Today’s ruling by the EU court on Malta’s previous system of appointing judicial officers has disappointed European constitutional scholars for not being brave enough to push the EU legal framework forward.
However, the ruling leaves the door open to possible future claims for violations of EU law arising from the same appointment system. It also sets new minimum standards for the system of appointment of judicial officers in the EU and speaks out against non-regression in relation to “common values” and the rule of law.
At the request of the NGO Repubblika, the European Court of Justice (ECJ) ruled on questions put to it by the Maltese sub-constitutional court. The organization filed a lawsuit against the system of judicial appointments and six appointed judges in April 2019.
Repubblika referred to an earlier opinion by the Council of Europe Venice Commission which stated that the Maltese system “does not guarantee the independence of the judiciary” and that the “Prime Minister should not have the power to influence the appointment of members of the judiciary” .
The appointment system was finally reformed last summer to comply with the recommendations of the Venice Commission. Both the Justice Minister and the Prime Minister referred to these reforms in their reaction to today’s ECJ ruling.
Take misleading. The ECJ has not evaluated the Maltese government’s #ruleoflaw report. Rather, it was found that the creation of a judicial nomination committee in the sense of #EULaw is obviously in order * as long as * independent * + a PM participation is in order * as long as * the power is restricted / not exercised arbitrarily https: // t .co / NGv5kaVRy8
– Laurent Pech (@ProfPech) April 20, 2021
EU legal expert and academic from Maastricht University, Matteo Bonelli, told The Shift before the judgment was delivered that the CJEU judges would of course consider all provisional reforms, even if they were not stated in the judgment.
This case was decided by the 13 judges of the Grand Chamber, the highest court of the European Court of Justice, who recognized at the beginning of the 20-page judgment that “the present case raises sensitive and complex questions”.
At first glance, the ruling marks a break from the legal activism that was observed in similar rulings in Portugal and Poland in 2018 and 2019, when the EU court, according to a paper by EU scholars, “opened a new sphere of EU law. Right ”opened Monica Claes and Matteo Bonelli.
That new sphere, however, is scattered across the 20 pages of today’s judgment, despite the fact that the court opted for nuances rather than activism. In view of the context, such prudence was probably inevitable: the ECJ decided on the so-called preliminary ruling, in which it only had to answer questions about the interpretation of EU law by the referring court.
Since accession to the EU, there has been no apparent regression of the legal provisions of the mechanism of appointment of judicial officers by Malta and the verdict was on the letter of the law, more on a real-life scenario.
The judgment reads: “The relevant challenge by Repubblika is based solely on the alleged non-compliance with EU law with the constitutional provisions under which these appointments were made, without Repubblika asserting a violation of a delegated right resulting from these appointments after a Determination of EU law “.
The crucial part is the point at which Repubblika did not plead a specific infringement – not a real-life scenario that forced the court, at least in part, to just rule on the law.
This means that today’s judgment would offer neither support nor refuge if a specific case had to be brought before the ECJ or the Maltese Constitutional Court in the future. The court may be required to judge the case at its own discretion.
It concerns principles of judicial independence, which, as the judgment confirms, are “fundamental to the EU legal order”.
In his case, Repubblika relied on some of these provisions in the EU Treaty and the Charter of Rights, which mainly deal with a concept known as “effective legal protection”.
This relates to fundamental principles of the rule of law: the right to be judged by an impartial court or tribunal (which is reflected in the European Convention on Human Rights through the right to a fair trial or hearing) and the right to an effective remedy in the event of abuse or injustice affecting the fundamental rights and protections enshrined in EU law.
Today’s judgment states: “The guarantees of independence and impartiality required under EU law presuppose rules, in particular with regard to the composition of the body and the appointment, the duration of the service and the reasons for the abstention, rejection and dismissal of its members, how to dispel any reasonable doubt in the minds of individuals about the impermeability of this body [court] on external factors and their neutrality in relation to the interests before him ”.
With regard to the interpretation of EU law in the context of the questions put before it, the ECJ stated that EU law “must be interpreted in such a way that national provisions which give the relevant Prime Minister of the relevant Prime State a decisive power to make appointments do not Members of the judiciary who at the same time provide for the involvement of an independent body in this process, which is responsible, among other things, for assessing candidates for a judicial office and delivering an opinion to this prime minister, are excluded. “
This enables the Maltese Constitutional Court, chaired by Chief Justice Mark Chetcuti, to continue hearing the case in Malta and to pass its own judgment.
However, the judgment of the ECJ also has far-reaching effects on the EU countries, as it has set more rigid minimum standards.
Most importantly, no political leader, whether president, prime minister or chancellor, can have “decisive power” to appoint someone to justice without the advice of an independent body.
In addition, the principle of non-regression against “common values” of EU countries such as the rule of law and legal protection has been strengthened.
The judgment states: “A member state cannot therefore amend its legislation in such a way that the protection of the value of the rule of law is diminished, which is specifically expressed, inter alia, by Article 19 TEU”. This is the article on “effective legal protection”.