There is considerable variation in the organization and method of appointing judicial councils and the way in which judges are appointed in the EU Member States. There is no standard in European law regarding the method of establishing Judicial Councils, and therefore this power belongs to the national legislature.
The National Council of the Judiciary is a constitutional body that safeguards the independence of courts and judges (Article 186 (1) of the Polish Constitution). It is not, however, a judicial body, and therefore the structure and method of selecting its judges cannot be assessed according to the standards of judicial independence. The detailed powers of the Council were defined in the Act of 12 May 2011 on the National Council of the Judiciary.
The Polish model of appointing judges is patterned after Spanish legislation.
The General Council of the Judiciary is the governing body of the judiciary (Article 122 of the Constitution of the Kingdom of Spain). Its status, the system of incompatibility of membership in the Council with other functions and its tasks, in particular in the field of appointment, promotion, supervision of judges and disciplinary liability, are laid down in the Organic Act 6/1985 of July 1, 1985 on the judiciary
In Spain, the General Council of the Judiciary consists of 21 members: President of the Supreme Court and 20 members appointed by the King by royal decree, of which:
- 12 are appointed from all categories of judges (6 are elected by the Congress of Deputies – the lower chamber of Parliament; 6 are elected by the Senate),
- 8 elected from among advocates and other lawyers with recognized competence and more than 15 years of practice in their profession (4 elected by the Congress of Deputies; 4 elected by the Senate).
In Poland, the National Council of the Judiciary consists of 25 members: the First President of the Supreme Court, Minister of Justice, President of the Supreme Administrative Court, a person appointed by the President of the Republic of Poland, 15 members selected from among judges of the Supreme Court, common courts, administrative courts and military courts, 4 members elected by the Sejm from among deputies, 2 members elected by the Senate from among senators.
Consequently, the number of members elected by Parliament is 20 for the Spanish Council and 21 for the Polish NCJ. The number of members-judges appointed by the Parliament is also at a similar level: in Spain it is 12, and in Poland – 15.
With regard to entities authorized to propose candidates for members of the Council, the Polish regulation provides for more democratic solutions. In Spain a judge with no circumstances preventing him from holding a function in the Council may submit his/her candidacy. The candidate should have the support of 25 active judges or a legally recognized association of judges. Meanwhile, in Poland the entities authorized to propose a candidate for the Council member are the group of at least 2,000 citizens of the Republic of Poland, who are eighteen years of age, have full legal capacity and enjoy full public rights or the group of at least 25 judges, excluding retired judges.
Formal verification of candidates for members of the Council in both countries is carried out on similar principles. In Spain the formal evaluation of the candidates is made by the Election Commission (consisting of the oldest President of the Supreme Court Chamber, the oldest and youngest judge of the Supreme Court and the Secretary of the Supreme Court), which then publishes a list of eligible persons and proclaims candidates to Parliament. In Poland candidate applications meeting the formal requirements shall be immediately forwarded to the Deputies and made public by the Marshal of the Sejm. The deputies’ club indicates, from among the judges whose candidacies were put forward, no more than 9 candidates for members of the Council. The competent Sejm committee determines the list of candidates by selecting, from among the candidates, 15 candidates for members of the Council.
Both in Spain and Poland, Parliament elects Council members by a qualified majority of 3/5 votes. In both countries, the term of office of the Council is common (5-year in Spain, 4-year in Poland).
The solutions adopted in Poland guarantee the democratic election of members of the National Council of the Judiciary, as opposed to the German regulations, which do not exclude the politicization of the judicial selection procedure.
In Germany, the appointment of judges, with the exception of federal courts, falls within the competence of the Länder. Appointment procedures differ from state to state, but they all share basic elements. In the case of federal courts, this process should involve consultation with the Selection Committee of Judges, which selects judges subsequently appointed by the executive power and the judicial councils of the competent courts.
For example, in the federal state of Hessen, 7 out of 12 members of the commission for the election of judges de facto emanate from the legislature, reflecting the balance of political forces currently represented in the parliament of this state (Landtag). Issues concerning the composition and procedure of appointing the commission for the selection of judges were regulated by the Law on judges of Hesse of March 14, 1991
The commission for the selection of judges consists of: 7 members appointed by the Landtag, 5 members representing the judiciary community and one out of the two presidents of the National Bar Chambers (every year – alternately – one or another president).
Candidates for committee members may be proposed by each parliamentary grouping within the framework of the list of personnel proposals presented for this purpose. The group of judges-members is elected (together with their deputies) by judges of a certain type of judiciary for a period of 4 years, by secret and direct vote. The term of office of members of the committees appointed by a legislative body shall correspond to the term of office of the latter one. The election of committee members can be appeled to the administrative court- Verwaltungsgericht Wiesbaden.
As regards the participation of the legislative authority in the procedure for electing members of the appointing authority, the Court of Justice of the European Union ruled in its judgment of 9 July 2020 in case C-272/19 VQ v. Land Hessen that the mere numerical majority of members elected by the legislature in the body participating in the process of appointing judges, it does not violate the principle of separation of powers which is the basis of a democratic state ruled by law and is not inconsistent with the international and European standards applicable in this field.