EU’s Involvement in the Renewal of the Spanish Council of the Judiciary

The growing political polarization of Western liberal democracies often leads to situations of political deadlock that require the intervention of an external authority capable of untangling the knot. Usually, this is a function reserved for the judiciary, but when the dispute centers – as in the Spanish case – precisely on who governs the judges, it becomes necessary to resort to exotic, sometimes extravagant solutions to make up for the shortcomings of the constitutional system. After the second (fruitless) meeting held today between Commissioner Reynders and representatives of the Spanish government and the main opposition party, there is no simple solution in sight to an issue of the renewal of the Spanish Council of the Judiciary with significant implications for the immediate future of the Spanish political scenario. In this blog, I argue that underneath all the technical layers of legal order invoked under the generic defence of the rule of law, there are political and democratic debates for which the EU may play an important yet uncertain and questionable role.

In the last two Rule of Law Reports (2022 and 2023), in the section dedicated to Spain,¹⁾ the Commission warned of the difficult situation of the General Council of the Judiciary (CGPJ) due to its lack of renewal and adaptation to the appointment procedure for its judges-members. This lack of renewal affects the Supreme Court’s work and the justice system, affecting the number of cases adjudicated and the length of proceedings. Additionally, in the absence of a solution in line with European standards, the Commission emphasized that the necessary steps must be taken. Furthermore, the Reports echoed the level of perceived judicial independence in Spain, which continues to be low among the general public and is now low among companies. Finally, the Commission recommended proceeding with the renewal of the CGPJ with the highest priority and initiating “a process in view of adapting the appointment of its judges-members, taking into account European standards on Councils for the Judiciary.” I will firstly explain the respective Spanish constitutional rules of the CGPJ, how the said Council became involved in partisan politics, and finally the newly acquired role of the European Commission in resolving this political stalemate.

The Spanish constitutional rules of the game

According to Art. 122(3) of the Spanish Constitution, the CGPJ²⁾ shall consist of the President of the Supreme Court, who shall preside it, and of 20 members appointed for a five-year term consisting of 12 judges or magistrates and 8 lawyers or other jurists of recognized competence with more than fifteen years of professional practice. While the Constitution provides that the Parliament elects the eight jurists, it does not specify who should select the remaining 12 judges and magistrates. According to Article 567 of Organic Law 6/1985 (LOPJ), which develops the constitutional precept, the 20 members shall be appointed by Parliament (10 by the Congress of Deputies and 10 by the Senate) and elected in both cases by a qualified 60% majority of their members.

According to the Spanish Constitution, the CGPJ is responsible for appointments, promotions, inspections, and disciplinary matters. Hence, although the CGPJ is not a jurisdictional body, it exercises functions that powerfully influence the development of the professional careers of judges and magistrates.

The CGPJ as the subject of the political dispute

Spain has been no stranger to the growing political polarization of other Western liberal democracies. However, since Pedro Sánchez, the leader of the Spanish Socialist Party PSOE, in June 2018 ousted Mariano Rajoy, then the leader of the Spanish conservative party PP, from the Moncloa after a motion of no confidence,³⁾ and supported by Podemos and pro-independence and Basque and Catalan nationalist parties, the level of deterioration of the political debate has reached unbearable heights. The positions between the two blocs seem irreconcilable. The left-wing parties, together with Basque, Galician, and Catalan nationalist parties on the one hand, and right-wing and extreme right-wing parties on the other hand. Hence, nobody in Spain today can imagine any significant agreement between the two main Spanish parties. The last general elections in July 2023 deepened this bloc division with a pyrrhic victory of the left-wing bloc and the peripheral nationalists, leaving a narrow margin of manoeuvre for the Sanchez government.

The Judiciary has not been oblivious to this growing polarization of Spanish politics. In December 2018, it was time to renew the members of the CGPJ according to the rules established in the Constitution and in the LOPJ, whose last version in 2013 had been approved by the PP. The two-thirds required for the renewal implies a necessary agreement between the two major parties, PSOE and PP. Historically, there has been a tacit political agreement between the PP and PSOE that whoever holds the nation’s government has the right to appoint the majority of members of the CGPJ. With the new socialist government, it was anticipated that the majority of the members of the CGPJ would be progressive.

