reiterated that the independence of the judiciary forms part of the essence of the fundamental right to effective judicial protection.

Adding to its reasoning based on Article 19(1) TEU, the Court also referred to Article 49 TEU (paragraphs 60-64). Article 49 TEU defines the accession criteria to join the EU. According to the Court, by joining the EU, States voluntarily agree to the values of Article 2 TEU, including the rule of law, and this requires that they do not subsequently amend their judicial system in a way that endangers those values to which they have previously subscribed. This can be somewhat understood as a clear wink to the Polish Government that endangers the independence of the Polish judiciary with full intent.

Finally, the Court held that the changes to the judiciary in 2016 did not grant the Maltese Prime Minister such power that it would infringe upon the principle of judicial independence in EU law flowing from Article 19(1) TEU (paragraphs 65-73).


Conclusion: A further tile in the puzzle of the protection of the rule of law in Europe

The Court’s reasoning was based on three articles. First, Article 19(1) TEU, which established the scope of application; second, Article 47 of the Charter, which provided further underlying support for the concept of judicial independence developed under Article 19(1) TEU; and third, Article 49 TEU, which according to the reasoning of the Court, must be read as requiring the Member States not roll back on the state of the rule of law in their countries at the time of accession.

The most significant takeaway from the case is certainly the new interpretation of Article 49 TEU. Once a Member State enters the EU according to Article 49 TEU, the same Article requires that this Member State may not backslide on the values of Article 2 TEU. The Court is, thus, establishing an indirect connection between both Articles. Fellow scholars have already dubbed this as a new principle of non-regression in EU law. It will be exciting to see if the Court follows up on Article 49 TEU as an ultimate backstop to value backsliding in the Member States. If the Court maintains this new principle in EU law, Article 49 TEU could become a panacea for value backsliding in the Member States.

As in ASJP (C-64/16), the Court gave its interpretation of the rule of law in Europe in a case that was not directly connected to clear instances of rule of law-backsliding in the Member States. Instead, the Court’s ruling was triggered by a preliminary ruling coming from a different Member State with the outcome of no violation of EU law. After this judgment, it is even more clear that Member States must respect European standards when they organise their judicial system. They may not change their judicial system in a way that is detrimental to the value of the rule of law as enshrined in Article 2 TEU and operationalised in Article 19(1) TEU. Repubblika, despite losing the case, claimed the ruling as a victory for the rule of law in Europe. While the case will have no consequences in Valletta, it may turn out to be a guidepost in the EU’s fight over the rule of law with Warsaw.


Niels is a Ph.D. Researcher at the School of Law and Government of Dublin City University (DCU). His research focuses on rule of law-backsliding in the Member States of the European Union (EU), the EU’s institutional response and the role of the Court of Justice of the European Union (CJEU). 


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