The essence of the case: determining whether there is a general requirement under EU law that appointments of judges – including for the posts of Supreme Court judges – be subject to judicial review, the initiation of which should suspend the appointment procedure
The hearing before the Court of Justice was held on 6 July 2020. The opinion of the Advocate General was delivered on 17 December 2020.
Opinion of Advocate General Evgeni Tanchev:
- “It is true that EU law, as it now stands: (i) does not contain a norm or a principle which would confer on candidates for the position of judge such as those in the main proceedings a right to a judicial remedy nor determine the conditions of effectiveness which such a right would have to satisfy; and (ii) does not provide that such candidates have a right not to be discriminated against, on the basis of the types of vacant judicial positions concerned, as far as such a remedy is concerned.”
Due to special circumstances concerning Poland (implicitly – political influence on the candidates due to the lack of independence of the National Council of the Judiciary recommending these candidates), the lack of such a procedure and its suspensive effect may intensify the lack of signs of independence and impartiality of judges appointed to given positions. Such a lack violates the second subparagraph of Article 19(1) TEU.
Opinion of Advocate General Gerard Hogan in Case C-896/19 Repubblika v. Il-Prim Ministru:
“57. In this regard, it would be pointless to deny that politics has played a role – sometimes even a decisive one – in the appointment of judges in many legal systems, including those in many Member States. It is sufficient here to refer to the experience of two of the world’s most prominent and influential courts – namely, the US Supreme Court and the German Constitutional Court – nearly all of whose members were associated with particular political parties and political traditions. Politicians and former politicians may even be ex officio members of constitutional courts of Member States (as in France) either because of the law governing it (as in the case of the Belgian Constitutional Court), or because they are elected by members of Parliament (as for example in Germany or, as is partially the case, in Italy), or they are often simply traditionally appointed as judges of those courts. Yet there is no doubt that all of these courts have proved to be resolutely independent vis-à-vis the other branches of government.”
Judgment of the Court of Justice of 9 July 2020, VQ v. Land Hessen, C-272/19:
“55 The Verwaltungsgericht Wiesbaden (Administrative Court of Wiesbaden) appears, however, also to have doubts as to the compatibility of the composition of the Judicial Appointments Committee with the principle of independence, given that the majority of its members are chosen by the legislature.
56 However, that fact cannot, in itself, give rise to any doubt as to the independence of the referring court. The assessment of the independence of a national court or tribunal must, including from the perspective of the conditions governing the appointment of its members, be made in the light of all the relevant factors.”
The list of the quoted passages suggests that they may be in line with the reasoning of the European Commission for Democracy through Law (Venice Commission) presented in the Report on the appointment of judges (CDL-AD (2007) 028) adopted at the 70th Plenary Session:
“5. In some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. Such systems may work well in practice and allow for an independent judiciary because the executive is restrained by legal culture and traditions, which have grown over a long time.
- New democracies, however, did not yet have a chance to develop these traditions, which can prevent abuse. Therefore, at least in new democracies explicit constitutional provisions are needed as a safeguard to prevent political abuse by other state powers in the appointment of judges.”
Until now, the Court of Justice has not clarified the relation of the above-mentioned lines of reasoning to the principle of equality of the Member States as defined in art. 4(2) TEU.