Carte Blanche for Judicial Appointments?

In the recent Valančius judgment, the Grand Chamber of the Court of Justice of the European Union (Court of Justice or ECJ), ruled on Union law requirements for the judicial appointment procedure to the EU General Court. Having previously clarified the Union law requirements for the selection procedures of national judges, the Valančius case at first sight confirms the applicability of these requirements to the selection procedure of EU General Court judges.  However, a closer look reveals that the judgment risks effectively giving carte blanche for Member States to design the national stage of the appointment procedure regarding EU General Court judges. This could prove detrimental to their level of protection of independence. Furthermore, the Court of Justice might have created hidden double standards for appointments to EU courts as compared to national judicial appointments. Overall, the Court has missed a chance to strengthen the guarantees of judicial independence of EU judges.

Facts and questions of law

The case arose after the term of office of Mr. Virgilijus Valančius, Lithuanian Judge at the General Court since April 2016, expired in August 2019. As the first step of the national procedure of selecting a new Lithuanian Judge at the General Court, an advisory body was charged with ranking the most to least suitable candidates. Since the highest-ranked candidate on this list was Mr. Valančius, the Lithuanian Minister of Justice resubmitted him to the Lithuanian government as the candidate for the position of judge at the General Court. The Lithuanian government, however, went on to propose not Mr. Valančius as a candidate for Judge at the General Court, but the second-ranked person on the list. Mr. Valančius appealed this decision before the Administrative Court in the first instance (the referring court). This court referred questions to the ECJ in which it raised doubts as to the compatibility with the third subparagraph of Article 19(2) TEU and Article 254(2) TFEU of the course of action by the government of nominating a candidate other than the highest-ranking on the list of candidates for the office of judge at the General Court drawn up by a group of independent experts.

Establishing jurisdiction

The Court firstly clarified its jurisdiction to decide on the compatibility of national provisions concerning the national selection stage of the appointment procedure of General Court judges as well as the application of such national provisions. In line with the AG, it clarified that this procedure is of a composite, tripartite nature, consisting firstly of a national stage, where the concerned Member State’s government proposes a judge, secondly of the intervention of the Article 255 Panel, and finally of the appointment decision taken by common accord of the Member States’ governments. By drawing on this described tripartite character, it held that all of these stages are governed by the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU. Thus, the decision of a Member State government to propose a candidate for the office falls well within the scope of these provisions, so that the Court affirmed its jurisdiction (§§ 28-30). Analogous to case law establishing EU requirements regarding structures of national judiciaries, even though proposing candidates falls into the competence of the Member States, they are still required to adhere to their EU law obligations under the outlined provisions. The fact that third-phase appointment decisions taken by common accord by representatives of the governments of the Member States are not subject to judicial review by the EU Courts under Article 263 TFEU, as made explicit in the case Sharpston, is deemed irrelevant in this context.

The Court’s treatment of the preliminary questions

The Court’s answers to the questions in essence specify the EU legal requirements following from Article 19(2) TEU and Article 254 TFEU for the entire appointment procedure for judges at the General Court, highlighting the relevance of such standards for all three stages. The Court first reiterates established case law on the EU legal requirements for judicial appointments of national judges, and then applies it analogously to the procedure of appointment of Judges of the General Court. In that respect, it applied the so-called appearance test, by holding that. 

“the substantive conditions and procedural rules relating to  appointment [of Judges at the General Court] must make it possible to rule out any reasonable doubt, in the minds of individuals, as to whether they satisfy the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU, which relate both to ‘independence beyond doubt’ and to the ‘ability required for appointment to high judicial office’.” (§ 53)

It then continues to specify more detailed requirements for each of the three stages, starting with and focusing on the national proposal stage. The Court, whilst insisting on the appearance test, recognizes the Member States’ large margin of discretion in designing the proposal procedure for the appointment of a Judge to the EU General Court (§§ 54-56) and in defining the applicable substantive conditions (§ 57). In that respect, the Court even admits that Member States are completely free in their decision whether to adopt a “procedure” at all (§ 55).

The Court then continues to elaborate on the second part of the procedure. It specifies that it is the responsibility and duty of the Article 255 Panel to check the candidates’ suitability by applying the benchmarks of the requirements of independence and “professional ability” under the EU legal provisions. The Court also discussed the relation between the first stage and second stage of the tripartite appointment procedure of EU judges. It specified that whilst the existence of “an open, transparent and rigorous selection procedure” at the national step is a relevant factor for the panel to be considered while verifying the candidates’ compliance with those requirements, the absence of such a procedure is not per se a ground for casting doubt on such compliance (§ 60). In any case, the panel can request additional information from the concerned government, as laid down in the second paragraph of point 6 of the panel’s operating rules, set out in the Annex to Decision 2010/124  (§ 61).

