Case C-508/19 Prosecutor General (Chambre disciplinaire de la Cour suprême – Nomination)

The essence of the case: determining whether art. 19 (1) TEU empowers a court
of a Member State to find that a person called to hold an office of a judge is not a judge
as a result of an opinion issued in the course of selecting candidates, which opinion is not subject to judicial review with a suspensive effect. In other words: the Court of Justice may decide whether EU law can decide on a person’s status as judge within the meaning not only of EU law, but also within the meaning of national law. A similar issue is the subject of case C-487/19 W. Ż. The case develops the legal problems raised in Case C-824/18 A.B. and others

***

The hearing before the Court of Justice took place on 22 September 2020.

***

The Advocate General’s opinion will be delivered on 12 January 2020.

***

Judgment of the European Court of Human Rights of 1 December 2020 in the case pf

 Gudmundur Andri Ástrádsson v. Iceland (Application no. 26374/18)

210. The task of the Grand Chamber in relation to the present complaint is, therefore, limited to determining the consequences of the aforementioned breaches of domestic law in terms of Article 6 § 1, in other words to ascertaining whether Judge A.E.’s participation, in spite of the established irregularities in her appointment, on the bench of the Court of Appeal which heard the applicant’s appeal, deprived him of the right to be tried by a “tribunal established by law”.

280. The Court has no reason to doubt that the appointments at issue had, technically, not been “markleysa” (a nullity) under Icelandic law or that, once appointed, the individual judges would endeavour to observe the fair trial requirements. However, none of those findings address as such the question whether the irregularities in the process leading to the appointment of A.E. had, by and of themselves, interfered with the applicant’s right to a “tribunal established by law” as a distinct Article 6 safeguard, as interpreted by the Court.

***

        The quoted excerpts from the judgment of the European Court of Human Rights show that the validity of the appointment of a judge to the office is determined by national law, and any defects in the nomination procedure do not automatically mean that judges will not comply with the requirements of a fair trial.

Therefore, it may soon turn out whether the jurisprudence of the Court of Justice is evolving in the direction set out by the European Court of Human Rights.