Quod Licet Iovi non Licet Bovi. The Appointment Process to the Court of Justice and the Reform of Judiciary in Poland
By Marco Antonio Simonelli
On 8 October, four new Judges and two Advocates General officially entered into office at the Court of Justice of the European Union (henceforth ‘the Court’). Just two days before, the U.S. Senate had confirmed the appointment of Brett Kavanaugh to the U.S. Supreme Court. Whilst the latter process had attracted the attention of media from all over the world, the appointment of the new European judges had barely made the news. This situation is reflected also in the academic world, which, surprisingly, never showed much interest in the Court’s appointment process.
However, this does not mean that the procedure set out at Articles 253-255 of the Treaty on the Functioning of the European Union (henceforth “TFEU”) is immune to criticism. Two aspects in particular appear capable to negatively affect the appearance of independence of the European Judges: the duration of the mandate – 6 years – and the lack of transparency of the whole process which is dominated by national governments. These flaws may be one of the reasons why the Court had elaborated a minimal definition of the concept of judicial independence; a definition that may need to be reshaped in order to tackle the judicial reform enacted by the Polish government.
The concerns related to the transparency of the procedure and the discretion of national executives have been partially addressed by the Lisbon Treaty, with the creation of the s.c. Article 255 Panel. This Panel, composed of senior members of national judiciaries, former members of the Court and one person chosen by the European Parliament, is charged with the task to confirm a candidate’s suitability to perform the duties of Judge or Advocate General. Notwithstanding the undoubtedly positive effects produced by the panel on the quality of candidates, serious concerns remain regarding the transparency of its work: the Council Decision 2010/124/EU establishing the operating rules of this Panel, provides that both the hearing of the candidate and the deliberations of the body shall take place in private. Hence, the introduction of Article 255 Panel has been effectively dubbed as a form of “progress by stealth”.
Conversely, the length of the Judges’ tenure in Luxembourg apparently never represented an issue: the term of office of Court’s Judges has always been of 6 years since the institution of the Court. In comparison with the term of office of constitutional judges in European Union Member States, such a duration falls well below the average length. In fact, the judges’ mandate in European constitutional jurisdictions has a duration comprised between 9 years – as for the judges of the Spanish Tribunal Constitucional – and 12 years, like it is the case for the German Bundesverfassungsgericht.
Furthermore, Article 253(4) TFEU provides that retiring Judges and Advocates General may be reappointed without limits and, actually, this happens quite often: of the 39 Members currently sitting in the Court, less than one half (19) is serving his/her first mandate.
This situation does not conform to the best standards concerning the independence of the judiciary. As it has been clarified by the Venice Commission, the possibility of re-election is capable of undermining the independence of the judge, and when it is allowed, it should be limited to one re-appointment.
Having said that, it has to be stressed that the Court of Justice is not fully comparable to a national constitutional court. Therefore, the applicable standards concerning its independence are different from those applicable to national courts. Firstly, the fact that the appointment process is essentially controlled by national governments should not worry too much: given the diversity of actors influencing the overall composition of the Court, the possibility of a “court-packing” is actually remote. Secondly, if it is true that a renewable short mandate is capable to negatively affect the independence of the judge, on the other hand it increases his/her accountability; thus increasing the Court’s legitimacy vis-à-vis national tribunals.