Finally, the Court also briefly comments on the last stage of the procedure. It points out that the governments of the Member States equally bear the responsibility to ensure observance of the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU (§ 62).

In the concrete case, it concludes that the fact that the Lithuanian government has not proposed for appointment the first ranked of the merit-list is not as such contrary to EU law by not raising any reasonable doubt, in the minds of individuals, as to whether the candidate satisfies the requirements laid down in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU (§ 63).

Analysis: the prima facie uniformity of EU legal requirements for appointments of national and EU judges

The establishment of EU standards for judicial appointment procedures by the Luxembourg Court is no novel phenomenon. Initially, case law establishing such standards emerged only with a view to judicial appointments of national judges, but later also with respect to judicial appointments to EU Courts in the Simpson case. The commented judgment confirms and continues its case law on EU requirements for judicial appointments of national and EU judges by principally transposing the appearance test to the appointment of EU General Court judges. This uniformity is to be welcomed: It mirrors the uniformity of the concept of judicial independence for national and EU courts and guarantees the individuals’ capacity to enforce EU rights under Article 47 of the Charter both before national and EU courts. Still, there is no full convergence of the appearance test as applied to national judges and to EU judges, as the judgment adds some specific elements to that test for the latter ones: whilst in the context of appointment procedures to national courts, only the appearance of independence of judges has been assessed, the judgment extends the appearance test for General Court judges beyond this criterion. Next to the appearance of independence, the appearance of ability for appointment to high judicial office is assessed (§ 53). This is a novelty, which can be explained by the fact that the appearance test for EU General Court judges now mirrors the two substantive conditions stipulated under Article 19(2) TEU and Article 254 TFEU. Furthermore, the Court took into account the tripartite character of the procedure, by applying this extended appearance test to all three parts and stressing the importance of safeguarding the integrity at each stage of the process (§ 53).

Quod licet Iovi, non licet bovi: A carte blanche and the implicit creation of double standards?

The established legal requirements for the appointment of EU judges initially may seem to have strengthened their independence and created a uniformity between EU judges and national judges regarding independence requirements. However, a closer look reveals that the judgment firstly risks leaving possible gaps in the protection of the EU judges’ independence and, secondly, might create inconsistencies between the Union law standards for EU judges versus national judges.

As regards the first point, the Court – on the one hand – reminds Member States to provide “detailed procedural rules” which must make it possible to rule out reasonable doubts in the minds of individuals in order to pass the appearance test. On the other hand, it explicitly leaves it up to Member States “to decide whether or not to provide for a procedure for selecting and proposing a candidate for the office of Judge of the General Court” (§ 55).  This reasoning is at first sight contradictory and might be interpreted as that the Court accords two different meanings to the term “procedure”. Firstly, the Court seems to use the term “procedure” in a broader sense, referring to any process leading to the outcome of a national proposal for a candidate, and potentially including purely political procedures. Secondly, the terms also seems to have a narrow sense as referred to in § 55, targeting a more formal or elaborate selection framework. Thus, Member States are only required by EU law to set up any kind of procedure – political or formal – which, as a procedure in the broad sense must still satisfy the appearance test. However, Member States are not obliged to provide for a set of more detailed and elaborate selection rules, i.e. a procedure in the narrow sense.

This leaves open some important questions.  In practice, it is difficult to imagine the extent to which the appearance test can be met in the complete absence of a procedure in the narrow sense. How can a potentially entirely informal, political, and non-transparent procedure, without further safeguards such as judicial review of the Member States’ proposal decision not raise reasonable doubts among individuals about the nominee’s compliance with the requirements of Article 19(2) TEU and Article 254(2) TFEU? If such a “procedure” did pass the appearance test, it would effectively give Member States a carte blanche to design the procedure of the national proposal stage, potentially lowering the level of protection of independence for the appointment of EU judges. Were this not the case, it could be seen as contradictory to the margin of discretion that the Court explicitly granted to the Member States in paragraph 55 with regard to their freedom in drawing up (or not) a detailed procedure.