However, the PP has since refused to renew the CGPJ, thus maintaining an “undue” conservative majority in the CGPJ. The pretexts have been multiple: the support of former ETA terrorists to the new government, the presence of “radical communists” (Podemos) in the Spanish coalition government, the reform of the crime of sedition, the questioning of judicial impartiality and accusations of lawfare to the Judiciary by sectors supporting the government, etc.⁴⁾ Since April 2021, the PP has demanded to reform the system of election of the 12 judges or magistrates of the CGPJ prior to its renewal. Contrary to the current arrangement, where the Parliament chooses among the candidates from a list provided by the CGPJ, the PP argues that the judges and magistrates themselves must elect their representatives. The PP’s proposal, different from the one it carried out in the government in 2013, is explained by the current conviction of the Spanish right-wing party that the bulk of judges and magistrates have a conservative bias.

Involvement of the European Commission

The deadlock caused by the PP’s refusal to reach an agreement according to the established rules has led the Judiciary to an untenable situation: 20 vacancies on the Supreme Court – 25% of its staff – and 49 of the 116 presidencies of courts in the country remain vacant. Consequently, that has led to a decrease in the number of rulings by the Supreme Court, which, given its role in ensuring consistency in the interpretation of national law, has had an impact on legal certainty. The situation also undermines the efficiency of justice and extends the length of judicial proceedings. Against this background, in September 2022, Commissioner Reynders travelled to Spain for two days to facilitate the agreement between the PP and the PSOE to resolve the blockage of the CGPJ, among other things. After multiple meetings,⁵⁾ the visit was unsuccessful, and the blockage was maintained.

However, the role of the European Commission is different this time. On 22 December 2023, the President of the Government, Pedro Sánchez and the leader of the opposition, Alberto Nuñez Feijoo (the PSOE and the PP), agreed to request the mediation by the European Commission concerning the renewal of the CGPJ⁶⁾ The unprecedented nature of the Spanish request was initially received with surprise by the European Commission whose interference in the constitutional systems of the Member States is usually viewed with suspicion by the respective national authorities. After carefully weighing the characteristics of an exotic new role in the internal affairs of Spain as a sovereign state, the European Commission accepted its mediating role under the responsibility of Commissioner Reynders. According to the European Commission, its mediation functions will be done through a “structured dialogue” on implementing the recommendation in the 2022 and 2023 Rule of Law Reports for Spain. This dialogue started on 31 January 2024, and according to the European Commission, it should not exceed two months. Not many details have been transcended about the meeting held last month. The parties only expressed the commitment to continue to work together and to reconvene this month.⁷⁾The meeting held today does not seem to have shed any light on the dispute either, as the cryptic press release from Commissioner Reynders testifies.⁸⁾

Preliminary conclusions

The mediation role of the European Commission to resolute a national political dispute can be comprised of its broader functions to promote the general interest of the Union and ensure the application of the Treaties (Art. 17 of the TEU, in conjunction with Art. 2 TEU concerning the rule of law and the principle of subsidiarity). In this respect, the involvement of the EU in an internal issue of the Spanish constitutional system reveals two interconnected and significant phenomena. Firstly, we should note and question the expansive content of the functions and powers of the EU as the guardian of the rule of law. Secondly, and more importantly, the deterioration of the political culture of Spanish liberal democracy and its incapacity to respond reasonably to increasing political polarization.

As James Madison warned in the Federalist Paper n.10,⁹⁾ the political parties seem to have become factions, mere representatives of particular interests, thus forgetting their fundamental duty to seek the general interest of society as a whole. In this context, we find ourselves in a multilevel constitutional system where the EU can exercise mediation and arbitration functions to safeguard the proper functioning of national constitutional systems from an epistemic and political authority that deserves a more detailed analysis. In this vein, the success of the EU mediation formula and its eventual authority as the ultimate interpreter of what and what is not in accordance with the rule of law stands as a fundamental laxative for the political storm that is brewing on the eve of the approval of the already constitutionally contested amnesty law for the Catalan pro-independence leaders.