In any case, even admitting that the independence of the Court cannot be measured in the same way as that of national courts, the procedure of Articles 253-255 TFEU may have influenced the Court’s conception of judicial independence. Indeed, when called upon to assess whether a body constitutes a tribunal within the meaning of Art. 267 TFEU, the Court essentially held that the requirement of independence is satisfied provided that there is a clear separation of functions between the administrative and the jurisdictional body, i.e. the court has to act as a third party in relation to the authority which adopted the decision forming the subject-matter of the proceedings (C-24/92, Pierre Corbiau v Administration des contributions, § 15). The manner of appointment, when scrutinized, never led the Court to affirm that the judicial body was not independent, even in cases in which the members of the body where all appointed by an executive body (C-110/98, Gabalfrisa SL). This very narrow notion of judicial independence – which is a consequence of the willingness of the Court to give the broadest interpretation possible of the concept of court for the purpose of Art. 267 TFEU – does not include a key aspect: the discretion of the executive in the appointment and re-appointment of judges. Therefore, this notion of judicial independence may result inadequate to tackle the legislative reforms in Poland, which are posing a serious threat to the independence of the Polish judiciary. In particular, according to the Court’s previous case-law, the unfettered discretion of the President of the Republic in deciding whether or not renew the judges’ mandate – as provided for by Article 37 of the new Polish law on the Supreme Court – should not constitute an issue for the independence of the judges.
Further, in some judgments the Court also showed a sort of reluctance to deal with the issue of the independence of national judiciaries. For instance, in Commission v. Hungary (C-286/12), the Court refused to consider the compatibility of the Hungarian legislation lowering the mandatory retirement for judges with the principle of judicial independence: the word independence does not appear a single time in the whole judgment. More recently, the reticence of the Court in L.M. (C-216/18 PPU) to straightly affirm the lack of independence of Polish courts, may also be read as a refusal by the Court to conceive judicial independence as depending solely on input factors.
On a different note, the recent interim measure adopted by the Vice-President of the Court in Commission v. Poland (C-619/18) appears to be a first step towards a new definition of judicial independence. Indeed, the Order puts a significant emphasis on the right to an independent tribunal as a fundamental right and an essential component of the right to a fair trial (§ 19-20). Thus, as it has been observed, this Order may be interpreted as a definitive commitment of the Court to play a decisive role in countering the rule of law backsliding in Poland. However, in order to do that, a rethink of the notion of judicial independence as emerges from the previous case-law of the Court is all the more necessary.
Be that as it may, it will not be easy for the Court to engage in a severe criticism of the recent legislative changes in Poland, especially as regards the unfettered discretion of the executive in deciding the prolongation of the mandate of Supreme Court judges, when the situation in Luxembourg is not so different.
To this regard it would be interesting to see whether the Panel will confirm the appointment of the second Maltese judge to seat in the General Court. The reason is that the candidate chosen by the Maltese government is facing serious criticism for a national call of application seemingly tailored on the candidate’s profile and for her close ties with the governing Labour party.
Concerning the first aspect, according to the criteria elaborated by the Panel «the method for selecting the candidate chosen at national level may in no circumstances be prejudicial to him or her», even if a transparent and comprehensive selection procedure may be beneficial to him/her.
What appears more problematic is that the candidate has campaigned in the last national elections for the Labour party. Thus, is at least questionable whether she fulfills the requirement of being a person «whose independence is beyond doubt» as Article 253 TFEU requires for those holding the post of Judge or Advocate General.
Somehow paradoxically, an eventual rejection of the Maltese candidate will shed doubts on the Panel’s impartiality. In fact, one of the current member of the Panel, Simon Busuttil, is also the former leader of the Nationalist Party, the main opposition party in Malta.
Independently of its outcome, this affair shows the importance of a transparent appointment process. Indeed, the best way to dispel the doubts concerning the overall fairness of the procedure would be the publication of the Panel’s opinion and the report of the candidate’s hearing. However, this is something that the Panel never did in the past.
 Dumbrovsky Thomas, Petkova Bilyana, Van der Sluis Marijn, ‘Judicial Appointments: The Article 255 TFEU Advisory Panel and Selection Procedures in the Member States’ (2014) 51 CMLR 456.
 Kelemen Daniel R., ‘Selection, Appointment, Legitimacy. A Political Perspective’, in Bobek Michal (ed), Selecting Europe’s judges: a Critical Review of the Appointment Procedures to the European Courts (OUP 2015) 253-256.