The level of protection of independence for EU judges guaranteed via the national stage of the appointment procedure is all the more relevant as the later intervention of the Article 255 Panel cannot compensate for potential deficits of the initial step. First, the Court itself stressed the importance of the integrity of each stage of the composite appointment procedure, thus including the first step at the national level (§ 53). This means that each stage should, as such, incorporate the safeguards so that the appointees fulfill the requirements of independence and professional ability set by EU law. It is also not the role of the Panel to fill such gaps of the national procedural stage. Furthermore, in practical terms, it has not adopted such a role: it only takes into account the openness and rigorousness of the national selection procedure as one amongst many other factors. The commented judgment has confirmed this approach of the Panel (§§ 60, 61). An additional shortcoming may be that the 255 Panel can obtain information only from the government concerned, and not from other involved actors or independent stakeholders according to point 6 of the Annex of Directive 2010/124.

Besides potentially leaving the member states a carte blanche as explained above, one might secondly wonder whether the Valančius ruling doesn’t implicitly establish double standards for judicial appointments for national versus EU courts. This is reflected both in the standards specified in the case law regarding appointment procedures for national judges and in their concrete application.

With regard to the standards for national judges, the Court seems to have set stricter standards for the procedural rules of appointments of national judges than of EU judges in two respects. Firstly, whilst the Court equally indicated the intervention of the Executive (see e.g. CJEU AK, AB & Repubblika) or Legislature (CJEU Land Hessen)  as generally acceptable regarding national judicial appointments, it insisted that in such cases,

“it is still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges”.

Secondly, and crucially, for appointments for national judges it also added that “in that perspective [i.e. for passing the appearance test] it is important, inter alia, that those conditions and detailed procedural rules are drafted in a way which meets the requirements”  that they “must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned” e.g. A.K. §§ 134, 135; A.B. § 123; Repubblika, § 57). The Valančius case did not refer to these two additional elements with respect to the appointment of EU judges: it omitted to stress the importance of still passing the appearance test in the case of an Executive or Legislature intervention, only giving some optional advice to Member States to design the procedure in such cases (§ 56). Secondly, it also did not explicitly refer to the additional and more specific obligation that the appointment rules must be drafted in a way to preclude direct and indirect influence on the judges. On the contrary, with respect to EU judges, the Court leaves it fully to the Member States to draft rules for a procedure in a narrow sense in the first place, contrasting with this more demanding requirement imposed in the national context. It is unlikely that such diverging standards could be justified by the specificities of the nature of the EU judiciary as compared to national judiciaries. The appearance test namely already allows for such a high degree of context sensitivity. The judgment also does not elaborate on possible reasons for such differences. In any case, allowing double standards contrasts with the claimed uniformity of the concept of judicial independence in the EU-shared judicial space. Furthermore, the Court’s concrete application of the appearance test seems to be stricter regarding the appointment of national judges. At the national level, it critically scrutinized appointment decisions characterized by unconstraint discretionary procedures. In the Polish A.B. case, it found potentially politicized appointment decisions due to the absence of the intervention by a truly independent body, paired with a lack of judicial review, hardly compatible with EU law, at least in the context of judicial reforms. Admittedly, the systemic shifts in the organization of the Polish judiciary putting judicial independence at risk and giving rise to that judgment have been an important factor for the Court’s reasoning. However, the Court also closely scrutinized detailed elements of national appointment regimes in a national context in which “positive” judicial reforms have taken place. Thus, in the case Repubblika, the Court explicitly acknowledges the improvement of the Maltese judicial appointment system regarding the level of judicial independence under a reform (§ 66), and still seemed to have only accepted certain discretionary powers of the Maltese Prime Minister for appointments “inasmuch as the Prime Minister exercises that power only in quite exceptional circumstances and adheres to strict and effective compliance with that obligation to state reasons” (Repubblika, § 71). These judgments illustrate the Court’s strong suspicion of overly broad discretionary powers in judicial appointments in varying national contexts, even as a result of a reform aiming at strengthening overall judicial independence as was the case in Repubblika. In Valančius, however, the Court takes a more lenient stance, potentially giving Member States discretion to appoint EU judges through fully informal and discretionary procedures. The exact meaning of this ruling, especially paragraphs 54 and 55 of it, needs further clarification in the future. All in all, Valančius is a missed opportunity to set clear standards for ensuring judicial independence at the national stage of appointment procedures of EU judges.

*A more detailed version of this case note (in Dutch) is forthcoming in the SEW journal