The essence of the case: establishing whether the powers of the prime minister in the appointment of members of the judiciary (judges) in Malta should be considered compatible with Art. 19(1) TEU and Art. 47 of the Charter of Fundamental Rights
Article 96 of the Constitution of Malta relates to the appointment of the judges of the superior courts. It provides:
‘(1) The judges of the Superior Courts shall be appointed by the President acting in accordance with the advice of the Prime Minister.
(2) A person shall not be qualified to be appointed a judge of the Superior Courts unless for a period of, or periods amounting in the aggregate to, not less than twelve years he has either practised as an advocate in Malta or served as a magistrate in Malta, or has partly so practised and partly so served.
(3) Without prejudice to the provisions of sub-article (4), before the Prime Minister gives his advice in accordance with sub-article (1) in respect of the appointment of a judge of the Superior Courts, (other than the Chief Justice) the evaluation by the Judicial Appointments Committee established by Article 96A of this Constitution as provided in paragraphs (c), (d) or (e) of sub-article (6) of the said article 96A shall have been made.
(4) Notwithstanding the provisions of sub-article (3), the Prime Minister shall be entitled to elect not to comply with the result of the evaluation referred to in sub-article (3):
Provided that after the Prime Minister shall have availed himself of the power conferred upon him by this sub-article, the Prime Minister or the Minister responsible for justice shall:
(a) publish within five days a declaration in the Gazette announcing the decision to use the said power and giving the reasons which led to the said decision; and
(b) make a statement in the House of Representatives about the said decision explaining the reasons upon which the decision was based by not later than the second sitting of the House to be held after the advice was given to the President in accordance with sub-article (1):
Provided further that the provisions of the first proviso to this sub-article shall not apply in the case of appointment to the office of Chief Justice.’
A hearing took place on 27 October 2020. Advocate General Gerard Hogan delivered opinion on the case on 17 December 2020.
Opinion of the Advocate General:
“55. It is important to note, however, that the mere fact that judges are appointed by a member of the executive does not in itself give rise to a relationship of subordination of the former to the latter or raise doubts as to the former’s impartiality, if – and it is a critical proviso – once appointed, they are free from influence or pressure when carrying out their role. There is, however, one exception. As the Court acknowledges in its judgment of 26 March 2020, Review Simpson and HG v Council and Commission (C-542/18 RX-II and C-543/18 RX-II, EU:C:2020:232), Article 19 TEU comes into play where a particular judge has been invalidly appointed and where that irregularity has been of such gravity that it created a real risk that, in the words of the Court, the executive could thereby undermine the integrity of the appointment process. It follows in turn that there must exist a mechanism whereby an illegal judicial appointment – in particular, where the judge in question was legally ineligible for the appointment – can be legally set aside.
- It may, nonetheless, be said that, with the exception of the specific and unusual case of invalidly appointed judges described in Simpson, Article 19(1) TEU is essentially forwarding looking in that it is concerned with the protection of judicial independence once the judge has been appointed.
- 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.”
“78. It is true that, as recognised in the judgment in the Independence of the Supreme Court case, the existence of independent bodies such as a national Judicial Council or a Judicial Appointments Committee can assist in ensuring that the judicial appointments procedure (or, as in that case, the extension of a specific judge’s term of office) is objective and transparent. As such, the existence of such bodies may be therefore very desirable in themselves. It is nonetheless clear from the decision of the Court in AK that their existence is not of the essence of the judicial independence required by a combination of Article 19 TEU and Article 47 of the Charter. I say this even though in Independence of the Supreme Court the Court spoke of ensuring that the ‘substantive conditions and detailed procedural rules governing the adoption of [appointment] decisions are such that they cannot give rise to reasonable doubts’ as to the independence of the specific judges concerned. However, as we have just seen, these comments were made in relation to an appointment which extended the tenure of judicial office and not to an actual judicial appointment itself. It must, therefore, be reiterated that Article 19(1) TEU is essentially forward-looking in that it seeks to ensure that judges, once appointed, enjoy sufficient guarantees of judicial independence.”
Opinion of Advocate General Evgeni Tanchev in Case C-824/18:
“109. What I find important for the Court to consider here is that whereas certain types of procedure of and rules pertaining to the appointment of judges in Member States (and so also the lack of a judicial remedy in the context of such procedures, as is the case in the main proceedings) may not be questionable under EU law as such, they may well turn out to be unacceptable when they occur on the basis of a recommendation of a body which is itself manifestly not independent.”
Conclusion: in the opinion of Advocate General Gerard Hogan, the method of appointing judges of the courts of the Member States mentioned above raises no doubts from the point of view of their independence, and the lack of recommendations of the body mentioned in the opinion of Advocate General Evgeni Tanchev is not a problem in this respect. In the opinion of Advocate General Gerard Hogan, such a body does not even has to exist. There is therefore a contradiction between the two opinions presented, which will have to be clarified by the Court of Justice.